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Indian Laws - Case Laws
Showing 1 to 20 of 92 Records
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2020 (2) TMI 1710
Seeking grant of Bail - recovery of prohibited arms from the house of this petitioner - HELD THAT:- Considering the nature of allegations levelled, the materials available on record and the submissions advanced on behalf of the parties, this Court does not find it to be a fit case for grant of bail to the petitioner. The same is, therefore, rejected.
Petition dismissed.
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2020 (2) TMI 1709
Seeking direction to the respondents to forthwith release the amount in respect of the tax paid by the petitioner under the GST law along with interest @ 18 percent - contention of the petitioner is that he has been repeatedly approaching the authorities concerned by raising his claim but till date his claim has not been responded to by the respondents - HELD THAT:- Considering the facts and circumstances of the case, particularly taking into consideration two circulars referred to by the petitioner to support his claim i.e. circular dated 10.10.2018 and 21.12.2017 and further considering the fact that the claim raised by the petitioner till date has not been denied or disputed by the respondents by passing any order or rejecting the claim of the petitioner, the stage has not arisen for the petitioner to invoke the arbitration clause. The petitioner may avail the same, provided the respondents may dispute the claim of the petitioner or reject his claim.
Given the said facts and the pending representation of the petitioner before the respondents, let the respondents No.2 to 5 take a decision on the claim/representation that the petitioner has made so far as his claim for refund of GST is concerned at the earliest preferably within a period of 60 days from the date of receipt of copy of this order - petition disposed off.
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2020 (2) TMI 1706
Dishonour of Cheque - main reason for dismissal of the complaint was that the complainant is a money lender and the alleged advance stated to have been made by him to the accused could not be considered to be out of the purview of the money lending business of the complainant - HELD THAT:- In SAMARENDRA NATH DAS VERSUS SUPRIYO MAITRA [2005 (12) TMI 607 - CALCUTTA HIGH COURT], a Single Bench of Calcutta High Court had observed that when in a complaint under Sections 138 and 139 of the Negotiable Instruments Act, 1881, an application for discharge of accused was moved for alleged violation of provisions of 138 of the Act, therein it was observed that the alleged violation of provisions of Income Tax Act and Contract Act and Money Lenders Act does not bar continuation of proceedings under Section 138 of the said Act.
In V. SATYANARAYANA VERSUS SANDEEP ENTERPRISES [2004 (9) TMI 675 - KARNATAKA HIGH COURT] by a Division Bench of Karnataka High Court while dealing with interpretation of money lender, it was observed that money lending must be carrying on as profession and if the money lending was not with profit motive or not carried on as profession, he or she does not become a money lender; a stray instance of lending money does not show carrying on the business of money lending as profession or with profit motive.
The trial Court had dismissed the complaint mainly for the reason that the complainant was a money lender, lending money without licence. The Magistrate had not gone into the merits of the case as to whether the necessary ingredients of Section 138 of the Act were established or not. Therefore, the impugned judgment dismissing the complaint for the reason of complainant having been found to be a professional money lender practicing money lending without licence is not sustainable, in view of the judgments referred to learned counsel for the appellant/complainant.
The judgment is accordingly set aside by way of acceptance of the appeal and the matter is remanded to learned Magistrate for giving a fresh decision on merits after hearing learned counsel for the parties.
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2020 (2) TMI 1705
Interpretation of statute - provisions inserted by way of carving out Section 18A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
As per Arun Mishra, J.
HELD THAT:- The Section 18A(i) was inserted owing to the decision of this Court in Dr. Subhash Kashinath [2018 (3) TMI 2005 - SUPREME COURT], which made it necessary to obtain the approval of the appointing authority concerning a public servant and the SSP in the case of arrest of Accused persons. This Court has also recalled that direction on Review Petition (Crl.) No. 228 of 2018 decided on 1.10.2019. Thus, the provisions which have been made in Section 18A are rendered of academic use as they were enacted to take care of mandate issued in Dr. Subhash Kashinath (supra) which no more prevails. The provisions were already in Section 18 of the Act with respect to anticipatory bail.
Concerning the applicability of provisions of Section 438 Code of Criminal Procedure, it shall not apply to the cases under Act of 1989. However, if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by Section 18 and 18A(i) shall not apply - The court can, in exceptional cases, exercise power Under Section 482 Code of Criminal Procedure for quashing the cases to prevent misuse of provisions on settled parameters, as already observed while deciding the review petitions. The legal position is clear, and no argument to the contrary has been raised.
The challenge to the provisions has been rendered academic - Petition disposed off.
As per S. Ravindra Bhat, J.
HELD THAT:- It is important to keep oneself reminded that while sometimes (perhaps mostly in urban areas) false accusations are made, those are not necessarily reflective of the prevailing and wide spread social prejudices against members of these oppressed classes. Significantly, the amendment of 2016, in the expanded definition of 'atrocity', also lists pernicious practices (Under Section 3) including forcing the eating of inedible matter, dumping of excreta near the homes or in the neighbourhood of members of such communities and several other forms of humiliation, which members of such scheduled caste communities are subjected to. All these considerations far outweigh the Petitioners' concern that innocent individuals would be subjected to what are described as arbitrary processes of investigation and legal proceedings, without adequate safeguards. The right to a trial with all attendant safeguards are available to those Accused of committing offences under the Act; they remain unchanged by the enactment of the amendment.
As far as the provision of Section 18A and anticipatory bail is concerned, the judgment of Mishra, J, has stated that in cases where no prima facie materials exist warranting arrest in a complaint, the court has the inherent power to direct a pre-arrest bail.
It is important to reiterate and emphasize that unless provisions of the Act are enforced in their true letter and spirit, with utmost earnestness and dispatch, the dream and ideal of a casteless society will remain only a dream, a mirage. The marginalization of scheduled caste and scheduled tribe communities is an enduring exclusion and is based almost solely on caste identities. It is to address problems of a segmented society, that express provisions of the Constitution which give effect to the idea of fraternity, or bandhutva referred to in the Preamble, and statutes like the Act, have been framed.
Petition disposed off.
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2020 (2) TMI 1702
Dishonour of cheque - Legally unenforceable debt - Insufficiently Stamped Instrument - Recovery of the sums advanced by the plaintiff to the defendants on the basis of written contracts, negotiable instrument and documents evidencing acknowledgment of liability - HELD THAT:- In the backdrop of the material on record, including the SFIO Report, the extent to which the plaintiff would be entitled in law to enforce the liabilities, especially as regards the quantum of interest, when the creditworthiness of the debtor was in a serious doubt, warrants consideration.
Whether the infraction on the part of the plaintiff is totally immaterial or inconsequential and the plaintiff is entitled to recover the entire loan amount alongwith interest as if the transaction is in conformity with all the norms? Can the plaintiff be permitted to recover the loan amount along with interest at the agreed rate at 16% p.a., with additional interest, penal interest, delayed payment interest at 2% p.a., each, de hors the circumstances in which the transactions were entered into? These are the questions, which warrant adjudication. The defence of alleged in-action on the part of the plaintiff in not invoking the shares at a specified time, despite agreeing to do so, resulting in loss to the defendants also raises an issue which requires consideration.
It would be appropriate to direct the defendants to deposit the amount which was actually disbursed to the 'borrower company' in each of the suits. Hence, the defendants are entitled to conditional leave to defend the suit; subject to deposit of the principal amount which came to be disbursed in each of the transactions.
Leave to defend the suit is granted to defendant nos. 1 to 8 subject to deposit of a sum of Rs. 2,33,16,04,691/- in the Court within eight weeks from today - Summon disposed off.
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2020 (2) TMI 1700
Preferential transaction or not - scope of Sub-section (2) of Section 43 IBC - related party and look-back period - transactions in question are hit by Section 43 IBC or not - lenders of JAL could be treated as financial creditors of JIL or not - Financial debt-ratio of Pioneer Urban.
Whether the transactions in question are hit by Section 43 IBC? - HELD THAT:- The transactions in question are hit by Section 43 of the Code and the Adjudicating Authority, having rightly held so, had been justified in issuing necessary directions in terms of Section 44 of the Code in relation to the transactions concerning Property Nos. 1 to 6. NCLAT, had not been right in interfering with the well-considered and justified order passed by NCLT in this regard.
Looking to the legal fictions created by Section 43 and looking to the duties and responsibilities per Section 25, for the purpose of application of Section 43 of the Code in any insolvency resolution process, what a resolution professional is ordinarily required to do could be illustrated as follows:
1. In the first place, the resolution professional shall have to take two major but distinct steps. One shall be of sifting through the entire cargo of transactions relating to the property or an interest thereof of the corporate debtor backwards from the date of commencement of insolvency and up to the preceding two years. The other distinct step shall be of identifying the persons involved in such transactions and of putting them in two categories; one being of the persons who fall within the definition of 'related party' in terms of Section 5(24) of the Code and another of the remaining persons.
2. In the next step, the resolution professional ought to identify as to in which of the said transactions of preceding two years, the beneficiary is a related party of the corporate debtor and in which the beneficiary is not a related party. It would lead to bifurcation of the identified transactions into two sub-sets: One concerning related party/parties and other concerning unrelated party/parties with each sub-set requiring different analysis. The sub-set concerning unrelated party/parties shall further be trimmed to include only the transactions of preceding one year from the date of commencement of insolvency.
3. Having thus obtained two sub-sets of transactions to scan, the steps thereafter would be to examine every transaction in each of these sub-sets to find: (i) as to whether the transaction is of transfer of property or an interest thereof of the corporate debtor; and (ii) as to whether the beneficiary involved in the transaction stands in the capacity of creditor or surety or guarantor qua the corporate debtor. These steps shall lead to shortlisting of such transactions which carry the potential of being preferential.
4. In the next step, the said shortlisted transactions would be scrutinised to find if the transfer in question is made for or on account of an antecedent financial debt or operational debt or other liability owed by the corporate debtor. The transactions which are so found would be answering to Clause (a) of Sub-section (2) of Section 43.
5. In yet further step, such of the scanned and scrutinised transactions that are found covered by Clause (a) of Sub-section (2) of Section 43 shall have to be examined on another touchstone as to whether the transfer in question has the effect of putting such creditor or surety or guarantor in a beneficial position than it would have been in the event of distribution of assets per Section 53 of the Code. If answer to this question is in the affirmative, the transaction under examination shall be deemed to be of preference within a relevant time, provided it does not fall within the exclusion provided by Sub-section (3) of Section 43.
6. In the next and equally necessary step, the transaction which otherwise is to be of deemed preference, will have to pass through another filtration to find if it does not answer to either of the Clauses (a) and (b) of Sub-section (3) of Section 43.
7. After the resolution professional has carried out the aforesaid volumetric as also gravimetric analysis of the transactions on the defined coordinates, he shall be required to apply to the Adjudicating Authority for necessary order/s in relation to the transaction/s that had passed through all the positive tests of Sub-section (4) and Sub-section (2) as also negative test of Sub-section (3).
Looking to the legal fictions created by Section 43 and looking to the duties and responsibilities of the resolution professional and the Adjudicating Authority, ordinarily an adherence to the process illustrated hereinabove shall ensure reasonable clarity and less confusion; and would aid in optimum utilization of time in any insolvency resolution process.
Whether lenders of JAL could be treated as financial creditors? - HELD THAT:- Such lenders of JAL, on the strength of the mortgages in question, may fall in the category of secured creditors, but such mortgages being neither towards any loan, facility or advance to the corporate debtor nor towards protecting any facility or security of the corporate debtor, it cannot be said that the corporate debtor owes them any 'financial debt' within the meaning of Section 5 of the Code; and hence, such lenders of JAL do not fall in the category of the 'financial creditors' of the corporate debtor JIL.
These appeals are allowed to the extent and in the manner that:
1) The impugned order dated 01.08.2019 as passed by NCLAT in the batch of appeals is reversed and is set aside.
2) The appeals preferred before NCLAT against the order dated 16.05.2018, as passed by NCLT on the application filed by IRP, are dismissed; and consequently, the order dated 16.05.2018 so passed by NCLT is upheld in regard to the findings that the transactions in question are preferential within the meaning of Section 43 of the Code. The directions by NCLT for avoidance of such transactions are also upheld accordingly.
3) The appeals preferred before NCLAT against the orders passed by NCLT dated 09.05.2018 and 15.05.2018 on the applications filed by the lender banks are also dismissed and the respective orders passed by NCLT are restored with the findings that the applicants are not the financial creditors of the corporate debtor Jaypee Infratech Limited.
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2020 (2) TMI 1698
Dishonour of Cheque - prayer of the petitioner to produce on record the income tax returns of the complainant/respondent was declined - HELD THAT:- The finding recorded by the trial Court in the impugned order dated 27.10.2016 that the ITRs Mark D3 to D6 are pertaining to relevant period is factually incorrect as these are the ITRs for the years 2012-2013 and 2013-14, whereas, as per the case of the complainant, the loan was advanced in the year 2008 and the cheque was presented in 2012 and, therefore, as per the averments made in the complaint and in the statement of the complainant that the petitioner/accused was quarterly paying the amount of interest, which on the face of it, is not reflected in the ITRs for the years 2008-09, 2009-10, 2010-11 and 2011-12. Therefore, the impugned order dated 27.10.2016 is liable to be set aside.
Further, the observations made by the trial Court in the impugned order dated 21.11.2016, whereby the petitioner was not granted one more opportunity to deposit the cost of ₹ 10,000/- imposed for summoning the Clerk of State Bank of India are also not justified as it is very much believable that the petitioner could not be able to deposit the said cost on account of declaration of demonetization on 08.11.2016 resulting into cash crunch and paucity of cash even in banks.
Petition allowed.
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2020 (2) TMI 1692
Principles of natural justice - no appearance inspite of service of SCN - Allegation of utilisation of FDI proceeds for claiming development rights of agricultural land owners by Indian entities - HELD THAT:- In spite of service of notice, the private respondents, except respondent no.4, have not entered appearance, neither have the officers of the respondent no.4, except respondent no.14 in WP(C) No.10337/2019 entered appearance.
Keeping in view the serious nature of allegations made in the petition and the submissions made by the learned counsel for the respondent nos.1,2,3 and 31, the private respondent companies in the petitions, that is the respondent nos.5 to 14 in WP(C) 8068/2019, and respondent nos.16 to 25 in WP(C) 10337/2019, are restrained from creating any third party interest or parting with the possession of their immovable properties till the next date of hearing, except in compliance with an order passed by any statutory Authority/Investigating Agency.
List on 20th July, 2020.
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2020 (2) TMI 1687
Infringement of copyrights - Suit for declaration, injunction, rendition of accounts and damages - prime contention of the plaintiff is that the defendants had not only adopted the idea of copyright work of the plaintiff but also had adopted the manner, arrangement, situation to situation, scene to scene with minor changes additions or embellishments here and there.
HELD THAT:- The plaintiff has proved the fact that he has registered the story “SPM” with the third defendant association on 10.04.2013. The script of “SPM” is marked as Ex.P.1. The script of movie “Kathi” is marked as Ex.D.2 and the CD of the film “Kathi” is marked as Ex.D.3. In the plaint, it is alleged that the script “SPM” and script of “Kathi” are replica of each other. Whereas, on reading both the scripts, this Court finds that there is not even iota of similarity. Whatever similarity drawn and mentioned in the comparative chart - Ex.P.5 are very remote and even if it be in isolation, they are not similar taken as a whole - this Court finds that the plaintiff has miserably failed to prove that his form, manner arrangement and expression of idea has been infringed by the defendants. The script of the plaintiff is based on emotion between two couple centering around an old lady. Whereas, the script of the second defendant “Kathi” is on land grabbing by a schemy industrialists. There is no similarity on the fundamentals or substantial aspect neither mode of expression is similar.
As the Hon'ble Supreme Court has said in R.G. ANAND VERSUS M/S. DELUX FILMS AND OTHERS [1978 (8) TMI 231 - SUPREME COURT], the surest and safest test to determine whether or not, there has been a violation of copyright is to see, if the Reader, Spectator or the Writer after having read or seen both the works is clearly of the opinion and gets non mistakenly that the subsequent work appears to be copy of the original. On reading of Ex.P.3 script (“SPM”) and Ex.D.2 script ('Kathi'), this Court do not get such impression. Rather, this Court finds that the scripts are two different and distinct play and plot. While the plaintiff has not even able to establish that the story of “Kathi” is replica of his script “SPM”, his allegation that the remake right acquired by the defendants 4 and 5 and the film “Kaidhi No.150” produced by the defendants 4 and 5 is also infringement of script of “SPM” is totally baseless. More so, when the plaintiff has not produced any document to show in connection with “Kaidhi No.150” - this Court holds that the plaintiff has no legal right and the plaintiff has failed to establish any infringement of his copyright by the defendants. Hence, this issue is negatived.
Since, the plaintiff has failed to place evidence to prove the Telugu movie produced by defendants 4 and 5 “Kaidhi No.150”, is remake of “Kathi” Tamil feature film which is based on the story “SPM”, the suit is liable to be dismissed for want of cause of action - Undoubtedly, the plaintiff is the copy right owner over the literary work “SPM” since, he has registered the same with the third defendant, on 10.04.2013. But that does not give him any right to sue the defendants alleging that the movie “Kathi” is based on his script since, there is no similarity either in idea or subject matter, the play or the expression or the ideas.
Since, the plaintiff has failed to prove his case of infringement, no case for rendition of accounts from the defendants, is made out. As the consequence, the plaintiff is not entitled for compensation and damages.
Suit dismissed.
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2020 (2) TMI 1681
Equality of opportunity for women seeking Permanent Commissions (PC) in the Indian Army - HELD THAT:- The policy decision of the Union Government is a recognition of the right of women officers to equality of opportunity. One facet of that right is the principle of non-discrimination on the ground of sex which is embodied in Article 15(1) of the Constitution. The second facet of the right is equality of opportunity for all citizens in matters of public employment under Article 16(1). The policy statement of the Union Government must therefore be construed as a decision which enforces the fundamental right of women to seek access to public appointment and to equality of opportunity in matters of engagement relating to the Army. The fundamental right is recognised in the specified streams where women are permitted to seek engagement as equal members of the Armed force that the Indian Army represents - The decision of the Union Government to extend the grant of PC to other corps in the support arms and services recognizes that the physiological features of a woman have no significance to her equal entitlements under the Constitution.
Stereotypes and women in the Armed Forces - HELD THAT:- Courts are indeed conscious of the limitations which issues of national security and policy impose on the judicial evolution of doctrine in matters relating to the Armed forces. For this reason, it is noticed that the engagement of women in the Combat Arms has been specifically held to be a matter of policy by the judgment of the Delhi High Court and which is not in question in the present appeals. At the same time, we have adverted in some detail to the line of submissions urged before this Court. These submissions detract from the significant role which has been played by women SSC commissioned officers since their induction in 1992. The time has come for a realization that women officers in the Army are not adjuncts to a male dominated establishment whose presence must be “tolerated” within narrow confines - The salient decision of the Union Government to extend PCs to women SSC officers in all ten streams in which they are commissioned is a step forward in recognising and realising the right of women to equality of opportunity in the Army. This marks a step towards realising the fundamental constitutional commitment to the equality and dignity of women.
Consequence of non-compliance - HELD THAT:- There is fundamental fallacy in the distinction which has been sought to be drawn between women officers with less than fourteen years of service with those with service between fourteen and twenty years and above twenty years. The judgment of the Delhi High Court was rendered on 12 March 2010. Nearly a decade has elapsed since the date of the decision. The Union Government was duty bound to enforce the judgment of the Delhi High Court, the judgment not having been stayed during the pendency of these appeals. However, it failed to do so despite the categoric assertion by this Court in its order dated 2 September 2011 that what was stayed as an interim measure is the action for contempt and not the operation of the judgment. Having failed to enforce the judgment, the Union Government has now informed the Court that it would not consider women officers who have crossed the age of fourteen years in service as SSC officers for the grant of PCs.
The policy decision which has been taken by the Union Government on 25 February 2019 indicates that it is to apply prospectively. It is necessary for this Court to clarify that the prospective application of the decision does not mean that it would apply to women officers who have been appointed as SSCs officers after the date of the decision. The Union Government has not applied it in such a manner, which is evident from the fact that the decision contemplates that women officers already in service but with less than fourteen years would be entitled to be considered. We therefore clarify that the policy decision will apply to all women SSC officers who are currently in service irrespective of the length of service which has been rendered by them.
The failure of the government to implement the judgment of the Delhi High Court has caused irreparable prejudice to the women officers. Over the chequered history of the litigation of the past decade, they have lost the benefit of promotions and the assumption of higher responsibilities as members of the Armed Force. To turn around now and inform them that they will lose the entitlement of being considered for the grant of PCs would be a travesty of justice. We are accordingly of the view that SSC women officers, both within the period of fourteen years‟ service and beyond, should equally be entitled to consideration for the grant of PCs.
The courts are conscious of the limitations which questions of policy impose on judicial intervention in matters relating to the Armed Forces. At the same time, faced with a salient decision of the Union Government to extend to all women SSC officers the option for the grant of PCs as well as the situation which has come to pass due to the non-implementation of the binding directions of the Delhi High Court as well as this Court, nonintervention in the present matter would be nothing short of a travesty of justice.
The policy decision which has been taken by the Union Government allowing for the grant of PCs to SSC women officers in all the ten streams where women have been granted SSC in the Indian Army is accepted subject to the following:
(a) All serving women officers on SSC shall be considered for the grant of PCs irrespective of any of them having crossed fourteen years or, as the case may be, twenty years of service;
(b) The option shall be granted to all women presently in service as SSC officers;
(c) Women officers on SSC with more than fourteen years of service who do not opt for being considered for the grant of the PCs will be entitled to continue in service until they attain twenty years of pensionable service;
(d) As a one-time measure, the benefit of continuing in service until the attainment of pensionable service shall also apply to all the existing SSC officers with more than fourteen years of service who are not appointed on PC;
(e) The expression “in various staff appointments only” in para 5 and “on staff appointments only” in para 6 shall not be enforced;
(f) SSC women officers with over twenty years of service who are not granted PC shall retire on pension in terms of the policy decision; and
(g) At the stage of opting for the grant of PC, all the choices for specialisation shall be available to women officers on the same terms as for the male SSC officers. Women SSC officers shall be entitled to exercise their options for being considered for the grant of PCs on the same terms as their male counterparts.
(ii) We affirm the clarification which has been issued in sub-para (i) of paragraph 61 of the impugned judgment and order of the Delhi High Court; and
(iii) SSC women officers who are granted PC in pursuance of the above directions will be entitled to all consequential benefits including promotion and financial benefits. However, these benefits would be made available to those officers in service or those who had moved the Delhi High Court by filing the Writ Petitions and those who had retired during the course of the pendency of the proceedings.
Appeal disposed off.
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2020 (2) TMI 1680
Refusal to release the payment in terms of the unconditional guarantee - refusal on the ground that the money may not have been made available by Simplex to the bank - HELD THAT:- IOCL says that it was in such circumstances that IOCL was constrained to invoke the writ jurisdiction of this court for a direction on the Bank of Baroda to release the payment under the unconditional bank guarantee. IOCL maintains that in such circumstances and considering the conduct of the Bank of Baroda, an appropriate order ought to have been passed to revoke its licence since it had acted in a manner unbecoming of a bank, a nationalised bank at that. The cross-objection is against such part of the order impugned dated June 24, 2019 by which the bank has been directed to immediately make the payment; but the Reserve Bank has not been required to look into the conduct of the Bank of Baroda to cancel its licence.
Considering the conduct of the appellants, the Reserve Bank of India should consider what appropriate steps may be taken against the Bank of Baroda, including revoking its licence or the authority to carry on banking business, if necessary - Appeal dismissed.
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2020 (2) TMI 1676
Evidentiary value of school leaving certificate - Whether the judgment and decree passed by the Courts below suffer from illegality on account of improper consideration of Ex.P1, i.e., school leaving certificate? - HELD THAT:- School Leaving Certificate has been produced by the plaintiff and said to be signed by his father. The person who has recorded the date of birth in the School Register or the person who proves the signature of his father in the School Transfer Certificate has not been examined. No official from the School nor any person has proved the signatures of his father on such certificate. Apart from the self-serving statement, there is no evidence to show that the entry of the date of birth was made by the official in-charge, which alone would make it admissible as evidence under Section 35 of the Indian Evidence Act, 1872. However, the High Court has not found any other evidence to prove the truthfulness of the Certificate (Ex.P/1).
In Birad Mal Singhvi [1988 (8) TMI 440 - SUPREME COURT], the Date of Birth was sought to be proved by the Principal of the School. Though, the Principal could not produce the admission form in original or its copy. It was held therein that the entries contained in the school’s register are relevant and admissible but have no evidentiary value for the purpose of proof of date of birth of the candidates. A vital piece of evidence was missing as no evidence was placed before the court to show on whose information the date of birth was recorded in the aforesaid document. It was held that The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar's register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned.
In Madan Mohan Singh, [2010 (8) TMI 1168 - SUPREME COURT] this Court held that the entries made in the official record may be admissible under Section 35 of the Indian Evidence Act, 1872 but the Court has a right to examine their probative value.
Both the courts, the trial court and the learned First Appellate Court, have examined the School Leaving Certificate and returned a finding that the date of birth does not stand proved from such certificate. May be the High Court could have taken a different view acting as a trial court but once, two courts have returned a finding which is not based upon any misreading of material documents, nor is recorded against any provision of law, and neither can it be said that any judge acting judicially and reasonably could not have reached such a finding, then, the High Court cannot be said to have erred. Resultantly, no substantial question of law arose for consideration before the High Court.
The High Court erred in law in interfering with the finding of fact recorded by the trial court as affirmed by the First Appellate Court. The findings of fact cannot be interfered with in a second appeal unless, the findings are perverse. The High Court could not have interfered with the findings of the fact - the High Court committed grave error in law in setting aside the concurrent findings of facts recorded by the First Appellate Court and the Trial Court - Appeal allowed.
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2020 (2) TMI 1660
Empanelment for promotion - Whether the non-empanelment of the Appellant for promotion to the rank of Major General was contrary to the promotion policy? - HELD THAT:- The Appellant was considered for empanelment by the First Selection Board on 24.04.2015 in accordance with the guidelines laid down in the promotion policy dated 04.01.2011. The Appellant secured a total of 89.667 per cent marks. The record pertaining to the First Selection Board, held on 24.04.2015 was placed before us. The Selection Board did not recommend the Appellant for empanelment for promotion to the rank of Major General in Intelligence Corps. After examining the complete profile of the officer, the Selection Board was of the opinion that the Appellant did not have the requisite potential and was not fit for promotion to the rank of Major General. The Appellant was considered again for empanelment in September, 2015 in which he secured 90.469 marks out of 100 but was not recommended for empanelment.
The Appellant was the only officer of 1981 batch who was considered for empanelment for promotion to the rank of Major General on 24.04.2015. The apprehension of the Appellant that he was compared with the merit of the earlier batch is unfounded.
The earlier policy followed for promotion to higher ranks in the Army from 1987 was revised in the year 2008 to introduce a quantification system to be followed by the Selection Boards. The policy governing promotions to higher ranks in the Army was issued on 04.01.2011 in supersession of the earlier policy of the quantification system. Primacy is given to the CRs as is clearly mentioned in the policy. There is nothing mentioned in the policy that an officer can be ignored for empanelment only on the basis of the value judgment in spite of his securing high marks on the basis of the other criteria - In the instant case, the Appellant was the only eligible Brigadier of his batch for empanelment to the rank of Major General with a meritorious record of service. He could not have been deprived of his empanelment only on the basis of value judgment of the Selection Board.
There is no presumption that a decision taken by persons occupying high posts is valid. All power vested in the authorities has to be discharged in accordance with the principles laid down by the Constitution and the other Statutes or Rules/Regulations governing the field. The judicial scrutiny of a decision does not depend on the rank or position held by the decision maker. The Court is concerned with the legality and validity of the decision and the rank of the decision maker does not make any difference.
The only point that is considered is regarding the non-empanelment of the Appellant being in accordance with the promotion policy of the Respondent. The non-empanelment of the Appellant for promotion as Major General is contrary to the promotion policy. He is entitled for reconsideration for empanelment by a Review Selection Board strictly in accordance with the promotion policy by keeping in mind the observations in this judgment. The Respondents are directed to complete this exercise within a period of six months from today.
Appeal allowed.
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2020 (2) TMI 1648
Dishonor of Cheque - Whether the application moved by the accused under Section 391 of Cr.P.C., to lead additional evidence is maintainable or not? - HELD THAT:- The reading of Section 391 of Cr.P.C., as well as the law laid down by the Hon'ble Supreme Court in the aforesaid judgments clearly leads to form an opinion that the legislative intent in enacting Section 391 appears to be the empowerment of the appellate court to see that justice is done between the parties and if the appellate Court finds that certain evidence is necessary in order to enable it to give a correct and proper findings, it would be justified in allowing further evidence under Section 391. But, it is also clear that such power must be exercised "sparingly" and only in "exceptional suitable cases where the court is satisfied that directing additional evidence would serve the interests of justice". That being the position, this Court is of the view that the application filed by the revisionist/accused under Section 391 of Cr.P.C., is maintainable.
In the case at hand, initially the revisionist had moved an application under Section 311 of Cr.P.C., which the revisionist, by way of another application, prayed to be read as moved under Section 391 of Cr.P.C. This Court has carefully perused the said application. The revisionist has failed to even plead the necessary ingredients of Section 391 Cr.P.C. There is no averment in the application that the document i.e. specimen signature sought to be relied upon by the revisionist is necessary in the present case. Further, there is no pleading that not summoning the specimen signatures from the bank for verification by handwriting expert in the appeal would lead to failure of justice.
This court is of the considered view that the revisionist had not filed any additional evidence by moving an application under Section 391 Cr.P.C. Though he could not succeed in this effort but he became successful in delaying the disposal of appeal - Revision dismissed.
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2020 (2) TMI 1643
Right to vote - Fundamental Right or Statutory Right - Section 62(5) of Representation of the People Act, 1951 is violative of the basic structure of the Constitution or not - HELD THAT:- Section 62(5) is constitutionally valid. The classification of the persons who are in jail and who are out of jail is a valid classification and it has a reasonable nexus with the objects sought to be achieved.
In the case of S. RADHAKRISHNAN VERSUS UNION OF INDIA (UOI) AND ORS. [1999 (8) TMI 1013 - SUPREME COURT] it was held that Section 62(5) of the Act is constitutionally valid and right to vote is not a fundamental right but it is a statutory right and it can be made limited by the statute.
Petition dismissed.
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2020 (2) TMI 1639
Authority available to the Facilitation Council under the Micro, Small and Medium Enterprises Development Act, 2006 to make a reference to arbitration in terms of Section 18 thereof - small enterprise within the meaning of Section 2 (m) of the Act of 2006 - payment to the third respondent herein in connection with an agreement to set up a demineralised water plant at Raghunathpur - Invocation of jurisdiction of the Micro and Small Enterprises Facilitation Council, the first respondent herein, to recover the dues from the appellant.
HELD THAT:- In the present case, the original agreement between the appellant and the third respondent contained an arbitration clause. It is asserted on behalf of the appellant that once there is an arbitration agreement between two parties, irrespective of whether the other party is a small or micro enterprise, there is no room for the legal fiction envisaged in Section 18(3) of the Act of 2006 to operate. It is the further submission of the appellant that a legal fiction operates when such a position as is sought to brought about by the legal fiction does not actually exist; when the parties themselves have an arbitration agreement, the legal fiction can have no manner of operation.
The essence of the Act of 2006 is captured in Chapter V thereof which is intituled as "Direct payments to Micro and Small Enterprises". Section 15 is the first provision under Chapter V of the Act. Section 15 obliges a buyer who has agreed to obtain goods or services from a supplier as defined in Section 2(n) of the Act to make the payment therefor before the date agreed in writing by the parties to the transaction or, when there is no such agreement, before the appointed day - when an arbitral reference is taken up by the Council or a reference made for arbitration to some other body under Section 18(3) of the Act of 2006, the legal fiction springs to life: that is to say, the parties to the dispute are immediately deemed to have executed an agreement in terms of Section 7(1) of the Act of 1996 to refer such disputes to arbitration in accordance with the reference made by the Council.
It is the elementary that when the law requires something to be done in a particular manner, it must be done in such manner and in no other manner. Section 18(3) of the Act of 2006 commands that the arbitral reference may be taken up by the Council or the disputes may be referred to arbitration by any institution or centre involved in alternate dispute resolution - the reference made by the Council under Section 18(3) of the Act of 2006 in this case has to be the mode of adjudication of the disputes between the appellant and the third respondent pertaining to the third respondent's claim for recovery of the amount due in respect of the Raghunathpur contract.
The appeal is found to be completely devoid of merit - Appeal dismissed.
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2020 (2) TMI 1637
Dishonor of Cheque - time limitation for deposit of the amount - Is it legal and proper to order that deposit of amount under Section 148(1) of the Negotiable Instruments Act, 1881 shall be made within a period of less than sixty days? - HELD THAT:- Section 148(1) of the Act empowers the court, in which the accused has filed an appeal against conviction under Section 138 of the Act, to direct him to deposit such sum which shall be a minimum of 20% of the amount of the fine or compensation awarded by the trial court. Section 148(2) of the Act provides that, the amount referred to in sub-section (1) shall be deposited within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the court on sufficient cause being shown by the appellant - Issuing a direction under Section 148(1) of the Act to deposit a minimum of 20% of the fine amount or compensation amount is mandatory. Such an order can be passed by the appellate court on an application filed by the original complainant or on the application filed by the appellant/accused under Section 389 Cr.P.C to suspend the sentence. Exercise of the power under Section 148(1) of the Act by the appellate court is the rule. Non-exercise of the power under Section 148(1) of the Act can only be under very exceptional circumstances.
The petitioner was liable to deposit the amount only on or before the date 22.02.2020. The period provided under the statute is now over. As per Section 148(2) of the Act, the petitioner is entitled to seek a further period of thirty days for depositing the amount on showing sufficient cause. In the instant case, as per Annexure-III order, the appellate court has already exercised the power under Section 148(2) of the Act to grant extension of time for a further period of thirty days - it is only proper to grant the petitioner a further period of thirty days from 22.02.2020 for complying with the direction contained in Annexure-II order for depositing the amount. There is no sufficient ground for granting a further period of three months to the petitioner for depositing the amount.
The petition is allowed in part. The petitioner is granted a period of thirty days from the date 22.02.2020 for depositing the amount in compliance with Annexure-II order.
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2020 (2) TMI 1634
Dishonor of cheque - insufficiency of funds - failure to repay borrowed amount - Section 138 of the Negotiable Instruments Act - acquittal of accused - it was held by the High Court that All the ingredients of S.138 of the Act stand duly proved in the case at hand, as such, this Court finds no occasion to interfere with the judgments/order of conviction and sentence recorded by learned Courts below, as such, same deserve to be upheld.
HELD THAT:- There are no need to interfere with the impugned order - SLP dismissed
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2020 (2) TMI 1630
Validity of notification dated 04.09.2019 passed by the Respondent-State Government amendingthe Schedule I & II of the Chhattisgarh (Adhosamrachana, Vikas Avam Paryavaran) Upkar Adhiniyam, 2005 - revision of rate of Development Cess and Environment Cess - whether State Government is denuded of its power to enact any such provision or not? - matter has already subjudiced before the Hon'ble Supreme Court so far as the validity of the act itself - HELD THAT:- The Petitioner herein is directed to continue depositing of the Cess amount as per revised rate under protest as they have been doing in the past. The said deposit would be subject to the outcome of the Civil Appeals by the Hon'ble Supreme Court. In the event, if the Writ Petitions/ Civil Appeals are decided in favour of the Petitioner/Company, the said amount shall be refunded or adjusted with the other heads payable to the State Government or as may be directed by the Hon'ble Supreme Court while deciding the Civil Appeal.
Petition disposed off.
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2020 (2) TMI 1618
Appointment in the post of Principal at the Polytechnic colleges - Seeking declaration of Ph.D. being an essential qualification for the post of Principal at the Polytechnic colleges - interpretation of provisions of 2010 AICTE Regulations - whether the 2010 AICTE Regulations, in fact, make it mandatory for candidates vying for the post of Principal to possess a Ph.D. degree? - Conflict of interest - HELD THAT:- A perusal of the qualification table makes it obvious that there can be multiple HODs for different departments (like Engineering, Architecture, Hotel Management, Pharmacy etc). In order to be HOD of any such Department, a prospective candidate needs to have both Master's and Bachelor's degrees in the relevant field. Whereas candidates with a Ph.D. must have had 5 years of experience in the allied field, others without it must have worked for 10 years. Phrased differently, Ph.D. is not mandatory for HOD, and instead results in a 5-year relaxation in requisite work experience. In other words, Ph.D. has been treated equivalent to 5 years teaching experience.
A candidate with Ph.D. degree can become HOD with merely 5 years of work experience, whereas candidates without Ph.D. need to work for 10 years. Although, requirement of experience for becoming Principal is 10 years uniformly, it comes with a stipulation that 3 years must have been spent as HOD or in an equivalent position. Thus, a candidate without Ph.D. would compulsorily need 10 years' experience for HOD and would need to work further 3 years in that capacity, i.e. for minimum of 13 years' experience to become Principal. Those with a Ph.D. on the other hand, can apply for principal-ship within 10 years, as they would have become eligible for HOD with 5 years experience, and could have completed the further 3 years term as HOD in the interregnum. Hence, hypothetically, there is a 5-year eligibility relaxation granted under AICTE Regulations to those with a Ph.D.
Additionally, construction of 2010 AICTE Regulations this way, avoids conflict with the 2014 Chhattisgarh Rules, as extracted above. Even otherwise, given a choice between two interpretations, one which restricts the pool of applicants for public employment and another which enfranchises many, it would be fit the spirit of Article 16 that the expansive interpretation is adopted. Such a recourse would both provide opportunities to a wider meritorious class, will increase competition and concomitantly ensure meritorious selections.
Does the 2016 AICTE Notification retrospectively 'clarify' eligibility conditions for appointment as 'Principal'? - HELD THAT:- The conclusion drawn by the High Court is erroneous for a variety of reasons. At the very outset, no attempt appears to have been made to determine the nature of the 2016 AICTE Notification, as to whether it supplements an obvious omission in the 2010 AICTE Regulations and most importantly its effect on those who have meanwhile acquired vested rights - 'Clarificatory' legislations are an exception to the general Rule of presuming prospective application of laws, unless given retrospective effect either expressly or by necessary implication. In order to attract this exception, mere mention in the title or in any provision that the legislation is 'clarificatory' would not suffice. Instead, it must substantively be proved that the law was in fact 'clarificatory'.
The present case is one where except for the title, nothing contained therein indicates that the 2016 AICTE Notification was clarificatory in nature. The said Notification is framed in a question-answer style and merely restates what has already been made explicit in the 2010 AICTE Regulations. There seems to be no intent to alter the position of law but instead only to simplify what the AICTE had resolved through its original Regulation. The 2016 AICTE Notification is a response to the doubts put forth to AICTE by the public - Even if the 2016 AICTE Notification was clarificatory, it must be demonstrated that there was an ambiguity in the criteria for appointment to the posts of Principal, which needed to be remedied. Clarificatory notifications are distinct from amendatory notifications, and the former ought not to be a surreptitious tool of achieving the ends of the latter. If there exists no ambiguity, there arises no question of making use of a clarificatory notification. Hence, in the absence of any omission in the 2010 AICTE Regulations, the 2016 AICTE Notification despite being generally clarificatory must be held to have reiterated the existing position of law.
Thus, there were no two interpretations possible, and hence Issue Nos. 48 and 64 of 2016 AICTE Notification have, in no uncertain terms, reprised the substance of 2010 AICTE Regulations.
Whether retrospective changes in qualificatory requirements can affect the existing appointments? - HELD THAT:- There is no quarrel that the Appellants herein do not possess Ph.D. However, they satisfied the requirement of having fifteen years' experience (of which at least three years was as HOD) under the 2014 Chhattisgarh Rules and were found suitable for promotion by the Departmental Promotion Committee on the basis of various other material. They have also been found in possession of one of the eligibility criteria prescribed under the 2010 AICTE Regulations - the Appellants' appointments ought to remain undisturbed in any eventuality.
Conflict of interest - HELD THAT:- It is not in dispute that the State Government had inducted Appellant No. 1 in a Committee which submitted the draft service rules. It is, however, difficult to accept (nor has it been alleged) that the said Appellant held a position through which he could influence the rule-making authority to exercise its powers under Proviso to Article 309 of the Constitution as per his wishes. He was holding too small a position that no inference of his dominance in the decision making process can be drawn.
The judgment of the High Court is set aside and the writ petition filed by Respondent No. 1 challenging the promotion of Appellants is dismissed - Appeal allowed - decided in favor of appellant.
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