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Indian Laws - Case Laws
Showing 1 to 20 of 76 Records
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2021 (1) TMI 1315
Claim of interim maintenance under Section 23 of the Domestic Violence Act - HELD THAT:- The scope of interference in a revision petition is extremely narrow. It is well settled that Section 397 CrPC gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at length upon the facts and evidence of the case. A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence.
The object of Section 397 CrPC is to settle a patent defect or an error in exercising jurisdiction or if the order is perverse and no court would come to such a conclusion. The orders have been passed in an application for interim maintenance under the Domestic Violence Act. Matrimonial proceedings are still pending between the parties. The findings of the learned Metropolitan Magistrate as upheld by the learned Sessions Court is that the petitioner was not providing adequate maintenance to the respondent and since the adequate maintenance was not being paid, the petitioner was directed to pay a sum of Rs. 1,00,000/- towards maintenance.
The Company which was being run by the petitioner did not release her salary. The respondent had to move the court and fight for getting her legitimate salary. It is not in dispute that Mobisoft Telesolutions Pvt. Ltd. company was being run by the petitioner. After denying the respondent her salary, the petitioner is now trying to take advantage of his own wrong by stating that now since the respondent has got her salary and therefore, the order of maintenance should be modified. Even though the company is distinct from the petitioner but the company is being run by the petitioner and it can be assumed that the salary was not being paid to the respondent only at the instance of the petitioner.
This court does not want to substitute its own conclusion to the one arrived at by the court below. It is open to the petitioner to raise all these contentions in the matrimonial proceedings pending between the husband and wife while deciding the issue of grant of alimony under Section 25 of the Hindu Marriage Act.
Petition dismissed.
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2021 (1) TMI 1312
Suspension for misconduct - misappropriation of bank's money by affording fake credits in his various accounts - HELD THAT:- The power of judicial review in the matters of disciplinary inquiries, exercised by the departmental/appellate authorities discharged by constitutional Courts Under Article 226 or Article 32 or Article 136 of the Constitution of India is circumscribed by limits of correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice and it is not akin to adjudication of the case on merits as an appellate authority.
It is thus settled that the power of judicial review, of the Constitutional Courts, is an evaluation of the decision-making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The Court/Tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the Rules of natural justice or in violation of the statutory Rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority if based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority is perverse or suffers from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.
In the case on hand, the charge-sheet was served upon the Respondent delinquent for misappropriation of public funds by affording fake credits in his various accounts maintained at the branch where he was serving (Mumfordganj Branch) during the relevant period. In all, 7 charges were levelled against him of grave misconduct which he had committed in discharge of his official duty and after affording an opportunity of hearing to the Respondent delinquent and due compliance of the principles of natural justice, the enquiry officer in his report while dealing with the preliminary objections raised by the Respondent delinquent specifically indicated that the details of enquiry report contained 22 pages along with documents produced by the presenting officer marked as PEX-1 to PEX-28 to establish the allegations/charges levelled against the Respondent delinquent who neither produced any document nor witness in his defence.
In the case on hand, the disciplinary/appellate authority was not supposed to pass a judgment however while passing the order dated 24th July, 1999, the disciplinary authority had taken note of the record of enquiry, including self-contained enquiry report dated 22nd May, 1999 and his prima facie opinion dated 29th June, 1999 which was made available to the Respondent employee and after affording reasonable opportunity of hearing and meeting out the written objections raised by the delinquent, expressed its brief reasons in upholding the finding of guilt and penalty of dismissal by its order dated 24th July, 1999 - the finding recorded by the High Court under its impugned judgment setting aside the orders passed by the disciplinary/appellate authority, cannot be accepted, which deserves to be set aside.
The appeals deserve to succeed and are accordingly allowed and the judgment of the High Court impugned dated 13th September, 2018 is hereby set aside.
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2021 (1) TMI 1310
Constitutionality of provisions of the Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act, 1990 - HELD THAT:- The issue is no longer res integra. The Hon'ble Supreme Court in tJINDAL STAINLESS LTD. AND ANR. VERSUS STATE OF HARYANA AND ORS. [2016 (11) TMI 545 - SUPREME COURT] has settled the issue. Therefore, nothing survives fur further consideration in this writ petition.
Petition closed.
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2021 (1) TMI 1308
Failure of the Appellant-M/s. Esjayee Impex Pvt. Ltd. to repay a Loan to Canara Bank and the consequent proceedings initiated by the Bank under the SARFAESI Act, 2002 - handing over possession of Secured Assets to Canara Bank in respect of an immovable property - HELD THAT:- The aspect of possession by the Auction Purchaser was already taken care of by our Order, dated 11.9.2020 recording that possession was handed over to the Auction Purchaser in pursuance to a Letter, dated 6.11.2019 but the backside portion was being used to store goods of the original Owners preventing full enjoyment of the property - It is also noticed that in case the Auction Purchaser was to continue to enjoy the property and the Petitioner(s) defaulted, one week's time would be granted to remove what has been stored in the back portion. Thus, the Bank will ensure that those Goods are removed within one week from today to facilitate unhindered enjoyment of the possession by the Auction Purchaser.
Learned Counsel for the Bank agreed that the Sale Certificate has to be further validated and assured that the needful will be done within two weeks. However, a submission was made that the Sale Certificate was then to be handed over to the Registering Authority for registration and payment of Stamp Duty.
The mandate of law in terms of Section 17(2)(xii) read with Section 89(4) of the Registration Act, 1908 only required the Authorised Officer of the Bank under the SARFAESI Act to hand over the duly validated Sale Certificate to the Auction Purchaser with a copy forwarded to the Registering Authorities to be filed in Book I as per Section 89 of the Registration Act - SLP dismissed.
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2021 (1) TMI 1306
Implementation of Plastic Waste Management Rules, 2016 (PWM Rules), including Extended Producer Responsibility (EPR) in terms of Rule 9(4) of the Rules - HELD THAT:- Regretfully, steps taken by the MoEF for finalizing EPR regime are too slow. We note that the PWM Rules were framed in the year 2016 in place of 2011 Rules. There is no justification for long delay in finalisation of EPR models even after more than four years of the publication of the Rules. The same may now be finalised at the earliest, preferably within three months from today.
The State level authorities also need to take necessary effective steps for enforcement, including coercive measures. EC and penal action regime proposed by the CPCB may be duly implemented by the CPCB, State PCBs/PCCs, State Level Monitoring Committees and all other concerned authorities. District Environment Committees constituted in pursuance of order of this Tribunal in Shailesh Singh vs. Sheela Hospital & Trauma Centre, Shahjahanpur & Ors. may also monitor compliance of PWM Rules and give their respective reports to the State Level Committees.
The CPCB may continue to coordinate with the State Level Monitoring Committees, the State PCBs/PCCs or any other authorities with reference to the steps taken by the State Level Monitoring Committees in coordinating with the concerned Local Bodies, Gram Panchayats, Waste Generators, Producers, Importers, Brand Owners, Recyclers, Manufactures, Retailers and Street Vendors in accordance with the rules. Whenever, necessary CPCB may issue further directions from time to time in the light of experiences gained considering different suggestions and viewpoints, including the suggestions of the Oversight Committee for State of UP.
The application is disposed of.
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2021 (1) TMI 1304
Seeking grant of bail - Principles of parity - as per the FIR, the petitioner Kalyan Singh was allegedly armed with a knife but it is apparent from the injury reports of the injured Om Prakash and Thakara Ram that no injury whatsoever was caused to anyone by a sharp weapon - HELD THAT:- As per Section 439 Cr.PC., the Sessions Court as well as the High Court while considering the bail application/s of arrested accused have concurrent jurisdiction. Needless to say that while considering bail applications of similarly situated accused persons, parity has to be maintained and it should be ensured that unless any distinguishable feature or any special circumstance is in existence, the bail of a subsequently arrested accused on same footing should not be dismissed when other/s with similar allegation/s have been extended indulgence of bail.
In the present case, the learned Additional Sessions Judge No.1, Barmer, while rejecting the bail application of the petitioners by order dated 23.12.2020, referred to his own order dated 05.09.2020 whereby, the bail application of Swaroop Singh was rejected. However, the order dated 07.10.2020 passed by this Court whereby, Swaroop Singh whose case stands on the same footing as the petitioners, was admitted to bail was conveniently omitted. This indicates the gross disregard of this Court’s order by the learned Additional Sessions Judge No.1 Barmer.
The approach of the learned Additional Sessions Judge No.1, Barmer in denying bail to the petitioners even though similarly situated accused has been granted bail in the very same case is deprecated as such an approach not only tantamounts to a total disregard of this Court’s order but also increases this Court’s dockets flooding it with unwarranted bail applications and also prolongs the custody of the accused without any justification. It is henceforth expected from all the Subordinate Courts in the State of Rajasthan that where similarly situated co-accused has been granted bail by this Court and the bail application of other accused comes up for consideration, this Court’s order/s shall not only be referred to while deciding such bail application/s but shall be followed unless exceptional/distinguishable features exist.
It is ordered that the accused-petitioners namely Khet Singh S/o Lal Singh and Kalyan Singh S/o Lal Singh arrested in connection with F.I.R. No.221/2020, Police Station Kotwali, District Barmer shall be released on bail, subject to the compliance with the conditions imposed - bail application allowed.
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2021 (1) TMI 1299
Summon by Additional District Judge under Section 319 Cr.P.C. - concealment of not placing the order on record - HELD THAT:- The principles for exercise of power under Section 319 Cr.P.C. by Criminal Court are well settled. The Constitution Bench of this Court in Hardeep Singh versus State of Punjab and others, [2014 (1) TMI 1819 - SUPREME COURT], has elaborately considered all contours of Section 319 Cr.P.C. This Court has held that Power under Section 319 Cr.P.C. is a discretionary and extra-ordinary power which has to be exercised sparingly. This Court further held that the test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction.
A perusal of the judgment of the High Court indicates that the High Court did not examine the correctness of the order dated 17.08.2019 by which the appellants were summoned by Additional District Judge under Section 319 Cr.P.C., rather has dismissed the Criminal Revision on basis of a subsequent fact i.e. order dated 18.09.2019 by which notice has been issued under Section 446 Cr.P.C. The High Court further took the view that since the proceedings in pursuance of Section 319 Cr.P.C. have already been initiated and that no simultaneous challenge to the impugned order dated 17.08.2019 summoning the revisionists under Section 319 Cr.P.C. would be tenable before the High Court till the order dated 18.09.2019 passed in proceedings at the behest of revisionist subsist.
The order dated 18.09.2019 by which the Court has directed appearance of the accused appellant is to be taken to its logical end but that order cannot provide a shield of protection to earlier order dated 17.08.2019 by which appellant has been summoned.
The impugned judgment of the High Court dated 27.09.2019 is unsustainable and deserves to be set aside - Appeal allowed.
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2021 (1) TMI 1297
Seeking grant of Anticipatory bail - disputes civil in nature - by imposing the condition of deposit of ₹ 41 lakhs, the High Court has, in an application for pre-arrest bail Under Section 438 of the Code of Criminal Procedure, 1973 virtually issued directions in the nature of recovery in a civil suit - HELD THAT:- It is well settled by a plethora of decisions of this Court that criminal proceedings are not for realization of disputed dues. It is open to a Court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration, while considering an application for bail are the nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character behavior and standing of the accused and the circumstances which are peculiar of the accused and larger interest of the public or the State and similar other considerations.
A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial.
The order impugned is modified by deleting the direction to deposit ₹ 41 lakhs as directed by the High Court - appeal disposed off.
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2021 (1) TMI 1292
Seeking grant of bail - offence of cheating and forgery - co-accused were running two investment companies in the name of Veliss Investment Solution and Goodwill Wealth Management Pvt. Ltd. and invited deposits by offering lucrative return of interest at the rate of 20% per month - HELD THAT:- As per the complainant he himself opened the Dmat account in the name of his wife and invested the money in anticipation of getting more returns than offered by the nationalized banks. He is an educated person and after understanding the scheme of the company he himself invested his money in the company, therefore, now he cannot say that he was not aware about the hidden risk and volatility of the money market. The applicant is in custody since 02.10.2020. The investigation is complete and Challan has been filed. All the documentary evidence has been seized by the police. The trial may likely to take time to conclude. The main accused Vinayak Nakaswal is already in custody. The applicant is also having parity with the case of co-accused who have already been enlarged on bail by this court.
The applicant is directed to be released on bail on her furnishing a personal bond in the sum of Rs.1,00,000/- with one solvent surety of the like amount to the satisfaction of the trial Court for her regular appearance before the trial Court during trial with a condition that she shall remain present before the Court concerned during trial and shall also abide by the conditions enumerated under section 437(3) Cr.P.C. - the application is allowed.
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2021 (1) TMI 1288
Seeking early hearing of appeal - HELD THAT:- Having regard to the fact that the matter has been pending before the learned Single Judge, we are of the view that it would be appropriate in the interest of justice, if the learned Single Judge is requested to dispose of the matter expeditiously preferably by the end of February, 2021.
The parties are at liberty to complete the pleadings within a period of two weeks from today - The learned Single Judge is requested to deal with the matter on day to day basis particularly having regard to allegedly large amount which is being taken by one of the parties without any account.
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2021 (1) TMI 1278
Seeking continuing detention of the Appellants to serve out the remaining sentence - Minimum duration of imprisonment - imposition of punishment less than the minimum sentence prescribed by the statute - benefit of probation under Prevention of Corruption Act, 1947 - HELD THAT:- The facts of the present case are that the Appellants have not served out the minimum sentence of 7 years though they have served about half the sentences. They were aged under 19 & 21 years of age as on the date of offence but not on the date of sentence. The redeeming feature in their case is that the person who suffered, appears to have forgiven them, possibly with the passage of time. There is no adverse report against them about their conduct in jail otherwise the same would have been brought to our notice by learned Counsel for the State. Faced with the aforesaid legal position, this is a fit case that the benefit of probation can be extended to the Appellants under the said act in view of the provisions of Section 4 of the said Act on completion of half the sentence.
The Appellants are released on probation of good conduct Under Section 4 of the said Act on their completion of half the sentence and on their entering into a bond with two sureties each to ensure that they maintain peace and good behaviour for the remaining part of their sentence, failing which they can be called upon to serve that part of the sentence.
Appeal disposed off.
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2021 (1) TMI 1273
Seeking extension of interim bail - bail sought on medical grounds - offences under Sections 20/29 of Narcotic Drugs and Psychotropic Substances Act, 1985 - HELD THAT:- As per status report dated 28.01.2021, necessary verification was done from the Head of the Department of Deen Dayal Hospital, New Delhi. Discharge summary sheet dated 25.01.2021 placed on record notes that petitioner was admitted on 13.01.2021 for anti coagulation therapy and optimization and after treatment was discharged on 25.01.2021 in stable condition. In the aforesaid discharge summary sheet, Dr. P.S.Sarang, Specialist and HOD (Surgery) has specifically stated that this treatment is also available in Tihar Jail - In view of aforesaid, the petitioner can continue his treatment within jail premises, if so required and extension of his interim bail on medical grounds is unwarranted.
What is pertinent to mention here is the conduct of petitioner. Despite being on interim bail since 12.06.2021, petitioner moved bail application [Bail. Appln. 3806/2020] before a Coordinate Bench of this Court seeking regular/ interim bail - this Court is informed that another petition of petitioner [Bail Appln.299/2021] seeking regular bail in the same FIR case, has been filed and it is also listed before this Court today.
Application dismissed.
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2021 (1) TMI 1265
Maintainability of petition - availability of an alternative remedy of appeal available under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - scope of 'agricultural land' - coffee plantation is agricultural land within the meaning of Section 31(i) of the SARFAESI Act - applicability of the act to coffee plantation.
Whether the writ petitions were rightly dismissed on the ground of maintainability in view of the availability of an alternative remedy before the DRT under Section 17 of the SARFAESI Act? - HELD THAT:- If the answer to the question, whether coffee plantation/estate is an agricultural land within the meaning of Section 31(c) of the SARFAESI Act, is in the affirmative, then the provisions of the Act would not apply and the action initiated by the respondent/bank would be without jurisdiction. Any action of an authority without jurisdiction goes to the root of the matter and in such a case, a writ petition would lie under Article 226 of the Constitution. In such circumstances, it would not be sound exercise of discretion to relegate the parties to the remedy by way of an appeal. This is particularly so, when a constitutional right, such as Article 300A of the Constitution is involved and the applicability of the SARFAESI Act to coffee estate in the context of whether it is an agricultural land or not would be an important question which has to be decided in the first instance before deciding on the legality of the action otherwise.
The writ petitions filed under Article 226 of the Constitution in the instant case were maintainable. This is particularly so, having regard to the issue raised in these writ petitions as it involves interpretation of law. It also touches upon the applicability of the SARFAESI Act and the jurisdiction on the respondent/bank to take measures under Section 13 of the said Act vis-à-vis the subject lands, which are coffee plantations. Hence, the question is answered in favour of the appellants.
Whether coffee plantation is an agricultural land under Section 31(i) of the SARFAESI Act? - HELD THAT:- Under the Land Reforms Act the definition of 'agriculture' is an inclusive one which also includes the raising of crops, grass or garden produce. The expression "plantation crops" is defined to mean cardamom, coffee, pepper, rubber and tea, etc. This implies that all other crops are non-plantation crops. The word "land" means agricultural land, including garden land, plantation, but does not include house site or land used exclusively for non-agricultural purposes. Under Section 104 of the said Act, certain provisions of the said Act do not apply to plantations - The word 'plantation' is explained under Section 104 to mean land used by a person principally for the cultivation of plantation crops and includes any land used ancillary to the cultivation of such crop or for preparation of the same for the market and agricultural land within the area cultivated with such crop for the protection and efficient management of such cultivation.
Under Karnataka Agricultural Income Tax Act, 1957, 'Agricultural Income' means any revenue derived from land situated within the State and used for growing plantation crops. On an analogy, the expression plantation crops would include coffee. Under the APMC Act also, under Schedule 8, coffee is included as a plantation crop. In all the aforesaid enactments, coffee has been defined to be a plantation crop.
The expression "plantation crops" is defined in Section 2(A)(25) of the Karnataka Land Reforms Act to mean cardamom, coffee, rubber, pepper and tea. Thus, in case of these plantation crops, inter alia, Sections 79-A, 79-B and 80 of the said Act would not apply. Section 79-A states that the acquisition of land by certain persons is prohibited. Section 79-B prohibits the holding of agricultural land by certain persons. Section 80 states that transfer to non-agriculturists is barred. The said Section includes not only sale, gift, exchange, lease of any land or interest therein, but also states that mortgage of any land or interest therein, in which the possession of the mortgaged property is delivered to the mortgagee, shall not be lawful in favour of a person, who is not an agriculturist, or who is disentitled under Section 79-A or Section 79-B to acquire or hold any land, unless the Deputy Commissioner having jurisdiction over the area, permits such sale, gift or exchange, etc. - Section 81 is an exception to Section 79-A, Section 79-B and Section 80. Therefore, there could be a mortgage of any land or interest therein in favour of a bank or a financial institution and also sale of any land or interest therein mortgaged to any financial institution for enforcement of the security for any loan or other facility for agricultural purposes.
The coffee, being a plantation crop within the meaning of Section 2(A)(25) of the Land Reforms Act, is exempted from the provisions of Sections 79-A, 79-B and 80 as per Section 104 of the said Act. Also, under Section 81 of the said Act, the bar under Section 79-A, 79-B and 80 of the said Act would not apply in the case of mortgage of any land or interest therein to any financial institution as security for any loan or other facilities given by such financial institution for agricultural purposes. Hence, any land used for raising a plantation crop, if mortgaged to a financial institution, even if for non-agricultural purposes, could also be sold for enforcement of the said security.
Having regard to Section 104 and Section 81 of the Land Reforms Act, lands on which the plantation crops are grown, being exempt from the restrictions pertaining to agricultural land mentioned in Section 79-A, 79-B and 80, in view of Section 104 and Section 81 of the said Act, would not come within the scope and ambit of the 'agricultural land' under Section 31(i) of the SARFAESI Act - on a contextual interpretation, land on which plantation crops are grown is not agricultural land within the meaning of Section 31(i) of the SARFAESI Act.
It emerges that the land on which plantation crops are raised (coffee in the instant case), if mortgaged or given by way of a security to a financial institution to obtain a credit facility, whether for an agricultural purpose or for a non-agricultural purpose, the said security could be enforced and Section 31(i) of SARFAESI Act does not apply to such land. That means the financial institution can enforce the security created on such lands. We make it clear that this judgment concerns the interpretation of lands on which plantation crops are grown being construed as agricultural lands within Section 31(i) of the SARFAESI Act only as the lands in these cases concern plantation crops. We have not ventured to consider the matter in the context of non-plantation crops.
In the instant case, the securities created in the coffee plantations can be enforced for the realization of the debts as coffee plantation would not come within the scope and ambit of agricultural land under Section 31(i) of the SARFAESI Act insofar as State of Karnataka is concerned.
Thus, it is concluded:-
(i) That in these cases, the writ petitions were maintainable under Article 226 of the Constitution of India;
(ii) That the expression 'agricultural land' in Section 31(i) of the SARFAESI Act, does not include land on which plantation crops are grown namely, cardamom, coffee, pepper, rubber and tea as defined in Section 2(A)(25) of the Land Reforms Act. Therefore, the measures initiated by the respondent banks in relation to the coffee estates in these appeals are not hit by Section 31(i) of the SARFAESI Act, as the said Act is applicable to land on which plantation crops are grown, including coffee plantation, in the instant cases.
Appeal disposed off.
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2021 (1) TMI 1263
Maintainability of bail application - bail assailed on the ground that the High Court failed to consider the mandatory requirements of Section 37 of the NDPS Act - appeal has been filed after a delay of 405 days - HELD THAT:- We have been repeatedly deprecating the practice of authorities coming before this Court after inordinate delays assuming as if the Law of Limitation does not apply to them. Repeatedly, reliance is placed on the judgments of vintage when technology was not easily available. No reference is made to the subsequent judgment in the Office of the OFFICE OF THE CHIEF POST MASTER GENERAL VERSUS LIVING MEDIA INDIA LTD. [2012 (4) TMI 341 - SUPREME COURT] which has dealt with the issue that consideration of the ability of the Government to file appeal in time would have to be dealt with in the context of the technology now available and merely shuffling files from one table to the other would no more be a sufficient reason.
The irony is that despite our repeated orders, very little is done at least in taking action against concerned officers who sit on files and do nothing. The presumption is as if this Court will condone the delay for the asking. We refuse to follow such a course - it is considered appropriate to follow the same course of action in the present case and impose costs of Rs.25,000/- on the petitioner to be recovered from the officers concerned. The cost be deposited in Supreme Court Advocates on Record Welfare Fund within four weeks along with the certificate of recovery from the officers concerned.
The special leave petition is dismissed on the ground of delay.
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2021 (1) TMI 1262
Misbehaviour with the victim - framing of charges for offence under section 354 IPC and Section 7 of the POSCO Act - accused has denied the charges and claimed to be tried - HELD THAT:- Admittedly on the side of the prosecution, totally 10 witnesses were examined out of which, P.W.1 is the victim. She has clearly deposed that she is working in the private textile mill; on 26.10.2014 since it was Sunday she did not go to the mill, she went along with her father for grazing cattles. At about 4 p.m., father told the victim to go to the house with the cow. While going to home along with the cow, the appellant intercepted and misbehaved with her. Immediately she raised her voice. After hearing the voice of his daughter, P.W.2 father rushed there. Subsequently, the appellant left from the scene of occurrence. The same was immediately informed to the father and father also informed to his wife i.e., mother of P.W.1. It is the usual practice in the villages, if anything happened to a girl child, parents may not immediately go to the police station for their grievances because they would think about the future of the child.
It is settled proposition of law that lapse on the part of the prosecution should not lead unmerited acquittal, subjected to rider that in such a situation, evidence on record should be clinching so that lapses of prosecution can be condoned. In a case like this, the Court has to consider the suffering of the victim and testify the veracity of evidence of the prosecution witnesses. The aspect regarding whether the complainant has given the complaint immediately, registered the FIR immediately, and whether the Police sent the FIR to the Court immediately or not are all beyond the control of the victim, for which defects on the part of the investigating officer, which purely arose due to the lethargic attitude of the investigating officer, for which, the victim would not be made to suffer. This Court cannot take any hypothetical view in this case since there is no serious infirmity in the prosecution case. Mere technicalities should not be allowed to stand in way of administration of Justice.
A reading of the evidence of victim clearly shows that the offence under section 7 of POCSO Act is committed by the appellant. This Court carefully seeing the evidence of the victim girl, which is cogent and trustworthy. Her evidence was corroborated by her father who was examined as P.W.2. If the evidence of sole witness is cogent, incredible and trustworthy conviction is permissible. The evidence of interested witnesses, if found to have creditworthiness, conviction could be based on uncorroborated testimony.
A careful reading of the evidence of the victim girl and her father P.W.2, this Court does not find any reason to discard the same. The prosecution has established its case beyond all reasonable doubt. The trial Court has given the reasons for conviction and therefore, petition under Section 391(1)Cr.P.C., is concerned, those documents were very much available even at the time of trial and examination of the witnesses - As far as the case on hand is concerned, it comes under POSCO Act and the minor girl clearly had stated that she undergone sexual harassment and in such situation, the parents of the minor girl will not boldly come out immediately and lodge complaint but used to think about the future of the girl and also approach the village elders; if they are not able to get any solution, then they will approach the police station. In this case also, they have done the same.
The appellate Court is a fact finding Court, which has to necessarily re-appreciate the entire evidence and give independent finding. Accordingly, this Court also finds that the appellant has committed offence under section 7 which is punishable under Section 8 of POCSO Act 2012 and the trial Court rightly appreciated the evidence and convicted the appellant and sentenced him to undergo three years rigorous imprisonment and to pay fine of Rs.5,000/- in default to undergo six months simple imprisonment. Therefore this Court does not find any merit in the appeal and the Criminal Appeal is dismissed.
Appeal dismissed.
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2021 (1) TMI 1257
Grant of anticipatory bail - petitioner acted as a guarantor to a loan facility obtained by one of the sister concern Society of the Company - Default in repayment of loan - It was held by Delhi High Court that Keeping in view the serious allegations mentioned above against the petitioner, who has played key role in the present case and due to the material documents which are required to be seized from the petitioner, for which custodial interrogation is required, therefore, I am not inclined to grant anticipatory bail to the petitioner.
HELD THAT:- There are no reason to interfere in the matter. The Special Leave Petition is, accordingly, dismissed.
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2021 (1) TMI 1225
Appellant seeking benefit of probation on the ground that the sentence already undergone by him would cast a stigma on his profession and he would be disqualified by the ICAI - moral turpitude - incident qua which the Petitioner was convicted took place in 2001, i.e., much prior to him qualifying and being enrolled as a CA - Section 8(v) of the Chartered Accountants Act, 1949 - HELD THAT:- A conviction for an offence involving ‘moral turpitude’ punishable with imprisonment- is a third and higher class of offence under Section 8(v) of the Act and is stipulated as a separate class of disabilities which bars a person’s name from being entered or borne in/continued in the register of the ICAI. This is a graver offence, in terms of the scheme of the Act, juxtaposed to what is contemplated under the third part of the Second Schedule or the fourth part of the First Schedule to the Act.
Although, from a bare reading of sub-section 8(v), it may appear that the Central Government would have the power to remove the disability even in offences involving ‘moral turpitude’, in the opinion of this Court, in case of an offence or a conviction involving ‘moral turpitude’, such power being vested with the Central Government would be contrary to the spirit of the statute as also contrary to the settled judicial precedents, to the effect that `moral turpitude’ would be a complete disqualification. The use of the expression “entered in” contained in Section 8, also shows that offences committed prior to the person qualifying as a CA are also within the purview of the disabilities mentioned under Section 8 of the Act. The only condition upon which a person convicted can be entered into or can continue on the register of ICAI, would be if the person has been granted a pardon.
The Petitioner’s conviction would be attracted by the disability of ‘moral turpitude’ as contemplated under Section 8(v) of the Act. The ICAI shall award reasonable time for the Petitioner to file a fresh reply to the impugned notices, and for him to be heard by the ICAI in accordance with the principles of natural justice. Upon the said hearing being concluded, ICAI shall proceed in accordance with law.
Directions to ICAI - HELD THAT:- As is evident from the facts of the present case, the Petitioner, despite a criminal case being pending at the time of his enrolment as a Chartered Account and thereafter his conviction, was enrolled and was permitted to practice as a CA. This Court has not been shown any policy or disclosure requirements that are asked for from candidates or CAs either at inception or thereafter. There is a clear need for the ICAI to create a framework wherein there is proper disclosure by candidates who apply to become Chartered Accountants, at the inception itself.
In the case of an FIR or a Criminal Complaint having been filed, there ought to be an obligation upon the applicant to keep the ICAI informed and updated, as to the progress in the said Complaint/Case. ICAI shall accordingly frame a policy and a mechanism, if not already in existence, for disclosure by members both at the inception as also on a periodic basis thereafter, of any criminal cases or convictions so that the spirit and intent of the statute is given effect to and the ICAI is not in the dark about the same until it is notified by some information or complaint
Petition dismissed.
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2021 (1) TMI 1216
Acceptance of offer - acceptance of a conditional offer with a further condition - Breach of contract or not - entitlement to recover the suit amount from the Defendant - applicability of time limitation - whether the acceptance of a conditional offer with a further condition results in a concluded contract, irrespective of whether the offerer accepts the further condition proposed by the acceptor? - interpretation of Indian Contract Act - HELD THAT:- The High Court found that there was no dispute that tenders had been called for and that it was the case of the Respondent Port Trust that the offer of the Appellant had in fact been accepted and purchase order issued on 31st October, 1990 under registered Post that had been acknowledged but refused by the Appellant. The High Court also recorded the contention of the Appellant that in the absence of previous approval from the Board of Trustees of the Respondent-Port Trust, under the proviso to Section 34(1) of the Major Port Trust Act 1963, there could be no enforceable contract. Even though the High Court referred to the submission of the Appellant that the letter of intent was subject to ratification by the Board and the only witness of the Respondent-Port Trust had admitted that no contract had been concluded, the High Court did not deal with the same.
It is a cardinal principle of the law of contract that the offer and acceptance of an offer must be absolute. It can give no room for doubt. The offer and acceptance must be based or founded on three components, that is, certainty, commitment and communication. However, when the acceptor puts in a new condition while accepting the contract already signed by the proposer, the contract is not complete until the proposer accepts that condition as held by this Court in HARIDWAR SINGH VERSUS. BAGUN SUMBRUI AND ORS. [1972 (2) TMI 95 - SUPREME COURT]. An acceptance with a variation is no acceptance. It is, in effect and substance, simply a counter proposal which must be accepted fully by the original proposer, before a contract is made.
In UOI. VERSUS BHIMSEN WALAITI RAM [1969 (9) TMI 109 - SUPREME COURT], a three-Judge Bench of this Court held that acceptance of an offer may be either absolute or conditional. If the acceptance is conditional, offer can be withdrawn at any moment until absolute acceptance has taken place.
The High Court also overlooked Section 7 of the Contract Act. Both the Trial Court and the High Court over-looked the main point that, in the response to the tender floated by the Respondent-Port Trust, the Appellant had submitted its offer conditionally subject to inspection being held at the Depot of the Appellant. This condition was not accepted by the Respondent-Port Trust unconditionally. The Respondent-Port Trust agreed to inspection at the Depot of the Appellant, but imposed a further condition that the goods would be finally inspected at the showroom of the Respondent-Port Trust. This Condition was not accepted by the Appellant. It could not, therefore, be said that there was a concluded contract. There being no concluded contract, there could be no question of any breach on the part of the Appellant or of damages or any risk purchase at the cost of the Appellant. The earnest deposit of the Appellant is liable to be refunded.
Since it is held that the Appellant was neither in breach nor liable to damages, it is not necessary for us to examine the questions of whether the compensation and/or damages claimed by the Respondent Port Trust was reasonable or excessive, whether claim for damages could only be maintained subject to proof of the actual damages suffered, and whether the Respondent Port Trust had taken steps to mitigate losses - the Appellant was entitled to refund of earnest money deposited with the Respondent-Port Trust. The earnest money shall be refunded within four weeks with interest @ 6% per annum from the date of institution of suit No. 450 of 1994 till the date of refund thereof.
Appeal allowed.
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2021 (1) TMI 1214
Dishonor of Cheque - insufficiency of funds - whether the Judgments of courts below suffer from any incorrectness, illegality and impropriety in convicting and sentencing the petitioner for the offence under section 138 of Negotiable Instruments Act? - HELD THAT:- The petitioner admitted the cheque as his cheque and the signature in the cheque as his signature. Admittedly, the cheque had been returned, since there was no funds in the account of the petitioner when the cheque was presented for collection.
The learned counsel for the respondent submitted that nowhere in the reply, the petitioner has stated with regard to the alleged chit transaction and depositing the cheque as a security for chit transaction. Ex.P.7 Account statement shows that the respondent had sufficient means to lend the amount of ₹ 5,00,000/- to the petitioner. Moreover, there is presumption under 139 of the Negotiable Instruments Act that a cheque had been issued towards discharging the legally enforceable debt or liability, unless the contrary is proved. The petitioner did not prove the contrary fact against the fact of issuance of cheque for discharging the debt and return of the cheque for the reason that there was no funds in the account of the petitioner.
With regard to burden of proof, it is said that whereas the prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof to prove a defence on the part of an accused is preponderance of probability. Inference of preponderance of probability can be drawn not only from the materials brought on record by the parties but also by reference to circumstances upon which he relies.
When there is no material to show that the respondent is a regular income tax assessee and he has been regularly filing income tax returns, this Court is of the considered view that on the basis of Ex.P.7 one cannot come to the conclusion that the respondent has sufficient means to lend a sum of ₹ 5,00,000/- to the petitioner, especially when the petitioner said that he had no prior acquaintance with the respondent - It is seen from the evidence of PW-1 that he did not know the petitioner prior to lending a huge sum of ₹ 5,00,000/-. He came to know about the petitioner through one Rajendran. He did not even know the address of the said Rajendran. He did not get any supporting document like a promissory note to evidence the loan transaction. These aspects strengthens the case of the petitioner that the cheque he gave to Sathyan as a security for chit transaction is misused through the respondent. It is true that the petitioner has not happily worded in the reply that the cheque in question was given as security to Sathyan in chit transaction - There is no denial of the fact that Satyan is the close relative of the respondent. The fact that the respondent had not produced any acceptable evidence to show that he has means to lend a sum of ₹ 5,00,000/- to the petitioner, when seen in the backdrop of the case projected by the petitioner that the cheque was given as security in the chit rune by Satyan, probalised the case of the petitioner that the cheque which was given as security in the chit transaction is misused by the respondent.
Both the Trial court and the Appellate court have not considered these vital aspects while proceeding to dispose the case and heavily placed reliance on the presumption under section 139 of the Negotiable Instruments Act, without minding that this provision merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability. However, this presumption does not extend to the existence of a debt also. Existence of a legally enforceable debt is not a matter of presumption under section 139 of Negotiable Instruments Act - this court concludes that the judgments of the court below in convicting and sentencing the petitioner under Section 138 of Negotiable Instruments Act is not in consonance with established fats and position of law and has to be necessarily set aside.
Petition allowed.
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2021 (1) TMI 1210
Seeking termination of the mandate of originally constituted Arbitral Tribunal - Seeking to appoint a new arbitrator - Section 14 read with Sections 11 and 15 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- The Arbitral Tribunal – Stationery Purchase Committee consisted of officers of the respondent-State. Therefore, as per Amendment Act, 2015 – Sub-section (5) of Section 12 read with Seventh Schedule, all of them have become ineligible to become arbitrators and to continue as arbitrators. Section 12 has been amended by Amendment Act, 2015 based on the recommendations of the Law Commission, which specifically dealt with the issue of “neutrality of arbitrators”. To achieve the main purpose for amending the provision, namely, to provide for “neutrality of arbitrators”, sub-section (5) of Section 12 lays down that notwithstanding any prior agreement to the contrary, any person whose relationship with the parties or counsel or the subject matter of the dispute falls under any of the categories specified in the Seventh Schedule, he shall be ineligible to be appointed as an arbitrator. In such an eventuality, i.e., when the arbitration clause is found to be foul with the amended provision, the appointment of the arbitrator would be beyond the pale of the arbitration agreement, empowering the Court to appoint such an arbitrator as may be permissible.
It cannot be disputed that in the present case, the Stationery Purchase Committee -Arbitral Tribunal comprising of officers of the respondent-State are all ineligible to become and/or to continue as arbitrators in view of the mandate of sub-section (5) of Section 12 read with Seventh Schedule. Therefore, by operation of law and by amending Section 12 and bringing on statute sub-section (5) of Section 12 read with Seventh Schedule, the earlier Arbitral Tribunal – Stationery Purchase Committee comprising of Additional Secretary, Department of Revenue as President and (i) Deputy Secretary, Department of Revenue, (ii) Deputy Secretary, General Administration Department, (iii) Deputy Secretary, Department of Finance, (iv) Deputy Secretary/Under Secretary, General Administration Department and (v) Senior Deputy Controller of Head Office, Printing as Members, has lost its mandate and such an Arbitral Tribunal cannot be permitted to continue and therefore a fresh arbitrator has to be appointed as per Arbitration Act, 1996.
This Court also negatived the submission that as the contractor participated in the arbitration proceedings before the arbitrator therefore subsequently, he ought not to have approached the High Court for appointment of a fresh arbitrator under Section 11 of the Arbitration Act, 1996.
Appeal allowed.
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