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2008 (4) TMI 796
Issues Involved:
1. Interpretation of G.O.(P) No.88/2000/TD dated 2.6.2000 regarding waiver of interest.
2. Adjustment of the amount collected by the department towards the respondent's liability.
3. Compliance with conditions precedent for availing benefits under Rule 25A.
4. Validity of the Revenue Recovery Notice dated 4.4.2002.
5. Jurisdictional error in the High Court's judgment.
Summary:
Issue 1: Interpretation of G.O.(P) No.88/2000/TD dated 2.6.2000 regarding waiver of interest:
The Supreme Court examined the interpretation of the Government Order (G.O.) dated 2.6.2000, which provided for a waiver of up to 75% interest on defaulted revenue under the Kerala Abkari Shops (Disposal in Auction) Rules, 1974. The Court noted that Rule 25A, introduced by the notification, contained a non-obstante clause providing a legal entitlement to licensees, subject to two conditions precedent: payment of taxes and duties with reduced interest by 31.8.2000, and submission of an application by 15.7.2000.
Issue 2: Adjustment of the amount collected by the department towards the respondent's liability:
The respondent's license was canceled on 13.8.1993, and the department managed the shop, collecting Rs. 31,49,288/- during the period 31.8.1993 to 31.3.1994. The respondent sought credit for this amount towards their liability, which was initially denied. The High Court directed that the amount collected be adjusted towards the respondent's liability, and the Supreme Court upheld this adjustment, stating that the amount should have been adjusted as on 1.4.1994.
Issue 3: Compliance with conditions precedent for availing benefits under Rule 25A:
The respondent's representation for waiver of interest was rejected as it was filed after the stipulated date. However, the Supreme Court observed that the respondent could not comply with the conditions due to the pendency of the writ petition, which was decided on 11.8.2000. The Court held that substantial compliance with procedural provisions should suffice, and the High Court did not commit any jurisdictional error in granting the benefit of the notification.
Issue 4: Validity of the Revenue Recovery Notice dated 4.4.2002:
The Revenue Recovery Notice demanded Rs. 83,26,344/- with future interest at 18% per annum. The respondent challenged this notice, and the High Court directed the Commissioner to grant amnesty benefits with specific terms. The Supreme Court upheld the High Court's directions, emphasizing that the demand should be based on the adjusted amount, not the entire amount initially claimed.
Issue 5: Jurisdictional error in the High Court's judgment:
The Supreme Court found no jurisdictional error in the High Court's judgment. The Court reiterated the principle "Lex non cogit ad impossibillia," meaning that no one can be compelled to perform an impossible act. The procedural requirements were deemed directory, and the respondent's inability to comply due to pending litigation was considered valid.
Conclusion:
The Supreme Court dismissed the appeal, affirming the High Court's judgment and directing the appellants to adjust the collected amount and recalculate the liability. The appeal was dismissed with costs quantified at Rs. 10,000/-.
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2008 (4) TMI 795
The Supreme Court of India disposed of the appeal in terms of the signed order. The High Court of Kerala had made a reference in OT No.6/2006 dated 27/11/2006. Justices S.H. Kapadia and B. Sudershan Reddy were presiding. Counsel for the Petitioner included Mr. Joseph Vellapalli, Mr. S. Ganesh, and others. Counsel for the Respondent included Mr. T.L.V. Iyer and Mr. P.V. Dinesh. Leave was granted for the appeal.
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2008 (4) TMI 794
The Supreme Court admitted the appeal and tagged it with C.A. No. 5239/2006. Stay granted on the operation of the final order of the Customs, Excise and Service Tax Appellate Tribunal.
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2008 (4) TMI 793
Issues involved: Appeal against Company Law Board order u/s 397 and 398 of Companies Act, 1956 regarding constitution of respondent company.
Details of the judgment:
The appellant filed an appeal u/s 10 F of the Companies Act, 1956 against an order passed by the Company Law Board in CP no.114/2007 u/s 397 and 398 of the Companies Act, 1956. The dispute primarily revolved around the constitution of the respondent company, where the appellant owned land in Kasoli, and family members were involved in the company's affairs. An agreement was made for the development of the land for real estate purposes. Respondent no.3, Mrs. Sonia Khosla, feeling herself in the minority, filed a petition alleging oppression by majority shareholders. The parties agreed to withdraw the petition before the Company Law Board in favor of arbitration proceedings involving a panel of three Arbitrators. They also agreed to maintain status quo regarding shareholdings and fixed assets of the company until the arbitration is resolved. The functioning of the company was to be subject to orders from the arbitral tribunal. The appeal was not pressed further, and it was disposed of accordingly.
This judgment highlights the importance of arbitration in resolving disputes related to company matters and the significance of maintaining status quo during arbitration proceedings to ensure fairness and stability in company affairs.
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2008 (4) TMI 792
The Calcutta High Court dismissed the appeal as the impugned goods were not liable to excise duty as identifiable or marketable parts of wagons. The Tribunal's decision was upheld, and no substantial question of law was found. Application G.A. No. 233 of 2008 was also dismissed.
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2008 (4) TMI 791
Issues Involved:
1. Whether a creditor requesting assistance u/s 14(1) of the NPA Act is required to be armed with a decree for recovery of dues from the borrower from a competent court or DRT.
2. Whether the Chief Judicial Magistrate (CJM) has jurisdiction to assist a secured creditor in taking possession of secured assets u/s 14(1) of the NPA Act.
Summary:
Issue 1: Requirement of Decree for Assistance u/s 14(1) of the NPA Act
The petitioner-bank approached the court feeling aggrieved by the orders of the CJM, Aurangabad, which rejected their applications u/s 14 of the NPA Act. The CJM's rejection was based on the observation that the petitioner-bank did not have a decree from a competent court or DRT. The court examined the judgment in Trade Well v. Indian Bank, which was misinterpreted by the CJM. The court clarified that the NPA Act is a special legislation enabling creditors to recover dues without obtaining a decree from a competent court or DRT. The court emphasized that the secured creditor is not required to obtain a decree before taking steps for enforcement of recovery as permitted by the NPA Act.
Issue 2: Jurisdiction of CJM to Assist u/s 14(1) of the NPA Act
The court noted that Section 14 of the NPA Act refers to the Chief Metropolitan Magistrate (CMM) or District Magistrate (DM) and conspicuously omits any reference to the CJM. The court concluded that in non-metropolitan areas, the secured creditor must approach the DM for assistance under Section 14(1), as the CJM does not have the jurisdiction to entertain such requests. The court upheld the CJM's order rejecting assistance to the petitioner, not on the grounds of the absence of a decree, but because the CJM lacks the jurisdiction to provide such assistance.
Conclusion:
The court disposed of the writ petitions by confirming the CJM's refusal of assistance under Section 14(1) of the NPA Act, clarifying that the petitioner can approach the DM for assistance. The refusal by the CJM will not impede the DM from providing assistance upon fulfillment of the requirements under Sections 13(2) and 13(3-A) of the NPA Act. The writ petitions were disposed of, and the rule was made absolute in these terms.
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2008 (4) TMI 790
Issues involved: Application for dispensation of shareholders' meeting u/s 891(4) of the Companies Act, 1956 for approval of Scheme of Amalgamation.
Summary:
The company, incorporated in 1993, engaged in electronic and communication devices, sought dispensation of shareholders' meeting for approving a Scheme of Amalgamation with Nokia Siemens Networks Private Limited. The Board of Directors approved the scheme, beneficial for both companies. With consent from 100% shareholders, two secured creditors, and majority of unsecured creditors, the court dispensed with the meetings. The application was disposed of, with a direction to file the petition within 30 days.
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2008 (4) TMI 789
Dishonor of Cheque u/s 138 of the Negotiable Instruments Act - legally enforceable debt or not - Permission to lead further defence evidence and forward the cheque in dispute to the Hand Writing Expert for opinion - grant of opportunity to the petitioner to adduce evidence by way of rebuttal - rebuttal of presumption raised u/s 118 (a) or 139 of NI Act - discharge of burden to prove - fair trial - HELD THAT:- When a contention has been raised that the complainant has misused the cheque, even in a case where a presumption can be raised under Section 118(a) or 139 of the said Act, an opportunity must be granted to the accused for adducing evidence in rebuttal thereof. As the law places the burden on the accused, he must be given an opportunity to discharge it. An accused has a right to fair trial. He has a right to defend himself as a part of his human as also fundamental right as enshrined under Article 21 of the Constitution of India. The right to defend oneself and for that purpose to adduce evidence is recognized by the Parliament in terms of Sub-section (2) of Section 243 of the CrPC.
It is the accused who knows how to prove his defence. It is true that the court being the master of the proceedings must determine as to whether the application filed by the accused in terms of Sub-section (2) of Section 243 of the Code is bona fide or not or whether thereby he intends to bring on record a relevant material. But ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses etc. If permitted to do so, steps therefor, however, must be taken within a limited time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protracting the trial or summon witnesses whose evidence would not be at all relevant.
The learned Trial Judge as also the High Court rejected the contention of the appellant only having regard to the provisions of Section 20 of the Negotiable Instruments Act. The very fact that by reason thereof, only a prima facie right had been conferred upon the holder of the negotiable instrument and the same being subject to the conditions as noticed hereinbefore, we are of the opinion that the application filed by the appellant was bona fide.
Ms. Suri, however, pointed out that the application of the appellant being one under Section 293 of the CrPC was rightly rejected. It is now a well settled principle of law that non-mentioning or wrong mentioning of provision of law would not be of any relevance, if the Court had the requisite jurisdiction to pass an order.
Therefore, the impugned judgment cannot be sustained. It is set aside accordingly with the aforementioned directions.
Appeal is allowed.
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2008 (4) TMI 788
Issues Involved:
1. Anti-suit injunction.
2. Forum non-conveniens.
3. Jurisdiction clause interpretation.
4. Territorial jurisdiction.
5. Vexatious and oppressive proceedings.
6. Waiver of jurisdiction clause.
Detailed Analysis:
1. Anti-suit Injunction:
The plaintiff sought an anti-suit injunction to restrain the defendants from initiating or continuing proceedings in foreign courts. The plaintiff argued that the proceedings in The Hague and Minnesota were vexatious and oppressive, and the courts there were forum non-conveniens. The defendants contended that the conditions for granting an anti-suit injunction, as outlined in *Modi Entertainment Network v. W.S.G. Cricket Pte Ltd.*, were not met.
2. Forum Non-conveniens:
The court examined the principles of forum non-conveniens, which allows a court to refuse jurisdiction if another more appropriate forum exists. The plaintiff argued that most witnesses were in India, and litigating abroad would incur avoidable expenses. However, the court found that the plaintiff had not demonstrated that the foreign courts were forum non-conveniens or that the proceedings there were oppressive or vexatious.
3. Jurisdiction Clause Interpretation:
The DPLAs contained a jurisdiction clause stating disputes "shall be submitted to the competent courts of the Hague, the Netherlands," with a proviso allowing the defendant No. 1 to choose other courts if it was the plaintiff. The court noted that the clause did not need words like "solely" or "exclusively" to grant exclusivity and that the clause effectively restricted the plaintiff to file suits only in The Hague.
4. Territorial Jurisdiction:
The court concluded it did not have jurisdiction over the matter due to the jurisdiction clause in the DPLAs. The plaintiff's argument that the agreements were executed in Delhi and part of the cause of action arose there was insufficient to override the jurisdiction clause favoring The Hague.
5. Vexatious and Oppressive Proceedings:
The court found no evidence that the proceedings in The Hague and Minnesota were vexatious or oppressive. The plaintiff's presence in 82 countries and a full-fledged office in the Netherlands undermined the argument of inconvenience. The court emphasized that the burden of proving the foreign forum was non-conveniens or the proceedings were oppressive lay with the plaintiff, which it failed to discharge.
6. Waiver of Jurisdiction Clause:
The plaintiff argued that the defendants had waived the jurisdiction clause by submitting to the jurisdiction of the Indian court in a related suit (CS(OS) 2026/2006). However, the court found no waiver in the present suit, as the defendants had objected to the court's jurisdiction from the outset.
Conclusion:
The court dismissed the application for an anti-suit injunction, holding that it lacked territorial jurisdiction due to the jurisdiction clause in the DPLAs. The plaintiff failed to demonstrate that the foreign proceedings were vexatious, oppressive, or that the foreign courts were forum non-conveniens. The defendants' objection to jurisdiction was upheld, and no waiver of the jurisdiction clause was established.
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2008 (4) TMI 787
Issues involved:
Challenge to order of National Consumer Disputes Redressal Commission u/s revisional jurisdiction against District Consumer Disputes Redressal Forum and State Consumer Disputes Redressal Commission; Dismissal of review petition.
Details of the judgment:
The respondent filed a complaint regarding an advertisement by the appellant alleging unfair trade practices related to cigarettes. The District Forum dismissed the complaint due to parallel proceedings in the Civil Court. The State Commission upheld this decision. The National Commission found the advertisement misleading, stating that it detracted from the statutory warning. Directions were given to discontinue the unfair trade practice, issue corrective advertisements, and award compensation to the complainant.
The appellant challenged the directions, arguing that the Consumer Protection Act provisions were not applicable at the time of the advertisement. A Review Petition was filed, contending that the compensation awarded was without a claim in the complaint. The appellant also argued that the direction to issue corrective advertisements was not valid as the relevant law was not in force when the advertisement was published.
The appellant cited Section 14 of the Act, which was amended in 2003 to include issuing corrective advertisements. The National Commission's order was deemed unsustainable as it was based on provisions not applicable at the time of the complaint. The appellant also highlighted the prohibition of cigarette advertisements under the Advertisement Act.
The National Commission's directions were found to lack evidence and were set aside. It was noted that the complainant did not suffer any loss due to the advertisement. The National Commission's decision was criticized for allowing a complaint filed in public interest without proper authorization. Ultimately, the National Commission's orders were deemed indefensible and set aside, with the appeals allowed.
*(End of summary)*
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2008 (4) TMI 786
Issues Involved: Condonation of delay in re-filing the appeal.
Summary:
The application for condonation of delay in re-filing the appeal, which sought to condone a delay of 753 days, was considered by the High Court. The applicant-appellant cited reasons for the delay, mentioning that the appeal was refiled multiple times due to objections raised by the Registry. However, discrepancies were noted in the dates provided by the applicant, leading to doubts about the credibility of the explanation. The Court highlighted the rule specifying the time limit for refiling appeals and emphasized the importance of adhering to the prescribed timelines. The applicant's argument that the delay was caused by the Clerk's fault was not accepted by the Court, which deemed it as negligence on the part of the applicant. The Court emphasized the need for parties to actively follow their cases and not rely solely on legal representatives.
For condonation of delay, the Court considered two key questions: whether there was a sufficient cause for the delay and whether the law of limitation should be strictly enforced. In this case, the Court found the applicant's explanation lacking in detail and credibility, especially considering the misrepresentation of facts regarding the re-filing dates. Citing legal precedents, the Court emphasized that the law of limitation must be applied rigorously and cannot be overlooked based on compassion or equitable considerations.
Ultimately, the Court dismissed the application for condonation of delay in re-filing the appeal, as well as the application for condonation of a 14-day delay in the original filing of the appeal. The judgment highlighted the importance of adhering to legal timelines and the consequences of failing to do so.
Separate Judgement: None.
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2008 (4) TMI 785
Issues Involved:
1. Whether the complaint filed u/s 138 of the Negotiable Instruments Act was time-barred.
2. Whether the trial court had the inherent power to allow amendments to the complaint.
3. Whether the Sessions Judge was correct in allowing the revision petition and permitting the amendment.
Summary:
Issue 1: Time-barred Complaint
The petitioner challenged the order dated 28th March 2006 by the Sessions Judge, Patiala, which allowed the respondent's revision petition. The respondent had filed a complaint u/s 138 of the Negotiable Instruments Act read with Sections 406/420 of the IPC. The cheque in question was dishonored on 14th June 2003, and the complaint was filed on 28th August 2003, making it time-barred. The trial court noted that the complaint was based on the dishonoring of the cheque for the second time, which was not within the limitation period.
Issue 2: Inherent Power to Amend Complaint
On 9th October 2004, the respondent sought to amend the complaint to correct the date of the cheque's presentation and dishonor. The trial court rejected this application, stating that the proposed amendments were not typographical errors but would change the nature of the case. The trial court emphasized that u/s 138 of the Negotiable Instruments Act, giving notice and demanding payment is a main ingredient, and incorrect notice would invalidate the complaint.
Issue 3: Sessions Judge's Decision
The Sessions Judge allowed the revision petition, considering the mistakes as typographical and emphasizing the need for justice over technicalities. The Sessions Judge cited a letter from the bank confirming the correct dates, thus treating the errors as typographical.
High Court's Judgment:
The High Court held that the Code of Criminal Procedure does not provide for inherent powers to subordinate courts except u/s 482 Cr.P.C., which is reserved for the High Court. The High Court cited the Supreme Court's judgment in Major General A.S. Gauraya v. S.N. Thakur, which clarified that subordinate criminal courts do not possess inherent powers. The High Court concluded that the trial court's rejection of the amendment was correct and the Sessions Judge erred in allowing it. The petition was allowed, setting aside the Sessions Judge's order and restoring the trial court's decision.
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2008 (4) TMI 784
Issues involved: Suit for eviction decree based on violation of Clauses (m), (o), and (p) of Section 108 of the Transfer of Property Act and reasonable requirement.
Reasonable Requirement Issue:
The plaintiff sought eviction of the tenant-defendant based on reasonable requirement for himself and his wife, as they were staying as licensees and had strained relations with their son. The Trial Judge found in favor of the plaintiff, but on appeal, it was argued that subsequent events, including the death of the plaintiff and his wife, changed the circumstances. The grandson of the plaintiff, who inherited the property, claimed the requirement for himself. However, the Court held that the grandson could not benefit from the decree based on reasonable requirement as the original claim did not include him, and it would be a new cause of action for the legatee.
Violation of Clauses Issue:
The defendant contested the allegations of encroachment and obstruction under Clauses (m), (o), and (p) of Section 108. The Trial Judge relied on a Commissioner's report indicating a newly constructed wall by the defendant. However, the defendant argued that there was no new construction and that the bath and privy were part of his tenancy. The Court found that the Commissioner's report lacked proper evidence of new construction and that the defendant did not encroach on common areas. Consequently, the Court set aside the eviction decree based on violation of Clauses (m), (o), and (p) of the Transfer of Property Act.
In conclusion, the Court ruled that the grandson of the original plaintiff could not benefit from the decree based on reasonable requirement and that the eviction decree based on violation of Clauses (m), (o), and (p) was not valid. The grandson was advised to file a fresh suit if needed, and the appeal was dismissed with no costs awarded.
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2008 (4) TMI 783
Issues Involved:
1. Legality of the agreement dated 08.03.2006.
2. Annulment and setting aside the further issue and allotment of shares to respondents 5 & 6.
3. Legality of the appointment of the fourth respondent as a director.
4. Amendment of the company petition based on subsequent facts.
5. Increased authorized capital and allotment of shares.
6. Alleged fraudulent conduct and unauthorized actions by the seventh respondent.
7. Constitution of the board of directors.
8. Oppression and mismanagement claims.
Issue-wise Analysis:
1. Legality of the Agreement Dated 08.03.2006:
The petitioners sought to declare the agreement dated 08.03.2006 as illegal and void ab initio. They alleged that the seventh respondent had entered into this agreement to defraud them and circumvent an interim order from the High Court of Kolkata.
2. Annulment and Setting Aside the Further Issue and Allotment of Shares to Respondents 5 & 6:
The petitioners challenged the allotment of 8200 shares on 26.03.2002 and 40,000 shares on 28.10.2002 to respondents 5 & 6, claiming these actions were done without their knowledge and in violation of the company's articles of association and Section 81 of the Companies Act, 1956. They sought to restore the shareholding pattern as of 31.03.2001.
3. Legality of the Appointment of the Fourth Respondent as a Director:
The petitioners contested the appointment of the fourth respondent as a director effective from 06.05.2005, arguing that it was illegal, null, and void.
4. Amendment of the Company Petition Based on Subsequent Facts:
The petitioners filed an application to amend the company petition, citing new facts that came to their knowledge after filing the original petition. They argued that these facts were due to antedating and manipulations of company records by the respondents. The CLB allowed the amendment to avoid multiplicity of litigation and ensure effective adjudication of the issues.
5. Increased Authorized Capital and Allotment of Shares:
The petitioners challenged the increase in authorized capital from Rs. 10 lakhs to Rs. 2 crores and the subsequent allotment of 17,57,000 equity shares to M/s Indoworth (India) Ltd. upon conversion of Zero Coupon Convertible Debentures (ZCDs). They alleged that these actions were taken without their knowledge and were part of a fraudulent scheme to reduce their shareholding.
6. Alleged Fraudulent Conduct and Unauthorized Actions by the Seventh Respondent:
The petitioners accused the seventh respondent of various fraudulent actions, including unauthorized increases in share capital, illegal allotments of shares, and unauthorized agreements for the sale of company property. They sought an investigation into the company's affairs under Section 237(b) of the Companies Act.
7. Constitution of the Board of Directors:
The petitioners objected to the changes in the board of directors, including the appointments of Shri Mahesh Sharma, Shri Piyush Patel, and Shri Rajesh Patel, and the removal of the petitioners and the third respondent from directorship. They claimed these changes were made without proper notice and were part of the seventh respondent's fraudulent scheme.
8. Oppression and Mismanagement Claims:
The petitioners alleged various acts of oppression and mismanagement, including unauthorized increases in share capital, illegal allotments of shares, and changes in the board of directors. They sought reliefs to annul these actions and restore their shareholding and directorship positions.
Conclusion:
The CLB allowed the amendment of the company petition to include subsequent events and developments, such as the increase in authorized capital and the allotment of shares, to ensure effective adjudication of the issues. However, it rejected amendments that would introduce new sets of facts or replace the original pleadings with entirely new allegations. The petitioners were directed to file the amended petition focusing on subsequent events, and the respondents were given the opportunity to file additional replies.
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2008 (4) TMI 782
... ...
... ... ..... vil Appeal is dismissed on the ground of delay of 447 days.
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2008 (4) TMI 781
Issues:
Violation of Section 9(1)(d) of FERA, 1973
Analysis:
The appellant appealed against an Adjudication Order imposing a penalty for contravention of Section 9(1)(d) of FERA, 1973. The appellant argued that the transaction was covered under the Remittance of Foreign Exchange and Investment in Foreign Exchange Bond (Immunities and Exemptions) Act, 1991, granting immunity. The appellant retracted a confessional statement, alleging coercion, and argued lack of independent evidence to support it. The Enforcement Officers found that the appellant received a cheque from a non-resident Indian and paid an amount exceeding the principal, corroborated by circumstantial evidence.
The appellant contended that the retracted statement should not be admissible without proof of coercion. The Tribunal cited legal precedents stating that retracted confessions can be grounds for conviction with sufficient corroboration. The appellant's admission of receiving the cheque for a premium and lack of evidence of acquaintance with the non-resident Indian supported the charges. The Tribunal discussed the legal principles regarding gifts, emphasizing the need for voluntary gifting without consideration.
The Tribunal referred to Supreme Court cases highlighting the importance of circumstantial evidence in proving guilt beyond reasonable doubt. The appellant's failure to explain the transaction details led to adverse presumptions under the Evidence Act. The burden of proof was on the appellant regarding the transaction's nature, as per legal precedents. Section 9(1)(d) of FERA prohibits payments to non-residents without RBI permission, which was found to be violated. The Tribunal reduced the penalty amount due to a single transaction but upheld the appellant's guilt and the penalty imposition.
In conclusion, the Tribunal upheld the penalty imposition for violating Section 9(1)(d) of FERA, citing corroborated evidence and legal principles regarding confessions, gifts, and circumstantial evidence. The appellant's failure to prove innocence or explain the transaction details led to adverse presumptions, resulting in guilt confirmation. The penalty amount was reduced due to a single transaction, but the appellant's liability was established under the relevant legal provisions.
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2008 (4) TMI 780
Issues Involved:
1. Non-supply of relied upon documents.
2. Relevance of referred documents.
3. Right to make an effective representation.
Summary:
Issue 1: Non-supply of relied upon documents
The petitioners, the wife and mother of the detenus, challenged the detention orders made u/s 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The learned senior counsel argued that the detention order is vitiated due to the non-supply of crucial documents such as the diary, Form 13, and an authorization letter, which were relied upon by the detaining authority. The court noted that the failure to supply these documents, despite a specific request, deprived the detenus of their right to make an effective representation, thus vitiating the detention order.
Issue 2: Relevance of referred documents
The Additional Public Prosecutor contended that the documents were merely referred to and not relied upon. However, the court observed that the diary, Form 13, and the authorization letter had relevance for passing the detention order. The court referred to the Full Bench judgment in G.Kalaiselvi v. State of Tamil Nadu, which stated that refusal to supply relevant documents without valid reason could vitiate the detention order. The court concluded that these documents should be considered as relied upon documents.
Issue 3: Right to make an effective representation
The court emphasized that the right to make an effective representation is an integral part of the fundamental right enshrined under Art.22(5) of the Constitution of India. The non-supply of the requested documents deprived the detenus of this right. The court cited the judgment in Pownammal v. State of Tamil Nadu, which held that non-furnishing of relied upon documents vitiates the detention order. The court found that the detaining authority's vague explanation for not supplying the documents was insufficient.
Judgment:
The court quashed the detention orders dated 16.7.2007 made in G.O.SR.I/530-5/07 and G.O.SR.I/530-6/07 Public (SC) Department, allowing H.C.P.No.1208 of 2007 and H.C.P.No.1209 of 2007. The detenus were directed to be set at liberty forthwith, unless required in connection with any other case.
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2008 (4) TMI 779
Fake encounter - charged with serious and heinous offences - Cancellation of bail granted by the High Court - Whether the exercise of jurisdiction by the High Court Under Section 439(2) of the Code justified? - expression ’ban’ on the grant of bail in serious offences - FIR registered with ATS Police Station for the offences punishable under Sections 302, 364, 365, 368, 193, 197, 201, 120B, 420, 342 read with Section 34 of the Indian Penal Code, 1860 (IPC) and under Sections 25 (1)(b)(a) and 27 of the Arms Act, 1950 (Arms Act).
HELD THAT:- As is evident from the rival stands one thing is clear that the parameters for grant of bail and cancellation of bail are different. There is no dispute to this position. Though it was urged by learned counsel for the appellant that the aspects to be dealt with while considering the application for cancellation of bail and on appeal against the grant of bail, it was fairly accepted that there is no scope of filing an appeal against the order of grant of bail. Under the scheme of the Code the application for cancellation of bail can be filed before the Court granting the bail if it is a Court of Sessions, or the High Court.
The High Court also erroneously held that there was a ban in granting bail in heinous crime.
Though the High Court appears to have used the expression ’ban’ on the grant of bail in serious offences, actually it is referable to the decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr.[2004 (3) TMI 763 - SUPREME COURT]. It was also noted that the conditions laid down under Section 437 (1)(i) are sine qua non for granting bail even under Section 439 of the Code.
Even though the re-appreciation of the evidence as done by the Court granting bail is to be avoided the Court dealing with an application for cancellation of bail under Section 439(2) can consider whether irrelevant materials were taken into consideration. That is so because it is not known as to what extent the irrelevant materials weighed with the Court for accepting the prayer for bail.
The perversity as highlighted in Puran’s case [2001 (5) TMI 971 - SUPREME COURT OF INDIA] can also flow from the fact that as noted irrelevant materials have been taken into consideration adding vulnerability to the order granting bail. The irrelevant materials should be of a substantial nature and not of a trivial nature.
In the instant case, the trial Court seems to have been swayed by the fact that Sohrabuddin, husband of Kausarbi had shady reputation and criminal antecedents. That was not certainly a factor which was to be considered while granting bail. It was nature of the acts which ought to have been considered. By way of illustration, it can be said that the accused cannot take a plea while applying for bail that the person whom he killed was hardened criminal. That certainly is not a factor which can be taken into account. Another significant factor which was highlighted by the State before the High Court was that an FIR allegedly was filed to divert attention from the fake encounter. The same was not lodged by the Gujarat Police.
Once it is found that bail was granted on untenable grounds, same can be cancelled. The stand that there was no supervening circumstance has no relevance in such a case.
We have only highlighted the aspects to show that irrelevant materials have been taken into account and/or relevant materials have been kept out of consideration. That being so, the order of granting bail to the appellant was certainly vulnerable. The order of the High Court does not suffer from any infirmity to warrant interference.
The appeal is dismissed. However, it is made clear that whatever observations have been made are only to decide the question of grant of bail and shall not be treated to be expressing any opinion on merits. The case relating to acceptability or otherwise of the evidence is the subject matter for the trial Court.
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2008 (4) TMI 778
The Supreme Court dismissed the appeal in the case with citation 2008 (4) TMI 778 - SC. Judges were Mr. S.H. Kapadia and Mr. B. Sudershan Reddy.
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2008 (4) TMI 777
Issues involved: Invocation of a bank guarantee u/s Notification No. 52/2003-Customs, re-export of goods within stipulated time period, extension of time for re-export, legality of bank guarantee invocation.
Summary:
Invocation of Bank Guarantee: The petitioner, aggrieved by the invocation of a bank guarantee dated 25th January, 2007, had exported mono-chrome monitor tubes for medical and industrial application. The foreign buyer found the tubes unsatisfactory, prompting the petitioner to import them back for repairs or modifications to meet the buyer's requirements.
Requirement of Bank Guarantee: Upon re-importing the goods, the petitioner was informed of the necessity to furnish a bank guarantee. The petitioner agreed to re-export the goods within six months or with an extension granted by the Deputy Commissioner of Customs, New Delhi. The bank guarantee amount was &8377; 34 lakhs, with a deadline of 25th July, 2007.
Legal Obligations: The petitioner contended that as per Notification No. 52/2003-Customs, it was not obligated to provide a bank guarantee. However, the Notification specified the execution of a bond, which the petitioner had submitted. Subsequently, the competent authority required a bank guarantee post-import, to which the petitioner did not object at the time.
Re-export and Extension: The petitioner re-exported 72 tubes within the initial six-month period and the remaining thereafter. Notably, the petitioner did not seek an extension within the stipulated timeframe but requested it after the expiry of the period specified in the bank guarantee.
Bank Guarantee Invocation: The court emphasized the strict and clear law regarding bank guarantee invocation, noting the absence of fraud allegations or deviations from the guarantee terms. As the petitioner failed to extend the re-export period within the allowed timeframe, the court declined to intervene, ultimately dismissing the writ petition.
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