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Showing 61 to 80 of 1719 Records
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2020 (1) TMI 1663
Validity of order passed against dead person - substitution of the legal representatives of the deceased respondent - HELD THAT:- As the order passed in favour of or against the dead person is nullity. It is not disputed before this Court that the respondent had expired prior to institution of the present appeal and therefore, the question of substitution of the legal representatives of the deceased respondent in the present appeal does not arise. Obviously, the proposed legal representatives has right to contest the application seeking substitution, if any prayed for.
In this view of the matter, it would be appropriate to set aside the order under appeal. The matter is remanded to the ITAT to pass the order afresh after substitution of the person representing the estate of the deceased if any, in accordance with law.
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2020 (1) TMI 1662
Scope and ambit of Inherent Jurisdiction which is exercised by the High Court Under Section 482 Code of Criminal Procedure - partition of suit property.
It is submitted that High Court in exercise of jurisdiction Under Section 482 Code of Criminal Procedure shall not examine the question as to whether the allegations made against the Appellant in the complaint are true or false nor High Court will assess the evidence at this stage.
HELD THAT:- This Court time and again has examined the scope of jurisdiction of the High Court Under Section 482 Code of Criminal Procedure and laid down several principles which govern the exercise of jurisdiction of the High Court Under Section 482 Code of Criminal Procedure. A three-Judge Bench of this Court in STATE OF KARNATAKA VERSUS L. MUNISWAMY [1977 (3) TMI 150 - SUPREME COURT], held that the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed.
A three-Judge Bench in STATE OF KARNATAKA VERSUS M. DEVENDRAPPA AND ORS [2002 (1) TMI 1340 - SUPREME COURT], had the occasion to consider the ambit of Section 482 Code of Criminal Procedure By analysing the scope of Section 482 Code of Criminal Procedure, this Court laid down that authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. It further held that Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice.
In the Criminal Revision filed against the said order of the Session Judge, this Court did not interfere with the rejection of an application Under Section 156(3) Code of Criminal Procedure, however, observed that the complainant has remedy to file appropriate application. The complainant thereafter had filed Complaint No. 1 of 2017. It is true that rejection of an application Under Section 156(3) Code of Criminal Procedure in no manner preclude a complainant to file a complaint Under Section 200 Code of Criminal Procedure - it is clear that dispute regarding property between complainant and father of the Appellant is pending much before the alleged incident dated 19.07.2016. The fact that on the same date of the incident Police visited the spot and has drawn proceeding Under Section 151, 107, 116 Code of Criminal Procedure against both the parties and both the parties were required to maintain peace is a clear pointer to the nature of quarrel between the parties.
From the sequence of the events, it is clear that dispute regarding property between complainant and father of the Appellant is pending much before the alleged incident dated 19.07.2016. The fact that on the same date of the incident Police visited the spot and has drawn proceeding Under Section 151, 107, 116 Code of Criminal Procedure against both the parties and both the parties were required to maintain peace is a clear pointer to the nature of quarrel between the parties. It was more than six weeks thereafter that for the first time an application Under Section 156(3) Code of Criminal Procedure was filed by the complainant against the Accused in the court of Session Judge.
Present is a case where criminal proceedings have been initiated by complainant with an ulterior motive due to private and personal grudge. The High Court although noticed the judgment of this Court in State of Haryana and Ors. v. Bhajan Lal and Ors. in the impugned judgment but did not examine the facts of the case as to whether present is a case which falls in any of the category as enumerated in Bhajan Lal's case. The present case clearly falls in category VII of Bhajan Lal's case and the High Court failed to exercise jurisdiction Under Section 482 Code of Criminal Procedure in quashing the criminal proceeding initiated by the complaint.
Thus, in permitting Criminal proceedings against the Appellant shall be permitting a criminal proceeding which has been maliciously instituted with ulterior motives, permitting such criminal proceeding to go on is nothing but the abuse of the process of the Court which needs to be interfered by this Court - appeal allowed.
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2020 (1) TMI 1661
Recovery of dues - priority of dues - appellant is Secured Operational Creditor or not, being State Tax Officer from the Office of Assistant Commissioner of State Tax in Gujarat - appellant submits that she is not claiming on the basis of first charge but the Security this Section creates - HELD THAT:- This Tribunal has already taken a view with regard to this Section in TOURISM FINANCE CORPORATION OF INDIA LTD., VIRAG ENTERPRISE, STATE TAX OFFICER (1) , REGIONAL PROVIDENT FUND COMMISSIONER-I, AHMEDABAD VERSUS RAINBOW PAPERS LTD., RAMCHANDRA D. CHAUDHARY, RP OF RAINBOW PAPERS LTD., RAMCHANDRA D. CHOUDHARY [2019 (12) TMI 1490 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] has held that Section 48 cannot prevail over Section 53. Therefore, the Appellant - 'State Tax Officer- (1)' do not come within the meaning of 'Secured Creditor' as defined under Section 3(30) read with Section 3(31) of the 'I&B Code'.
Considering the Judgment already passed by this Tribunal and which is of a larger Bench, it appears that the present Appeal cannot be allowed in view of the view taken by this Tribunal in the matter of "Tourism Finance Corporation" - appeal dismissed.
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2020 (1) TMI 1660
Addition u/s. 69A - unexplained jewellery - preponderant improbability brought by the AO - CIT(A) deleted the addition - case of the assessee was selected for scrutiny assessment u/s 143(2) - in course of the search and seizure proceedings conducted on the assessee diamond jewellery of a value of Rs. 2,70,72,255/- was found - HELD THAT:- As finding no infirmity in the view taken by the CIT(A) who in our considered view had rightly concluded that as the assessee by placing on record supporting documentary evidence viz. purchase bills of diamonds, remaking bills for conversion of diamonds into jewellery and payment details in respect of its acquisition, both at the time of post-search proceedings and the assessment proceedings had duly explained the source of acquisition of the diamond jewellery of a value of Rs. 1,23,95,850/-, therefore, the A.O. was in error in treating the same as an unexplained investment of the assessee u/s 69A of the Act, we uphold his order to the said extent.
Claim of the assessee that part of the diamond jewellery found in the course of the search proceedings belonged to his NRI son and daughter-in-law - We find no infirmity in the view taken by the CIT(A). In our considered view, though the assessee had placed on record supporting documentary evidence in the form of 'valuation reports' pertaining to the jewellery owned by NRI son and NRI daughter-in-law which was stated to have been kept by the said respective persons with him for safe custody during their absence from India, the A.O. on the other hand had summarily discarded the said claim of the assessee and had without placing on record any material which could evidence the falsity of the said claim, had drawn adverse inferences. In fact, we find that the A.O. had not even recorded any reasoning for disbelieving the aforesaid claim of the assessee. As such, we are unable to persuade ourselves to subscribe to the aforesaid view taken by the A.O. and uphold the observations of the CIT(A) in context of the issue under consideration.
For balance diamond jewellery CIT(A) in all fairness, in the totality of the facts of the case, adopting a balanced approach had fairly concluded that 50% of the aggregate value of the diamond jewellery of a value of Rs. 49,37,444/- could safely be held to have been acquired by the assessee out of the withdrawals which were made by him from his disclosed sources in the preceding years. Accordingly, we are of the considered view that the sustaining of the addition on a fair estimation by the CIT(A) to the extent of Rs. 24,68,722/- [50% of Rs. 49,37,444/-] cannot be held to be suffering from any infirmity. Accordingly, finding no infirmity in the aforesaid view taken by the CIT(A), we uphold the same.
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2020 (1) TMI 1659
Violation of the binding inter-creditor agreement as also against the decision taken in the meetings of lenders of Patna Highway Projects Ltd. held on 4th April, 2019 and 20th August, 2019 - HELD THAT:- It is stated that the Interim Resolution Professional has issued public announcement but Committee of Creditors has not been yet constituted - Let notice be issued on Respondents by Speed Post. Requisites alongwith process fee be filed by 27th January, 2020. If the Appellant provides email address of the Respondents, let notice be also issued through email.
Post the case for admission (after notice) on 13th February, 2020.
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2020 (1) TMI 1658
Commission and brokerage u/s 37, Sales tax incentive as a capital receipt, Section 80JJAA deduction, Section 43B of the Act, establishment and research is always for the purpose of benefit of the business - HC [2017 (3) TMI 1679 - RAJASTHAN HIGH COURT] decided issues in favour of assessee - HELD THAT:- Petitioner, on instructions issued by the Department of Revenue, Ministry of Finance vide F.No.390/Misc./116/2017-JC dated 22.08.2019, seeks permission to withdraw this special leave petition along with pending applications therein due to low tax effect.
Permission granted, subject to just exceptions. Special leave petition and pending applications are dismissed as withdrawn, leaving question(s) of law open.
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2020 (1) TMI 1657
Violation of principles of natural justice - non-furnishing of copies of the relevant documents despite the direction issued by the High Court - opportunity of hearing not provided - HELD THAT:- If the Review Petition is decided against the petitioners, it will be open to the petitioners to challenge the said decision as well as the impugned judgment by way of Special Leave petition before this Court.
SLP disposed off.
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2020 (1) TMI 1656
Maintainability of petition - availability of alternative remedy - Seeking quashing of FIR - HELD THAT:- Four weeks' time from today is allowed to the petitioners for approaching court concerned and availing the remedy. Till the said period of four weeks, petitioners shall not be arrested in aforesaid case crime.
The petition stands disposed of.
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2020 (1) TMI 1655
Seeking to permanently restraint the import of artificial fruit ripening sachet in any form whatsoever throughout the territory of India - HELD THAT:- It appears that Food Safety and Standards Authority of India has permitted import of Ethepone in powder form, however, as per the petitioner, the effect of this is dangerous to public health.
It appears that to arrive at any conclusion about the effect of Ethepone in powder form, which is being used for artificial ripening of the fruits, depends upon the cogent and convincing evidence produced by the petitioner. Evidence of experts in the field is also required which will be subject to the cross-examination by the other side. In this eventuality, there are no reason to entertain this writ petition.
The respondents are directed to treat this writ petition as a representation and look into the grievances ventilated by the petitioner. If need arises, they can also have further discussion with the experts to revisit the conclusions arrived at by the respondents for the usage of Ethepone in powder form which is allowed to be used for artificial ripening of the fruits.
This writ petition is disposed of.
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2020 (1) TMI 1654
Refund claim - payment of duty on Equalized Freight charges - period between 01.06.1972 and 15.03.1976 - principle of unjust enrichment - HELD THAT:- As regards the liability to duty itself, the petitioner has admittedly remitted the duty in time, under protest, and succeeded in the claim as early as in 1989. Thereafter, it was at the instance of revenue that the matter travelled through the appellate hierarchy on the issue of whether the amendment to Section 11B of the stood attracted to the case of the petitioner or not.
Section 11B was amended with effect from 20.09.1991. Post amendment, the Section provided for the test of unjust enrichment to be satisfied by the assessee. Thus, only where the Officer was of the view that the duty had not been collected from the person claiming refund or the instance of such duty had not been passed on by him could the refund be sanctioned. In Mafatlal [1996 (12) TMI 50 - SUPREME COURT], the provision was held to be constitutionally valid, operating only prospectively.
Thus, the test of unjust enrichment was held to apply only to those applications for refund filed prior to the date of amendment that were yet pending. In the petitioners' case, the applications had been accepted by the CEGAT even prior to the date of amendment to Section 11B.
The order is dated 06.06.1989, prior to amendment to Section 11B of the Act bringing into play the concept of unjust enrichment. With the appeal coming to be allowed, the refund became automatic, as a necessary incident of success in appeal. The subsequent litigation was on the question of whether there was unjust enrichment in the hands of the petitioner - the impugned order applying the provisions of Section 11BB to the facts and circumstances of this case, and granting statutory interest only for the period 26.08.1995 to 23.02.2004 does not take into account the facts and circumstances in proper perspective, either factually or legally.
The entitlement of the petitioner, though termed ‘interest’, would really fall within the realm of ‘compensation’ as it cannot be denied that the petitioner has been deprived of a substantial amount of capital from 1989 onwards till date and till date of payment - the petitioner in this case is clearly entitled to compensation for the loss of capital from the date of success in its appeal before the CEGAT, being 06.06.1989 as well as compensation on the delay on payment of interest as claimed.
The petitioner is entitled to interest at the rate of 9% from 06.06.1989 till 25.08.1995 on the amount of refund and thereafter at the rates specified in Notifications of the Central Board of Excise and Customs in i) Notification No.41/2000-(N.T.), ii) Notification No.24/2001- Central Excise (N.T.) Dt.11/05/2001 (F.No.B-10/1/2001-TRU), iii) Notification No.17/2002- CE(N.T.) Dt.13/05/2002 (F.No.B-10/3/2002-TRU) and iv) Notification No.67/2003- CE (N.T.) Dt. 12/09/2003 (F.No.04/07/2003 CX.I) and interest at the rate of 6% till date of payment, to be paid over to it within a period of six (6) weeks from date of receipt of a copy of this order.
Petition allowed.
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2020 (1) TMI 1653
Revision u/s 263 - consequent proceedings - direction to the AO to make a fresh assessment on the issue of foreign exchange fluctuation loss on O/S ECB, provision of Marked to Market Loss of foreign currency swaps and deduction u/s 10B - HELD THAT:- As rightly contended by assessee, the order passed by the AO u/s 143(3)/263 of the Act has become nullity as a result of the order in HIMADRI CHEMICALS & INDUSTRIES LTD. (NOW KNOWN AS HIMADRI SPECIALITY CHEMICAL LTD) [2018 (9) TMI 528 - ITAT KOLKATA] passed by the Tribunal setting aside the order passed by the Ld. Pr. CIT u/s 263 and consequently the proceedings arising from the said order including the appeal filed by the assessee against the order passed by the AO u/s 143(3)/263 before the Ld. CIT(A) has become infructuous as rightly held by the Ld. CIT(A) in his impugned order.
The assessment order passed by the AO u/s 143(3) thus is restored by the order of the Tribunal and the second order passed u/s 143(3)/263 has become non-est which is liable to be cancelled. We, therefore, find no infirmity in the impugned order of the Ld. CIT(A) treating the appeal filed by the assessee before him against the order passed by the AO u/s 143(3)/263 as infructuous and upholding the same, we dismiss this appeal of the Revenue.
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2020 (1) TMI 1652
TDS u/s 194H - Discount given by the assessee to its distributors on prepaid SIM Cards - principal to principal relationship OR principal to agent - ITAT deleted addition - HELD THAT:- Tribunal followed the decision of Bharati Airtel Ltd. [2014 (12) TMI 642 - KARNATAKA HIGH COURT] and held that the sale of SIM cards/recharge coupons at discounted rate to the distributors was not commission and therefore not liable for deduction of the TDS u/s194H. The Tribunal noted that there was no decision of this Court on this issue on that date.
Also decided in M/s. Reliance Communications Infrastructure Ltd.[2019 (7) TMI 1371 - BOMBAY HIGH COURT] when the transaction was between two persons on principal to principal basis, deduction of tax at source as per section 194H of the Act, would not be made since the payment was not for commission or brokerage - Decided in favour of assessee.
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2020 (1) TMI 1651
Dishonour of Cheque - insufficient funds - time limitation for recovery of alleged debt - HELD THAT:- There is no averment in the entire complaint as regards any kind of acknowledgment of the said debt by the petitioner within the period of three years i.e. the limitation period to recover the debt. Thus, there being no acknowledgement by or on behalf of the accused, it cannot be said that the complaint filed in respect of the said debt was maintainable.
Similar issue was considered by this Court in Manjit Kaur’s case [2009 (11) TMI 1026 - PUNJAB AND HARYANA HIGH COURT]. In the said case, a cheque issued in the year 2003 in respect of the loan advanced in 1999, was held not be legally enforceable. It was held The acknowledgment of the alleged amount in 2003 was not valid acknowledgment under Section 18 of the Limitation Act and consequently, it was not a legally enforceable debt.
On the same analogy, it is held that the cheque issued in 2018 in respect of the loan advanced in the year 2011, cannot be said to be a valid acknowledgment and thus, the complaint filed in respect of the dishonour of the said cheque is not maintainable. As a consequence, the summoning order passed in the said complaint cannot be sustained.
The present petition is allowed.
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2020 (1) TMI 1650
Juvenile Justice - Interpretation of statute - scope of heinous offence - Whether an offence prescribing a maximum sentence of more than 7 years imprisonment but not providing any minimum sentence, or providing a minimum sentence of less than 7 years, can be considered to be a 'heinous offence' within the meaning of Section 2(33) of The Juvenile Justice (Care and Protection of Children) Act, 2015?
HELD THAT:- From the scheme of Section 14, 15 and 19, it is clear that the Legislature felt that before the juvenile is tried as an adult a very detailed study must be done and the procedure laid down has to be followed. Even if a child commits a heinous crime, he is not automatically to be tried as an adult. This also clearly indicates that the meaning of the words 'heinous offence' cannot be expanded by removing the word 'minimum' from the definition - the word 'minimum' cannot be treated as surplusage, yet we are duty bound to decide as to how the children who have committed an offence falling within the 4th category should be dealt with.
The appeal disposed off by answering the question set out in the first part of the judgment in the negative and hold that an offence which does not provide a minimum sentence of 7 years cannot be treated to be an heinous offence. However, the Act does not deal with the 4th category of offences viz., offence where the maximum sentence is more than 7 years imprisonment, but no minimum sentence or minimum sentence of less than 7 years is provided, shall be treated as 'serious offences' within the meaning of the Act and dealt with accordingly till the Parliament takes the call on the matter.
Application disposed off.
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2020 (1) TMI 1649
Estimation of income - bogus purchases - CIT(A) sustained addition @12.5% - HELD THAT:- We find that in this case the sales have not been doubted it is settled law that when sales are not doubted, hundred percent disallowance for bogus purchase cannot be done. The rationale being no sales is possible without actual purchases.
As decided in Nikunj Eximp Enterprises [2014 (7) TMI 559 - BOMBAY HIGH COURT] upheld hundred percent allowances for the purchases said to be bogus when sales are not doubted. However the facts of the present case indicate that assessee has made purchase from the grey market. Making purchases through the grey market gives the assessee savings on account of non-payment of tax and others at the expense of the exchequer. In such situation in our considered opinion on the facts and circumstances of the case the 12.5 % disallowance out of the bogus purchases done by CIT-A meets the end of justice. Accordingly we uphold the order of learned CIT-A. Decided against revenue.
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2020 (1) TMI 1648
Continuance of insurance of Corporate Debtor - CIRP initiated against Corporate Debtor - HELD THAT:- Merely, because the Corporate Insolvency Resolution Process has been initiated against ‘M/s. Kei-Rsos Maritime Limited- (Corporate Debtor) by an Agent or Insurer- Ship Owners Protection Limited, London (who has not moved any appeal) and as during the Corporate Insolvency Resolution Process, the Corporate Debtor is to continue as a going concern, the Adjudicating Authority (National Company Law Tribunal), Amaravati Bench, rightly passed the impugned order dated 27th November, 2019 directed the Insurer to continue with the Insurance. If any amount is payable during the Corporate Insolvency Resolution Process towards the instalment to the Insurer, the Interim Resolution Professional will take care of the same.
Appeal dismissed.
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2020 (1) TMI 1647
Disallowance u/s 14A - expenditure incurred on earning exempt income - HELD THAT:- As disallowance u/s 14A on the basis of the settled position of law cannot exceed the amount of the exempt income, therefore, without prejudice to the fact that the assessee had voluntarily offered the disallowance under the aforesaid statutory provision at a higher amount in its return of income, the consequential relief to the assessee by restricting the disallowance u/s 14A up to the extent of its exempt income cannot be denied. To sum up, we herein direct the A.O to restrict the disallowance u/s 14A upto the extent of the exempt dividend income of the assessee.
Disallowance u/s 14A r.w Rule 8D, for the purpose of computing the "book profit" u/s 115JB - HELD THAT:- This issue is clearly covered by the order of Vireet Investments Pvt. Ltd. [2017 (6) TMI 1124 - ITAT DELHI] as held that the computation under clause (f) of Explanation 1 to Sec.115JB(2) is to be made without resorting to the computation contemplated under Sec.14A r.w. Rule 8D. Accordingly, we are of the considered view that the lower authorities had erred in concluding that the disallowance computed under Sec.14A r.w. Rule 8D was to be added for the purpose of working out the "book profit‟ under Sec.115JB - we restore the issue to the file of the A.O who is directed to rework out the "book profit‟ of the assessee u/s 115JB in terms of our aforesaid observations. The additional "Ground of appeal‟ is allowed in terms of our aforesaid observations.
TP adjustment in respect of corporate guarantee as provided by the assessee as a co-guarantor alongwith its holding company - HELD THAT:- ALP of the corporate guarantee commission in the case of the assessee before us can safely be taken at 0.5%. As the assessee is a co-guarantor, therefore, the TP adjustment as regards its share of guarantee commission would work out at 0.25% [½ of 0.5%].
TP adjustment on account of Ship management income - HELD THAT:- As regards the ship management services provided by the assessee to ESLL, we find, that the same falls within the realm of the definition of the “Incidental activities” as envisaged in sub-section (5) of Sec. 115V-I r.w Rule 11R, which encompasses within its sweep viz. (i). maritime consultancy charges; (ii). income from loading or unloading of cargo; (iii). ship management fees or remuneration received for managed vessels; and (iv). maritime education or recruitment fees.
As the ship management services provided by the assessee to its AE, viz. ESLL forms part of its presumptive income determined as per the provisions of tonnage tax scheme contemplated in Chapter XII-G, therefore, no addition by way of any adjustment to the value of the said transaction could have been carried out by the A.O/TPO by resorting to the transfer pricing provisions contemplated in Chapter X of the Act.
TP adjustment on account of interest on ship acquisition on BBCD basis (hire purchase basis) - HELD THAT:- Now when under the tonnage tax scheme, the actual receipts/revenues earned and expenses incurred are not taken into consideration for the purpose of determining the tonnage income of the eligible company, therefore, the applicability of the transfer pricing provisions as envisaged in Chapter X of the Act would clearly stand excluded. we are of the considered view that the transfer pricing adjustment of the interest expenditure made by the A.O/TPO in respect of the cost of the aforesaid ships viz. “MV Malathi” and “MV Malavika” cannot be sustained. Accordingly, we direct the A.O to vacate the TP adjustment.
Levy of interest u/sss. 234A, 234B and 234C - As the levy of interest is mandatory as per the judgment of Anjum M.H Ghaswala & Ors. [2001 (10) TMI 4 - SUPREME COURT]
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2020 (1) TMI 1646
Condonation of delay of 634 days in filing the application seeking leave to appeal - Section 5 of the Limitation Act - HELD THAT:- Keeping in view the fact that the applicant had been wrongly pursuing the appeal before the learned Sessions Judge, the present application is allowed and the delay of 634 days in filing the application seeking leave to appeal, Is condoned.
Dishonor of Cheque - Legally enforceable debt or not - Preponderance of probabilities - learned Magistrate has taken a reasonable and probable view on appreciation of evidence - HELD THAT:- As per the conclusion drawn by the learned Magistrate, the complainant could not prove on record that the cheques in dispute had been issued by the accused to him in discharge of a legally enforceable debt and the accused had also denied the execution of agreement dated 15.04.2008. The complainant himself admitted that the cheques in question had been given by the accused to him for the sake of safe dealing. It is true that if the cheques are used for a certain contract/agreement and not towards discharge of any debt or any other liability, the offence under Section 138 N.I. Act, is not attracted.
The case attempted to be built by the complainant, appears to be suffering from fatal infirmities so much so that it goes directly to the root of the case and shakes the very edifice on which the case of the complainant rests. It is also relevant to mention here that the criminal conviction entails enigmatic and stigmatic exposures and experiences and, thus, it becomes of paramount importance to demand evidence of unimpeachable character and of unambiguous nature - it would not be unjustified and completely misplaced to say that the complainant has miserably failed to prove if the impugned cheques had been issued against the discharge of any legally enforceable debt or liability. Preponderance of probabilities lies completely in favour of the accused.
There are no ground to grant special leave to file appeal - application dismissed.
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2020 (1) TMI 1645
Dishonor of Cheque - Failure to establish the guilt of the respondent and acquittal of the offence punishable under Section 138 of the Negotiable Instrument Act, 1881 - failure to consider that statutory presumptions that arose in favour of the appellant under Sections 118 and 139 of the Act - HELD THAT:- The learned Judicial Magistrate, First Class had rightly concluded that there was manipulation in the loan application and besides the resolution to sanction the loan was even prior to the application for loan which improbabilised the case of the complainant or rather probabilised the case in defence that there was no such transaction whatsoever. The learned Judicial Magistrate, First Class had therefore, rightly concluded that the respondent had successfully rebutted the presumption under Section 139 of the Act and that the appellant/complainant had failed to prove its case beyond all reasonable doubt.
The complainant had failed to lead any evidence to prove the signature of the respondent on the said document nor had the complainant got the signature examined through a handwriting expert. In the face of all these observations, the learned Judicial Magistrate, First Class therefore, categorically held and rightly so that the respondent was not guilty and acquitted him of the commission of the offence punishable under Section 138 of the Act.
No interference is called for with the judgment under challenge - Appeal dismissed.
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2020 (1) TMI 1644
Grant of validity certificate in favour of the Petitioners, resultantly invalidating the tribe claim of the Petitioners - direction to authorities to take action against the Petitioners including the lodgment of offences against Petitioner No.1 - some interpolation in the record as and by way of an addition of words in the school record - HELD THAT:- The claimant who is desirous of validation of his tribe claim, approaches the competent scrutiny committee as per the procedure laid down in accordance with the law, i.e., relevant Act and Rules. While submitting his claim before the competent scrutiny committee, it is pre-requisite that the claimant must submit the complete and real / genuine information or material to the scrutiny committee. Meaning thereby, the claimant is to submit material supporting his claim and also material adverse, if any, to his claim. Not only this, in the present matter, the Petitioners have gone to the extent of maintaining silence in respect of the existence of the near relative / family member, ie., Devidas, the son of Petitioner No.1 and brother of Petitioner No. 2 in the genealogical tree or family tree.
Apart from non disclosure of fact of invalidation of the claim of cousin sister Jyoti Mupade, the suppression of rejection of tribe claim of Devidas who is nearest relative of both the petitioners is to act adversely against these petitioners - the show cause notices were already issued to the Petitioner calling upon them to submit their say and to remain present before the scrutiny committee and in spite of receipt of notices, the Petitioners failed to appear before the scrutiny committee.
It may not be out of place to refer to the principle oftenly quoted that he who approaches the Court of law, must approach the Court with clean hands. In the present matter, the Petitioners are guilty of suppression of material facts, which were within their knowledge and in stead of approaching the competent scrutiny committee by disclosing the entire material, the Petitioners have placed only material which was supporting to the claims of Petitioners and this act of the Petitioners is certainly not a bonafide act and it can safely be stated that the Petitioners have not approached the scrutiny committee with genuine intention to seek validation of their tribe claims, but with an intention to obtain the certificates by suppressing the material facts.
The petition is devoid of any merit as such deserves to be dismissed - Petition dismissed.
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