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2008 (8) TMI 968
Issues Involved:
1. Whether Mr. R.K. Anand and Mr. I.U. Khan committed criminal contempt of Court.
2. Whether NDTV committed contempt of Court by telecasting the sting operation.
3. The role and conduct of the media in investigative journalism and trial by media.
4. The admissibility and reliability of video recordings as evidence.
5. The legal standards and procedures applicable in criminal contempt proceedings.
6. The appropriate punishment for those found guilty of criminal contempt.
Issue-wise Detailed Analysis:
1. Whether Mr. R.K. Anand and Mr. I.U. Khan committed criminal contempt of Court:
The court found Mr. Anand and Mr. Khan guilty of criminal contempt of Court. Their actions demonstrated a tendency to interfere with the due course of judicial proceedings and the administration of justice. Mr. Anand's familiarity with the prime witness, Mr. Kulkarni, and discussions about money and strategy in the BMW case, along with Mr. Khan's failure to inform the prosecution about Mr. Kulkarni's interactions with the defense, were critical factors. Both were found to have committed acts that had the potential to obstruct justice.
2. Whether NDTV committed contempt of Court by telecasting the sting operation:
The court declined to initiate suo motu contempt proceedings against NDTV. It was noted that Mr. Anand did not move a petition against NDTV for contempt, and the court emphasized that its contempt jurisdiction should be exercised sparingly. The court acknowledged the role of the media in investigative journalism but stressed that the media must act responsibly and avoid trial by media, especially in pending judicial proceedings.
3. The role and conduct of the media in investigative journalism and trial by media:
The court discussed the impact of media on public perception and the administration of justice. It emphasized that the media should report fairly and accurately without bias, especially in active cases. The court noted that while investigative journalism is important, it should not interfere with judicial proceedings or influence public opinion unfairly. The court also highlighted the need for self-regulation within the media industry.
4. The admissibility and reliability of video recordings as evidence:
The court accepted the video recordings as genuine and authentic evidence. The original chips (except one) were available and viewed by the court. The court dismissed the arguments about discrepancies in the video footage, as the original chips were intact and could verify the contents. The court emphasized that the integrity of the original recordings was crucial, and since they were not tampered with, the video evidence was deemed reliable.
5. The legal standards and procedures applicable in criminal contempt proceedings:
The court reiterated that criminal contempt proceedings are quasi-criminal in nature and require proof beyond a reasonable doubt. The alleged contemnors must be informed with sufficient particularity of the allegations against them. The court has the discretion to devise its own procedure for contempt proceedings, but the principles of natural justice must be adhered to. The burden of proof lies on the person asserting contempt.
6. The appropriate punishment for those found guilty of criminal contempt:
The court prohibited Mr. Anand and Mr. Khan from appearing before the High Court and subordinate courts for four months. It also recommended stripping them of their designation as Senior Advocates. Additionally, a fine of Rs. 2,000 was imposed on each. The court emphasized that the higher the position held by the contemnors, the greater the responsibility and expectations, and their conduct warranted stern punishment to maintain the integrity of the judicial system.
Conclusion:
The court found Mr. R.K. Anand and Mr. I.U. Khan guilty of criminal contempt for actions that interfered with the administration of justice in the BMW case. NDTV was not found guilty of contempt, but the court highlighted the need for responsible media conduct. The video recordings were accepted as reliable evidence, and the legal standards for contempt proceedings were reaffirmed. The punishment for the contemnors was deemed appropriate given their senior positions and the gravity of their misconduct.
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2008 (8) TMI 967
Dismissal of suit for perpetual injunction - Powers of High Court u/s 24 Code of Civil Procedure, 1908 - whether the High Court was justified in dismissing the two suits on the sole ground that it was proposing to examine a similar issue in the Writ Petition preferred by the original owner of the land? - HELD THAT:- It is trite that the rule of pleadings postulate that a plaint must contain material facts. When the plaint read as a whole does not disclose material facts giving rise to a cause of action which can be entertained by a civil court, it may be rejected in terms of Order 7, Rule 11 of the Code. Similarly, a plea of bar to jurisdiction of a civil court has to be considered having regard to the contentions raised in the plaint. Church of North India v. Lavajibhai Ratanjibhai and Ors.[2005 (5) TMI 636 - SUPREME COURT].
Having considered the matter in the light legal position, we are of the opinion that the impugned order cannot be sustained. It is true that u/s 24 of the Code, the High Court has jurisdiction to suo motu withdraw a suit or appeal, pending in any court subordinate to it, to its file and adjudicate itself on the issues involved therein and dispose of the same. Unless the High Court decides to transfer the suit or the appeal, as the case may be, to some other court or the same court, it is obliged to try, adjudicate and dispose of the same. It needs little emphasis that the High Court is competent to dispose of the suit on preliminary issues, as contemplated in Order 14 Rule 1 & 2 of the Code, which may include the issues with regard to maintainability of the suit.
If the High Court is convinced that the plaint read as a whole does not disclose any cause of action, it may reject the plaint in terms of Order 7 Rule 11 of the Code. As a matter of fact, as observed by V.R. Krishna Iyer, J., in T. Arivandandam [1977 (10) TMI 116 - SUPREME COURT], if on a meaningful - not formal - reading of the plaint, it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, the court should exercise its power - under the said provision. And if clever drafting has created an illusion of a cause of action, it should be nipped in the bud at the first hearing by examining the party searchingly under Order X CPC. Nonetheless, the fact remains that the suit has to be disposed of either by the High Court or by the courts subordinate to it in a meaningful manner as per the procedure prescribed in the Code and not on one's own whims.
We have no hesitation in holding that the procedure adopted by the High Court is unknown to law. We are conscious of the fact that the object of filing of the suits could be a dubious and indirect attempt on the part of Tek Chand, respondent No. 4, to derive some undue advantage in connivance with the plaintiffs, yet that was no ground to dismiss the suits summarily. It must be kept in mind that one of the fundamental norms of judicial process is that arguable questions either legal or factual, should not be summarily dismissed without recording a reasoned order.
A mere entertainment of the Writ Petition, to which the appellants herein were not parties, even if it involved determination of similar issues, in our opinion, was not a good ground to dismiss the two suits without granting opportunity to the parties to prove their respective stands. Moreover, the scope of the Writ Petition and the two suits also seems to be different.
Therefore, the appeal is allowed; the impugned order, is set aside and the two suits and the appeal, dismissed in terms of the said order, are restored to the file of the High Court for fresh adjudication and disposal in accordance with law.
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2008 (8) TMI 966
Applications seeking to quash the criminal proceedings after the compromised between the parties - Financial Fraud with Bank - Bank filed a suit for recovery of the amount payable - Cheating and use of forged documents - learned ASG was urged that even if no steps have been taken by the CBI since the chargesheet was filed in 1998, the same would not be a ground for quashing the criminal proceedings once the chargesheet had been filed.
HELD THAT:- The basic intention of the accused in this case appears to have been to misrepresent the financial status of the company, M/s Neemuch Emballage Limited, Mumbai, in order to avail of credit facilities to an extent to which the company was not entitled. In other words, the main intention of the company and its officers was to cheat the Bank and induce it to part with additional amounts of credit to which the company was not otherwise entitled.
Despite the ingredients and the factual content of an offence of cheating punishable u/s 420 IPC, the same has been made compoundable under Sub-section (2) of Section 320 Cr.P.C. with the leave of the Court. Of course, forgery has not been included as one of the compoundable offences, but it is in such cases that the principle enunciated in B.S. Joshi's case [2003 (3) TMI 721 - SUPREME COURT] becomes relevant.
In the instant case, the disputes between the Company and the Bank have been set at rest on the basis of the compromise arrived at by them whereunder the dues of the Bank have been cleared and the Bank does not appear to have any further claim against the Company. What, however, remains is the fact that certain documents were alleged to have been created by the appellant herein in order to avail of credit facilities beyond the limit to which the Company was entitled.
keeping in mind the decision of this Court in B.S. Joshi's case and the compromise arrived at between the Company and the Bank as also Clause 11 of the consent terms filed in the suit filed by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise.
We, therefore, set aside the order passed by the High Court dismissing the petitioner's revision application in Special Case and quash the proceedings against the appellant. The appeal is accordingly allowed.
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2008 (8) TMI 965
Issues involved:
The judgment involves issues related to seeking winding up of a company under Sections 433(e) and (f), 434(1)(a) and 439(1)(b) of the Companies Act, 1956 based on a decree obtained in Israel.
Summary:
The petitioner filed a company petition seeking winding up of the respondent-company based on a decree obtained in Israel due to defective supply of fabrics leading to loss of profit. The respondent failed to replace the defective fabrics, resulting in cancellation of contracts with overseas buyers. The Israel court passed a decree in favor of the petitioner, holding the respondent liable to pay a specified amount. The petitioner claimed interest on the unpaid amount, leading to the present petition before the High Court.
The petitioner argued that the foreign court's decision is binding on the respondent, and the respondent cannot rely on Indian law to counter the claim. The respondent contended that Israel is not a reciprocal State, and the foreign decree does not constitute a debt enforceable under Indian law. The respondent also questioned the maintainability of the company petition based on the absence of a contract between the parties regarding the petitioner's foreign buyers.
The Court considered the arguments of both parties and held that the petitioner failed to establish the respondent's inability to pay the alleged debt. The Court emphasized the importance of good faith defense and the relevance of the company's financial status in deciding on winding up petitions. Ultimately, the Court rejected the company petition, stating that the dispute regarding the enforceability of the debt does not justify ordering winding up of the respondent-company.
Therefore, the company petition seeking winding up of the respondent-company based on the Israel court's decree was dismissed by the High Court, with no costs awarded.
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2008 (8) TMI 964
Issues Involved:
1. Alleged acts of oppression and mismanagement in CEPL.
2. Validity of Board meetings and resolutions.
3. Breach of Joint Venture Agreement (JVA).
4. Financial irregularities and misappropriation of funds.
5. Investment in DAIL.
6. Contracts between CPL, VML, and CCL.
7. Maintenance of statutory records and compliance.
8. Equitable remedy and exit strategy for the parties.
Detailed Analysis:
Alleged Acts of Oppression and Mismanagement in CEPL:
The petitions filed by CG Holdings and ORE under Sections 397, 398, 402, and 403 of the Companies Act, 1956, allege acts of oppression and mismanagement in CEPL. CG Holdings claims oppression by the respondents, while ORE accuses KCP of mismanagement. The grievances include unauthorized transactions, breach of JVA, and improper conduct of Board meetings.
Validity of Board Meetings and Resolutions:
The validity of the Board meetings held on 21/22.09.2005 and subsequent resolutions were challenged. The Board minutes indicated that KCP left the meeting, allowing the remaining directors to pass resolutions. The court found that the meetings were validly held and resolutions passed were binding, as they conformed to the JVA and articles of association of CEPL.
Breach of Joint Venture Agreement (JVA):
The JVA dated 30.01.2004 was central to the disputes. Both parties accused each other of breaching the JVA. KCP claimed that ORE failed to secure a syndicated credit facility, while ORE accused KCP of unauthorized transactions and mismanagement. The court noted that the JVA's terms were not fulfilled by either party, leading to defaults.
Financial Irregularities and Misappropriation of Funds:
KCP was accused of misappropriating funds, including the unauthorized transfer of Rs. 25.57 crores and Rs. 6.86 crores from CEPL's fixed deposits to pay personal tax liabilities. The court found these actions burdensome, harsh, and wrongful, and directed KCP to restore the funds to CEPL.
Investment in DAIL:
The investment of Rs. 35 crores by CEPL in DAIL was controversial. The court found that the investment was made without proper Board approval and was influenced by collective decisions involving KCP, R. Athappan, Chandran, and others. The court held that ORE and others could not plead ignorance of the DAIL transaction.
Contracts between CPL, VML, and CCL:
The contracts between CPL, VML, and CCL were challenged as oppressive and prejudicial. The court found that these contracts were entered into without proper Board approval and were contrary to the JVA and articles of association. The agreements were found to be prejudicial to the interests of CEPL, CPL, and VML, and oppressive to ORE.
Maintenance of Statutory Records and Compliance:
KCP was found to have failed in maintaining statutory records and ensuring compliance with the Companies Act. The court noted the lack of proper documentation and discrepancies in Board minutes, holding KCP accountable for these failures.
Equitable Remedy and Exit Strategy for the Parties:
Given the strained relationship and lack of mutual trust, the court concluded that the most equitable remedy was to facilitate the exit of ORE and Athappan from CEPL. The court directed CEPL to return the investments made by ORE and Athappan with interest or convey immovable properties of VML to them in case of non-payment. This would bring an end to the disputes and ensure the smooth functioning of CEPL.
Conclusion:
The court disposed of both company petitions by directing the repayment of investments to ORE and Athappan or the conveyance of properties in case of non-payment. The court also emphasized the need for statutory compliance and proper management of CEPL's affairs. The interim orders were modified accordingly, and no costs were awarded.
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2008 (8) TMI 963
Issues Involved:
1. Whether the Trade Tax Tribunal overlooked relevant Notifications and material evidence.
2. Whether the Tribunal correctly classified the product based on its Brand Name.
3. Justification of remanding the matter back to the Assessing Authority.
4. Correctness of the Tribunal's findings.
5. Tribunal's oversight of the Deputy Commissioner's findings.
6. Legality of the Tribunal's decision to remand the matter considering the age of the case.
7. Overall sustainability of the Tribunal's order.
Summary:
Issue 1: Overlooking Relevant Notifications and Evidence
The applicant contended that the Trade Tax Tribunal overlooked relevant Notifications and various decisions and material evidence placed by the applicant-Company in deciding the issue involved in the present case.
Issue 2: Classification Based on Brand Name
The Tribunal recorded that the product manufactured and sold by the applicant-Company is Coconut Oil, which is covered under various notifications. However, it concluded that the goods manufactured are not covered under the head of the definition of "Oils of all kinds" based on the Brand Name used by the applicant Company.
Issue 3: Remanding the Matter
The Tribunal remanded the matter back to the Assessing Authority for fresh investigation. The applicant argued that this was unjustified, especially given the age of the case, which relates to Assessment Years 1981-82 to 1984-85.
Issue 4: Correctness of Tribunal's Findings
The Tribunal's findings were challenged on the grounds that they were not correct in the eyes of the law. The applicant argued that the coconut oil should be taxed as 'oil of all kinds' and not as 'cosmetics and toilet requisites'.
Issue 5: Oversight of Deputy Commissioner's Findings
The Tribunal was criticized for completely overlooking the findings recorded by the Deputy Commissioner, who had decided the matter in favor of the applicant-Company.
Issue 6: Legality of Remanding the Matter
Given that the matter is about 18 years old, the applicant argued that the Tribunal's decision to remand the matter to the Assessing Authority was not legally correct.
Issue 7: Overall Sustainability of Tribunal's Order
The applicant questioned the overall sustainability of the Tribunal's order, arguing that it was not correct in the eyes of the law.
Judgment Details:
Taxability of the Commodity:
The main argument was that the commodity in question is 'coconut oil' and should be taxed as 'oil of all kinds'. The applicant emphasized that coconut oil is an edible oil and should be taxed under Entry No. 31 of Notification No. 5785. The Tribunal, however, noted that the product was advertised and sold as hair oil, not edible oil, and thus should be classified under 'cosmetics and toilet requisites'.
Relevant Notifications:
Entry No. 31 in Notification No. 5785, dated 7th September 1981, covers "Oils of all kinds," while Entry No. 5 of Notification No. 5784, dated 7th September 1981, covers "All kinds of cosmetics and toilet preparations for beautification or care of the face, skin, hair, nails, eyes or brows."
Common Parlance Test:
The judgment emphasized the principle that while interpreting entries in Sales Tax Acts, the popular meaning attached to the commodity by those dealing in it should be adopted. The product in question, 'parachute coconut oil,' was represented as hair oil through advertisements and packaging, and thus should be taxed as 'cosmetics and toilet requisites'.
Previous Assessments:
The Tribunal's earlier judgment for Assessment Years 1979-80 and 1980-81 treated the product as edible oil. However, the current case involved a different question regarding the product's classification as hair oil, which was not addressed in the earlier assessments.
Remand Decision:
The Tribunal's decision to remand the matter to the Assessing Authority was deemed unnecessary. The product was consistently represented as hair oil, and the matter was already significantly old. Thus, the remand order was set aside.
Final Decision:
The Tribunal was justified in holding that Parachute coconut oil is liable to be taxed as 'hair oil' and not under the category of 'oils of all kinds'. However, the remand to the Assessing Authority was not justified. The revisions were allowed in part, setting aside the remand order, but dismissed in all other respects.
Costs:
No order as to costs.
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2008 (8) TMI 962
Issues Involved:
1. Interim injunction restraining respondents from creating any encumbrance over the properties.
2. Applications to vacate the ex parte order of interim injunction.
3. Allegations of suppression of caveat petition.
4. Territorial jurisdiction of the Court.
5. Readiness and willingness to perform the contract.
Summary:
1. Interim Injunction:
Original Application No. 548 of 2008 was filed by the applicant/plaintiff seeking an order of interim injunction restraining the respondents from creating any encumbrance over the Plaint A and B schedule properties pending disposal of the Suit.
2. Applications to Vacate Ex Parte Order:
Applications No. 3633 and 3837 of 2008 were filed by defendants 1 to 4 and defendants 5 to 10 respectively, seeking to vacate the ex parte order of interim injunction granted to the applicant/plaintiff on 30.04.2008.
3. Allegations of Suppression of Caveat Petition:
Respondents contended that the applicant suppressed the pendency of Caveat Petition No. 891 of 2008 and obtained an order of injunction against them. The Court noted that the applicant made an endorsement on the Judge's summons stating "No caveat served on the petitioner. No caveat also entered in the caveat register." The Court emphasized the mandatory duty under Section 148A of the Code of Civil Procedure for the caveator to serve notice of the caveat on the adversary and for the Court to serve notice of the Application on the caveator.
4. Territorial Jurisdiction:
Respondents argued that the Court lacked territorial jurisdiction as the property was located outside its jurisdiction. The Court held that the suit for specific performance of the agreement of sale simpliciter, without seeking recovery of possession, cannot be termed as a suit for immovable property. Therefore, the plea of respondents that the Court had no territorial jurisdiction was rejected.
5. Readiness and Willingness to Perform the Contract:
The applicant contended that he was ready and willing to perform his part of the contract, evidenced by the payment of Rs. 20,00,000/- as advance and obtaining a Pay Order for Rs. 42,80,000/-. The Court found that the applicant had shown prima facie readiness and willingness to perform his part of the contract before the expiry of the agreement. The Pay Order, telegram, and notice issued by the applicant supported his claim. The Court concluded that if the respondents were not restrained, the applicant's valuable rights would be thwarted, causing much hardship and multiplicity of proceedings.
Conclusion:
The Court granted an order of interim injunction afresh till the disposal of the Suit. The Application in O.A. No. 548 of 2008 was allowed, and Applications in A. Nos. 3633 and 3837 of 2008 were closed.
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2008 (8) TMI 961
Issues Involved: Condonation of delay in filing appeal, validity of share transactions, assessment u/s 158BD/158BC[c]/143[3], appeal against AO's order.
Condonation of Delay: The High Court of Calcutta, in a case involving condonation of delay in filing an appeal, was satisfied with the grounds presented in the petition and thus condoned the delay, allowing the application to proceed.
Validity of Share Transactions: The Tribunal extensively reviewed a case involving a search and seizure operation at the office premises of a firm, where certain documents related to share transactions were seized. Despite initial doubts raised by a statement made under duress, subsequent evidence including contract notes, bills, and statements from stockbrokers supported the genuineness of the share transactions. The Tribunal concluded that the transactions were genuine and dismissed the appeal, finding no substantial question of law involved.
Assessment u/s 158BD/158BC[c]/143[3]: The assessment proceedings under sections 158BD/158BC[c]/143[3] were initiated based on evidence gathered during the search operation. The Assessing Officer relied on a statement made by an individual, but failed to consider subsequent cross-examination that discredited the earlier statement. Despite documentary evidence supporting the transactions, the AO deemed the share trading loss as bogus. The CIT[A] upheld the AO's decision, emphasizing the initial statement. However, the Tribunal overturned this decision, highlighting the genuine nature of the transactions supported by documentary evidence.
Appeal Against AO's Order: The assessee, aggrieved by the Assessing Officer's decision and subsequent affirmation by the CIT[A], appealed to the High Court. The Tribunal's ruling in favor of the assessee, based on the authenticity of the share transactions supported by documentary evidence, led to the dismissal of the appeal. All parties were directed to act on the signed copy of the order, and urgent certified copies were to be provided upon request, subject to formalities.
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2008 (8) TMI 960
The Supreme Court upheld the decision of the Customs, Excise & Gold (Control) Appellate Tribunal, Mumbai in favor of the assessee, based on a previous judgment that had been affirmed by the Court. The revenue's appeal was dismissed.
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2008 (8) TMI 959
Issues involved: Transfer from civil police to armed police, delay in filing writ petition, applicability of U.P. Police Regulations para 525, equitable jurisdiction under Article 226 of the Constitution of India.
Transfer from civil police to armed police:
The petitioner was transferred from civil police to armed police in 1989. The petitioner argued that the transfer was illegal as per U.P. Police Regulations para 525, which allows transfer only for constables with less than ten years of service. However, the court found the argument misconceived as the petitioner was transferred in 1989, and Regulation 525 was not applicable. The court noted that there is no provision limiting the duration of service in armed police. The petitioner's claim for similar treatment based on a Supreme Court judgment was rejected.
Delay in filing writ petition:
The court emphasized the undue delay and laches on the part of the petitioner in challenging the transfer order dated 9.3.1989. Citing various legal precedents, the court highlighted that delay and laches are relevant factors in exercising equitable jurisdiction under Article 226 of the Constitution of India. The court referred to cases where petitions were not entertained due to delays, emphasizing the importance of filing writ petitions within a reasonable time. The court concluded that the petitioner's delay of over 19 years in challenging the transfer order was not satisfactorily explained, leading to the dismissal of the writ petition.
Applicability of U.P. Police Regulations para 525:
The petitioner contended that the transfer from civil police to armed police should adhere to para 525 of U.P. Police Regulations, which limits transfers for constables with less than ten years of service. However, the court found this argument misconceived as the petitioner was transferred in 1989, and Regulation 525 was not applicable in this case. The court emphasized that there is no provision restricting the duration of service in armed police, thereby rejecting the petitioner's claim for similar treatment based on the regulation.
Equitable jurisdiction under Article 226 of the Constitution of India:
The court highlighted the importance of equitable jurisdiction under Article 226 of the Constitution of India in cases involving undue delay and laches. Citing legal precedents, the court emphasized that petitions should be filed within a reasonable time and that delay in approaching the court may lead to the dismissal of the petition. In this case, the court found the petitioner guilty of undue delay of over 19 years in challenging the transfer order, which was not satisfactorily explained. As a result, the court dismissed the writ petition.
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2008 (8) TMI 958
High Court of Madras dismissed the stay petition, stating that the order of the lower authority cannot be enforced until revised by the court.
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2008 (8) TMI 957
The Bombay High Court rejected the appeal as the tribunal's decision, based on a previous judgment in the case of M/s. Tin Manufacturing Company, was accepted by the revenue.
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2008 (8) TMI 956
Issues Involved:
The issues involved in this case are the challenge to a common order and judgment dated 22nd April, 2008, regarding the vacation of an ex parte ad interim order, removal of goods by Pawan Hans Helicopters Ltd, and restraint on alienating, encumbering, and disposing of goods.
Facts and Decision:
1. The appeals FAO(OS) 258/2008 and FAO(OS) 259/2008 were filed challenging the common order dated 22nd April, 2008. The appellants sought vacation of an ex parte ad interim order and removal of goods by Pawan Hans Helicopters Ltd after paying dues for transportation and warehousing charges. The learned Single Judge granted an ex parte ad interim injunction restraining the appellants from alienating, encumbering, or disposing of the goods. Pawan Hans was permitted to lift goods without payment of warehousing or transportation charges.
2. Pawan Hans had an agreement with AES for the sale of helicopters and spares. The agreement faced issues when the second consignment was to be delivered. AES appointed FJF as the authorized transporter. AES issued instructions regarding the movement of cargo, and the goods were stored with SWC. AES went into liquidation, leading to non-payment of transportation and warehousing charges by Pawan Hans.
3. The learned Single Judge dismissed the applications filed by the appellants and allowed Pawan Hans to take possession of the goods without payment of dues. The appellants contended that they were not parties to the arbitration agreement and should not be deprived of their legitimate dues. The property in goods was to pass only upon payment of the entire sale consideration, which had not been done.
4. The Court held that the property in goods had not passed to AES due to non-payment of the full sale consideration. FJF was appointed by AES and could only be considered the agent of AES, not Pawan Hans. The order of restraint on the appellants was intended to preserve and protect the goods, falling within the ambit of the Arbitration and Conciliation Act, 1996. Pawan Hans was entitled to possession of the goods, and the appellants could recover their charges from AES.
5. The appeals were dismissed as the Court found no merit in them, upholding the decision of the learned Single Judge.
This summary provides a detailed overview of the issues involved, the relevant facts, and the decision rendered by the Court in the case.
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2008 (8) TMI 955
Power of Judicial Magistrate to entertain application filled u/s 319 after 8- 10 years - time limit prescribed to entertain application - recall an order of summoning the accused - Whether in Absence of sanction as envisaged by Section 197, No Prosecution could be launched?
HELD THAT:- The contention of the ld counsel for respondent No. 2 is that the power u/s 319 of the Code, cannot be exercised belatedly by the Court. Again, such order can be made only on the application by the Public Prosecutor or by some person other than the accused. In other words, an application u/s 319 cannot be filed by a person who is facing the trial.
We are unable to uphold the contentions. We have quoted Section 319 of the Code. It nowhere states that such an application can be filed by a person other than the accused. It also does not prescribe any time limit within which such application should be filed in the Court.
When applications u/s 319 of the Code were preferred by the appellant praying to join respondent No.2 as an accused and to issue summons, the ld Magistrate considered the evidence of prosecution witnesses and he was satisfied that depositions of witnesses prima facie made out offence against respondent No.2.
Admittedly, the Judicial Magistrate had considered a limited question whether on the basis of evidence of prosecution witnesses, prima facie offence had been made out against respondent No.2. He was, on the basis of such evidence, was satisfied that the case was required to be gone into and issued a summons. To us, the Revisional Court was not right in interfering with that order. Hence, even on that ground, the order was not in accordance with law.
Ld counsel for respondent No.2, however, submitted that the Revisional Court was right in any case in allowing the revision and in quashing proceedings against the said respondent on the ground of absence of sanction as required by Section 197 of the Code.
We express our inability to agree with the ld counsel. It is settled law that offences punishable u/s 409, 420, 467, 468, 471 etc. can by no stretch of imagination by their very nature be regarded as having been committed by a public servant while ‘acting or purporting to act in discharge of official duty’.
The Revisional Court was aware of legal position. It was, however, held by the Court that at the most there was negligence on the part of respondent No.2 but there was no criminal intent and he cannot be held criminally liable. We have already held that mens rea can only be decided at the time of trial and not at the stage of issuing summons. Moreover, a point as to need or necessity of sanction can be taken during the conduct of trial or at any stage of the proceedings. Hence, proceedings could not have been quashed on the ground of want of sanction in the present case. The order of the Revisional Court deserves to be set aside even on that ground.
It was also urged that no applications by the appellant could have been entertained by the trial Court after about 8 to 10 years from the date of filing of FIR. Now, an application u/s 319 of the Code can only be made to a Court and the Court may exercise the power under the said Section if it appears from evidence that any person other than the accused had also committed an offence for which he can be tried together with the accused.
It was the case of the appellant that it was during the course of prosecution evidence that he came to know that signatures of respondent No. 2 were sent for examination, some report was received by the prosecution which was not produced in Court and on the basis of such evidence, the case was made out against respondent No.2. If in these circumstances, applications were made and the prayer was granted, we see no infirmity therein.
In the totality of the facts and circumstances, the submission of the ld counsel for the appellant that the State Authorities were helping and assisting respondent No.2 cannot be said to be totally ill-founded or without substance. The State, in our opinion, could have easily avoided such embarrassment.
Therefore, the appeal deserves to be allowed and is accordingly allowed. The orders passed by the Additional Sessions Judge and the High Court are set aside and the order passed by the Judicial Magistrate is restored. Since the matter pertains to FIR of 1986, the ld Magistrate is directed to conclude the trial expeditiously.
We may clarify that we have not entered into allegations and counter-allegations. We have considered the facts and circumstanced to a limited extent to decide correctness of the order passed by the Judicial Magistrate under Section 319 of the Code. Ordered accordingly.
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2008 (8) TMI 954
Issues involved: Rejection of plaint under Order VII Rule 11 CPC based on Section 111 of the Companies Act, 1956.
Summary:
1. The plaintiff/appellant filed a suit seeking a declaration that certain shares were transferred through a forged document and requested an injunction against further transfers by the company. The defendant/respondent argued that the jurisdiction of the civil court was barred under Section 111 of the Companies Act, 1956.
2. The Court noted that Section 155 of the Companies Act, 1956 was substituted with Section 111, both having similar tenor. The trial court observed that Section 111 is intended for non-controversial matters and quick decisions, not for disputes requiring detailed investigation. It can decline to entertain petitions involving serious disputes, directing parties to civil court.
3. The trial court initially relied on a Supreme Court judgment but later referenced an order from the Company Law Board, directing the release of bonus shares. It suggested the appellant pursue remedies under Section 111 if fraud was suspected, leading to a contradictory stance.
4. The Court emphasized that the remedy under Section 111 is summary in nature and may not suffice for cases requiring detailed evidence like handwriting analysis. The disputed title of shares cannot be resolved summarily under Section 111.
5. Section 111 grants the company power to refuse registration, with appeal options. Without a civil court declaration on the forged document, the appellant cannot seek registration of disputed shares. The appellant's right to maintain the civil suit was upheld, dismissing the respondent's reliance on a previous case.
6. The appeal was allowed, setting aside the impugned order and restoring the appellant's suit. Both parties were directed to appear before the trial court for further proceedings. The appeal was disposed of with each party bearing their own costs.
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2008 (8) TMI 953
Issues Involved:
1. Jurisdiction of the show-cause notice under Section 11A of the Central Excise Act.
2. Eligibility of M/s. ST-CMS for the benefit of Notification No. 6/2002-CE.
3. Interpretation of the term "controlled" in the context of the Notification.
4. Applicability of Section 3 and Section 28 of the Indian Electricity Act, 1910.
5. Retrospective application of the amendment to Notification No. 6/2002-CE.
6. Liability for payment of duty on LSHS.
7. Admissibility of the benefit of the Notification to secondary fuels like LSHS.
8. Imposition of penalty on M/s. ST-CMS.
Detailed Analysis:
1. Jurisdiction of the Show-Cause Notice:
The appellants argued that the show-cause notice issued under Section 11A of the Central Excise Act was without jurisdiction as the procedure under Section 35E was not followed. They relied on the Madras High Court's decision in Madurai Power Corporation Pvt. Ltd. v. Deputy Commissioner of Central Excise, which held that Section 11A could not override Section 35E. However, the Tribunal, referencing the Supreme Court's ruling in Union of India v. Jain Shudh Vanaspati Ltd., held that the issuance of the show-cause notice under Section 11A was valid and not without jurisdiction.
2. Eligibility for the Benefit of Notification No. 6/2002-CE:
The appellants claimed eligibility for the benefit under the Notification, arguing they were controlled by TNEB. However, the Tribunal found no evidence of such control by TNEB, as the Power Purchase Agreement indicated a principal-to-principal basis relationship. The Tribunal concluded that M/s. ST-CMS, being a private company with 100% foreign equity, did not qualify as an electricity undertaking owned or controlled by the Central or State Government, State Electricity Board, or any local authority.
3. Interpretation of "Controlled":
The Tribunal emphasized that the control must be pervasive, extensive, and effective, akin to that exercised by an owner. The evidence presented, including the Power Purchase Agreement and a letter from TNEB, did not demonstrate such control by TNEB over M/s. ST-CMS.
4. Applicability of Section 3 and Section 28 of the Indian Electricity Act, 1910:
The appellants argued that they should be deemed within the scope of persons licensed under Part II of the Indian Electricity Act, 1910, or those with sanction under Section 28. The Tribunal held that the appellants neither had a license under Section 3 nor sanction under Section 28, and thus could not claim the benefit of the exemption. The Tribunal noted that the exemption Notification required strict interpretation, and the appellants failed to meet the mandatory conditions.
5. Retrospective Application of the Amendment:
The appellants contended that the amendment to the Notification, which included "generating company," should be given retrospective effect. The Tribunal rejected this argument, holding that the amendment was prospective from 1.3.2003 and could not be applied retrospectively.
6. Liability for Payment of Duty on LSHS:
The appellants argued that duty should be levied on the supplier, not the buyer. However, the Tribunal found that M/s. ST-CMS had executed bonds undertaking to pay duty in case of non-compliance with the Notification's conditions. The Tribunal held that under Rule 6 of the 2001 Rules, the duty was recoverable from the appellants as they were the persons chargeable with the duty.
7. Admissibility of the Benefit to Secondary Fuels:
The Tribunal referred to its decision in Neyveli Lignite Corporation Ltd. v. Commissioner of Central Excise, Pondicherry, which held that LSHS used as secondary fuel was eligible for exemption. Thus, the benefit of the Notification was admissible to secondary fuels like LSHS.
8. Imposition of Penalty:
The Tribunal concluded that the appellants could not be penalized as they used Annexure - I Certificates for duty-free procurement of LSHS and utilized the goods for the intended purpose without intent to evade duty. The penalty was set aside, considering the dispute involved rival interpretations of various legal provisions.
Conclusion:
The Tribunal sustained the order demanding duty with interest but set aside the penalty imposed on M/s. ST-CMS. The appeal was allowed to the extent of setting aside the penalty.
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2008 (8) TMI 952
Issues involved: Admissibility of Modvat Credit on levy molasses used in the manufacture of rectified spirit for Indian made foreign liquor (IMFL) and liability to pay duty at 8% on the value of rectified spirit cleared for IMFL.
The appeal was filed against the impugned order where the Commissioner (Appeals) held that Modvat Credit was admissible on the levy molasses used in the manufacture of rectified spirit for IMFL, and the appellants were liable to pay duty at 8% on the value of the rectified spirit cleared for IMFL as per Rule 57CC of the Rules.
The Revenue contended that the respondents were not entitled to credit for molasses used in the manufacture of non-excisable country liquor. The Tribunal, in previous cases, had already settled this issue in favor of the respondents, stating that they were entitled to avail Modvat credit on levy molasses and were liable to pay duty at 8% on the rectified spirit cleared for IMFL. The appeal was dismissed based on these precedents.
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2008 (8) TMI 951
Dishonour of cheque - Undated cheque was given as a security - cheque was given for consideration or not - Issued summon order for Cognizance of offence u/s 138, 139 and 141 - Application u/s 482 for quashing the summon order - HELD THAT:- It is noteworthy that, notice of demand sent by the complainant in terms of Section 138 did not elicit any response. Furthermore, even before this Court, counsel for the petitioners has not explained why his clients failed to make any specific demand in writing for return of the cheque since, according to them, its purpose had already been served, and the contract for which the cheque was issued, was over.
In N. Rangachari Vs. Bharat Sanchar Nigam Ltd.[2007 (4) TMI 621 - SUPREME COURT], it was held that if, on reading the complaint as a whole, all the elements of the offence u/s 138 and 141 are made out, then any pleas put forward by the appellant and the defences sought to be put forward by the accused, can only be looked into after the trial is concluded.
Admittedly the cheque was given for consideration. The respondent has tried to encash that cheque against consideration which, according to the respondent, was due to it. In addition, Section 139 also creates a presumption in favour of the complainant. Under the circumstances, the onus for proving otherwise lies on the petitioners and can only be discharged at the trial. Furthermore, as held in Modi Cements Ltd. Vs. Kuchil Kumar Nandi, [1998 (3) TMI 632 - SUPREME COURT], once a cheque is issued by the drawer, a presumption u/s 139 must follow, and merely because the cheque in question was undated at the time it was handed over does not mean that it was given without consideration. There is also nothing in law to presume that a cheque, which happens to be a negotiable instrument, must be deemed to have been drawn on the date the undated cheque was handed over.
There is also nothing in law to presume that a cheque, which happens to be a negotiable instrument, must be deemed to have been drawn on the date the undated cheque was handed over. On the contrary, as per the ratio of Anil Kumar Sawhney Vs. Gulshan Rai [1993 (10) TMI 347 - SUPREME COURT], the cheque is deemed to be drawn on the date mentioned on the cheque. Lastly, the notice u/s 138 issued by the respondent, was admittedly received by the petitioners but they did not bother to reply. Looking to the totality of the circumstances, it cannot be said that no prima facie case is made out or that interference with the proceedings before the Ld. Metropolitan Magistrate is warranted in the exercise of this Court’s jurisdiction u/s 482 Cr.P.C.
The petition is, therefore, dismissed.
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2008 (8) TMI 950
Issues involved: Increase in revenue liability due to foreign exchange rate fluctuation and deductibility of payment made to customs authorities under protest under s. 43B of the IT Act, 1961.
Issue 1: Increase in revenue liability due to foreign exchange rate fluctuation
The appeal pertains to the assessment year 2002-03 and challenges the Tribunal's order regarding the increase in revenue liability caused by foreign exchange rate fluctuation. The counsel for the appellant argued that this issue has already been decided in favor of the assessee by the Delhi High Court in CIT vs. Woodward Governor India (P) Ltd. & Ors. The Court upheld that the increase in revenue liability due to foreign exchange rate fluctuation is not valid.
Issue 2: Deductibility of payment made to customs authorities under protest under s. 43B of the IT Act, 1961
The second issue raised in the appeal concerns the deductibility of a payment made to customs authorities under protest under s. 43B of the IT Act, 1961. The Tribunal's decision on this issue was based on a previous case for the assessment year 1999-2000. The Court examined the earlier order and found that the liability to make the payment to customs authorities was mandatory and the assessee had no choice but to comply. Therefore, the Court concluded that such payment falls under s. 43B(a) of the IT Act. As a result, the Court determined that no substantial question of law arises for consideration and dismissed the appeal on this issue as well.
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2008 (8) TMI 949
Attack with deadly weapons - Compounding of offences - matter has been compounded by compromise between the parties - Convicted for offences punishable u/s 147 and 324 IPC - HELD THAT:- The compounding of an offence signifies that the person against whom an offence has been committed has received some gratification to an act as an inducement for his abstaining from proceeding further with the case [2007 (12) TMI 444 - SUPREME COURT].
Section 320 deals with offences which are compoundable, either by the parties without the leave of the Court or by the parties but only with the leave of the Court. It is clear that offences not referred to in sub-sections (1) and (2) of Section 320 and not included in the Table are not compoundable. Similarly, offences punishable under laws other than the Indian Penal Code also cannot be compounded.
It is no doubt true as stated by the ld counsel for the appellants even at the time of preliminary hearing of this matter that by the Code of Criminal Procedure (Amendment) Act, 2005 (Act 25 of 2005) the above entry has been deleted. In other words, an offence of voluntarily causing hurt by dangerous weapons or means punishable u/s 324, IPC is no more compoundable. The Amendment Act of 2005 came into force from June 23, 2006.
According to the prosecution, the appellants had committed the offence on June 15, 1995. Hence, in our opinion, Act 25 of 2005 has no application to the facts of the case. We, therefore, see no ground to refuse permission as sought by the parties who have compromised the offence which was compoundable under the Code as it stood in 1995. If it is so, compounding can be permitted and accused (appellants) can be acquitted.
Therefore, the appeal deserves to be allowed and is accordingly allowed by holding that since the matter has been compounded by compromise between the parties and there is no illegality therein, such compounding can be permitted by the Court. The appellants are, hence, entitled to acquittal.
The order of conviction and sentence recorded by all Courts is hereby set aside.
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