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2002 (2) TMI 1362
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... ... ..... ant case, the trial Court ought to have disposed of forthwith the application of the applicants whereby release was sought in view of provisions of Section 167(2) of the Code, without granting further time to the prosecution. In any case, prosecution, in the instant case, did not file all material documents within the stipulated period and, therefore, report/charge-sheet which is filed by the prosecution is not in conformity with Section 173(5) of the Code. The applicants, in my opinion, are entitled to be released on bail since prosecution failed to file charge-sheet/report within the stipulated period as contemplated under Section 167(2) of the Code. Hence, I pass the following order The applicants be released on bail subject to furnishing P.R. bond of rupees ten thousand each with one surety in like manner. They are directed to visit Police Station, Ramtek twice a week, i.e. on every Monday and Sunday between 4.30 p.m. and 6.30 p.m. for the period of six months from today.
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2002 (2) TMI 1361
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... ... ..... imonial home under compelling circumstances. The wife's right to claim maintenance under Section 125 Cr.P.C. can be denied only in the circumstances provided under Sub-section (4) of the said section. On the facts and circumstances of the case as found by the courts below the said sub-section is not attracted. Therefore, the High Court was clearly in error on upsetting the order passed by the learned judicial magistrate first class granting maintenance @ Rs. 250/- per month to the wife which was confirmed in revision by the 4th additional sessions judge. In the result, the appeal is allowed, the order dated 2.8.2000 of the High Court in miscellaneous criminal case No. 2472 of 1999 is set aside and the order dated 27.1.1998 passed by the learned judicial magistrate first class, Jabalpur in misc. criminal case No. 188 of 1997 which was confirmed by the order dated 19.2.1999 of the 4th upper additional sessions judge, Jabalpur in criminal revision No. 42 of 1998 is restored.
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2002 (2) TMI 1360
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... ... ..... o into this argument. However, the fact remains that looking to the modus operandi it would not be proper to reduce the sentence since the sentence cannot be said to be too harsh. 24. Smuggling of foreign mark articles, including gold in gold biscuits form, by itself is an anti-national activity. It adversely affects nation's economy. Therefore, strict provisions are made for the offences under the said Act. This would show that no lenient or liberal view should be taken by this Court in such offences. It is more so when the case has been contested on facts and on law before atleast three Courts unsuccessfully. The request for reducing jail sentence, therefore, cannot be accepted. 25. In that view of the matter there is no merit in the present revision application and hence it deserves to be dismissed. For the foregoing reasons, this revision application is ordered to be dismissed and judgment and conviction order of the two Courts below are confirmed. Rule is discharged.
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2002 (2) TMI 1359
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... ... ..... the counsel of the respondent can not be accepted as an admission so as to bind the respondent. Excluding that statement from consideration there was thus no material before the Addl. Rent Controller to record his satisfaction within the meaning of Clause (d) of Section 22 of the Act. It follows that the order of eviction was without jurisdiction. The learned counsel next contended that the statement of the learned counsel for the respondent should be treated as a compromise as the Court granted five years' time to the respondent for vacating the suit premises. In our view, this contention has to be rejected. The compromise like a contract postulates consensus between two parties. A statement of a counsel conceding the grounds of eviction and seeking some time for the respondent to vacate the premises, can not be termed a compromise. In view of the above discussion, we do not find any reason to interfere with the order under challenge. The appeal is dismissed with costs.
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2002 (2) TMI 1358
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... ... ..... e. Presumptions with regard to the negotiable instruments as stated under Section 118 of the Negotiable Instruments Act are also in favour of the plaintiff. As the defendant is not able to prove the contrary versions with regard to consideration, as to date............. as to stamps and also that holder is a holder in due course and in the said circumstances, the presumptions have got to be drawn in favour of the plaintiff and therefore, on that score also the defendant has to fail. 23. In the said circumstances, I hold that the courts below have committed a legal error in not having considered the provisions of Sections 20 and 118 of the Negotiable Instruments Act and Sections 101 and 102 of the Evidence Act and that therefore, the judgment and decree of the courts below are liable to be set aside and accordingly, set aside. 24. In the result, the judgment and decree of the courts below are set aside and the appeal is allowed. No costs. Consequently, connected CMP is closed.
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2002 (2) TMI 1357
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... ... ..... e scheme. The fact that the employees have been allowed to continue for so many years indicates the existence or the necessity for having such posts. But still, it would not be open for the Court to indicate as to how many posts would be created for the absorption of these daily-wages workers. Needless to mention that the appropriate authority will consider the case of these daily-wagers sympathetically who have discharged the duties for all these years to the satisfaction of their authority concerned. So far as the salary is concerned, as we have stated in the case of State of Uttar Pradesh, a daily-wager in the State of Uttaranchal would be also entitled to the minimum of the pay-scale as is available to his counter-part in the Government until his services are regularised and he is given regular scale of pay. 7. The civil appeals and the special leave petitions stand disposed of accordingly. 8. Delay condoned and applications for intervention and impleadment stand allowed.
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2002 (2) TMI 1356
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... ... ..... ivaji Sahebrao, Crl. Appeal No. 26 of 1970, D/27.8.1973 (reported in AIR 1973 SC 2622) (supra) as is clear from the following observations "Certainly it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distinction between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure considerations." 9. "The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact; (ii) the non-interference with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court." In view of the facts and circumstances of the case and the position of law, we do not find any merit in this appeal which is accordingly dismissed. The bail bonds shall stand discharged.
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2002 (2) TMI 1355
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... ... ..... ony strengthens the case of the prosecution of the witnesses being truthful as they were not shown to have made parrot like statements. A critical examination of the judgment of the trial court shows that the view taken by it was uncalled for, not based upon the facts of the case of the legal evidence tendered in the case and was the result of conjectures, imagination and hypothesis. The High Court rightly held that the conclusions arrived at by the trial court were factually and legally incorrect. The High Court was, therefore, justified in re-examination the whole evidence produced in the case and to hold that the accused-appellant was proved to have committed the offence of murder beyond all reasonable doubt. He has rightly been convicted and sentenced for the commission of the aforesaid offence. We do not find any illegality or error of jurisdiction in the judgment of the High Court requiring our interference. 9. There being no merit in this appeal, the same is dismissed.
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2002 (2) TMI 1354
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... ... ..... the light of the definition and explanation given to the capital goods and has also taken into consideration the case law. The matter was taken up by the Larger Bench of the Tribunal in the Jawahar Mills case and decided against revenue. The revenue took up the matter before the Apex Court and the Apex Court has upheld the Larger Bench's decision and held that cables are eligible for modvat credit. The Larger Bench have analysed the definition of the capital goods and has come to a conclusion that if any of the item play a role in the manufacture of the final product as accessory or component then the benefit is required to be extended. This finding has been confirmed by the Apex Court. The Commissioner has analysed both the items and found to be within the parameters of the explanation to capital goods. Therefore, there is no infirmity in the impugned orders and hence they confirmed by rejecting both the revenue appeals. (order dictated and pronounced in the open court)
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2002 (2) TMI 1353
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... ... ..... onal Tribunal is required to be published by the appropriate government within a period of thirty days from the date of its receipt and such Award published under Sub-section (1) of Section 17 is held to be final. 7. In the aforesaid premises and having regard to the relief sought for in the suits filed in the Civil Court, we have no manner of hesitation to come to the conclusion that in such cases the jurisdiction of the Civil Court must be held to have been impliedly barred and the appropriate forum for resolution of such dispute is the forum constituted under the Industrial Disputes Act. We, therefore, do not find any infirmity with the impugned judgment of the High Court requiring our interference. The appeals accordingly fail and are dismissed. We would however observe that it would be open for the appellants-workmen to approach the appropriate industrial forum and such forum if approached, will dispose of the matter on its own merits. There will be no order as to costs.
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2002 (2) TMI 1352
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... ... ..... n of Rule 18 in the instant case, it is clear that once a discretion has been exercised by the Government under Rule 18 to cancel the bid then a forfeiture of the amounts deposited is a consequence to the said act of cancellation and there is no discretion in the Government whether to exercise the right of forfeiture or not. This being so, the question of affording an opportunity to the respondent before effecting the forfeiture cannot arise. Opportunity was granted before cancelling the bid. Admittedly, these was a default in non-compliance with the provisions of Rules 16 and 17. This being so, the appellant-State was right in its decision to cancel the bid and to forfeit the amount deposited under Rule 13(1). 21. For the aforesaid reasons, this appeal is allowed and the decision of the Division Bench of the High Court is set aside and the writ petition filed by the respondent before the High Court would consequently stand dismissed. The appellant would be entitled to costs.
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2002 (2) TMI 1351
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... ... ..... o explained by the Ld. Counsel for the assessee. M/s. Krishna B. Aggarwal is also BSE Member, with whom the assessee had entered into contract to purchase shares of Dhampur Sugar. The selling party is M/s. India Liberalisation Fund. In the course of execution of deal, the buying broker M/s. Krishna B. Aggarwal disowned the transactions, for the reasons known to them and refused to honour the commitment. Ultimately, the assessee had to take recourse to recover the amount by adjusting the credit balance in their ground concern and by selling the stock. In the process what was shortfall, the same was written off as business loss. 19. We find that this issue is covered by the Mumbai Special Bench decision in the case of DCIT Vs Shreyas S. Morakhia (2010) 42 DTR (Mum)(SB) 320 and the Supreme Court decision in the case of TRF Ltd. Vs CIT, Ranchy (2010) TIO-15-SC-IT . Hence we dismiss the revenues appeal on this issue. In the result the appeal filed by the Revenue is partly allowed.
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2002 (2) TMI 1350
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... ... ..... xcise duty. The decision in Synthetics and Chemicals Ltd. v. State of U.P. has been followed in State of U.P. v. Modi Distillery where certain wastage of ethyl alcohol was sought to be taxed. This Court following the decision in Synthetics and Chemicals Ltd. came to the conclusion that this cannot be done. 3. In the present case also, the aforequoted passage from the Excise Commissioner's order indicates that the duty is sought to be levied on the loss of rectified spirit amounting to 6,18,842 litres. 4. We have already observed that no duty can be levied by the State on the rectified spirit and, therefore, the impugned order of the Commissioner of Excise is set aside. The appeal is allowed accordingly. 5. No order as to costs. Civil Appeals Nos. 4381 of 1986, 454 of 1987 and 1832 of 1994 6. For the reasons stated in our order in Civil Appeal No. 4355 of 1985, these appeals are also allowed and the decision of the Excise Commissioner is set aside. 7. No order as to costs.
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2002 (2) TMI 1349
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... ... ..... half of State is of no help as release of vehicle was declined in the backdrop of peculiar facts noticed in Para No. 16 of the judgment (Page 163). Indisputably, petitioner is registered owner of said tempo DL-1LC-8270. Trial against Dev Narain, driver is not likely to conclude n near future. In case said tempo is not released on superdari it will get further damaged because of its disuse. For proper custody thereof pending trial an order needs to be made. Impugned order which does not record any reason(s) declining to release the tempo in favor of petitioner, thus, deserves to be set aside under Section 482 Cr.P.C. being abuse of process of court. 7. Consequentlx, the petition is allowed, order dated 31st July 2001 is set aside and aforesaid Tempo is released in favor of the petitioner on his furnishing bond in the sum of ₹ 1,75,000/- to the satisfaction of trial court that pending trial tempo will not be alienated and made available as and when required by the court.
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2002 (2) TMI 1348
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... ... ..... nstigation and/or Interference of the defendant, the tenants have not paid their respective rents. In my view, for this reason the plaintiff has every right to recover rents from the tenants who if not paid due and legitimate rents or deposited with the lawful authority may face legal action that may be brought. However, such alleged loss resultant of non-payment of rent can be remedied by the plaintiff itself by filing appropriate proceedings. Moreover, in the evidence some other case was sought to be made out. I cannot accept such inconsistent and contradictory case of damages against the defendant. Therefore, the relief prayed in terms of prayers (d) and (e) is rejected. 29. The plaintiff is, however, entitled to costs of this suit. Interim order passed in this suit accordingly stands confirmed which shall be merged in the decree. Receiver, if any, appointed in the said property in this suit shall stand discharged accordingly by handing over the property to the plaintiff.
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2002 (2) TMI 1347
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... ... ..... ell to dispose of the issue, as far as practicable, within a period of four months. If the parties to the proceeding, i.e., decree-holders and judgment-debtors shall apply to amend their respective applications, i.e., applications under Order 21, Rule 11(2) and Section 47, CPC and make such applications within a period of six weeks hence, then such opportunity shall be granted to both of them. Both the parties undertake to appear before the Executing Court, i.e., Civil Judge (Sr, Division), Bhubaneswar on 16.3.2002 (as agreed by counsel for both the parties). Therefore, no further or fresh notice shall be issued to any of the parties, and default in appearance on that date shall be treated as such. 8. Send back the L.C.R. alongwith a copy of this order to the Court below in the hands of a special messenger so as to ensure its reaching in that Court by 8.3.2002. Mr. Rath, teamed counsel for the opp. parties undertakes to deposit the cost of the special messenger by 28.2.2002.
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2002 (2) TMI 1346
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... ... ..... hin two months from today ; iv) After deposit of the said sum, the respondent in both the company petition shall deposit the balance of the outstanding as claimed by the petitioner in the respective company petitions to the credit of the respective company petitions in ten equal bimonthly instalments with intimation to the petitioner in the respective company petitions ; v) The amounts directed to be deposited by the respondent to the credit of the respective company petitions shall be kept in deposit to the credit of the company petitions as the respondent has already initiated arbitration proceedings, or until this Court modifies the directions ; vi) Failing compliance of conditions (i), (ii), (iii), viz., either first payment or any one of the subsequent instalments by the respondent till the outstanding is wiped out, the petitioner will be entitled to move this Court for publication of the company petition and for further consequential orders leading to winding up."
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2002 (2) TMI 1345
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... ... ..... 33.33 per cent of the shares, which works out to roughly 700 shares. In case the petitioners are willing to acquire these shares respondents Nos. 3 to 9 should transfer to the petitioners these 700 shares at the consideration paid by the respondents when they were allotted shares by the company. The option to get the shares transferred should be exercised before April 30, 2002, by a notice to the company, together with a demand draft for the amount of consideration for these shares. Once the notice is received by the company along with the consideration as above, the company will arrange for getting the transfers effected by respondents Nos. 3 to 9 within 15 days thereafter and register the transfers within further ten days. Identification of 700 shares to be transferred to the petitioners out of 2,100 shares allotted to respondents Nos, 3 to 9 shall be the responsibility of the company. 9. With the above directions, we dispose of the petition without any order as to costs.
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2002 (2) TMI 1344
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... ... ..... s not misused for the purpose of setting up altogether new pleas springing a surprise on the opposite party and the Court. A reference to Order VI Rule 7 of the CPC is apposite which provides that no pleading shall except by way of amendment raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same. 22. In the case before us the application for amendment moved by the occupants did not satisfy the abovesaid requirement. Again we have grave doubts if the High Court could have in exercise of its revisional jurisdiction granted leave to amend the written statements by a cursory order. However, the trial has taken place on the amended pleadings and yet the occupant-defendants have failed on merits. We therefore leave the matter at that only. 23. The appeal is allowed, the impugned judgment of the High Court is set aside, the judgment of the Appellate Authority is restored. 24. No orders as to the costs.
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2002 (2) TMI 1343
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... ... ..... cent and the 1st respondent about 15.6 per cent. This being the case, it is doubtful whether 26.2 per cent shares held by the 4th respondent alone could bring about a change in the Board. 26. Since we have held that the appointment of the 1st respondent as the CMD has not brought about any change in the Board, nor there is any likely change in the Board, there is neither a need nor a scope to make any examination as to whether the change or likely change is prejudicial to the interest of the company. 27. In fine, since the petitioner has failed to establish that there has been either a change or likely change in the ownership of shares held in the company, the establishment of which is the foundation of a petition under Section 409 for making further inquiries to find out whether there is or a likely change in the Board which would be prejudicial to the interest of the company, we dismiss this petition as not maintainable under Section 409 and vacate all the interim orders.
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