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Case Laws
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2003 (1) TMI 762
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... ... ..... not be said that there is any dishonest intention on the part of appellants nor it can be said that TCPL or the appellants have misappropriated or converted the movable property of the complainant to their own use. Since the basic ingredients of the relevant Section in the Indian Penal Code are not satisfied, the order taking cognizance of the offence as well as the issue of summons to the appellants is wholly uncalled for. Such an order brings about serious repercussions. So far as the appellants are concerned when no case is made out for the alleged offences even as per the complaint filed by the complainant, there is no reason to permit the appellants to be subjected to trial for the alleged offences. Hence, the appeal is allowed. The impugned orders of he High Court as well as of Chief Judicial Magistrate are hereby ordered to be quashed. CRIMINAL APPEAL NO. OF 2003 @ SLP (CRL) NO. 2698/2002 9. Leave granted. 10. In view of the above judgment, this appeal is also allowed.
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2003 (1) TMI 761
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... ... ..... n the two deceased or PW.1. Thus the charge under Section 302 read with Section 149 could not stand the number of participants in the crime being less than five. 16. But so far as the appellants are concerned, it cannot be doubted on the findings recorded that they shared a common intention and had (SIC) pursuant thereto. Overt act and active participation is indicative of common intention of the persons Perpetrating the crime, and in the facts and circumstances of this case we have no doubt that the appellants shared the common intention to commit the murders of the deceased and acting in concert they executed their pre-arranged plan to eliminate them. Their conviction under Section 302 read with Section 34 can be safely recorded. 17. Accordingly the conviction of the appellants is altered to one under Section 302 read with Section 34 IPC instead of one under Section 302 IPC and the sentence of life imprisonment is maintained. Subject to the above, the appeals are dismissed.
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2003 (1) TMI 760
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... ... ..... ns, our conclusion is that the High Court was not at all justified in reversing the verdict of acquittal passed by the trial Judge. In appeal against acquittal, the High Court is competent to reappreciate the evidence to find out whether the trial Judge has misappreciated any part of the evidence or not. Here the appreciation of the evidence made by the trial Judge is proper and the conclusions drawn are reasonable. The High Court, therefore, erred in reappreciating the evidence to substitute its own view for that of the trial Judge. 37. In the result, we allow this appeal. The impugned judgment of conviction and sentence passed by the High Court dated 11.3.2002 is hereby set aside and the judgment of acquittal dated 06.9.1985 passed by the trial court is maintained. The appellants have been re-arrested after their conviction and are undergoing sentence. As a result of their acquittal, they shall forthwith be set at liberty if they are not required in any other criminal case.
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2003 (1) TMI 759
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... ... ..... med the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused on a particular aspect of the trial cannot be said to be interlocutory so as to be outside the purview of the revisional jurisdiction of the High Court. 22. In the present case when the rights of the petitioners are decided once and for all it certainly amounts to a final order in relation to that particular issue and consequently a revision is maintainable. 23. Hence I see that the prosecution against the petitioners herein is not maintainable and accordingly quash the proceedings in so far as it relates to them.
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2003 (1) TMI 758
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... ... ..... ile acting under those provisions for the purpose of mutations. Albeit, the revenue authorities can certainly decide in such cases, the issue of actual possession. However, such decision would be final, subject to the decision of the civil court in that regard. 16. Needless to say that the proceedings stated to have been commenced under Section 32G of the Bombay Agricultural Tenancy Act could not have been subject matter of adjudication while the application filed for mutation of entries was being considered and therefore the stay granted to the said proceeding during the pendency of the present petition needs to be vacated and hence accordingly hereby vacated without expressing any opinion regarding any of the claims by the parties in the said proceedings. 17. The petition therefore succeeds and Rule is made absolute in the above terms with no order as to costs. All concerned to act on the copy of this order duly authenticated by the Sheristedar of this Court as a true copy.
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2003 (1) TMI 757
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... ... ..... proper on the part of this Court to exercise revisional powers under Section 397 of the Code of Criminal Procedure for reversing the finding of acquittal. 9. In the backdrop of aforesaid circumstances, it is obvious that the decisions of the Apex Court in the cases of Dalmia Cement (Bharat) Ltd. v. Galaxy Traders and Agencies Ltd. and Ors. (supra) and K.N. Beena v. Muniyappan and Anr. (supra) have no bearing on the facts and circumstances of the present case. Having regard to the admitted position and considering the scope and object of the provisions of Section 138 read with Section 118, I am of the considered view that in the present case it cannot be said that the cheque was issued for discharging the liability to the extent of the amount of ₹ 17,745/-, especially when it is undisputed that what was due on 19.1.1998 was the amount not exceeding ₹ 10,975/- only. 10. In the result, I do not find any merit in the revision application and the same stands dismissed.
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2003 (1) TMI 756
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... ... ..... charged until tender or realisation of the amount due thereon or until such date after the institution of a suit to recover such amount as the Court directs". Thus the rate of interest on the amount due under the instrument attracting Section 80 of the Act as it stood prior to 30-12-1988 will have to be calculated at the rate of 6% per annum from the date the amount ought to have been paid and until it is tendered or realised. The amendment effected by Act No. 66 of 1988 which came into force on 30-12-1988 does not apply to the transactions effected prior to 30-12- 1988. The amendment applies to the transactions effected on and from 30-12-1988". (emphasis supplied) 13. In view of the ratio laid down in the decision, it would not lie in the mouth of the defendant to contend that he is not liable to pay interest as envisaged under Section 80 of the Negotiable Instruments Act. In that view, I find no merit in the appeal. Accordingly, the appeal is dismissed with costs.
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2003 (1) TMI 755
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... ... ..... quashed. Trisuns Chemical Industry v. Rajesh Agarwal & Ors. 1999(8) SCC 686 cited by learned counsel for the complainant is clearly distinguishable as in the said case the allegation in the complaint was that the complainant had paid in advance a price higher than the market price for purchasing "toasted soyabean extracts" but the accused sent the commodity which was of most inferior and substandard quality due to which the complainant suffered a loss of ₹ 17 lakhs. In view of the allegations made in the complaint, the matter required investigation and the proceedings could not have been quashed on the ground that the dispute was of a civil nature. In the result, the appeals are allowed. The impugned judgment and order dated January 16, 2002 of the High Court is set aside and the complaint filed by the Respondent no.2 and the FIRs registered in pursuance thereof as Case Crime Nos.5 of 2001, 13 of 2001 and 18 of 2001, as against the appellants, are quashed.
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2003 (1) TMI 754
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... ... ..... condoned. Appeal admitted Stay of the impugned order.
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2003 (1) TMI 753
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... ... ..... t be said that the assessee has taken credit for the duty paid on the inputs utilized in the manufacture of the final exempted product under Rule 57A." We do not find any substance in the submissions of the Revenue that non-availment of credit after March, 1998 does not mean that the input is not used in the manufacture after March, 1998. The provisions of Rule 57CC comes into operation only when the credit of the specified duty on any inputs is taken and the manufacturer does not maintain separate inventory and accounts of the receipt and use of the inputs for the manufacture of exempted as well as dutiable final products. In the present matter as the MODVAT credit has not been taken, it cannot be said that the inputs in respect of which credit was availed of has been used in the manufacture of exempted products. We therefore, hold that the Provisions of Rule 57CC are not attracted in the present matter. Accordingly the impugned Order is set aside and Appeal is allowed.
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2003 (1) TMI 752
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... ... ..... mentioned in the notification No. 119/75-CE. According to the Explanation to Notification No. 119/75 the expression Job Work shall mean such items of work where an article intended to undergo manufacturing process is supplied to the job worker and that article is returned by the job worker to the supplier after the article had undergone the intended manufacturing process, on charging only for the job work done by him. In this context the Supreme Court has held that Notification was not intended to benefit those who contributed their own material to the article supplied by the customer and manufactured different goods. The present customs notification also requires that the goods are imported for jobbing and the resultant products are re-exported to the supplier of the goods. As the basic fabric of carpet is not imported the condition of the notification is not complied with. We, therefore, find no reason to interfere with the impugned Order. Accordingly we reject the appeal.
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2003 (1) TMI 751
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... ... ..... ute required an overt act. The essence of & criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this, it necessarily follows that unless the statute so requires, no avert act need be done in furtherance of the conspiracy and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Law making conspiracy a crime, is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support with co-conspirators give to tone another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design, (See American Jurisprudence Vol. II
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2003 (1) TMI 750
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... ... ..... rit petition filed on behalf of the Association, not being in accordance with the Bye-laws of the Association, is not maintainable. 7. As per Section 23 of 2001 Act, disputes arising among the Committee or the members of the Society, in respect of any matter relating to the affairs of Society, have to be decided either under the provisions of the Arbitration and Conciliation Act, 1996 or by a District Court concerned. Therefore, if any of the member of the Society is aggrieved by the way in which the election of the Association was conducted, he has a right to move the District Court concerned under Section 23 of the 2001 Act, which is an effective remedy provided by the Statute. It is well known that when an effective alternative remedy is open, the jurisdiction of this Court under Article 226 of the Constitution cannot be invoked. 8. In view of the above, I find no grounds to admit this Writ Petition and hence the Writ Petition is dismissed at the admission stage. No costs.
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2003 (1) TMI 749
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... ... ..... s no impediment in the way of the accused-respondents to examine the aforesaid persons as defence witnesses, but they did not chose to do so. 19. Having given our careful consideration to the submissions made by learned counsel for the parties, we are of the opinion that the judgment and order of the High Court is wholly perverse and illegal inasmuch as it completely failed to consider the testimony of the eye-witnesses and the reasons given for discarding the prosecution case are also unsustainable in law. 20. In the result, the appeal succeeds and is hereby allowed. The judgment and order dated 26.9.1991 of the High Court is set aside and that of the learned Additional Sessions Judge, Sangrur is restored. The accused-respondents shall surrender forthwith to undergo the sentences imposed upon them by the learned Additional Sessions Judge. The Chief Judicial Magistrate, Sangrur shall take immediate steps to take the accused- respondents in custody and for realisation of fine.
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2003 (1) TMI 748
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... ... ..... e defendants and the withdrawal would be complete against those defendants as soon as the plaintiff files an application/purshis for withdrawal. The Court may then consider whether the suit survives against the other defendants against whom suit is not withdrawn. If it comes to the conclusion that the defendant or defendants against whom the suit is withdrawn was or were necessary parties, the Court would then be entitled to dismiss the suit against all on the ground of non-joinder of the necessary parties. But the Court cannot refuse to allow the withdrawal on the ground that the person against whom the suit is sought to be withdrawn is a necessary party. 5. In view of this, the order of the Court refusing the withdrawal was clearly erroneous and is hereby set aside and it is ordered that the withdrawal of suit against the Respondent No. 1 was complete as soon as the plaintiff filed the purshis of withdrawal. Civil Revision Application is allowed in terms of the above order.
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2003 (1) TMI 747
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... ... ..... in this case was approved, the refund application to claim the benefit of a notification, subsequent to such approval would not be available to the manufacture. Therefore, the benefit of the notification in this case would not be available including to a buyer, who are situated at distance, after the manufacture. (b) In this view of the matter we cannot grant the benefit of the notification to the buyer and would agree with the learned DR's submissions that the buyer be beware, of what he is buying. (c) We do not uphold the ground of refusal of refund based on Rule 57C of the Modvat rules. Since the goods if exempted, subsequently the Modvat credit could be reversed. 5. The Order of the lower authorities is, therefore, confirmed as regards the rejection of the refund based on the fact that Classification Lists were approved and were not challenged and cannot be challenged now by the buyer's refund application. 6. In view of our above findings, the appeal is rejected.
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2003 (1) TMI 746
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... ... ..... N. Srikrishna, JJ. ORDER Appeal dismissed as withdrawn
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2003 (1) TMI 745
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... ... ..... peal of Commissioner of Central Excise in the case reported in 7996 (82) ELT 95 has been dismissed by the Apex Court as reported in 7997 (94) A5. The same view has been followed in Pawan Tyres case, 2000 (126) ELT 106. In view of these binding decisions, we also find that no further case or cause arose to reject the refund on the grounds, as arrived at by the Lower Authority, i.e. on "unjust enrichment". In the facts of the case, we notice, it has not been doubted by the Commissioner as he observed "there is no doubt that the adoption of lower sales tax rate while computing the assessable value for discharging duty liability was resulted in payment of duty in excess". Therefore there was no reason for him to reject the claim. (d) Since the refund has been rejected on no other grounds, we would consider the refund to be in order otherwise and should be paid. 6. In view of our findings, the order of the lower authority is set aside and the appeal is allowed.
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2003 (1) TMI 744
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... ... ..... nted goods were smuggled goods. No fresh enquiry, as observed above, was conducted from M/s. Sethi Electronics, from whom some of the goods in question as detailed in the show cause notice, had been purchased by the appellants. No inference or presumption about the smuggled character of the goods for ordering their confiscation under Section 111(d) of the Act, in the light of the facts and circumstances of the case, referred to above, could be legally drawn, as had been done by the adjudicating authority in the instant case. No personal penalty under Section 112(b) of the Customs Act also could be imposed on the appellant No. 2. 13. In view of the discussion made above, the impugned order of the adjudicating authority (Commissioner of Customs - General), cannot be sustained and the same is set aside. The seized goods are also ordered to be released to the appellants. Both the appeals of the appellants are allowed with consequential relief, if any, in accordance with law.
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2003 (1) TMI 743
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... ... ..... J. ORDER Delay is condoned. The appeal is dismissed.
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