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Showing 1 to 20 of 532 Records
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2006 (5) TMI 566
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... ... ..... ave to submit the objections to the designated officer of the Municipal Corporation and await the Government decision and thereafter, if aggrieved, take appropriate legal steps. This disposes of prayer Clause (b) of Notice of Motion No. 64 of 2006 and Notice of Motion No. 226 of 2006. (c). The objections in pursuance of the notice published will be considered and a report will be made by the Delegate of the Municipal Commissioner to the State Government, preferably within three months from 22nd May 2006. (d). The State Government will take its decision and issue necessary notification within two months from receipt of the report. (e). All Motions stand disposed of. (f). No order as to costs. 28. Before we part from these Motions, we make it clear that while deciding these Motions, we have gone into those aspects which were necessary for that purpose. All other aspects, on which we have not expressed our opinion, will be examined when the Petition is finally heard and decided.
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2006 (5) TMI 565
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... ... ..... it has to be held that while making payment or distributing dividend after passing of the winding up order, the dues payable to the secured creditors have to be verified and calculated. For the purpose of Section 529 and 529A of the Act, all the secured creditors including those having second charge are treated equally and their claims cannot be differentiated. Similarly, the claims of all the workmen have to be calculated and accordingly in terms of Sections 529(3) and 529A of the Act, payment is to be made in the ratio and proportion specified therein. 21. Accordingly, it is held that the Committee while recommending payment/distribution of dividend has incorrectly not taken into consideration the dues payable to Indian Bank as a secured creditor holding a second charge. The Committee shall accordingly calculate the proportion and ratio in which the payment is to be made in the light of the observations given above. The report and the objections are accordingly disposed of.
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2006 (5) TMI 564
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... ... ..... upra) case, the modvat credit on the Capital Goods cannot be denied on the Capital Goods cleared when the Capital Goods are used both in the dutiable and exempted goods. Also for the period subsequent to 30.09.2002, the products have been cleared on payment of duty. Hence, it cannot be said that the Capital Goods have been used exclusively for the production of exempted goods. As regards the clearance of used Capital Goods, it is covered by the Tribunal decision in the case of Madura Coats Pvt. Ltd. (supra). The ratio of the Larger Bench decision in the case of Sterilite Industries (supra) that the goods cleared by a job worker under Notification 214/86 should not be deemed to be exempted goods, would also apply. In view of the above points, we feel that the impugned order has no merits. The Cenvat credit availed cannot be demanded. The appellants are not liable for penalty. Hence, we allow the appeals with consequential relief, if any. (Pronounced and dictated in open Court)
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2006 (5) TMI 563
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... ... ..... lty of the offence punishable under Section 138 of the Negotiable Instruments Act as complainant has proved bouncing of the cheque Ext. P 1 for want of sufficient fund in the account maintained by the accused and failure to pay the amount, in spite of the demand in the second notice, issued on 13-3-1998, as discussed above. 9. Accordingly, the respondent is convicted of the offence punishable under Section 138 and he is sentenced as follows i. He shall undergo imprisonment for a day until the rising of the Court on 4-12-2006, when he shall appear to receive the sentence. ii. He shall also pay a compensation of Rs. 2 lakhs on or before the said date, failing which he shall undergo simple imprisonment for six months. The compensation amount if collected shall be paid to the appellant/complainant. iii. The accused will have his option to pay the amount directly to the complainant and to produce the necessary discharge from the complainant before the said date. Appeal is allowed.
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2006 (5) TMI 562
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... ... ..... made by this Court in this revisional applications are only for the purpose of the matter or points concerning revisional applications and this Court has not entered into merit of the case and the learned Magistrate will arrive at his own decision on the basis of evidence and materials on record without being influenced in any way by the observations of this Court. 35. This order will govern both the criminal revisional applications bearing C.R.R. No. 1142/96 and C.R.R. No. 2753/96. 36. Criminal Section is directed to send a copy of this order to the learned CJM, Jalpaiguri, learned ACJM, Jalpaiguri and the learned Judicial Magistrate, 1st Court, Jalpaiguri for information and necessary action and is also directed to send down the Lower Court Records of G.R. Case No. 1275 of 1994 to the concerned Court below. Later Let xerox certified copy of this order be given to the parties within two weeks from the date of making of such application on payment of proper fees and charges.
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2006 (5) TMI 561
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... ... ..... amount covered by Ext.P1 or whether it is less than the amount covered by Ext.P1 is a material aspect as regards the alleged liability on that count. In order to deem that one had committed offence under Section 138, the amount covered by the cheque shall be either in discharge of the liability incurred by the drawer, either in full or in part. It cannot in any way in excess of the liability incurred. Unless the complainant proves that the liability to be settled is to the tune of the amount covered by Ext. P1, he could not have made use of that cheque for such liability. Therefore, Ext. P1 cheque cannot be stated to be one issued in discharge of the liability to the tune of the amount covered by it, which was really issued, as is revealed by Ext.D1, as the price amount for 28 numbers of mixies, which the complainant had not supplied. Therefore the acquittal of the accused cannot be stated to be unjustified to invite interference in the appeal. Appeal fails and is dismissed.
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2006 (5) TMI 560
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... ... ..... tory or curative legislation. It creates substantive rights in favor of benamidars and destroys substantive rights of real owners who are parties to such transactions and for whom new liabilities are created by the Act. A statute which takes away the rights of a party must be strictly construed. The attempt of Defendant No. 1 is to invoke the bar under the Act and thereby take away the right of the plaintiff. To this extent, the statute must be strictly construed and consequently the exclusionary clause must be given its full play. Looked at from this perspective also, it is not possible to conclude that the plaintiff has not made out any case or that the plaint requires summary rejection. 31. Under the circumstances, Issue No. 1 is answered in the negative. 32. Needless to say, any observations made are only for deciding the preliminary issue. Evidence has yet to be recorded in the case and, Therefore, the observations made will not prejudice any of the parties at the trial.
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2006 (5) TMI 559
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... ... ..... suant to the impugned Award shall remain stayed during the hearing of the appeal. Since the order of the Division Bench is not a speaking one, we set aside the same and remit the matter to the Division Bench of the High Court for fresh disposal and passing a speaking order after hearing the respective parties. We, therefore, restore the D.B. Special Civil Appeal No. 85, 2004 to the file of the High Court and request the Division Bench to dispose of the same afresh on merit and in accordance with law, without being influenced by any of the observations made by us in this judgment. 13. Till the disposal of the D.B. Special Civil Appeal No. 85, 2004 by the High Court, the interim order dated 13.12.2004 passed by this Court, ordering reinstatement of the respondent and staying the recovery of the back-wages shall remain in force. 14. The original record, if any, received from the High Court shall be sent back to it along with a copy of this order. The appeal is allowed. No costs.
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2006 (5) TMI 558
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... ... ..... ew of the matter and in view of the discussions made herein above, we are of the view that the eviction petition filed by respondent No.1 was maintainable in law and respondent No.1 was also entitled to obtain a decree/order of eviction. It is, however, made clear that the right of inheritance of the respondents to the properties in question has not been decided in the present proceedings. Any observation or findings in this judgment cannot be construed as final findings as to such right. For the reasons aforesaid, the appeal stands dismissed. There will be no order as to costs. However, the decree/order for eviction shall not be executed by the respondents for a period of 6 months from this date if, within a month from this date, the appellants file an undertaking to this Court that they shall deliver peaceful and vacant possession of the properties in question to the respondents. In default of filing the undertaking, the decree/order of eviction shall be executed forthwith.
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2006 (5) TMI 557
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... ... ..... is set aside accordingly. 9. The question, however, would now arise as to whether in the facts and circumstances of this case, the respondent should be sent back to jail. The respondent is aged about 60 years. The offence is said to have been committed 15 years back. He was arrested by the police. He might have been in custody for some time. 10. Having regard to the peculiar facts and circumstances of this case and keeping in view the fact that the respondent had deposited the entire amount before the First Information Report was lodged, we are of the opinion that the interest of justice would be subserved if any substantial punishment is not awarded. Accordingly, we impose a fine of ₹ 4,000/- upon the respondent, which will be apart from the amount of fine of ₹ 1,000/- imposed by the learned Trial Judge. It is directed that in default of the payment of the said amount, the respondent shall undergo simple imprisonment for three months. The appeal is thus allowed.
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2006 (5) TMI 556
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... ... ..... ators, pendente lite. Interim order passed earlier will continue till possession is taken by the Administrator. 77. After the judgment is delivered Mr. A. K. Mitra, Senior Advocate appearing for Mr. R. S. Lodha prays for stay of operation of this judgment and order. Such prayer is opposed by Mr. Sarkar and Mr. Das and also Mr. Sen. Considering that this matter was heard at length and considerable points are involved in this matter, I think conditional stay should be granted. 78. Accordingly Joint Administrators pendente lite appointed herein shall stay their hands for a period of three weeks after reopening of summer vacation. At the same time Mr. R. S. Lodha shall not act as a Chairman and Director in the Board of any of the Companies on the strength of the shareholding of Priyamvada Devi Birla (Debased) for a period of three weeks. It is made clear that Mr. R. S. Lodha is free to act as a Director or Chairman elected with his own qualifying shareholding, if he is appointed.
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2006 (5) TMI 555
Murder - Challenged the reversal of acquittal and thereby convicting - gun shot injury - High Court referred to the Principles and Practice of Medical Jurisprudence - HELD THAT:- The Trial Court disbelieved the evidence of P.W.2 and P.W.3, But P.W.3 had changed his statement regarding place of occurrence where Chatarvati had sustained injuries. The ante-mortem injuries found on the dead body of the Ram Gopal clearly belied the statements of P.Ws. 1, 2 and 3. The High Court, however, held that P.Ws.1 and 2 were not related to the complainant.
We may notice that admittedly the accused No. 6 was not carrying any weapon. He admittedly had a dispute with Veer Singh. Veer Singh accompanied the complainant to the police station. No role had been attributed to the said accused. It is not clear as to why he was implicated. He did not have any dispute with the deceased, namely. Ram Gopal and Chatarvati. The prosecution did not lead any evidence as to why he would join the appellant Nos. 1 and 2 in commission of the crime. Similarly, appellant Nos. 3 and 4 were cousins. Except making a statement that they had been carrying some country made pistols and fired from their respective weapons, no evidence has been brought on record to that effect. We also fail to understand as to why the Investigating Officer, who took over the investigation from P.W.7 and who had investigated only for 8 days, had not been examined. No explanation whatsoever has been offered by the prosecution in this regard.
The version of the prosecution is that the lands belonging to P.Ws.2 and 3 were half a kilometer away and they do not have any field near the field of the deceased. There was no standing crops in the field. The view of the Trial Court having regard to the aforementioned facts and circumstances of the case, was, therefore, a possible view and as such we need not go into the other contentions as regard the motive or time of death, vis-a-vis, the medical opinion etc.
Thus, we are of the opinion that the High Court was not correct in arriving at the conclusion that the view of the Trial Court was wholly perverse and could not be sustained on me materials brought on record by the prosecution. This appeal is, therefore, allowed. The impugned judgment of the High Court is set aside. The appellants are on bail. They are discharged from their bail bonds.
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2006 (5) TMI 554
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... ... ..... This amount was added on protective basis in the hands of Shri Ramesh. The AO in the order of Shri Ramesh mentioned that on enquiry, it is found that funds of M/s M.H.B.C.S. were used for advancing the same through Ramesh. Such enquiry has not been confronted to us. This amount is not appearing in the documents maintained by Smt. Gayathri. There is no material for making such addition in the hands of assessee. 119. The learned senior counsel appearing on behalf of the Revenue supported the order of AO. 120. We have heard both the parties. The AO has clearly mentioned that funds of M/s M.H.B.C.S. were used for advancing the sum. No evidence collected to suggest that such advance is on behalf of assessee and he has to receive back such advance. Such advance is not reflected in the documents maintained by Smt. Gayathri. Hence there is no justification of making addition of ₹ 3 lakhs in the hands of assessee. The same is deleted. In the result, the appeal is partly allowed.
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2006 (5) TMI 553
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... ... ..... y was effected from the present petitioner, a recovery of 1 k.g. of a substance containing diacetylmorphine was made from the co-accused (Naresh Kumar) and that the State was prosecuting the present petitioner under Section 21 read with Section 29 of NDPS Act on account of the recovery from the co- accused. The learned Counsel for the State, however, was unable to point out any other evidence other than the secret information to link the present petitioner with the alleged recovery from the co-accused (Naresh Kumar). In view of the decisions referred to above and in view of the facts and circumstances of this case, I feel that the petitioner would be entitled to bail. The petitioner has already been in custody since 13.07.2005. Accordingly, the petitioner is directed to be released on bail on furnishing a personal bond in the sum of ₹ 25,000/- with two sureties of the like amount to the satisfaction of the concerned court. This bail application stands disposed of dusty.
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2006 (5) TMI 552
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... ... ..... he person in possession of the blank cheque can enter the amount of the liability and present it to the bank. When a blank cheque is issued by one to another, it gives an authority on the person, to whom it is issued, to fill it up at the appropriate stage with the necessary entries regarding the liability and to present it to the bank. In the light of this, the accused cannot be absolved of the liability. He is, therefore, liable for conviction, reversing the impugned judgment. 3. Accordingly, I convict the accused and sentence him as follows (1) He shall undergo imprisonment for a day until the rising of the court on 2.8.2006, on which date, he shall appear in the court below to receive the sentence. (2) On or before that date, he shall pay a sum of ₹ 50,000/- towards compensation, failing which, he shall undergo simple imprisonment for a period of three months. (3) The compensation, if deposited, shall be paid to the appellant/complainant. Appeal is allowed as above.
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2006 (5) TMI 551
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... ... ..... 9/420 and 120B IPC are clearly an abuse of the process of court and interference by this Court is expedient in the interest of justice. This is a case of extreme exception where the High Court ought to have exercised its inherent jurisdiction and power to set aside the unwarranted and unjustified order of the Magistrate impugned before it by the appellants. 11. For the aforementioned reasons, we quash the impugned order of the High Court of Judicature at Patna dated 13.01.2005 passed in Criminal Misc. No. 11930 of 2004. Consequently, the complaint filed by the Complainant and subsequent order dated 8.8.2003 of the Judicial Magistrate, Gaya, in Complaint Case No. 298 of 2003 - T.R. 808/03 whereby and whereunder cognizance of offence under Sections 406, 419, 420, 120B, IPC, has been taken against the appellants and summons have been ordered to be issued against them for facing trial for the above-said offences shall also stand quashed. 12. The appeal stands allowed accordingly.
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2006 (5) TMI 550
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... ... ..... e contemnors deserve severe punishment. This will set an example for those who have propensity of disregarding the court's orders because of their money power, social status or posts held. Exemplary sentences are called for in respect of both the contemnors. Custodial sentence of one month simple imprisonment in each case would meet the ends of justice. It is to be noted that in Re Sri Pravakar Behera (Suo Motu C.P. 301/2003 dated 19.12.2003) 2003 (10) SCALE 1126, this Court had imposed costs of ₹ 50,000/- on a D.F.O. on the ground that renewal of license was not impermissible in cases where licenses were issued prior to this Court's order dated 4.3.1997. That was the case of an officer in the lower rung. Considering the high positions held by the contemnors more stringent punishment is called for, and, therefore, we are compressing custodial sentence. 21. The contempt petition No. 83 of 2005 with I.A. Nos.1503 and 1504 in WP (C) No. 202 of 1995 are disposed of.
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2006 (5) TMI 549
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... ... ..... ot be denied to the impugned goods....." Counsel for the revenue contended that the above-mentioned finding given by the Tribunal is contrary to the record and the case put forth before the Tribunal. Mr. V.Lakshmikumarn, learned advocate appearing for the respondent submits that the credit taken by the respondent under Rule 57-A and 57-B on "any other products manufactured in the same factory" has been off-set by payment of the applicable/full duty on the finished goods. No such clear cut finding has been recorded by the Tribunal. Since the Tribunal has not recorded any clear cut finding on this point, we accept these appeals; set aside the orders passed by the Tribunal and remit the cases back to the respective Tribunal for a fresh decision in accordance with law. All contentions except the finding recorded by the Tribunal on the question of limitation shall be open to the parties. The Appeals are allowed in the above terms. Parties shall bear their own costs.
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2006 (5) TMI 548
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... ... ..... any other notification" "shall not be taken into account. 4. Clearly computation made by the Revenue is in violation of the terms of the small scale exemptions. Duty relief is due to the appellant on this count. Accordingly, duty demand of ₹ 2,21,672/- is reduced to ₹ 1,82,672/-. 5. Another submission of the learned Counsel is that penalties imposed on the appellants are not warranted in the facts of the case and in view of the judgment of the Hon'ble Apex Court in the case of Armit Foods 2005 (190) ELT 433. It is being pointed out that a penalty imposed under Rule 173Q without mentioning the specific sub-rule attracted is not sustainable. This submission of the appellant merits acceptance since the impugned order does not specify the sub-rule which is being relied upon. 6. In the result, appeals are partly allowed by reducing the amount of duty as indicated above and setting aside the penalties imposed. (Dictated & pronounced in the Open Court.)
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2006 (5) TMI 547
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... ... ..... s recorded in the assessment order, the first appellate authority should have considered this claim and decided the issue in accordance with law. However, considering the entire facts and circumstances of the case and the submissions made by both the sides before us, we are of the view that this is a fit and proper case for restoring the issue back to the file of the assessing officer with a direction to decide the issue of claim of deduction Under Section 80HHC which was raised before the CIT(A) for the first time by the assessee, in accordance with law, of-course, after giving effective opportunity of hearing to the assessee. The assessee is also directed to co-operate with the assessing officer by providing necessary details that would be required by the assessing officer for deciding the issue. 10. In the result, the appeal of the assessee is allowed for statistical purposes only. 11. This order was pronounced in the open Court after the conclusion of hearing on 5-5-2006.
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