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Showing 1 to 20 of 490 Records
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2006 (6) TMI 539
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... ... ..... is well justified to present the cheque for encashment. The cheque even if it is issued as a security for payment, it is negotiable instrument and encashable security at the hands of payee. Therefore, merely because the drawer contends that it is issued as security is not a ground to exonerate the penal liability under Section 138 of the N.I. Act. 5. It is argued that cheque was presented despite issuance of notice as per Ex.D.6 on 16.3.1999. But the postal cover pertaining to Ex. D.6 marked at Ex.D.7 shows that Ex.D-6 is posted on 22.3.1999, and they are posted after dishonour of the cheque. 6. In view of the reasons and discussions made above, the order of acquittal is bad in law and same is set aside. The accused is convicted for the offence punishable under Section 138 of the N.I. Act and sentenced to pay a fine of Rs. 4.74.825/- and in default to suffer S.I. for a period of one year. 7. Out of the fine amount, the complainant shall be paid compensation of Rs. 4,30.000/-.
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2006 (6) TMI 538
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... ... ..... ful, in view of our discussion and ultimate conclusion, we are not inclined to show any leniency or indulgence to those who unsigned the applications merely because they were permitted to write written examinations. It is not in dispute that the applicants are highly qualified medical practitioners and after successful in their course, they registered their names in the Medical Council of India. We have already referred to various instructions mentioned in the Notification as well as in Information Brochure. In addition to the same, every application form was enclosed with duly filled up specimen form to enable the applicant to fill up all the columns wherever required, which include signature in the places indicated. In such circumstances, we do not find any merit in the contentions raised by the learned Counsel for the petitioners or error or infirmity in the impugned order of the respondent. Consequently, all the writ petitions fail and are accordingly dismissed. No costs.
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2006 (6) TMI 537
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... ... ..... almiya Cement v. Galaxy Traders and Agencies Ltd. 2001 CriLJ 972, the accused must fulfil his liability as early as possible. The complainant is definitely entitled to get his money back within reasonable time. The imposition of such condition of deposit, considering the scheme of the N.I. Act, cannot be said to be improper as contended by the petitioner's advocate. The power of the Appellate Court of imposing condition while suspending the sentence, and even granting conditional bail in such matter is within the frame work of law and the record. 7. Considering the scheme and purpose of the N.I. Act and in view of the judgment given by this Court in Maheshwar Kale (supra) and the decision of the Apex Court in Stanny Felix Pinto (supra), I am not inclined to interfere with the conditional order passed by the Courts below while suspending the execution and sentences, in appeal arising out of N.I. Act. For the aforesaid reasons, this writ petition is dismissed with no costs.
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2006 (6) TMI 536
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... ... ..... nt charged by them in the invoices, though they have paid service tax calculated on these invoices they have not received any payment of this from their client. I find there is a force in the appellants’ contention that if Service tax is to be paid, it has to be worked out on the basis of gross amount received by them as being inclusive of Service tax. Since this has not been considered by lower authorities the matter should be remanded back to the adjudicating authority. 6. Accordingly, the impugned order is set aside and the matter is remanded back to the original adjudicating authority to consider the plea of the appellant, as regard gross amount received by them being inclusive of Service tax component. The original adjudicating authority will decide the matter afresh including the imposition of penalty and interest after granting the appellant an opportunity of personal hearing. Appeal is allowed by way of remand. (Dictated & pronounced in the Open Court.)
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2006 (6) TMI 535
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... ... ..... tion against the order of issuance of process. There is nothing mentioned and/or even observed that there is total bar to file petition under Section 482 of Criminal Procedure Code and/or petition under Article 227 of the Constitution of India. 12. The Apex Court's decision already referred above, nowhere prohibited or expressly barred to invoke Section 482 of Criminal Procedure Code or Article 227 of the Constitution of India against the order of issuance of process. 13. After hearing both the parties in the present facts and circumstances, in my opinion, the case has been made out to entertain the present petition under Section 482 of Criminal Procedure Code read with Article 227 of the Constitution of India. However, as observed at the stage of final hearing, the Court may pass an appropriate order even in such petition. 14. Rule. Rule returnable within four weeks. 15. Interim relief in terms of prayer Clause (c) granted by order dated 17-1-2006, to continue till then.
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2006 (6) TMI 534
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... ... ..... r the offence Under Section 138 of N.I. Act imposed on him by the learned Judicial Magistrate No. II, Pollachi in C.C. No. 73 of 2002 dated 5.7.2005 and modifying the sentence into one of three months SI and confirming the fine of ₹ 5,000/- in C.A. No. 340 of 2005 on the file of Additional District and Sessions Judge and Presiding Officer, special Judge for EC Act Cases at Coimbatore dated 21.4.2006, is suspended on his executing a bond for a sum of ₹ 10,000/- (rupees ten thousand only) with two sureties each for a like sum to the satisfaction of learned Judicial Magistrate No. 2, Pollachi subject to the condition that the petitioner shall appear before the said Court on the first working day of every month pending the revision. The petitioner shall execute the bond within a period of three weeks from the date of receipt of copy of this order, failing which this order shall stand automatically cancelled. Accordingly, this Crl. M.P. No. 3498 of 2006 is disposed of.
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2006 (6) TMI 533
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... ... ..... g out of the amended plaint. The parties shall only be permitted to lead fresh evidence on the additional issue(s) framed. The plaintiff shall not be given more than two opportunities to lead evidence. The defendants shall also not be allowed more than two opportunities to lead its evidence. Keeping in view the fact that the case is an old one, the learned trial Court shall make efforts to decide the case as early as possible and in any event not later than 31st March, 2007. The parties who are present through their learned Counsel are directed to appear before the learned trial Court on 19th July, 2.006. The learned trial Court shall not issue notice to defendant No. 2 who was already ex parte and shall only issue notice to defendant No. 1 through his Counsel for the next date fixed. The Registry is directed to send back the records of the learned trial Court so as to reach well before the next date of hearing. 11. The revision petition is disposed of in the aforesaid terms.
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2006 (6) TMI 532
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... ... ..... ill have to be declared as null and void. The marks obtained in the Internal Assessment, both Theory and Practical, will have to be added to the Theory Oral and Practical/Clinical marks in terms of the Medical Council of India Regulations as clarified. The candidate would have to obtain 50% marks in theory and practical, in the subject and also obtain aggregate of 50% marks. Insofar as Rule 56.2.1(iii) is considered that does not deal with the subject, as Rule 56.2, is Heads of Passing. That Rule will have to be read with Rule 57 as it now stands. 11. Once we hold that Rule 57(D) is ultra vires, the respondent University will have to recalculate the marks based on what we have stated and as how we have understood the Regulation 12 as clarified by Medical Council of India. In the light of that Petitions made absolute in terms of prayer Clauses (a), (b), (e) and partly in terms of prayer Clause (c) to the extent of Rule 57(D) in terms of Notification No. 05/2006 dated 20-2-2006
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2006 (6) TMI 531
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... ... ..... ) RLT 461 (CESTAT-Mum.) 2004 (166) ELT 233. 4. Ld. DR pointed out that in view of the conflicting decision regarding interpretation of Section 76 of Finance Act, the matter was referred to Larger Bench in the case of ETA Engineering Ltd. and the Larger Bench of the Tribunal reported as ETA Engineering Ltd. Vs. CCE, Chennai reported in 2004 (65) RLT 669 (CESTAT-LB) 2004 (174) ELT 19 has not approved the view taken by the Tribunal in the case of R.B. Bahutule Vs. Commissioner reported in 2004 (62) RLT 461 (CESTAT-Mum.) 2004 (166) ELT 233. The Larger Bench held that Section 76 of Finance Act, the penalty shall not be less than ₹ 100/- per day which may extend to ₹ 200/- for every day during which such failure continues. In the present case as the deposit of service tax was made after the due dates and delay is ranging from 95 days to 187 days. Therefore, in view of the above Larger Bench decision of the Tribunal, I find no merit in the appeal, the same is dismissed.
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2006 (6) TMI 530
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... ... ..... en this point before the Tribunal. While passing judgment Tribunal has not referred to the said plea of the appellant and no decision on the same has been given. 3. We find that the above contention of the appellants to be correct. It is further seen that the ld. Member, who was the author of the said decision has since retired and as such appellants grievance on the point of limitation are required to be heard a fresh and disposed accordingly). As such, we allow the miscellaneous application and fix the appeal on 17-7-2006 for passing orders on the point of limitation. 4. Application is disposed of in above terms. (Pronounced in Court on 15-6-2006)
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2006 (6) TMI 529
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... ... ..... er consideration was not given to this plea by the adjudicating authority. The order rejects their claim quoting the decision of the Commissioner(Appeal) in an earlier case. I distinguish the decision on the ground that during the material time of the order cited above, there was no provision in the Service Tax to consider cum-tax value. With effect from 1-9-2004 changes were made to this effect in Section 67. The period covered under the impugned issue is from June 2004 to March 2005. Hence I am of the firm view that the contention of the appellant should be positively considered. Hence I hold that the tax should be re-worked giving them the benefit of “cum-tax”. It is needless to stress that the interest should commensurate with the reduced amount of tax. To this effect, the order of the lower authority warrants modification and the appellants stand eligible for the consequential benefit. 5. As stated above, the order of the lower authority stands modified.
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2006 (6) TMI 528
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... ... ..... . In the circumstances, I find absolutely no reason to interfere with the impugned orders. The Appeal Court was right and justified in directing the accused to pay the amount, indicated in the order, as a condition for suspending the sentence/compensation and it is necessary in the interest of justice. In the result, the writ petitions and the criminal revision application fail and are accordingly dismissed. Rule discharged. 12. At this stage, Mr Jha, learned counsel for the petitioner, prays for six weeks time to pay the amount as per the impugned orders. Time to make payment as per the impugned orders in all the three petitions stands extended for a period of six weeks from today. At this stage, Mr Padam, learned counsel for the petitioner in the third petition, states that the petitioners may be given liberty to approach the Sessions Court for reduction of the amount of three lakhs, directed to be paid as per the impugned order. I am not in favour of granting such liberty.
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2006 (6) TMI 527
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... ... ..... bitral proceedings was the law enforceable in India. The award made by the arbitral tribunal directing payment to the Petitioner of the amount of Swiss Fr.1,453,316 is contrary to the law prevailing on indemnity in India. Therefore, the award can be said to be contrary to the public policy of India. The Petitioner itself has stated that part of the award by which the arbitral tribunal directs payment of Swiss Fr.1,453,316 is severable and therefore the court may refuse to enforce that part of the award. 16. In the result, therefore, it is held that the foreign award at Exh. A & B are enforceable, save and except that part of the award at Exh. A which directs payment of Swiss Fr.1,453,316 by the Respondent to the Petitioner. 17. Petition is thus granted in terms of prayer Clauses (a) & (b) subject to the exception as indicated above. Petition is also granted in terms of prayer Clause (c). The Respondent is given six weeks time to file affidavit. Put up after six weeks.
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2006 (6) TMI 526
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... ... ..... ision in the Act which restricts the disclosure of information merely on the ground of the fact that matter is pending with the Consumer Court. In the instant case, the Court has not forbidden the disclosure of investigation report or inspection of record. 11. The CPIO has also not mentioned the name of the appellate authority of the Bank to whom the appellant would have filed his 1st appeal. 12. In view of the above, the CPIO and the Chief Manager is directed to furnish a certified copy of the information sought within 15 working days of issuance of this decision and provide access to the relevant file for inspection Under Section 2(f)(i) of the Act. 13. The CPIO is also required to Show Cause as to why penalty Under Section 20 (1) of the Act should not be imposed for not complying with provisions of the Act. He is therefore directed to appear before the Commission at 2 30 pm on July 14, 2006 to give his explanation in this regard. 14. The appeal is accordingly disposed of.
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2006 (6) TMI 525
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... ... ..... ncluding 4(1) Notification. The Notification issued in the name of dead person is a nullity and the proceedings cannot be continued based on the said Notification. 5. This Court, in Muthusamy v. The State of Tamil Nadu 1993 1 M.L.J. 217; Devaraj v. State of Tamil Nadu MANU/TN/0414/2003MANU/TN/0414/2003; Asiya Mariyan v The Secretary to Government of Tamil Nadu MANU/TN/0275/2000MANU/TN/0275/2000; and in series of other decisions, held that Notice/Notification issued in the name of dead person and the proceedings with respect to the said lands cannot be sustained. By applying the said principle, we accept the contention of the learned Counsel for the appellant and quash the Notification issued under Section 4(1), dated 14.06.1995. Consequently, Writ Appeal is allowed. No costs. Connected Miscellaneous Petition stands closed. It is made clear that the respondents are free to proceed with the acquisition, if they so desire, by initiating fresh proceedings in accordance with law.
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2006 (6) TMI 524
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... ... ..... adevi v. V. Manikandan (supra) certified copy of Form-32 was not produced but only X-ray copy of extract of Form-32 was produced and Court did not believe the said extract observing that "there are instances where the extract of Form-32 produced by the accused Director to show that he or she had resigned from the company which was registered by the ROC turned out to be a false and fabricated one". 11. In the present case as the petitioner has filed the certified copy issued by the ROC itself, authenticity thereof cannot be disputed. Such a document is conclusive of the fact that the petitioner had resigned w.e.f. 20.8.1994. Therefore, she was not in-charge or responsible for day-to-day affairs of company and could not be so. 12. The above petitions are accordingly allowed and the criminal complaint Nos. 1337/2004, 1362/2004 and 1341 /2004 respectively filed against the petitioner which are pending in the Court of Mr. Rakesh Kumar, MM are quashed qua the petitioner.
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2006 (6) TMI 523
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... ... ..... unsel for Birlas as recorded in the order, issuing of this order should be deferred. The counsel for the petitioners who was present, pointed out that the undertaking was with reference only to the two pending proceeding which were to conic up for hearing before this Board on 21.6.2006 and not in relation to this order. I have seen the order of the court wherein the undertaking has been recorded as "It is submitted by the learned Advocate General appearing on behalf of Mr. G.P. Birla that even if the matter is fixed before the Company law Board they will try to have an adjournment in the said matter". Thus, I do not find any mention about the present petition, the hearing of which has already been concluded, in the said order and as such I am issuing this order, noting that, the other two petitions, which came up for hearing on 21.6,2006, were adjourned as per the order of the High Court. 41. Petition is disposed of in the above terms without any order as to costs.
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2006 (6) TMI 522
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... ... ..... provisions of Section 11 of the Act. Mr.Pandya therefore, had no jurisdiction to make the award. It appears that because the respondent was aware of the patent illegality of the action of Shri.Pandya and therefore, the respondent was so anxious to deny to the petitioner the remedy for challenging the Award made by Shri.Pandya. Because except stopping scrutiny of the award made by Mr.Pandya by the Court, the respondent had no other means to keep the award in tact. As I find that the constitution of Arbitral Tribunal was contrary to the arbitration clause and the Law, the Award made by the sole Arbitrator is liable to be set aside for that reason, I do not propose to go into the other grounds which are raised on behalf of the petitioner for challenging the Award. In the result therefore, the petition succeeds and is allowed. The Award impugned in the petition is set aside. The respondent is directed to pay cost of this petition to the petitioner as incurred by the petitioner.
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2006 (6) TMI 521
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... ... ..... e of pending arbitration open to be decided before the appropriate forum. Conclusion 17. G.A. No. 531 of 2006 and G.A. No. (337of 2006 are disposed of by confirming the interim order passed by Sengupta, J on March 2, 2006 as modified on March 10, 2006. The bank guarantee furnished by the plaintiff would continue till the disposal of the suit. The plaintiff must keep the same renewed from time to time until further orders of this Court and till the disposal of the suit whichever period is earlier. 18. G.A. No. 1164 of 2006 is dismissed. 19. G.A. No. 1649 of 2006 is dismissed. 20. There would be no order as to casts on any of the applications. 21. It Is further made clear that I have not decided the rights and privileges of the parties in question in the pending arbitration proceeding before the Hongkong Arbitral Tribunal and leave the issue open to the parties to agitate before the appropriate forum. Urgent xerox certified copies would be given to the parties, if applied for.
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2006 (6) TMI 520
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... ... ..... LB. Section 10 would therefore, in my view, apply where the issues in both the proceedings directly and substantially are the same and that where the decision in the previous suit would definitely affect the decision in the later proceedings. The provisions of Section 10 are mandatory, in support of which beneficial reference is invited to a decision of the Apex Court in Manoharlal Chopra v. Rai Bahadur Ray Raja Seth Hiralal . It is far from doubt from my foregoing conclusions that the conditions of this Section are duly met in the present case before me. The provisions of Section 10 are clear and definite. In view of this, the subsequent CLB proceedings must await the decision of the earlier pending suit as rightly pointed out by learned Senior Counsel representing the Company. Accordingly, the company petition is stayed till disposal of the civil suit in C.S. No. 128/2003 on the file of the High Court of Madras as prayed for in the company application. Ordered accordingly.
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