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2006 (9) TMI 624
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... ... ..... ner - Appellant would be entitled to file an application for amendment of writ petition questioning the validity of the said purported rules. Respondents shall file a counter affidavit within two weeks from the date of filing the said application. Keeping in view the importance of the question involved, we are of the opinion that the matter should be considered by the Division Bench itself. We, however, set aside the impugned judgment of the Division Bench and remit the matter for fresh consideration in accordance with the directions and observations made hereinbefore. For the views we have taken, it is not necessary to deal with the other contentions raised by the parties herein at this stage. In view of the fact that the matter is pending for a long time, we would request the High Court to consider the desirability of disposing of the matter expeditiously and preferably within eight weeks from the date of receipt of copy of this order. The appeal is disposed of accordingly.
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2006 (9) TMI 623
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... ... ..... id sum of Rs. 75,000/-, ought not to have been presented to the bank for encashment and, upon its dishonour for insufficiency of fund, on 28.8.96 and on 17.9.96, the prosecution under Section 138 N.I. Act could not have been launched against the accused-petitioner. Considered thus, it is abundantly clear that the prosecution launched against the accused-petitioner was wholly impermissible in law and the accused ought not to have been he have been convicted under Section 420 IPC, for, ingredients of the offence of cheating, as defined under Section 415 IPC, were not present at all. 34. Because of what have been discussed and pointed out above, this revision succeeds. The impugned judgments and orders are hereby set aside. The accused-petitioner is held not guilty of the offences under Section 138 of the N.I. Act and under Section 420 IPC and he is acquitted of the same. 35. With the above observations and directions, this revision shall stand disposed of. No order as to costs.
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2006 (9) TMI 622
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... ... ..... vision petition is allowed in part. (b) The impugned verdict of guilty and conviction of the petitioner under Section 138 of the N.I. Act are upheld. (c) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo imprisonment till rising of court. He is further directed under Section 357(3) Cr.P.C. to pay an amount of Rs. 27,000/- (Rupees twenty seven thousand only) as compensation and in default to undergo S.I. for a period of one month. If realised the entire amount shall be released to the complainant. 11. The petitioner shall appear before the learned Magistrate on or before 30.11.2006 to serve the modified sentence hereby imposed. The sentence shall not be executed till that date. If the petitioner does not so appear, the learned Magistrate shall thereafter proceed to take necessary steps to execute the modified sentence hereby imposed. A reproduction from ILR (Kerala Series)
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2006 (9) TMI 621
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... ... ..... ion, namely section 273B was also incorporated which provides that notwithstanding anything contained in the provisions of section 271D, no penalty shall be imposable on the person or the assessee, as the case may be, for any failure referred to in the said provision if he proves that there as reasonable cause for such failure and if the assessee proves that there was reasonable cause for such failure to take a loan otherwise than by account-payee cheque or account-payee demand draft, then the penalty may not be levied. Therefore, undue hardship is very much mitigated by the inclusion of section 273B in the Act. If there was a genuine and bonafide transaction and if for any reason the tax payer could not get a loan or deposit by account-payee cheque or demand draft for some bonafide reasons, the authority vested with the power to impose penalty has got discretionary power.” In view of the above, the question is answered against the revenue and in favour of the assessee.
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2006 (9) TMI 620
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... ... ..... writ would lie when the case falls under Clauses (iii) and (iv) above. (vi) The bye-laws made by a co-operative society registered under the Tamil Nadu Co-operative Societies Act, 1983 do not have the force of law. Hence, where a society cannot be characterised as a 'State', the service conditions of its employees governed by its bye-laws cannot be enforced through a writ petition. (vii) In the absence of special circumstances, the Court will not ordinarily exercise power under Article 226 of the Constitution of India when the Act provides for an alternative remedy. (viii) The decision in M. Thanikkachalam v. Madhuranthagam Agricultural Co-operative Society (2001) ILLJ 285 Mad is no longer good law, in view of the decision of the seven-Judge Bench of the Supreme Court in Pradeep Kumar Biswas case and the other decisions referred to here before. The reference is answered accordingly. Registry is directed to place the paper before the appropriate bench for its disposal.
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2006 (9) TMI 619
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... ... ..... f compensation is upheld with the further rider that if there is default in payment of compensation, the petitioner shall undergo S.I. for a period of three months. If realised the entire amount shall be released to the complainant. Out of the compensation amount Rs. 15,000/- shall be credited to the costs incurred for the prosecution of this two tier criminal litigation. The balance shall be credited towards the principal and interest due. If any decree is passed by the civil Court, needless to say, credit shall be given to the amount of Rs. 2,85,000/- directed to be paid (if paid) towards principal and interest as directed in this order. 41. The petitioner shall appear before the learned Magistrate on or before 15-12-2006 to serve the modified sentence hereby imposed. The sentence shall not be executed till that date. If the petitioner does not so appear, the learned Magistrate shall thereafter proceed to take necessary steps to execute the modified sentence hereby imposed.
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2006 (9) TMI 618
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... ... ..... rder of the Tribunal which merely follows the two other orders. 7. This court has time and again taken the view that there must be some consistency in the stand of the revenue and they cannot pick and choose cases in which to file an appeal in respect of some assessed and not to file an appeal in respect of identical orders in respect of another assessed. This view has also been expressed by the Supreme Court on several occasions and despite that we find that the revenue insists upon taking such arbitrary decisions for which there is no iota of justification. If the revenue puts forward some reason for its differential treatment, that will, of course, be considered on merits but in this particular case there is no such reason except to say there is no res judicata or estoppel The rule of consistency must be followed by the revenue, which they have failed to do in this particular case. 8. Consequently, we find that no substantial question of law arises in this case. Dismissed.
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2006 (9) TMI 617
Dishonor of Cheque u/s 138 of Negotiable Instruments Act (''N.I. Act') - valid service of demand notice or not - No date of service on notice is mentioned - demanding re-payment of cheque money - presumption u/s 114 of Evidence Act r/w Section 27 of The General Clauses Act of service of notice - Challenged the Summon order - HELD THAT:- As a fact, neither in the-complaint, nor in statement u/s 200 CrPC nor in the counter affidavit any date of service on notice demanding re-payment of cheque money from the applicants is mentioned. No document was also appended along with the complaint so as to indicate the said date. Even during the course of argument, the counsel for the respondent complainant could not point out the date of service of such notice. Thus, in the total absence of date of service of notice demanding payment of the cheque amount, no offence is made out against the applicants.
Moreover, it cannot be said that any such notice was ever served on the applicants and consequently fifteen days period for making the payment of the cheque money can not be counted and unless that is done no offence is made out against the applicants. The contention of respondent complainant that the service is to be presumed also can not be accepted because Section 27 of General Clauses does not takes into it's purview service by private courier.
Consequently, the contention of the learned Counsel for the applicant that the service should be presumed in the present case cannot be accepted as it does not hold good on the provision of the statute itself and has to be rejected. Resultantly, the submission of the counsel for the applicant that in the present case no offence is made out holds good and deserves to be accepted and I hold so.
Summing up from the discussions made above, since, no offence u/s 138 of N.I. Act is made out against the applicants, in absence of date of service of notice of demand on them their summoning order passed by the Special Judicial Magistrate, in complaint case Rajbir Singh v. Deepak Kumar and Anr., u/s 138 of N.I. Act, cannot be allowed to stand and has to be quashed and I order so.
Resultantly, this Criminal Miscellaneous Application is allowed. The summoning order against the applicants is quashed.
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2006 (9) TMI 616
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... ... ..... s inapplicable to the facts of the case at hand. In that case, part payment of the cheque was received from the accused by the complainant prior to the presentation of the cheque to the Bank, which fact was admitted by the complainant. 21. As a result of the above discussion, the appeal deserves to succeed and the judgment dated 31-3-2005 deserves to be set aside. Consequently, the accused is hereby convicted under Section 138 of the Act. Since the accused has paid the amount of the cheque subsequently before the Court and since in the other case a fine of ₹ 5,000/-was imposed upon the accused, in my view, the adequate sentence to be imposed in this case will be the same i.e. fine of ₹ 5,000/- under Section 138 of the Act, which the accused is hereby directed to deposit in this Court within a period of three weeks. In case of default, the accused shall undergo S.I. for fifteen days. In case the fine is deposited, the entire amount shall be paid to the complainant.
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2006 (9) TMI 615
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... ... ..... ion is enforced against a party who violates the order and it is not executed. An order of arrest and placing a party in detention is purely personal, based on the personal act of the individual. The accusation is against that individual, who violates the order of the Court. Under such circumstances, it is for the party to lead the evidence to disprove the accusation, as to whether he has violated the order/decree of injunction. In respect of acts committed with personal knowledge, Power of Attorney cannot speak on behalf of the Principal. Therefore, I am of the opinion that it is not permissible to permit the Power of Attorney to represent the principal to appear and let in evidence in respect of acts of personal knowledge. There is no material irregularity in the order of the Lower Court warranting interference. In the result, the order of the Lower Court is confirmed. Civil Revision Petition is dismissed. No costs. Consequently connected C.M.P. No. 17760 of 2005 is closed.
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2006 (9) TMI 614
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... ... ..... incriminating evidence de hors the disclosure statement comes against him. Admittedly in the present case no incriminating evidence has so far been collected against the petitioner except the disclosure statement of co-accused Bablu. The petitioner says that he is gainfully employed at Bhagalpur and was nowhere near the crime in question that allegedly took place in Delhi. The petitioner has roots in the society. He is stated to be a first time offender. There is no apprehension of his absconding the trial. The Investigating Officer will be within his right to interrogate him as per law. 7. In view of the above and having regard to the facts and circumstances of the case, the petitioner is admitted to anticipatory bail on his executing personal bond in the sum of ₹ 20,000/- with one local surety in the like amount to the satisfaction of the Arresting Officer. He is directed that he should join the investigation as and when called by the Investigating Officer. 8. Dasti.
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2006 (9) TMI 613
Praying for issue of directions to Government of India to frame a new Police Act on the lines of the model Act drafted by the Commission - recommendations of National Police Commission not implemented - Sorabjee Committee prepared a draft outline for a new Police Act - Selection and minimum tenure of DGP - minimum residual tenure required - HELD THAT:- Undoubtedly and undisputedly, the Commission did commendable work and after in depth study, made very useful recommendations. After waiting for nearly 15 years, this petition was filed. More than ten years have elapsed since this petition was filed. Even during this period, on more or less similar lines, recommendations for police reforms have been made by other high powered committees as above noticed. The Sorabjee Committee has also prepared a draft report. We have no doubt that the said Committee would also make very useful recommendations and come out with a model new Police Act for consideration of the Central and the State Governments.
We have also no doubt that Sorabjee Committee Report and the new Act will receive due attention of the Central Government which may recommend to the State Governments to consider passing of State Acts on the suggested lines. We expect that the State Governments would give it due consideration and would pass suitable legislations on recommended lines, the police being a State subject under the Constitution of India. The question, however, is whether this Court should further wait for Governments to take suitable steps for police reforms. The answer has to be in the negative.
Having regard to (i) the gravity of the problem; (ii) the urgent need for preservation and strengthening of Rule of Law; (iii) pendency of even this petition for last over ten years; (iv) the fact that various Commissions and Committees have made recommendations on similar lines for introducing reforms in the police set-up in the country; and (v) total uncertainty as to when police reforms would be introduced, we think that there cannot be any further wait, and the stage has come for issue of appropriate directions for immediate compliance so as to be operative till such time a new model Police Act is prepared by the Central Government and/or the State Governments pass the requisite legislations. It may further be noted that the quality of Criminal Justice System in the country, to a large extent, depends upon the working of the police force. Thus, having regard to the larger public interest, it is absolutely necessary to issue the requisite directions.
Nearly ten years back, in Vineet Narain and Ors. v. Union of India and Anr.[1997 (12) TMI 615 - SUPREME COURT], this Court noticed the urgent need for the State Governments to set up the requisite mechanism and directed the Central Government to pursue the matter of police reforms with the State Governments and ensure the setting up of a mechanism for selection/appointment, tenure, transfer and posting of not merely the Chief of the State Police but also all police officers of the rank of Superintendents of Police and above. The Court expressed its shock that in some States the tenure of a Superintendent of Police is for a few months and transfers are made for whimsical reasons which has not only demoralizing effect on the police force but is also alien to the envisaged constitutional machinery. It was observed that apart from demoralizing the police force, it has also the adverse effect of politicizing the personnel and, therefore, it is essential that prompt measures are taken by the Central Government.
The Court then observed that no action within the constitutional scheme found necessary to remedy the situation is too stringent in these circumstances. More than four years have also lapsed since the report above noted was submitted by the National Human Rights commission to the Government of India. The preparation of a model Police Act by the Central Government and enactment of new Police Acts by State Governments providing therein for the composition of State Security Commission are things, we can only hope for the present. Similarly, we can only express our hope that all State Governments would rise to the occasion and enact a new Police Act wholly insulating the police from any pressure whatsoever thereby placing in position an important measure for securing the rights of the citizens under the Constitution for the Rule of Law, treating everyone equal and being partisan to none, which will also help in securing an efficient and better criminal justice delivery system. It is not possible or proper to leave this matter only with an expression of this hope and to await developments further. It is essential to lay down guidelines to be operative till the new legislation is enacted by the State Governments.
For considering this suggestion, it is necessary to enlist the views of expert bodies. We, therefore, request the National Human Rights Commission, Sorabjee Committee and Bureau of Police Research and Development to examine the aforesaid suggestion of Mr. Bhushan and assist this Court by filing their considered views within four months. The Central Government is also directed to examine this suggestion and submit its views within that time.
Further suggestion regarding monitoring of the aforesaid directions that have been issued either by National Human Rights Commission or the Police Bureau would be considered on filing of compliance affidavits whereupon the matter shall be listed before the Court.
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2006 (9) TMI 612
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... ... ..... ce of 10 years would meet the ends of justice. His conviction under Section 342 IPC as well as the sentence are maintained. The sentences shall run concurrently. On the facts of the case Section 34 IPC has no application for the offence punishable under Section 304 Part-I IPC. There is no material to show that the accused persons shared common object of causing any injury to the deceased or to cause his death. That being so Section 34 IPC has no application. It is the prosecution case that the accused persons wanted to extract a confession from the deceased of his having committed theft of a cycle. So far as accused persons 2, 4 and 6 are concerned considering their role they have to be convicted under Section 342 read with Section 34 IPC, as also Section 325 read with Section 34 IPC. The corresponding sentences imposed by the trial Court and maintained by the High Court need no interference. In the ultimate result the appeals are partly allowed to the extent indicated above.
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2006 (9) TMI 611
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... ... ..... he aforesaid judgments laying down clear principles and procedure which is required to be followed by the learned MMs and Courts of Sessions in such cases, order dated 14.07.2006, issuing non-bailable warrants against the petitioner, could not have been passed. Likewise I do not understand why the process under Section 82/ 83 was initiated when the petitioner was represented through counsel and it is not a case where he is absconding and evading the court process. 7. In view of this and keeping the assurance given by the Learned Counsel for the petitioner that petitioner shall appear before the learned Trial Court on 28.09.2006, the order dated 26th August, 2006, under Section 82/83 Cr.P.C. against the petitioner is hereby quashed. The non-bailable warrants shall not be executed against the petitioner. The petitioner shall appear before the learned Trial Court on 28.09.2006 and seek regular bail. The petition stands disposed of. Dasti under the signatures of the Court Master.
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2006 (9) TMI 610
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... ... ..... de election of any of the office- bearers of the Council of Ambur Synod, shall, however, continue and may be disposed of expeditiously. The Inspector General of Registration would be at liberty to carry on its statutory function(s) and in the event, the office-bearers of the Council have failed to comply with the statutory requirements, an appropriate action in regard thereto may be taken, as is permissible in law. It would be open to the plaintiffs, if they so desire, to file an appropriate application for amendment of the plaint, having regard to the subsequent events. If such an application for amendment of plaint is filed and allowed, the appellants before us would be impleaded as parties. The parties are given liberty to approach the High Court for any other or further order(s) or direction(s). This appeal is allowed with the aforementioned observations and directions. In the facts and circumstances of this case, however, the parties are directed to bear their own costs.
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2006 (9) TMI 609
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... ... ..... bounden duty of the court and the prosecution to prevent unreasonable delay. The purpose of right to a speedy trial is intended to avoid oppression and prevent delay by imposing on the courts and on the prosecution an obligation to proceed with reasonable dispatch. In order to make the administration of criminal justice effective, vibrant and meaningful, the Union of India, the State Governments and all concerned authorities must take necessary steps immediately so that the important constitutional right of the accused of a speedy trial does not remain only on papers or is a mere formality. 28. In the instant case not a single witness has been examined by the prosecution in the last twenty six years without there being any lapse on behalf of the appellant. Permitting the State to continue with the prosecution and trial any further would be total abuse of the process of law. Consequently, the criminal proceedings are quashed. The appeal is accordingly allowed and disposed of.
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2006 (9) TMI 608
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... ... ..... would show that they either constitute past and concluded transactions or transactions lacking substance or details, which cannot be the basis for a petition under Section 398. Any general charges of misappropriation of funds, mismanagement or other improper conduct in the management of the Company's affairs do not justify this Board in making any order as such vague allegations. There is no material to show that the affairs of the Company are conducted in a manner prejudicial to the interests of the Company or to the public interest, in the absence of which the petitioners have no locus standi to apply to the CLB for an order under Section 398 of the Act. For these reasons, the prayer for ordering an investigation into the affairs of the Company or for appointing an independent director to regulate the affairs of the company in future does not merit any consideration and consequently stands rejected. Accordingly, the company petition is disposed of. No order as to costs.
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2006 (9) TMI 607
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... ... ..... ouse." The findings we have arrived at do not militate against the said dicta. In fact, the judgments of this Court support the same. It was, thus, not for the High Court to issue any directions in this behalf, as has been sought to be done by reason of the impugned judgment. Each case has to be considered on its own facts. The superior courts, although, can interpret a statute, cannot issue a guideline which would be contrary to the provisions of the statute or the rules framed thereunder. The directions issued by the High Court, therefore, are set aside. We direct that only the extent of land, on which the dwelling house has been constructed, together with the land appurtenant thereto in terms of the building bye-laws, would be exigible to General Tax under Section 115 of the Delhi Municipal Corporation Act. The appeals are disposed of in terms of observations and directions incorporated in the preceding paragraphs. Parties shall, however, pay and bear their own costs.
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2006 (9) TMI 606
Challenged the Termination order from service - seek extension of leave from time to time - Faculty in Economics - repeated directions issued by the 1st respondent to the appellant to join duty did not evoke any positive response - HELD THAT:- On Persual of the facts clearly establish that (i) in spite of repeated instructions, the appellant failed, rather refused, to report for duty for a period of nearly 8 months, from January to August 1995 and (ii) that after 2-3-1995, till August 1995, he did not even communicate with his employer, for one reason or the other. His conduct, during this period of about 8 months, which also incidentally happened to be a period when the bond executed by him was in force, does not inspire either the confidence or the sympathy of this Court. Therefore the inference drawn by the learned Judge that he was not interested in the job and that he had created a situation whereby he could escape his contractual obligations, appears to be not only reasonable but also inevitable. Consequently, the invocation of the theory of useless formality by the learned Judge, cannot be found fault with, especially in the light of the fact that the appellant was employed in a responsible position as a Faculty member for research projects.
Thus all the grounds raised by the learned Counsel for the appellant are untenable and we find no merit in the appeal. Consequently the appeal is dismissed.
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2006 (9) TMI 605
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... ... ..... are registered in the name of the petitioner. The petitioner claims that the original share certificate has been lost. The issue of duplicate share certificates is governed by rule 4(3) of the Companies (Issue of Share Certificates) Rules, 1960. Accordingly, the Company will issue duplicate share certificate, in lieu of the original share certificate, comprised in Certificate No. 95484, upon which, I direct the Company to register the impugned shares in favour of the petitioner, under the authority of this order, within 21 days and rectify the register of members appropriately. This order shall apply in respect of 100 bonus shares allotted to the petitioner and the Company shall act accordingly in terms of this order, before which the Company will cancel the original shares in respect of the share Certificate No. 524329 and intimate the second respondent on such cancellation concerning him. With these directions, the company petition stands disposed of. No order as to costs.
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