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2008 (10) TMI 693
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... ... ..... or the period between 6-9-1991 and 5-11-1993 which will be credited to the account of the Company. The whole process shall be completed within six months, to be ensured by both parties. The Company after meeting all its existing liabilities, is at liberty to distribute the surplus amount among its shareholders in proportionate to their shareholding in the Company. The Company is not engaged in any business and therefore, the parties are free to resort to voluntary winding up, if they so desire, thereby bringing to an end the grievances in the affairs of the Company. The Company shall ensure statutory obligations and compliances till completion of the process of winding up of the Company in terms of this order. Ordered accordingly. With the above directions, the company petition and the connected applications are disposed of. In view of this, the interim orders stand vacated. No order as to costs. Liberty to apply in the event of any difficulty in implementation of the order.
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2008 (10) TMI 692
Scam involving the appointment of Panchayat Secretaries - irregularities in the selection process - Allegations against Former Minister of the State for taking bribe - Whether there can be more than one FIR in relation to the same incident or different incidents arising from the same occurrence? - FIR lodged by the Vigilance Department of the State for Commission of offences u/s 420, 467, 468, 120B of the IPC and Sections 13(1)(d)(e) and 13(2) of the Prevention of Corruption Act, 1988 - State Government to handover the investigation to the Central Bureau of Investigation (CBI).
HELD THAT:- Lodging of a FIR by CBI is governed by a manual. It may hold a preliminary inquiry. A prima facie case may be held to have been established only on completion of a preliminary enquiry.
A bare perusal of the FIR lodged at the instance of the Vigilance Officer shows that the same was general in nature. One of the several allegations contained therein referred to was that irregularities have been committed in the matter of recruitment of Panchayat Secretaries. No detail, however, was furnished. All the persons involved were not named. What types of irregularities have been committed were not stated.
In an ordinary case, we might have accepted the submission of Mr. Rao that the High Court should not direct CBI to investigate into a particular offence. The offence, however, is not ordinary in nature. It involved investigation into the allegations of commission of fraud in a systematic manner. It had a wide ramification as a former Minister of the State is said to be involved.
The second FIR lodged by the CBI, however, was on a wider canvass. It was lodged after holding a detailed preliminary inquiry. CBI collected a large number of materials. It had also recorded the statements of a large number of persons. Whereas the first FIR dated 14.06.2002, thus, contained the misdeeds of individuals, the second one depicts a crime committed in course of selection process of Panchayat Secretaries involving a large number of officers.
It may be true that in both the FIRs Kahlon was named. He was considered to be the prime accused. But, it is one thing to say that he acted in his individual capacity and it is another thing to say that he conspired with a large number of persons to facilitate commission of crime by him as a result whereof all of them had made unlawful gains.
Instant case, in our opinion, stands on a better footing vis-à-vis Ram Lal Narang [1979 (1) TMI 241 - SUPREME COURT], in the sense that whereas the first FIR did not make any allegation as regards existence of a conspiracy, the second FIR did. The canvass of two FIRs is absolutely different. The numbers of accused in both the FIRs are also different.
The second FIR, in our opinion, would be maintainable not only because there were different versions but when new discovery is made on factual foundations.
If lodging of the second FIR is legally permissible, only because the same has been done at the instance of the High Court could not lead this Court to arrive at a conclusion that its direction in that behalf was wholly without jurisdiction. It will bear repetition to state that law as it stands permits the High Court and this Court to direct investigation made by the CBI. As, it is also recognised by the Central Government, as would appear from the provisions of the CBI Manual referred to hereinbefore.
We must, however, not lose sight of the fact that before the High Court it was the State Government who stated that it would like to get the scam investigated by the CBI. The direction was issued only in view of the said offer and not dehors the same.
Therefore, we do not find any merit in these appeals.
In view of the fact that a chargesheet has been filed on the basis of the first FIR and it is stated that two witnesses had also been examined, we would direct the ld Trial Judge to segregate that portion of the trial which has any bearing with the scam relating to the appointment of the Panchayat Secretaries.
Appellants, in the other appeals, who had been cited as witnesses therein should not be allowed to be examined except with their consent. All the materials collected by the investigating officer pertaining to the said scam shall be transferred to the Court of Sub-Judge dealing with the CBI matters forthwith so as to enable it to hear that part of the case either independently or together with the chargesheet which may be submitted by the CBI before it. These directions are issued for doing complete justice to the parties and in terms of the decision of this Court in Divine Retreat Centre v. State of Kerala and Ors.[2008 (3) TMI 734 - SUPREME COURT], whereupon Mr. Rao himself placed strong reliance.
As the investigation is complete, the CBI may file chargesheet before a court having appropriate jurisdiction.
Appeals are dismissed with directions.
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2008 (10) TMI 691
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... ... ..... yet not cleared the examination of First Year M.B.B.S. held in September /October 2006. Pursuant to interim orders, 294 students were permitted to prosecute studies in Second Year M.B.B.S. If any student/students fails/fail in supplementary examination of First Year M.B.B.S. examination, the declaration of the results of such candidate/candidates who appear for Second Year M.B.B.S be withheld or their further course of study be decided based on the Rules and Regulations of University applicable to such students. It is clarified that the abovementioned direction would apply only to those students who had appeared and failed in the first year M.B.B.S. examination held between September 5, 2006 and October 10, 2006. Subject to the direction given above, this Court finds that no ground is made out by the appellants to interfere with the ultimate conclusion reached by the Division Bench and, therefore, the appeals are disposed of accordingly. There shall be no order as to costs.
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2008 (10) TMI 690
Jurisdiction of High Court - whether FIR and the consequential proceedings alleging Compoundable or non-compoundable offences could be quashed by the High Court in exercise of its jurisdiction u/s 482 of Code of Criminal Procedure on the basis of the settlement arrived at between the Parties? - HELD THAT:- The ultimate exercise of discretion u/s 482 CrPC or under Article 226 of the Constitution is with the Court which has to exercise such jurisdiction in the facts of each case. It has been explained that the said power is in no way limited by the provisions of Section 320 CrPC. We are unable to disagree with such statement of law. In any event, in this case, we are only required to consider whether the High Court had exercised its jurisdiction u/s 482 Cr.P.C. legally and correctly.
In our view, the High Court's refusal to exercise its jurisdiction under Article 226 of the Constitution for quashing the criminal proceedings cannot be supported. The FiIR, which had been lodged by the complainant indicates a dispute between the complainant and the accused which is of a private nature. It is no doubt true that the FIR was the basis of the investigation by the Police authorities, but the dispute between the parties remained one of a personal nature.
Once the complainant decided not to pursue the matter further, the High Court could have taken a more pragmatic view of the matter. We do not suggest that while exercising its powers under Article 226 of the Constitution the High Court could not have refused to quash the FIR, but what we do say is that the matter could have been considered by the High Court with greater pragmatism in the facts of the case.
We, accordingly, allow the appeal and set aside the order of the High Court and quash the criminal proceedings pending before the ld Additional Chief Metropolitan Magistrate.
Markandey Katju, J. - I respectfully agree with my ld brother Hon'ble Kabir J. that the criminal proceedings deserve to be quashed, the question may have to be decided in some subsequent decision or decisions (preferably by a larger Bench) as to which non-compoundable cases can be quashed u/s 482 Cr.P.C. or Article 226 of the Constitution on the basis that the parties have entered into a compromise.
There can be no doubt that a case u/s 302 IPC or other serious offences like those u/s 395, 307 or 304B cannot be compounded and hence proceedings in those provisions cannot be quashed by the High Court in exercise of its power u/s 482 Cr.P.C. or in writ jurisdiction on the basis of compromise. Where a line is to be drawn will have to be decided in some later decisions of this Court, preferably by a larger bench (so as to make it more authoritative). Some guidelines will have to be evolved in this connection and the matter cannot be left at the sole unguided discretion of Judges, otherwise there may be conflicting decisions and judicial anarchy. A judicial discretion has to be exercised on some objective guiding principles and criteria, and not on the whims and fancies of individual Judges. Discretion, after all, cannot be the Chancellor's foot.
Shri B.B. Singh, ld Counsel for the respondent has rightly expressed his concern that the decision in B.S. Joshi's case [2003 (3) TMI 721 - SUPREME COURT] should not be understood to have meant that Judges can quash any kind of criminal case merely because there has been a compromise between the parties. After all, a crime is an offence against society, and not merely against a private individual.
Therefore, Appeal is to be allowed and the criminal proceedings in question are to be quashed.
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2008 (10) TMI 689
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... ... ..... Board Meetings, if any, without inclusion of any further Director in its Board in place of its erstwhile Chairman, R.S. Lodha(since deceased) until disposal of the application pending before the Board whereon the impugned order was passed. However, the Chairman of the Board Meeting scheduled to be held later this month shall be elected by the Directors present in such meeting. In so far as appointment of Chairman of the Board of Directors is concerned, the parties shall await disposal of the application, as aforesaid, by the Board. With these directions, the appeal alongwith the application for stay stand disposed of. Parties shall, however, bear their own costs. It is recorded that since no opportunity has been given to the appellants to counter the contents of the said supplementary affidavit, the allegations contained therein shall not be deemed to have been admitted by them. All parties concerned are to act on a xerox signed copy of this order on the usual undertakings.
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2008 (10) TMI 688
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... ... ..... upon a judgment of the Supreme Court in the case of Mahakal Automobiles and Anr. v. Kishan Swaroop Sharma AIR 2008 SC 2061, to contend that no notice was given to the Judgment Debtor and thus in terms of Rules 54 and 66 of Order 21, the sale gets vitiated. The principle of law laid down by the Supreme Court in this c128) case can hardly be questioned but again on facts it has no application to the present case. There is no proceedings in the entire execution of the recovery certificate where the Petitioners have not participated effectively. Nothing was done in the absence of the Petitioners and in fact the material objection with regard to deposit of the entire decretal amount and proper declaration to be made was accepted by the Recovery Officer. We are afraid that both these judgments of the Supreme Court are hardly of any help to the case of the Petitioners. 14. We find no merit in the Writ Petition and the same is dismissed, leaving the parties to bear their own costs.
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2008 (10) TMI 687
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... ... ..... ections 227 and 228 so far as they are relatable to trial. Sections 239 and 240 are relatable to trial of warrant cases and 245(1) and (2) relatable to summons cases. 10. After analyzing the terminology used in the three pairs of sections it was held that despite the differences there is no scope for doubt that at the stage at which the court is required to consider the question of framing of charge, the test of a prima facie case to be applied. 11. The present case is not one where the High Court ought to have interfered with the order of framing the charge. As rightly submitted by learned counsel for the appellant, even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the court to frame a charge. At that stage, there is no necessity of formulating the opinion about the prospect of conviction. That being so, the impugned order of the High Court cannot be sustained and is set aside. The appeal is allowed.
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2008 (10) TMI 686
Tenders invited by the Bharat Heavy Electricals Ltd. ('BHEL') for levelling and grading - material required for execution of the contract is earth, morrow gravel and mixture of these or any other material - Huge quantity of these materials was supplied - The Deputy Director of Mines and Geology raised demand notice directing the appellant to pay a higher sum being the balance of seigniorage fee after giving credit to the fees already paid - filling material was partly gravel and partly ordinary clay in respect of which seigniorage fee is liable to be paid - appellant in each case requested the authority to withdraw the demands while agreeing to pay the seigniorage fee under protest - principles of natural justice - It was also submitted that seigniorage fee on the total quantity of earth materials supplied by the company was levied in utter disregard of the analyst report of the material and without any authority to do so - Government could not have ignored the test and analyst report of the Department of Civil Engineering and Soil Mechanics Division of Andhra Pradesh University which was a relevant piece of evidence.
HELD THAT:- In the instant case the expression "earth" is missing. The actual clause reads as follows:
''The material used for constructing embankment by earth filling shall be earth, morrum, gravel and mixture of these or any other material approved by the engineers. The materials shall be free from lumps, clouds, boulders or rock pieces roots and vegetations, harmful salts and chemicals, organic material, silt, fine sand expansive clays in order to provide stable embankment. Further, in the said specification, it is clearly mentioned that the material for embankment shall be as obtained from a particular source with the preference given to material becoming available from nearby road excavation under the same contract or any other excavation under the same contract.''
It is noticed the High Court has relied on certain records which purportedly contain the inspection notes of the sites from where the appellants had excavated the material. It is to be noted that for the first time before the High Court these records were produced. Since there was no reference to the so called inspection notes at any point of time the question of the appellant pleading prejudice because of non-supply of the same does not arise. The High Court observed that since the appellant had not demanded for the inspection notes during hearing of the revision there was no question of any prejudice. The approach is clearly wrong.
In the earlier round of proceedings the respondents had categorically admitted that the appellants utilized earth only as filling material. In the additional counter-affidavit filed by the Joint Secretary of Mines, in the present case it was explained that in the counter affidavit filed on behalf of the respondents, the then Assistant Director made a statement that the excavated material is earth which is also liable to levy seigniorage fee. This was a mistake.
By the time the counter-affidavit was filed, the Department had no precise knowledge of the locations where excavation was going on or the nature of the soil which was being excavated. It was much later, pursuant to a meeting between the various contractors and the concerned officials during which it was decided that the locations should be disclosed to the Department. Then the Deputy Director and Assistant Director inspected the areas and opined that the excavated material was not simply earth but gravel and clay. The High Court found the explanation to be convincing.
What the High Court seems to have overlooked is that there was a specific admission in the earlier cases. It is also not borne out from the records as to when the so called inspection notes of the Deputy Director and the Assistant Director were made and what was the nature of their report. The High Court's observation that the counter affidavit earlier was on account of inadvertence is without any basis. The observations of the High Court that there was no question of sending the samples to the Department of Civil Engineering are also unsustainable.
As a matter of fact it is not a case that the appellants themselves had sent the samples. In fact, the samples were sent by the Department apart from the samples being sent by the appellants. The High Court's observations that they were rightly ignored by Government do not stand to reason. The report was available on record and was not by an ordinary authority, and was by the Department of Andhra Pradesh University.
The High Court did not accept the view expressed by a ld Single Judge while disposing of writ petition filed by one of the sub contractors M/s Gayatri Projects Ltd. Though that order was not challenged by the Department, the Division Bench thought that the decision was not proper. In any event, that question is of no relevance in the present case. The High Court rightly observed that since the amendments referred to, were introduced after the expiry of the contract period they were really of non consequence.
The basic principles of natural justice seem to have been disregarded by the State Government while revising the order. It acted on materials which were not supplied to the appellants. Additionally the High Court for the first time made reference to the report/inspection notes which was not even referred to by the State Government while exercising revisional power.
The expressions "natural justice" and "legal justice" do not present a water-tight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice.
Principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.
We, therefore, set aside the impugned order of the High Court. The matter is remitted to the State Government to re-consider the matter after supplying to the appellants copies of reports/inspection notes on which the Department case rests. It shall also consider the effect of the concession made by the Department in the earlier rounds of proceedings before the High Court.
The appeals are allowed but without any order as to costs.
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2008 (10) TMI 685
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... ... ..... there is no compliance of the order of the pre-deposit. In the absence of the compliance of pre-deposit as ordered by the Tribunal vide its order No. S/454-455/08/CSTB/C-I dt. 28.7.2008, the appeals are dismissed for non-compliance with the requirement of Section 129E of the Customs Act, 1962. (Dictated in court)
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2008 (10) TMI 684
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... ... ..... mation of the amount supposed to have been received as share capital from third party. The decision of the Tribunal turns on the findings of facts. No question of law arises. Appeal is dismissed with no order as to costs. Parties to act on the copy of this order duly authenticated by the Associate / Private Secretary of the Court. Certified copy is expedited.
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2008 (10) TMI 683
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... ... ..... tions, which are being given separately regarding the advertisement for assignment of leasehold rights of the company in liquidation, the appeals are dismissed. The interim stay granted during pendency of the appeals against transfer or assignment of leasehold rights of the company in liquidation is hereby vacated. At this stage, Mr Devan Parikh, learned counsel for the appellants prays that the interim stay which was operating during pendency of the appeals may be continued for some time to enable the appellants to have further recourse in accordance with law. The learned counsel for the respondents oppose the request. In the facts and circumstances of the case, the interim stay operating during pendency of the appeals shall continue for a period of one month from today i.e. upto 17th November, 2008 with a clarification that in the meantime, it will be open to the Official Liquidator to take all the preliminary steps required to be taken before publishing the advertisement.
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2008 (10) TMI 682
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... ... ..... of the assessment, the assessing officer shall first dispose of the objections raised by the assessee and then only proceed to pass the assessment order. 5. In the present case, admittedly the petitioner has filed objections way back in February 2008, however till date the assessing officer has not dealt with the objections raised by the petitioner. 6. In these circumstances, the notices dated 17th and 18th July, 2008 issued by the assessing officer under section 142(1) and 143(2) of the Act for finalisation of the assessment are quashed and set aside. The assessing officer is directed to consider the objections filed by the petitioner and pass appropriate orders therein. If the order is adverse to the petitioner, then the assessing officer shall not proceed to finalize the assessment for a period of four weeks from the date of communication of the order rejecting the objections raised by the petitioner. 7. Rule is made absolute in the above terms with no order as to costs.
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2008 (10) TMI 681
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... ... ..... be brought to tax, as a ‘benefit’ or ‘perquisite’ u/s 28 (iv) disregarding the fact that the assessee had pledged these shares at market price and obtained loan of ₹ 49.75 crores? 3. We have perused the Tribunal’s judgment. The Tribunal has considered the entire issue at length in its order dated 5.2.2008 and has given finding that mere purchase of shares, as an investment, with the lock in period of holding, for a consideration which is less than the market value, cannot be brought to tax, as a benefit or perquisite under Section 28 (iv) of the Act. The Tribunal has also given the finding that the assessee has not secured any benefit or perquisite in consideration of a business transaction undertaken with the sellers of the shares. In view of above finding of fact, there is no substantial question of law involved in the present appeal. 4. We do not find any case made out for admission of the above appeal. Appeal is, therefore, dismissed.
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2008 (10) TMI 680
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... ... ..... f of the respondents had admitted that no prior notice had been issued to the petitioner before the issuance of the impugned letter, dated 5-12-2002, by the second respondent. However, he had submitted that the respondents may be permitted to issue a notice to the petitioner, with regard to the demand for payment of service tax, in accordance with law. 5. In view of the submissions made by the learned counsels for the petitioner, as well as for the respondents, the impugned letter, dated 5-12-2002, issued by the second respondent is liable to be set aside and accordingly, it is set aside. However, it is open to the respondents to initiate appropriate proceedings against the petitioner, it so advised, in accordance with law, by issuing necessary notice, with regard to the service tax allegedly due from the petitioner and by giving sufficient opportunity to the petitioner to put forth its case. 6. With the above directions, the writ petition is disposed of. No costs.
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2008 (10) TMI 679
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... ... ..... cation. Mr.Rakesh Kr.Singh appearing on behalf of the petitioner submits that the truck being involved in the smuggling of goods to Nepal it was rightly confiscated. We do not find any substance in the submission of Mr.Singh. The truck was hired for transporting masoor dal from Kanpur to Raxaul. Even before it reached Raxaul it was intercepted by the Customs Officials. There is no material excepting the ipse-dixit of the Customs authority on record to show that the dal, in question, was intended to be a smuggled to Nepal. In that view of the matter, we are of the opinion that the condition precedent for confiscation of the vehicle as provided under Section 115 of the Customs Act is not satisfied. Once it is held so, the Tribunal did not err in setting aside the order of confiscation. We are of the opinion that no referable question of law arises from the order of the Tribunal and the application filed by the petitioner is absolutely misconceived. It is dismissed accordingly.
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2008 (10) TMI 678
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... ... ..... tion 143(3) of the Act. The Tribunal has further found that the Assessing Officer has not been able to produce a single incident to establish the conjecture of payments having been made in cash. That in fact subsequent payments have been made by A/c. Payee Cheques. On a cumulative appreciation of the entire evidence on record the Tribunal has deleted the addition. 5. Considering the findings recorded by the Tribunal, it is not possible to state that any legal infirmity exists in the impugned order of the Tribunal so as to warrant interference. It is also not possible to state that the order suffers from vice of perversity in absence of any evidence to point out as to which of the parameters like consideration of irrelevant evidence, or ignoring relevant evidence stand attracted. 6. In the circumstances, in absence of any question of law, much less a substantial question of law, as proposed or otherwise arising from the impugned order of the Tribunal, the appeal is dismissed.
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2008 (10) TMI 677
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... ... ..... d delay. This is a petition under Article 226 of the Constitution of India and we would not like to interfere with these findings in exercise of the powers under that provision. Any interference on our part in the facts and circumstances of this case would amount to substituting our view in place of the views expressed by the Tribunal. That would not be an appropriate course of action. Consequently, we decline to entertain this writ petition. The writ petition is dismissed. All the applications along with it are also dismissed.
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2008 (10) TMI 676
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... ... ..... at their request for the earlier, reference of which has been given in the letter, had been accepted. Hence, it is clear that the request stands accepted by the bank. Moreover, the learned CIT(A) vide para 8.3.1 of the order has given the following direction - "In such view of the matter, the Assessing Officer is directed to consider the delayed export proceeds in question in computing the deduction u/s 10A subject to provisions of section 10A, after thorough verification of facts of the case. The AO is also advised to place on record all relevant details of the export proceeds in question." 9.2 Considering the above finding of the learned CIT(A), we feel that the matter is to be considered by the Assessing Officer and the directions given by the learned CIT(A) are in order. No interference is needed. 10. In the result, appeals of the assessee are partly allowed while the appeals filed by the revenue are dismissed. Pronounced in the open court on 23rd October 2008.
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2008 (10) TMI 675
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... ... ..... dmission of the said additional evidence, one more opportunity should have been specifically afforded by the learned CIT(A) to the AO to examine/verify the additional evidence when the same was admitted by him overruling the objections raised by the AO for admission thereof. As the learned CIT(A) has failed to do so, we are of the view that it would be fair and proper and in the interest of justice to set aside his impugned order and restore the matter to the file of the Assessing Officer for deciding the same afresh after verifying the additional evidence filed by the assessee for the first time before the learned CIT(A). The AO shall be free to conduct all the necessary as he may deem fit in order to decide the issue in accordance with law after affording the assessee sufficient and proper opportunity of being heard in the matter. 9. In the result, the appeal of the Revenue is treated as allowed for statistical purposes. Decision pronounced in the open Court on 17.10.2008.
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2008 (10) TMI 674
Time limitation - Held that: - The tribunal has held that the show-cause notices issued by the authorities were barred by limitation because during the period from October 1985 to September 1989 there were decisions of the tribunal in favour of the assessee - appeal rejected.
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