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2011 (7) TMI 1384
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... ... ..... an, an Inspector of Police, was one of the accused persons, the High Court should have directed the Superintendent of Police to entrust the investigation to an officer senior in rank to the Inspector of Police under Section 154(3) Code of Criminal Procedure and not to the CBI. It should also be noted that Section 156(3) of the Code of Criminal Procedure provides for a check by the Magistrate on the police performing their duties and where the Magistrate finds that the police have not done their duty or not investigated satisfactorily, he can direct the Police to carry out the investigation properly, and can monitor the same. (see Sakiri Vasu v. State of U.P. and Ors. (2008) 2 SCC 409). 11. For these reasons, we quash the impugned order of the High Court and direct that the Superintend of Police, Virudunagar District, Tamil Nadu, will entrust the investigation of Crime No. 14 of 2006 to a police officer senior in rank to P. Kalaikathiravan. The appeals are accordingly allowed.
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2011 (7) TMI 1383
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... ... ..... Chambers, Delhi High Court) is appointed as Local Commissioner who will visit the site and inspect the property in the presence of the parties and if need arises, to obtain the help of Assistant Engineer as earlier appointed by this Court vide order dated 1.9.2009 and then suggest ways and means in which the property can be partitioned by metes and bounds. It is directed that all the parties shall provide full cooperation for compliance of the commission. If necessary, the Local Commissioner is authorized to take the police assistance in order to comply the order. The Local Commissioner shall file his report within 12 weeks from today. The fee of the Local Commissioner is tentative fixed at ₹ 60,000/- which is to be shared by Plaintiff and Defendant Nos. 1 and 2. In case help of Assistant Engineer is required, his fee is fixed at ₹ 30,000/- which would be paid in the same manner. All pending applications stand disposed of. CS (OS) No. 2362/2008 List on 20.10.2011
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2011 (7) TMI 1382
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... ... ..... ional Deputy Commissioner issues a separate orders authorizing assessment, then only those Officers can undertake assessment in accordance with law (See paragraphs 59(b) and (c) of Balaji Flour Mills. 5. Following the same, these writ petitions shall stand disposed of in the following manner. The assessment orders/penalty orders/orders for payment of interest shall stand set aside. The matters shall now go to the Audit Officers (who passed orders), who shall submit audit reports to the Deputy Commissioner for appropriate action in accordance wit the judgment of this Court in Balaji Flour Mills. This exercise shall be completed within a period of eight weeks from the date of receipt of a copy of this order. We make it clear that if any of the dealers, in these matters, have already availed the remedy of appeal under Section 31(1) of the Andhra Pradesh Value Added Tax Act, 2005, the appellate orders shall also stand set aside on this ground. There shall be no order as to costs.
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2011 (7) TMI 1381
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... ... ..... the school to take him back into service and if it does not comply, take action permissible in law for disobedience of its directions. 22. Therefore the decision of the committee dated 28.7.2006 is not an enforceable or executable order but only a recommendation that can be made the basis by the Education Department to issue appropriate directions. It is needless to add that persons aggrieved by such directions of the state government will be entitled to challenge such directions either before the civil court or in a writ proceedings. 23. In view of the above, the appeals are allowed and the orders dated 2.5.2008 and 5.8.2008, are set aside. The order of the Grievance Committee is treated as a recommendation rendered for the benefit of the Education Department which can on the basis of the said opinion take appropriate action in accordance with law. It is also open to the Shikshan Sevak to seek appropriate remedy if he is aggrieved by his termination, in accordance with law.
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2011 (7) TMI 1380
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... ... ..... owever, the said presumption is rebuttable by leading evidence that there was no debt for which the cheque has been issued. Under the circumstances, the learned revisional Court has materially erred in allowing the Revision Application and quashing and setting aside the order passed by the learned Magistrate rejecting the application submitted by the original accused, Exh. 54. However, it is always open for the accused to rebut the presumption with respect to the debt by leading appropriate evidence at the time of trial. 8. In view of the above and with the above observation, the present petition succeeds and the impugned order passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Valsad dated 05/03/2011 in Criminal Revision Application No. 78/2010 is hereby quashed and set aside and the order passed by the learned trial Court below Exh. 54 dated 29/10/2010 in Criminal Case No. 1317/2007 is hereby restored. Rule is made absolute accordingly.
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2011 (7) TMI 1379
Murder - Communal violence - Conviction for offence punishable under Sections 302/149, 148, 324/149 and 449 of the IPC - High Court converted the judgment of conviction into acquittal - presumption of innocence and right to fair trial - HELD THAT:- It is a settled principle of criminal jurisprudence that the burden of proof lies on the prosecution and it has to prove a charge beyond reasonable doubt. The presumption of innocence and the right to fair trial are twin safeguards available to the accused under our criminal justice system but once the prosecution has proved its case and the evidence led by the prosecution, in conjunction with the chain of events as are stated to have occurred, if, points irresistibly to the conclusion that accused is guilty then the Court can interfere even with the judgment of acquittal. The judgment of acquittal might be based upon misappreciation of evidence or apparent violation of settled canons of criminal jurisprudence.
When the conclusions of the High Court in the background of the evidence on record are tested on the touchstone of the principles set out above, the inevitable conclusion is that the High Court's judgment does not suffer from any infirmity to warrant interference.
A Bench of this Court in State of Kerala and Anr. v. C.P. Rao [2011 (5) TMI 860 - SUPREME COURT], discussed the scope of interference by this Court in an order of acquittal and while reiterating the view of a three Judge Bench of this Court in the case of Sanwat Singh and Ors. v. State of Rajasthan [1960 (12) TMI 88 - SUPREME COURT].
Reference can also be usefully made to the judgment of this Court in the case of Suman Sood v. State of Rajasthan [2007 (5) TMI 689 - SUPREME COURT], where this Court reiterated with approval the principles stated by the Court in earlier cases, particularly, Chandrappa v. State of Karnataka,[2007 (2) TMI 704 - SUPREME COURT] Emphasizing that expressions like 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc are not intended to curtail the extensive powers of an appellate court in an appeal against acquittal, the court stated that such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate court to interfere with the acquittal. Thus, where it is possible to take only one view i.e. the prosecution evidence points to the guilt of the accused and the judgment is on the face of it perverse, then the Court may interfere with an order of acquittal.
In light of the above stated principles, Three eye witnesses PWs. 4, 5 and 7 were found to be truthful and reliable witnesses by the trial court whereas those very witnesses were held to be untrustworthy witnesses by the High Court.
Satyanarain (PW 7) has also made statements which fully aid the case of the prosecution and his statement recorded on the adjourned date before the trial court i.e. 18th March, 1999 which is at variance cannot be treated as gospel truth. Even if we exclude the statement of PW7 from consideration, then identity of the accused is still fully established by the statements of PW3, PW4, PW5 and PW6. There is no reason for the Court to hold that PWs 4 and 5 (neighbours of the deceased) are not trustworthy. Their statements describe the occurrence in its proper course and are compelling evidence of the same. We do not find it appropriate to discard their statements as not inspiring confidence. The statement of these witnesses must be appreciated in the proper perspective.
The injury on the head duly finds corroboration from the statement of the Doctor i.e. Ex.P4. It is not a case where the medical evidence does not support or corroborate the ocular evidence. Some discrepancies or some variations in minor details of the incident would not demolish the case of the prosecution unless it affects the core of the prosecution case. Unless the discrepancy in the statement of witness or the entire statement of the witness is such that it erodes the credibility of the witness himself, it may not be appropriate for the Court to completely discard such evidence.
The core of the prosecution case is that when the mob came, PWs 4 and 5 ran to their houses, locked their doors, went to the roof of the houses which were adjacent to the house of the deceased and watched some members of the mob, of whom they could identify a few, assault the deceased. This statement clearly shows the trustworthiness of these witnesses as they have stated that there were some other persons whom they could not identify. However both these witnesses and complainant Satyanarain clearly identified the persons who had entered and assaulted the deceased persons. Though Satyanarain (PW 7) fully supported the case of the prosecution that he was also assaulted by these persons, he did speak in a different voice the next day before the Court. In our considered opinion the cumulative effect of the ocular evidence and documentary evidence is that the prosecution has been able to establish its case beyond reasonable doubt.
Ld Counsel for the accused contend that there was no common object to commit murder - In the present case, common object to commit murder has been fully proved. Second, the case of the prosecution is not that the entire mob had entered the house of the deceased. Out of the mob of 50-60 persons only 7 to 10 persons had broken the door of the house and some of them had climbed the wall to enter the house of the deceased. These persons had raised the slogan 'maro! maro!' and thereafter had inflicted the injuries upon the body of the deceased.
It has been established that more than five persons constituted an unlawful assembly and in furtherance to their common object and intent, assaulted and caused injuries to vital parts of the bodies of the deceased, ultimately resulting in their death. We, therefore, have no hesitation in holding that there is no merit in this contention of the accused and the trial Court applied the law correctly.
Therefore, we find the present case a fit case for interference in the judgment of acquittal recorded by the High Court. Consequently, the appeals of the State are allowed, the judgment of the High Court is set aside and that of the trial court is restored. We concur with the finding of guilt and the quantum of punishment awarded by the trial court.
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2011 (7) TMI 1378
Prayer for quashing of the FIR registered - Offences punishable u/s 406, 420 and 506(1) of the Indian Penal Code ('IPC') - whether cognizance of the offences could have been taken by the Competent Criminal Court in the light of the averments made by the complainant in the FIR? - HELD THAT:- Bare perusal of the FIR lodged by the complainant, would indicate that he had got in touch with the Appellant so as to extend the benefit of Appellant's Channel "GOD TV" to his other brethren residing at Ahmedabad. For the said purposes, he had met the owner of Siti Cable, Bapi Nagar in Ahmedabad and negotiated a settlement for a sum of ₹ 10 lacs on behalf of the Appellant's Company as the fee to be paid to Siti cable by Appellant for telecast of channel "God TV" in Ahmedabad. Further grievance of the Complainant was that despite the telecast of "GOD TV", the Appellant, as promised, failed to pay a sum of ₹ 10 lacs to the owners of Siti cables. This is what has been mentioned in nutshell in the complainant's FIR. We have grave doubt, in our mind whether on such averments and allegations, even a prima facie case of the aforesaid offences could be made out against the present Appellant.
Thus, from the general conspectus of the various sections under which the Appellant is being charged and is to be prosecuted would show that the same are not made out even prima facie from the Complainant's FIR. Even if the charge sheet had been filed, the learned Single Judge could have still examined whether the offences alleged to have been committed by the Appellant were prima facie made out from the complainant's FIR, charge sheet, documents etc. or not.
In our opinion, the matter appears to be purely civil in nature. There appears to be no cheating or a dishonest inducement for the delivery of property or breach of trust by the Appellant. The present FIR is an abuse of process of law. The purely civil dispute, is sought to be given a colour of a criminal offence to wreak vengeance against the Appellant. It does not meet the strict standard of proof required to sustain a criminal accusation.
The Appellant cannot be allowed to go through the rigmarole of a criminal prosecution for long number of years, even when admittedly a civil suit has already been filed against the Appellant and Complainant-Respondent No. 4, and is still subjudice. In the said suit, the Appellant is at liberty to contest the same on grounds available to him in accordance with law as per the leave granted by Trial Court. It may also be pertinent to mention here that the complainant has not been able to show that at any material point of time there was any contract, much less any privity of contract between the Appellant and Respondent No. 4- the Complainant. There was no cause of action to even lodge an FIR against the Appellant as neither the Complainant had to receive the money nor he was in any way instrumental to telecast "GOD TV" in the central areas of Ahmedabad. He appears to be totally a stranger to the same. Appellant's prosecution would only lead to his harassment and humiliation, which cannot be permitted in accordance with the principles of law.
Thus, looking to the matter from all angles, we are of the considered opinion that the prosecution of the Appellant for commission of the alleged offences would be clear abuse of the process of law.
The FIR under the circumstances deserves to be quashed at the threshold. We accordingly do so. The Appeal is, therefore, allowed. The order of learned Single Judge is set aside. The FIR dated 05.09.2006 lodged by Respondent No. 4 - Complainant with Odhav Police Station, Ahmedabad stands quashed and all criminal proceedings emanating therefrom also stand quashed.
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2011 (7) TMI 1377
This appeal is connected with that of Civil Appeal No. 4004 of 2009. A copy of the order passed in the said case dated 14-9-2009 is placed.
The delay is condoned and appeal admitted - Tag with Civil Appeal No. 4004 of 2009.
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2011 (7) TMI 1376
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... ... ..... i K.B.E.Rengarajan, the learned Standing Counsel appeared for the Revenue and contested the case. 4. On going through the facts and circumstances reflected in these cases, we find that there is no compelling ground to impose a penalty of ₹ 10,000/- each, for the seven assessment years involved in these appeals. The fact that the assessee is a NonResident Indian (NRI), shows that he had genuine difficulties in complying with the notices issued by the assessing authority, within the time allowed. His pre-occupation outside India definitely dilutes the gravity of the charge levelled against the assessee. 5. Therefore, in the facts and circumstances of the case, levy of penalty is not justified. Accordingly, the penalties of ₹ 10,000/- each, imposed for all these seven assessment years are deleted. 6. In result, these appeals filed by the assessee are allowed. Orders pronounced in the open court at the time of hearing on Tuesday, the 12th day of July, 2011 at Chennai.
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2011 (7) TMI 1375
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... ... ..... VI-A, it is reasonable to hold that s.80-IA(9) affects allowability of deduction and not computation of deduction. To illustrate, if ₹ 100 is the profits of the business of the undertaking, ₹ 30 is the profits allowed as deduction under section 80-IA(1) and the deduction computed as per s.80HHC is ₹ 80, then, in view of s.80-IA(9), the deduction under s.80HHC would be restricted to ₹ 70, so that the aggregate deduction does not exceed the profits of the business”. We notice that the method followed by the Assessing Officer was not in accordance with the illustration given by the Hon'ble Bombay High Court. Accordingly we set aside the orders of Learned CIT(A) and direct the Assessing Officer to allow the impugned deductions in the manner explained in the case of Associated Capsules (P) Ltd (Supra). 5. In the result, all the appeals of the assessee are treated as allowed for statistical purposes. Pronounced in the open Court on 1st July, 2011.
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2011 (7) TMI 1374
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... ... ..... therefore, agree with learned Senior Counsel Shri Mukul Rohtagi as well as Shri U.U. Lalit arguing for the appellants, that the decision in Antulay's case (cited supra) and the subsequent decisions require any reconsideration for the reasons argued before us. Even on merits, there is no necessity of reconsidering the relevant ratio laid down in Antulay's case (cited supra). 34. Thus, we are of the clear view that the High Court was absolutely right in relying on the decision in Prakash Singh Badal v. State of Punjab (cited supra) to hold that the appellants in both the appeals had abused entirely different office or offices than the one which they were holding on the date on which cognizance was taken and, therefore, there was no necessity of sanction under Section 19 of the Act as held in K. Karunakaran v. State of Kerala (cited supra) and the later decision in Prakash Singh Badal v. State of Punjab (cited supra). The appeals are without any merit and are dismissed.
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2011 (7) TMI 1373
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... ... ..... elay condoned. The Civil Appeal is dismissed on facts.
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2011 (7) TMI 1372
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... ... ..... actually paid by the assessee company. The only thing is that the bonus was paid after the close of the previous year. The Hon’ble Supreme Court in the case of Bharat Earth Movers v. CIT (245 ITR 428) has held that in such cases of provision for bonus, it is to be seen that the liability is not unascertained but at the maximum the quantum alone is exactly not ascertainable. It is not possible to hold that the liability itself was unascertained. But in the present case, we further find that even the quantum has already been ascertained by the assessee and it was brought in a provision only for the reason that it was not paid during the relevant previous year. Therefore, the Commissioner of Incometax (Appeals) has rightly held that the adjustment made by the assessing authority was not permitted in law. 6. In result, this appeal filed by the Revenue is dismissed. Order pronounced in the open court at the time of hearing, on Thursday, the 14th day of July, 2011 at Chennai.
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2011 (7) TMI 1371
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... ... ..... ertained. 4. As regards question (ii) is concerned, the dispute relates to allowing depreciation on the written down value of assets taken over from Essar Gujrat Ltd in A.Y. 1993-94. It appears that there was some dispute regarding the written down value of the assets in A.Y.1993-94. The Tribunal in A.Y.1993-94 in ITA No.3041/Mum/96 held that the written down value as claimed by the assessee has to be accepted. Accordingly, depreciation has been allowed by following the decision of the Tribunal for A.Y.1993-94. In these circumstances no fault can be found in the order of ITAT. Accordingly the second question cannot be entertained. 5. As regards question (iii) is concerned, counsel for the parties state that similar question raised by the revenue in the assessee's own case being Tax Appeal No.135 of 2008 has been rejected by this court vide order dated 16.10.2008. In this view of the matter, the third question cannot be entertained. 6. Accordingly, the appeal is dismissed.
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2011 (7) TMI 1370
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... ... ..... would meet with the requirements of circular dated 15th May 2008 and in particular having regard to the provisions contained in para 5 thereof. We may notice that the issue involved in the appeals pertains to levy of penalty under section 271(1c) of the Act. The law prescribes penalty ranging between 100 to 300 per cent of the amount of tax evasion detected. In this group of appeals, even after taking maximum possible penalty imposable and taking combined total possible penalties for all appeals involving the same assessee and decided by the Tribunal by a common judgment, the same does not exceed the limit prescribed by the Board in its circular. To ascertain the tax effect, we have gone by the calculations provided by the Revenue through its learned counsel which are taken on record. These appeals are, therefore, dismissed as involving low tax effect. It is clarified that the legal issues raised are not touched. With the above observations, these tax appeals are disposed of.
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2011 (7) TMI 1369
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... ... ..... issioner of Income Tax (Appeals) rightly deleted the addition because in the case of the assessee assessment was completed under the block assessment and the credit/amount appearing in the regular books maintained by him. 3. That the Commissioner of Income Tax (Appeals) rightly allowed the direction in respect of charging the interest because this rate is as provided under the statute at the time of search/original assessment.” 11. From the grounds of Cross Objections, it is clear that they are in support of order of CIT (A). Since we have confirmed the order of the CIT (A) deleting the addition made u/s 68 of the Act, the grounds raised in the Cross Objections by the assessee become infructuous. Therefore, the Cross Objections filed by the assessee is dismissed as infructuous. 12. In the result, the appeal filed by the Revenue is partly allowed and the Cross Objections filed by the assessee are dismissed as infructuous. Order pronounced in the open court on 22.07.2011.
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2011 (7) TMI 1368
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... ... ..... ,23,036/- in A.Y. 2000-01 being the excise duty MODVAT to the value of closing stock under section 145A of the Act?” (II) “Whether the Appellate Tribunal is right in law and on facts in reversing the order passed by CIT (A) and thereby holding that only net interest is to be considered for the purpose of computation of deduction u/s.80HHC of the Act?”
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2011 (7) TMI 1367
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... ... ..... he addition made of ₹ 24,29,893/- in A.Y. 1999-00 being the excise duty MODVAT to the value of closing stock under section 145A of the Act?” We may notice that additional questions have been raised in the Tax Appeal. However, such questions do not arise out of the Tribunal's judgment. Hence, such questions are not considered.
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2011 (7) TMI 1366
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... ... ..... lenge to the forfeiture order at the instance of the respondent also. The substantive order has become final. The consequential action to take possession was nothing but an execution proceedings. The notice regarding possession cannot be set aside unless the order under Section 7(1) is set aside in the manner known to law. 36. Therefore, unless and until the statutory order made under Section 7(1) of SAFEMA is set aside, the respondent cannot maintain the writ petition, challenging the consequential proceedings issued under Section 19 of the said Act. Therefore, the writ petition itself should have been dismissed on the preliminary point. Conclusion 37. On a careful consideration of the entire factual matrix, we are of the considered view that the learned Single Judge was not justified in quashing the impugned possession notice. Accordingly, the order dated 13 October, 2003 is set aside and the writ petition is dismissed. 38. In the upshot, we allow the writ appeal. No costs.
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2011 (7) TMI 1365
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... ... ..... w in appeal before us against the aforesaid findings of the learned CIT(A). The learned DR supported the order of the AO while the ld. AR on behalf of the assessee relied on the findings of the ld. CIT(A) . 6. We have heard both the parties and gone through the facts of the case. We find that the CIT(A) while deleting the addition merely relied upon the decision of the ITAT, Ahmedabad in the case of M/s. Alpanil Industries (supra). The ld. DR appearing before us did not place any material, controverting the aforesaid findings of the ld. CIT(A) nor brought to our notice any contrary decision. In these circumstances, we do not find any merit in the ground no.1 in the appeal. Consequently ground no.1 in the appeal is dismissed. 7. Ground Nos.2 and 3 being mere prayer nor any submissions having been made on these grounds, do not require any separate adjudication and are, therefore, dismissed. 8. In the result, appeal is dismissed. Order pronounced in Open Court on 22nd July, 2011
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