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Showing posts from March, 2016

Trial Court empowered to summon a suspect for trial even if not chargesheeted

Supreme Court in Hardei vs. State of UP, has held that choice of police not to send up a suspect to face trial does not affect power of the trial court under Section 319 of the CrPC to summon such a person on account of evidence recorded during trial. Apex Court Bench comprising of Justices Dipak Misra and Shiva Kirti Singh dismissed an appeal against High Court order refusing to set aside the order of Chief Judicial Magistrate summoning a ‘suspect’, in exercise of power under Section 319, Code of Criminal Procedure, to face trial in Sessions Trial. One of the contention on behalf of the summoned person was that he was not named as an accused in the FIR nor any charge-sheet was submitted against her after completion of investigation. Rejecting the aforesaid contention, the Bench observed that F.I.R. may not contain all the details of the occurrence or even the names of all the accused and it is not expected to be an encyclopaedia even of facts already known. The Court further held “The

Chief Judicial Magistrate (CJM) can act under Section 14 of SARFAESI Act

THE HONBLE THE ACTING CHIEF JUSTICE  SRI DILIP BABASAHEB BHOSALE HONBLE SRI HONBLE SRI JUSTICE C.PRAVEEN KUMAR & HONBLE SRI JUSTICE M.S.K. JAISWAL   WRIT PETITION Nos. 17589  of 2014 27-11-2015 M/s.T.R.Jewellery, a proprietary concern   Rep.by its Proprietor Thiriveedhi Suresh Babu and Another..... PETITIONERS               M/s.State Bank of India, Vedayapalem Branch, Nellore and Another..RESPONDENTS     THE HONBLE THE ACTING CHIEF JUSTICE  SRI DILIP BABASAHEB BHOSALE                HONBLE SRI JUSTICE C.PRAVEEN KUMAR           &  HONBLE SRI JUSTICE M.S.K. JAISWAL       WRIT PETITION Nos. 17589 & 17625 of 2014     COMMON JUDGMENT: (Per Justice C.Praveen Kumar)                Disagreeing with the view expressed in W.P.No.5347 of 2014 another Division Bench of this Court vide its order dated 24.07.2014 in W.P.Nos.17589 and 17625 of 2014 referred the following question to be decided by a Full Bench.  In terms of the said order of reference, these

Arbitrator cannot award interest when expressly barred

In a recent judgment Union of India Vs. M/s. Ambica Construction, the issue raised before the Hon'ble Supreme Court was in regard to the power of the Arbitrator to award pendente lite interest when contract contains bar for grant of interest in a case covered by the Arbitration Act, 1940 . A Division Bench of this Court had doubted the correctness of the decisions in Board of Trustees for the Port of Calcutta v. Engineers-De-Space-Age (1996) and Madnani Construction Corporation (P) Ltd. v. Union of India and Others (2010). In view of the decision of the Constitution Bench judgment in Secretary, Irrigation Department, Government of Orissa & Ors. v. G.C. Roy (1992) and Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa & Ors. v. N.C. Budharaj (D) by L.Rs. & Ors. (2001) which held that the Arbitrator had the jurisdiction and authority to award interest for pre-reference period, pendente lite and future period if there was no express bar in the contract reg

Undue leniency in awarding sentence needs to be avoided-SC

Supreme Court, in State of M.P. vs. Udaibhan, has observed that undue leniency in awarding sentence needs to be avoided because it does not have the necessary effect of being a deterrent for the accused and does not re-assure the society that the offender has been properly dealt with. Apex Court Bench comprising of Justices Dipak Misra and Shiva Kirti Singh was hearing the Appeal filed by the State against the Judgment of Madhya Pradesh High Court wherein it reduced the sentence imposed by Trial Court for imprisonment which was R.I. for 10 years for the offence punishable under Section 307 as well as Section 307 read with Section 34 of the IPC to a period already undergone by the respondents which was of one year and nine months only. The Bench observed that there was hardly any mitigating circumstance to take such a lenient view as has been done by the High Court. The Court further observed that it is the duty of the Court awarding sentence to ensure justice to both the parties and th

Writ petition not ordinarily maintainable against order of DRT

Karnataka High Court in M/S Deepak Apparels Pvt Ltd vs City Union Bank Ltd has held that writ petition is not ordinarily maintainable against the order of the Debt Recovery Tribunal, passed in exercise of the jurisdiction under S.17 of the SARFAESI Act. Full Bench answering a reference held that it can be entertained only if the court is convinced that it falls within the exceptional categories recognized by Apex Court Single Bench has expressed his doubts about the correctness in decision of Hotel Vandana Palace case wherein it was held that a writ petition is maintainable without filing an appeal to the Appellate Tribunal as provided under S.18 of the Act, on the ground that the pre-deposit is required under S.18 of the SARFAESI Act and in such circumstances, it cannot be considered as an efficacious remedy. The Full Bench referring to various rulings of the Apex Court observed “When extraordinary writ remedy is invoked, despite the availability of an alternative remedy, the Court sh

A person on Deputation has no right to demand continuation of his service

The Delhi High Court speaking through Justice Ved Prakash Vaish in Dr.Professor Santhosh Panda vs. Indira Gandhi National Open University [ W.P.(C) 2299/2016] has ruled that a person on deputation (deputationist) cannot seek to claim any vested right to the post deputed, or get absorbed to the deputed department once the period of deputation, from his parent department is over. The Petitioner was working as professor in the respondent university. A notification in the meanwhile was issued, calling for appointment to the post of Chairperson, National Council of Teacher Education. The term prescribed for the post was a period of four years or 60 years whichever was earlier. The Petitioner made a request with the university to be deputed to the said post. The petitioner’s request was accepted by the university and his services were accordingly relieved. The petitioner was granted Extraordinary Leave(EOL) in his parent department, to enable him to take his new assignment. The Petitioner to

Relevant period for deciding vicarious liability of Director of a Company under Section 141 NI Act

The Bombay High Court has held that relevant period for deciding the vicarious liability of the Director for the act committed by the Company is not only when the cheque was dishonoured, but also when the disputed transaction was entered into, and from time to time thereafter like at the time of issuance of the cheque in question, presentation of said cheque in Bank etc. Justice Dr. Shalini Phansalkar Joshi made this observation in Mrs. Lata Pramod Dave vs. M/s. Mode Export Private Limited, wherein the petitioner had approached the High Court to quash the process under Section 138 Negotiable Instrument Act issued against her on the ground that, on the date when the cheque in question was presented to the Bank and came to be dishonoured, she was no more the Director of the Company as she has already resigned from the Company. According to Petitioner, she has tendered her resignation on 1st January 2013 and it was received by the Company on the same date. The resignation date seriously d

Failure to lower National Flag at or before sunset - not dishonor of the National Flag

The High Court of Kerala in P.K Satheesh Babu v State of Kerala [Crl M.C 1208 OF 2016] has ruled that mere failure or omission to lower National Flag at or before sunset does not in any manner amount to dishonor of the National Flag. Prosecution was launched against accused for offence under Section 2 of the Prevention of Insult to National Honour Act,1971. It was alleged that he has not cared to lower the National Flag hoisted in front of his office even at sunset. Taking cue from a Judgment of Bombay High Court and Apex Court, Justice B. Kemal Pasha noted that prosecution launched against petitioner was unnecessary, as he had no intention to dishonor the national flag at any point of time. The bench referred to the ratio laid down by Apex Court in Navin Jindal’s Case[ Civil Appeal No:453 of 2004] which had ruled that flag code being in the nature of mere executive instructions issued by the Central Government do not the posses the sanctity of being a Law contemplated under Article 13

Period of Adverse possession can only be counted from date of purchase of property

Dismissing a suit for adverse possession filed against Bangalore Development Authority, the Supreme Court in Bangalore Development Authority Vs. N. Jayamma has reiterated that the period of the   adverse possession can only be counted from the date of purchase of the property and the period for which the original vendor held the property, and the date of Mahazar could not be counted. Possession of the Suit property (Acquired by the Government) was handed over to the BDA on August 30, 1988. The original owner of the property, being in actual possession sold the property to the plaintiff who filed a suit in 2001 claiming adverse possession. Suit was decreed and the High Court upheld the appeal Apex Court Bench comprising of Justices A.K. Sikri and R.K. Agrawal allowing the appeal filed by Bangalore Development Authority also held that sale in favour of the respondent in the year 1994 was void ab initio as the title had already been vested in the BDA and the original owner who had purport

Police can’t add, delete offences during trial: HC

The Punjab and Haryana High Court has ruled that an investigating agency cannot be allowed to add or delete offences during the progress of trial. It can also not be permitted to convert a magisterial trial into sessions’ trial or vice versa. Depending on the gravity of offences and the punishment prescribed, a criminal trial is classified into magisterial and sessions’ trial. The offence is triable by a court of session, if it is punishable with imprisonment for life or more than seven years under the special law. The ruling by Justice Rajan Gupta came on a bunch of two petitions filed by Neetu Dheer and other petitioners against the State of Haryana and other respondents. They were seeking directions for quashing supplementary challan submitted by the police. The challenge was made primarily on the ground that the investigating agency carried out reinvestigation on its own before including attempt to murder and another offence under Sections 307 and 333 of the IPC. The reinvestiga

Compensation cheques must be in name of victim

 The scourge of mofussil courts issuing joint account cheque to victims of motor accident cases, thereby helping the accident case specialist-lawyers withdraw a bulk of the sum as fee, has come to the knowledge of the Madras high court. Directing motor accident claims courts not to issue cheques in favour of any person other than the victim, or in the name of any 'company,' Justice S Vaidhyanathan said: "It has been brought to the attention of this court that in crossed cheques issued to claimants, it is mentioned as "& co." instead of "a/c payee". Such practice has to be avoided by all trial courts and crossing should be made in the cheques only with the endorsement "A/C payee" and not with the endorsement "& co." Threatening courts with dire action if they violated this order, the judge said: "It is made clear that if any violation is brought to the notice of this court, appropriate action will be initiated against

Legal heirs of deceased convicts liable to pay fine: Bombay HC

In a significant ruling, the Bombay High Court has held that legal heirs of a deceased convict are liable to pay fines and compensation, imposed by the trial courts, from the properties left behind by him. The judgement was delivered by Justice Shalini Phansalkar Joshi, who observed that death of a convict does not discharge him from the liability of paying fine and compensation imposed by court, and this amount can be recovered from the properties left behind by the deceased. The judge recently dismissed a petition filed by Shamim Sarkhot, a resident of Srivardhan in Raigad district of Maharashtra, praying that she cannot be compelled to pay the fine and compensation imposed by a court on her husband as she was merely a legal heir of a dead convict. Shamim’s husband, Saifuddin, was convicted by a magistrate in Srivardhan for not honouring a cheque issued by him to a local businessman in 2006. The trial court had ordered him to pay Rs 25,000 fine to the state government and Rs 2.85

Every minister in union and states is ‘public authority’ under RTI Act; CIC

In a recent order, the Central Information Commission has ruled that subject to availability and convenience of the Minister at office in capital city or in his constituency, the ministers owe a moral and democratic responsibility to meet their voters or people in the constituency. The CIC ruled that Ministers in Union and State Governments are public authorities and recommended that the Centre and States provide necessary support to each Minister, which includes designation of some officers or their appointment as Public Information Officers and First Appellate Authorities. It also recommended that they be given an official website for suo motu disclosure of information. The appointment of a Public Information Officer has been directed to be made within two months. A CPIO for the office of Minister of Law has also been directed to be appointed. Lastly, it recommended that the ‘oath of office and affirmations’ administered to each Minister must be changed from being one of secrecy, to

Illegal to reject plea without complainant’s evidence

It is “not legal and logical” to reject plea without giving any opportunity to a complainant to lead evidence, a Delhi court has observed while asking a magistrate to pass a reasoned order on a complaint against an IAS officer for allegedly using a false OBC certificate. Special judge Anju Bajaj Chandna said observations given by metropolitan magistrate in the order dismissing the complaint against the bureaucrat and others were “premature” and the complainant should have been given an opportunity to lead pre-summoning evidence in support of his plea. The court’s order came on a revision petition challenging the magisterial court’s last year order in which the plea seeking registration of FIR against the IAS officer and two others was dismissed. Delhi-based complainant Mahesh Kumar had alleged in his plea that the IAS officer had got into civil services on the basis of “false, forged and fabricated non-creamy layer OBC certificate” and his father had given a false statement in an

UGC Regulations are mandatory rules Full Bench of Kerala High Court

A Full bench of the Kerala High Court in Dr D.Radhakrishna Pillai v State of Kerala and others [W.P.(C) 17148/13] and various other connected cases thereto, has ruled in affirmative that Regulations prescribed by University Grants Commission (UGC) for appointment to the posts of principles and teachers in various universities and affiliated colleges have to be mandatorily followed. The Full Bench overruled a verdict of a division bench as in S.N. College vs. N. Raveendran decided on 24 October, 2001 which held UGC Regulations,1998 would not apply in the absence of any amendments to the university first statutes/byelaws. The matters were referred to a larger bench after a Single bench expressed doubt whether the ruling of the Division Bench in Raveendran’s case laid down a correct law, in view of numerous rulings by apex court which had upheld the validity of UGC norms and regulations. The Full Bench comprising of Justice Antony Dominic, Justice A.Hariprasad, and Justice P.B.Suresh Kuma

Sec 319 CrPC cannot be invoked to add Partnership firm as accused in a Trial under Sec 138 NI Act; Gujarat HC

The Gujarat High Court has held that when a complaint under Section 138 Negotiable Instruments Act, does not name the Partnership firm as accused, but only the partners, Section 319 of the Code of Criminal Procedure cannot be invoked to implead the Partnership firm as the accused, to save such a serious infirmity in the complaint. Justice J.B. Pardiwala observed that when a complaint under Section 138 of the Act has the initial defect in its sustainability, such a defect cannot be cured by amending the proceedings by virtue of an application under Section 319 of the Cr. P.C. Background In a Section 138 complaint, the complainant named six individuals as accused being partners of a partnership firm running in the name of ‘Swastik Construction’, but the partnership firm, as a legal entity or juristic person, was not arraigned as an accused. The Chief Judicial Magistrate took cognizance upon the said complaint and ordered issue of process against all the six partners named as accused in t

Subsidies are to be included in “profits and gains of business or profession

Supreme Court in Commissioner Of Income Tax vs. M/s. Meghalaya Steels, has clarified that subsidies allowed to assessee, has to be included under the head “profits and gains of business or profession”, and not under the head “income from other sources” for the purpose of Income Tax assessment. Dismissing the appeal preferred by the Revenue, the Apex Court Bench comprising of Justices Kurian Joseph and R.F. Nariman observed that so long as profits and gains emanate directly from the business itself, the fact that the immediate source of the subsidies is the Government would make no difference, as it cannot be disputed that the said subsidies are only in order to reimburse, wholly or partially, costs actually incurred by the assessee in the manufacturing and selling of its products. The Court further said”“profits and gains” spoken of by Sections 80-IB and 80-IC have reference to net profit. And net profit can only be calculated by deducting from the sale price of an article all elements

Registrar of Cooperative Societies is a ‘Public Authority’ and required to provide information under RTI Act

A division Bench of Delhi High Court Today held that Registrar of Cooperative Societies is a ‘Public Authority’ and hence duty bound to comply with the provisions of RTI Act and is required to provide information as provided for under Section 2(f) of the Act subject to the limitations enumerated under Section 8 of the RTI Act. The Bench comprising of Justices S. Ravindra Bhat and Deepa Sharma reversed a decision of Central information Commission in which it is held that the Cooperative Societies Act being a special Act took precedence over the RTI Act (which is a general Act) especially when the special Act itself provided to a bona-fide member of a Cooperative Society identical relief as provided under the RTI Act’. Facts; The petitioner has been a member of the Sangha Mitra CGH Society since 1995. She had sought information from the SPIO regarding documents and accounts pertaining to the Society as well as minutes of the general body meeting of the Society. She had also sought inform

PIO not to maintain record not required by law

In Muhammed Siyad P.A. & Ors. v. Sreejith Appu & Ors [W.A No:1135/2015 &other connected cases] the petitioners based on the position of their rank, claimed before the single bench,that they are eligible for consideration towards appointment to various posts of Assistant Executive Engineers existing in the Kerala State Electricity Board(K.S.E.B).The petitioners taking rescue under an information obtained under the R.T.I application, contended that various vacancies (Unfilled/anticipated) existed in the K.S.E.B, so as to substantiate their claim towards appointment.Hence they interalia pleaded for a direction to the respondent K.S.E.B , to notify these vacancies before the Public Service Commission [P.S.C] and to further advise candidates from the rank list to these claimed vacancies as expeditiously as possible, highlighting the expiry of rank list on 15/12/13. Petitioners made a further plea, by placing support on the information received under R.T.I application to harbor t

Courts have no discretion to reduce fine amount prescribed in ESI Act

Supreme Court in Employees State Insurance Corporation vs. A.K. Abdul Samad & Anr, has held that the Courts have no discretion to reduce the fine prescribed in Sec 85 (a) (i) (b) of the Employees’ State Insurance Corporation Act, once the offence has been established. Apex Court Bench comprising of Justices Dipak Misra and Shiva Kirti Singh held that discretion as per proviso to Section 85 (a) (i) (b) is confined only in respect of term of imprisonment. The Law 85(a)(i)(b) of the Employees’ State Insurance Corporation Act prescribes punishment for a particular offence under ESI Act as imprisonment which shall not be less than six months and the convict shall also be liable to fine of five thousand rupees. The proviso however empowers the court that it may, “for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a lesser term;” Background Facts The appellants were found guilty and were punished by imposing a fine of Rs.1000/- and w

Sales tax: Cannot extended time barred assessment

Supreme Court, in State of Punjab Vs. M/s. Shreyans Indus Ltd., has held that power of the Sales Tax Commissioner to extend the time to pass an order on assessment is to be exercised before the normal period of assessment expires.Three Judge Bench of the Apex Court comprising of Chief Justice of India T.S. Thakur, Justices A.K.Sikri and R. Banumati dismissed the appeals by Revenue challenging a judgement of Punjab and Haryana High Court. In this case, when the last dates of assessment were 30th April, 2004, 30th April, 2005, 30th April, 2006 and 30th April, 2007, order extending the time under Section 11(10) of the Punjab General Sales Tax Act, 1948 were passed on August 17, 2007, August 17, 2007, August 17, 2007 and May 25, 2007 respectively. The Tribunal had dismissed the appeal of the assesses who contended that notices were sent beyond the period of assessment and, therefore, it was not permissible for the Assessing Officer to issue notice after the expiry of three years and carry

Prejudice to the Accused to be tested while adding or altering a charge

Supreme Court in Anant Prakash Sinha @ Anant Sinha vs State of Haryana, has observed that while adding or altering a charge under Section 216 CrPC, the trial court has to keep in view, the test of prejudice to the accused. Apex Court Bench comprising of Justices Dipak Misra and Shiva Kirti Singh said that it is the duty of the trial court to bear in mind that no prejudice is caused to the accused as that has the potentiality to affect a fair trial. Background In this case, the Magistrate had allowed an application under Section 216 of the Code of Criminal Procedure by a-wife for framing an additional charge under Section 406 IPC, holding that prima facie case for criminal breach of trust was made out. This order was assailed in revision and the Revisional court partly allowed the revision petition by setting aside the order of framing of charge against the mother-in-law. The said order was upheld by the High Court. The husband then approached the Apex Court. Test of Prejudice Referring

If Cumulative effect of injury cause death its murder

Supreme Court in State of M.P. vs. Goloo Raikwar, has held that when medical report establishes that the injuries inflicted intentionally on the deceased by the accused, were cumulatively sufficient to cause death in the ordinary course of nature, Thirdly of Section 300 IPC is attracted, even if no significant injury had been inflicted on a vital part of the body and when the accused could not be said to have the intention of causing death. Apex Court Bench comprising of Justices J.S. Kehar and C. Nagappan was hearing an appeal by the State against the High Court Judgment which had altered the conviction recorded by Trial court under Section 302 IPC to Section Part I IPC. Referring to State of Andhra Pradesh vs. Rayavarapu Punnayya and Anr. (1976) 4 SCC 382), the Court said “In the present case, the fact that the accused hurled country made bombs, has been established. The incised injuries caused to Hari were intentional and were sufficient to cause death in the ordinary course of natu

MVD officials can seize vehicle records: HC

he Kerala high court on Thursday clarified that motor vehicles department (MVD) officials have the power to seize records of a vehicle that is modified or altered from its original specifications. However, such power should be used only in exceptional circumstances, the court said. Justice V Chitambaresh issued the clarification after considering a petition filed by the MVD through government pleader K A Sanjeetha pointing out that any MVD officer has the power to seize or take copies of vehicle records if he believes any offence under the Motor Vehicles Act has been committed as per section 213(5)(d). Moreover, the Motor Vehicle Rules of 1989 further states that MVD officers can exercise the powers and perform the duties assigned to them under the Act, it was contended. Top Comment The Roman Catholic Church has the largest number of followers of all denominations and religions, and yet her teachings and doctrines can be clearly exposed as being false. So many sincere people hav...

HC reduces compensation for not wearing helmet

In an effort to make two-wheeler riders obey the compulsory helmet rule, the Madras High Court has reduced the compensation awarded to a victim of motor vehicle accident by Rs. 50,000 for contributory negligence on his part by not wearing a helmet. A Division Bench of R. Sudhakar and S. Vaidyanathan made the rare order on a cross objection moved by the victim Mani Raj and an appeal moved by the National Insurance Company against the order of Motor Accident Claims Tribunal (Additional District Judge) Fast Track Court No.I, Poonamallee dated November 17, 2011. The issue pertains to an accident in which Mani Raj was hit by a speeding car on Chitlapakkam main road on November 16, 2007. He was grievously injured in the accident and was bed-ridden, in a vegetative state till 2012. Based on oral and documentary evidence, the Motor Accident Tribunal awarded Rs. 35.50 lakhs compensation to the victim to be paid by the National Insurance Company, who was the insurer of the car that hit Mr. M

Misrepresentation which can be verified or detected....not cheating

In a significant judgment that will change the way beneficiaries of multiple plot allotment are prosecuted, the Punjab and Haryana High Court has made it clear that misrepresentation for allotment of a second flat will not amount to cheating if it can be verified and detected. “Even if it is assumed that the prosecution story is correct and a wrong representation was made, the housing board had the means to verify whether any property stood in the name of the accused or her husband or any other family member. It being so, even the ingredients of cheating as defined in Section 420 of the IPC are not made out,” the High Court has ruled. The judgment by Justice Kuldip Singh, likely to have a bearing on the ongoing HUDA multiple plot allotment cases, came on a plea of the UT against Savinder Jeet Kaur. The Administration had challenged a judgment dated August 18, 2015, passed by the UT Sessions Judge, vide which the judgment of conviction and order of sentence dated August 5, 2014, pass

Coaching centres must go from residential areas: SC

The Supreme Court on Tuesday said coaching centres in residential areas were a nuisance to women and the elderly and must shift out to commercial premises or institutional areas. A bench of Chief Justice T S Thakur and Justice U U Lalit refused to give any relief to petitioner All Rajasthan Coaching Institutes Association, which had challenged the eviction order served on its members by Jaipur Development Authority, following a Rajasthan high court order banning functioning of tutorials illegally from residential colonies. "Morning and evening, youngsters come with bikes. Many loiter around, harassing women and old people. Coaching centres must shift out to commercial premises or institutional areas. We will not permit them in residential areas," the bench said. Appearing for the petitioner, senior advocate Kapil Sibal tried his best to get an interim stay on the eviction notice by arguing it was beyond the jurisdiction of the authority which had served the eviction notice

Supreme Court summarizes Law on Mitakshara Joint family property

Supreme Court, in Uttam vs. Saubhag Singh, has summarized the law governing the Mitakshara joint family property, prior to the amendment of 2005. Apex Court bench comprising of Justices Kurian Joseph and R.F. Nariman was hearing an appeal arising from a suit for partition, which was dismissed both by Trial Court and the High Court, holding that the date of the birth of the plaintiff in 1977 the said ancestral property, not being joint family property, the suit for partition of such property would not be maintainable. The Apex Court summarized the law regarding the joint family property governed by Mitakshara School as follows. When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide Section 6). To proposition (i), an exception is contained in Section 30 Explanation of the Act

Threats to collect tax is illegal

The Delhi High Court last week told the Commissioner of Trade Tax to ensure its officers do not collect cheques from business premises on the ground of discrepancy in the levy and threatening to seal the establishment. The court passed the order because there have been such instances recently and the circular issued by the authorities in this context did not clearly bar such practice by the officers. In this case, Gullu's vs Commissioner, the Additional Value Added Tax officer visited the business premises and told the proprietor that the levy on the meat sold was higher than paid by her and unless Rs 12 lakh was paid by cheque on the spot, the premises would be sealed. The cheque was handed over under the threat. Later, she moved the commissioner alleging that what happened was illegal. The commissioner reviewed the computation and demanded Rs 28 lakh on the spot or else the establishment would be sealed. She then paid Rs 5 lakh. She moved the high court for return of the cheque a

Interest on excess I-T payment upheld

The Calcutta High Court last week ruled that the Income Tax Appellate Tribunal was justified in granting interest to Birla Corporation on refund arising due to excess payment on self-assessment. It also stated the relevant provision, Section 244A of the Income Tax Act, did not bar payment of interest on such refunds. The court thus dismissed the appeal of the Commissioner of Income Tax against the judgment of the tribunal. The revenue authorities argued the law did not provide for interest. Rejecting their contentions, the high court stated when an assessee out of abundant caution pays tax after self-assessment, on which claim is accepted, resulting in refund, the assessee should be entitled to interest. The provision was inserted in the Act as a measure of rationalisation to ensure that the assessee is compensated by the government for monies legitimately belonging to the assessee and wrongfully retained by it.

‘Test of Prejudice to the Accused’ has to be kept in mind while adding or altering a charge against him

Supreme Court in Anant Prakash Sinha @ Anant Sinha vs State of Haryana, has observed that while adding or altering a charge under Section 216 CrPC, the trial court has to keep in view, the test of prejudice to the accused. Apex Court Bench comprising of Justices Dipak Misra and Shiva Kirti Singh said that it is the duty of the trial court to bear in mind that no prejudice is caused to the accused as that has the potentiality to affect a fair trial. Background In this case, the Magistrate had allowed an application under Section 216 of the Code of Criminal Procedure by a-wife for framing an additional charge under Section 406 IPC, holding that prima facie case for criminal breach of trust was made out. This order was assailed in revision and the Revisional court partly allowed the revision petition by setting aside the order of framing of charge against the mother-in-law. The said order was upheld by the High Court. The husband then approached the Apex Court. Test of Prejudice Referring

National anthem should be sung in all private schools - MADRAS HC

The Madras High Court has made it clear that the national anthem should be sung in all private schools in Tamil Nadu during the morning assembly. A Bench comprising Chief Justice Sanjay Kishan Kaul and Justice M.M. Sundresh gave the direction on a petition seeking that singing of national anthem should be made mandatory in schools. “Private schools must follow such singing of national anthem as part of their curriculum,” the bench said disposing a PIL by N. Selvathirumal, an ex-service man, seeking a direction to authorities to make it mandatory for all private schools in the State to sing the national anthem during the assembly. The Bench while recording the stand of the authorities including Union of India that national anthem ought to be sung, in its order directed Central and State Departments of Secondary Education and the Union Human Resources Department to make endeavours to verify whether national anthem was sung in all private schools in the state. Mr. Selvathiurumal s

Casual workers covered under Employees State Insurance Act, 1948

Royal Western India Turf Club Ltd. v. E.S.I. Corporation and Ors. The Supreme Court rejected submissions of the Royal Western India Turf Club Ltd. that casual workers employed by it were outside the ambit of the Employees State Insurance Act, 1948. Terming such an approach "tenuous", the Court held the Club liable for making contributions to the Employees State Insurance Corporation, with interest. The Club's submissions before the Court that being temporary staff, engaged on race-days for issuing tickets, were not covered as 'employees' under the Act were rejected. Also were rejected 'consent terms' evidence such a status quo as the same pertained to an earlier period in which other establishments of the Turf Club were also covered. Relevant Employees State Insurance Corporation v. Hyderabad Race Club MANU/SC/0554/2004 Employees' State Insurance Corporation v. Gnanambikai Mills Ltd. MANU/TN/0308/1974 Section 2 Employees' State Insurance A

Police Chief can appoint officer for investigation outside territorial jurisdiction

State of Kerala v. P.B. Sourabhan and Ors. The State Police Chief or Director General of Police is empowered to appoint a superior officer to investigate a crime case registered outside the territorial jurisdiction of such officer. The Supreme Court disagreed with the finding of the High Court that such an exercise of powers was in excess of the powers under Section 36 Code of Criminal Procedure, 1973. It noted that such a conclusion could not be reached on a reading of Section 36 of the CrPC as it contained no direct bar to the effect; rather "It is the satisfaction of the State Police Chief, in the light of the facts of a given case, that would be determinative of the appointment to be made in which situation the limits of jurisdiction will not act as fetter or come in the way of exercise of such jurisdiction by the superior officer so appointed."

Prosecution on cheque bounce after part payment

If part payments or settlements made after the issuance of a Cheque, Can the Complainant issue a demand for a lesser amount? Whether in such circumstances the criminal prosecution for Dishonour of a Cheque under Section 138 of Negotiable Instruments Act, for higher amount is legally sustainable or not? These two interesting questions arose in a case before Supreme Court which were not answered by the bench as the parties arrived at an amicable settlement. The Apex Court Bench comprising of Justices Dipak Misra and Shiva Kirti Singh in M/s. Moser Baer Photo Voltaic Ltd. Vs. M/s. Photon Energy Systems Ltd. & Ors said that the above questions of law is left open for adjudication in any other appropriate case. The Respondents in the Appeal had issued a cheque of Rs. Rs.3,21,53,903/- to the Appellant. There were some disputes between both the parties which were settled through a mutual meeting, the net payable amount by respondent was reduced and settled at Rs.2,87,09,640/-. The cheque

Insurance - laibility

In National Insurance Co. Ltd. v. Baljit Kaur & Ors. reported in MANU/SC/0009/2004MANU/SC/0009/2004 : (2004) 1 WBLR (SC) 490 the Supreme Court held: "17. By reason of the 1994 Amendment what was added is "including the owner of the goods or his authorised representative carried in the vehicle". The liability of the owner of the vehicle to insure it compulsorily, thus, by reason of the aforementioned amendment included only the owner of the goods or his authorised representative carried in the vehicle besides the third parties. The intention of the Parliament, therefore, could not have been that the words 'any person' occurring in Section 147 would cover all persons who were travelling in a goods carriage in any capacity whatsoever. If such was the intention there was no necessity of the Parliament to carry out an amendment inasmuch as expression 'any person' contained in sub-clause (i) of clause (b) of sub-section (1) of Section 147 would have inclu