Judgments
Supreme Court
Baliraj Singh v. State of Madhya Pradesh
MANU/SC/0500/2017
25.04.2017
Criminal
Value of medical evidence is only corroborative; it proves that, injuries could have been caused in manner alleged
Present appeal arises out of impugned judgment passed by a Division Bench of High Court of Madhya Pradesh, upholding conviction and sentence passed by trial Court against Appellant herein for offence punishable under Section 302/34 of Indian Penal Code, 1860. High Court found the statements of eyewitnesses to be cogent and trustworthy, therefore concurred with judgment of Trial Court and dismissed appeal of Appellant-Accused. Case on behalf of Appellant is that, most of prosecution witnesses are interested witnesses, particularly eyewitnesses belong to one family and they had a longstanding grudge against Accused over property dispute between both families, and hence, Appellant was falsely implicated in retaliation.
Admittedly, there was no peace and harmony between victim and Accused groups as they locked horns with each other over a longstanding dispute dating back 30 years, relating to mutation proceedings of some landed property. Thrust of prosecution to prove charge against Appellant was mainly on evidence of (PW 8)--wife of complainant and sister-in-law of deceased, (PW 9)-- wife of deceased and (PW12)--family friend of deceased, to make an endeavour that, in all probability, it was Accused who committed the guilt. In facts of present case, circumstances warrant application of due care and caution in appreciating the statements of eyewitnesses because of fact that, prime eyewitnesses are related inter-se and to deceased. Courts below erred in not applying principle of strict scrutiny in assessing evidences of eyewitnesses.
Post-mortem report prepared by Doctor upon examining body of deceased, that, there was a punctured wound just below angle of right mandible over right side of neck 1" x 1/2" x 3" and on dissection, he found that major artery was punctured and trachea was cut. There was hematoma underlying whole side of neck and in opinion of Doctor, injury was caused by a sharp piercing object. In his evidence, Doctor confirmed that, cause of death was due to excessive haemorrhage form punctured wound over right side of neck caused by sharp piercing object and due to punctured major blood vessel, over right side of neck.
It was on record that, at instance of Accused-Appellant, police have recovered (Ext. P7) from arhar field the lathi allegedly used in offence. However, nowhere it is recorded that, seized lathi contained any sharp edges with iron coated. Even it was not sent for examination of Doctor to ascertain whether fatal injury could be resulted by it. Moreover, record says that, blood on bloodstained cap of deceased seized from place of occurrence did not tally with that of deceased.
Another glaring deficiency is that Sub-Inspector who conducted seizure proceedings and prepared seizure memo has not been examined by prosecution. It is settled proposition in criminal jurisprudence that ordinarily, value of medical evidence is only corroborative. It proves that, injuries could have been caused in manner alleged and nothing more. The use which defence can make of medical evidence is to prove that, injuries could not possibly have been caused in manner alleged and thereby discredit eyewitnesses. In this case, nature of injury, contradiction about time of arrival of witnesses, contradictions between ocular and medical evidence, non-examination of Police officer who conducted seizure and subsequent improvement by one of eye witness casts a serious doubt on prosecution's case. Supreme Court set aside conviction against Appellant as recorded by trial court and upheld by High Court and Appellant is acquitted of charges.
Relevant
Solanki Chimanbhai Ukabhai v. State of Gujarat MANU/SC/0150/1983
: AIR 1983 SC 484
Tags : Conviction Evidence Credibility
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Supreme Court
Raj Talreja v. Kavita Talreja
MANU/SC/0493/2017
24.04.2017
Family
Conduct of a spouse levelling false accusations against other spouse is cruelty
In facts of present case, wife filed a suit praying for injunction that, husband should not be permitted to enter matrimonial home. Certain news items appeared in newspapers in which serious allegations were made against husband. Newspaper reports were based on intimation given by the wife. Wife filed a complaint to State Women Commission making serious allegations against husband. Thereafter, she sent a similar letter to Chief Justice of High Court as well as Superintendent of Police. Finally, she made another complaint to Chief Minister. These complaints were found to be false. First Information Report was registered at instance of wife against Appellant husband under Section 452, 323 and 341 of Indian Penal Code, 1860. Police investigated matter and filed a report, stating that, there is no merit in FIR. According to police, injuries on the person of wife were self inflicted and she has filed a false FIR. It was recommended that, criminal proceedings be initiated against her under Section 182 of Indian Penal Code. Husband moved an amendment application in divorce petition incorporating all these facts and alleging that, due to filing of the false complaints before various authorities, he had been subjected to cruelty by the wife. Trial Judge dismissed the petition. Appeal filed by husband was also dismissed. Hence, present appeal.
Cruelty can never be defined with exactitude. What is cruelty will depend upon facts and circumstances of each case. In present case, from facts narrated above, it is apparent that, wife made reckless, defamatory and false accusations against her husband, his family members and colleagues, which would definitely have effect of lowering his reputation in the eyes of his peers. Mere filing of complaints is not cruelty, if there are justifiable reasons to file complaints. Merely because, no action is taken on complaint or after trial Accused is acquitted may not be a ground to treat such accusations of wife as cruelty within meaning of Hindu Marriage Act 1955. However, if it is found that, allegations are patently false, then there can be no manner of doubt that, said conduct of a spouse levelling false accusations against other spouse would be an act of cruelty. In present case, all allegations were found to be false. Later, she filed another complaint alleging that, her husband along with some other persons had trespassed into her house and assaulted her. Police found, on investigation, that not only was the complaint false but also injuries were self inflicted by wife. Thereafter, proceedings were launched against wife under Section 182 of Indian Penal Code.
It is not disputed that, wife continues to live in house which belongs to mother of husband whereas husband lives along with his parents in a separate house and son and daughter-in-law of parties live with wife. Son is working with husband. It is stated that, husband had always fulfilled his paternal obligations to his son and is continuing to pay maintenance to his wife as fixed by Court.
Supreme Court directed that, husband shall pay to wife a sum of Rs. 50,00,000/- as one time permanent alimony and she will not claim any further amount at any later stage. This amount be paid within three months. Further, wife shall continue to live in house which belongs to mother of husband till husband provides her a flat of similar size in a similar locality. For this purpose, husband is directed to ensure that, a flat of value up to Rs. 1,00,00,000/- be transferred in name of his wife and till it is provided, she shall continue to live in house in which she is residing at present. Petition for divorce filed by husband under Section 13 of Hindu Marriage Act, 1955 is decreed and marriage of parties solemnized on 13th April, 1989 is dissolved by a decree of divorce.
Tags : Cruelty Divorce Decree
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Supreme Court
Vedanta Limited V. Emirates Trading Agency LLC
MANU/SC/0474/2017
21.04.2017
Contract
Existence of a concluded contract is sine qua non in compensation claim for loss and damages
Respondent's Suit for breach of contract and damages was decreed by Principal District Court, in Original Suit for a sum of Rs. 5,25,55,460/- with interest @ 8% from date of plaint till realisation. First Appeal by Appellant was dismissed by High Court. In Special Leave Petition preferred against same, liberty was granted to approach High Court in the review jurisdiction, on issue whether agreement between parties constituted a concluded contract or matters rested at stage of a proposal and a counter proposal only. Liberty was further granted to approach this Court again, if aggrieved. Review application was dismissed by High Court. Appellant submitted that, agreement was a draft proposal from Respondent regarding supply of phosphoric acid by Appellant in a specified duration. Appellant made a counter proposal to Respondent; both with regard to quantity of supplies and duration of supply. No concluded contract had arisen between parties in absence of any final agreement having been executed.
Breach of promise by Appellant to make promised supplies had resulted in Bangladesh Chemical Industries Corporation (BCIC) forfeiting performance guarantee of Respondent in addition to other pecuniary liabilities imposed. Suit was then instituted by Respondent claiming damages with interest. In a commercial contract, course of conduct of parties, exchange of correspondences, are all important considerations for conclusion whether there existed a concluded contract or not. Isolated examination of agreement shall, therefore, not be appropriate so as to warrant interference with the concurrent findings.
Contract between Respondent and Appellant was independent of contract between Respondent and BCIC. Appellant had only offered a backup support to supply phosphoric acid to Respondent in case the contract was awarded to the latter. In written statement, Appellant had taken a specific defence regarding absence of any concluded contract between it and Respondent. Trial Court as well as First Appellate Court did not specifically deal with issue of draft agreement, corrections in same, existence of a proposal and counter proposal with regard to quantity and time period for supplies, absence of any executed contract by virtue of Appellant having signed, stamped and returned agreement to Respondent, in confirmation. On a presumptive reasoning, based on exchange of correspondence preceding draft agreement, First Appellate Court affirmed finding in Suit of a concluded contract between parties.
High Court, despite noticing specific plea of Appellant with regard to absence of a concluded contract between parties in view of a counter proposal, much less that, agreement was never signed, stamped and returned, reiterated earlier observations of First Appellate Court of a concluded contract between parties based on exchange of correspondence preceding draft agreement, and also on premise that, Respondent had submitted its offer to BCIC on assurance of Appellant for backup support, if contract was awarded to former. High Court declined to delve further into agreement holding it, to be impermissible in review jurisdiction and concluding that, grounds urged were superficial in nature without any material proof, designed to avoid payment, and dismissed review application. High Court failed to notice that, as recent as 28.01.2008, Respondent was still awaiting confirmation of its proposal from Appellant, and soon thereafter performance guarantee was invoked by BCIC against Respondent on 13th April, 2008.
Section 7 of Indian Contract Act, 1872 provides that, in order to convert a proposal into a contract, acceptance must be absolute and unqualified. Existence of a concluded contract is a sine qua non in a claim for compensation for loss and damages under Section 73 of Act arising out of a breach of contract. If instead of acceptance of a proposal, a counter proposal is made, no concluded contract comes into existence. In U.P. Rajkiya Nirman Nigam Ltd. v. Indure (P) Ltd., Apex Court observed that, material alterations in contract make a world of difference to draw an inference of concluded contract.
Fulcrum of entire controversy is draft agreement dated 26th October, 2007 marked Exhibit 8-A, for supply of phosphoric acid by Appellant to Respondent. Proposal of Respondent, led to a counter proposal by Appellant. There was no acceptance of proposal by Appellant giving rise to a concluded contract. Quantity and duration of supply, therefore, remained in realm of uncertainty and was never agreed upon so as to give rise to a concluded contract. In absence of a concluded contract between parties having been established by Respondent, claim under Section 73 of Act was not maintainable. Supreme Court set aside Impugned orders and allowed the appeals.
Relevant
U.P. Rajkiya Nirman Nigam Ltd. v. Indure (P) Ltd. MANU/SC/0362/1996
: (1996) 2 SCC 667
Tags : Decree Damages Validity
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High Court of Delhi
Mahanagar Telephone Nigam Limited v. Haryana Telecom Limited
MANU/DE/1072/2017
21.04.2017
Arbitration
Party complaining breach of contract is entitled to reasonable compensation whether or not actual loss is proved to have been caused
Mahanagar Telephone Nigam Limited ('MTNL') has filed present petition under Section 34 of Arbitration & Conciliation Act, 1996 challenging an Award dated 12th March, 2003 passed by Arbitral Tribunal ('AT') in disputes between MTNL and Respondent, Haryana Telecom Limited ('HTL'). AT held that, since MTNL failed to prove actual loss or damage on account of delayed delivery of goods and since, mere delay in supplies was unlikely to cause damages, question of even fixing a reasonable compensation under Section 74 of Indian Contract Act, 1872 ('ICA') did not arise. Consequently, MTNL was asked to refund HTL sum of Rs. 1,03,20,763 together with interest @ 12% from the date of Award till the date of payment.
In present case, it is not possible for Court to agree with submission on behalf of HTL that, MTNL was required to prove actual loss suffered by it. Purpose of first part of Clause 16.2 is to provide for a genuine pre-estimate of damages payable as LD even without requirement of having to prove actual loss. Section 74 of ICA emphasises that, in case of a breach of contract, party complaining the breach is entitled to reasonable compensation whether or not actual loss is proved to have been caused.
In present case, AT proceeded on erroneous basis that, first part of Clause 16.2 required proof of actual loss. In fact, first part of said clause applied only where "delayed portion of supply does not in any way hamper commissioning of system." If it did, then second part of Clause 16.2 applies. Very interpretation of Clause 16.2 and of Section 74 of ICA by AT was, therefore, flawed.
Specifically, AT has overlooked legal position as explained in ONGC v. Saw Pipes Limited and, in particular, its observation that "in some contracts, it would be impossible for Court to assess compensation arising from breach and if compensation contemplated is not by way of penalty or unreasonable, Court can award same, if it is genuine pre-estimate by parties as measure of reasonable compensation." Conclusions of AT that: "Forfeiture of part of price is out of all proportion to damage" and that "It is unconscionable for purchaser to retain and withhold part of price" is not on basis of analysis of pleadings or evidence. Specifically, plea of MTNL that it purchases materials from several sources and "delay caused by one of suppliers by itself cannot be pleaded and proved" and, therefore, present case "falls within that class where Court may not be able to assess compensation on account of breach of contract to supply some material" was not even discussed by the AT. Purport of HTL's letter No. Nil dated 6th May, 1995 to MTNL stating that, it was ready to "accept price and L/d as acceptable to MTNL" was also not examined.
Interpretation of Clause 16.2 by AT is such that, no fair minded or reasonable person would adopt in facts and circumstances of case. Impugned Award is also contrary to settled legal position as regards Section 74 of the ICA. Consequently, impugned Award is set aside on ground that, it is contrary to provisions of contract, the ICA and also opposed to fundamental policy of Indian law as explained in decisions of Supreme Court. MTNL is not liable to return sum claimed from it by HTL.
Tags : Damages Compensation Validity
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Central Administrative Tribunal
R. Manoj Kumar V. University Grants Commission and Ors.
MANU/CA/0358/2017
21.04.2017
Service
Mere reduction of promotion chances is no ground to interfere in prudence of employer to fix any ratio for promotion and direct recruitment
In present case, validity of new Recruitment Rules of University Grants Commission notified vide GSR 839(E) dated 26th August, 2016: MANU/HRDT/0028/2016
as regards the recruitment to post of Joint Secretary, and consequential advertisement notice dated 08th September, 2016 published in Hindu Allahabad inviting applications for post of Joint Secretary by direct recruitment are under challenge in present OA. Grievance of Applicant and challenge to new Recruitment Rules of 2016 is twofold; (i) fixation of 25% quota for direct recruitment by reducing 100% promotion quota is detrimental to promotional avenues of applicant; and (ii) amendment is in contravention to Dop & T OM No.AB-14017/61/2008-Estt. (RR) dated 13th October, 2015.
Section 25(d) of University Grants Commission Act, 1956, empowers Central Government to make rules laying down terms and conditions of service of employees appointed by Commission. Thus, it was within legislative field and power of Central Government to frame these rules. It is not case of Applicant that, rules are ultra vires to Act or even ultra vires to Constitution in any manner. Only ground is that new Recruitment Rules have been framed with mala fide intention to accommodate some favourites. Alleging mala fides to legislative action is not to be entertained unless, it is so apparent and so significant that it goes to very root of case. In present case, no such allegation has been made. Only ground urged is that new recruitment rules have reduced promotional avenues of Applicant as against 100% quota of promotion 25% posts have been reserved for direct recruits thereby reducing promotional avenues of the promotees by 25%.
Contention of Applicant that, age limit and qualifications have been prescribed under new Recruitment Rules of 2016 for promotees for first time is incorrect. Age limit meant for direct recruits and qualifications were applicable for promotees even under 1993 Recruitment Rules. Regarding reduction of quota for promotees is concerned, even under 1993 Recruitment Rules, post of Joint Secretary was to be filled up by promotion, failing which by deputation or direct recruitment. Thus, deputation and direct recruitment were also prescribed modes of appointment to post of Joint Secretary, though these modes were to be adopted in event the post could not be filled up by promotion.
To make rules and laid down service conditions is prerogative of employer and experts in field. Courts do not venture into this area, unless service conditions are ultra vires to provisions of enactment whereunder rules have been framed or are ultra vires to Constitution. No such allegation has been made, nor is any material placed on record to challenge impugned notification as ultra vires to Constitution or to provisions of University Grants Commission Act, 1956. Mere reduction of chances of promotion is no ground to interfere in prudence of the employer to fix any ratio for promotion and direct recruitment. In any case, 75% posts are still available for promotion. Rule making authority/employer in its prudence chooses to induce talent by direct recruitment. No fault can be found with its wisdom/action.
Law laid down by Hon'ble Supreme Court is that, policy matter, particularly, relating to promotions of government servant is primarily within domain of employer. Mere chance of promotion is not a condition of service. Even if, promotional avenues are reduced on account of alteration of promotion rules/policies, no interference is warranted. Applicant is still entitled to avail promotional avenue against 75% quota. As regards question of age limit is concerned, age is relaxable by 5 years for employees of Central Government, State Governments, Universities and Autonomous Bodies. UGC is itself an autonomous body, and thus, Applicant would be entitled to age relaxation in event, he crosses 50 years of age or as and when vacancy for promotional quota is to be filled up, and merely on this count, rules cannot be interfered with.
On second question that DoP & TOM dated 13th October, 2015 requires Government to put up proposed rules on website of Ministries/Departments for 30 days for inviting comments from stakeholders. Present OM is applicable in respect to proposal for framing/amendment in Recruitment Rules of any post in Ministries/Departments and their subordinate and attached offices. This Memorandum has no application so far the autonomous bodies are concerned. UGC is creation of a Statute and is totally independent autonomous body. It is neither part of Ministry, nor a department of Government or a subordinate and attached office. UGC falls outside purview of Office Memorandum.
Tags : Recruitment rules Appointments Validity
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Customs, Excise and Service Tax Appellate Tribunal
Cheema Spintex Ltd. V. Commissioner of Customs (ICD) TKD, New Delhi
MANU/CE/0292/2017
21.04.2017
Customs
Delay caused in an act required to be done by Government authority cannot be adopted as ground for penalizing innocent Appellant
In instant case, Appellant was a 100% EOU engaged in manufacture and export of cotton yarn. Appellant sought permission to opt out of EOU scheme. Development Commissioner gave approval to exit from EOU scheme on payment of duty on capital goods under prevalent EPCG scheme. Said directions of Development Commissioner were complied with by Appellant including calculation of duty liability. Duty so calculated was finally paid by Appellant. Appellant applied for 'No Dues Certificate' which was given by Deputy Commissioner, on 3rd December, 2007. After 'No Dues Certificate', final de-bonding order was issued by Development Commissioner. Thereafter, Appellant had effected 70 exports under 70 free shipping bills. As per Appellant, they were made to file free shipping bills in respect of exports made after 26th September, 2007, even though, they had fully paid requisite duty, as final de-bonding order was yet to be passed.
Appellant applied to Revenue for conversion of 70 free shipping bills into draw back shipping bills in respect of export of cotton yarn made during intervening period from 26th September, 2007 to 9th January, 2008. Adjudicating authority vide impugned order addressed issue of conversion of free shipping bills to draw back shipping bills and concluded that such conversion was possible. However, he allowed conversion of only 31 shipping bills out of total 70 shipping bills which were filed during period between issuance of 'No Dues Certificate' and issuance of de-bonding order. In respect of shipping bills filed prior to issuance of 'No Dues Certificate', he rejected such conversion on ground that inasmuch 'No Dues Certificate' was not issued by Revenue, such conversion request cannot be accepted.
Appellant completed all formalities and discharged their duty obligation on 26th September, 2007 and applied to Revenue for issuance of 'No Dues Certificate'. Said certificate could have been issued by Revenue within a period of one week, two weeks or so, in which case the benefit would have been granted to Appellant even earlier. There is no answer as to why issuance of said certificate took more than two months. Issuance of certificate is not in hands of Appellants and delay taken by Revenue for issuance of such certificate cannot act prejudice to Appellants interest. Delay caused in an act required to be done by Government authority cannot be adopted as a ground for penalizing an innocent Appellant. As such, date of issuance of 'No Dues Certificate' by Revenue cannot be adopted as a relevant date so as to decide Appellant's right to conversion of shipping bills.
Appellant having completed formality for exiting out of 100% EOU status on 26th September, 2007 itself, was entitled to benefit of DTA unit, irrespective of non-issuance of 'No Dues Certificate'. Issuance of said certificate is only an extension of event of Appellant having become a non 100% EOU. Issue of 'No Dues Certificate' would relate back to date of application filed by Assessee for issuance of said Certificate on completion of their obligation to pay the duty amount.
Tribunal in case of Hindustan Zinc Ltd. vs. CCE, Jamshedpur has observed that, acknowledgment of declaration by Assessee on a later date would relate back to date of filing of application/declaration. To similar effect is Tribunal's decision in case of Sahaj Cerchem (P) Ltd. vs. CCE, Kanpur laying down that, endorsement in change of companies name would always be effective from date of application. 'No Dues Certificate' issued by authorities would always relate back to date of application or to date of final payment of duty and delay in issuing such certificate, which is in hands of authorities and Appellant has no role to play, would not affect Appellants right to claim benefit as a DTA unit. As adjudicating authority has already extended benefit of conversion of free shipping bills into draw back shipping bills for period subsequent to issuance of 'No Dues Certificate' and there is no dispute about Appellants right to do so, It was held that, Appellant would be entitled to such benefit for previous period also. Commissioner is directed to examine Appellants claim vis-à-vis various shipping bills from date of discharging their full duty liability from which date Appellants would be considered as a DTA unit.
Relevant
Hindustan Zinc Ltd. vs. CCE, Jamshedpur [1999 (109) ELT 232 (Tri)], Sahaj Cerchem (P) Ltd. vs. CCE, Kanpur [MANU/CE/0429/1996
: 1996 (87) ELT 656 (Tri)]
Tags : Certificate Grant Delay
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