Supreme Court

Mukhtiar Singh (since deceased) through his L.R. v. State of Punjab

MANU/SC/0809/2017

14.07.2017

Criminal

Mere possession and recovery of currency notes from an Accused without proof of demand would not establish an offence

Appellant, heir of Mukhtiar Singh (since deceased) has carried this appeal to present Court against affirmation of his conviction under Sections 7 and 13(2) of Prevention of Corruption Act, 1988, recorded at first instance by Special Judge, in his judgment. Thereby, predecessor of present Appellant had been, as a consequence of his conviction, sentenced to rigorous imprisonment for one year for offence under Section 7 and to pay a fine of Rs. 2,000/- thereof and further sentenced to 2 years' rigorous imprisonment for offence under Section 13(2) of Act along with fine of Rs. 2,000/- with related default sentence. Appellant has strenuously urged that, evidence on record is visibly deficient to prove demand, receipt and recovery of any amount of illegal gratification as alleged and thus, as indispensable ingredients of offence with which the original Accused had been charged, have remained unproved, conviction and sentence is patently untenable.

In A. Subair v. State of Kerala, this Court propounded that, prosecution in order to prove charge under above provisions has to establish by proper proof, demand and acceptance of illegal gratification and till that is accomplished, Accused should be considered to be innocent. Carrying this enunciation further, it was exposited in State of Kerala v. C.P. Rao that, mere recovery by itself of amount said to have been paid by way of illegal gratification would not prove charge against the Accused and in absence of any evidence to prove payment of bribe or to show that, Accused had voluntarily accepted money knowing it to be bribe, conviction cannot be sustained.

In P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and Anr., this Court took note of its verdict in B. Jayaraj v. State of A.P. underlining that, mere possession and recovery of currency notes from an Accused without proof of demand would not establish an offence under Section 7 as well as Section 13(1)(d)(i) and (ii) of Act. It was recounted as well that, in absence of any proof of demand for illegal gratification, use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. Not only proof of demand thus, was held to be an indispensable essentiality and an inflexible statutory mandate for an offence under Sections 7 and 13 of Act, it was held as well qua Section 20 of Act, that any presumption thereunder would arise only on such proof of demand.

This Court thus, in P. Satyanarayana Murthy on a survey of its earlier decisions on pre-requisites of Sections 7 and 13 and proof thereof, summed up its conclusions that, proof of demand of illegal gratification, thus, is gravamen of offence under Sections 7 and 13(1)(d)(i) and (ii) of Act and in absence thereof, unmistakably charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors proof of demand, ipso facto, would thus not be sufficient to bring home charge under these two Sections of Act. As a corollary, failure of prosecution to prove demand for illegal gratification would be fatal and mere recovery of amount from person Accused of offence under Sections 7 and 13 of Act would not entail his conviction thereunder.

Evidence with regard to demand of illegal gratification either of Rs. 3,000/- which had been paid or of Rs. 2,000/- as made on day of trap operation is inadequate to comply with pre-requisites to constitute ingredients of offence with which original Accused had been charged. Not only date or time of first demand/payment is not forthcoming and allegation to that effect is rather omnibus, vague and sweeping, even person in whose presence Rs. 3,000/- at first instance is alleged to have been paid, has neither been produced in investigation nor at trial.

Bald allegation of complainant with regard to demand and payment of Rs. 3,000/- as well as demand of Rs. 2,000/- remained uncorroborated. His statement to this effect lacks in material facts and particulars and per se cannot form foundation of a decisive conclusion that such demand in fact had been made by original accused. Viewed in this perspective, statement of complainant and Inspector Satpal, shadow witness in isolation that, original Accused had enquired as to whether money had been brought or not, can by no means constitute demand as enjoined in law as an ingredient of the offence levelled against the original accused. Such a stray query ipso facto in absence of any other cogent and persuasive evidence on record cannot amount to a demand to be a constituent of offence under Section 7 or 13 of Act.

Not only prosecution version of demand and acceptance of illegal gratification in police station seems to be unusual, contradictions of witnesses, with regard to location of transaction relating to Rs. 2,000/- also renders it doubtful. It is also noticeably unusual that, currency notes, when allegedly handed over by complainant to original accused, same instead of being keenly kept with him, were placed casually in card board box placed on his table. Though, original accused, apart from imputing his false implication at instance of Superintendent of Police Cheena, said to be relative of complainant could not adduce any evidence to consolidate the same, fact remains that, this officer at relevant point of time was indeed Superintendent of Police at Mohali and was superior of PW5 who led the trap operation.

Supreme Court is of opinion that, prosecution has failed to prove charge levelled against original Accused beyond all reasonable doubt. Charge against him therefore fails. Trial Court as well as High Court had failed to analyse factual and legal aspects as involved in their true perspectives and resultantly determinations made are not sustainable. Impugned judgment and order of High Court affirming conviction and sentence recorded by trial Court is set aside.

Relevant

A. Subair v. State of Kerala MANU/SC/0890/2009
: (2009) 6 SCC 587, State of Kerala v. C.P. Rao MANU/SC/0678/2011
: (2011) 6 SCC 450, P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and Anr. MANU/SC/1012/2015
: (2015) 10 SCC 152 , B. Jayaraj v. State of A.P. MANU/SC/0245/2014
: (2014) 13 SCC 55

Tags : Illegal gratification Proof Conviction

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Supreme Court

Manmohan Attavar v. Neelam Manmohan Attavar

MANU/SC/0808/2017

14.07.2017

Family

For claiming right of residence, it is necessary that, two parties had lived in a domestic relationship in household

Appellant is 84 years old and Respondent is 62 years old. Respondent seeks to establish her status as wife/companion of Appellant who has been left high and dry by Appellant while on other hand, Appellant categorically denies any such status. Issue involved in present petition is whether an interim order could have been passed on 19.9.2016 permitting Respondent to occupy premises of Appellant and that, whether Single Judge was right in withdrawing proceedings pending before Addl. Sessions Judge to High Court vide impugned order dated 24.10.2016.

Section 17 of Protection of Women from Domestic Violence Act, 2005, creates an entitlement in favour of woman of right of residence under "shared household" irrespective of her having any legal interests in the same. Direction, can include an order restraining dispossession or a direction to remove himself on being satisfied that domestic violence had taken place.

Facts of present case are that, Respondent has never stayed with Appellant in premises in which she has been directed to be inducted. This is an admitted position even in answer to a Court query by Respondent during course of hearing. "Domestic relationship" as defined under Section 2 (f) of D.V. Act, refers to two persons who have lived together in a "shared household". A "shared household" has been defined under Section 2(s) of D.V. Act. In order for Respondent to succeed, it was necessary that, two parties had lived in a domestic relationship in household. However, parties have never lived together in property in question. It is not as if Respondent has been subsequently excluded from enjoyment of property or thrown out by Appellant in an alleged relationship which goes back 20 years. They fell apart even as per Respondent more than 7 years ago. Till 22nd February, 2010, even wife of Appellant was alive. As per Appellant, he is a Christian and thus there could be no question of visiting any temple and marrying Respondent by applying "kumkum", and that too when wife of Appellant was alive. Supreme Court is of view that, nature of ex-parte order passed permitting Respondent to occupy premises of Appellant cannot be sustained and has to be set aside and consequently, Civil Appeal No. 2500 of 2017 is liable to be allowed.

There was no reason for proceedings to be withdrawn from appellate Court to High Court itself. There is not only absence of reason for same but, it would also result in deprivation of valuable rights of Appellant against order of an appellate authority and thus, an additional forum for scrutiny was being negated. Chief Justice of High Court is requested on administrative side to nominate any of ASJs in Bangalore to hear appeal of Respondent and appellate authority shall endeavour to conclude proceedings as expeditiously as possible. Appeals are accordingly allowed leaving parties to bear their own costs with hope that, there would be an early end to this contentious dispute between two parties.

Tags : Domestic relationship. Right Residence

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High Court of Delhi

Narottam Mishra v. The Election Commission of India and Ors.

MANU/DE/1917/2017

14.07.2017

Election

A candidate is disqualified on his failure to lodge true, correct and genuine account of his bona fide election expenses

Petitioner is aggrieved by order passed by Chief Election Commission vide which Petitioner stood disqualified under Section 10-A of Representation of People Act, 1951. This disqualification was for a period of three years to be counted from date of said order; this was under provisions of Section 10-A read with Sections 77 & 78 of said Act. Commission was of view that, failure on part of Petitioner to explain his account of election expenses in manner required by law and having no good reason or justification for such a failure, he had incurred this disqualification.

Respondent No. 1/Election Commission of India on receipt of report from Committee on Paid News thought it a fit case for further inquiry in matter. It accordingly issued a show cause notice to Petitioner under Rule 89(5) of Conduct of Election Rules, 1961. In this intervening period, a proxy litigation on behalf of Petitioner was endeavoured by Radhey Mohan Soni. Radhey Mohan Soni filed W.P.(C) No. 3512/2011. His contention was that the proceedings before the Election Commission initiated by respondent No. 3 under Section 10-A of said Act cannot continue. He managed to obtain an interim order. Proceedings before the Election Commission were stayed because of this confusion which was sought to be created by this proxy Petitioner. Radhey Mohan Soni was in fact a proxy of Petitioner for yet another reason. After show cause notice had been issued to Petitioner on 15th January, 2013, Radhey Mohan Soni again filed an application before Election Commission stating that, show cause notice issued to Petitioner is bad in law. Thus, interim order obtained by Radhey Mohan Soni, which had led to stalling of proceeding before Election Commission were largely at beck and call of Petitioner. Petitioner cannot be absolved of liability of delaying proceedings.

Repercussion and penalty which has to follow once Election Commission concludes that, an offence under Section 10-A of Act, has been committed; would be a disqualification of elected candidate; a person who is prima-facie guilty under Section 10-A of Act, cannot seek succour on ground of delay. A complainant under Section 10-A of Act, would be in same capacity as an informant of an FIR and if police chooses to register FIR after a delay that, by itself would not fatalize FIR. Each case would depend upon its own facts. In present case, delay was largely attributable to proxy acts qua Petitioner.

Apex Court in Ashok Shankarrao Chavan vs. Dr. Madhavrao Kinhalkar and Ors. has upheld vires of Section 10-A of said Act. It was held that, nature of an inquiry as in Section 10-A of Act, would be more or less of a civil nature and principles of preponderance of probabilities alone would apply. As per Section 10-A of Act, Election Commission is to pass an order of disqualification of a candidate on his failure to lodge a true, correct and genuine account of his bona fide election expenses not exceeding maximum limit which has been prescribed. Such an exercise has to be carried out by Election Commission with utmost care and caution; a heavy responsibility is cast upon Election Commission. For this purpose, Election Commission can make an inquiry which is envisaged under Section 10-A of Act.

Election Commission on a fact finding which was in terms of report submitted by Committee on Paid News as also by evidence which had been led before it (which included examination, cross examination of 6 witnesses qua both parties) had returned a fact finding to effect that, newspaper items in question disclosed that, these newspapers were in nature of appeals to public asking them to vote for Petitioner; these articles promoted him; they were to his advantage; Petitioner had knowledge about them; he had not denied them in his cross-examination; his defence being that, these newspaper articles had not been published at his behest. Drawing analogy of rule of presumption, it was for Petitioner to have rebutted this presumption and to set up his case that, these newspaper articles were neither for his benefit and nor at his behest. He did not lead any such evidence on this score. Election Commission holding that, there was an "implied authorization" by Petitioner to publish these news items was thus, a fair finding.

Powers of superintendence as contained in Article 226 of Constitution are wide powers but at same time these powers have to be exercised with care and caution. Unless and until, there is a wholesome perversity pointed out by Petitioner, this Court should be slow in interfering in its writ jurisdiction. This is a well settled proposition of law. Jurisdiction of this Court under Article 227 of Constitution is only to see whether inferior Court or Tribunal has proceeded within its parameters and not to correct an error apparent on face of the record; much less an error of law; it is not a reweighing evidence upon which inferior Court have passed their decision.

Election Commission after weighing all evidence on principle of preponderance of probabilities which is mandated for an inquiry under Section 10-A of said Act and being distinct from a quasi criminal proceedings which is subject matter of proceedings under Section 8(b) of said Act, had returned its finding. Language of Section 10-A of Act is clear. It mandates that, disqualification incurred by a candidate has to be from date of order; what effect it may or may not have on a subsequent election is not what has to be taken into account. Apex Court in Union of India Vs. J.N. Sinha had noted that, if a statutory provision either specifically or by necessary implication excludes application of any law or of principles of natural justice, then Courts cannot ignore mandate of Legislature or statutory authority and read into concerned provisions principles of natural justice. High Court dismissed the petition.

Relevant

Ashok Shankarrao Chavan vs. Dr. Madhavrao Kinhalkar and Ors. MANU/SC/0466/2014
, Union of India (UOI) vs. Col. J.N. Sinha and Anr. MANU/SC/0500/1970

Tags : Election expenses Account Disqualification

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High Court of Delhi

International Tractors Ltd. v. Commissioner of Central Excise & Service Tax

MANU/DE/1919/2017

13.07.2017

Excise

A party cannot be allowed to avail of both exemptions, when clear intention is to permit only one exemption

In facts of present case, Petitioner is a manufacturer of various models of tractors. Tractors which are so manufactured, are sold both in domestic market and are also exported. Present petition involves models of tractors exported by Petitioner during period 2006 to 2008. Petitioner claimed rebate of duty by invoking Rule 18 of Central Excise Rules, 2002. Assistant Commissioner approved input/output norms declared by Petitioner, upon verification, for purpose of claiming of rebate of duties. Petitioner filed 39 rebate claims claiming rebate of duties for its exports during relevant period. Said claims were not allowed. Petitioner preferred 39 appeals before Commissioner, which were dismissed vide order dated 29th February, 2012. Petitioner thereafter approached Revisional Authority ('RA'), who vide order dismissed revision application. Short issue arising in present case is whether Petitioner is entitled to rebate of duty under Rule 18 of Central Excise Rules, 2002 ("CER"), having availed of benefit of Notification No. 93/2004-Cus : MANU/CUST/0150/2004
dated 10th September, 2004 issued under Section 25(1) of Customs Act, 1962 ('CA') ("Notification No. 93").

It is the admitted position that, Petitioner has availed benefits under Advance Authorizations by importing input material and exporting manufactured goods. Petitioner has, thus, availed of benefit of non-payment of customs duty on whole of imports which it made during relevant period. Discharge of Advance Authorizations given in favour of Petitioner was as per Notification No. 93 of 2004.

In present case, there is a categorical reference to Rule 18 of CER in Notification No. 93. It is a conscious and deliberate inclusion, as, policies envisaged in Rule 18 of CER and Notification No. 93 is grant of rebate on payment of excise and exemption from payment of customs duty respectively. A party cannot be allowed to avail of both exemptions when clearly, intention seems to be to permit only one exemption.

Reference to Rule 18 and 19(2) of CER in Notification No. 93 clearly reveals that, non-payment/rebate of either excise duty or customs duty is being granted to encourage exports. Once an export transaction has been used for seeking discharge of Advance Authorizations issued under CA, same export transaction cannot be used for seeking rebate of duty under CER, as rebate, in this case, is subject to conditions and limitations, as specified in Notification No. 93, which clearly requires that 'facility under Rule 18 or Rule 19(2) of CER’, ought not to have been availed. Petitioner's right to seek rebate is clearly limited by this condition and hence, it is not entitled to rebate under Rule 18 of CER. Petitioner is not entitled to the relief prayed for.

Tags : Duty Rebate Entitlement

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National Consumer Disputes Redressal Commission

New India Assurance Company Ltd. Vs. Pravin Krushna Tatkari

MANU/CF/0414/2017

13.07.2017

Consumer

Insurance Company cannot repudiate claim in toto in case of loss of vehicle due to theft

Challenge in present Revision Petition under Section 21(b) of Consumer Protection Act, 1986 is to order passed by Maharashtra State Consumer Disputes Redressal Commission (State Commission). By impugned order, State Commission has allowed Appeal, directing Insurance Company to pay to Complainant’s claim amount of 10,75,250/-, with interest @ 9% p.a. from date of filing of Consumer Complaint. Insurance Company has also been directed to pay a compensation of 50,000/- and cost of 20,000/- to Complainant. Brief point that falls for consideration is whether Insurance Company was justified in repudiating claim by invoking Clause 5 of terms and conditions on ground that, Complainant had not taken due care and caution while parking vehicle and invited theft.

It is not in dispute that, theft took place during validity period of Insurance policy and that incident was duly intimated to Insurance Company and an FIR was also filed in concerned Police Station. Clause 5 of said terms and conditions provides that, insured shall take all reasonable steps to safeguard vehicle insured from loss or damage and to maintain it in efficient condition and Company shall have at all times free and full access to examine the vehicle insured or any part thereof any driver or employee of Insured. In event of any accident or breakdown, vehicle insured shall not be left un-attended without proper precautions being taken to prevent further damage or loss and if vehicle insured be driven before necessary repairs are effected, any extension of the damage or any further damage to vehicle shall be entirely at Insured's own risk.

Specific pleading of Insurance Company is that, when vehicle was parked in an open space and door had no lock, Complainant ought to have appointed someone as security personnel for vehicle is completely unjustified. It is pertinent to note that, "standard reasonable care" has not been specifically defined in policy, for Insurance Company to repudiate whole claim on basis of "proper precautions" not being taken. Stand of Insurance Company that Complainant, in a contingency situation, where, there is breakdown of insured vehicle, should appoint security personnel to take care of vehicle, is truly beyond any reasonable expectation and such an argument only goes to show that, term "reasonable care", is being construed to advantage of Insurance Company.

Apex Court in National Insurance Company Limited Versus Nitin Khandelwal, observed that, Insurance Company cannot repudiate claim in toto in case of loss of vehicle due to theft. In view of judgment of Apex Court and fact that there was a statement made by driver that, door was not locked and there was no window glass, Commission is of opinion that, claim can deserves to be allowed on non-standard basis as there is no fundamental breach of any of conditions stipulated in contract. Hence, this Revision Petition is allowed in part reducing decretal amount awarded by State Commission to 75% of 10,75,250/-, to be paid by Insurance Company to Complainant, with interest @ 9% p.a. from date of repudiation till date of realization, within four weeks from date of receipt of this order.

Relevant

National Insurance Co. Ltd. vs. Nitin KhandelwalMANU/SC/7639/2008
Tags: Compensation, Quantum, Validity

Tags : Compensation Payment Direction Validity

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Supreme Court

P.N. Mohanan Nair Vs. State of Kerala

MANU/SC/0803/2017

11.07.2017

Criminal

Substantive sentences imposed upon Appellant in three separate prosecutions, are to run concurrently

In facts of present case, Appellant was a Peon in office of Sub Registrar, Vazhoor. He was alleged to have misappropriated Rs. 92,225/- from public funds during 1995-1996, without making remittance in Sub Treasury, creating false challans showing remittance. Prosecution initiated under Sections 13(2) read with 13(1)(c) and 13(1)(d) of Prevention of Corruption Act,1988 and under Sections 409, 465 and 471 of Indian Penal Code, 1860 (IPC), was split up in three different cases. Three cases were tried jointly and common evidence was recorded.

Enquiry Commissioner and Special Judge, Thrissur, by a common judgment convicted Appellant to one year rigorous imprisonment under Sections 13(2) read with 13(1)(c) and 13(1)(d) of the Act in each one of them, along with fine. Conviction was further under Section 409 of IPC to one year rigorous imprisonment in each, as also three months rigorous imprisonment each, under Sections 465 and 471 of IPC. Substantive sentences in each case were directed to run concurrently. Short question of law for consideration is, if offences essentially constitute a single transaction, but have been split up by prosecution into three separate cases, will sentences imposed individually, run concurrently or consecutively.

Essentially, allegations constituted a single transaction, between same parties for a block period, split up by prosecution, presumably for its convenience, into three different cases. Evidence also was common, and so is conviction. Section 427(1) of Code of Criminal Procedure, 1973 (Cr.PC) stipulates that, where a person undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, it shall commence at expiration of imprisonment previously sentenced, unless Court directs that, subsequent sentence shall run concurrently with such previous sentence. Jurisdiction being discretionary must be exercised on fair and just principles in facts of a case.

In facts of case, exercise of discretion under Section 427(1) of Cr.PC, mandates that, substantive sentences imposed upon Appellant in three separate prosecutions, are directed to run concurrently, except default sentence, if fine by way of compensation as imposed has not been paid by him. Appellant would naturally be entitled to all consequential reliefs for release from custody as available in law. Appeals stand disposed.

Tags : Sentence Imposition Validity

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