High Court of Karnataka

State of Karnataka Vs. Umesha

MANU/KA/1808/2018

24.05.2018

Criminal

Order of acquittal passed by first Appellate Court cannot be reversed, merely because re-appreciation of evidence leads to another possible view, unless view taken for acquittal is manifestly illegal

Aggrieved by the Judgment passed by the learned Fast Track Court Judge, the State has preferred present appeal. By the impugned Judgment and Order, the Fast Track Court set aside the order of conviction and sentence passed by the learned Civil Judge. Police charge-sheeted the accused in Crime for the offences punishable under Sections 324, 326, 504 and 506 of Indian Penal Code, 1860 (IPC). Question involved in present case is whether the prosecution has proved beyond reasonable doubt the charges brought against the accused, warranting interference of this Court in the order of acquittal passed by the First Appellate Court.

It is the settled position of law that, the scope of interference under Section 378 of Code of Criminal Procedure, 1973(CrPC) at the appellate stage in an order of acquittal is limited. Unless it is shown that the order of acquittal suffers manifest illegality, it cannot be interfered. The impugned order of acquittal passed by the first appellate Court cannot be reversed, merely because re-appreciation of evidence leads to another possible view, unless the view taken for acquittal is shown to be manifestly illegal. Whenever two views are possible, the view which is favourable to the accused is to be accepted.

The Investigating Officer does not cite the wife of the accused as charge sheet witness. The incident is stated to have been taken place at 8.00 p.m. in a tiny village. Therefore, the Investigating Officer could have examined any other independent witness to ascertain the occurrence of the incident. P.W. 4 who is cited as res gestae witness does not support the prosecution version that, he saw the accused and the injured victims together and in that regard he has given statement.

It has also come in the evidence that, there was previous ill-will between the Accused and P.Ws. 1 and 2. In view of this evidence, delay in filing the complaint assumes significance. In the absence of non-examination of residents of the houses surrounding the scene of occurrence and wife of the accused to prove the presence of Accused and P.W. 1 to P.W. 3 at the scene of occurrence at the time of the alleged incident, said fact becomes doubtful. Regarding admission of P.W. 3 in her cross-examination that, she is a tutored eyewitness and the admitted fact of she being their farm servant, her presence at the scene of occurrence becomes doubtful.

The trial Court without taking into consideration the material inconsistencies in the evidence of the witnesses, more importantly P.Ws. 1 to 3, 7 and 8, proceeded to hold that, P.Ws. 1 and 2 being the injured-witnesses and P.W. 3 being the eye-witness, their evidence shall be believed and their evidence is further corroborated by the evidence of P.W. 7. The evidence of P.Ws. 1 to 3, 7 and 8 is not appreciated by the trial Court in proper perspective.

The Trial Court has failed to note that, genesis of the complaint/first information itself is suppressed and the charge is not proved beyond reasonable doubt. The first appellate Court taking into consideration all these aspects, on re-appreciation of the evidence rightly reversed the order of conviction and sentence passed by the Trial Court. The impugned Judgment and Order do not call for interference by this Court.

Tags : Acquittal Validity Evidence Credibility

Share :

Top

High Court of Kerala

Nikhil Mathew Vs. State Bank of India and Ors.

MANU/KE/1068/2018

22.05.2018

Banking

Bank is precluded from declining benefits of Scheme as same is non-discretionary and non-discriminatory

In facts of present case, Petitioner availed a career loan from State Bank of India (the Bank) during 2007 for pursuing pilot training course. The father of the Petitioner who is an officer of the Bank was the co-applicant of the loan. It is stated by the Petitioner that, he could not secure a suitable job on completion of the course and could not therefore liquidate the loan liability as agreed. Nevertheless, it is stated by the Petitioner that he has paid during the last 10 years about Rs. 26 lakhs in the loan account.

While so, the Bank has issued communication to the Petitioner informing him that, it has brought into force a One Time Settlement Scheme called 'Rinn Samadhan-II Scheme' (the Scheme); that, the Scheme offers significant reliefs to the borrowers and that the Petitioner is free to avail the benefits of the Scheme for the purpose of settling his loan liability. On receipt of Exhibit P6, the Petitioner though sent a communication to the Bank expressing willingness to settle the liability in terms of the Scheme, the request made by the Petitioner in this regard was turned down by the Bank in terms of Exhibit P7 communication stating that, the loan being a staff loan, it cannot be settled in terms of the Scheme. The Petitioner is aggrieved by the said decision of the Bank and hence, present writ petition. The short question falls for consideration therefore is whether the Bank is justified in declining the benefit of the Scheme to the petitioner for the reason that his father, who is the co-applicant of the loan, is an officer of the Bank.

There is no dispute to the fact that, the loan liability of the Petitioner satisfies all the eligibility criteria in terms of the Scheme, otherwise, the Petitioner would not have been issued Exhibit P6 communication by the Bank. The Bank has no case that, said liability falls within any of the exclusions made in terms of the Scheme. The Scheme does not also contain any reservation as regards the loans of which the officers/employees of the Bank are co-applicants.

It is stated in the Scheme itself that, it is a non-discretionary and non-discriminatory one. Discretion being one's own judgment as to what is best in a given case, as opposed to a rule governing all cases of a certain kind, it is clear that, by making the Scheme as a non-discretionary, the bank has proclaimed that it will not have the right to decline a request for benefits of the Scheme, if the case would otherwise fall within the parameters of the Scheme. Further, by making the Scheme non-discriminatory also, the Bank has reinforced its stand that the borrowers who are satisfying the parameters of the Scheme will not be denied the benefits of the Scheme on any ground whatsoever. A similar issue came up for consideration before the Apex Court in Sardar Associates and others v. Punjab and Sind Bank and others. It was also a case dealing with a non-discretionary and non-discriminatory one time settlement scheme. The Apex Court held in the said case that, the bank was not justified in declining the benefits of the scheme to the party involved in the said case.

The learned counsel for the Bank also contended that, in order to claim a writ of mandamus in proceedings under Article 226 of the Constitution, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. The power of present Court under Article 226 of the Constitution has been succinctly stated in the Comptroller and Auditor General of India, Gain Prakash, New Delhi and another vs. K.S. Jagannathan and another [MANU/SC/0066/1986
: AIR 1987 SC 537]. It was observed that, "there is thus no doubt that, the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion." In the light of the judgment, the contention of the Bank is rejected. Accordingly, the writ petition is allowed and the Respondents are directed to permit the Petitioner to settle his liability under the Scheme. The Petitioner shall effect the payments due under the Scheme within one month from the date of receipt of a copy of present judgment.

Relevant

Sardar Associates and others v. Punjab and Sind Bank and others [MANU/SC/1351/2009
MANU/SC/1351/2009
, Comptroller and Auditor General of India, Gain Prakash, New Delhi and another vs. K.S. Jagannathan

Tags : Scheme Benefit Entitlement

Share :

Top

Customs, Excise and Service Tax Appellate Tribunal

Oil and Natural Gas Corporation Limited Vs. CCE & ST, Meerut-I

MANU/CE/0227/2018

22.05.2018

Service Tax

Once cenvat credit has been availed in respect of input services, same cannot be disallowed by taking recourse to any thumb Rule or formula

The Appellant was availing cenvat credit under Cenvat Credit Rules, 2004 and, during the period under dispute, availed a total credit of about Rs. 4.48 crores. The Department, during the course of audit of the Appellant's accounts, observed that during the period under dispute the Appellant had incurred a total expenditure on the Institute to the tune of Rs. 1671 crore. But the total taxable value provided was about Rs. 19.74 crore but paid Service tax of about Rs. 2.09 crore. The Audit team observed that, the bulk of the Service tax paid is out of cenvat credit.

Show cause notice was issued to the Appellant alleging that, Service Tax was irregularly availed by the appellant. The Department was of the view that, major portion of the input service was being used for their own organisation and only a very small portion in providing of output taxable service to other service recipients. In the show cause notice, the Revenue adopted a ratio of their output taxable service divided by total expenditure incurred during the year and proceeded to restrict the cenvat credit availed alleged on the basis of the said formula. Accordingly, show cause notice proceeded to disallow a total cenvat credit amounting to Rs. 4.42 crore. The Revenue also alleged suppression of facts on the part of the Appellant and invoked the extended time limit for raising demand. Proceedings were initiated against the Appellant and the impugned order came to be passed in which the adjudicating authority disallowed. Further, penalty was imposed on various grounds of the Finance Act, 1994.

Any service which is used by the provider of taxable service for providing output service is allowable. The Revenue has not brought on record any ground to allege that the credit availed is in respect of ineligible input services. In the absence of any such ground, the cenvat credit availed cannot be denied to the Appellant. The circumstances in which the cenvat credit availed can be restricted or reversed is also specifically spelt out in the Cenvat Credit Rules, 2004. The restriction/reversal of cenvat credit on the basis of the thumb rule/formula adopted by the Revenue has no legal basis. Once the cenvat credit has been availed in respect of input services falling under Rule 2(1), the same cannot be disallowed by taking recourse to any thumb Rule or formula.

The adjudicating authority has held that, the KDMIPE is a Division of ONGC who also renders service to other ONGC Divisions. In respect of such services no service tax is paid and hence the restriction of cenvat credit has been ordered. There is no basis for the stand taken by Revenue. The service, if any, rendered to other ONGC Divisions is in the form of service to self and levy of Service Tax is not justified.

With effect from 1st April, 2016 in Rule 6(1) of the Cenvat Credit Rules stand amended by including Explanation (iii) but such amendment cannot be extended to the prior period. During the course of argument, the Appellant has conceded the demand in respect of Rs. 1.24 lakh as well as Rs. 33,000, the same is upheld as not contested. The impugned order is set aside except the demand admitted as above. The appeal disposed off.

Tags : CENVAT credit Denial Validity

Share :

Top

High Court of Himachal Pradesh

Parmod Kumar and Ors. Vs. State of Himachal Pradesh

MANU/HP/0638/2018

21.05.2018

Criminal

Gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by Court while exercising its discretion

By way of instant petition filed under Section 438 of Code of Criminal Procedure, 1973 (CrPC), prayer has been made on behalf of the Petitioners for grant of anticipatory bail in FIR under Sections 411, 406 and 34 of Indian Penal Code, 1860 (IPC), registered at Police Station. Issue involved in present case is whether Petitioners are entitled for grant of anticipatory bail.

Learned Deputy Advocate General states that the bail Petitioners have joined the investigation in terms of order and are fully cooperating. Learned Deputy Advocate General further contended that, custodial interrogation of the Petitioners is not required and they can be ordered to be released on bail, subject to the condition that, they shall make themselves available for investigation and trial, as and when required by the investigating agency.

Guilt of any of the bail Petitioners is yet to be proved in accordance with law by the investigating agency by leading cogent and convincing evidence, as such, this Court is inclined to accept the prayer having been made on behalf of bail petitioners for grant of bail. Recently, the Hon'ble Apex Court in Dataram Singh v. State of Uttar Pradesh & Anr. has held that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has further held by the Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty.

It is well settled that, gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Apex Court that, object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative.

Object of the bail is to secure the attendance of the Accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that, the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. Bail Petitioners have carved out a case for grant of bail and as such, order is made absolute, subject to the conditions. It is clarified that, if the Petitioners misuse the liberty or violates any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail. The petition stands accordingly disposed of.

Tags : Bail Grant Conditions

Share :

Top

High Court of Himachal Pradesh

Rattan Chand and Ors. Vs. Gopal Sharma

MANU/HP/0628/2018

21.05.2018

Civil

A party requesting a relief stemming out of a claim is required to exercise due diligence

In facts of present case, the Petitioners/Plaintiffs filed a suit for declaration along with consequential relief of injunction with the prayer that, they be declared as legal heirs of Gian Chand and mutation attested in favour of Shivdei is wrong, illegal and null and void and the Will dated 14th July, 2000 is also fake and not genuine and, therefore, not binding on the right, title and interest of the Petitioners/Plaintiffs. The Respondent/Defendant contested the suit on various grounds. After completion of the pleadings, the learned Trial Court framed the issues and thereafter the parties led evidence.

On completion of the evidence of the Respondent/Defendant, he moved an application under Order 8 Rule 1-A of the Code of Civil Procedure, 1908 (CPC) for production of mutation dated 14th August, 2003 whereby the house belonging to Smt. Shivdei was alleged to have been mutated in the names of her brother's sons, however, the said application was rejected. The suit culminated into a decree being passed in favour of the Petitioners/Plaintiffs and the said decree has been assailed by the Respondent and is pending adjudication before the learned Additional District Judge. During the pendency of the civil appeal, the Respondent/Appellant filed an application under Order 41 Rule 27 of the CPC for producing certain documents including mutation dated 14th August, 2003. The same was allowed by the learned first appellate Court and aggrieved thereby, the Petitioners have filed the instant petition.

Regarding plea of res judicata, it is not in dispute that, an application for producing on record the mutation dated 14th August, 2003 was filed before the learned trial Court and the same was rejected. Admittedly, the said order has attained finality as the same was neither assailed by filing a revision petition nor by filing a petition under Article 227 of the Constitution of India and the same was also not assailed under Section 105 of the CPC while filing the first appeal.

'Due diligence' is the idea that a reasonable investigation is necessary before certain kinds of relief are requested. A party requesting a relief stemming out of a claim is required to exercise due diligence and it is a requirement of law which cannot be dispensed with. The term 'due diligence' determines the scope of a party's constructive knowledge and claim and is very critical to the outcome of the suit.

As per the provisions of Order 41 Rule 27(1) (aa) of the CPC, a party can seek liberty to produce additional evidence at the appellate stage and the same can be permitted only if the evidence sought to be produced could only be produced at the stage of trial in spite of exercise of due diligence and the evidence could not be produced as it was not within its knowledge and hence was fit to be produced by the appellant before the appellate forum. It is thus clear that, there are conditions precedent before allowing a party to adduce additional evidence at the stage of appeal which specifically incorporates conditions to the effect that the party in spite of due diligence could not produce the evidence and the same cannot be allowed or permitted to be done at the leisure or sweet-will of the party.

There is nothing on record to indicate and rather it is not even the case of the Respondent that, despite due diligence it was not within his knowledge that such additional evidence sought to be produced by him did exist before the conclusion of the trial. Once, the public documents were within the knowledge of the Respondent, they ought to have been produced at the time of the trial and in this case the application for producing on record the Mutation No. 361 dated 14th August, 2003 already stood rejected and admittedly the said order has attained finality.

The learned Additional District Judge vide the impugned order had though reproduced the provisions of Order 41 Rule 27 of the CPC, but unfortunately, he did not even care to go into the question whether there was due diligence on the part of the Respondent before moving the application in question as per the mandate of Rule. The order passed by the learned Additional District Judge (I), cannot withstand judicial scrutiny and is accordingly set aside. The Petition allowed.

Tags : Document Production Validity

Share :

Top

High Court of Kerala

Sunil and Ors. Vs. Lalitha

MANU/KE/1053/2018

21.05.2018

Civil

Court shall not set aside the decree on mere irregularity in service of summons

The Petitioners are the Defendants 3 to 5 and 7 and 8 and the Respondent is the Plaintiff in the suit. The suit was filed for the realisation of Rs. 9,01,423 with interest at the rate of 12% per annum. The Plaintiff claimed amount on the basis of a dishonoured cheque. The Petitioners are the Trustee of the first Defendant Trust. Even though summons was served to the Defendants, they failed to appear before Court. On 09th June, 2008, the learned Sub Judge passed an ex parte decree allowing the Plaintiff to realise Rs. 9,01,423 at the rate of 12% per annum from the date of suit till realisation with costs and a prohibitory injunction against the Defendants from alienating the plaint schedule property till the realisation of the decree amount.

The Respondent/Plaintiff filed E.P. No. 59 of 2014 in O.S. No. 50 of 2008 for realising the decree amount by attachment and sale of plaint schedule property. On 7th July, 2008, the second Defendant filed I.A. No. 1118 of 2008 to set aside the ex parte decree. Even though notice has been ordered, no steps has been taken and accordingly, the IA was dismissed. The sole issue to be considered is whether there was any laches on the part of the Petitioner in prosecuting the case.

An ex-parte decree against a Defendant can be set aside if the party satisfies the Court that, summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the Court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the Court.

The learned Sub Judge has attached about 6 acres and 35 of cents of land, where Victory Vocational Higher Secondary School is situated, for realisation of the decree debt. In Sreedhara Kurup v. Michael, it is held that, the broad principle of natural justice that informs judicial institution is that the litigant should not be deprived of a hearing unless there has been something equivalent to misconduct or gross negligence on his part. It is also held that, the right of a party to be heard should be negatived only if there is gross negligence or gross carelessness and that if some steps have been taken and application for restoration has been made with some diligence and some evidence adduced making out a sufficient cause for absence, restoration should be ordered, minor misconduct or laches being corrected by the common curative of costs.

In the present case, from the beginning onwards, there was laches on the part of the Petitioners in prosecuting the case. Even after getting summons of the Court, the Petitioner has not cared to appear before the Court in time and therefore, the ex parte decree was happened to be passed by the court below. The restoration application filed by him was also dismissed for the failure to take steps.

It is true that, there is laches on the part of the Petitioners in prosecuting the case. The Petitioners' counsel argued that, the Petitioners have got good case as against the Respondent. The decree amount is Rs. 9,01,423. The intention of the Petitioners is to drag the matter without giving a chance to the Respondent to execute the decree. As has been held in Sreedhara Kurup, it is just and proper to take a liberal approach in the matter and the laches on the part of the Petitioners can be corrected by awarding curative costs.

Present petition is allowed and the orders on the file of Sub Court, is set aside and the matter is restored to file on condition that, the Petitioners shall deposit an amount of Rs. 2,00,000 before the trial Court and shall pay an amount of Rs. 10,000 to the Legal Service Authority of the Sub Court on or before 30th June, 2018.

Relevant

Sreedhara Kurup vs. Outhakutty MickelMANU/KE/0226/1968

Tags : Ex-parte decree Delay Condonation

Share :