Supreme Court

The State of Gujarat Vs. Navinbhai Chandrakant Joshi and Ors.

MANU/SC/0739/2018

17.07.2018

Criminal

When findings recorded by Trial Court is based upon appreciation of evidence, High Court should not reverse Trial Court’s judgment

Present appeals arise out of the judgment passed by the High Court by which the High Court reversed the verdict of conviction passed by the trial Court and thereby acquitting the Respondents under Sections 7 and 13(1)(d) of the Prevention of Corruption Act, 1988. High Court held that, there was no recovery from Accused No. 1-J.D. Patel and the demand and acceptance by the Accused persons has not been proved by the prosecution and acquitted the Accused.

It is well-settled that to establish the offence under Sections 7 and 13(1)(d) of the Act, particularly those relating to the trap cases, the prosecution has to establish the existence of demand as well as acceptance by the public servant. The High Court was not right in brushing aside the evidence of PW-1 who has clearly stated that. Accused No. 1-J.D. Patel demanded bribe of Rs. 1,000 and the same was settled for Rs. 500 for expediting the matter for conversion of the plot for non-agricultural purpose. Recovery of the tainted currency notes from Accused No. 2-Navinbhai and the presence of anthracene powder in the right hand of Accused No. 1-J.D. Patel and the pocket of the shirt of Accused No. 2-Navinbhai clearly show that, they acted in tandem in the demand and acceptance of the bribe amount. When the demand and acceptance of illegal gratification has been proved by the evidence of PWs 1 and 3, the High Court was not right in holding that, the demand and acceptance was not proved. The findings of the trial Court did not suffer from any infirmity and the High Court was not justified in setting aside the conviction of the Accused.

So far as the presumption raised under Section 20 of the Act for the offence under Section 7 of the Act is concerned, it is settled law that the presumption raised under Section 20 of the Act is a rebuttable presumption, and that the burden placed on the Appellant for rebutting the presumption is one of preponderance of probabilities. Since it is established that the Accused was possessing the bribe money, it was for them to explain that how the bribe money has been received by them and if he fails to offer any satisfactory explanation, it will be presumed that he has accepted the bribe.

In the case in hand, the Accused have not offered any explanation to rebut the presumption under Section 20 of the Act. On the other hand, from the evidence of PW-1 that Accused No. 1 demanded the bribe appears to be natural. When the findings recorded by the Trial Court is based upon appreciation of evidence, the High Court was not right in reversing the judgment of the trial Court.

Regarding the sentence of imprisonment for conviction under Section 13(1)(d) of the Act, the trial Court imposed sentence of imprisonment of two years upon each of the Accused. The occurrence was of the year 1991 that is about 27 years ago. In view of the passage of time, the sentence of imprisonment of two years is reduced to the statutory minimum imprisonment of one year. The impugned judgment of the High Court is set aside and appeals are allowed affirming the conviction of the Accused Nos. 1 and 2 under Section 7 and Section 13(1)(d) of the Act.

Tags : Acquittal Validity Presumption

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High Court of Delhi

Entertainment Network (India) Ltd. Vs. HT Media Limited

MANU/DE/2456/2018

13.07.2018

Intellectual Property Rights

In order to conclude whether one mark is deceptively similar to another, broad and essential features of the two are to be considered

The Plaintiff has instituted present suit for permanent injunction restraining the Defendant from using any trade mark that is identical or deceptively similar of the plaintiff's trade mark 'PEHLA NASHA', either as a radio channel titled 'RADIO NASHA' or a trade mark, trading style, name, logo, part of name or in any other manner. It is the case of the Plaintiff that, Defendant, just prior to the institution of the suit has launched a new FM radio channel under the name/mark 'RADIO NASHA' wherein they are using nearly identical/deceptively similar mark as that of the Plaintiff as its channel/brand name, to usurp the well established goodwill and reputation of the Plaintiff.

The observations, even if any made for refusing ad interim injunction in the form of ex parte injunction, even before the Defendant has had an opportunity to file its written statement, are not to affect the decision of the application for interim injunction. It is immaterial that, the music platform under the mark 'PEHLA NASHA' of the Plaintiff is accessible from use of medium of Wi-Fi/internet and the music platform of the Defendant under the mark 'RADIO NASHA' is accessible through the medium of radio/transistor and transmitted through frequency modulation airwaves.

With the widespread use of smart phones having the facility of radio also, even music through airwaves, at least in the cities of Delhi and Bombay is accessed more through smart phones than through radios and transistors which, once an essential fixture in a household and to the extent of requiring licence, are today hardly found in any household. Thus, it cannot also be said that the instrument, through which the music under the mark 'PEHLA NASHA' of the Plaintiff and music under the mark 'RADIO NASHA' of the Defendant can be accessed are different or that the same obliterates the similarity/deceptive similarity.

In the face of the admission of the Defendant of the Plaintiff being the prior adopter of the mark 'PEHLA NASHA' by at least about two years before the Defendant, the reason for the Defendant to adopt the mark 'RADIO NASHA' indeed becomes intriguing. The Defendant had no explanation for adopting the mark 'RADIO NASHA'.

Even otherwise, in today's day and world, trade marks especially for services as that of the Plaintiff and the Defendant have acquired importance several times more than what they did in yesteryears. The Defendant must have engaged professionals for coining the mark 'RADIO NASHA' for its service. It can at this stage safely be assumed that, the Defendant hoped, either to cause loss or harm to the plaintiff by incorporating the word 'NASHA' in its mark or to gain from the goodwill of the Plaintiff. In either situation, the intention of the defendant would qualify as 'not bona fide' and the plaintiff would be entitled to interim injunction.

The word 'NASHA' is a word of Hindi language and means intoxication and/or mania and which need not always be of alcohol and can also be of anything or anyone. The Plaintiff, by adopting the said word in its mark for music services, is attempting to lure the patrons to get intoxicated and addicted to its music and will certainly suffer if any of its patrons, owing to the confusion aforesaid, is directed to the service of the defendant. 'NASHA' is the dominant part of the mark of the Plaintiff with the word 'PEHLA' therein being unlikely to be remembered.

The Supreme Court in Parle Products (P) Ltd. Vs. J.P. & Co., Mysore, held that, a mark is likely to be remembered by the idea it conveys and it is too much to expect the consumers to remember the exact details of the marks. It was further held that, marks are remembered rather by general impressions or by some significant detail than by any photographic recollection of the whole. It was yet further held that, variations in detail might well be supposed by customers to have been made by the owners of the trade mark they are already acquainted with, for reasons of their own. It was thus held that in order to come to the conclusion whether one mark is deceptively similar to another, the broad and essential features of the two are to be considered.

The Plaintiff, after acquiring more goodwill in the mark 'PEHLA NASHA' cannot be prevented from also providing services of an FM Radio under the said mark since both fall in the same class of goods/services in which goods and services are classified under the Trade Mark laws. The balance of convenience is in favour of the Plaintiff and against the Defendant. The loss of even one patron confusing the Defendant for the Plaintiff would be irreparable.

The Defendant, during the pendency of the suit, is restrained from using the mark 'RADIO NASHA' or any other mark similar or deceptively similar to the mark 'PEHLA NASHA' of the Plaintiff in relation to broadcasting, re-broadcasting, radio broadcasting and internet broadcasting services. However it is deemed appropriate to make the said injunction effective with effect from 30 days of the passing of this order/judgment so that the Defendant has sufficient time to effect the change. The application is thus allowed.

Relevant

Parle Products (P) Ltd. Vs. J.P. & Co., Mysore MANU/SC/0412/1972
: (1972) 1 SCC 618, Cadila Healthcare Ltd. Vs. Cadila Pharmaceuticals Ltd. MANU/SC/0199/2001
: (2001) 5 SCC 73

Tags : Mark Similarity Injunction Grant

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High Court of Delhi

Govt. of NCT of Delhi and Ors. Vs. Vandana Panwar

MANU/DE/2472/2018

13.07.2018

Service

Where salary of junior is higher than that of senior, senior is also entitled to fixation of salary at par with her junior

The Petitioner, Department of Education, Government of NCT of Delhi, is aggrieved by the judgment, passed by the Principal Bench, Central Administrative Tribunal, New Delhi allowing application, filed by the Respondent for quashing and setting aside the memorandum dated 18th June, 2015, whereunder, her application for implementation of the increment payable to her from July, 2008 was turned down by the competent authority on the ground that she did not fulfil the requirement of 6 months qualifying period for earning an increment, as on 1st July, 2008. Further, the Respondent had sought directions to the Petitioner to step up her pay at par with that of her junior, Ms. Mamta Meena w.e.f. 1st July, 2008, by granting her an increment payable to her w.e.f. the said date.

The High Court is of the opinion that, the view expressed by the Tribunal in the impugned judgment to the effect that where the salary of the junior is higher than that of the senior, the senior is also entitled to fixation of salary at par with her junior, is a logical conclusion backed by several decisions of the Supreme Court and High Court on the aforesaid aspect. In any case, the Respondent cannot be held responsible for the delay in verification of her age as she had taken all necessary steps to submit the requisite documents to the Petitioner in time.

It is only fortuitous that, the documents of Ms. Mamta Meena were got verified earlier due to which a letter of appointment was issued to her on 7/8th November, 2007, whereas it took some time to verify the documents submitted by the respondent and resultantly, the letter of appointment was issued to her on 4th March, 2008. The Respondent cannot be held responsible for the said delay. Further, in the seniority list drawn by the Petitioner, the Respondent's seniority has been fixed over and above that of Ms. Mamta Meena. This being the position, the Respondent was justified in claiming that, she is entitled to stepping of pay at par with that of her junior. The impugned judgment is affirmed and the petition is dismissed.

Tags : Increment Grant Validity

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High Court of Calcutta

Renesco India Pvt. Ltd. Vs. Eastern Coalfields Limited and Ors.

MANU/WB/0564/2018

12.07.2018

Commercial

Right to refuse lowest or any other tender is always available to Government and public authorities

In the facts of present case, a Notice Inviting Tender ('NIT') dated 6th June, 2016 was issued by Eastern Coalfields Limited ('ECL') for supplying and laying of Tarfelt, removal of old Tarfelt and grading for water proofing treatment for three years in respect of staff quarters of ECL. The Appellant/writ petitioner submitted its bid. Its technical bid was rejected by the Tender Committee. The Appellant challenged the tender process claiming that, its technical bid was wrongfully rejected by the ECL Authorities. Being satisfied that a prima facie case had been made out the learned Single Judge passed an interim order dated 13th January, 2017 restraining ECL from proceeding any further with the subject tender until disposal of the writ application. Direction was given for exchange of affidavits. The said interim order was carried in appeal before the Division Bench. The appeal was dismissed by a judgment and order dated 30th June, 2017.

Subsequently, ECL filed an application before the learned Single Judge praying for leave to issue a fresh tender in supersession of the tender notice impugned in the writ petition. By a judgment and order dated 3rd November, 2017 the learned Single Judge allowed the said application permitting the ECL Authorities to cancel the tender impugned in the writ petition and to proceed with fresh tender. The writ Petitioner was granted liberty to participate in the fresh tender process. Being aggrieved by the said order, the writ petitioner has filed present appeal.

Two questions arise for consideration. Firstly, whether or not the rejection of the appellant's bid by the ECL Authorities is sustainable. Secondly, whether or not the learned Single Judge was justified in permitting the ECL Authorities to cancel/withdraw their earlier tender and float a new tender.

It is not in dispute that, the Appellant's financial bid was the lowest. Financially speaking, the Appellant was L1. However, the Appellant's offer was found to be technically not acceptable since the 'provenness criterion' was not satisfied by the Appellant. It is recorded in the letter dated 24th December, 2016 communicating the rejection of the Appellant's offer that even after two opportunities having been allowed to the Appellant to submit confirmatory documents, the same was not done. Hence, the ability/eligibility of the Appellant was not proven.

The provenness criterion cannot be dispensed with in so far as the Appellant is concerned. Even assuming for the sake of argument that the Appellant was required to supply Tarfelt being the specific product of STP Limited, the tender work envisaged not only supply of Tarfelt but also job work. Repairing and damp proofing treatment works were also involved. For this kind of work, experience and other credentials of a contractor are of vital importance. The tender work was not the kind of work contemplated by Clause 10(vii) of the Technical Section of the NIT. The proposed contract was not for mere supply of a particular product specified by the employer/principal. Hence, the Appellant's submission that the provenness criterion did not apply to it is unacceptable. The letter specifically mentioned that the appellant's bid was being rejected as its offer was technically not acceptable 'as well as not proven as per conditions of NIT'. In our view, the decision of the ECL Authorities does not suffer from the vice of arbitrariness.

Regarding the second question, present Court is of opinion that, the learned Single Judge did not commit any error by permitting the ECL Authorities to withdraw their earlier tender and proceed afresh by issuing a fresh tender. The decision of the ECL Authorities to undertake a fresh tender process cannot be faulted as arbitrary. The learned Judge specifically granted liberty to the Appellant/writ petitioner to participate in the fresh tender process but the appellant chose not to do so. The Appellant could have participated without prejudice to its rights and contentions. Not having participated in the tender process, the Appellant cannot be permitted to make any grievance in respect of the fresh tender.

No concluded contract came into existence between the appellant and the ECL Authorities. The appellant's bid was not accepted. The Appellant's financial bid might have been the lowest but from an overall point of view it cannot be said that the appellant was declared as L1. It is well settled that so long as the bid has not been accepted, the highest or lowest bidder as the case may be, acquires no vested right to have the tender concluded in his favour. In case of a tender, there is no obligation on the part of the person issuing the tender notice to accept any of the tenders or even the lowest/highest tender as the case may be. In the context of a tender floated by the State, it derives its power to enter into a contract from Article 298 of the Constitution of India and has the right to decide whether to enter into a contract with a person or not subject only to the requirement of reasonableness under Article 14 of the Constitution.

While exercising power of judicial review in the matter such contracts, the primary concern of the Court is not to see whether the decision of the authority is correct or not but to see whether there is any glaring infirmity in the decision making process or whether the decision making process is vitiated by mala fides, unreasonableness or arbitrariness. The Writ Court does not sit as an Appellate Court over the decision of an authority while exercising power of judicial review but merely reviews the manner in which the decision was made. The Court does not have the expertise to correct an administrative decision. If review of an administrative decision is permitted, it will amount to substituting its own decision, without the necessary expertise, which itself may be fallible. The Government must have freedom of contract. The right to refuse the lowest or any other tender is always available to the Government and public authorities.

No case that, the ECL Authority's decision to withdraw its earlier tender and proceed afresh was mala fide or actuated by malice has been made out by the Appellant. Mere bald allegations will not suffice. Allegations of malice and mala fide are of a serious nature and must be established by cogent material. The Appellant had not been able to do so. Decision of the Respondent authorities is not unreasonable. Hence, the learned Single Judge correctly permitted the ECL Authorities to implement their decision to cancel the earlier tender process and issue fresh tender notice. Appeal dismissed.

Tags : Bid Rejection Validity

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High Court of Himachal Pradesh

Carzonrent India Pvt. Ltd. and Ors. Vs. State of Himachal Pradesh and Ors.

MANU/HP/0879/2018

12.07.2018

Criminal

FIR must disclose a cognizable offence has been committed. If that condition is satisfied, investigation must go on

The Petitioners are aggrieved by the registration of FIR against them in Police Station under Sections 406, 420 and 120B of the Indian Penal Code, 1860 (IPC) and have filed the present petitions for quashing of the aforesaid FIR. The Petitioners have sought for quashing of the FIR on various grounds like; the offence being purely of a civil nature, the police at Kangra had no territorial jurisdiction to register the FIR and that the contents of the FIR are false and fabricated apart from being vexatious and, therefore, the FIR should be quashed.

The main plank of the argument of learned counsel for the Petitioner(s) for quashing of the FIR is that the same is the counter blast to the proceedings initiated by the Petitioner-Company whereby it has instituted a criminal complaint under Section 138 of the Negotiable Instrument Act, 1881 against Respondent No. 2, which is pending before the Metropolitan Magistrate, Patiala House Court, New Delhi.

The powers possessed by the High Court under Section 482 of the CrPC even though are very wide but it is because of the very plenitude of the power that requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power cannot and should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Undoubtedly, no hard and fast rule can be laid down in regard to cases in which the High Court should exercise its extraordinary jurisdiction of quashing the proceedings at any stage.

It is only when on reading the FIR, a sheer absurdity in allegations is noticed and when no prima facie cognizable case is made out on its mere reading due to absurdity in allegations or when facts disclose prima facie cognizable case, then the Court may, in appropriate case, consider it proper to quash the FIR. It is settled that the condition precedent to the commencement of investigation under Section 157 of the CrPC is that the FIR must disclose, prima facie, that a cognizable offence has been committed. If that condition is satisfied, the investigation must go on. The Court then has no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences.

The Petitioner has prematurely approached present Court for quashing the FIR and it would, therefore, not be appropriate for present Court to quash the FIR without proper investigation being conducted by the police. In the given circumstances, it would not be appropriate for this Court, at this stage when the investigation is yet to be completed, to comment upon the merits of the case. However, we may prima facie set out certain reasons as to why at this stage, we restrain ourselves from interfering or quashing the FIR.

Admittedly, the FIR is not a substantive piece of evidence. It is information of a cognizable offence given under Section 154 of the CrPC. The legislature in its wisdom under the provisions of the Code has given limited/restrictive power to the Court to intervene at the stage of investigation by the police. Investigation is the exclusive domain of the police.

Majority of the allegations, save and except the agreement in question, as set out by the Petitioner, have been denied by the respondents and such denial is not just an evasive denial but is backed by certain explanation as also supporting material. The allegations regarding respondent No. 2 having visited Delhi and handed over the cheques on 05.04.2017, which have been denied by respondent No. 2 are otherwise contrary to the case set up by the petitioner in the complaint under Section 138 of the Negotiable Instruments Act and is, therefore, a matter that is required to be thoroughly investigated.

Further, present Court can quash the FIR only if it comes to a conclusion that, the continuing investigation in the case would amount to abuse of the process of Court. However, as noticed above, this is not the factual situation obtaining in this case and, therefore, present Court cannot abridge the investigation, which is indeed required to ascertain factual assertion made in the FIR. Accordingly, there is no merit in these petitions and the same are consequently dismissed.

Tags : FIR Registration Quashing of

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High Court of Himachal Pradesh

Gurudwara Bei Sehjal Babehar Vs. Gurparkash and Ors.

MANU/HP/0863/2018

11.07.2018

Civil

Judicial orders are required to be both speaking as well as reasoned orders

By way of present petition, challenge has been laid to the order dated 16th January, 2018 passed by the Court of learned Civil Judge, vide which an application filed before it purportedly on behalf of Respondents Nos. 1 to 3 for extending the time to file written statement has been allowed. Learned counsel for the Petitioner has argued that, the impugned order is per se not sustainable in the eyes of law, because while passing the said order, learned trial Court erred in not appreciating that, neither the application filed before it, was a proper application, as the same was neither signed by any of the applicants, nor was it supported by an affidavit, nor the contents therein revealed that there was any cogent explanation in the application as to why the written statement could not have been filed by the applicants within time, as is envisaged in the Code of Civil Procedure, 1908 (CPC).

It is not in dispute that, Respondent Nos. 1 to 3, who were Defendant Nos. 1 to 3 before the learned Trial Court were duly served on 16th September, 2017. It is also a matter of record that since then several opportunities were given to the Defendants to file their written statement, however, no written statement was filed. It is also a matter of record that, on 16th January, 2018 an application was filed for extension of time under Section 148 read with Section 151 of CPC through learned counsel by one applicant namely, Guruprakash. Incidentally, this application apparently has neither been signed by the Applicant though it contains the signature of the learned counsel who moved the application nor the same is supported by an affidavit.

The order impugned before this Court vide which the application filed in the name of Applicant Guruprakash for extension of time for filing written statement was allowed by the learned trial Court is not sustainable in the eyes of law. The Petitioner is correct in his submission that, this order was passed without affording any opportunity of filing reply to the Plaintiffs, which is evident from the fact that the application dated 16th January, 2018 was disposed of on the same day and the order does not mention that opportunity of reply was given to the non applicants, but they chose not to file any reply. The contention that, the order is non-speaking and cryptic is also borne out from the impugned order as neither there is any mention in the impugned order of the facts of the application nor any reasoning whatsoever has been assigned therein as to what weighed with the learned trial court while allowing the application.

Time and again, Hon'ble Supreme Court as also Hon'ble High Courts have been reiterating that judicial orders are required to be both speaking as also reasoned orders. The rationale behind this is that content of the order itself should be self explanatory as to why the conclusion arrived at in the order has been arrived. Besides this, a non speaking order perhaps also is an indicator of non application of mind by the Court concerned while passing the impugned order. Impugned order is quashed and set aside with further direction to the learned Court below to decide the application filed by the applicant Guruprakash after affording opportunity to file reply to the application by the non applicants. Petition disposed off.

Tags : Time Extension Non-speaking order

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