Judgments
Supreme Court
Suzuki Parasrampuria Suitings Pvt. Ltd. Vs. The Official Liquidator of Mahendra Petrochemicals Ltd. and Ors.
MANU/SC/1126/2018
08.10.2018
Civil
A litigant can take different stands at different times but cannot take contradictory stands in the same case
The Appellant is an assignee of debt by the Industrial Finance Corporation of India Ltd. ("IFCI") for the outstanding of Mahendra Petrochemicals Ltd. It is aggrieved by the Appellate order declining to interfere with the orders of the Company Judge in Company Application and also the order dated 7th September, 2015, declining to recall/review the order dated 31st July, 2015. The question which is required to be considered in present application is as to whether the Applicant can be permitted to be substituted for and in place of IFCI Limited as the secured creditor of the company in liquidation.
In view of the provisions contained in the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (SARFAESI Act), when the Applicant company is not a bank or banking or financial institution or securitization company or reconstruction company, the Applicant cannot be permitted to be substituted in place of IFCI as secured creditor for the purpose of SARFAESI Act.
The provisions of Section 130 of the Transfer of Property Act, 1882 are not applicable to the facts of the present case as the IFCI has transferred the debts of the company in liquidation in favour of the Applicant by deed of assignment and therefore, the case of the Applicant is that it may be permitted to proceed against the company in liquidation under the SARFAESI Act as secured creditor. The applicant is not entitled to get any benefit under the SARFAESI Act and cannot be termed as secured creditor. Hence, the reliance placed by Applicant on the provisions of Section 130 of the Act, is misconceived.
The Appellant initially took a conscious and considered stand before the Company Judge, staking a claim for being substituted as a secured creditor under the SARFAESI Act consequent to the assignment of debt to it by the IFCI. After the claim of the Appellant of being a secured creditor was rejected by the Company Judge, and the Appellant realised the un-sustainability of its claim in the law, it made a complete volte face from its earlier stand and surprisingly, contrary to its own pleadings, now contended that it had never sought the status of a secured creditor under the SARFAESI Act.
The recitals in the order sheet with regard to what transpired before the High Court are sacrosanct. A litigant can take different stands at different times but cannot take contradictory stands in the same case. A party cannot be permitted to approbate and reprobate on the same facts and take inconsistent shifting stands. Appeal dismissed.
Tags : Substitution Secured creditor Entitlement
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High Court of Delhi
Rajiv and Ors. Vs. State NCT of Delhi
MANU/DE/3679/2018
08.10.2018
Criminal
Essence of crime of conspiracy is unlawful agreement and not its accomplishment
Present appeals are directed against the judgment passed by the trial Court whereby the Appellants were convicted for the offence punishable under Section 120B of the Indian Penal Code, 1860 (IPC), Section 302 IPC read with Section 120B and Section 201 of IPC read with Section 120B of IPC. The Appellants have also challenged the order on sentence whereby they were sentenced to undergo rigorous life imprisonment (RI).
It is well settled that, a criminal conspiracy is hatched in secrecy and prosecution cannot be burdened to establish the same with direct piece of evidence. The prosecution can discharge its onus by relying upon the circumstances to establish the existence of criminal conspiracy, however, the circumstances relied upon by the prosecution have to be of a definite character which unerringly point towards guilt of the accused. In the case of criminal conspiracy, the Court has to infer certain facts and circumstances.
In considering the question of criminal conspiracy, it is not always possible to give affirmative evidence about the date of formation of conspiracy, about the persons who took part in the formation of conspiracy, about the object which the conspirators set before themselves as the object of conspiracy and the manner in which the object of conspiracy was to be carried out. All this is necessarily a matter of inference. It is not necessary that, there should be an express proof of the agreement, as from the acts and conduct of the parties, the agreement can be inferred.
As per Section 120A of the IPC, for imputing a person as a conspirator, there has to be existence of an agreement between two or more persons either to do an illegal act or to do a legal act through illegal means. It is a well settled proposition of law that, agreement of conspiracy can be proved either by direct evidence or by circumstantial evidence or by both and despite that an offence of conspiracy cannot be deemed to have been established on mere suspicion, surmises or inferences which are not supported by cogent or acceptable evidence.
When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy.
It is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished.
It is clear that, even though there is no direct evidence to prove the criminal conspiracy between A1 and A2, the Court can look into the surrounding circumstances and their antecedent and subsequent conduct to prove the charge of criminal conspiracy. Both the Appellants failed to provide a reasonable explanation of their prolonged and multiple conversations over the mobile phone. Explanations given by A1 and A2 are false in view of the CDR record of both the mobile numbers. The false explanation given by A1 and A2 are in itself additional links in the chain of circumstances as has been decided by the Apex Court in many cases.
In Sharad Birdhichand Sarda Vs. State of Maharashtra, it was held that a false explanation or false plea taken by the accused can be used as an additional link in the chain of circumstantial evidence subject to the satisfaction of three essential conditions, namely, (i) various links in the chain of evidence led by the prosecution have been satisfactorily proved, (ii) the said circumstance points to the guilt of the accused with reasonable definiteness, and (iii) the circumstance is in proximity to the time and situation.
There is consistency in the facts established by the prosecution, which only leads to the hypothesis of the guilt of A1 and A2 and the chain of evidence is so complete as to not leave any reasonable ground for a conclusion consistent with the innocence of A1 and A2. The prosecution has proved its case against the Appellants upto the hilt. There is no merit in both the appeals which are accordingly dismissed.
Relevant
Sharad Birdhichand Sarda Vs. State of Maharashtra MANU/SC/0111/1984
: (1984) 4 SCC 116
Tags : Conspiracy Circumstantial evidence Conviction
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High Court of Allahabad
Amrit Lal Vs. State of U.P.
MANU/UP/3379/2018
05.10.2018
Criminal
Evidence of Food Inspector need not necessarily corroborate from independent witnesses
The revisionist-accused has preferred present revision under Sections 397 and 401 of Code of Criminal Procedure, 1973 (CrPC) against the judgment passed by Special Judicial Magistrate under Sections 7 and 16 of Prevention of Food Adulteration Act, 1954. He has also assailed the order passed by Special/Additional Session Judge dismissing Criminal Appeal confirming conviction under Sections 7 and 16 of Act, 1954 and sentenced for rigorous imprisonment of six months and fine of Rs. 1,000 in case of default, three months additional rigorous imprisonment.
The objective of Section 10 (7) of Act, 1954 is to ensure that actual or genuine transaction of sale of sample and its formalities have been observed. The provision is mandatory. Food Inspector must make genuine efforts to get the corroboration of one or more persons present on the spot to witness his act of taking sample and completion of other formalities. Once such an effort has been made, but in vain, it cannot be said that, there is any non-compliance of Section 10(7) of Act, 1954.
Once the efforts have been made by Food Inspector to call for one or more independent witnesses but none agreed or cooperated, then it cannot be said that there is any breach of requirement of Section 10(7) of Act, 1954 and it will not vitiate the prosecution at all. The Apex Court in State of U.P. v. Hanif, said that there is no such law that the evidence of Food Inspector must necessarily need corroboration from independent witnesses. His evidence is to be tested on its own merits and if found acceptable the Court would be entitled to accept and rely on to prove prosecution case..
The act of adulteration need be viewed with absolute strictness and stringent measures must be taken to prevent it, else Society in general would continue to suffer in the hands of adulterators, who are minting money playing with health of public at large without taking care whether suffering consumer would be an innocent child, a pregnant lady, a patient in Hospital struggling for life or any such other needy person. In the present case, the prosecution has proved the case beyond doubt. Accused has been found guilty of adulteration of Bejhar. Court below has already taken a lenient view by imposing punishment of only six months rigorous imprisonment and fine of Rs. 1000.
From the perusal of record, it transpires that complainant was able to prove the offence labelled against the revisionist beyond reasonable doubt and facts. Even otherwise, punishment imposed by Courts below after finding charge proved beyond doubt is not to be interfered lightly unless the Court finds adequate and appropriate reason therefor. In Pathumma and another v. Muhammad, reiterating the above view the Court said that in revisional jurisdiction the High Court would not be justified in substituting its own view for that of a Magistrate on a question of fact. The revision is, accordingly dismissed.
Relevant
U.P. v. Hanif, MANU/SC/0206/1992
: AIR 1992 SC 1121, Pathumma and another v. Muhammad, MANU/SC/0196/1986
: 1986(2) SCC 585
Tags : Conviction Provision Compliance
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High Court of Bombay
Apurba Kumar and Ors. Vs. The Institute of Banking Personnel Selection and Ors.
MANU/MH/2789/2018
05.10.2018
Service
Mere inclusion of candidate's name in the select list does not confer any right to be appointed even if some of the vacancies remain unfilled
In present matter, Respondent No. 1 is an Autonomous Body, who is entrusted with the duty to conduct recruitment process for the post of Probationary Officers/Management Trainees for the Respondents-participating organizations. Pursuant to selection process for the post of Probationary Officers/Management Trainees for the year 2016-2017, the Petitioners' selection as wait list/reserve list candidates and right of the Petitioners to claim appointment is the subject matter of the present petition.
The Petitioners participated in the selection process for the post of Probationary Officers/Management Trainees for the year 2016-2017. The very advertisement provides for on-line examination process which speaks of the filling up of the post during the financial year 2016-2017 based on the business needs of the Respondents-participating organizations. It is also required to be noted that, the guidelines in the said advertisement provide for the automatic expiry of the validity of the select list/wait list after 31st March, 2017.
Clause-F i.e. Provisional Allotment of the advertisement provides that, there is no absolute right in favour of the candidate who claims right of appointment as per the advertisement and the clearing of the examination by the concerned candidate will not constitute offer for employment. It further provides for reserve list to the extent of 10% of the vacancies under each category is required to be maintained. However, the same does not guarantee the provisional allotment/recruitment by the participating organization(s)/other financial organizations. It also provides that, the reserve list will automatically expire on 31st March, 2017.
The Hon'ble Supreme Court in the matter of Sankarsan Dash v. Union of India has already held that, if name of the candidate appears in the select list, he does not have absolute right in asking for the appointment. Mere inclusion of candidate's name in the select list does not confer any right to be appointed even if some of the vacancies remain unfilled. The concern candidate cannot claim that, there is a hostile discrimination. Petition dismissed.
Relevant
Shankarsan Dash vs. Union of India MANU/SC/0373/1991
Tags : Wait list Appointment Grant
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High Court of Calcutta
Jagu Vs. The State of West Bengal
MANU/WB/0922/2018
04.10.2018
Criminal
Examination of any particular number of witnesses is not required for proving prosecution case and reliance can be placed on solitary witness
Present appeal has been preferred by the Appellant assailing the judgment and order of conviction passed by the trial Court. By virtue of the impugned judgment, Appellant was convicted for the commission of Offence punishable under Section 302 of the Indian Penal Code, 1860 (IPC) and was sentenced to suffer imprisonment for life and to pay fine of Rs. 2000 in default to suffer simple imprisonment for six months with a direction for set off against substantive sentence of imprisonment as per provisions of Section 428 of the Code of Criminal Procedure, 1973 (CrPC). The other accused was acquitted from the charge punishable under Sections 302/109 of IPC.
With regard to reliance on the solitary eye witness, it is a settled proposition of law of evidences that, examination of any particular number of witnesses is not required for proving the prosecution case and reliance can be placed on the solitary witness, if the Court comes to the conclusion that, said statement is true and correct version of the case of prosecution.
In Alamgir vs. State (NCT, Delhi), it was also observed by the Hon'ble Court that, reliability of a witness cannot be questioned on the ground that she is an interested witness. The test of creditworthiness ought to be the guiding factor. P.W.1, the only eye witness had fully corroborated the prosecution case. Moreover, FIR was lodged at the P.S. on the same date immediate after the death of the victim directly naming the Appellant.
It is settled law that, for certain defects in investigation, lapses on the part of the investigating officer, the accused cannot be acquitted, when the prosecution case is otherwise proved based on the testimony of the eye witness corroborated by post occurrence witnesses and the medical evidence. In the instant case, P.W.1, the only eye witnesses has vividly narrated the entire incident implicating the Appellant and the weapon used in the commission of the offence and she withstood the rigour of cross-examination and remained unshaken during cross-examination and the same also found corroboration from the post occurrence witnesses and the medical evidence. Further, there is no rule of law that the inquest can be held only after receipt of the complaint at the police station.
The number and nature of the injuries suggest that, the intention was clearly to cause death. Therefore, there was no impropriety on the part of the learned Court below to pass the order of conviction and sentence under Section 302 of IPC against the Appellant. The conviction and sentence imposed on the Appellant is affirmed. Appeal dismissed.
Tags : Solitary witness Conviction Validity
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High Court of Calcutta
Surjit Singh and Ors. Vs. Union of India
MANU/WB/0928/2018
03.10.2018
Civil
Emotional dependence cannot be measured to be in part; either it is there or is not there
In present matter, the daughter of the Appellants (hereafter the victim) died on August 2, 1999 in a rail accident. The accident claimed the lives of several persons including the victim and her husband. The father-in-law of the victim had initially filed a claim application for compensation. It was dismissed as not maintainable in view of Section 123 of the Railways Act, 1989. In terms thereof, the father-in-law of a deceased passenger is not entitled to be treated as "dependant" of the victim.
Thereafter, the Appellants filed a claim application for compensation under Rule 5 of the Railway Claims Tribunal (Procedure) Rules, 1989 exercising the right to claim compensation conferred by Section 125 of the 1989 Act read with Section 16 of the Railway Claims Tribunal Act, 1987 (hereafter the 1987 Act). The Tribunal declined to grant compensation to the Appellants on the ground of lack of evidence to prove that, the Appellants were dependant on the victim, either wholly or partly.
It is a well-recognized rule of interpretation of statute that, the Court's jurisdiction to interpret a statute can be invoked only when the same is ambiguous. The Court cannot enlarge the scope of legislation or intention when the language of the provision under consideration is plain and unambiguous. Similarly, it is well settled that while interpreting statutory provisions, the Court should consider each word, phrase, or sentence as each of them has a meaning and purpose and none of them can be treated as redundant or useless.
Emotional dependence cannot be measured to be in part; either it is there or is not there. According to the scheme of compensation envisaged in the relevant statutory provisions and the context in which the word 'dependant' appears in the statute (Section 125 of the 1989 Act, and as defined in Section 123 thereof), the conclusion seems to be inescapable that, it signifies economic dependence and cannot be read in a manner to include emotional dependence.
There is otherwise no evidence of the Appellants being economically dependent on the victim. Sending of some money, and that too not regularly, does not lead to the conclusion of the Appellants being partly dependant on the victim for their survival.
It is unfortunate and pitiable that, the Appellants lost their daughter in the rail accident but on that score alone, the statutory provisions cannot be put aside or read in a strained manner to award compensation. No reason to interfere with the impugned award. Accordingly, the appeal stands dismissed.
Tags : Compensation Denial Validity
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