5 November 2018


Judgments

Supreme Court

S. Sarojini Amma Vs. Velayudhan Pillai Sreekumar

MANU/SC/1215/2018

26.10.2018

Civil

A conditional gift only becomes complete on compliance of conditions

Present appeal has been filed against the judgment passed by the High Court whereby the High Court allowed the Second Appeal filed by the Respondent and set aside the judgment and decree passed by the First Appellate Court in favour of the Appellant. The short question involved in instant appeal is whether a document styled as gift deed but admittedly executed for consideration, part of which has been paid and the balance promised to be paid, can be treated as formal document or instrument of gift.

Gift means to transfer certain existing moveable or immoveable property voluntarily and without consideration by one person called the donor to another called the donee and accepted by or on behalf of the donee as held by the Supreme Court in Naramadaben Maganlal Thakker v. Pranivandas Maganlal Thakker and Ors. The execution of a registered gift deed, acceptance of the gift and delivery of the property together makes the gift complete. Thereafter, the donor is divested of his title and the donee becomes absolute owner of the property."

A conditional gift with no recital of acceptance and no evidence in proof of acceptance, where possession remains with the donor as long as he is alive, does not become complete during lifetime of the donor. When a gift is incomplete and title remains with the donor the deed of gift might be cancelled.

Present Court is in agreement with the decision of this Court in Reninkuntla Rajamma v. K. Sarwanamma that, there is no provision in law that ownership in property cannot be gifted without transfer of possession of such property. However, the conditions precedent of a gift as defined in Section 122 of the Transfer of Property Act, 1882 must be satisfied. A gift is transfer of property without consideration. Moreover, a conditional gift only becomes complete on compliance of the conditions in the deed.

In the instant case, admittedly, the deed of transfer was executed for consideration and was in any case conditional subject to the condition that, the donee would look after the Petitioner and her husband and subject to the condition that, the gift would take effect after the death of the donor. There was no completed gift of the property in question by the Appellant to the Respondent and the Appellant was within her right in cancelling the deed. The judgment and order of the High Court cannot, therefore, be sustained. The appeal is allowed and the judgment and order under appeal is set aside.

Relevant

Naramadaben Maganlal Thakker v. Pranivandas Maganlal Thakker and Ors. MANU/SC/1045/1997
: (1997) 2 SCC 255, Reninkuntla Rajamma v. K. Sarwanamma MANU/SC/0612/2014
: (2014) 9 SCC 445

Tags : Gift Condition Completion

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High Court of Delhi

Anand Mohan Saran Vs. CBI

MANU/DE/3890/2018

26.10.2018

Criminal

Once there is a prima facie case in existence against Petitioner, his allegation of malafide are of no consequence

Instant is a petition invoking Section 482 of the Code of Criminal Procedure, 1973 (CrPC) for quashing of entire proceeding pending in case registered under Sections 7, 8, and Section 13(1)(d) Read With Section 13(2) of Prevention of Corruption Act, 1988 and Section 120-B of Indian Penal Code, 1860 (IPC) on the ground of lack of evidence. Issue raised in present matter is whether instant petition invoking Section 482 of CrPC for quashing of entire trial proceedings pending in the trial Court is liable to be allowed.

Admittedly, the inherent power under Section 482 is wider than Section 397 of CrPC, however, the inherent power under Section 482 is to be invoked in extraordinary situations to prevent abuse of the process of the law. It is not proper for present Court to bring out the conclusion or guilt or conviction at this stage on the basis of the statement under Section 161 of CrPC and other material documents placed on the record without cross examination having been done by the trial court as the same is subject of trial. The basis of the innocence or the guilt of the offender would depend on the evidence lead by either side with reference to the facts of the case.

Once there is a prima facie case in the existence against petitioner, his allegation of malafide are of no consequence. The admissibility of sequence of audio data would be determined on the basis of facts leading to its recording and preserving its originality as per the Indian Evidence Act, 1872 before the trial Court subject to cross examination and there is no other method to adopt which could facilitate its evidentiary value otherwise. Merely forming the opinion on the basis of the documents placed on record will not bring out the truth of the case.

Nothing significant comes out from the plea of delay in trial by the Petitioner to meet the ends of justice. Therefore, present Court finds no ground to invoke Section 482 of CrPC in present facts and circumstances of the case, the present petition is accordingly rejected.

Tags : FIR Quashing of Evidence

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High Court of Jammu and Kashmir

Sanjay Kumar Vs. State of J&K

MANU/JK/0950/2018

26.10.2018

Criminal

Under trial prisoners who have completed half of maximum sentence prescribed for offence for which they were arrested, not be detained in jail

The Petitioner/Appellant has filed the instant application seeking suspension of sentence and for grant of bail in case in which he stands convicted vide order passed by the trial Court under Section 304-II of Ranbir Penal Code (RPC). Issue involved in present case is regarding suspension of the impugned judgment as well as sentence.

As per Section 497-D of CrPC, where a person has during the period of investigation, inquiry or trial under this Code or an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under the law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties.

In present case, the applicant has undergone more than half of the sentence awarded to him by the learned trial Court. Hon'ble Supreme Court in case 'Bhim Singh v. Union of India and ors. held that, under trial prisoners who have completed half of maximum sentence prescribed for offence for which they were arrested, not be detained in jail.

Appeal is a continuation of trial. In present case Appellant has been awarded punishment for ten years and he has already undergone about nine years. The sentence awarded by trial Court is suspended and the applicant/appellant enlarged on bail, subject to conditions.

Relevant

Bhim Singh v. Union of India and ors. MANU/SC/0786/2014
: 2016 (1) SCC (Cri) 663

Tags : Sentence Suspension Grant

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High Court of Punjab and Haryana

Vinod Vs. State of Haryana

MANU/PH/1465/2018

26.10.2018

Criminal

Court can compound offence, if the parties have settled the dispute amicably

Prayer in present appeal is for setting aside the judgment of conviction passed by the Additional Sessions Judge vide which the Appellant was convicted under Section 307 of the Indian Penal Code, 1860 (IPC) read with Section 34 of IPC and the order of sentence vide which the Appellant was sentenced to undergo R.I. for a period of four years, for an offence punishable under Section 307 of IPC read with Section 34 of IPC along with fine of Rs. 2,000 and in default of payment of fine, to further undergo R.I. for six months.

In Sube Singh and another Vs. State of Haryana and another, a Division Bench of present Court has held that even after conviction, if the parties have settled the dispute amicably and have decided to live in peace and harmony, this Court, in exercise of powers under Section 482 of CrPC can compound the offence.

In view of facts of present case, the parties have decided to bury their inter-se dispute and further decided to live in peace and also in view of the report of the Mediator, present appeal is partly allowed. Judgment of conviction is upheld and sentence awarded to the Appellant is reduced to the period already undergone by the Appellant. Since, sentence of the Appellant has already been suspended, his bail/surety bonds shall stand discharged. Appeal stands disposed of.

Relevant

Sube Singh and another Vs. State of Haryana and another, MANU/PH/2804/2013
: 2013 (4) RCR (Crl.) 102

Tags : Conviction Dispute Settlement

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Customs, Excise and Service Tax Appellate Tribunal

C.C.-New Delhi (ICD TKD) (Import) Vs. Aggarwal Trading Comapany

MANU/CE/0490/2018

25.10.2018

Customs

In absence of statutory provisions, no inherent powers of Court exists to condone delay

In facts of present case, the Assessee, had filed a refund claim under special refund mechanism as provided for under the exemption Notification No. 102/2007-Cus : MANU/CUST/0175/2007
dated 14.09.2007 . The claim is with respect to special additional duty of Customs (SAD) leviable under sub-Section 5 of Section 3 of Custom Tariff Act, 1975.

The Assistant Commissioner vide order has rejected the said claim on the ground that, the same has been filed after the prescribed time limit of one year from the date of payment and as such is rejected as being barred by time. Being aggrieved, the Assessee approached the first appellate authority. The Appeal of Assessee was allowed accepting the refund claimed. Department being aggrieved is in Appeal. The moot question to be adjudicated in the present case is as to whether there is any time limit prescribed by law for filing the refund claim of additional duty of Customs as stands exempted vide the Notification No. 102/2007 : MANU/CUST/0175/2007
.

No doubt, the said Notification is silent about any time period for filing the said claim. But the Notification exempts the goods in first schedule of Customs Tariff Act from being leviable to the additional duty of Customs. However, the Notification itself mandates the deposit of the said additional duty at the time of importation of the goods and thereafter to get the refund. It becomes abundantly clear that, the importer has the knowledge of his entitlement to file the refund of additional duty of Customs at the time of the payment of said duty itself i.e. at the time, the product being in first schedule (under the exempted category) is imported. Resultantly, for claiming the refund of additional duty nothing else has to happen or to be done by the assessee after the payment of said additional duty of Customs.

Also, the amending Notification No. 93/2008 : MANU/CUST/0156/2008
is arising out of the statute, i.e. Section 25(2A) of the Customs Act, 1962 hence, the findings of the Commissioner(Appeals) that the amendment introducing one year from the date of payment of additional duty as a time to claim the refund thereof is without statutory amendment, is not sustainable rather is opined to be legally erroneous. Otherwise also, the said amendment came into force w.e.f. 01.08.2008 that too in accordance of another statutory provision, i.e. Section 25(4) of the Customs Act.

The Hon'ble Apex Court in the case Naseeruddin Vs. Sitaram Aggarwal has held that, in the absence of statutory provisions, no inherent powers of the Court exists to condone the delay. It was also held that a statutory right has to be exercised in the mode, manner and limitation specified in the special statute itself.

The refund claim of additional duty due to the exemption flowing out of Notification No. 102/2007 : MANU/CUST/0175/2007
has to be filed within one year in view of the subsequent Notification No. 93/2008-Cus : MANU/CUST/0156/2008
which still holds good and also in view of Section 27 of the Customs Act, 1962. The Commissioner (Appeals) has committed an error while giving an expanded interpretation qua limitation to favour assessee. Said Order is set aside and appeal is allowed rejecting the impugned refund claimed.

Relevant

Naseeruddin Vs. Sitaram Aggarwal MANU/SC/0100/2003
: A.I.R. 2003 (S.C.) 1543

Tags : Refund claim Grant Validity

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High Court of Allahabad

Inamul Haque and Ors. Vs. State of U.P.

MANU/UP/3849/2018

24.10.2018

Criminal

A person cannot be punished twice for the same offence

The instant criminal appeal under Section 374 (2) of Code of Criminal Procedure, 1973 (CrPC) has been preferred by the Appellants, challenging the judgment of conviction and punishment passed by learned Additional Sessions Judge, whereby the Appellants have been convicted for the offence under Sections 489-B, 489-C of Indian Penal Code, 1860 (IPC) and sentenced with rigorous imprisonment for life.

The Appellants submitted that, the learned trial Court has wrongly believed the prosecution case, no recovery was made from the possession of the Appellants. No independent witness has been examined on behalf of the prosecution. It is submitted that according to the prosecution version only fake currency notes were recovered from the possession of the Appellants, their use has not been even alleged by the prosecution. Issue for consideration is whether the Appellants could have been punished under Section 489-B as well as under Section 489-C of IPC simultaneously.

The statements of prosecution witnesses indicates that, they have corroborated the offence as narrated in the first information report and are the scribe of the FIR, signed the recovery memo, their departure for patrolling stood corroborated by the report of the general diary, their presence at the relevant place, time and date cannot be doubted upon. During cross-examination no major contradiction had occurred. Merely on the basis of non examination of independent witness, the testimonies of the witnesses cannot be rejected.

From the report of Currency Printing Press, it also stands proved that, the recovered currency notes were counterfeit. From the evidence of the prosecution witnesses, recovery of these fake notes from the possession of the Appellants and report of the Currency Printing Press, it stands proved that, the Appellants were in possession of the counterfeit currency notes, as such, the conviction of the appellants under Section 489-C of IPC has been rightly made by learned trial Court.

It was for the Appellants to explain how they come in possession of counterfeit currency notes and they had no knowledge that those are counterfeit currency notes. The evidence of recovery of counterfeit currency notes from the Appellants as well as their knowledge and their state of mind that, they had the knowledge about fake currency is also established from the evidence on record. It is established beyond doubt that, the Appellants had mens rea to use these counterfeit currency notes as genuine for their financial gains.

The charge against the Appellants under Section 489-B of IPC stands proved beyond reasonable doubt. Since, the Appellants have been convicted and sentenced under Section 489-B of IPC, there was no need to punish them under Section 489-C of IPC. A person cannot be punished twice for the same offence, the sentence awarded to the Appellants under Section 489-C of IPC is set aside.

Regarding sentence part of the impugned judgment, there is no reason to award maximum punishment of imprisonment for life and the appropriate punishment under Section 489-B of IPC shall be the sentence for ten years rigorous imprisonment which would serve the ends of justice.

Tags : Counterfeit currency Possession Conviction Legality

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