Supreme Court

Palani Vs. State of Tamil Nadu

MANU/SC/1338/2018

27.11.2018

Criminal

A long delay can be condoned if witness has no motive for falsely implicating Accused

Present appeal arose out of the judgment passed by the High Court by which the High Court has dismissed the appeal filed by the Appellant herein thereby confirming his conviction under Section 148 of IPC, Section 435 read with Section 149 Indian Penal Code, 1860 (IPC) and Section 302 read with Section 149 of IPC and the sentence of imprisonment imposed upon him by the trial Court. Question raised in present case is whether Courts below erred in convicting the Appellant.

As per the alleged variance between the medical and ocular evidence concerned, it is well-settled that, oral evidence has to get primacy and the medical evidence is basically opinionative and that the medical evidence states that the injury could have been caused in the manner alleged and nothing more. The testimony of the eye witness cannot be thrown out on the ground of inconsistency.

Delay in setting the law into motion by lodging the complaint is normally viewed by the Courts in suspicion because there is possibility of concoction of evidence against the Accused. In such cases, it becomes necessary for the prosecution to satisfactorily explain the delay in registration of FIR. But there may be cases where the delay in registration of FIR is inevitable and the same has to be considered. Even a long delay can be condoned if the witness has no motive for falsely implicating the Accused.

In the present case, PW-1 had no motive to falsely implicate the Accused. PW-1 seeing her own son being brutally attacked, the effect of the incident on the mind of the mother cannot be measured. Being saddened by the death of her son, it must have taken sometime for PW-1 to come out of her shock and then proceed to police station to lodge the FIR. The delay of two and half hours in lodging the complaint and registration of FIR and the delay in receipt of the FIR by the Magistrate was rightly held as not fatal to the prosecution case.

Where the case of the prosecution is based on the evidence of eye witnesses, the existence or non-existence of motive, sufficiency or insufficiency of motive will not play such a major role as in the case which is based on circumstantial evidence. If the prosecution is able to prove its case or motive, it will be a corroborative piece of evidence; but if the prosecution had not been able to prove its case or motive or the motive suggested is too slender, that will not be a ground to doubt the prosecution case. When other evidence against the Accused is clear and cogent as in the present case, absence of motive or insufficiency of motive is of no importance.

Evidence of PW-1 is cogent and consistent and her evidence is amply supported by medical evidence and other evidence. The Courts below recorded concurrent findings of fact qua Appellant-Accused that he along with other Accused caused the murder of deceased. Appeal is dismissed.

Tags : Conviction Evidence Credibility

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High Court of Kerala

Rajagopal and Ors. Vs. Valliyammal and Ors.

MANU/KE/3367/2018

26.11.2018

Family

Burden to prove that a particular sale is benami lies on person who alleges the transaction to be a benami

The sum and substance of the case of the husband is that the petition schedule property was purchased by him in the name of the wife and that he constructed a multi-storied building in that property by using his own funds and that he is the real owner of the property and the building therein. Did the husband succeed in establishing that purchase of the petition schedule property in the name of the wife is a benami transaction. If so, did he succeed in rebutting the presumption envisaged under Section 3(2) of the Benami Transactions (Prohibition) Act, 1988.

There is a presumption in law that, the person who purchases the property is the owner of the same. This presumption can be displaced by successfully pleading and proving that the document was taken benami in the name of another person for some reason, and the person whose name appears in the document is not the real owner, but only a benami. Heavy burden lies on the person who pleads that the recorded owner is a benami holder. It is well established that burden of proving that a particular sale is benami lies on the person who alleges the transaction to be a benami. The essence of a benami transaction is the intention of the party or parties concerned and often, such intention is shrouded in a thick veil which cannot be easily pierced through.

The question regarding a particular sale is benami or not, is largely based on fact. For determining this question, no absolute test, uniformly applicable in all situations, can be laid down. But, in weighing the probabilities and for gathering the relevant indicia, the Courts are usually guided by these circumstances: (1) the source from which the purchase money came; (2) the nature and possession of the property after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale.

In the instant case, the husband has been able to prove the circumstances under which and the reasons for purchasing the property in the name of the wife. He has also been able to prove, on the basis of preponderance of probabilities, that it was he who paid the money for purchasing the property. The wife could not prove that, her parents had paid the money for purchasing the property in her name. The husband could succeed in proving that the purchase of the petition schedule property in the name of the wife was a benami transaction.

There was no prohibition for a husband to enter into a benami transaction by purchasing property in the name of his wife or unmarried daughter. But, then, the presumption is that the property was purchased by him for the benefit of the wife or the unmarried daughter. He would be able to get relief, in a suit claiming title to such property, only if he succeeds in rebutting the presumption and proving that the property concerned was purchased not for the benefit of the wife.

Construction of a multi-storied building by the husband in the property is a circumstance which indicates that, he purchased the property not for the benefit of the wife but it was for his own benefit. The husband had also given possession of two floors of the building to the second respondent on licence arrangement. This is another circumstance indicating beneficial utilization of the property by the husband. On the other hand, there is no evidence to prove that, the wife had used the property and the building therein for her own benefit. Her residence in the building in the property is only in her capacity as the wife. In these circumstances, the husband could rebut the presumption under Section 3(2) of the Act. The Family Court was not justified in declining to grant a decree of declaration in favour of the husband regarding the title over the property. The Appellant is granted a decree of declaration that he is the owner of the petition schedule property and the building therein.

Tags : Title Declaration Grant

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High Court of Kerala

S.S. Roy Vs. State of Kerala

MANU/KE/3366/2018

26.11.2018

Criminal

High Court in a revision can examine only when factual aspects are mixed with legal aspects

The revision Petitioner herein is the 4th accused was an Assistant Engineer of the Kerala Water Authority ('the KWA') from 1994 to 1997. He and other engineers, including the then Superintending Engineer of the KWA, and also a work contractor, who undertook some works under the Thiruvananthapuram Drainage Scheme, are being prosecuted on the allegation of mal practice and corruption in carrying out the said Scheme. Pending the proceedings, this Petitioner and some other accused made application for discharge. The Petitioner filed application as CMP No. 1661/2009. The learned trial Judge disallowed the request for discharge. Aggrieved by the said order disallowing discharge, the 4th accused has come up in revision.

The specific allegation as against the Petitioner and some others is that, they did not properly supervise the work or assess the quality of work, and that by their culpable omission and breach of duty, they caused heavy loss to the Public Exchequer, and also caused unlawful gain and benefit to the contractor.

The request for discharge was disallowed by the trial court on the finding that, there are prima facie materials against the Petitioner to frame charge. A discharge is possible only when the Court finds, on a perusal of the materials placed before it, that the charge appears to be groundless, or that the materials produced by the prosecution are not sufficient to form a judicious opinion as to whether there is reason to frame a charge against the accused and to proceed against him.

The prosecution relies mostly on documents, including M-Books, to substantiate or prove the allegations as against the petitioner. What are the entries relating to the Petitioner, or how those entries will prove the alleged misconduct, or culpable omission, or how exactly the petitioner caused wrongful gain to the contractor by his omissions, or whether he did it as part of a criminal design hatched with the contractor, are all matters to be examined during trial.

This is a revision, wherein, the scope of interference is limited. The factual aspects of the case cannot be examined by the High Court in a revision. Only when the factual aspects are mixed with the legal aspects, and the decision on the legal aspects will conclude the issue as against the petitioner, the High Court can examine those aspects in revision. Here, everything depends upon the registers and the entries therein, produced by the prosecution. Only the competent witnesses can prove those entries as against the petitioner, and tell the court or convince the court how exactly those entries or omissions will prove the prosecution case.

At this stage, the High Court cannot examine those aspects, and come to a conclusion or finding, as to whether those entries are sufficient to prove the case, or whether those entries are acceptable. Only the trial Court can examine those aspects, and decide whether such materials are acceptable to come to a finding against the accused. In the result, this revision petition is dismissed without prejudice to the right of the Petitioner to raise all his factual and legal objections regarding the facts of the case, before the trial court.

Tags : Discharge Disallowance Validity

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High Court of Allahabad

Shri Vishnu Rice Mill Vs. Commissioner Trade Tax, U.P.

MANU/UP/4462/2018

22.11.2018

Other Taxes

Burden was strictly on Assessee to establish its entitlement to scheme of exemption

The present revision has been filed by the Assessee against the order passed by Tribunal. Tribunal had rejected Assessee's appeal claiming exemption under Section 4-A of the U.P. Trade Tax Act, 1948. Learned counsel for the Assessee submits, in the first place undisputedly, the Assessee had set up a new rice mill unit against total investment of Rs. 2,51,000. The investment made in the two disputed machinery being electric motors was of Rs. 41,000 only. There being no dispute to the fact that, the Assessee had set up a new unit and there being further no dispute as to the balance investment of Rs. 2,10,000, the exemption should have been allowed to the Assessee. Issue involved in present case is whether the machines have actually been purchased by the Assessee or not having regard to the documents which are available on record.

The burden was strictly on the Assessee to establish its entitlement to exemption. Only if the Assessee was found to fall within the four corners of the scheme of exemption, a liberal approach may become available for the remaining purpose. In view of the specific finding recorded by this Court to the effect that, the investment of Rs. 41,000 was not negligible in the context of total investment of Rs. 2,51,000, the Tribunal has not erred in recording the finding to that effect. Once the Tribunal was rejecting the entire claim made by the Assessee, with respect to both the disputed machineries, it was never open to the Tribunal to record a finding contrary to that recorded by this Court.

Then, as to the objection that, no fresh inquiry was conducted by the Tribunal, this Court had restricted the proceedings before the Tribunal to the material already available before it. This restriction was specifically placed before the Tribunal for the purpose of determining the purchase of the machinery claimed by the Assessee. To that extent, therefore, the Tribunal has not erred in allowing any fresh material to arise.

As to the documents that were available before the Tribunal, the Tribunal took note of the bill relied upon by the Assessee but has not accepted the same in view of the other material and evidence that was available chiefly in the shape of inquiry report of the Assessing Officer of the year 1993 wherein it was found recorded that the selling dealer was non-existent.

As to the alternative plea set up by the Assessee as to the entitlement of exemption against purchases made from an unregistered dealer, it is seen that such a case was never set up by the Assessee on facts. A plea to that nature would essentially be have to be specifically set up at the appropriate stage before the fact finding authority. In the facts of the present case, no such plea had been ever raised. It therefore does not become available to the Assessee at this stage. There is no principle if the identity of the registered dealer/seller is not disclosed or established by the Assessee, benefit may be given treating that purchase to be of new machinery made from unregistered dealers. The Tribunal has rightly rejected the claim made by the Assessee. Consequently, the revision lacks merit and is accordingly dismissed.

Tags : Exemption Denial Validity

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High Court of Patna

Bhushan Prasad Singh Vs. The State of Bihar and Ors.

MANU/BH/2237/2018

22.11.2018

Service

A citizen cannot be non-suited on ground that, authority has failed to take decision in decision making process

The Petitioner has filed the present writ application for quashing the order contained in Memo No. 1023 dated 27th May, 2010, whereby the claim of the Petitioner was rejected on the ground that, no promotion can be granted with retrospective effect. The Director while passing the order has lost sight of the hard fact that thrice the Petitioner has to approach the Court for the same relief and due to the reluctance of the respondents the matter of promotion of the Petitioner was not considered and when contempt petition was filed after three rounds of litigation, the Director passed the order holding that, promotion cannot be granted with retrospective effect, hence, the present writ application is the fourth round of litigation. Issue raised in present matter is whether the Respondents can take advantage of their own wrong

The Petitioner was made to suffer on account of reluctance of the Respondents in deciding the claim of the Petitioner. Time and again this Court has also directed the Respondents to consider the case of the Petitioner but they failed to decide the claim of the Petitioner and after two decades they rejected the claim of the Petitioner saying that, the petitioner has now superannuated and no promotion can be granted with retrospective effect. The Court does not approve the action of the Respondents taking advantage of their own wrong. This case is eye opener for the Education Department as this Court is of the considered view that, if the Petitioner approached the Court regularly for his grievance, the authority of the Education Department is responsible for not doing justice to the teachers.

There is no denial of the fact that similarly circumstanced others have been granted such benefit. In view of the settled doctrine of non-traverse and the judgment of the Apex Court in the case of Smt. Naseem Bano v. State of U.P. and Others, the action of the Respondents is illegal as it is the obligation of the State authorities to grant promotion in accordance with law. A citizen cannot be non-suited on the ground that, authority has failed to decision in decision making process and therefore the right of citizen stands defeated. The Respondents are directed to grant benefit to the Petitioner which was extended to similarly circumstanced other teachers. Petition allowed.

Relevant

Smt. Naseem Bano v. State of U.P. and Others: MANU/SC/0405/1993

Tags : Promotion Denial Legality

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Railway Claims Tribunal

Tapan Dey Vs. Union of India

MANU/RL/0237/2018

21.11.2018

Civil

Railway administration is not liable to pay compensation, if passenger dies or suffers injury due to- suicide or attempted to suicide by him or self-inflicted injury

The Applicant has filed present claim petition under Section 16 of the Railway Claims Tribunal Act, 1987 seeking compensation for an amount of Rs. 4,00,000 along with cost and interest for himself as well as on behalf of his wife, as dependants for the death of his unmarried son, Tanmoy Dey who stated to have died in an untoward railway accident. It is claimed that, Tanmoy Dey, since deceased was travelling from Sealdahto Shyamnagar Railway Stations by local train and he accidentally fell down from the said running train near Shyamnagar Railway Station, sustained severe injuries on his person and with the help of local people was taken to Hospital, where he declared brought dead.

The Surathal Report was prepared based on mere presumption and as such the same is devoid of any merit in the eye of the law. That apart, in the Final Police Report , there is no mention that the victim died falling down from the train. Even the P.M. Report does not reflect any specific reason of sustaining fatal injury by the victim. On the other hand, in the DRM's Report, it has concluded that deceased Tonmoy Dey was standing at platform of Shyamnagar Railway Station in careless manner when he was knocked down by through pass Train and sustained severe head injury and later he expired. This document has not been disputed by the Applicant by producing any contrary evidence.

That apart, proviso to Section 124-A of the Railways Act, 1989 provides that, no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to- suicide or attempted to suicide by him; self-inflicted injury; his own criminal act; any act committed by him in a state of intoxication or insanity; any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident. The Respondent railway is exempted from paying compensation to the Applicant in view of proviso to Section 124-A of the Act

Further, in regard to alleged monthly ticket, as filed in the record, the Tribunal observed that such ticket appears to have been neither handed over by Hospital Authority nor Police for which the formal proof of the ticket, so filed, could not be substantiated. Accordingly, ticket, so filed, is unable to attract any evidentiary value in the eye of law. Moreover, once the Applicant has failed to prove that, the deceased met his death in an 'untoward incident', it does not remain relevant to deal with the question of whether the deceased was armed with journey ticket.

In view of the facts, evidences, circumstances and documents available in the record, since the Applicant has miserably failed to prove that his son died due to a reason which may fall within the ambit of 'untoward incident', as per provision of Section 123(c) (2) of the Railways Act, as alleged by the Applicant and as the Applicant has also been failed to establish that the victim was a bona fide passenger on the date of the alleged incident, the Tribunal is absolutely helpless to consider the Issues in favour of the Applicant. Instant claim applications dismissed.

Tags : Compensation Payment Exemption

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