Supreme Court

Ashish Jain and Ors. Vs. Makrand Singh and Ors.

MANU/SC/0040/2019

14.01.2019

Criminal

Presumption of innocence in favour of Accused is fortified by acquittal order; if view of High Court is reasonable, present court should not interfere with same

The instant appeals arise from the judgments of the High Court passed in Death Reference and Criminal Appeal. Vide the impugned judgments, the High Court acquitted the Accused Respondents for the offences punishable under Sections 302 read with 34, 394 read with 34 and 449 of the Indian Penal Code (IPC), and Sections 11 read with 13 of the Madhya Pradesh Dakaiti and Vyapharan Prabhavit Kshetra Adhiniyam ("the MPDVPKA") and additionally Respondent Makrand Singh for offences under Section 25(1)(b)(a) read with Section 27 of the Arms Act and Sections 11 and 13 of the MPDVPKA for causing the death of three people and for committing robbery of Rs. 30,000 in cash and about Rs. 8,00,000 worth of gold and silver.

In a case wherein the High Court has acquitted the Accused of all charges, there is a double presumption in favour of the Accused, as the initial presumption of innocence is further reinforced by an acquittal by the High Court. In such a case, this Court will keep in mind that, the presumption of innocence in favour of the Accused has been fortified by the order of acquittal and thus if the view of the High Court is reasonable and based on the material on record, this Court should not interfere with the same. Interference is to be made only when there are compelling and substantial reasons to do so, and if the ultimate conclusion reached by the High Court is palpably erroneous, constituting a substantial miscarriage of justice. Moreover, interference can be made if there is a misconception of law or erroneous appreciation of evidence or the High Court has completely misdirected itself in reversing the order of conviction by the Trial Court.

The delay in the arrest, despite clear knowledge of the whereabouts of the Accused persons, casts a serious shadow of doubt over the case of the prosecution. The recovery of the stolen ornaments, etc. in the instant matter was made on the basis of involuntary statements, which effectively negates the incriminating circumstance based on such recovery, and severely undermines the prosecution case.

The non-examination of two important witnesses in light of the recoveries adversely affects the prosecution case. Another circumstance which has been contended to point to the guilt of the Accused is the recovery of blood-stained weapons at the instance of the Accused. A pointed suja and a chisel were recovered from the houses of Accused Nos. 2 and 1, respectively, at their instance. However, the prosecution has not established that these are the weapons which were used for the commission of the crime. The medical evidence indicates that the injuries that were found on the bodies of the deceased persons could not have been caused with the weapons seized, and the likelihood of the seized weapons causing the present injuries are very slim, as all the injuries, except one, were lacerations caused by a hard and blunt object.

The blood-stained clothes of the Accused persons were also recovered from the houses of the Accused at their instance. However, the veracity of the said recovery is doubtful in light of the fact that the said recovery was made two days after the arrest of the Accused and the recovery of the stolen articles from the houses of the Accused, which the investigating officer had thoroughly searched previously. From Accused No. 3, clothes were recovered hanging from a hook inside his one-room house, which had also been searched previously and from where ornaments had also been seized before. All these apparent infirmities create nothing but doubts in our minds regarding the guilt of the Accused.

All the blood-stained items (including the weapons, clothes of the deceased and the flooring and tiles of the spot where the bodies were found) were sent to the FSL for examination, however the reports do not, in any way, help the case of the prosecution. The blood stains were found to be of human blood, however, only the stains on the clothes of Accused No. 2 and Accused No. 3 were found to be of the blood group 'O'. Identification of the rest of the stains was opined to be inconclusive. Although it is argued that, the blood group of the deceased persons is 'O', there is nothing conclusive to prove the same. Therefore, no reliance can be placed on the recovery of the blood-stained weapons or clothes of the Accused.

There is no infirmity in the acquittal granted by the High Court. The Appellants have failed to establish that the High Court has erred in its conclusion. Unless any blatant illegality or substantial error in the order of acquittal is proved by the Appellants, and as long as the conclusion of acquittal is a possible view based on the circumstances and material on record, this Court is not bound to interfere with the same. The acquittal of the Accused persons is confirmed. Therefore, Criminal Appeal are dismissed, and the judgment and order of acquittal of the High Court is maintained.

Tags : Acquittal Evidence Credibility

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High Court of Bombay

Imran Khan Vs. State of Maharashtra

MANU/MH/0042/2019

14.01.2019

Criminal

Man in possession of stolen goods soon after theft is either thief or received goods knowing them to be stolen, unless he can account for his possession

The present revision is against the judgment of conviction by the Judicial Magistrate First Class, by which the applicant ('accused') came to be convicted for the offence punishable under Section 380 of the Indian Penal Code, 1860 (IPC) and sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 500 in default of payment of fine to suffer simple imprisonment for one month. He is also convicted for the offence punishable under Section 457 of the IPC and sentenced him to suffer rigorous imprisonment for three years and to pay fine of Rs. 500 in default of payment of fine to suffer simple imprisonment for one month. Being aggrieved by the judgment of conviction, the accused filed appeal before the Sessions Judge. Said appeal came to be dismissed thereby confirming the judgment of trial Court.

The accused/applicant submitted that there is no evidence against the accused/applicant to convict him. Learned trial Court wrongly invoked the presumption under Section 114 of the Indian Evidence Act, 1872. There is no eye witness to the incident.

Incident of theft took place in the night of 29-4-2004 and 30-4-2004. In his report, complainant has specifically stated that Rs. 2500 cash and golden ornaments were removed by the thief from his house. Admittedly, the report was lodged against the unknown person. After lodging the report, the accused was arrested immediately in presence of P.W. 6. When accused was arrested, he was found in possession of golden ornaments and cash of Rs. 2500. There is no discrepancy in the amount and golden ornaments seized by the police in presence of P.W. 6. P.W. 6 is an independent witness who has specifically stated that accused was arrested and that time golden ornaments belonging to the complainant and cash of Rs. 2500 were seized from the accused. Complainant identified those articles. Accused could not give any explanation about the possession of stolen articles.

As per Section 114 sub-clause (a) of the Act, a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. Accused has not given any account in respect of articles seized from his possession. Therefore, presumption under Section 114(a) of the Act is rightly invoked by the trial Court. This presumption is not rebutted by the accused. P.W. 6 is an independent witness. He has specifically stated that golden ornaments and cash of Rs. 2500 were found in possession of accused. Accused has not given any account of the same. Learned trial court has rightly invoked the presumption under Section 114 of the Act and rightly convicted the accused. Appellate Court has also rightly evaluated the evidence on record and dismissed the appeal.

Judgment of conviction in respect of offences punishable under Sections 380 and 457 of the IPC is maintained, however, accused is sentenced to the period already undergone in jail. Fine amount already paid before the trial court. Revision is partly allowed.

Tags : Conviction Legality Evidence Credibility

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Customs, Excise and Service Tax Appellate Tribunal

C.E.G.S.T., Delhi-I Vs. S.B. Industries

MANU/CE/0015/2019

14.01.2019

Excise

Once it is held that power bank is also a kind of mobile charger, benefit of Notification will be available

In facts of the present case, the Respondent assessee was engaged in the manufacture of power bank/portable mobile charger out of imported components. Respondent have registered themselves with the Central Excise Department for availing facility of import of goods at concessional rate of duty under the Notification No. 12/2012/Customs dated 13th March, 2012, as amended. They have also got themselves registered under the Customs (Import of goods at the Concessional rate of duty for Manufacture of Excisable goods) Rules, 1996 for import of inputs and parts of the mobile battery charger falling under the CFSTH 8504 40 30 of the Central Excise Tariff Act, 1986. Whether Commissioner (Appeal), in his order has rightly held that benefit of aforesaid Notification is available to the power bank as mobile battery charger.

The Customs has classified the 'power bank' under Heading No. 8504 40 30. This Customs classification for the product is also based on the HSN commodity description as in the case of Central Excise Tariff. The uniformity in the classification has to be maintained by the Revenue Appellant. It cannot be a case of Revenue that for the Customs classification under the Customs Tariff Act, 1975, and Central Excise Tariff, 1986, there can be two classifications for the same product on the ground that both the Customs and Excise Tariff are aligned to the HSN Classification of the goods.

Therefore, Commissioner (Appeal) concluded that the 'power bank' is not an accessory of the mobile phone and on that ground that, the power bank is not sold in retail market along with package of mobile phones and power bank is separate electric item having independent identity in the market. Mobile phone does not depend on a power bank in order to function and being manufactured and marketed without power bank.

There is no infirmity in the order of Commissioner in view of his reasonable findings. Further, in present case, although the Ministry has issued the clarification to the Respondent regarding the classification of 'power bank' as the 'accumulator' but the same cannot be treated as a circular issued by the Board as to make it mandatory on the part of the Adjudicating Authority to follow the same. Therefore, the Commissioner (Appeal) has considered the same and rightly deferred with the classification as decided by the Ministry on the basis of his well reasoned arguments.

Once it is held that power bank is also a kind of mobile charger, automatically the benefit of the Notification will be available to the Respondent. It is on record that, in this case, the goods imported are part and input of power bank (portable mobile battery charger and is entailed for the purpose of use in same, the benefit cannot be denied). The Respondent is entitled for the benefit of Notification. The appeal filed by the Revenue dismissed.

Tags : Classification Exemption Entitlement

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High Court of Karnataka

Chabbra's Associates Vs. Superintending Engineer Mysore City Corporation

MANU/KA/0056/2019

11.01.2019

Arbitration

When arbitration clause is not applicable to particular work in question, arbitrator cannot be appointed

By way of present application filed under Section 11 of the Arbitration and Conciliation Act, 1996, the Petitioner, said to have entered into a contract with the Respondent for execution of the civil work for development of road, has prayed for appointment of an independent arbitrator to adjudicate upon and decide the dispute between the parties.

It is submitted that, the Conditions of Contract annexed to the Agreement dated 23rd July, 2010 provide for adjudication of dispute through arbitration and the Petitioner called upon the Respondent to submit itself for arbitration, but the Respondent neither replied to the notice nor complied with the demand. The Respondent has contended that in fact, non-existence of arbitration clause in the contract in question is explicit on the face of the record and, therefore, the petitioner is not entitled for the relief as claimed.

Present Court finds no reason to reject the contentions of the Respondent particularly, in view of the explicit terms of the contract in question. In a comprehension of the terms and conditions between the parties, the only logical deduction is that in the printed form, the mechanism for resolution of dispute is provided in Clause 24 and therein, the contractor, on being not satisfied by the decision taken by the employer, could get the dispute referred to arbitration. However, in the Special Conditions of Contract, it is also provided in the same printed form that Clause 24, i.e., 'Arbitration' is not applicable for the work in question.

When Special Condition 4 specifically excludes Arbitration Clause 24, this Court is clearly of the view that, non-existence of arbitration clause in the contract in question is explicit. Though learned counsel for the Petitioner has attempted to rely upon the aforesaid procedure for arbitration in Clause 4.1 of the Special Conditions of Contract, but said procedure would be applicable only if there is an arbitration agreement and the matter is referred to arbitration. Said procedure could be made applicable only to the proceedings for arbitration in relation to an arbitrable dispute. As per the terms of the contract, the arbitration clause is not applicable to work in question and hence, there appears no reason for appointment of any arbitrator in this matter. Petition dismissed.

Tags : Arbitrator Appointment Clause

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High Court of Delhi

Ashok Kumar Sharma Vs. The Regional Passport Officer and Ors.

MANU/DE/0071/2019

11.01.2019

Criminal

Passport can be denied to a citizen if he is convicted of an offence at any time during period of five years preceding date of application for a passport

The Petitioner has filed the preset petition, impugning an order passed by Respondent no. 1 (Regional Passport Officer) denying the Petitioner's request for re-issuance of the passport. In the impugned order, Respondent no. 1 has referred to a Notification dated 25th August,1993 issued by the Central Government-being GSR No. 570 (E)-and indicated that, the Petitioner's application would be processed only on receipt of an NOC from the concerned Court in terms of the said notification.

An FIR was registered against the Petitioner under Section 120B of the Indian Penal Code, 1860 (IPC) read with Section 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988 and Section 420, 467, 468 and 471 IPC. The allegation against the Petitioner was that, while posted as the Group General Manager of a public-sector undertaking (TCIL), he had entered into a criminal conspiracy with the co-accused and abused his official position, in the matter of appointment of a fictitious firm as an agent for a project awarded to TCIL by Bhutan Telecom and thereby causing wrongful pecuniary loss to the exchequer.

Respondent no. 3 (CBI) filed a charge-sheet against the Petitioner under the afore-mentioned provisions. The Trial Court took the cognizance of the said charges and commenced trial. During the course of the trial, the term of the Petitioner's passport expired. Accordingly, in May/June, 2014, the Petitioner filed an application seeking no objection from the Trial Court for renewal of his passport. The learned Trial Court acceded to the Petitioner's request and granted the NOC. However, the Petitioner could not complete the formalities for renewal of the passport prior to completion of the trial.

A plain reading of Clauses (e) and (f) of sub-section 2 of Section 6 of the Passports Act indicates that, Clauses (e) and (f) refer to different situations. Clause (f) is applicable only in cases where criminal proceedings are pending in respect of an allegation of an offence. Clearly, the said clause is inapplicable where the criminal proceedings have culminated in a conviction and the offence alleged to have been committed has been established. Plainly, in such circumstances, the offence cannot be described as "alleged to have been committed". Clause (e) of Section 6(2) of the Act relates to a case where an applicant has been convicted of an offence involving moral turpitude and has been sentenced in respect thereof to an imprisonment for not less than two years. The rigor of Clause (e) is applicable only for a period of five years after such conviction.

In terms of Section 6(2)(e) of the Act, a passport can be denied to a citizen if he is convicted of an offence at any time during the period of five years preceding the date of application for a passport. In the present case, the Petitioner was convicted of an offence on 12th September, 2014 and, thus, any application made during the period of five years from that date-that is, till 11th September, 2019 - can be rejected in terms of Section 6(2)(e) of the Passports Act. The Petitioner would be at liberty to make an application for a passport after the said date under the provisions of Section 6(2)(e) of the Passports Act. If such application is made, the same cannot be denied on the ground as stated under Section 6(2)(e) of the Passports Act. The petition is disposed of.

Tags : Passport Renewal Grant

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High Court of Patna

Binod Kumar and Ors. Vs. The State of Bihar and Ors.

MANU/BH/0048/2019

11.01.2019

Criminal

Mere fact that, complaint relates to a commercial transaction or breach of contract for which a civil remedy is available is not by itself a ground to quash criminal proceedings

Criminal Miscellaneous application is for quashing the order rejecting the petition filed for discharge of the Petitioner. The allegation against the Petitioners is that, they being Directors of Magadh Coloniser Private Limited, which is a Company had neither given the flat booked in the name of the wife of the complainant nor returned the entire amount.

The complainant being a private citizen had paid money to the Company for booking a flat, which was done and out of the total amount agreed, a substantial amount was paid. Thus, a common man investing his hard earned money in the Company which undertook to provide a flat to the complainant, a solemn obligation was cast upon the Company to deliver such flat after taking the remaining amount. Thus, non fulfillment of the commitment on behalf of the Company cannot be said to be a purely civil dispute.

It is a common practice that, if the projects get delayed, the price of land and property escalates and then the owners/developers try to extract more money from the intending buyers and because the intending buyers have already given huge amount to such owners/builders, they are caught and stuck with such investment and are not in any bargaining position. Thus, even by return of the money, it is ultimately such buyers who suffer, because the money returned to them is what they had put in many years ago and in actual terms, the said money loses its value on the one hand and on the other hand, they would not be able to get any property/flat at the same rate after so many years elsewhere. This itself, in the opinion of the Court, is a fraud played by such owners/builders to cheat and cause undue loss and harassment to citizens.

The Petitioners have been made accused describing them as Directors of the Company. Thus, the fact that the Petitioners' Company has not been named first through the Directors, who are the Petitioners, is only hyper-technical and would not in any way prove fatal for the prosecution. Further, the averments made in the complaint and the facts as stated by the inquiry witnesses, do disclose offences which are punishable on the criminal side. The Hon'ble Supreme Court in a catena of decisions has held that, there may be instances where there can be both civil and criminal liability arising out of the same transaction and in such cases, the Court ought not to interfere in the criminal proceeding at the initial stage, which should be allowed to be taken to their logical conclusion.

A given set of facts may make out a civil wrong as also a criminal offence. Mere fact that, the complaint relates to a commercial transaction or breach of contract for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegation in the complaint disclose a criminal offence or not. In the present case, the Court finds that criminal offence is disclosed in the complaint. In the present case, the complainant not only has a case on the civil side with regard to either recovery of his money or delivery of the flat, but equally on the criminal side also. The application stands dismissed.

Tags : Commercial transaction Breach Proceedings Quashing

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