High Court of Bombay

Shakuntala and Ors. Vs. The State of Maharashtra and Ors.

MANU/MH/1308/2019

04.06.2019

Criminal

Vague and general allegations not enough to incriminate remote relatives of husband

The Applicants preferred present application under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) seeking relief to quash and set aside the First Information Report (FIR) registered for the offence punishable under Sections 498-A, 323, 504 and 506 of the Indian Penal Code, 1860 (IPC).

Learned counsel for Applicants submits that, the Applicants had no concern with the alleged crime nor they have any involvement in it. There are no prima facie circumstances on record to implicate the present applicants in this crime. The question that arises is, whether the FIR registered against applicant can be quashed and set aside in exercise of powers under Section 482 of CrPC.

Allegations cast on behalf of complainant against Applicants No. 3 to 6 (distant relatives) are vague and general in nature. There are no specific allegations in regard to overt-act for maltreatment and harassment to the complainant. There were no detail particulars given in the FIR about participation of these Applicants No. 3 to 6 for their act of humiliation or insult to the complainant on account of her character. Allegations about scolding are also stray and sweeping in nature.

The Honourable Apex Court in the case of-Kansraj Vs. State of Punja and others observed that a tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged is likely to affect the case of the prosecution even against the real culprits. In the cases, where accusations are made, the overt-acts attributed to persons other than husband, are required to be proved beyond reasonable doubt. Apex Court further observed that, "in their over-enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused."

The Honourable Apex Court in the case of State of Haryana and others Vs. Ch. Bhajan Lal and others held that "where the proceedings is instituted with an ulterior motive or were the allegations made in the complaint are absurd and improbable, the Court would be within its power to quash the complaint/FIR". Moreover, if the allegations in the FIR against the applicants are taken at their face value and accepted the same in its entirety would not constitute any offence or make out case against Applicants, in such circumstances, there would not be any propriety to allow the prosecution to proceed further into the matter.

In the instant case, it would unjust and improper to allow the prosecution to proceed against Applicant Nos. 3 to 6. The ends of justice would be served by ensuring that, the applicants may not be forced unnecessarily to go on litigations before the Criminal Court. Hence, penal proceeding initiated against them deserves to be quashed and set aside. Application in respect of applicant Nos. 1 and 2, stands disposed of as withdrawn. Application allowed partly.

Relevant

Kansraj Vs. State of Punja and others MANU/SC/0296/2000
, State of Haryana and others Vs. Ch. Bhajan Lal and others. MANU/SC/0115/1992

Tags : FIR Proceedings Quashing of

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High Court of Bombay

Sunita and Ors. Vs. Divisional Manager, New India Assurance Company Ltd. and Ors.

MANU/MH/1297/2019

04.06.2019

Motor Vehicles

Judgment on all issues is to be pronounced mandatorily

Present appeal has been filed by the original Claimants challenging the dismissal of their claim petition under Section 166 of the Motor Vehicles Act, 1988, by the Tribunal. The learned Member of the Tribunal has held that, the Petitioners have failed to prove that, the accident was caused due to the rash and negligent driving on the part of Opponent no. 03.

It is to be noted that, the learned Tribunal started with a note that the accident is admitted and, therefore, it is specifically stated that, the inquest panchanama and post mortem report have been proved by the Petitioners. It was thereafter stated that, the question only remains as to who was negligent. One of the facts, that has been highlighted is that, the Petitioners have not examined the eye witness and thereafter the Tribunal went on to take into consideration the contents of the spot panchanama. However, what is missing is that, there is absolutely no discussion in respect of the FIR. There is no reason as to why the investigation papers were not exhibited.

When the Tribunal started with admitted position, then all the documents on record ought to have been considered including that of the FIR. At this stage, only a fact can be mentioned, that the FIR was filed by an eye witness and the prosecution was against Opponent no. 03. Further, situation in respect of the spot panchanama cannot be stated in isolation because the spot was shown by the informant himself. Under such circumstance, the learned Tribunal ought to have considered the contents of the FIR together with the contents of the spot panchanama. The police papers being public documents ought to have been considered. In fact, they are required to be directly read in evidence.

In case Radheshyam & others Vs. Keshav Prakash Jain & others, it has been held that, the certified copies of FIR, panchanama and medical papers prepared by public servants in discharge of their public duty are admissible in evidence.

As regards the finding given by the Tribunal, that the Petitioners have failed to prove that the accident was caused due to rash and negligent driving on the part of Opponent no. 03, it appears that the Tribunal further did not alternatively discussed the other issues that were framed. In fact, even if on one issue a finding is given in negative, yet, it was incumbent on the part of the Tribunal to alternatively discuss the other issues, so that the possibility of remand by the appellate Court could have been avoided. It is mandatory to pronounce judgment on all the issues.

The judgment and award passed by the Tribunal is hereby set aside. The said petition is restored to the file of the learned Member with a direction to dispose it on merits, in accordance with law. The first appeal is hereby allowed.

Tags : Award Compensation Entitlement

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High Court of Jammu and Kashmir

State Vs. Vijay Kumar and Ors.

MANU/JK/0451/2019

04.06.2019

Criminal

High Court should not interfere with order of acquittal, if the view taken by trial court is a reasonable view based on evidence

By way of the instant appeal, a challenge is laid to the judgment passed by the Court of 2nd Additional Sessions Judge, in the case arising out of FIR registered under Section 302/34 of the Ranbir Penal Code (RPC) against the Respondents. By this judgment, the learned Trial Judge acquitted the Respondents for commission of the offences under Sections 302/34 of RPC with which they were charged.

It is submitted by Appellant that, the prosecution had placed sufficient material on record to support the charges and that the learned Trial Judge had not appreciated the evidence laid on record nor had correctly applied the law, resulting in the acquittal. The learned trial judge had taken a hyper-technical approach and that the conclusions drawn were against the weight of evidence placed on record.

The witnesses clearly admitted that, this occurrence took place on 8th of February, 2008. These witnesses made no effective effort to protect the deceased even though they were related to him. It was in the testimony of the two witnesses that, there were residential houses around the shop where the deceased was hung, yet they did not make any hue and cry for help and quietly drove on to their own house. In order to explain their conduct of this silence, they claimed that this was out of fear from the accused persons. The witnesses did not disclose the occurrence to any person on the next day or when the deceased was cremated. The learned Trial Judge has found that, the distance between their village and that of the accused Vijay Kumar was between 20 - 22 kms removing element of fear and that these two related witnesses maintained silence for a long period of 2 1/2 years.

It is thus well settled law that, present Court, while hearing an acquittal appeal can re-appreciate the evidence. However, it should not interfere with the order of acquittal if the view taken by the trial court is also a reasonable view of the evidence on record and the findings recorded by the trial court are not manifestly erroneous, contrary to the evidence on record or perverse.

On a consideration of the entirety of the record, it cannot be said that the prosecution was able to connect the two persons with the commission of the offences by leading unimpeachable evidence or that the view taken by the trial Court was not based on the evidence led by the prosecution. On the contrary, the findings of the trial Court are premised on a close consideration of the evidence placed on record. It cannot be held that, the findings are either erroneous or perverse. Appeal dismissed.

Tags : Acquittal Evidence Legality

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High Court of Jammu and Kashmir

Suresh Kumar Sharma Vs. State and Ors.

MANU/JK/0462/2019

04.06.2019

Service

Fixing of any eligibility criteria is within the exclusive domain of Legislature

Petitioner applied for the posts of Librarian which were notified vide Advertisement Notification by Respondent No. 2. While notifying these posts, the age limit prescribed in various categories was notified in terms of Cabinet Decision No. 98/07/2014 dated 3rd June, 2014 and Government Order No. 586-GAD of 2014 dated 3rd June, 2014.

Since in terms of the said Notification, the age of the in-service candidates was prescribed as 40 years as the Petitioner was over the minimum eligible prescribed age for the said post by two years four months and eight days, as such, his candidature was rejected vide notice issued by Respondent No. 2. Petitioner seeks quashing of notice dated 5th February, 2018 to the extent that, the Petitioner was declared ineligible and over-aged for the post of Librarian in the Higher Education Department.

Admittedly, the Petitioner did not have the requisite eligibility to be considered for the post of Librarian as advertised in terms of the Advertisement Notification. Since the age of the candidate in terms of the said Advertisement Notification was to be considered on 1st January, 2016. Since the Petitioner was over the cut-off age by more than two years, therefore, he was ineligible to be considered for the said post.

It is settled position that for fixing any eligibility criteria, it falls within the exclusive domain of Legislature. It is solely within the jurisdiction of the recruiting authority to prescribe the appropriate qualification/eligibility and to fix the upper age limit or age criteria in the matter of appointment/promotion.

Therefore, in terms of the Advertisement Notification, only the candidate, who possessed the maximum and minimum eligibility criteria of age as 1st January, 2016, was considered for the said post. Since the Respondents/authorities had fixed the cut-off age and the petitioner did not possess the eligibility criteria, therefore, there is no merit in present petition, which is, accordingly, dismissed.

Tags : Appointment Eligibility criteria Age limit

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Customs, Excise and Service Tax Appellate Tribunal

Crompton Greaves Ltd. Vs. Commissioner of Central Excise, Mumbai - III

MANU/CM/0161/2019

04.06.2019

Excise

Suo motu credit cannot be taken without applying for refund

In present case, the Appellants are engaged in the manufacture of transformers. For smooth functioning of the said final product, the Appellants use transformer oil, purchased from third parties. During the disputed period, the Appellants had entered into contract with Power Grid Corporation of India Ltd., West Bengal for supply and installation of the transformers at the customer's site. As per the contract, the Appellants were required to dispatch transformers along with transformer oil. For supply of the transformers, the Appellants have computed and paid the central excise duty on the assessable value of both transformer and transformer oil. But, the transformer oil was not supplied along with the transformers. The said oil was subsequently supplied on payment of appropriate central excise duty.

The Appellants realized their mistake that, duty liability had been discharged twice on transformer oil. Accordingly, they had taken credit of Central Excise duty paid on such oil in their Cenvat account. Taking of suo motu credit by the Appellants was disputed by the Department and show cause proceedings were initiated, seeking for recovery of the wrongly availed Cenvat Credit along with interest and for imposition of penalty. The show cause notice was adjudicated vide order, wherein the proposals made therein were dropped, on the ground that the Appellants indeed had made payment of excise duty on two occasions and taking of credit based on appellants' own invoice in a technical contravention.

Against the adjudication order, Revenue has filed appeal before the Learned Commissioner (Appeals), which was disposed of vide the impugned order, by setting aside the adjudication order and in allowing the appeal in favour of Revenue. The Learned Commissioner (Appeals) has held that, suo motto credit cannot be taken without applying for refund in terms of Section 11B of the Central Excise Act, 1944. The Learned Advocate appearing for the appellants submitted that since the Appellants have inadvertently paid duty twice on transformer oil, taking of suo motto credit in the Cenvat account is proper and justified.

In present case, it is an admitted fact on record that the, Appellants had paid duty twice, once at the time of removal of transformer from the factory and subsequently on removal of the transformer oil. There is no statutory mandate for double payment of duty and in such cases, a manufacturer of excisable goods is permitted under the statute to claim refund of Central Excise duty paid in excess. Refund claim is governed under Section 11B. The said statutory provision prescribes the time limit for filing of refund application and fulfillment of the aspect of doctrine of unjust enrichment. The central excise statute does not provide any mechanism for taking of suo motto credit in the Cenvat account by the manufacturer. Since the issue involved in this case pertains to double payment of duty on transformer oil, the only recourse left to the appellants was to claim refund of the excess duty paid by it, in terms of Section 11B, which admittedly has not been complied with by the Appellants.

The Applicants have also taken the stand that since they have availed suo motto credit within one year from the date of payment of the duty amount, such availment of credit should be treated as refund claim. Such stand of the Appellants is not legally tenable, for the reason that, Section 11B of the Act clearly provides the modalities for filing of refund claim and entertaining of the same by the authorities. Since no formal refund application was filed, the case of the appellants is outside the scope and purview of Section 11B. There is no infirmity in the impugned order passed by the Learned Commissioner (Appeals). Appeal dismissed.

Tags : Suo motu credit Cenvat account Entitlement

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Customs, Excise and Service Tax Appellate Tribunal

Lions Club of Poona Vs. Commissioner of Customs (ACC & Import), Mumbai

MANU/CM/0160/2019

03.06.2019

Customs

Control by Government authorities requires managerial control on day to day functioning of such society in order to claim exemption provided for purchase of hospital equipment

Rejection of Appellant's claim for exemption of customs duty under Notification No. 63/88-Cus against purchase of hospital equipment (C.T. Scanner) by the Commissioner of Customs is assailed in present second round of appeal. In present case, Appellant is a charitable trust who purchased certain hospital equipment way back in 1989 including Hitachi whole body x-ray C.T. Scanner and availed duty exemption under Notification No. 63/88 (1-3-1988) but subsequently, vide two show cause notices issued by two different Customs authorities, it was asked to discharge duty demand and pay penalty or show cause why the goods were not to be confiscated. The adjudication order confirmed allegation made in the show cause and also confirmed duty demand etc..

Commissioner of Customs gave his finding vide his order that, Appellant did not qualify to avail exemption Notification 63/88 Cus conditionalities and issued direction for confiscation of goods, redemption of fine as well as penalty that was earlier adjudicated in the order-in-original and confirmed by the CESTAT.

As per Notification No. 63/88-Cus dated 1st march 1988, it can be seen that exemption is provided to the hospital equipment when imported by Central, State Government hospitals etc. or society registered under any law for the time being relating to registration of societies, which are being controlled by any of the authorities of the Central Government, State government, Union Territory Administration or local authorities. The meaning of word "control" is the power to influence or direct or supervise the behavior and conduct of people or organization in the course of event and "government control" signifies the control exercised over the action or affairs by the State.

As found from the order of the Commissioner of Customs (Import), the only claim that was established by the Appellant relating to control of the State Government is filing of returns under the Act and nothing more was substantiated before him. The Commissioner of Customs (Import) had given his views that such control by Government authorities requires managerial control on day to day functioning of such society, which is admittedly found absent in the case of the Appellant. Therefore, Commissioner had given his finding that requirements of exemption notification were not fulfilled in that aspect.

Furthermore, another condition available in Notification 63/88 that the hospital, which includes expression like trust or society, had to produce a certificate from the Director of Health Services of the Government of India or the Ministry of Health and Family welfare in the Government of India to the effect that the said hospital falls in either of the categories specified in the table (which includes registered society). Such certificate was not produced by the appellant to make it eligible for exemption under notification No. 63/88-Cus.

Conversely, Appellant failed to substantiate that Commissioner's finding was wrong in respect of production of such certificate and in respect of exercise of Government control over its functioning that would necessitate interference of the Tribunal in the order passed by the Commissioner (Appeals). The Appeal is dismissed and the order passed by the Commissioner (Appeals) is hereby confirmed.

Tags : Notification Exemption Entitlement

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