Supreme Court

Parminder Kaur and Ors. Vs. State of Punjab

MANU/SC/0557/2020

28.07.2020

Criminal

Once a plausible version has been put forth in defence at the examination stage, then it is for the prosecution to negate the defense plea

The present Criminal Appeal has been preferred by Appellant impugning the judgment of the High Court through which challenge to a judgment passed by the Additional Sessions Judge, was turned down, thereby confirming conviction of three years rigorous imprisonment and fine of Rs. 2000 under Sections 366A and 506 of the Indian Penal Code, 1860 ("IPC"). The judgments of the trial Court and High Court have been elegantly assailed by learned Counsel for the Appellant who contended that, the testimonies of the two star-witnesses, being full of material contradictions, are far from reliable.

It is indisputable that, parents would not ordinarily endanger the reputation of their minor daughter merely to falsely implicate their opponents, but such cliches ought not to be the sole basis of dismissing reasonable doubts created and/or defences set out by the Accused.

Similarly, the five-day delay in registration of the FIR, in the facts and circumstances of this case, gains importance as the father of the victim is an eye-witness to a part of the occurrence. It is difficult to appreciate that, a father would await a second incident to happen before moving the law into motion. Sweeping assumptions concerning delays in registration of FIRs for sexual offences, send a problematic signal to society and create opportunities for abuse by miscreants. In the facts of the present case, neither is Section 366A of IPC by itself a sexual offence in the strict sense nor do the inactions of the prosecutrix or her father inspire confidence on genuineness of the prosecution story. No steps were taken to avail of medical examination of the victim, nor was the Panchayat or any social forum approached for any form of redress till the occurrence of the second alleged incident.

Ordinarily, the Supreme Court ought not to re-appreciate evidence. However, where the Courts below have dealt with the material-on-record in a cavalier or mechanical manner which is likely to cause gross injustice, then this Court in such exceptional circumstances may justifiably re-appraise the evidence to advance the cause of justice.

The trial Court has summarily disregarded the contradictions highlighted by the defense side, on the premise that, such contradictions had no material bearing and that there was no reason to disbelieve the prosecutrix. The High Court too has opined that PW-1 and PW-2 have completely corroborated each other and their testimonies were impeccable. These reasons are not only contrary to the record but they also lead to an impermissible reversal of the burden of proof imposed in criminal trials. There are numerous clear contradictions between the testimonies of two star-witnesses, which are fatal to the prosecution case.

Under the Code of Criminal Procedure, 1973 (CrPC) after the prosecution closes its evidence and examines all its witnesses, the Accused is given an opportunity of explanation through Section 313(1) (b) of CrPC. Any alternate version of events or interpretation proffered by the Accused must be carefully analysed and considered by the trial Court in compliance with the mandate of Section 313(4) of CrPC. Such opportunity is a valuable right of the Accused to seek justice and defend oneself. Failure of the trial Court to fairly apply its mind and consider the defence, could endanger the conviction itself. Unlike the prosecution which needs to prove its case beyond reasonable doubt, the Accused merely needs to create reasonable doubt or prove their alternate version by mere preponderance of probabilities. Thus, once a plausible version has been put forth in defence at the Section 313 of CrPC examination stage, then it is for the prosecution to negate such defense plea.

Proving the intention of the Appellant to cause alarm or compel doing/abstaining from some act, and not mere utterances of words, is a pre-requisite of successful conviction under Section 506 of IPC. The trial Court has undertaken no such separate analysis or recorded any finding on this count, thus calling into question the conviction for criminal intimidation. Further, the nature of this charge is such that, it is a derivative of the main charge of 'procuration of minor girls'. Given the facts of this case, where the common testimony of PW-1 on both charges has been doubted, it would be unwise to rely upon it as the sole piece of evidence to convict the Appellant for criminal intimidation without any other corroboration.

The prosecution has failed to discharge its burden of proving the guilt of the Appellant under Section 366A and 506 of the IPC beyond reasonable doubt. Thus, the appeal is allowed and the conviction and sentence awarded by the Courts below are set aside.

Tags : Conviction Evidence Credibility

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Supreme Court

Erudhaya Priya Vs. State Express Transport Corporation Ltd.

MANU/SC/0545/2020

27.07.2020

Motor Vehicles

While applying the multiplier method, future prospects on advancement in life and career are also to be taken into consideration

In present matter, the Appellant was travelling from Chennai to Bangalore in a bus owned by the Respondent State Corporation. While the bus was moving on the Kolar Bangalore National Highway, it ran into a stationary lorry. The collision resulted in multiple injuries to numerous passengers including the Appellant, and caused death of the bus conductor on the spot. The injuries to the Appellant were grievous including fractures in the arms and legs and she suffered a disability of 31.1% of the whole body.

An FIR was registered in pursuance of investigation naming the driver of the bus as an Accused. Chargesheet was filed. The Appellant filed a claim petition before the Motor Accident Claims Tribunal ("MACT"), under Section 166 of the Motor Vehicles Act, 1988 ("MV Act") read with Rule 3(1) of the Tamil Nadu Motor Vehicles Accident Claims Tribunal Rules, 1989 claiming compensation. The MACT concluded that, the accident occurred due to the rash and negligent manner of driving of the bus driver of the bus owned by the Respondent State Corporation and, thus, held the Respondent liable to pay compensation to the Appellant. In terms of the judgment, the MACT opined that the permanent disability of 31.1% would have to be considered and applied the multiplier method to calculate the loss of earning power. The total quantification of the compensation by the MACT was of Rs. 35,24,288 payable by the Respondent State Corporation along with interest @ 7.5% per annum from the date of petition till the date of realization with costs.

The Respondent State Corporation filed an appeal. The High Court, confirming the findings of negligence of the bus driver, reduced the compensation to Rs. 25,00,000 primarily on the ground that the multiplier method for quantifying loss of earning power has been wrongly applied as it had not come on record as to how the injuries suffered by the Appellant would have a bearing on her earning capacity as a software engineer. The interest rate was sustained. The Appellant has claimed before present Court that, she is entitled to enhancement of compensation even over and above what was granted by the MACT.

A victim who suffers a permanent or temporary disability occasioned by an accident is entitled to the award of compensation. The award of compensation must cover among others, the following aspects: (i) Pain, suffering and trauma resulting from the accident; (ii) Loss of income including future income; (iii) The inability of the victim to lead a normal life together with its amenities; (iv) Medical expenses including those that the victim may be required to undertake in future; and (v) Loss of expectation of life.

In Sandeep Khanuja v. Atul Dande and Ors., present Court opined that, the multiplier method was logically sound and legally well established to quantify the loss of income as a result of death or permanent disability suffered in an accident. In the factual contours of the present case, the disability certificate shows the admission/hospitalization on 8 occasions for various number of days over 1 ½ years from August 2011 to January 2013. It has been opined in Sandeep Khanuja v. Atul Dande and Ors. that, while applying the multiplier method, future prospects on advancement in life and career are also to be taken into consideration.

There is merit in the contention of the Appellant and the aforesaid principles with regard to future prospects must also be applied in the case of the Appellant taking the permanent disability as 31.1%. The quantification of the same on the basis of the judgment in National Insurance Co. Ltd. v. Pranay Sethi and Ors., more specifically considering the age of the Appellant, would be 50% of the actual salary in the present case.

The Appellant would, thus, be entitled to the compensation of Rs. 41,69,831 as claimed along with simple interest at the rate of 9% per annum from the date of application till the date of payment. The appeals are, accordingly, allowed.

Relevant

Sandeep Khanuja v. Atul Dande and Ors. MANU/SC/0108/2017
, National Insurance Company Limited v. Pranay Sethi and Ors. MANU/SC/1366/2017

Tags : Accident Compensation Entitlement

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High Court of Delhi

Cooner Institute of Health Care and Research Centre Pvt. Ltd. Vs. Income Tax Officer, Ward-6(3)

MANU/DE/1425/2020

27.07.2020

Direct Taxation

Refund claim cannot be withheld on mere basis that, a notice has been issued under Section 143(2) of IT Act

Present writ petition under Article 226 of the Constitution of India, 1950 seeks mandamus for directing the Respondent to grant refund as determined under Section 143(1) of the Income Tax Act, 1961 (IT Act). Petitioner, a company providing hospital services to the general public, filed its return of income for the Assessment Year ('AY') 2018-19 on 29th October, 2018 claiming refund of Rs. 1,43,48,810 on account of excess deduction of tax at source. Revenue selected the case of the Petitioner for limited scrutiny under Section 143(2) of the IT Act vide notice dated 22nd September, 2019. Subsequently, the 'Centralised Processing Centre' processed the return of income vide order dated 12th November, 2019 under Section 143(1) of the IT Act which resulted in refund of Rs. 1,57,83,688. However, since the said refund was not granted, Petitioner submitted various representations in this respect.

Thereafter, in a personal hearing granted to the Petitioner, it was informed that, the refund had been withheld under Section 241A of the IT Act. Neither the copy of the order nor the reasons for withholding the refund were provided to the Petitioner and accordingly, the present writ petition has been filed seeking directions in this regard.

It is apparent that, only ground for withholding refund is that, since case of the Petitioner has been selected for scrutiny for AY 2018-19, under Section 143(2) of the IT Act, the assessment is yet not complete and therefore genuineness of the refund claimed by the Assessee is yet to be verified. The aforesaid reason is inherently flawed and contrary to the views expressed by present Court in aforesaid two cases i.e. Maple Logistics Private Limited v. Principal Commissioner of Income Tax and Ericsson India Private Limited vs. Additional Commissioner of Income Tax, Special Range-3 and Ors.

In the case of Maple Logistics Private Limited v. Principal Commissioner of Income Tax, the Court had specifically stated that, merely because a notice has been issued under Section 143(2) of the IT Act, it is not a sufficient ground to withhold refund under Section 241A and the order denying refund on this ground alone would be laconic.

Further, in the case of Ericsson India Private Limited vs. Additional Commissioner of Income Tax, Special Range-3, it was observed that, the refund of amounts claimed - where they appear justified, by itself cannot be said to be adverse to the interest of the revenue. The interest of revenue lies in collecting revenue in a legal and justified manner. It does not lie in retaining the collected taxes in excess of what is justified, since the excess collection cannot even be properly termed as "revenue."

The exercise of withholding of refund under Section 241A of the Act, pursuant to notice under Section 143(2) of the IT Act, without recording justifiable reasons, is not in consonance with the legislative intent and mandate of the aforesaid provision. The reasons cited do not support the finding that refund would adversely affect the Revenue. The reasoning given by the Income-Tax Officer is contrary to Section 241A of the IT Act. Accordingly, the impugned communication/order is set aside.

Respondent is granted three weeks' time to re-consider the aspect whether the amount found due to be refunded, or any part thereof, is liable to be withheld under Section 241A of the IT Act in line with the decisions of present Court. The writ petition is accordingly allowed.

Relevant

Maple Logistics Private Limited v. Principal Commissioner of Income Tax and Ericsson India Private Limited vs. Additional Commissioner of Income Tax, Special Range-3 and Ors. MANU/DE/0763/2020

Tags : Pending Assessment Refund Entitlement

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High Court of Tripura

Uttam Deb Vs. The State of Tripura

MANU/TR/0265/2020

27.07.2020

Criminal

Fraudulent or dishonest intention must exist at the time of initial promise or formation of contract

The Petitioner being the convict has challenged the judgment and order of conviction and sentence delivered in case by the Judicial Magistrate, by means of present revision petition, filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (CrPC). By the said judgment and order of conviction and sentence have been upheld by the Additional Sessions Judge, by his judgment and order.

The appellate Court has affirmed the finding of the trial court that, the delay in filing the complaint is not fatal for the prosecution and as such, the conviction under Section 420 of Indian Penal Code, 1860 (IPC) suffers from no infirmity as 'cheating' as defined under Section 415 of IPC has been well-proved. The appellate Court has also observed that, the dishonest intention has been proved for the 'conduct' of the Petitioner from the very inception of the transaction and thus, the inducement defraud has been well substantiated to attract conviction under Section 420 of the IPC. The present petition has challenged the said judgment passed in the appeal.

In Murari Lal Gupta vs. Gopi Singh, it has been enunciated by the apex Court that, fraudulent or dishonest inducement unless is made coupled with delivery, the culpable act cannot be stated to be 'cheating by dishonest inducement' towards delivery of property. Such dishonest intention can be proved by direct evidence or it can be proved by circumstances from which a reasonable inference can be drawn. Further, mens rea at the time of inducing the person deceived to deliver any property to a person, is an essential ingredient to constitute an offence punishable under Section 420 of the IPC.

The prosecution was launched on the basis of the complaint. The statements of the victims were recorded by the police station after long time of the occurrence. On scrutiny, no single line would be available in the complaint that at any point of time, the Petitioner had introduced that if he had invested the money in UNIPAY 2 U, that it will fetch high return in the form of interest. Even when the statement of PW-1 was recorded during investigation (under Section 161 of the CrPC) he did not state to the investigating officer [PW-9] that, such inducement was extended to him by the Petitioner.

It is very difficult to believe that, someone had been depositing money through an agent without asking for any receipt or without any agreement. No agreement can be complete without the signature of the depositor or the investor. PW-1 has categorically stated that, neither he nor his wife or daughter had ever signed any paper. As such, the story of making investment through the Petitioner is visited by serious doubt and hence, the benefit would go to the Petitioner.

PW-9 is the investigating officer and he had recorded their statements during the investigation. PWs 1, 2, 3, 4 and 8 have embellished their statement to ensure the conviction of the Petitioner by completely deviating from their statement, recorded by the investigating officer during the investigation. The investigating officer [PW-9] has categorically stated that, the facts of inducement for making payment or demanding for money receipt or denying to pay back the money were never stated to him. Thus, those testimonies have become susceptible to doubt. Thus, the cumulative effect of such development is that, the Petitioner is entitled to get the benefit as there is no legal evidence to show that, there existed dishonest intention from inception of the transaction or the delivery of money was made under inducement.

'Cheating' by the Petitioner has not been established beyond reasonable doubt. Even, there is no element of mens rea. In Harmanpreet Singh Ahluwalia and Others vs. State of Punjab and Others, it has been clearly held by the apex Court that, fraudulent or dishonest intention must exist at the time of initial promise or formation of contract. Such fraudulent or dishonest inducement at the inception of transaction has not been proved by the prosecution to the hilt. The judgment and order stand quashed. As consequence thereof, the Petitioner is acquitted from the charge under Section 420 of the IPC on benefit of doubt. Petition allowed.

Relevant

Harmanpreet Singh Ahluwalia and Others vs. State of Punjab and Others MANU/SC/0747/2009
, Murari Lal Gupta vs. Gopi Singh MANU/SC/2806/2005

Tags : Conviction Evidence Credibility

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High Court of Kerala

Sam Joseph Vs. Chairman and Managing Director, Indian Railway Catering and Tourism Corporation Ltd. and Ors.

MANU/KE/1941/2020

24.07.2020

Service

Court cannot step in and substitute the decision of the Corporation in administrative exigencies

The Petitioner has filed present writ petition seeking to set aside transfer order and to exempt him from rotational transfer on compassionate grounds. The Petitioner is an Officer in the Indian Railway Catering and Tourism Corporation. He had joined the service of Corporation, as Assistant Manager, in July 2007.

The Petitioner has been served with order, transferring him to Bangalore with immediate effect. The Petitioner immediately submitted representation before the second Respondent and, thereafter, filed writ petition. This Court by judgment directed the second Respondent to consider the representation submitted by the Petitioner with compassion and sympathy that it deserves. Although, the second Respondent considered the representation, the Petitioner's request for cancellation of the transfer has been rejected. Hence, the Petitioner seeks to quash Exhibit P12 and direct the Respondents to exempt the Petitioner from rotational transfer. The sole question that emerges for consideration in present writ petition is whether the transfer and posting of the Petitioner from Ernakulam to Bangalore is justifiable or not.

It is an undisputed fact that the petitioner has been working in Ernakulam for the last four years. He holds a Managerial post in the Corporation. It is also admitted that in the last year, when the Petitioner was promoted and transferred, on the basis of the Petitioner's representation the Corporation reconsidered his transfer and permitted the petitioner to continue at Ernakulam.

The Petitioner has been transferred to Bangalore to handle special trains, to boost the tourism products of the Corporation in the present situation. The Petitioner being a senior employee of the Corporation has the responsibility towards his job assignment as well. The Petitioner was permitted to work in Ernakulam for the year four years. Merely because the Petitioner's son is a special need's child, that is not a ground for the petitioner to perpetually continue in Ernakulam. The Respondents have shown utmost leniency and compassion in favour of the petitioner during his tenure of service. The Petitioner has been transferred to Bangalore to meet the administrative exigencies of the Corporation. It is not for this Court to step in and substitute the wisdom of the Corporation, in its administration. Exhibits P6 and P7 are only guidelines/directives to be broadly followed by the Corporation.

As rightly pointed out by the Respondents, there are better educational and medical facilities at Bangalore, where the Petitioner can admit his son. If not, it is for the Petitioner to make alternative arrangements rather than resisting the transfer, on the ground of the illness of his son. True, sympathies are there with the Petitioner, but that cannot override administrative exigencies, particularly when he holds a senior managerial post.

The Petitioner does not have a case that, there is any malice or statutory infraction in the order of transfer. Moreover, he has enjoyed the benefit of promotion also. The Respondents have, as directed by this Court, considered the representation of the Petitioner and felt that, the Petitioner has to join the Corporation office at Bangalore, for the better interest of the Corporation. It is not for this Court to say that the said decision is wrong. There is no scope for judicial review in such administrative matters.

There is no illegality in Exhibit P12 order passed by the third respondent, which is purely an incident of service. Hence, there are no grounds warranting interference by this Court, in exercise of its powers under Article 226 of the Constitution of India, to set aside Exhibit P12 order and to direct that the Petitioner be exempted from rotational transfer. Writ petition dismissed.

Tags : Transfer order Malice Proof

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Income Tax Appellate Tribunal

Goulikar Jawaharlal, Nalgonda District. vs. Income-Tax Officer

MANU/IH/0063/2020

24.07.2020

Direct Taxation

Benefit of deduction under Section 54F of the IT Act is available, if entire investment had come out of proceeds of old property

The brief facts of the case are that, the Assessee is an individual engaged in the business of selling mutton and sheep, filed his return of income for the relevant Assessment Year (AY) declaring his total taxable income. Initially the return was processed under Section 143(1) of the Income Tax Act, 1961 (IT Act) subsequently, the case was taken up for scrutiny and thereafter the assessment was completed under Section 143(3) of the IT Act wherein the Assessing Officer (AO) disallowed the claim of deduction under Section 54 of the IT Act.

During the course of scrutiny assessment proceedings, it was observed that the Assessee had admitted sale of his 1/3rd share in the immovable property at Rs. 12,42,895 and after claiming indexed cost of acquisition, the Assessee had computed the LTCG at Rs.7,90,534. Further, the Assessee claimed deduction for the amount of Rs. 7,90,534 under Section 54F of the Act.

However, the AO observed that, the Assessee had claimed deduction under Section 54F of the Act with respect to the new semi-finished residential house purchased vide sale deed executed on 19th December, 2012 in the name of the Assessee’s son for Rs. 26 lakhs. It was further observed that, the Assessee’s son had purchased the new residential house from the loan obtained by him from HDFC Bank. The AO opined that since the sale proceeds were not deposited in the capital gain scheme account and also the new asset purchased was not sourced from the sale consideration received by the Assessee, the Assessee is not eligible for deduction under Section 54F of the Act. Learned CIT (A) confirmed the order of the AO.

It is submitted that, the entire sale proceeds were utilised for the purchase of the residential house property in the name of his son. Further, reliance was placed on the decision of the Hon’ble Delhi High Court in the case of CIT-Tax-XII vs. Kamal Wahal wherein it is held that, the benefit of deduction under Section 54F of the IT Act shall be available to the assessee even if the new residential house is purchased in the name of his spouse. The Ld. AR further submitted that, the loan was obtained from the HDFC bank subsequent to the payment made for purchase of the property and therefore the source for the purchase of the new residential property was from the sale proceeds of the asset sold by the Assessee. It was further submitted that, the new asset was purchased by the Assessee within the due date of filing of the return and therefore there was no statutory obligation to deposit the sale proceeds in the capital gain scheme account.

From the facts of the case, it is apparent that, the sale proceeds received by the Assessee was utilised for purchase of the new residential property in the name of his son. The new asset is also purchased within the due date of filing of the return by the Assessee. Therefore, the Assessee was not bound to deposit the sale proceeds in the capital gain scheme account. Further, the bank loan obtained by the Assessee’s son from the HDFC Bank does not appear to be the source for the purchase of the new residential house by the Assessee’s son. Violations made by the Assessee’s son with respect to the terms of loan agreement entered with HDFC Bank towards the purchase of the residential house is of no relevance

Moreover, the case Delhi High Court in the case of CIT-Tax-XII vs. Kamal Wahal has held that, “wherein the Assessee purchases new house in the name of his wife and not in the name of any stranger who was unconnected with him, exemption cannot be denied, if entire investment had come out of proceeds of old property”. It is clear that the Assessee has not violated any of the provisions mentioned in Section 54F of the Act in order to be denied for the benefit of deduction. Therefore, the order of the CIT (A) on the issue is set aside and the AO is directed to grant the benefit of deduction under Section 54F of the IT Act to the Assessee. As regards the charging of interest under Section 234A, B & C of the IT Act, the order of CIT (A) is confirmed because the levy of interest is consequential in nature and mandatory. Appeal of the Assessee is partly allowed.

Tags : Benefit Deduction Grant

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