14 September 2020


Judgments

Supreme Court

Rizwan Khan Vs. The State of Chhattisgarh

MANU/SC/0680/2020

10.09.2020

Criminal

To prove the case under NDPS Act, ownership of the vehicle is not required to be established

Original accused no.1 has preferred the present appeal against impugned Judgment passed by the High Court by which the High Court has dismissed the said appeal preferred by the Appellant herein – original accused No.1 and has confirmed the Judgment and Order of Conviction and Sentence passed by the learned Special Court convicting the accused – Appellant no.1 for the offence under Section 20(b)(ii)(B) of Narcotic Drugs & Psychotropic Substances Act, 1985 (‘NDPS Act’)

In the present case, the prosecution has been successful in proving the case against the accused by examining the witnesses. It is true that all the witnesses are police officials and two independent witnesses who were panchnama witnesses had turned hostile. However, all the police witnesses are found to be reliable and trustworthy. All of them have been thoroughly cross­examined by the defence. There is no allegation of any enmity between the police witnesses and the accused. No such defence has been taken in the statement under Section 313 of Code of Criminal Procedure, 1973 (CrPC). There is no law that, the evidence of police officials, unless supported by independent evidence, is to be discarded and/or unworthy of acceptance.

It is settled law that, the testimony of the official witnesses cannot be rejected on the ground of non­corroboration by independent witness. As observed and held by this Court in catena of decisions, examination of independent witnesses is not an indispensable requirement and such non­examination is not necessarily fatal to the prosecution case as is held in the State of Himachal Pradesh v. Pardeep Kumar and Ors.

Regarding the submission on behalf of the accused with respect to non­compliance of the procedure prescribed under Section 42 of the NDPS Act is concerned, on consideration of the deposition of PW8, compliance of the procedure prescribed under Section 42 of the NDPS Act has been established and proved. Similarly, compliance under Section 55 of the NDPS Act, has also been established and proved by the prosecution by examining PW3 and PW7.

It has been established and proved that, the samples which were seized and sealed were sent to the FSL. The submission on behalf of the accused that, the ownership of the motor cycle (vehicle) has not been established, it is required to be noted that, in the present case, the Appellant and the other accused persons were found on the spot with the contraband articles in the vehicle. To prove the case under the NDPS Act, the ownership of the vehicle is not required to be established. It is enough to establish and prove that, the contraband articles were found from the accused from the vehicle purchased by the accused.

Ownership of the vehicle is immaterial. Therefore, merely because of the ownership of the vehicle is not established and proved and/or the vehicle is not recovered subsequently, trial is not vitiated, while the prosecution has been successful in proving and establishing the recovery of the contraband articles from the accused on the spot. Both the Courts below have rightly convicted the accused for the offence under Section 20(b)(ii)(B) of the NDPS Act. There is no reason to interfere with the conviction of the accused for the offence under Section 20(b)(ii)(B) of the NDPS Act. Appeal dismissed.

Relevant

Himachal Pradesh v. Pardeep Kumar and Ors. MANU/SC/0213/2018

Tags : Conviction Evidence Credibility

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Supreme Court

Stalin Versus State represented by the Inspector of Police

MANU/SC/0678/2020

09.09.2020

Criminal

When there are definite evidence proving an incident and eye­witness account prove the role of accused, absence of motive does not affect the prosecution case

The original accused has preferred the present appeal dissatisfied with the impugned judgment and order passed by the High Court by which the High Court has dismissed the said appeal and has confirmed the Judgment and Order of conviction and sentence passed by the learned Additional District and Sessions Court, convicting the Appellant.

Present Court is required to consider whether the Appellant herein – the original accused has been rightly convicted for the offence punishable under Section 302 of Indian Penal Code, 1860 (IPC) or is to be convicted for any other lesser offence, viz. Section 304 Part II of IPC. Learned counsel appearing on behalf of the Appellant – original accused has vehemently submitted that as it is a case of a single blow, Section 302 of IPC shall not be attracted. It is submitted that, even the so­called motive alleged for the incident is prior to four months of the incident in question and, therefore, the prosecution has failed to establish and prove the motive for the accused to kill the deceased.

There is no hard and fast rule that, in a case of single injury Section 302 of IPC would not be attracted. It depends upon the facts and circumstances of each case. The nature of injury, the part of the body where it is caused, the weapon used in causing such injury are the indicators of the fact whether the accused caused the death of the deceased with an intention of causing death or not. It cannot be laid down as a rule of universal application that, whenever the death occurs on account of a single blow, Section 302 of IPC is ruled out. The fact situation has to be considered in each case, more particularly, under the circumstances narrated, the events which precede will also have a bearing on the issue whether the act by which the death was caused was done with an intention of causing death or knowledge that it is likely to cause death, but without intention to cause death. It is the totality of the circumstances which will decide the nature of offence.

As held by present Court in catena of decisions, motive is not an explicit requirement under the IPC, though “motive” may be helpful in proving the case of the prosecution in a case of circumstantial evidence. There are three eye­witnesses to the incident and the prosecution has been successful in proving the case against the accused by examining those three eye­witnesses. Therefore, as rightly observed by the High Court, assuming that the alleged motive is the incident which had taken place prior to four months or the prosecution has failed to prove the motive beyond doubt, the same shall not be fatal to the case of prosecution.

As observed by present Court in the case of Jafel Biswas v. State of West Bengal, the absence of motive does not disperse a prosecution case, if the prosecution succeed in proving the same. The motive is always in the mind of person authoring the incident. Motive not being apparent or not being proved only requires deeper scrutiny of the evidence by the Courts while coming to a conclusion. When there are definite evidence proving an incident and eye­witness account prove the role of accused, absence in proving of the motive by prosecution does not affect the prosecution case.

As per Exception IV to Section 300 of IPC, culpable homicide is not murder, if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage and not having acted in a cruel or unusual manner. In the present case, at the place of incident, the beer was being served; all of them who participated in the beer party were friends; the starting of the incident is narrated by P.W.3. In view of totality of the facts and circumstances of the case and that the accused inflicted the blow with a weapon like knife and he inflicted the injury on the deceased on the vital part of the body, it is to be presumed that causing such bodily injury was likely to cause the death. Therefore, the case would fall under Section 304 Part I of the IPC and not under Section 304 Part II of the IPC. The appeal is allowed in part.

Tags : Conviction Sentence Legality

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Supreme Court

The New India Assurance Company vs. Somwati

MANU/SC/0674/2020

07.09.2020

Motor Vehicles

In a Motor Accident Compensation Claims, compensation for 'loss of consortium' can be awarded to children and parents also

Present appeals have been filed by three Insurance Companies, i.e., New India Assurance Company Limited, Cholamandalam MS General Insurance Company Ltd. and The Oriental Insurance Company Ltd. questioning the judgments of the High Courts arising out of the award by Motor Accident Claims Tribunal (MACT) with regard to the compensation awarded in favour of the claimants under two heads, i.e., “Loss of Consortium” and “loss of love and affection.”

Learned counsel for the Appellants submitted that, the amount granted under the head ‘loss of love and affection’ is wholly without jurisdiction and further amount granted under the head ‘consortium’ could not be more than Rs. 40,000 and the amount of ‘consortium’ is only payable to wife who is entitled to Rs.40,000 and the Tribunals and the High Courts committed error in awarding amount of consortium to each of the claimant, i.e., wife, children and parents.

The expression ‘compensation’ is a comprehensive term which includes a claim for the damages. Compensation is by way of atonement for the injury caused. The claimant in a claim for award of compensation under Section 166 of Motor Vehicles Act, 1988, is entitled for just compensation. The just compensation has to be equitable and fair. The loss of life and limb can never be compensated in an equal measure but the statutory provisions under Motor Vehicles Act is a social piece of legislation which has been enacted with intent and object to facilitate the claimants to get redress for the loss of the member of family, compensate the loss in some measure and to compensate the claimant to a reasonable extent.

It is thus now authoritatively well settled that, no compensation can be awarded under the head ‘loss of love and affection’. The Three-Judge Bench in United India Insurance Company Ltd. has categorically laid down that, apart from spousal consortium, parental and filial consortium is payable. Present Court, thus, cannot accept the submission of the learned counsel for the Appellant that, the amount of consortium awarded to each of the claimants is not sustainable.

The impugned judgments of the High Court awarding consortium to each of the claimants in accordance with law which does not warrant any interference in this appeal. Present Court, however, accept the submissions of learned counsel for the Appellant that, there is no justification for award of compensation under separate head ‘loss of love and affection’. The appeal filed by the Appellant deserves to be allowed insofar as the award of compensation under the head ‘loss of love and affection’. The award of compensation under the conventional head ‘loss of love and affection’ is set aside. The Motor Accident Claims Tribunals shall re-compute the amount payable and take further steps in accordance with law. Appeals partly allowed.

Tags : Accident Compensation Entitlement

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High Court of Bombay

Sardool Singh Sucha Singh Matharoo Vs. Harneet Kaur and Ors.

MANU/MH/1196/2020

07.09.2020

Family

Party can claim maintenance from the estate of husband under Section 19 of Hindu Adoption and Maintenance Act, 1956 only after demonstrating that she is unable to maintain herself

The Petitioner was blessed with two sons. Late Bhupinder was married to Respondent no. 1 on 12th December, 2004 and died on 21st May, 2015. Respondent no. 2, son was born out of the above marriage. The mother of Respondent no. 1 died in the year 2016, whereas her father died in February, 2017. It is her case that, she has no independent source of earning and she and her son are completely dependent on the earnings of the Petitioner. It is, in this background, Respondent no. 1 preferred the proceedings under Sections 19 and 22 of Hindu Adoption and Maintenance Act, 1956 with a prayer for grant of maintenance of Rs. 1,50,000 per month to petitioner no. 1 and Rs. 50,000 to Petitioner no. 2 to the petition before the Family Court.

The claim was resisted by the present Petitioner-original Respondent thereby alleging that, apart from the fact that the present Petitioner is paying maintenance to the Respondents and has provided accommodation, an expenses of Rs. 90,000 are incurred by the Petitioner so as to meet day-to-day requirement, educational expenses etc. The break-up to that effect has been given in the reply filed to the main petition before the Family Court. Since the Respondent no. 1 claimed to have neglected to maintain by the Petitioner, the application seeking interim maintenance under Section 19 of the Act came to be moved claiming Rs. 1,00,000 per month for Respondent no. 1 and Rs. 50,000 per month to Respondent no. 2, son.

Vide impugned order, the Family Court has allowed the prayer partly and granted maintenance of Rs. 40,000 per month to respondent no. 1, whereas Rs. 30,000 per month to respondent no. 2. Learned counsel for the Petitioner-original respondent would invite attention of this Court to the provisions of Section 19, Proviso to Sub-Section (2) of the Act so as to claim that, the maintenance ought to have been claimed by the Respondent no. 1 only after demonstrating that she was unable to maintain herself from her own earnings or from the estate of her parents.

The plain reading of Section 19 of the Act contemplates that, the Respondents have every right to claim the maintenance after the death of husband from the estate inherited by her father-in-law i.e. the present Petitioner. That proviso to Sub-Section (1) of Section 19 contemplates that, the Respondent has to demonstrate that she is unable to maintain herself. It is in this eventuality, she can claim maintenance from the estate of her husband, still fact remains that the said burden can be discharged by Respondent no. 1 at an appropriate stage. The object with which the provision is made in the statute book for grant of interim maintenance cannot be ignored.

At this stage, what was required to be appreciated by the Court below and rightly so appreciated by the Family Court in the impugned order is whether there was neglect to maintain and whether the Respondents are entitled for maintenance from the Petitioner in view of Section 19 of the Act. The Family Court has relied on the statement made in the written statement by the present Petitioner that the income per month of the petitioner from the HUF property is Rs. 1,28,000. The income of the Petitioner for the assessment year 2018-2019 as was reflected in the income-tax return was Rs. 74,87,007.

It cannot be at this stage presumed that, the maintenance is disproportionate to the legal source of income of the Petitioner. Rather the maintenance awarded to the Respondent no. 1 to the tune of Rs. 40,000 and to respondent no. 2, grandson of Rs. 30,000 appears to be justified, considering the income drawn by the Petitioner. Present Court cannot see any material illegalities so as to infer that the order impugned runs contrary to the scheme of Section 19 of the Act. No case for interference is made out. Petition dismissed.

Tags : Maintenance Eligibility Proof

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NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI

Kuntal Construction Pvt. Ltd. Vs. Bharat Hotels Ltd.

MANU/NL/0332/2020

04.09.2020

Insolvency

IBC is not a substitute to a recovery forum and whenever there is existence of real dispute, the IBC provisions cannot be invoked

The present appeal has been preferred by Kuntal Construction Pvt. Ltd. ('Operational Creditor') under Section 61 of the Insolvency & Bankruptcy Code 2016 ('I&B Code') challenging the impugned order passed by the National Company Law Tribunal, ('Adjudicating Authority') under Section 9 of I&B Code, for the initiation of Corporate Insolvency Resolution Process against Bharat Hotels Ltd. ('Corporate Debtor') for the outstanding of amount of Rs. 14,89,966.

The brief facts of the case are that, the Appellant is engaged in the business of civil works, carrying out structural work for all types of building and water & sewerage treatment plants renovation works besides other civil construction and has catered to a vast and diverse clientele all over India. The Corporate debtor approached the Operational Creditor for availing its services and work orders were issued for Rs. 47,50,000 and Rs. 2,07,00,000 respectively. The averments were made by the operational creditor that, it raised invoices and maintained a running account with the corporate debtor. Partial payments were received from the corporate debtor from time to time and post adjustment operational creditor is claiming that, there is an outstanding liability of Rs. 14,89,967 including retention amount of Rs. 6,74,247 from the corporate debtor.

The Operational Creditor contended that, the main issue arrived from the mutual settlement letter dated 7th October, 2015. It is submitted that, operational creditor on 28th November, 2018 issued demand notice under Section 8 of I&B Code against the Corporate Debtor raising the outstanding dues of Rs. 14,89,967 including retention amount of Rs. 6,74,247 due from Corporate Debtor and on 24th December, 2018, the operational creditor filled the petition before the Adjudicating Authority for initiation of CIRP. It is further submitted on behalf of the operational creditor that after hearing both the parties the Adjudicating Authority passed the interim order.

The email correspondences clearly showed that, the operational creditor was intimated about the retention money being adjusted on account of defects in the Work Order. It is clearly laid down by the Hon'ble Supreme Court "IBC is not intended to be substitute to a recovery forum and whenever there is existence of real dispute, the IBC provisions cannot be invoked."

Since there was a dispute existing prior to the issuance of Section 8 notice, the insolvency provisions cannot be invoked. The email communication of the Operational creditor dated 23rd January, 2016 states about operational creditor having knowledge of retention money being adjusted. Whether the corporate debtor was entitled to adjust the retention amount are disputed question of law and fact and shall be decided by the appropriate forum.

No one can take recourse that they have not been communicated the Judgment. It should be the duty of the counsel to keep a track after the matter is reserved for pronouncement. This is not a valid ground for requesting the condonation of delay. There should be a sufficient cause for the delay and no one can claim condonation as a matter of right. There is no merit so as to interfere in the impugned order passed by the Adjudicating Authority. Appeal dismissed.

Tags : CIRP Initiation Legality

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Income Tax Appellate Tribunal

Deputy Commissioner of Income Tax, Circle-7(1)(1) Vs. Thermo King India Pvt. Ltd.

MANU/IL/0306/2020

04.09.2020

Direct Taxation

Interest can be capitalized only in respect of capital assets purchased out of borrowed funds

The revenue has filed present appeal challenging the decision rendered by Learned CIT(A) in respect of disallowance of interest expenditure made by the Assessing Officer (A.O.) in assessment year 2008-09. The assessee is engaged in the business of trading in Refrigeration units (including Freezers and Chillers). During the course of assessment proceeding, the A.O. noticed that the assessee has shown closing stock of inventory at Rs. 12.02 crores. He also noticed that, the assessee has claimed interest expenditure of Rs. 1.71 crores on the loan taken from Inger Soll Rand (I) Ltd. The A.O. noticed that the assessee did not have surplus funds equal to the inventory held by it. Accordingly, he took the view that the assessee has used the loan funds for purchasing the inventory. In view of the same, the A.O. took the view that the interest expenditure should have been considered by the assessee while valuing inventory as at the year end, i.e., the assessee should have capitalized part of interest expenses in the value of inventory.

The A.O. has so taken the view by observing that, the interest attributable to bring the inventory to its present location and condition should be included in the cost of inventory. Accordingly, he computed the interest attributable to the inventory by adopting prime lending rate of 12.75% determined by the State Bank of India and accordingly computed a sum of Rs. 1,53,37,415, as the interest attributable to the inventory and disallowed the same. The Learned CIT(A) deleted the disallowance and hence, the revenue has filed present appeal.

The Learned Authorised Representative (AR) submitted that, the principle enunciated by the A.O. would be applicable only to capital assets, as per the proviso to Section 36(1)(iii) of the Income Tax Act 1961. He submitted that, the assessee has used borrowed funds in the normal business activities of trading in refrigeration items. Hence, the question of capitalising the interest expenditure does not arise.

Reliance is also placed reliance on the decision rendered by coordinate bench of ITAT in the case of DCIT Vs. JSR Constructions Pvt. Ltd. and submitted that the co-ordinate bench has, after considering Accounting Standard -2 relating to valuation of inventories, has held that the question of including interest expenditure for current assets does not arise. The Learned A.R. also submitted that the newly introduced ICDS though applicable in the subsequent year also supports the methodology adopted by the assessee. Present Tribunal finds merit in the contentions of the Learned AR.

There is no dispute with regard to the fact that, the inventories held by the assessee are current assets and hence, the requirement of capitalising the interest does not arise, as per the proviso to Section 36(1)(iii) of the Act mandates capitalization of interest only in respect of capital assets purchased out of borrowed funds. The method of valuation adopted by the assessee also gets support from Accounting Standard - 2 issued by ICAI. The Learned A.R. also submitted that, the newly introduced ICDS though applicable in the subsequent year also supports the methodology adopted by the assessee. Under these set of facts and in view of the fact that, the decision rendered by the Learned CIT(A) is in consonance with the decision rendered by the coordinate bench in the case of JSR Constructions, there is no infirmity in the decision rendered by Learned CIT(A) on this issue. The appeal filed by the revenue is dismissed.

Relevant

The Deputy Commissioner of Income Tax vs. JSR Constructions Pvt. Ltd. MANU/IL/0106/2016

Tags : Interest Disallowance Legality

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