[No.208]

Supreme Court

• Shanti Lal Vs. State of M.P.

Appellant -accused was convicted for possessing unlawful opium and was sentenced to rigorous imprisonment along with fine as per NDPS Act. Upon default of payment of fine, appellant-accused was sentenced to further imprisonment. On appeal against same, High Court affirmed ruling by trial court. Appellant-accused challenged his sentencing on ground that Section 18 of NDPS Act does not expressly say that a convict has to remain in jail for default of payment of fine. Hence, present appeal. Held, it is true that Section 18 of the Act does not expressly say so. It merely provides for imposition of sentence as also payment of fine. However, even in absence of specific provision in the Act empowering a Court to order imprisonment in default of payment of fine, such power is implicit and is possessed by a Court administering criminal justice. Minimum fine contemplated by Section 18 is rupees one lakh. Though an amount of payment of fine of rupees one lakh which is minimum as specified in Section 18 of the Act cannot be reduced in view of the legislative mandate, in view of special circumstances of the Appellant in the present case, ends of justice would be met if that part of the direction is retained and Appellant is ordered that in default of payment of fine of rupees one lakh, the Appellant shall undergo rigorous imprisonment for six months instead of three years as ordered by the trial court and confirmed by the High Court. Appeal is partly allowed.

• State of Gujarat Vs. Turabali Gulamhussain Hirani and Anr.

The appeal has been filed against the interim order of the Gujarat High Court summoning the Chief Secretary and Law Secretary of the Gujarat government for delay of 25 days in filing a criminal appeal. The reason for the delay was the shortage of staff including stenographers in the office of the Public Prosecutor. The Supreme Court opined that the Gujarat High Court was totally unjustified in summoning the Chief Secretary and Law Secretary merely because there was a delay of 25 days in filing the appeal. Taking note of the fact that a large number of cases have come up before the apex Court where Judges of various High Courts have been summoning Chief Secretary, Secretaries or other senior officials of the government, the court observed that though the High Court has power to summon these officials it should be done in very rare and exceptional cases when there are compelling circumstances to do so. The court further observed that a lot of public money and time may be unnecessarily wasted in the process. Quashing the Gujarat High Court's order, the court observed that the senior officials too have their self-respect and if the court gives them respect, they in turn will respect the court. Appeal allowed and delay in filing the appeal condoned.

High Courts

Bombay

• M/s Akanksha International, through its Proprietor, Anju Suryaprakash Demda, Jalna

Vs.

         Maharashtra State Electricity Distribution Co. Ltd., through its Superintending Engineer, Jalna Circle, Jalna

Petitioner purchased property of erstwhile owner in an auction sale conducted by the secured creditor of the erstwhile owner and filed application for fresh electricity connection as same was disconnected by Respondent prior to sale of property in question. Respondent claimed that in order to get fresh electricity connection Petitioner would have to first clear the outstanding dues owed by the erstwhile owner. Hence, present petition. Held, after coming into force of Regulation 10.5 of Maharashtra Electricity Regulatory Commission (Electricity Supply Code and Other Conditions of Supply Regulations, 2005, any charge for electricity or any sum other than a charge for electricity due to the Distribution Licensee which remains unpaid by erstwhile owner/occupier of the premises, shall be a charge on the premises transmitted to the legal representative, successor-in-law or transferred to the new owner/occupier of the premises, as the case may be and shall be recoverable by the Distribution Licensee from such successor-in-law or new owner/occupier of the premises. Therefore, the dues owed by erstwhile owner to the Respondent are charge on the property alleged to be purchased by the Petitioner and as such the Petitioner is bound to pay the same. Petition is dismissed.

• Eknath s/o Vitthal Wakle Vs. The State of Maharashtra

Appellant-accused was charged with murder of deceased. Trial Court relying on circumstantial evidence convicted Appellant-Accused for offence of murder of deceased. Appellant challenged his conviction on ground that Prosecution could not attribute any motive to the murder and that circumstantial evidence relied upon by prosecution were not proved beyond doubt. Hence, present appeal. Held, in a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. The chain of circumstances is not complete in the present case and as such the Appellant is entitled for benefit of doubt. Appeal is allowed.

• Vardhaman Dye-Stuff Industries Pvt. Ltd. and Ors. Vs. M.R. Shah

Respondent-petitioner filed petition before CLB under Section 397/398 of the Companies Act complaining of oppression of minority stake holders and mismanagement by Appellant-company. CLB came to the conclusion that the Respondent was fully aware of all the transactions taken by the Appellant-Company as her husband was the Chartered Accountant of the Appellant-company at the relevant time. Therefore, it held that no case of oppression or mismanagement could be raised by the petitioner against the Appellant -Company. However, CLB directed Appellant-Company to purchase the shares of Respondent-petitioner. Hence, present appeal. Held, there is no case made out by the Respondent to exercise any equitable jurisdiction to grant relief. This is not the case where the parties were fighting litigation for the years. On the contrary, in this case at the relevant time, the Petitioner who was fully aware all the transactions and affairs of the company, as her husband was a Chartered Accountant of the company, who in fact dealt with all alleged basic financial matters of the company cannot claim the equity or such reliefs. There is no case of oppression and mismanagement or winding up of the company on any unjust or equitable ground to bring the case under any of Section 397 or 398 and or even 402 of the Companies Act. Therefore, appeal allowed.

Press Information Bureau

• Taxpayers Liable To Tds / Tcs Are Advised To Furnish Their Correct Pan With Their Deductors

PIB Dated 25.09.2007: It has been observed that in most of the TDS (tax deducted from salaries) / TCS (tax deducted from payments other than salaries returns), the PAN of the deductees is either missing or incorrect. As the requirement of filing TDS / TCS certificates has been done away with, the lack of PAN of deductees is creating difficulties in giving credit for the tax deducted and collected. Therefore, it is notified vide the present press release that that TDS returns for salaries, i.e. Form No.24Q with less than 90% of PAN data, and TDS returns for payments other than salaries and TCS returns, i.e. Form No.26Q and Form No.27EQ respectively, with less than 70% of PAN data will not be accepted for the quarter ending on 30.9.2007 and thereafter. Tax deductors and tax collectors are, therefore, advised to obtain correct PAN details of all deductees and quote the same in the TDS / TCS returns, failing which the TDS / TCS returns will not be accepted and all penal consequences under the Income Tax Act will follow.

RBI

• RBI Further Liberalises Forex Rules

Press Release No. 2007-2008/420 Dated 25.09.2007: The RBI vide the present circular notifies that it has been decided to accelerate the implementation of the third phase of the recommendations of the Committee on Fuller Capital Account Convertibility (CFCAC) with regard to the foreign exchange outflows. Accordingly, investment in overseas Joint Ventures (JV) / Wholly Owned Subsidiaries (WOS) by Indian companies will now be permitted up to 400 per cent of the net worth of the Indian company under the Automatic Route; In order to provide greater opportunities to listed Indian companies for portfolio investment abroad, the existing limit of 35 per cent of the net worth for portfolio investments by listed companies is being increased to 50 per cent of the net worth. Further, the requirement of 10 per cent reciprocal share holding in the listed Indian companies by overseas companies for the purpose of portfolio investment outside India by Indian listed companies has been dispensed with. Also the existing limit for prepayment of External Commercial borrowings (ECBs) without the Reserve Bank approval is being increased from USD 400 million to USD 500 million, subject to compliance with the minimum average maturity period as applicable to the loan. The aggregate ceiling for overseas investments by mutual funds, registered with SEBI has also been increased from USD 4 billion to USD 5 billion. The existing limit under Liberalised Remittance Scheme (LRS) is also enhanced from USD 100,000 to USD 200,000 per financial year.

Telecom Regulatory Authority of India (TRAI)

• National Do Not Call Registry (NDNC) to be Launched from 12th October, 2007

Press Release No.  88/2007 Dated 05.10.2007: The Telecom Regulatory Authority of India (the Authority) had issued "Telecom Unsolicited Commercial Communications Regulations, 2007", on 5th June'07 for putting in place a mechanism for curbing the unwanted telemarketing calls. The NDNC registry is ready and is going to be operational from 12th October 07. Those subscribers who have registered before August 31st, 2007 will not receive unsolicited commercial calls. The subscribers who have registered after August 31st, 2007 will also get this benefit after a gap of forty five days. Accordingly, from 12th October '2007, no Telemarketer will call the subscribers who are registered with NDNC.

Insurance Regulatory and Development Authority (IRDA)

• Committee on Distribution Channel

Circular No. IRDA/Life/Dist.Channel/037/2007-08 Dated 21.09.2007: The IRDA has notified that in order to study the various sales channels of insurance like e-selling, on-line purchases etc in addition to the traditional methods, their efficacy, their cost effectiveness, their weaknesses and make recommendations on the changes to be made to make them effective, professional and accountable, the Authority has formed a Committee with Shri N.M. Govardhan, former Chairman, LIC of India as its Chairman.

The Committee will study the various sales channels and then submit its recommendations in its report by 31st December, 2007.

Cases

• Grocery Outlet INC V. Albertson's INC.; American Stores Company, LLC; Lucky Stores, INC.; American Stores Company, LLC

Plaintiff-appellants appeals against grant of preliminary injunction to defendants by district court. Plaintiffs claimed that defendants had abandoned the trademark in question "Lucky" through its publicly advertised announcement that "LUCKY" stores were converted to defendant's "Albertson stores" after a company merger. District court however rejected the claim of the plaintiffs and held that the defendants were the legal owner of the trademark in question. District Court held that the plaintiffs did not establish the defense of abandonment of trademark in issue by defendants, whereas defendants offered sufficient evidence of its intent to resume use of trademark in question within the reasonably foreseeable future during the short period of alleged non use. Hence, present appeal. Held, abandonment of a trademark is a defense to a claim of infringement of a registered trademark as per 15 U.S.C. § 1115(b)(2). The Lanham Act provides for two ways that a trademark may be abandoned, namely, through (1) nonuse, or (2) the mark becoming generic. To show abandonment by nonuse, the party claiming abandonment must prove both the trademark owner's (1) "discontinuance of trademark use" and (2) "intent not to resume such use." In this case as held by district court plaintiff did not establish its defense of abandonment, where defendant's offered sufficient evidence of its intent to resume use of the mark in question within the reasonably foreseeable future for the short period of alleged non-use. Further, plaintiff does not dispute the district court's finding that defendant is the legal owner of various federal and state trademark registrations of the mark in question associated with retail grocery services and products. Nor does it dispute that plaintiff's use of the LUCKY mark for retail grocery services was likely to cause consumer confusion. Therefore, judgment of lower court is affirmed.

• Tiseo Architects, Inc. v. B & B Pools Service and Supply Company; Jim Mandziuk; John Juntunen; Gary L. Olson

Plaintiff-Architects, Inc. alleged that defendant-architect copied a design and site plan that plaintiffs had prepared on the ground that the defendant's construction plans were substantially similar to the design of the plaintiffs. After a bench trial, the district court ruled in favor of the defendants and held that the architectural drawings in question were not substantially similar. Hence, present appeal. Held, it is well established that "originality is a constitutionally mandated prerequisite for copyright protection as per the ruling in Feist Publ'ns, Inc. v. Rural Telephone Serv. Co., Inc. Accordingly, the substantial similarity analysis of a copyright infringement claim is divided into two steps: "the first step requires identifying which aspects of the artist's work, if any, are protectible by copyright; the second involves determining whether the allegedly infringing work is 'substantially similar' to protectible elements of the artist's work." The district court "filtered out" many elements of plaintiff Architects' site plan drawings because they were "unoriginal," having been based on the sketch of another person; and the court identified several elements of the site plan that "possessed no minimal degree of creativity" because they were dictated by zoning regulations or the realities of the existing physical structure. The district court then compared the allegedly infringing building plans to the protectable elements of plaintiff Architects' site plan drawings. In so doing, the district court found "a lot of differences" and no substantial similarity. Therefore, district court applied the correct legal analysis in determining that defendant's work did not infringe plaintiff's copyright. Hence, judgement of district court is affirmed.

News

• Myanmar Continues Monk Arrests as Junta Pressed for Unconditional talks with Suu Kyi

Myanmar military leaders increased pressure on opponents detaining at least 135 Buddhist monks in connection with weapons allegedly seized from monasteries. The ruling junta claims that the raids have uncovered guns, knives and ammunition and insists they will punish all violators of the law. The crackdown comes on the heels of a sharp reduction in security in the capital Yangon.

• Japan Ruling Party Narrows Scope of Anti-terror bill

Japan's ruling Liberal Democratic Party (LDP) has submitted a new draft anti-terrorism law that would limit Japan's naval support for US operations in Afghanistan as part of Operation Enduring Freedom to refueling and supplying water to coalition ships in the Indian Ocean. The latest proposed extension of the current Anti-Terrorism Special Measures Law would bar Japanese ships from refueling coalition ships providing ground support in Afghanistan. It would also preclude Japanese forces from participating in search and rescue missions and relief efforts. New Japanese Prime Minister Yasuo Fukuda had previously expressed support for fully renewing the anti-terror law but has come under pressure from the opposition Democratic Party of Japan (DPJ) which contends that allied military operations in Afghanistan are not sanctioned by the United Nations and violate Japan's pacifist constitution. The current law expires on November 1.

• Washington high Court holds law Barring Campaign lies Unconstitutional

The Washington State Supreme Court has struck down a state statute making it illegal to lie about political opponents. Justice James M. Johnson, writing the 5-4 majority opinion said: "There can be no doubt that false personal attacks are too common in political campaigns, with wide-ranging detrimental consequences. However, government censorship such as RCW 42.17.530(1)(a) is not a constitutionally permitted remedy." The majority ruling bucks a trend evidenced in more than a dozen US states that have passed similar laws. The ruling also deviates from a 1991 US Sixth Circuit Court of Appeals decision upholding a similar Ohio statute.

• Saudi Arabia Setting up New Supreme Court as Part of Judicial Overhaul

King Abdullah of Saudi Arabia has announced a plan to create a supreme court for the country, as well as new appeals and general courts. The new supreme court will replace the current Supreme Judicial Council, which will be relegated to handling issues involving judicial salaries and staffing under a new administrative supreme court. The changes are designed to support increasing codification of Saudi laws and standardization in sentencing. Saudi courts currently base their rulings on Islamic Sharia law, but where religious doctrine defines no specific punishment for an offense, judges can interpret the law as they see fit. Critics of the system have recently focused on seemingly inconsistent decisions imposing light sentences for some serious crimes and harsh ones for lesser offenses.

• Bulgaria Rejects Legalizing Prostitution in Policy Reversal

Bulgaria will not legalize prostitution as previously planned according to Interior Minister Rumen Petkov. The abrupt policy shift will bring Bulgaria into line with what appears to be a growing anti-prostitution movement in several European countries whose governments are increasingly concerned about human trafficking, which many European rights organizations say prostitution promotes. Finland last year made it illegal to purchase sex from women brought to the country by traffickers and Norway is contemplating a full ban on the illicit sex trade. Sweden has meanwhile sought to suppress prostitution by punishing customers rather than the women themselves. Bulgaria at present has no law formally banning or even defining prostitution, although pimping is technically prohibited.

Prostitution is still overtly legal in several European countries, including Hungary which recently began to issue licenses to sex workers in an effort to bring the trade more out in the open where it can be regulated.