SUPREME COURT

• CRIMINAL LAWS

Ramesh Harijan Vs. State of U.P. (Decided on 21.05.2012) MANU/SC/0460/2012

Conviction - Challenge thereto - Present Appeal filed against the order of the High Court wherein it convicted the Appellant for offence punishable under Sections 302 and 376 of the Indian Penal Code,1860(IPC)

Held, The paramount importance of the Court is to ensure that miscarriage of justice was avoided. Benefit of doubt particularly in every case may not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. A reasonable doubt was not an imaginary trivial or merely possible doubt but a fair doubt based upon reason and common sense. Hence, the acquittal in the instant case by the trial Court was totally illegal, unwarranted and based on mis-appreciation of evidence for the reason that the Court had given undue weightage to unimportant discrepancies and inconsistencies which resulted in miscarriage of justice. Thus, the High Court was fully justified in reversing the order of acquittal. Appeal dismissed.

State of Rajasthan Vs. Darshan Singh @ Darshan Lal (Decided on 21.05.2012) MANU/SC/0461/2012

Acquittal - Challenge thereto - Present Appeal filed against the judgment and order passed by the High Court setting aside the order of the Sessions Judge convicting Respondent for offences punishable under Section 302 of Indian Penal Code,1860

Held, In the instant case, there was sufficient material on record that the concerned witness was able to read and write and this fact stood proved in the trial Court when she wrote the telephone number of her father. Court failed to understand as to why her statement could not be recorded in writing. Be that as it may, her statement had been recorded with the help of her father as an interpreter, who for the reasons given by the High Court, being an interested witness who had assisted during the trial, investigation and was examined without administering oath, made the evidence unreliable. In such a fact-situation, the High Court had rightly given the benefit of doubt and acquitted the Respondent. Further, the Court was fully aware of its limitation to interfere with an order against acquittal. In exceptional cases where there were compelling circumstances and the judgment under Appeal was found to be perverse, the Appellate Court could interfere with the order of acquittal. The Appellate Court should bear in mind the presumption of innocence of the Accused and further that the trial Court's acquittal bolstered the presumption of his innocence. Interference in a routine manner where the other view was possible should be avoided, unless there were good reasons for interference. Hence, this was not found to be a fit case to interfere with the order of acquittal. Appeal dismissed

State of Rajasthan Vs. Vinod Kumar (Decided on 18.05.2012) MANU/SC/0463/2012

Reduction of Sentence - Challenge thereto - Whether there was any justification for the High Court in reduction of sentences and that too without any reason

Held, It was evident that Appellant's Counsel before the High Court did not argue the case on merit but the High Court affirmed the findings on commission of rape making reference to the evidence, however, further made observation that the Court did not want to discuss the evidence in detail. Court failed to understand as how the findings on commission of rape had been affirmed without discussing the evidence on record. Further, the Court took note that awarding punishment lesser than the minimum sentence of seven years was permissible only for adequate and special reasons. However, no such reasons had been recorded by the Court for doing so, and thus, the Court failed to ensure compliance of such mandatory requirement but awarded the punishment lesser than the minimum prescribed under the Indian Penal Code,1860. Such an order was violative of the mandatory requirement of law and had defeated the legislative mandate. Appeals allowed

HIGH COURT

•  CONSTITUTIONAL LAWS

BOMBAY HIGH COURT

Suresh Patilkhede Vs. The Chancellor (Decided on 11.05.2012) MANU/MH/0642/2012

Appointment - What is the role of University Grants Commission (UGC) in appointment of Vice Chancellor of a University governed by the provisions of the Maharashtra Universities Act,1994

Held, Regulations 7.2.0 and 7.3.0 of UGC Regulations, 2010 were traceable to Section 12(d) of UGC Act,1956. The same were not without any authority of law but at the same time, they were merely recommendatary in nature and, therefore, neither the State Legislature nor the State Government was bound to accept the same. Accordingly, when the State Government issued order dated 15 February 2011 at Exhibit `F' enumerated those regulations which were adopted by the State Government out of UGC Regulations, 2010, the State Government decided not to adopt Regulations 7.2.0 and 7.3.0. Hence, there was considerable substance in the argument of Respondent's Counsel that non-adoption of directory Regulation 7.3.0 would not render the State legislation or the Government order dated 15 February 2011 invalid or unconstitutional. Petition dismissed

•  COMMERCIAL LAWS

BOMBAY HIGH COURT

Hanumant Bapurao Bagal Vs. The State of Maharashtra (Decided on 15.05.2012) MANU/MH/0638/2012

Extension of appointment - Present writ Petition filed by Petitioners claiming to be members of Respondent No.5/Agricultural Market Produce Committee have challenged the order passed by Respondent No.1 granting third extension to Board of Directors of Respondent No.5

Held, In the instant case, several welfare schemes up to one crore value, for the benefit of the Agriculturists were being executed through Respondent No. 5. Court failed to understand as to how these activities had any correlation to the non-holding of elections to install the new Managing Committee, within time. The impression given, however, was that the present Managing Committee was indispensable and it alone could undertake these works. Execution of welfare schemes was a continuous work to be undertaken by the Respondent No. 5 and that could not justify extension of tenure beyond the statutory period. Secondly, many Vividh Karyakari Seva Cooperative Societies within Karmala Taluka were involved in Court litigation and if the election process of Respondent No. 5 was announced, most of the members of the said Societies would be deprived from voting. Thirdly, the next reason stated in the impugned order was that due to scarcity situation have been declared as scarcity affected and there was drought situation in the Taluka. Assuming that this was a genuine reason and could be invoked in exercise of powers under Section 59 read with 14(3A) of the Agricultural Produce Marketing (Development and Regulation) Act, 1963 the question was whether the members of the managing Committee should be rewarded by extending the tenure of Managing Committee in exercise of extraordinary powers under Section 59 of the Act. In such a situation, Court agreed with the Petitioners that the Appropriate Authority "must" appoint Administrator in exercise of powers under Section 15(A) of the Act.

•  ARBITRATION LAWS

DELHI HIGH COURT

M/s. J.K. Cement Works Vs. Delhi Jal Board (Decided on 18.05.2012) MANU/DE/2087/2012

Award - Challenge thereto - Present Petition filed challenging an Award passed by the Sole Arbitrator in the disputes between the parties arising out of an agreement whereunder the Petitioner was to supply the Respondent 40000 metric tonnes of cement at a total cost of 6.84 crores.

Held, Court found merit in the contention of Respondent's Counsel that the LD clause was based on a genuine pre-estimate of damages on account of loss and did not require any further proof of such

loss having to be produced by the Respondent. The decisions of the Supreme Court in Fateh Chand v. Balkishan Dass and Maula Bux v. Union of India had been analyzed in great detail in the recent judgment of this Court in Vishal Engineers & Builders v. Indian Oil Corporation Ltd. as well as the judgments in Airports Authority of India v. R.K. Singhal and Sudhir Gensets Ltd. v. Indian Oil Corporation Ltd. Consequently, the impugned Award of the Arbitrator to the extent of award of LD did not call for interference.

•  SERVICE LAWS

DELHI HIGH COURT

Commissioner of Police and Anr.Vs. Shani Kumar (Decided on 21.05.2012) MANU/DE/2126/2012

Cancellation of candidature - Present writ Petition filed against the order of the Central Administrative Tribunal wherein Respondent's candidature for the post of Constable (Executive) was cancelled

Held, Court observed that once the Respondent had been acquitted after examination of all the witnesses, the complaint and all the contents of the FIR could be looked into for the purposes of cancelling the candidature of the Respondent. This was not a case of technical acquittal in the sense that witnesses had not coming forward where the material witnesses had died. Hence, there was an acquittal after a full-fledged trial. The prosecution had failed to prove its case beyond reasonable doubt. Furthermore, the Petitioners had also not conducted any independent inquiry with regard to the other antecedents of the respondent to assess his suitability for the position of Constable (Executive) in the Delhi Police. What the Court found was that the concerned order denied the benefit of appointment to the Respondent on the basis of the very same allegations contained in the FIR which could not be substantiated in a court of law. That would be highly unfair apart from the fact that such a stand had no backing of law.

• TENANCY LAWS

DELHI HIGH COURT

Mange Ram Bhardwaj Vs. Union of India & Ors (Decided on 21.05.2012) MANU/DE/2124/2012

Eviction - Challenge thereto - Present writ Petition filed challenging the eviction of Petitioner from land within Purana Qila, a centrally protected monument

Held, The Court came to the conclusion that the ancient site - Purana Qila, a centrally protected monument would fall within the definition of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. Hence, the Petition was dismissed. However the Petitioner would be at liberty to offer puja at the Mandir on the subject land during the permissible timings of access to the protected monument - Purana Qila.

TRIBUNALS

•  DIRECT TAXATION LAWS

ITAT MUMBAI

M/s. Sheetal Drape (India) Ltd Vs. Addl. Commr. of Income-tax (Decided on 16.05.2012) MANU/IU/0576/2012

Addition – Present Appeal filed against the order passed by the Commissioner of Income Tax (Appeals) (CIT-A) against the addition of the concerned amount on account of unaccounted sales

Held, It had been brought to the notice that in the current year, the Assessee sent 7,04,504 meters for embossing and re-finishing as against 2,16,578 meters in the immediately preceding year. Further, it had been shown that the shortage in case of embossing and re-finishing was consistent in both the years at around 5%. Due to increase in the number of meters sent for embossing or re-finishing in the current year, the overall percentage of shortage had slightly increased. It became evident from the concerned paper book that the shortage of 2.93% had been accepted by the Revenue for the preceding assessment year 2004-05. In that view of the matter, there was no reason to reject lower net shortage of 2.17% for the current year. In view of the foregoing reasons, Court was of the considered opinion that the Authorities below were not justified in making and sustaining the addition of `29.22 lakhs on this count, which was hereby ordered to be deleted. 

ITAT DELHI

Income-tax Officer Vs. M/s. Onassis Axies P. Ltd (Decided on 18.05.2012) MANU/ID/0294/2012

Deletion of addition – Present Appeal relates to deleting the addition of Rs. 80,00,000 under Section 68 of the Income Tax Act,1961 on account of income from undisclosed sources being the amount received as share application money

Held, If the ratio of the decision of Delhi High Court in CIT v. Nova Promoters & Finlease Pvt Ltd was applied to the facts of the Assessee’s case, Court found that the Assessee had not been able to prove the creditworthiness of the share applicants. The notices issued at the addresses were returned back. Assessee neither provided the present address of the parties nor the directors of the share applicant companies were produced. The pay orders were purchased on same date by the parties located at two different places. In two cases the payment has not come from the bank accounts of the parties. In other case the cash was deposited out of which pay order of a lesser amount was issued. Therefore, the creditworthiness of the creditors and genuineness of transactions were not proved. Further it was not a case where the Assessing Officer had not conducted any enquiry and had made addition without verification. Also, the Assessee had not cooperated with the Assessing Officer by not producing the directors of the companies but reiterated the same story that all the parties had been filing returns before the Registrar of the Companies or they were assessed to tax. Commissioner of Income Tax (Appeals) had completely ignored these facts and had deleted the addition merely on the ground that the Assessee had proved the identity of the persons and therefore, no addition could be made in the hands of the Assessee. Since the creditworthiness and genuineness of the transaction had not been proved, it is held that the Assessing Officer was justified in making the addition under Section 68 of the Act. Appeal by Revenue allowed.