SUPREME COURT

• CRIMINAL LAWS

Appeal against acquittal

Murugan and Anr. Vs. State rep. by Public Prosecutor, Madras, Tamil Nadu and Anr. (Decided on 30.09.2008)

Power of Appellate Court - Section 378 of Indian Penal Code, 1860 - Whether an Appellate Court has the power to interfere with the findings of fact recorded by the trial Judge

It is well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal. If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court. An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

Presumption under Evidence Act

Balwant Singh and Ors. Vs. State of H.P. (Decided on 29.09.2008)

Cruelty - Husband or relative of husband of a woman subjecting her to cruelty - Presumption as to dowry death - Sections 304B and 498A of Indian Penal Code, 1860 and Section 113B of Indian Evidence Act, 1872 - Cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman are required to be established in order to bring home the application of Section 498A IPC

Cruelty has been defined in the Explanation for the purpose of Section 498A. Substantive Section 498A IPC and presumptive Section 113B of the Evidence Act have been inserted in the respective statutes by Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved. The Explanation to Section 498A gives the meaning of `cruelty'. In Section 304B there is no such explanation about the meaning of `cruelty'. But having regard to common background to these offences it has to be taken that the meaning of `cruelty' or `harassment' is the same as prescribed in the Explanation to Section 498A under which `cruelty' by itself amounts to an offence. Under Section 304B it is `dowry death' that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in Section 498A. A person charged and acquitted under Section 304B can be convicted under Section 498A without that charge being there, if such a case is made out. If the case is established, there can be a conviction under both the sections. Section 498A IPC and Section 113B of the Evidence Act include in their amplitude past events of cruelty.

• ARBITRATION

Appointment of arbitrators

Unissi (India) Pvt. Ltd. Vs. Post Graduate Institute of Medical Education and Research (Decided on 01.10.2008)

Arbitration agreement - Section 7 and Section 11(4)(a) of Arbitration and Conciliation Act, 1996 - Whether an arbitration agreement containing an arbitration clause exists between the parties for which an Arbitrator could be appointed, although in such agreement signature had not executed

The term "agreement in writing" shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams. The agreement to submit to arbitration must be in writing. Arbitral Clause includes that, (1) in a contract containing an arbitration clause signed by the parties, (2) an arbitration agreement signed by the parties, (3) an arbitral clause in a contract contained in exchange of letters or telegrams, and (4) an arbitral agreement contained in exchange of letters or telegrams. If an arbitration clause falls in any one of these four categories, it must be treated as an agreement in writing. If the two contracts stood affirmed by reason of their conduct as indicated in the letters exchanged, it must be held that there is an agreement in writing between the parties in this regard. Arbitration agreement did exist and, therefore, dispute between the parties would be referred to an Arbitrator for decision. Although no formal agreement was executed, the tender documents indicating certain conditions of contract contained an arbitration clause. The learned Additional District Judge, Chandigarh erred in holding that their did not exist any arbitration agreement between the parties and, therefore, the order passed by him is liable to be set aside.

Appointment of Arbitrator vis-à-vis Challenge under Article 136 of the Constitution of India

Unissi (India) Pvt. Ltd. Vs. Post Graduate Institute of Medical Education and Research (Decided on 01.10.2008)

Special leave to appeal by the Supreme Court - Section 11(4)(a) of Arbitration and Conciliation Act, 1996 and Article 136 of Constitution of India - Whether special leave petition was maintainable in this Court against an order of the Additional District Judge purported to have acted in the exercise of its power under Section 11(4)(a) of the Act

There is a clear indication in the said judgment that against the order passed by the Additional District Judge, the special leave petition under Article 136 of the Constitution of India is entertainable by this Court. It is evident that this Court was of the view that an application under Article 136 of the Constitution was maintainable against an order passed by the Additional District Judge.

• LABOUR AND INDUSTRIAL LAWS

Reinstatement with back wages

Talwara Coop. Credit and Service Society Ltd. Vs. Sushil Kumar (Decided on 01.10.2008)

Burden of proof - Payment of full wages to workman pending proceedings in higher Courts - Sections 11A, 25F of Industrial Disputes Act, 1947 and Section 106 of Indian Evidence Act, 1872 - Whether the appointment was made in accordance to the statutory rules so far as a public sector undertaking is concerned

There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25F of the Act, entire back wages should be awarded. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year. No precise formula can be adopted nor "cast-iron rule" can be laid down as to when payment of full back wages should be allowed by the court or tribunal. The approach of the court/tribunal should not be rigid or mechanical but flexible and realistic. The court or tribunal dealing with cases of industrial disputes may find force in the contention of the employee as to illegal termination of his services and may come to the conclusion that the action has been taken otherwise than in accordance with law. Labour Court and consequently the High Court completely misdirected themselves insofar as they failed to take into consideration that relief to be granted in terms of Section 11A of the said Act being discretionary in nature, a Labour Court was required to consider the facts of each case therefore. Only because relief by way of reinstatement with full back wages would be lawful, it would not mean that the same would be granted automatically. In fact the Industrial Court has placed the burden of proof on the management to show that the workman was not gainfully employed after his termination of service. This Court in a large number of cases noticed the paradigm shift in the matter of burden of proof as regards gainful employment on the part of the employer holding that having regard to the provisions contained in Section 106 of the Indian Evidence Act, the burden would be on the workman.

• CIVIL LAWS

Non-service of notice under section 80 CPC

Ram Kumar and Anr. Vs. State of Rajasthan and Ors. (Decided on 29.09.2008)

Non-service of notice under section 80 of the Code of Civil Procedure, 1908 - Maintainability of suit questioned

Trial court decided the issue, on the ground that the respondent had not acted in his official capacity in the present case and, therefore, service of notice under Section 80 of the CPC on respondent was not necessary, whereas the High Court reversed the order of the trial Court and held that the respondent had acted in his official capacity and, therefore, non service of the notice on Respondent would invite the court to dismiss the suit in its entirety. The suit which is not in respect of any act done by the respondent , as a public officer, and in which no act of respondent is either challenged or sought to be set aside is not a suit to which Section 80 of the CPC can very well apply. Therefore, respondent had not acted in his official capacity for which service of notice under Section 80 of the CPC was necessary. High Court had fallen in error in reversing the order of the trial Court holding that service of notice on respondent under Section 80 of the CPC was not necessary to be served to maintain the suit. Ratio in State of Maharashtra and Anr. v. Shri Chander Kant laid down the principle as to when service of notice on the State/defendants under Section 80 of the CPC was necessary. A look at the reliefs claimed in the plaint would clearly show that only a consequential relief was claimed in the suit to the extent that possession of the suit land should be restored in favour of the appellants by the respondent. Therefore, even in the absence of service of notice on the respondent under Section 80 of the CPC, the suit was maintainable in law.

• MPTP (MONOPOLIES AND RESTRICTIVE TRADE PRACTICES)

Unfair Trade Practice

Philips Medical Systems (Cleveland) Inc. Vs. Indian MRI Diagnostic and Research Ltd. and Anr. (Decided on 29.09.2008)

Unfair trade practice - Definition of -Supply of goods - Sections 36A of Monopolies and Restrictive Trade Practices Act, 1969 - Whether a party can be held guilty of unfair trade practice as referred to in Section 36A of the MRTP Act, although he did not supply any goods at all

Section 36A was inserted in the MRTP Act because there was no provision therein for protection of consumers against false or misleading advertisement or other similar unfair trade practices. It is well- known that in a trade suppliers often have a dominant bargaining position, and the bargaining power in the market is often weighed against the consumer. The purpose of Section 36A was to prevent frauds against the consumers who may be falsely induced to buy goods which do not possess the qualities which they are given out to have by advertisement or other representations. Principles of ejusdem generis and noscitur a sociis will apply to the interpretation of Section 36A as amended in 1991. Applying these well-known principles of interpretation we are of the opinion that Section 36A does not apply in a situation where goods are not sold at all. It only applies where goods in fact are sold. Taking the above object of Section 36A into account it is obvious that Section 36A was never meant to deal with a situation where goods are not sold at all. Section 36A was really meant to protect consumers against defective goods or goods sold which do not have features or qualities which they were represented to have. The inclusive definition the meaning of the expression `unfair trade practice' goes beyond the specific clauses mentioned in Section 36A, but that does not mean that the meaning will go beyond the very object of Section 36A. There may be situations where a promise to supply a particular good, which the supplier knew that he was in no position to supply, with a motive of promoting of some other model, as has happened in the instant case, could occur. In such a case a customer may be forced to obtain the same material from some other party and suffer losses in the process. Even without actual sale of goods, such an act on the part of the supplier could also amount to `unfair trade practice' and Section 36A cannot in absolute terms be said not to apply to a situation where goods may not have been sold at all.

• PROPERTY LAWS

Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan and Ors. (Decided on 23.09.2008)

Plea of adverse possession - Claim of - To support by legal evidence - Appellant filed suit for declaration of permanent injunction holding that he was the lawful owner of the suit property- Whether the Appellant has perfected his title over the suit property by way of adverse possession

A person who claims adverse possession should show, (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. A person who bases his title on adverse possession must show by clear and unequivocal evidence that his title was hostile to the real owner and amounted to denial of his title to the property claimed. Classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action. Law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner.

HIGH  COURT

• CIVIL LAWS

Bombay High Court

Substantial question of Law

Commissioner of Income Tax Vs. Bencomar Hotels (Goa) Pvt. Ltd. (Decided on 19.09.2008) MANU/MH/0860/2008

Meaning of Substantial question of Law - Scope of Section 100 of the Civil Procedure Code

In Santosh Hazari v. Purushottam Tiwari reported in MANU/SC/0091/2001, three Judges bench of the Apex Court delineated the scope of Section 100 of the Civil Procedure Code which is parimateria to Section 260A of Income Tax Act. The Supreme Court observed that an obligation is cast on the appellant to precisely state in the memo of appeal, the substantial question of law involved in the appeal and which the appellants proposes to urge before the Court. According to the Apex Court, the word 'substantial' as qualifying 'question of law' means - of having substance, essential, real, or sound worth, important or considerable. It is to be understood as something in contradistinction to technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of 'substantial question of law' by suffixing the words 'of general importance' as has been done in many other provisions such as Section 109 of the Code or Article 133 (1) (a) of the Constitution.

• DIRECT TAXATION

Income Tax Act

Bombay High Court

Commissioner of Income Tax Vs. Bencomar Hotels (Goa) Pvt. Ltd. (Decided on 19.09.2008) MANU/MH/0860/2008

Section 260A of the Income Tax Act - Jurisdiction of High Court

Finding arrived by First Appellate Tribunal - Whether can be interfered in an appeal under section 260A of the Income Tax Act

The findings arrived at by the First Appellate Tribunal cannot be interfered with in an appeal under Section 260A as no substantial question of law would have flowed out of such a finding. The High Court in its jurisdiction under Section 260A would not justify in interfering with the findings of facts. It is the obligations of the Courts of law to further the clear intentment of the legislature and not frustrate it by excluding the same. The Apex Court in a catena of decisions held that where the finding of fact by the lower Appellate Tribunal are based on evidence, the High Court in Appeal under Section 260A cannot substitute its own finding on reappropriation merely on the basis of another view is possible. In short, the High Court would not be justified in interfering with the concurrent finding of facts. High Court has no jurisdiction to interfere with the findings arrived at by the lower Appellate Tribunal.

• INDIRECT TAXATION

Excise Laws

Uttarakhand High Court

Commissioner of Custom and Central Excise, Meerut - II vs. M/s India Glycols Ltd., Kashipur, District Udham Singh Nagar (Decided on 12.08.2008)

MODVAT Credit - Capital Goods - M.S. Angle, Cement and Bitumen - Rule 57Q of the Central Excise Rules, 1944 - Monoethylene Glycol, Diethylene Glycol, Triethylene Glycol, Polyethylene Glycol and heavy Glycol were manufactured by Respondent and he claimed MODVAT Credit on the same - Whether, MODVAT credit could be allowed on the said capital goods, which are used as construction material, under Rule 57Q

The requirement for claiming MODVAT credit in respect of an item under Rule 57Q read with Section 3 of Customs and Tariff Act, 1985, in the Explanation (1) to said Rule, is that such items must have been used for the manufacture of the final product - Meaning of expressions "in the manufacture" and "for the manufacture" are different - Expression "in the manufacture" while refers to the items used in manufacturing of the final product, the expression "for the manufacture" covers the other items which may not be necessarily part of the new manufactured product, but used in the machinery or plant, for the purposes of manufacturing the final product - Cement and Bitumen, which are the material of building constructions, are not used for manufacturing impugned goods - There is no finding of the Authorities below that the Cement and Bitumen were used in fixing the plant or machinery for the purposes of manufacturing the aforesaid items - Therefore MODVAT credit claimed by the Unit in respect of Cement and Bitumen is liable to be disallowed - M.S. Angle were used by the Unit in joining the connecting M.S. pipes in manufacturing the goods produced by the Unit - Therefore MODVAT credit allowed in respect of M.S. Angle - Revenue's appeal partly allowed.

• CRIMINAL LAWS

Delhi High Court

Jagdeep Singh @ Vicky Vs. The State of NCT of Delhi (Decided on 12.09.2008) - MANU/DE/1298/2008

Grant of Bail - Offence punishable under sections 302/307/120B/34 IPC - Applicant in continuous custody for more than 2 years and stated to be critically ill as suffering from non-alcoholic fatty liver disease with increased Alkaline Transferase, Hiatus Hernia and generalized tonic clonic seizures and not in a very stable condition

Offence in the instant case very grave and serious with sufficient evidence on record to connect the applicant accused with the said offence. Circumstantial evidence also showed the involvement of the applicant in the offence. Direct evidence to prove conspiracy is rarely available. Privacy and secrecy are more characteristic of a conspiracy than of a loud discussion in an elevated place open to public view. The circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused.

As per law laid down by the Apex Court matters to be considered in an application for bail are:

(i) Whether there is any prima facie or reasonable ground to believe that the applicant had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the applicant absconding or fleeing if released on bail (v) character, behaviors, means, position and standing of the applicant; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with (viii) danger of course of justice being thwarted by the grant of bail. The application of bail has to be considered on general principles and the jurisdiction for grant of bail has to be exercised on the basis of well-settled principles having regard to the circumstances of the particular case.

In the instant case prima facie case apparently made against the Applicant. Merely because the applicant is in custody for the last 2 years would not by itself be a ground to grant him regular bail.

• ARBITRATION

Bombay High Court

Ganesh Benzoplast Ltd., a company incorporated under the provisions of the Companies Act,

1956 and Mr. Ramesh Pilani vs. The Board of Trustees of the Murmagao Port Trust, constituted under the provisions of Major Port Trust Act, 1963 (Decided on 19.09.2008) - MANU/MH/0859/2008

Appointment of Arbitrator - How to determine as to whether there exists an arbitration agreement

 It is true that there must be an arbitration agreement, to confer jurisdiction on the arbitrator to hear and decide the dispute. Where there is no such agreement there is an initial want of jurisdiction. That is why it has been impressed by courts that one of the essential ingredients of submission to arbitration is that the parties should agree that the dispute should be determined by an arbitrator. Where there is an arbitration clause in a contract, it amounts to two contracts into one, one relating to the execution of the work entrusted in the manner prescribed and the other how to resolve the dispute in event any such dispute arises in respect of the said contract. Whenever one party to the dispute asserts that there is an arbitration agreement by which the parties had agreed to refer the dispute to an arbitrator which is disputed and challenged by the other party to the agreement, it has to be examined and determined. To constitute "an arbitration agreement" it is not necessary that there should be a formal agreement or that the terms should all be contained in one document. All that is necessary is that from documents it must appear that the parties had agreed to submit present or future differences to arbitration.

• TRIBUNALS AND COMMISSIONS

Right to Information

Central Information Commission

Sh. Rakesh Agarwal Vs. Department of Posts (Decided on 04.09.2008) MANU/CI/0288/2008

Grievances relating to delivery of letters sent through speed posts - Appellant alleged that the information furnished to him regarding the delivery of letters, availability of relevant rules on the website was misleading - Further, the details of charges asked for by the CPIO for supply of information was against the cost and fee rules prescribed by the government, hence penalty to be imposed on the CPIO Under Section 20 (1) of the Act

An information should be furnished in the form in which it is asked for or it exists with the public authority. In order to observe and scrutinize the public action, it is important that the information should be asked for Under Section 2(f) of the Act, which requires that the information should be available in any material form. If necessary, an information seeker is free to inspect the documents so as to identify and specify the required information.

In the instant case, the Appellant and the CPIO have erred as, while the Appellant had asked for huge information in a pre-designed format provided by him, the CPIO has asked for deposit of money for collection and compilation of data/information, not available in his office. As stated by the Appellate Authority, there is no way that a CPIO can collect the country-wide information from 290 and 886 national and state speed post centres, respectively. Such an effort, however, would not allow scrutiny of any public action unless an information seeker makes an attempt to observe the decision making process of the respondent. In view of this, denial of information Under Section 7(9) of the Act is justified. As the Appellate Authority has rightly set aside the decision of the CPIO for charging further fees, the appellant should not have raised this issue before the Commission.

 An information, not available or maintained in the office of the CPIO, cannot be furnished. The Appellant should have ascertained the availability of information relating to the details of speed post bookings made at the CP office of the Respondent, rather than asking for the information on the basis of presumptions.