SUPREME COURT

• CRIMINAL LAWS

Narendra Champaklal Trivedi v. State of Gujarat (Decided on 29.05.2012) MANU/SC/0484/2012

Conviction - Challenge thereto - Present Appeals filed against judgment of conviction passed by Single Judge of High Court whereby the Appellate Court has confirmed judgment and order of conviction passed by Additional Sessions Judge wherein it had convicted Appellants for offence punishable under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988

Held, In the instant case, Appellant's Counsel had submitted with immense force that admittedly there had been no demand or acceptance. To bolster the said aspect, he had drawn inspiration from the statement of the Complainant in examination-in-chief. The said statement was not to be read out of context. Also the shadow witness had clearly stated that there was demand of bribe and giving of the same. Nothing had been brought on record to doubt the presence of the shadow witness. All the witnesses had supported the case of the prosecution. Further the Appellants in their statement under Section 313 of the Code of Criminal Procedure,1973 had made an adroit effort to explain their stand but court had no hesitation in stating that they miserably failed to dislodge the presumption. Therefore, the conviction recorded by the Trial Judge which had been affirmed by the Single Judge of the High Court did not warrant any interference. Appeals dismissed.

Jugendra Singh v. State of U.P. (Decided on 29.05.2012) MANU/SC/0485/2012

Conviction - Challenge thereto - Present Appeal filed against the order and judgment passed by High Court wherein it convicted the Accused under Sections 302, 376 and 511 of the Indian Penal Code,1860 (IPC)

Held, From the evidence available on record, in the instant case, there could be no trace of doubt that the view taken by the Trial Judge was absolutely unreasonable, perverse and on total erroneous appreciation of evidence contrary to the settled principles of law. Therefore, only a singular view was possible that the Accused had made an attempt to commit rape and he was witnessed while he was strangulating the child with a shirt. The result was that a nine year old child breathed her last. Reasoning ascribed by the Trial Judge that she did not die because of any injury made the decision more perverse rather than reasonable. That apart, nothing had been brought on record to show that there was any kind of enmity between the family of the deceased and that of the Appellant. There is no reason why the father and the other witnesses would implicate the Appellant in the crime and would spare the real culprit. Quite apart Accused had been apprehended on the spot. Further, the Appellant had taken the plea that the deceased had died as she had drowned in water. However, the medical report ran absolutely contrary inasmuch there was no water in her stomach or in any internal part of the body. Hence, this Court entirely agreed with the view expressed by the High Court. Appeal dismissed.

• SERVICE LAWS

State of Uttarakhand and Anr v. Umakant Joshi And Sudhir Chandra Nautiyal v. Umakant Joshi and Ors. (Decided on 28.05.2012) MANU/SC/0486/2012

Jurisdiction - Whether the High Court could ordain promotion of Respondent No. 1 to the post of General Manager with effect from 16.11.1989, i.e., prior to formation of the State of Uttaranchal (now known as the State of Uttarakhand) with the direction that he shall be considered for promotion to the higher posts with effect from the dates persons junior to him were promoted

Held, It was not in dispute that at the time of promotion of Class-II officers to Class-I posts with effect from 16.11.1989 by the Government of Uttar Pradesh, the case of Respondent No. 1 was not considered because of the adverse remarks recorded in his Annual Confidential Report and the punishment imposed. Once the order of punishment was set aside, Respondent No. 1 became entitled to be considered for promotion to Class-I post with effect from 16.11.1989. That exercise could have been undertaken only by the Government of Uttar Pradesh and not by the State of Uttaranchal (now the State of Uttarakhand), which was formed on 9.11.2000. Therefore, the High Court of Uttarakhand, which too came into existence with effect from 9.11.2000 did not have the jurisdiction to entertain the writ Petition filed by Respondent No. 1 for issue of a mandamus to the State Government to promote him to Class-I post with effect from 16.11.1989.

HIGH COURTS

• FOOD ADULTERATION LAWS

DELHI HIGH COURT

Britannia New Zealand Foods Pvt. Ltd. & Anr. v. Director(PFA) & Anr. (Decided on 01.06.2012) MANU/DE/2481/2012

Quashing of complaint - Present Petition filed seeking quashing of complaint under Sections 7 and 16 of the Prevention of Food Adulteration Act pending in the Court of the Metropolitan Magistrate and order dated 18.10.2007 passed in the complaint and the proceedings emanating there from

Held, In the instant case, though there was delay in filing of the complaint on behalf of the Department and for which, the Competent Authority was expected to take appropriate measures including enquiry, if any might be required to be initiated for the lapse, Court did not see justifiable reason to exercise the powers under Section 482 Criminal Procedure Code, 1973 to quash the complaint at its nascent stage. At this stage, when the summons had been issued by the Magistrate, Court was not required to sift the evidence meticulously to see as to whether the case would result in conviction or not. The prosecution could not be deprived of its legitimate right of proving its case against the Petitioners at the initial stage when it had not yet unfolded its evidence. Petitions dismissed.

• COMPANY LAWS

In Re: M/s Indrama Investment Pvt. Ltd.; M/s Select Holiday Resorts Ltd.; Capt. Swadesh Kumar; Capt. RAM Kohli (Decided on 01.06.2012) MANU/DE/2335/2012

Sanction for Amalgamation - Present Petition filed under Sections 391 and 394 of the Companies Act,1956 vide which sanction of this Court to the scheme of Amalgamation of Indrama Investment Private Limited (Transferor Company) with Select Holiday Resorts Ltd (Transferee Company) was sought

Held, This aspect came up for consideration before this Court in Reckitt Benckiser (India) Ltd. albeit in context of reduction of share capital. In that case also, the scheme of the reduction was such that many shareholders like the Applicants in the instant case were deprivation of their shareholdings on payment of certain price. The Court took note of the general rule that it was the prescribed majority of the shareholders which was entitled to decide whether there should be a reduction in capital or not. No doubt, in that case since the company had given option to such shareholders to continue to hold shares. However, it would be of interest to note that M/s. Reckitt Benckiser (India) Ltd. passed special resolution proposing the reduction of equity capital, which resulted in depriving those shareholders also from holding the shares any longer. Scheme for this purpose was filed for approval which had been approved by the Company Judge dismissing the objections of those minority shareholders. The same very contentions were advanced which was raised before this Court in the instant case by the application. Further this Court found that the auditors adopted profit earning method, which was held to be a valid method for ongoing concern. Petition dismissed.

• SALES TAX/VAT LAWS

M/s Larsen and Toubro Ltd. & Anr. etc. v. Union of India & Ors. etc. (Decided on 01.06.2012) MANU/DE/2332/2012

Assessment - Challenge thereto - Present Petitions wherein orders under passed under Delhi Value Added Tax,2004 read with Delhi Value Added TaxRules,2005 were questioned

Held, There was no provision like Section 4 (7) of the Andhra Pradesh VAT Act in Delhi VAT Act. The entire case of the Petitioner was that there should have been a provision like this in Delhi VAT Act as well, otherwise it was leading to various difficulties. Even if the Court presumed that the provision like Section 4 (7) in Andhra Pradesh VAT Act makes it a better legislation in comparison with Delhi VAT Act. In the absence of such a provision, Court was afraid, that also could not be a ground for declaring statute as arbitrary or ultra vires. Bad legislative drafting, if at all, could not furnish a ground for judicial review of the legislative action. It had to be shown that a particular provision was either beyond the legislative competence and was thus ultra vires or was unconstitutional viz. namely it offended some constitutional provision. It would be for the Legislature to look into this aspect and decide whether to incorporate any such provision or not, Section 5(2) of Delhi VAT Act and Rule 3 of Delhi VAT Rules could not be declared to be invalid. Writ Petitions dismissed accordingly.

• OTHER TAXES

Ramesh Chhabra v. Chairman-cum-Managing Director Delhi Transport Corporation & Ors.( Decided on 01.06.2012) MANU/DE/2470/2012

Validity of surcharge - Present Petition filed wherein validity of surcharge collected by Respondent No.1 from NCR commuters commuting in DTC buses is challenged

Held, In the instant case, it became clear that the amount was not calculated as levy or tax. All the vehicles including buses, whether of DTC or others, when pass through MCD Toll or DND flyover/Toll Bridges and roads, were required to pay Toll Tax/Toll Charges. The DTC could collect this amount from the passengers individually every time it crosses Toll Bridge. Though the amount to be paid per DTC Trip was fixed, if the burden thereof was to be shared by the passengers, in every trip, the amount to be calculated from the passengers might vary depending upon the number of passengers travelling in a particular trip. Therefore, in order to obviate such onerous task, if the DTC decided to charge fixed amount of Re. 1 or Rs. 2, as the case might be which otherwise was much less than the actual amount paid by the DTC, Court did not see any illegality in collecting the aforesaid amount from the passengers. It was not in the form of any tax charged by the DTC. On the contrary it was part of Toll Tax charges, which were to be paid to the Concerned Authorities. Petition dismissed.

• CIVIL LAWS

BOMBAY HIGH COURT

Shri Laxman Jairam Malvankar v. Smt. Reshma Ramesh Narvekar (Decided on 23.05.2012) MANU/MH/0661/2012

Recovery of amount - Present suit filed against Defendants for recovery of sum of Rs 70,000 as compensation for lodging false complaint and for publication of libel

Held, As per the concerned news item, the complaint was filed by Defendant No.1 not only against the Plaintiff but also against other persons. However the Plaintiff had not even examined a single other persons named in the said news item, as involved in the said incident. Also none of those other persons named in the news item appeared to be aggrieved by the said news item. Further, the Defendant No. 1 had admitted that she has lodged the complaint against the Plaintiff for illegal and criminal acts committed by him. Police were the Authorities before whom complaints for criminal act against anyone could to be filed. Police had the authority to investigate into the said complaints. Therefore, merely by lodging complaint with police, no one may commit the offence of defamation. Plaintiff had not produced any evidence to prove that the police after investigation found that the said complaint was false and fabricated. News did not state that the contents of the complaint were true. Lastly, the Plaintiff had also failed to prove that the Defendant no. 2 published the news with a view to defame the Plaintiff.

• DIRECT TAXATION LAWS

M/s Deepa Panels Vilayur, Pattambi Palakkad v. ITO (Decided on 01.06.2012) MANU/IN/0079/2012

Held, In the instant case, the material clearly showed that the new undertaking was established in the month of July, 2001. This new undertaking starting manufacture in the assessment year 2002-03. Such fact was not considered by the lower Authority. Assessee claimed deduction under Section 10B of the Act in respect of the new undertaking. Since the lower Authorities had not considered the new undertaking for the purpose of determining the base year, this Tribunal was of the opinion that the matter needed to be reconsidered by the Assessing Officer. Accordingly, the orders of lower Authorities were set aside and the entire issue of claim of deduction under Section 10B was remitted back to the file of the Assessing Officer. The Assessing Officer shall reconsider the issue in the light of the new undertaking established and thereafter decide the claim of deduction under Section 10B of the Act in accordance with law after giving opportunity of hearing to the Assessee. Appeal by Assessee allowed.

Held, Court observed that the aforesaid issue had arisen in case of the Assessee in assessment year 2006-07 in which the Tribunal vide order dated 14.10.2011 in ITA No.4955/Mum/2010 noted that the Assessee was registered under Section 12A of the Income Tax Act,1961 (Act) and therefore the condition that the trust was a charitable institution stood fulfilled. Therefore in the instant case, order of Assessing Officer holding that the Assessee was not doing charitable work could not therefore, be accepted. The Tribunal also observed that the issue was covered by the decision of the Tribunal in assessment year 2004-05 in which the Tribunal accepted the finding of Commissioner of Income Tax(Appeals) that the trust was running a hospital by engaging the services of doctors, nurses, para-medical staff and also providing infrastructure facilities for the benefit of the public at large which was in conformity with the objects of the Assessee trust. The Tribunal thus accepted that the Assessee was a charitable institution. Further the Tribunal also held that expenditure on acquisition of capital asset acquired by trust was in furtherance of the objects of the trust and accordingly had to be considered as application of income. Therefore, the Tribunal held that the Assessee was a charitable institution and expenditure incurred on capital asset for use in charitable activities had to be considered as application of income. The facts in the present year were identical. Hence, it was held that Assessee was a charitable institution which was registered under Section 12A of the Act and was eligible for deduction under Section 11.