SUPREME COURT

• CRIMINAL LAWS

Hiralal Pandey and Ors. Vs. State of U.P. (Decided on 17.04.2012) MANU/SC/0310/2012

Conviction - Challenge thereto - Present Appeal filed against the order of High Court whereby it confirmed the order passed by the trial Court convicting Appellate under Section 302 read with Section 34 of IPC

Held, Where the prosecution evidence has been held to be true and where the Accused had full say in the matter, the conviction could not obviously be set aside on the ground of every irregularity or illegality in the matter of investigation. In other words, unless the lapses on the part of the investigation were such as to cast reasonable doubt about the prosecution story or seriously prejudice the defence of the Accused, the Court would not set aside the conviction. Appeal dismissed accordingly

Om Prakash Vs. State of Rajasthan and Anr. (Decided on 13.04.2012) MANU/SC/0308/2012

Present Special Leave Petition filed against the order of Single Judge whereby it was held that the Additional Sessions Judge had appreciated the evidence in the right perspective and he was not found to have erred in declaring Respondent No.2 to be a juvenile offender - Whether the Juvenile had rightly been referred to the Juvenile Justice Board for trial which warrants no interference?

Held, This Court was of the view that the Respondent No. 2 and his father had failed to prove that Respondent No. 2 was a minor at the time of commission of offence and hence could not have been granted the benefit of the Juvenile Justice Act which undoubtedly was a benevolent legislation but could not be allowed to be availed of by an Accused who had taken the plea of juvenility merely as an effort to hide his real age so as to create a doubt in the mind of the Courts below who thought it appropriate to grant him the benefit of a juvenile merely by adopting the principle of benevolent legislation but missing its vital implication that although the Juvenile Justice Act by itself was a piece of benevolent legislation, the protection under the same could not be made available to an Accused who in fact was not a juvenile but sought shelter merely by using it as a protective umbrella or statutory shield. Further this Court was under constraint to observe that this would have to be discouraged if the evidence and other materials on record failed to prove that the Accused was a juvenile at the time of commission of the offence. Juvenile Justice Act which was certainly meant to treat a child Accused with care and sensitivity offering him a chance to reform and settle into the mainstream of society, the same could not be allowed to be used as a ploy to dupe the course of justice while conducting trial and treatment of heinous offences. This would clearly be treated as an effort to weaken the justice dispensation system and hence could not be encouraged. Hence this Court deemed it just and appropriate to set aside the judgment and order passed by the High Court as also the Courts below and thus allowed this Appeal. Consequently, the Accused should be sent for trial before the Court of competent jurisdiction wherein the trial was pending and not to the Juvenile Court as pleaded by him.

• SERVICE LAWS

Vijay Singh Vs. State of U.P. and Ors. (Decided on 13.04.2012) MANU/SC/0309/2012

Maintainability - Whether the Disciplinary Authority can impose punishment not prescribed under statutory rules after holding disciplinary proceedings?

Held, This Court failed to understand if the Revisional Authority was of the view that integrity could not be withheld as punishment, why the mistake committed by the Disciplinary Authority as well as by the Appellate Authority could not be rectified by him. This showed a total non-application of mind. In such a fact-situation, the subordinate officer had to face the adverse consequences without any fault on his part. The grievance raised by the Appellant that recording the past criminal history of an Accused was relevant in non-bailable offences only as it might be a relevant factor to be considered at the time of grant of bail, and he did not record the same as it was a bailable offence, had not been considered by any of the Authorities at all. Undoubtedly, the statutory authorities were under the legal obligation to decide the Appeal and revision dealing with the grounds taken in the Appeal/Revision etc., otherwise it would be a case of non-application of mind. The present case showed dealing with the most serious issues without any seriousness and sincerity. Integrity meant soundness of moral principle or character, fidelity, honesty, free from every biasing or corrupting influence or motive and a character of uncorrupted virtue. It was synonymous with probity, purity, uprightness rectitude, sinlessness and sincerity. The charge of negligence, inadvertence or unintentional acts would not culminate into the case of doubtful integrity. Withholding integrity merely did not cause stigma, rather made the person liable to face very serious consequences. Unfortunately, a too trivial matter had been dragged un-proportionately which had caused so much problems to the Appellant. There was nothing on record to show as to whether the alleged delinquency would fall within the ambit of misconduct for which disciplinary proceedings could be initiated. Undoubtedly, in a civilized society governed by rule of law, the punishment not prescribed under the statutory rules could not be imposed. Appeal allowed.

• CONSTITUTION LAWS

Karuna Singh Vs. State of NCT of Delhi and Anr. (Decided on 10.04.2012) MANU/SC/0302/2012

Maintainability - Whether the instant writ Petition filed under Article 32 of the Constitution of India,1950 is maintainable?

Held, This is not a case where despite availability of an alternative remedy, the Petitioner had approached this Court under its writ jurisdiction. This was a case where the Petitioner had availed of her alternative remedies and simultaneously on the same cause of action, she had approached the highest court of the land under Article 32 of the Constitution of India,1950. This constituted a gross abuse of the process of law. This Court was satisfied that an efficacious alternative remedy was available to a party which had initiated proceedings under Section 138 of the Negotiable Instruments Act, 1881. In the present case the Petitioner had approached the High Court at Delhi under Sections 482 and 483 of the Code of Criminal Procedure,1973 and through a separate petition under Articles 226/227 of the Constitution of India. Both petitions were still pending before the High Court. It was not possible for this Court to accept that the fundamental rights of the Petitioner under Articles 20(3) and 21 of the Constitution of India had been violated in any manner whatsoever, so as to enable him to approach this Court, in the manner suggested. If the instant plea of the Petitioner was accepted, the jurisdiction of this Court under Article 32 of the Constitution of India would become available against every action of a Magistrate, not only under the Negotiable Instruments Act, but also, in respect of criminal proceedings conducted under other statutory provisions. Writ Petition dismissed.

• LIMITATION LAWS

Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai (Decided on 09.04.2012) MANU/SC/0298/2012

Sufficient Cause for - Condonation of delay - Whether the cause shown by the Respondent Corporation for condonation of 7 years and 108 days delay in filing Appeals against judgments and decrees passed by the City Civil Court was sufficient cause within the meaning of Section 5 of the Limitation Act,1963 and that whether the Single Judge of the High Court was justified in condoning the delay?

Held, Single Judge of the High Court altogether ignored the gapping holes in the story concocted by the Respondent Corporation about misplacement of the papers and total absence of any explanation as to why nobody even bothered to file applications for issue of certified copies of judgment for more than 7 years. The court has opined that the cause shown by the Corporation for delayed filing of the Appeals was, to say the least, wholly unsatisfactory and the reasons assigned by the Single Judge for condoning more than 7 years delay could not but be treated as poor apology for the exercise of discretion by the Court under Section 5 of the Limitation Act. Appeals allowed.

HIGH COURTS

• PROPERTY LAWS

DELHI HIGH COURT

Holiday Home Vs. R.P. Kapur HUF (Decided on 16.04.2012) MANU/DE/1624/2012

Possession - Present review Application filed by Appellant/Defendant for reviewing the judgment whereby Appeal filed by it against judgment and decree passed by trial Court in a suit for possession and mesne profits filed against it directing its eviction from suit property was dismissed by this Court

Held, This Court found no merit in this review Application as there was no error apparent on the face of record. Crux of the discussion leading to the Appeal was that since no eviction order had been passed in the proceedings initiated by the Estate Officer, much less the same attaining finality, the Plaintiff's right to claim possession of the property from the Defendant had not got extinguished in view of the legal position laid down by Supreme Court in Vashu Deo v. Balkishan. Review Petition dismissed.

• INTELLECTUAL PROPERTY LAWS

DELHI HIGH COURT

Hawkins Cookers Ltd. Vs. Murugan Enterprises (Decided on 13.04.2012) MANU/DE/1614/2012

Infringement of trademark - Challenge thereto - Present Appeal filed against the order of the Single Judge whereby it held that there was no infringement of Appellant's trademark

Held, This Court observed that the Single Judge had correctly noted the law that if in the sale it becomes reasonably necessary for the manufacturer of adaptable goods, to refer to the trademark of the relatable goods, such reference would not amount to an infringement of trademark under which the relatable goods are sold, but has misapplied the evidence on record. The error committed is by proceeding on the premise that the evidence established that the Respondent manufactured gaskets specifically for the special sizes of the pressure cookers manufactured to the Appellant, ignoring the evidence was to the contrary. Clarifying that the undisputed evidence brought out that gaskets pertaining to pressure cookers, irrespective of the brand or the manufacturer, were identically designed for pressure cookers of different sizes. Thus, a gasket of a particular size would fit the lid of all pressure cookers manufactured by different manufacturers of relatable size, would mean that it was not reasonably necessary to indicate for the benefit of the consumer that the adaptable brand related to one particular kind of pressure cookers. Appeal allowed.

• ARBITRATION LAWS

DELHI HIGH COURT

Flora Exports Vs. Impex-Trading Gmbh and Anr. (Decided on 13.04.2012) MANU/DE/1616/2012

Arbitral award - Challenge thereto - Present Petition filed challenging an Award passed by the Sole arbitrator /Respondent No.2 in the disputes between the Petitioner and the Respondent No.1 arising out of a contract entered into between parties for supply of 100% cotton throws by Petitioner to Respondent No.1

Held, This Court observed that the conclusions of the Arbitrator were based on a detailed analysis of the evidence available on record. The likely place of theft was a pure question of fact. View taken by the Arbitrator was a possible one to be taken in the facts and circumstances of the case. Given the limited scope of the powers of the Court in Section 34 of the Arbitration and Conciliation Act,1996 , Court was not persuaded to interfere with the finding of fact or to hold that the impugned Award suffered from patent illegality. Further, computation of the actual damages and Award of interest by Arbitrator could not be faulted with. Petition dismissed.

• CRIMINAL LAWS

BOMBAY HIGH COURT

Homesh @ Umesh S/o. Vasantrao Thamekar Vs. The State of Maharashtra (Decided on 12.04.2012) MANU/MH/0493/2012

Quashing of proceedings - Present Application filed under Section 482 of Criminal Procedure Code,1973 wherein the Applicant prayed for quashing of criminal proceedings pending in the Court of Judicial Magistrate

Held, It must be noted that name of the present Applicant did figure in the First Information Report along with other persons who had formed the unlawful assembly. Considering the number of persons accompanying Accused and the Applicant herein and the dangerous weapon like sword used to assault first informant, coupled with nature of injury, the surrounding circumstances and the threats given to prior to and at the time of assault, one may raise an inference as to formation of unlawful assembly with a common unlawful object. If five or more persons come in a group and if offence is committed in prosecution of the common object of the assembly, each member knowing it to be likely that use of dangerous weapon like sword by any or some of them may cause grievous injury then each of them may be liable for commission of offence. Every member of the unlawful assembly becomes vicariously liable for the act done by others. Although the overt act might not be imputed to each of them, each of them under normal circumstances was deemed to be members of the unlawful assembly when offence was committed in prosecution of the common object. Application dismissed.

TRIBUNAL

• DIRECT TAXATION LAWS

ITAT DELHI

Shiv Om Paper Mills Pvt. Ltd. Vs. Income Tax Officer (Decided on 12.04.2012) MANU/ID/0214/2012

Taxability of income - Whether the Commissioner of Income Tax (Appeals) has erred by treating bank interest received as income from other sources instead of capital receipt to be set of against the expenditure incurred having pending allocation for capitalization on completion of project

Held, It was clear from a catena of decisions that in matters as that of Assessee interest earned in pre-commencement period should be treated as inextricably linked with the setting up of the capital structure. Hence the same should be allowed to be set off against pre-construction expenditure. Upon careful consideration, this Court found that Assessee's submission was cogent enough and hence orders passed by the lower Authorities was set aside. Appeal allowed

ITAT MUMBAI

Agility Logistics Private Limited Vs. Deputy Commissioner of Income Tax (Decided on 13.04.2012) MANU/IU/0454/2012

Determination of Arm's Length Price - Method of - Whether the order passed by the Transfer Pricing Officer rejecting the comparable uncontrolled price [CUP] method and determining the adjusted arm's length price at Rs 110700000

Held, the additions on account of adjustment in arm's length price was uncalled for and accordingly the adjustment was rejected. The submissions made by the concerned Counsel that the matter be restored back to the file of the Transfer Pricing Officer as was done in 2006-07 did not hold any water. Since this Court found that for the year under consideration the Transfer Pricing Officer had passed a speaking order whereas in assessment year 2006-07 order of the Officer was laconic as found by the Tribunal while deciding the Appeal for the assessment year 2006-07. Appeal partly allowed.