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Anil Prakash Shukla vs Arvind Shukla

4. The prosecution case as disclosed in the FIR lodged by Anil Prakash Shukla (PW1) was that about 1-1/2 years prior to the occurrence in question Atul Prakash Shukla, brother of the first informant was beaten by accused Arvind Shukla and despite having assaulted him, accused Arvind tried to implicate Atul Prakash in a false case but could not succeed. Since then Atul Prakash Shukla and Arvind were on inimical terms. It was further alleged that on 21.10.1979 first informant Anil Prakash Shukla and his brother Atul Prakash Shukla, deceased in this case, were going to their residential house after taking a round in the market and when they were in front of the house of Shyam Babu Sharma in Mohalla Gumti Qasba Auriya accused Arvind @ Pappu and Virendra Dubey suddenly appeared there. They cried that Atul be killed whereupon accused Arvind gave one knife blow on Atul. He ran crying and fell down on the Chabutra of Shyam Babu Sharma. Besides the first information, the incident was witnessed by Dinesh Shukla, Ramesh Kumar Tripathi and Laljee Chaurasiya and the accused persons were identified by electric light. The accused persons ran away when challenged. Anil Prakash along with the witnesses came on the Chabutra where Atul was lying injured. He sent Laljee Chaurasiya to call his father who immediately arrived there and asked Anil Prakash Shukla to lodge the report. He also carried Atul to the police station in a rickshaw leaving Anil Prakash (PW1) on the spot. Anil Prakash Shukla scribed the report Ext. Ka 1 and lodged the same at police station Auraiya at 8.10 P.M. The police Station was situated only at a distance of about 3 furlongs from the place of occurrence. On the written report of Anil Prakash Shukla, a case under Section 307 IPC was registered against Arvind Shukla, Virendra Dubey and Anil @ Pappu in the General Diary at Sl. No. 36, which also indicates that injured Atul had reached the police station along with the first informant Anil Prakash Shukla. Injured Atul was sent to Hallet Hospital, Kanpur with Constable 536 Ram Prakash who also carried with him the Chithi Majroomi. On account of a strike, Atul could not be admitted in Hallet Hospital, therefore, he was taken to Ursula Hospital, Kanpur. Atul's father (PW2) Ram Sewak Shukla accompanied Atul when he was taken to Kanpur in a bus.

8. We fully agree with the view taken by the High Court that under the circumstances the alleged dying declaration made before the Magistrate is unreliable. Atul Prakash stated before the Investigating Officer on 9.11.1979 that while he was brought in a bus to Kanpur he was tutored by his father, brother and other accompanying persons to give a distorted and incorrect version about the incident.

11. As rightly held by the High Court, it seems that after coming to know of the medical report for the first time at the trial court, the witnesses improved their version given in the FIR.

12. The High Court has given the benefit of doubt to accused Arvind Shukla and we see no reason to take a different view. The appeals are accordingly dismissed.
Post Master General, Kolkata & Ors vs Tutu Das (Dutta)

3. On or about 12th / 13th November, 1987, a circular was issued stating that although the substitutes of EDA were being engaged on an ad-hoc basis who were required to perform their duties only for few hours a day, despite absorption of the regular incumbents, they had been continued as daily rated mazdoor and thus, irregular substitutes who had been working as such prior to 7.5.1985 may be considered for appointment as EDAs in vacant posts, even if they had not been recruited through Employment Exchanges provided they were found eligible therefor in all respects statin:-

5. Whereas pursuant to the said direction, although the case of Niva Ghosh was allegedly considered, her case was not, whereupon a contempt petition was filed. In the said contempt proceedings, a stand was taken by the appellant that she had not completed a period of 240 days in a year before the said cut off date. The said contempt petition was dismissed with liberty to the respondent to file a fresh original application. Pursuant to the said observations, Respondent filed an application before the Central Administrative Tribunal, Calcutta Bench, Calcutta which was marked as O.A. No. 484/2002.

11. We have noticed hereinbefore that when the services of the respondent had not been regularized, she filed a contempt application. An extension was sought for by the appellant to comply with the said direction, which having been rejected, the respondent was asked to produce relevant documents showing the period during which she had worked as EDA substitute in different post offices under South Calcutta Division from time to time prior to 7.5.1985. There is nothing on record to show that she brought such materials on records. The Tribunal also did not come to a definite finding that the respondent had completed 240 days in an year as a substituted EDA prior to issuance of the said circular letter dated 12th /13th November, 1987. It, however, proceeded to issue the directions which we have noticed hereinbefore.

18. There are two distinctive features in the present case, which are:-

23. For the reasons aforementioned, the impugned judgment cannot be sustained It is set aside accordingly. The appeal is allowed. In the facts and circumstances of this case, however, there shall be no order as to costs.
M/S Larsen And Tubro Ltd vs The Commissioner Of Central Excise, ...

Konkan Railway Corporation Ltd. ('Konkan Railway', for short), which is a public sector undertaking. Appellant manufactured Pre Stressed Concrete Girders (PSC Girders). It used to transport them to the site of construction of bridges of the Railways. It did not register itself with the authorities of the Central Excise.

2. Alleging that the appellant, for the period March 1993 and December 1994, although was involved in the manufacturing activity, by undertaking manufacture of 75 PSC Girders, but did not pay any excise duty thereupon.

6. The appeal preferred thereagainst by the appellant, as noticed hereinbefore, was dismissed by the Tribunal.

19. Furthermore, extension of the period of limitation entails both civil and criminal consequences and, therefore, must be specifically stated in the show cause notice, in absence whereof the Court would be entitled to raise an inference that the case was not one where the extended period of limitation could be invoked.

20. Another aspect of the matter cannot also be lost sight of. Appellant as also the Konkan Railawy raised a definite plea of bona fide. Such a plea had not been rejected. As a matter of fact, while considering imposition of penalty under Section 11A of the Act, the Commissioner has refused to impose any penalty upon the appellant on the premise that it was not guilty of any act of mala fide. We, therefore, keeping in view the facts and circumstances of this case, are of the considered view that the impugned judgment cannot be sustained. It is set aside accordingly. We hold that the Revenue was not justified in invoking the extended period of limitation in the instant case.

21. For the reasons aforementioned, the impugned judgment cannot be sustained and it is set aside accordingly. The appeal is allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.
B. Bharat Kumar & Ors vs Osmania University & Ors

3. In short initially the claim of some of the writ petitioners was entirely based on this material for the extended age of superannuation upto 62 years. The things did not stop here.

208. This was mainly for implementation of the UGC pay scales to the teachers and others covered in the aforementioned consolidated statement and the letters mentioned above. The State of Andra Pradesh agreed to implement the said scheme in so far as the salaries were concerned. This position obviously was taken after formation of a committee of five experts which is clear from para (iv) of the GOMS 208. The committee submitted the report to the State Government after making an indepth study of the issues relating to implementation and had made a report to the Government on 30.4.1999. It is on the basis of this report that the aforementioned GOMS 208 came to be issued. Para 5 of the GOMS is as under:

In view of this all the writ petitions came to be dismissed by two separate judgments. These judgments have now fallen for consideration in these appeals.

21. In short we are of the opinion that the appeals have no merit and must be dismissed. They are accordingly dismissed. The parties to bear their own costs.
N. Devindrappa vs State Of Karnataka

5. The facts of the case are that the appellant is a retired Head Master of a school. He took voluntary retirement from service under the guise of doing social work. It is alleged that on 05.10.1995 and on 18.11.1995 the appellant cheated the complainant by dishonestly inducing him to pay Rs.2,000/- to the appellant in cash assuring the said complainant to allot him a plot, though the said property was not even the property of the appellant.

6. The case of the appellant was that he had no intention to cheat the complainant and the case is of civil nature. On the other hand, the case of the prosecution was that the appellant accused was not the owner of the land and he made the complainant to believe that he was the owner of the land and for selling a plot of the land he received part of the sale consideration as advance from the complainant though he subsequently did not allot him any land despite repeated requests.

11. There is no force in the appeal and it is accordingly dismissed.
Sujoy Sen @ Sujoy Kr. Sen vs The State Of West Bengal

3. The prosecution case is that on 22.3.1991 at about 11.30 hrs., one Anindita Sengupta @ Pom, the only daughter of Pranab Sengupta was alone in their residence. It is alleged that the appellant came to the said residence and finding Anindita alone in the house, murdered her by throttling her neck. Pranab Sengupta, on the ground of his son Joy Sengupta's Madhyamik examination took permission from his school, where he was a teacher, to return to his house early and when he came to his house early, he noticed Anindita lying on the floor of a room, and being suspicious of the situation he raised hue and cry and at this neighbours rushed to the place of occurrence and soon thereafter Anindita was removed to Ranaghat Sub- Divisional Hospital where she was declared dead by the attending doctor.

13. No doubt a minor discrepancy in a FIR will not be fatal to the prosecution case. But the discrepancy in the FIR in the present case is not a minor discrepancy, but a major one. Had the first informant seen the accused entering into the house at the time of the incident he would have definitely mentioned the fact in the FIR.

14. Thus, we are of the opinion that the prosecution has not been able to prove the chain of circumstances linking the accused to the crime beyond reasonable doubt. Thus, the appellant is entitled to the benefit of doubt. We order accordingly.

15. Resultantly, the impugned orders of the Courts below are set aside. The appeal is allowed. The appellant shall be released forthwith unless required in connection with any other case.
Commissioner Of Customs, Maharashtra vs M/S Galaxy Entertainment (I) P. Ltd. & ...

2. The assessee imported 20-Lane Bowling Alley from M/s AMF Bowling Inc. based in USA for installation in their premises situated at Phoenix Mills Compound, Lower Parel, Mumbai-400013. On 18.5.1999, a show cause notice was issued in which it was alleged that the assessee had grossly undervalued the said equipment by declaring the price at US $ 15000 CIF as against the normal price of US $ 30000 for a lane. According to the show cause notice, the assessee had disguised part of the cost of the equipment as Technical and Installation Fee which was payable to the subsidiary of the foreign supplier, M/s AMF Bowling (I) Pvt. Ltd., amounting to Rs. 59 lacs payable over a period of three years. According to the show cause notice, prior to the importation of the above equipment, similar equipment was imported into India during 1997-98 by nine different assessees. According to the show cause notice, in those nine cases the value of the equipment worked out to US $ 30000 per lane. Consequently, according to the Department, the said equipment, in the present case, stood undervalued, hence, liable to confiscation subject to payment of redemption fund.

4. Aggrieved by the aforesaid decision of the Adjudicating Authority, the matter was carried in appeal by the assessee to the Appellate Tribunal. The Tribunal came to the conclusion that in the present case there was no undervaluation and, therefore, there was no reason to deviate from the valuation under Rule 4(1). According to the Tribunal, the declared value of the equipments at the rate of US $ 15199 per lane was the negotiated price. According to the Tribunal, there was no suppression as the Technical and Installation Agreement dated 20.8.1998 was post-clearance agreement. According to the Tribunal, the facts of the present case stood clearly covered by the judgment of this Court in the case of Basant Industries v. Additional Collector of Customs, 1996 (81) E.L.T. 195. Consequently, the appeal was allowed by the Tribunal. Hence, these civil appeals have been filed by the Department.

6. For the aforestated reasons, we find no infirmity in the impugned judgment of the Tribunal dated 4.7.2002. Accordingly the civil appeals are dismissed with no order as to costs.
Adivekka & Ors vs Hanamavva Kom Venkatesh (D) By Lrs. & Anr

7. Defendant Respondent No. 1 herein did not examine herself. She examined her husband in whose favour she had allegedly executed a Power of Attorney. A purported attesting witness and the Sub-Registrar who registered the document were also examined.

(iv) Her husband had other properties apart from the suit lands but the same were not fetching any income.

The said witness, however, also made out an alternative case. According to him, on or about 24.08.1971, an agreement to purchase the suit land was executed in the name of Hanumanthappa for a consideration of Rs. 11,000/- and a sum of Rs. 5000/- was paid by him by way of advance.

17. The disposition made in the Will is unfair, unnatural and improbable as no sane person, save and except for very cogent reasons, would disinherit his minor children. DW-1 does not state as to from where and how he obtained possession of the original Will.

20. We are, therefore, of the considered view that the High Court was not correct in reversing the judgment of the learned Trial Judge.

21. For the reasons aforementioned, the judgment of the High Court is set aside and that of the Trial Court is restored. The appeals are allowed. No costs.
Thimmappa Rai vs Ramanna Rai & Ors

7. Insofar as the properties described in Schedule "D" of the plaint, are concerned, Narayana Rai obtained the same in a partition by and between him and his sisters which took place on 8.8.1962. Thus, on his death the same devolved upon his children. It was furthermore the case of the first respondent that late Subbayya Rai relinquished his share and right in favour of the defendant No. 1 in terms of a registered deed dated 9.3.1978. In a similar manner, defendant No. 2 who inherited 1/5th share in the "D" Schedule property exchanged his share with the plaintiff and defendant No. 1 under a deed of exchange dated 15.9.1976. The plaintiff, therefore, claimed 2/5th share in the said property.

30. We, therefore, are of the opinion that the finding of the courts below in respect of Schedule (B) properties cannot be interfered with.

33. For the foregoing reasons, the appeal is allowed in part namely in respect of the properties described in Schedule (D) of the plaint to the effect that the appellant herein was also be entitled to 1/5 share of the Subbayya Rai as also property obtained by him and the first defendant herein jointly from one of the sisters.

34. The judgments of the Trial Court as also the High Court in respect of the properties described in Schedule (B) and (C) of the plaint are affirmed. However, in respect of Schedule "D" property, it is set aside. Appeal is allowed in part. In view of the facts and circumstances of the case, the parties shall pay and bear their own costs.
Mahadeo Bhau Khilare (Mane) & Ors vs State Of Maharashtra & Ors

1. Appellant No. 2 was initially appointed as a serving unpaid candidate in the Office of 'Talathi'. Such an appointment was made purported to be under the Orders of Talathi permitting him to work in his office as unpaid candidate. Appellant No. 1 was appointed as Assistant to Talathi on 2.4.1979. Appellants had been engaged from time to time in the said post. Unpaid candidates, according to appellants themselves, used to receive 30 per cent out of every rupee received by the first respondent for writing of the document by the candidate. Revenue officials were directed by the State to stop such recruitment. Despite the same, however, recruitment of Assistants from persons like the appellants continued.

3. Appellants, however, were not appointed under the said scheme. They moved the Tribunal again. By a judgment dated 29.1.1999, respondents were directed by the Tribunal to bring the appellants within the purview of the said scheme. Aggrieved by and dissatisfied therewith, the respondents filed several writ applications which were allowed and the matter was remitted back to the Tribunal.

4. Ultimately, the Tribunal in its Order dated 20.7.2001 opined that the work from the appellants were taken by the Tehsildars on their own without having any authority whatsoever in that behalf. Writ Petitions preferred by the appellants thereagainst have been dismissed by reason of the impugned judgment.

13. For the reasons aforementioned, we are of the view that no case has been made out for our interference with the impugned judgment. Appeals are, therefore, dismissed. No costs.
M/S. Master Cables Pvt. Ltd vs State Of Kerala

By an order dated 14.01.2003, the earlier assessment order was set aside. Appellant filed an appeal before the Kerala Sales Tax Appellate Tribunal. The matter was remitted to the Deputy Commissioner for its re- examination. By an order dated 20.05.2003, the assessment in respect of the Assessment Year 1996-97 was set aside. The said authority directed re- assessment for the year 1995-96 by an order dated 7.11.2003. Questioning the said orders, appeals were filed by the appellant before the Tribunal which by reason of a common judgment dated 21.12.2005 were dismissed. Two Sales Tax revisions wee filed thereagainst before the High Court, which by reason of the impugned judgment have been dismissed.

For the reasons aforementioned, the said decisions cannot be said to have any application so far as the first contention of Mr. Ahmadi is concerned.

17. We do not see any reason as to why the observations contained therein shall not be treated to be prima facie ones and, thus, all contentions of the parties shall remain open.

18. We have no doubt, in our mind, that the appropriate authority would consider the matter with an open mind irrespective of any observations made for the purpose of invocation of power under Section 35 of the Act. The Tribunal has also noticed that the entire matter has been left open to the assessing authority. It would, thus, not only be open to the appellant to raise all contentions, they would also be at liberty to produce all relevant materials before the assessing authority to show that the orders of assessment passed earlier were legal and no deviation therefrom is warranted.

19. This appeal, thus, being devoid of any merit, is dismissed with the aforementioned observations. In the facts and circumstances of this case, however, there shall be no order as to costs.
Laxmikant Chhotelal Gupta & Ors vs State Of Maharashtra & Ors

2. Respondent Nos. 5 to 7 herein were partners of a firm known as M/s. Somras Distillers. It ran into arrears inter alia in payment of sales tax.

3. The properties of the partners were attached. A Writ Petition came to be filed by the respondent nos. 5 to 7 inter alia praying for a direction to the sales tax authorities to recover the dues in respect of the said firm from the appellants alone and not from them.

5. Pursuant to the said direction, an auction was held on 6.6.2003 of the factory premises of the firm; the highest bid being Rs. 65 lakhs.

16. Provisions of a statute whether directory or mandatory necessitating strict or substantial compliance are questions which must be determined by the courts. This Court thought that the High Court would do so. Presumably the effect and purport of this Court's Order having not been brought to its notice, we, therefore, are of the opinion that the matter should be directed to be considered afresh by the competent authority. We are informed at the bar that Respondent No. 4 being Assistant Commissioner of Sales Tax is the competent authority therefor. We, therefore, while setting aside the Order of the High Court would direct the said authority to consider the contentions raised by the appellants herein on their own merits.

20. We make it clear that all contentions of the parties shall remain open. The impugned judgment is set aside. This Appeal is allowed with the aforementioned directions. In the facts and circumstances of this case, however, there shall be no order as to costs.
Soma Chakravarty vs State Through Cbi

5. The prosecution case is that the publicity department of ITPO was concerned with the release of advertisements in newspapers. There were two types of advertisements; (1) regular advertisement & (2) ad hoc advertisements. Regular advertisements were given to the national dailies and other leading newspapers and magazines, whereas ad hoc advertisements were those which were issued on ad hoc basis from time to time with the specific approval of the Chief Managing Director or Executive Director only. The procedure for release of advertisements on behalf of ITPO was as follows:

6. Requests were received from Indian and foreign magazines/newspapers/publications for the advertisements which were processed by the publicity officer of the rank of Deputy Manager level and were put before the CMD/ED through the Senior Manager/Deputy General Manager for his approval. On receipt of the approval from the CMD/Executive Director by the publicity Division the concerned manager sent letters/release orders to the party for publication of the material. After the advertisements were published the concerned officer of the publicity Division of ITPO had to process and pass the bills for making payment to the advertising agency. Copy of the letter sent and copy of the newspapers/magazine were also forwarded or attached to the bill submitted by the agency.

9. The High Court dismissed the Criminal Revision Petition filed by the appellant, and hence this appeal by special leave.

16. No doubt Soma Chakravarty contended that she signed these fake bills by negligence but without any mala fide intention, but this is a matter which, in our opinion, is to be seen at the time of the trial. There are serious allegations of misappropriation of a huge amount of money belonging to the government, and it cannot be said at this stage that there is no material at all for framing the charge against her. Hence, we agree with the view taken by the High Court in this connection.

17. In view of the above, we find no infirmity in the impugned judgment and this appeal is consequently dismissed. However, we make it clear that any observation made by us in this judgment or in the impugned judgment of the High Court will not influence the trial court, which shall decide the case on its merits, as expeditiously as possible.