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honourable mr justice

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Section 245: Set off of refunds against tax remaining payable: Where under any of the provisions of this Act, a refund is found to be due to any person, the Assessing Officer, Deputy Commissioner (Appeals), Commissioner (Appeals) or Chief Commissioner or Commissioner, as the case may be, may, in lieu of payment of the refund, set off the amount to be refunded or any part of that amount, against the sum, if any, remaining payable under this Act by the person to whom the refund is due, after giving an intimation in writing to such person of the action proposed to be taken under this section.” 20. From a reading of the above Section, it is crystal clear that the Assessing Officer, Deputy Commissioner (Appeals), Commissioner (Appeals) or Chief Commissioner or Commissioner, as the case may be, may, in lieu of payment of the refund, set-off the amount to be refunded or any part of that amount, against the sum, if any, remaining payable under the Act by the person to whom the refund is due, after giving an intimation in writing to such person of the action proposed to be taken under that Section. (emphasis supplied).On a perusal of the entire material documents including the impugned order, it is clearly evident that there is no intimation in writing to the petitioner-assessee before making such an adjustment of refund. No doubt, the respondent is empowered to make the adjustment of refund, but the same can be done only in the manner as contemplated under the provisions of the Act. It is conspicuous from the records that there is no intimation in writing to the petitioner before making such adjustment of refund. As the respondent has not followed the procedures prescribed under the provisions of the Act while adjusting the refund amount with the outstanding amount, the impugned order is vitiated in law and is liable to be set aside. For the foregoing reaasonings, the impugned order is set aside. The Writ Petition is allowed and the matter is remanded back to the respondent for compliance of Section 245 of the Act, and thereafter, the respondent is at liberty to adjust the refund amount payable to the petitioner with the amount payable for the respective assessment year, in accordance with law. Such an exercise shall be completed by the respondent within a period of four weeks from the date of receipt of a copy of this order. No costs. The Miscellaneous Petition is closed. Reported in/ published in http://judis.nic.in/judis_chennai/filename=41825

IN THE HIGH COURT OF JUDICATURE AT MADRAS     DATED: 30.4.2013   CORAM:   THE HONOURABLE MR.JUSTICE V.DHANAPALAN   W.P.No.8571 of 2013 & M.P.No.1 of 2013           M/s.Cognizant Technology Solutions India P. Ltd., 6th Floor, New No.165/Old No.110, Menon Eternity Building, St.Mary’s Road, Chennai-600 018 represented by its Director .. … Continue reading

“27. Jurisdiction:- (1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which- (a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or (b) the respondent resides or carries on business or is employed; or (c) the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act. (2) Any order made under this Act shall be enforceable throughout India.”= A close reading of the above provision would make it abundantly clear that for filing a petition seeking protection orders, it is not necessary that there should have arisen a cause of action or atleast a part of cause of action, within the territorial jurisdiction of the Judicial Magistrate concerned. It is enough if the aggrieved person permanently or temporarily resides or carries on business or is employed within the local limits of the said Judicial Magistrate.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 17.07.2012 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Crl.OP No.14609 of 2012 and M.P.Nos.1 and 2 of 2012   Yusuf Allabuksh .. Petitioner Vs 1. Julakia Bee 2. Reshma .. Respondents     Prayer:- Criminal Original Petition filed under Section 482 Cr.P.C., to call for the records and … Continue reading

PROLOGUE : “Child Sexual Abuse happens because the system of silence around the act perpetuates it.” “Child Sexual Abuse represses children; the repression of children is unlikely to create a flourishing society, economically, emotionally, equally or spiritually”. [‘Bitter Chocolate’ – Child Sexual Abuse in India by Pinki Virani – Penguin Books – 2000] 2.Indian Scenario : 2.1.In order to examine the incidence of sexual abuse among child respondents, the questionnaire was administered to 12,447 children belonging to the five different categories including children in family environment, children in schools, children in institutions, children at work and street children. The study looked into four severe forms and five other forms of sexual abuse. Out of the total child respondents, 53.22% reported having faced one or more forms of sexual abuse that included severe and other forms. Among them 52.94% were boys and 47.06% girls. The age wise distribution of children reporting sexual abuse in one or more forms showed that though the abuse started at the age of 5 years, it gained momentum 10 years onward, peaking at 12 to 15 years and then starting to decline. This means that children in the teenage years are most vulnerable. [Sexual Abuse of Children : (para 6.2)] 2.2.Out of the total child respondents, 20.90% were subjected to severe forms of sexual abuse that included sexual assault, making the child fondle private parts, making the child exhibit private body parts and being photographed in the nude. Out of these 57.30% were boys and 42.70% were girls. Over one fifth of these children faced more than three forms of sexual abuse. Amongst these sexually abused children, 39.58% were in the age group of 5-12 years, 35.59% in the age group of 15-18 years and 24.83% in the age group of 13- 14 years. [Severe forms of sexual abuse :(para 6.2.1)] 2.3.From the data available, an analysis of severe forms of sexual abuse arranged age-wise revealed that sexual abuse crossed the 5% mark from the age of 10 years, peaked at 15 years and by the time the child reached 18 years, went below the 5% mark. 73% of the total incidence of child sexual abuse was reported among children between 11 and 18 years of age. Therefore the pre-adolescent to the adolescent child seems to be most at risk. It is also disturbing to note that children between 6 and 10 years also face severe forms of sexual abuse. [Study on Child Abuse : India 2007 : Ministry of Women and Child Development, Government of India : Pages 74, 75 and 76]

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT     DATED: 07/03/2012 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)No.8355 of 2011 and W.P.(MD)No.12572 of 2011 and M.P.(MD)No.1 of 2011 M.Veersamy .. Petitioner in both writ petitions Vs. 1.State of Tamilnadu, represented by Home Secretary, Secretariat, Fort St. George, Chennai. 2.District Collector, Madurai District, Collectorate, Madurai. 3.Superintendent … Continue reading

The Honourable Apex Court’s observations are as follows: “It is not possible to accept that investigation at this stage cannot be handed over to CBI Authorities or any other independent agency. The accusations are directed against local police personnel in which high police officials of the State of Gujarat have been made the accused. It is proper for the writ petitioner or even the public to come forward to say that if the investigation carried out by police personnel of the State of Gujarat is done, the writ petitioner and their family members would be highly prejudiced and the investigation would also not come to an end with proper finding, and if investigation is allowed to be carried out by local police authorities, all concerned including relatives of the deceased may feel that investigation was not proper, and in those circumstances, it would be fit and proper that the writ petitioner and relatives of the deceased should be assured that an independent agency should look into the matter, and that would lend the final outcome of the investigation credibility, however faithfully the local police may carry out the investigation, particularly when gross allegations have been made against high police officials of the State of Gujarat, and for which some high police officials have already been taken into custody. In an appropriate case when the Court feels that investigation by police authorities is not in the proper direction and in order to do complete justice in the case and as the high police officials are involved in the said crime, it was always open to the Court to hand over investigation to independent agency like CBI. In an appropriate case, the court is empowered to hand over investigation to an independent agency like CBI even when charge-sheet has been submitted.” “The scope of this order is not to deal with the power of the Supreme Court to monitor investigation but to make sure that justice is not only done but is also seen to be done. Considering involvement of State police authorities and particularly eight officials of State of Gujarat, the Supreme Court is compelled to direct CBI Authorities to investigate into the matter even after the charge-sheet has been filed. Since high officials of the State are involved and some of them are already in custody, it would not be sufficient to instil confidence in the minds of victims as well as public that still the State police authorities would be allowed to continue with investigation when allegations and offences are mostly against them.” “The Court cannot shut its eyes and allow State Police authorities to continue with the investigation and charge-sheet. For proper and fair investigation, CBI is directed to take up investigation and submit a report to the Supreme Court within six months….”In result, (i) this Writ Appeal is allowed. No costs. (ii) The investigation in Cr.No.27/2000 on the file of Marandahally Police Station is transferred to the seventh respondent/CBI. (iii) The respondents 1 to 5 are directed to immediately hand over the investigation of the case to the seventh respondent/CBI, by ensuring smooth transition of all the records and materials of the case, if any, to the seventh respondent. (iv) The respondents 1 to 5 are granted a time of one month from today, for handing over the investigation of the case with all the records and materials, if any, to the seventh respondent/CBI. (v) The seventh respondent is directed to take up the investigation of the case and complete the same in accordance with law and file the final report before the Court concerned within six months from the date of receipt of the entire case records and materials, if any. (vi) Though a prayer has been made on the part of the appellant/petitioner to direct the seventh respondent/CBI to register the case of murder under Section 302 IPC, we refrain from issuing any such direction, since it is for the investigating agency to decide, in accordance with law, as to against whom the case should be registered and under what section of law. (vii) Likewise, we also restrain ourselves from going into the request of the appellant to treat the statement of Siva @ Parthiban as a dying declaration, as it will not be proper to go into this aspect of the case at this point of time, when we have ordered investigation by CBI.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.3.2012 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL Writ Appeal No.1023 of 2001 Mrs.Nirmala … Appellant Vs. 1.State of Tamil Nadu, rep.by its Secretary to Government, Home Department, Fort St.George, Chennai-600009. 2.The District Superintendent of Police, Dharmapuri District at Dharmapuri. 3.The … Continue reading

the nature of the suit properties as properties given by the husband of the first defendant for the proper maintenance of the first defendant, the plaintiff and the second defendant who are then minor daughters. As both the daughters were married, it could not be held that the suit properties were given to them for their maintenance. Hence, the First Appellate Court concluded that the first defendant alone is entitled to the suit properties at present for her maintenance. The appellate Court has also gone through the agreement dated 20.9.97 marked as Ex.A3 and found that the plaintiff has not proved execution of agreement dated 20.9.97 as contended by her. Though the First Appellate Court held that the execution of Settlement Deed (Ex.B13) by defendant No.1 in favour of the second defendant and her daughter regarding item No.1 of the suit property is not legally valid, since properties were given by the husband of the first defendant in lieu of maintenance, neither the plaintiff nor the defendants No.1 and 2 can claim any right of share in the suit properties during the life time of the husband of the first defendant. Therefore, the First Appellate Court concluded that as the properties were given in lieu of maintenance and since the defendant No.2 and the plaintiff were married already, the first defendant alone is entitled to the suit property for her maintenance and only after the death of the husband of the first defendant, defendant No.1 and the plaintiff and defendant No.2 would stake any claim in the suit property.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27/01/2009 CORAM THE HONOURABLE MR. JUSTICE S. RAJESWARAN S.A. No. 1017 OF 2008 S. Murshia Begum .. Appellant vs. 1. Meharban Beevi 2. Shyla Begum .. Respondents Second Appeal is filed under Section 100 of the Code of Civil Procedure against the judgement and decree dated … Continue reading

This suit is also for partition and separate possession of the suit property. But for the Will and the gift deed the legal heirs of Moosa Rowther namely the plaintiffs 1 to 5, defendants 1 to 5 were all on record. The contention was that the legatee of item 1 of the suit property and the settlee of the item 2 of the suit properties were not made as parties. As far as the suit is concerned the non-joinder of a co-sharer or co-owners are found to be fatal, the lower court had come to a conclusion and gave a finding to the effect that the non-joinder of the first son of 4th defendant and the sons of 4th defendant as legatee and donees Ex.B.1 and B.2 were not necessary parties to the suit and the suit is not bad for non-joinder of necessary parties. Against the said finding the respondents 4 and 5 did not prefer any cross objection. Therefore, the said principle laid down by this court in the aforesaid judgments are applicable to the facts of this case. It is also not germane for this court to find that the suit is bad for non-joinder of parties. The said parties necessary to the suit were not legal heirs of the said P.K.Moosa Rowther, but for the Will Ex.B.1 and the ‘Hiba gift’ deed Ex.B.2. Therefore, this court is of the view that the ‘Hiba gift’ deed executed by Moosa Rowther in respect of item 2 of the suit property is not valid and the will dated 12.02.1980 in Ex.B1 was valid to an extent of 1/3rd, partition of item 1 of the suit property and that too in favour of the non-heir namely the son of 4th defendant and it is not valid for defendants 3 and 5. Accordingly the remaining 2/3rd share of 1st item of the suit property and the entire 2nd item of the suit property are liable for partition and separate possession as sought for by the plaintiffs. The plaintiffs are entitled to 7/96 share each out of 2/3rd share of item 1 suit property and in the entire 2nd item of the suit properties. Accordingly all the three points are decided against the respondents 4 and 5. Point 4: In view of the findings reached in the previous points that the plaintiffs 1 to 5 are entitled to 7/96 share in the 2/3rd of item 1 and entire item 2 of the suit properties the judgment and decree of the lower court dismissing the claim of the plaintiffs are liable to be set aside and the suit filed by the plaintiffs before the lower court for partition and separate possession of the suit properties is preliminarily decreed to that extent. This point is answered accordingly. Point 5: As per discussion held above, the judgment and decree of the lower court are set aside and the appeal is allowed and the suit filed by the plaintiffs before the lower court is preliminarily decreed to an extent of 2/3rd share of the item 1 and the entire item 2 of the suit properties. Since the parties to the suit and appeal are closely related to each other they are directed to bear their respective costs.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :07.06.2010 C O R A M : THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH A.S.No.139 of 1996 1. Zubaida 2. Rabia 3. Rukkiah 4. Noorjahan 5. Musthiri .. Appellants -vs- 1. Mahaboob Bivi 2. Jamila Bivi 3. Janasha 4. Sait Bowa 5. Sahul Hameed 6. Rajasekaran 7. J.Sahul … Continue reading

“1.When possession of the suit property was admittedly with the appellant herein whether Muslim law permits him to cancel and revoke the deed of settlement Ex.A1 as the gift itself was void ab initio and in these circumstances whether Section 126 of Transfer of Property Act be applicable against the principles of Muslim law relating the law of Gifts? 2. Whether the provisions of the Transfer of Property Act ware applicable to the Muslims transacting transfer of their properties as per the Muslim law (Shariat Law) when Section 2(d) of Transfer of Property Act itself exempts its application by declaring “nothing in the II chapter of this Act shall be deemed to affect any rule of Muhammadan Law? 3.Whether the suit as filed by the respondent/plaintiff after the statutory period of limitation was not barred by Article 59 of the Limitation Act and whether Article 59 of the Limitation Act is not applicable to the present case as held by the lower appellate Court? 4.Whether the appellant herein who was admitted to be continuously in possession even after execution of the deed of settlement Ex.A1 would take benefit of plea of adverse possession even though it was not claimed in his written statement while the Hon’ble Supreme Court of India was pleased to hold that in those circumstances it was necessary for the court to give finding on title even if the defendant in possession had not pleaded or proved adverse possession? (AIR 1990 SC 717) 5. Whether the appellant having possession of the suit property for more the statutory period of limitation and in view of his long possession for more than 12 years whether the title of the property became an unassailable one. 6. Whether the conclusion of the lower appellate Court that the revocation of the deed of settlement Ex.A1 was not applicable in Muhammadan Law without getting a decree from a court while the Muslim law clearly holds that gift without delivery of possession was void ab initio and as such its revocation was legal.”

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.06.2011 Coram: THE HONOURABLE MR.JUSTICE G. RAJASURIA S.A.No.946 of 2010 P.M.Nawabjan … Appellant vs. Dr.N.Nazeer Ahmed … Respondent This Second Appeal is focussed as against the judgment and decree dated 16.6.2009 passed by the Principal District Judge, Dharmapuri, reversing the judgment and decree dated 27.8.2008 … Continue reading

Whether a non- compoundable case , can be quashed under sec.482 of Cr.P.C. by high court ?= A mere doubt raised by co equal Bench will not have the effect of overruling the other judgments, wherein, the law has been declared by the Hon’ble Supreme Court. Therefore, as rightly held by Hon’ble Mr.Justice T.Sudanthiram in Hansarajsaxena case, so long as the law declared by the Hon’ble Supreme Court in B.S.Joshi case, which has been consistently followed in subsequent judgments up to Sushil Suri case, is overruled, the law declared in B.S.Joshi case binds this Court. Therefore, I have no hesitation to hold that this Court can exercise its inherent power to quash the proceedings in respect of non-compoundable offences on the ground that the parties have settled the disputes among themselves. At the same time, I wish to state that as has been held by the Hon’ble Supreme Court in the above judgments, the said principle cannot be applied universally in all cases, irrespective of the nature, seriousness and the attendant circumstances of the case. As I have already observed, the power under Section 482 of Cr.P.C. can be invoked if only such quashing would meet the ends of justice. In a given case, whether the situation demands quashing, so as to meet the ends of justice, falls within the best judgment of the Judge before whom the issue comes up for consideration. 27. Now, turning to the facts of the case, the parties belong to the same family and they are the legal heirs of a common ancestor. The dispute is in respect of a property. This is not a simple case of forgery of signature of the complainants or anybody else by the accused. This is a case of creation of some title deeds claiming title for the property. Going by the facts of the case, I am of the view that this is a fit case where this Court should exercise its inherent power saved under Section 482 of Cr.P.C. to quash the proceedings by applying the law laid down in B.S.Joshi case. In view of all the above, the petition is allowed and the case in C.C.No.343 of 2009 on the file of the learned Judicial Magistrate No.1, Poonamallee is quashed. M.Ps. are closed.

IN THE HIGH COURTOF JUDICATURE AT MADRAS DATED: 01.03.2012 CORAM: THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Crl.O.P.No.30250 of 2010 and M.P.Nos.1 and 2 of 2010 1. V.Sekar 2. A.Sakunthala 3. S.Komala 4. K.Vasantha 5. S.Devika 6. S.Mahalakshmi 7. V.Arumugam 8. A.Yuvaraj 9. C.Asaithambi ..Petitioners – Vs – 1. State by Inspector of Police, Central Crime Branch, Chennai … Continue reading

the Tamilnadu Buildings (Lease and Rent Control) Act, (hereinafter referred to as the ‘Act’) =In the result, the Civil Revision petition is allowed and the impugned orders are set aside and RCOP.No.37 of 1986, is allowed and eviction is ordered on the ground of subletting. The respondents shall vacate and hand over vacant possession of the petition premises to the petitioners/landlords within a period of two months from the date of receipt of a copy of this order. No costs. =(i) In order to prove mischief of subletting as a ground for eviction under rent control laws, two ingredients have to be established, (one) parting with possession of tenancy or part of it by tenant in favour of a third party with exclusive right of possession and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent. (ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to subletting. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant. (iii) The existence of deed of partnership between tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession in tenancy premises by the tenant in favour of a third person. (iv) If tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession. (v) Initial burden of proving subletting is on landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises. (vi) In other words, initial burden lying on landlord would stand discharged by adducing prima facie proof of the fact that a party other than tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted.

IN THE H IGH COURT OF JUDICATURE AT MADRAS DATED:07.02.2012 CORAM THE HONOURABLE Mr. JUSTICE T.S.SIVAGNANAM CRP (NPD) No.1317 of 1995 1.M.S.Hohammed Jahabar Kadiri (Deceased) 2.Ummal Bajira 3.M.J.K.Haja Shaik Alloudeen 4.Mumtaz Begam … Petitioners P2 to P4 as legal heirs of the deceased 1st petitioner vide order of this Court, dated 24.12.2003 made in CMP.14127/2003 … Continue reading

Acquitted =Long ago, in England, Lord Justice GODDARD in WOOLMEINGTON Vs. DIRECTOR OF PUBLIC PROSECUTIONS (1935 AC 462), held that onus is upon the prosecution to prove the offence alleged to have been committed by the accused beyond all reasonable doubts. This has become the core of the Anglo-Saxonic Criminal Jurisprudence. 49. Since then there is no shifting of this primary duty cast upon the prosecution. The Indian Legal System is also wedded to this basic principle of English Criminal law. Even, now this is the position of Criminal law in India except to the extent statutorily excluded. For instance, offences against women (Section 113-A, 113-B, Indian Evidence Act, 1872). 50. The necessary corollary is suspicion, however, strong may not take the place of legal proof. A finding of a Criminal Court is acceptable only when it is supported by legal and valid evidence. Dehors that, it deserves rejection lock, stock and barrel.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19/01/2012 CORAM THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR And THE HONOURABLE MR. JUSTICE P. DEVADASS Criminal Appeal (MD) No.394 of 2010 Sanjeevan alias Reghu .. Appellant v. The State of Tamil Nadu Rep. By its Inspector of Police Puthukadai Police Station Puthukadai Kanyakumari District. .. … Continue reading

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