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Presence of witness doubtful =According to the report (Exh.PAK) of the Deputy Director, Forensic Science Laboratory, Madhuban no linkage could be established between the bullets recovered from the dead body and the fire arms allegedly recovered at the instance of the accused both of which were sent for forensic examination. The learned Trial Court also noticed that PW-11 and PW-12 had identified the accused including the present appellant for the first time in Court. It was also held that the refusal of the accused to cooperate and take part in the test identification parade could not be held adversely against the accused on account of the fact that even earlier to the proposed test identification parade the accused were shown to PWs 11 and 12 and also to the son of the deceased. The mere claim of the prosecution that PW-11 Sohan Lal and PW-12 Bharat Lal were eye witnesses to the occurrence could not have been sufficient for the High Court to treat the ocular version of the said witnesses as the undisputed version of the occurrence. The High Court did not test the prosecution claim in the backdrop of the totality of the facts of the case. Having done so, we arrive at a different conclusion and, therefore, take the view that the High Court was not justified in reversing the acquittal of the accused-appellant Prem Singh. We, therefore, set aside the order of the High Court insofar as the present appellant is concerned and restore the order of acquittal passed by the learned Trial Court. The appeal is consequently allowed. If the appellant is presently in custody he be released

 published in     http://judis.nic.in/supremecourt/imgst.aspx?filename=40723  REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 925 OF 2009 Prem Singh … Appellant(s) Versus State of Haryana … Respondent(s) J U D G M E N T RANJAN GOGOI, J. 1. The appellant, Prem Singh, alongwith six others was charged for various offences punishable … Continue reading

Custom, Excise & Gold (Control) = In order to avail of MODVAT/CENVAT credit, an assessee has to satisfy the assessing authorities that the capital goods in the form of components, spares and accessories had been utilized during the process of manufacture of the finished product. Admittedly, in this case the appellant was not able to identify the machinery for which the goods in question had been used. In the absence of such identification, it was not possible for the assessing authorities to come to a decision as to whether MODVAT credit would be given in respect of the goods in question.”- It is also not in dispute that the appellant had purchased some machinery from others and such machinery had not even been unpacked by it and in the exact condition it had been transported along with the machinery manufactured by it to Vietnam. Thus, the appellant did not use the purchased machinery in its premises or in its factory and therefore, necessary condition incorporated in the Rules for availing credit of the MODVAT had not been complied with. To avail the MODVAT credit, the input on which excise duty is paid must be used in the manufacture of the final product in the factory of the assessee. The machinery purchased by the appellant had not even been tested or was not even unwrapped in the factory of the appellant. In case of such an admitted fact, it cannot be said that the machinery so purchased from others was used by the appellant in the manufacture of the sugar plant. 25. In the instant case, the appellant had only acted as a trader or as an exporter in relation to the machinery purchased by it, which had been exported and used for setting up a sugar plant in a foreign country. In any case, it cannot be said to have manufactured that plant in its factory. Moreover, it is also clear that the appellant-assessee did not pay any excise duty on the sugar plant set up by it in Vietnam and therefore, there cannot be any question of availing any MODVAT credit. 27. For the aforestated reasons as well as for the reasons stated by the Tribunal in the impugned order, we are of the view that the Tribunal had come to a correct conclusion and the conclusion so arrived at by the Tribunal does not require any interference. 28. The appeals are, therefore, dismissed with no order as to costs.

 published in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40718      NON-REPORTABLE     IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION 1 CIVIL APPEAL NOS.5509-5510 OF 2003   M/S. KCP Ltd. …..APPELLANT   VERSUS Commissioner of Central Excise, Chennai ….RESPONDENT   1 J U D G M E N T   1 ANIL R. DAVE, J.   1. … Continue reading

2G Spectrum case.=whether two orders passed by this Court on 11.04.2011 and 09.11.2012 in Civil Appeal No.10660 of 2010, in exercise of powers conferred on this Court under Articles 136 and 142 of the Constitution of India, while monitoring the investigation of 2G related cases, are liable to be recalled, de hors the rights guaranteed to the Petitioners to invoke the jurisdiction of this Court under Articles 32 and 136 of the Constitution of India, if aggrieved by the orders passed by the Special Court dealing with 2G Spectrum case.= No Court, other than the Court seized with the trial, has the power to monitor the proceedings pending before it. Order dated 11.4.2011 only facilitates the progress of the trial by ordering that the trial must proceed on a day-to-day basis. Large backlog of cases in the Courts is often an incentive to the litigants to misuse of Court’s system by indulging in unnecessary and fraudulent litigation, thereby delaying the entire trial process. Criminal justice system’s procedure guarantees and elaborateness sometimes give, create openings for abusive, dilatory tactics and confer unfair advantage on better heeled litigants to cause delay to their advantage. Longer the trial, witnesses will be unavailable, memories will fade and evidence will be stale. Taking into consideration all those aspects, this Court felt that it is in the larger public interest that the trial of 2G Scam be not hampered. Further, when larger public interest is involved, it is the bounden duty of all, including the accused persons, who are presumed to be innocent, until proven guilty, to co-operate with the progress of the trial. Early disposal of the trial is also to their advantage, so that their innocence could be proved, rather than remain enmeshed in criminal trial for years and unable to get on with their lives and business. 29. We fail to see how the principle laid down by this Court in A.R. Antulay’s case (supra) would apply to the facts of these cases. We have found no error in the orders passed by this Court on 11.04.2011 or on 09.04.2012. Therefore, the question of rectifying any error does not arise. On the other hand, as we have already indicated, the purpose and object of passing those orders was for a larger public interest and for speedy trial, that too on day-to-day basis which has been reflected not only in the various provisions of the PC Act, 1988 but also falls within the realm of judicial accountability. 30. We also find no reason to lay down any guidelines as prayed for by the petitioners in a Court monitored investigation. In a Court monitored investigation, as already pointed out the Court is not expected to interfere with the trial proceedings. The conduct of the trial is the business of the trial judge and not the court monitoring the investigation. A superior court exercising the appellate power or constitutional power, if gives a direction to conduct the trial on day-to-day basis or complete the trial in a specific time by giving direction is not interfering with the trial proceedings but only facilitating the speedy trial, which is a facet of Article 21 of the Constitution of India. That being the factual situation in these cases, the principle laid down by this Court in Rajiv Ranjan Singh “Lalan” VI and another v. Union of India and others (2006) 1 SCC 356, Brij Narain Singh v. Adya Prasad (2008) 11 SCC 558 and Ankul Chandra Pradhan (supra), are not applicable. 31. We, therefore, find no good reason either to frame guidelines to be followed by a constitutional court in relation to monitoring of criminal investigation or any legal infirmity in the orders passed by this Court on 11.04.2011 or 09.04.2012. Writ Petitions lack merits and they are accordingly dismissed, so also IA Nos.59, 61, 63 and 68 in Civil Appeal No.10660 of 2010.

published in         http://judis.nic.in/supremecourt/imgst.aspx?filename=40716     REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (C) NO.548 OF 2012 Shahid Balwa …Petitioner Versus Union of India and others …Respondents With WRIT PETITION (C) NO.550, 551, 552 OF 2012, 17 of 2013, and I.A. Nos.59, 61, 63 and 68 IN CIVIL APPEAL … Continue reading

Or.VII, rule 11 Rejection of plaint – Pending sec. 80(2) C.P.C. = whether there can be any presumption with regard to grant of the application filed under Section 80(2) of the CPC, even if no order was passed on the said application and whether the Trial Court was justified in dismissing the applications of the appellants filed for rejection of the plaint though the application filed by respondent No.1- plaintiff under Section 80(2) of the CPC was not finally decided.=The High Court noted that I.A. No. I was pending before the Trial Court and yet applications praying for rejection of the plaint had been heard by the Trial Court. The High Court, therefore, presumed that I.A. No. I, filed under Section 80(2) of the CPC, was granted and therefore, the objection with regard to non-compliance of Section 80(1) of the CPC was not justifiable. whether such an application should be granted, the court is supposed to give hearing to both the sides and consider the nature of the suit and urgency of the matter before taking a final decision. By mere filing of an application, by no stretch of imagination it can be presumed that the application is granted. If such a presumption is accepted, it would mean that the court has not to take any action in pursuance of such an application and if the court has not to take any action, then we failed to understand as to why such an application should be filed. It is an admitted fact that no order had been passed on the application filed under Section 80(2) of the CPC. Till a final order is passed granting the said application, in our opinion, the irregularity in filing of the suit continues. If ultimately the application is rejected, the plaint is to be returned and in that event the application filed on behalf of the appellants under Order VII Rule 11 is to be granted. If the application filed under Section 80(2) is ultimately granted, the objection with regard to non issuance of notice under Section 80(1) of the CPC cannot be raised and in that event the suit would not fail on account of non- issuance of notice under Section 80(1) of the CPC. We reiterate that till the application filed under Section 80(2) of the CPC is finally heard and decided, it cannot be known whether the suit filed without issuance of notice under Section 80(1) of the CPC was justifiable. According to the provisions of Section 80(2) of the CPC, the court has to be satisfied after hearing the parties that there was some grave urgency which required some urgent relief and therefore, the plaintiff was constrained to file a suit without issuance of notice under Section 80(1) of the CPC. Till arguments are advanced on behalf of the plaintiff with regard to urgency in the matter and till the trial court is satisfied with regard to the urgency or requirement of immediate relief in the suit, the court normally would not grant an application under Section 80(2) of the CPC. We, therefore, come to the conclusion that mere filing of an application under Section 80(2) of the CPC would not mean that the said application was granted by the trial court. In the aforestated circumstances, we hold that the trial court had wrongly rejected the applications filed by the appellants under Order VII Rule 11 of the CPC. The trial court ought to have heard and decided the application filed under Section 80(2) of the CPC before hearing the applications under Order VII Rule 11 of the CPC. 28. As a result of the above discussion, the appeal is allowed. The impugned judgment delivered by the High Court confirming the order of the Trial Court dated 30th September, 2001 is quashed and set aside. The order of the Trial Court rejecting applications under Order VII Rule 11 is also quashed and set aside. It is directed that the trial court shall first of all decide the application filed by respondent no. 1 under Section 80(2) of the CPC and only after final disposal of the said application, the applications filed by the appellants under Order VII Rule 11 of the CPC shall be decided. 29. The appeal is allowed with no order as to costs.

  published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40715 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7364 OF 2013 (Arising out of SLP (C) No. 10956 of 2005)     Govt. of Kerala & Ors. …..Appellants   Versus Sudhir Kumar Sharma & Ors. …..Respondents     J U D G M E N T 1 … Continue reading

Service matter – whether respondent No. 2 is entitled to pension as claimed by him or he is eligible to get his retirement benefits under Contributory Provident Funds Scheme (for short “the C.P.F. Scheme”).= No- as he failed to choose his option with in 3 months of notification – Delay can not be accepted as it carry no value in the eye of law = The appellant-University accepted the option exercised by respondent No. 2 and therefore, it cannot be said that the deeming fiction incorporated in the Notification would help respondent No. 2. For sake of convenience, relevant extract of the Notification dated 17th August, 1991, is reproduced hereinbelow :- “….Thus all employees who were in service on 1.1.1990 shall have to exercise their option in writing, either for the pension scheme under these regulations or for continuance under the existing C.P.F. Scheme, within 3 months from the date of notification of this provision and shall submit the same to the Comptroller, Rajasthan Agriculture University, Bikaner in the prescribed form. The existing employees who do not exercise option within the period specified under these regulations shall be deemed to have opted for the pension scheme. Option once exercised shall be final and irrevocable…” 22. Though, respondent No. 2 did not exercise his option within the period prescribed under the aforestated Notification, when he had exercised the option on 3rd January, 1992, for continuing to be under the C.P.F. Scheme and when the appellant-University had graciously accepted the option exercised by respondent No. 2, he would not get benefit under the deeming fiction incorporated in the Notification. It would be unfair to the University if the submission of respondent No. 2 is accepted. A special favour was done to respondent No. 2 by accepting his option even after the prescribed period was over. Now, at this stage, after his retirement, respondent No. 2 wants to take undue advantage of the favour done to him by the appellant university, which cannot be permitted. Had respondent No. 2 not exercised his option at all, he would have been surely treated to have accepted the Pension Scheme but as he had given his option late, which had been graciously accepted by the appellant-University, it cannot be said that respondent No. 2 should be treated to have accepted the Pension Scheme. 23. All averments pertaining to employees of other universities are not relevant because each employer university would have its own scheme with regard to payment of retirement benefits to its employees. 24. We may add here that respondent No. 2 is a highly literate person and he must have known the consequences, when he had opted for the C.P.F. Scheme under his letter of option dated 3rd January, 1992. It was his conscious effort to see that he continues with the C.P.F. Scheme and the said effort was respected by the appellant- University by showing special favour, as his option was accepted even after the time prescribed in the Notification was over. 25. For the aforestated reasons, we are of the view that the High Court was in error by giving a direction to the appellant- University that respondent No. 2 should be given pension as if he had opted for the Pension Scheme. 26. The appeal stands allowed with no order as to costs.

   published in   http://judis.nic.in/supremecourt/imgst.aspx?filename=40698  REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7160 OF 2013 (Arising out of SLP (C) No. 7781 of 2011)     Rajasthan Agriculture University, Bikaner …..Appellant   Versus State of Rajasthan & Ors. …..Respondents       J U D G M E N T … Continue reading

M.V. Act – COMPENSATION TO A CHILD = What is the just and fair compensation to be awarded to a child, who suffered disability in a motor accident, is the main point arising for consideration in this case.= In Kum. Michael vs. Regional Manager, Oriental Insurance Company Limited and Another[4], this Court considered the case of an eight year old child suffering a fracture on both legs with total disability only to the tune of 16%. It was held that the child should be entitled to an amount of Rs.3,80,000/- on these counts. 12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earning to the parents. The appellant, hence, would be entitled to get the compensation as follows: – | HEAD |COMPENSATION AMOUNT | |Pain and suffering already |Rs.3,00,000/- | |undergone and to be suffered in | | |future, mental and physical shock, | | |hardship, inconvenience, and | | |discomforts, etc., and loss of | | |amenities in life on account of | | |permanent disability. | | |Discomfort, inconvenience and loss |Rs.25,000/- | |of earnings to the parents during | | |the period of hospitalization. | | |Medical and incidental expenses |Rs.25,000/- | |during the period of | | |hospitalization for 58 days. | | |Future medical expenses for |Rs.25,000/- | |correction of the mal union of | | |fracture and incidental expenses | | |for such treatment. | | |TOTAL:- |Rs.3,75,000/- | 13. The impugned judgment of the High Court in M.F.A. No. 1146 of 2008 is accordingly modified. The claimant will be entitled to a total compensation of Rs.3,75,000/- along with interest @ 6% per annum from the date of the petition. First respondent – Insurance Company is directed to deposit the enhanced compensation with interest as above within two months from today. On such deposit, it will be open to the appellant to approach the Tribunal for appropriate orders on withdrawal. The appeal is allowed as above.

 published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40696 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7139 OF 2013 [Arising out of S.L.P.(Civil) No. 1676 of 2012] Master Mallikarjun … Appellant (s) Versus Divisional Manager, the National Insurance Company Limited & Anr. … Respondent (s) J U D G M E N T KURIAN, J.: Leave granted. 2. … Continue reading

Motor Vehicles Act Section 149(2)(a)(ii) = Breach of conditions under Section 149(2)(a) of the Motor Vehicles Act, 1988 absolves the insurer of its liability to the insured. – NO = even after it is proved that the licence possessed by the driver was a fake one, – whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swaran Singh’s case (supra). If despite such information with the owner that the licence possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the insurance company is not liable for the compensation.= On facts, in the instant case, the appellant employer had employed the third respondent Nirmal Singh as driver in 1994. In the process of employment, he had been put to a driving test and he had been imparted training also. The accident took place only after six years of his service in PRTC as driver. In such circumstances, it cannot be said that the insured is at fault in having employed a person whose licence has been proved to be fake by the insurance company before the Tribunal. As we have already noted above, on scanning the evidence of the licensing authority before the Tribunal, it cannot also be absolutely held that the licence to the driver had not been issued by the said authority and that the licence was fake. = In the above circumstances, the appeal is allowed. The fourth respondent – insurance company is liable to indemnify the appellant and, hence, there can be no recovery of the compensation already paid to the claimants. 11. There is no order as to costs.

    published in  http://judis.nic.in/supremecourt/imgst.aspx?filename=40695 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8276 OF 2009 Pepsu Road Transport Corporation … Appellant (s) Versus National Insurance Company … Respondent (s)     J U D G M E N T KURIAN, J.:     1. Breach of conditions under Section 149(2)(a) … Continue reading

Sections 138,142 of the NI Act = “Whether the complaint filed under Section 138 of the NI Act is within or beyond time as it was contended that it was not filed within one month from the date on which the cause of action arose under clause (c) of the proviso to Section 138 of the NI Act?”- “Whether for calculating the period of one month which is prescribed under Section 142(b), the period has to be reckoned by excluding the date on which the cause of action arose?”= Section 138 of the N.I. Act reads as under: “138. Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid. either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the Cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.” Section 142 of the N.I. Act reads as under: “142. Cognizance of offences: Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974 ),- (a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138; [Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.] (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.” Sections 12(1) and (2) of the Limitation Act, 1963 reads as under: “12. Exclusion of time in legal proceedings.- (1) In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. (2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.” Section 9 of the General Clauses Act, 1897 reads as under: “9. Commencement and termination of time.- (1) In any [Central Act] or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word “from”, and, for the purpose of including the last in a series of days or any other period of time, to use the word “to”. (2) This section applies also to all [Central Acts] made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887.”= we are of the opinion that Saketh lays down the correct proposition of law. We hold that for the purpose of calculating the period of one month, which is prescribed under Section 142(b) of the N.I. Act, the period has to be reckoned by excluding the date on which the cause of action arose. We hold that SIL Import USA does not lay down the correct law. Needless to say that any decision of this Court which takes a view contrary to the view taken in Saketh by this Court, which is confirmed by us, do not lay down the correct law on the question involved in this reference. The reference is answered accordingly.

published in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40692        REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1079 OF 2006 ECON ANTRI LTD. … APPELLANT VS. ROM INDUSTRIES LTD. & ANR. … RESPONDENTS JUDGMENT (SMT.) RANJANA PRAKASH DESAI, J. 1. On 13/10/2006, while granting leave in Special Leave Petition (Criminal) No.211 of 2005, … Continue reading

MODVAT- The respondent-company availed deemed MODVAT credit of Rs.77,546/- during the quarter of March, 2000 on the strength of invoices issued by M/s. Sawan Mal Shibhu Mal Steel Re-Rolling Mills, Mandi Govindgarh. During MODVAT verification it was found that the supplier of inputs had not discharged full duty liability for the period covered by the invoices. = Sub-rule (6) of Rule 57A in exercise of which the notification has been issued is as follows: – “(6) Notwithstanding anything contained in sub-rule (1), the Central Government may, by notification in the Official Gazette, declare the inputs on which the duty of excise paid under section 3A of the Central Excise Act, 1944 (1 of 1944), shall be deemed to have been paid at such rate or equivalent to such amount as may be specified in the said notification, and allow the credit of such duty in respect of the said inputs at such rates or such amount and subject to such conditions as may be specified in the said notification: Provided that the manufacturer shall take all reasonable steps to ensure that the inputs acquired by him are goods on which the appropriate duty of excise as indicated in the documents accompanying the goods, has been paid under section 3A of the Central Excise Act, 1944 (1 of 1944).”= “Whether the manufacturer of final products is entitled to deemed credit, under Notification 58/97-CE dated 30.8.97 when the manufacturer-supplier of inputs has not paid Central Excise Duty and given a wrong certificate on the body of invoices about duty dischargement under Rule 96ZP of Central Excise Rules, 1944?” = there is no dispute that a declaration was given by the manufacturer of the inputs indicating that the excise duty had been paid on the said inputs under the Act. It is also not in dispute that the said inputs were directly received from the manufacturer but not purchased from the market. There is no cavil over the fact that the manufacturer of the inputs had declared the invoice price of the inputs correctly in the documents. It is perceivable from the factual matrix that the only allegation is that at the time of MODVAT verification it was found that the supplier of the inputs had not discharged full duty liable for the period covered under the invoices. This lapse of the seller is different and not a condition or rather a pre-condition postulated in the notification. 25. Mr. Prasad, learned counsel for the revenue has vehemently urged that it was requisite and, in a way imperative, on the part of the assessee to verify from the concerned authority of the department whether the excise duty had actually been paid or not. The aforesaid submission leaves us unimpressed. As we notice Rule 57A (6) requires the manufacturer of final products to take reasonable care that the inputs acquired by him are goods on which the appropriate duty of excise as indicated in the documents accompanying the goods, has been paid. The notification has been issued in exercise of the power under the said Rule. The notification clearly states to which of those inputs it shall apply and to which of the inputs it shall not apply and what is the duty of the manufacturer of final inputs. Thus, when there is a prescribed procedure and that has been duly followed by the manufacturer of final products, we do not perceive any justifiable reason to hold that the assessee-appellant had not taken reasonable care as prescribed in the notification. Due care and caution was taken by the respondent. It is not stated what further care and caution could have been taken. The proviso postulates and requires “reasonable care” and not verification from the department whether the duty stands paid by the manufacturer-seller. When all the conditions precedent have been satisfied, to require the assessee to find out from the departmental authorities about the payment of excise duty on the inputs used in the final product which have been made allowable by the notification would be travelling beyond the notification, and in a way, transgressing the same. This would be practically impossible and would lead to transactions getting delayed. We may hasten to explicate that we have expressed our opinion as required in the present case pertaining to clauses 4 and 5 of the notification. 26. Consequently, we concur with the view expressed by the High Court and accordingly the appeals, being devoid of merit, stand dismissed without any order as to costs.

published in http://judis.nic.in/supremecourt/filename=40690 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 7031 of 2009 Commissioner of Central Excise, Jalandhar … Appellant Versus M/s. Kay Kay Industries … Respondent WITH CIVIL APPEAL No. 7032 of 2009 WITH CIVIL APPEAL No. 7034 of 2009 WITH CIVIL APPEAL No. 7392 of 2010 WITH CIVIL APPEAL … Continue reading

When sec. 304 Part II applies – “ 300. Murder.- xx xx xx Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault.” The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender’s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case…..“ In this background when we consider the facts of the present case, we have no manner of doubt that Exception 4 to Section 300 of the IPC is not at all attracted. In the case in hand, the convicts had entered the room of the daughter of the deceased in midnight, molested her and the poor father, perhaps because of his age, could not do anything other than to abuse the convicts. He gave choicest abuses but did not fight with the convicts. Verbal abuses are not fight as it is well settled that at least two persons are needed to fight. Therefore, this ingredient is not satisfied. Then, can it be said that the crime has been committed in a heat of passion? If time is taken to cool down, then the crime cannot be said to have been committed in a heat of passion. It is the specific case of the prosecution, which in fact, has also been accepted by the High Court that “when her father Tikeswar abused them, the accused Khageswar being annoyed brought a budia from his house, which is nearby, and dealt blows to her father and accused Dusasan brought a lathi and assaulted her father.” This clearly shows that both the convicts had sufficient time to cool down and therefore, it cannot be said that the crime was committed in a heat of passion. So far as the convict, Kampa @ Sricharan Naik is concerned, he is convicted with the aid of Section 34 of the IPC. All of them have come together and participated in the crime which goes to show that these convicts shared the common intention. In the face of what we have observed above, it is clear that the High Court erred in holding that the offence for which the convicts can be held guilty shall be Section 304 Part II of the IPC. In the result, we allow this appeal, set aside that portion of the judgment of the High Court whereby it had altered the conviction of the respondents from Section 302/34 of the IPC to that of Section 304/34 of the IPC and restore that of the trial court. The respondents, if have not already undergone the sentence awarded by the trial court, shall forthwith be taken into custody to serve out the remainder of the sentence.

   published in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40685   REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1249 OF 2013 (@SPECIAL LEAVE PETITION (CRL) No.4928 of 2011) STATE OF ORISSA … APPELLANT VERSUS KHAGA @ KHAGESWAR NAIK & ORS. …RESPONDENTS J U D G M E N T   CHANDRAMAULI KR. PRASAD, J. State … Continue reading

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