#bombayhighcourt Archives - Page 3 of 10

4 Sep

The Bombay High Court at Goa grants bail to accused charged with raping a minor girl on grounds of recent statements of the victim and her mother taken under Sec 164 CrPC

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The Bombay High Court at Goa grants bail to accused charged with raping a minor girl on grounds of recent statements of the victim and her mother taken under Sec 164 CrPC

Title: Sunil Vithal v. State of Goa

Decided on: July 11, 2023

Citation: 2023 SCC OnLine Bom 1365

CORAM: HON’BLE JUSTICE M.S. KARNIK

Introduction

The Bombay High Court at Goa granted bail to an accused charged with offences under Section 376(3) of the Penal Code, 1860, Section 8(2) of the Goa Children’s Act, Sections 4, 6 and 12 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) against a minor girl.

Facts of the Case

This is an application for bail for offences punishable under Sections Section 376(3) of the Penal Code, 1860, Section 8(2) of the Goa Children’s Act, Sections 4, 6 and 12 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The victim’s age at the time was 10 years and the accused’s was 46 years. The offence against the victim girl was committed in August 2020 when the victim had gone with her parents during Ganesh Chaturthi at the house of the accused where the victim’s mother was working as a house help. The incident was reported in May 2023 by the victim to the Counsellor of the boarding school. Apparently, the victim was traumatised and, therefore, did not earlier inform or report the incident to anyone.

Court Analysis and Judgement:

The Court took into account that after the applicant was arrested on 06.05.2023 and the investigation was completed, the statement of the victim was recorded under Section 164 of Cr. P.C. on 11.05.2023. In this statement, the victim stated that no incident has occurred with respect to her and she does not have any grievance or any complaint against anybody. The victim’s mother, in her statement, stated that she was not aware of any such incident that had taken place. The victim also refused to undergo a medical examination. The Court took into account all of these factors but refrained from making any observations on the merits of the contentions. The observations were limited to the consideration of this bail application and by taking an overall view of the matter, the applicant was released on bail for a bond of Rs. 25000.

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Written by- Reema Nayak

4 Sep

The Bombay High Court at Goa upholds a writ petition after its maintainability was challenged by an order from the trial court owing to delay in filing of written statement.

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The Bombay High Court at Goa upholds a writ petition after its maintainability was challenged by an order from the trial court owing to delay in filing of written statement.

Title: State of Goa v. Rajaram Bandekar

Decided on: July 18, 2023

Citation: 2023 SCC OnLine Bom 1456

CORAM: HON’BLE JUSTICE M.S. KARNIK

Introduction

The Bombay High Court at Goa upheld a writ petition after its maintainability was challenged by an order from the trial court owing to a delay in filing of written statement by the defendant.

Facts of the Case

This is a petition filed by the State of Goa challenging the order dated 12.12.2022, passed by the Trial Court refusing to condone the delay in filing the written statement. The facts are that the petitioners-original defendants had filed an application for condonation of delay of 16 days in filing the written statement on the grounds that the defendants were served with the summons on 06.04.2022 and on 13.05.2022, Advocate P. Joshi was appointed in the matter to defend the defendants. However, the concerned Advocate did not appear and returned the file stating that she is not willing to appear in the matter. On 14.06.2022, the matter was allotted to Advocate Priyanka Kamat. All the case papers were handed over to her on 27.06.2022. On 01.07.2022, an application was filed for extension of time and that application was fixed for reply and arguments on 20.07.2022. The period of 90 days had expired by then. There was thus a delay of 16 days in filing the written statement. The application was opposed by the plaintiff contending that the delay is not properly explained. The petition requests condonation of the delay.

Court Analysis and Judgement:

The Court found that the application for condonation of delay was accompanied by a written statement. The reason in the application for the delay is that there was a change in Advocate as the earlier Advocate and a new Government Advocate had to be appointed. As per, Postmaster General v. Living Media India Limited, the delay cannot be condoned mechanically merely because the Government or a wing of the Government is a party before the Court. However, the Court found the matter at hand was not a case of gross negligence or deliberate inaction or lack of bonafides. In the case of Postmaster General v. Living Media India Limited, there was a delay of 427 days by the Postal Department in filing the said appeal and there was no explanation of sufficient cause for such delay. In the present case, there is a delay of 16 days and the cause shown has to be regarded as sufficient. The Court proposed to condone the delay by imposing a cost of Rs. 5,000/- to be paid by the petitioners to the respondent within a month. A Writ Petition was allowed and the impugned order of the Trial Court was set aside by the Court.

Written by- Reema Nayak

1 Sep

The Bombay High Court quashes the rejection letter of teacher by the Education Department, directs them to grant the approval of his appointment as ‘Shikshan Sevak’.

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The Bombay High Court quashes the rejection letter of teacher by the Education Department, directs them to grant the approval of his appointment as ‘Shikshan Sevak’.

Title: Rajan Sahadeo Ratul v. State of Maharashtra, School Education Department

Decided on: July 3, 2023

Citation: 2023 SCC OnLine Bom 1321 : (2023) 4 Bom CR 298. Writ Petition No. 1423 of 2021

CORAM: HON’BLE JUSTICE G.S. PATEL AND HON’BLE JUSTICE NEELA K. GOKHALE
Introduction

The Bombay High Court quashed the rejection letter of a teacher and directed the management to approve his appointment as employee as ‘Shikshan Sevak’. A bench consisting of Justice G.S Patel and Justice Neela Gokhale found the appointment of employee legally valid.

Facts of the Case

The 1^st Petitioner is an employee of the school and the respondent is the Deputy Director of Education, Kolhapur region. In accordance with the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (“MEPS Act”), after a vacancy arose, the school enquired about availability of surplus candidates from the management but after receiving neither a reply nor a surplus candidate nominee for appointment, the school commenced the procedure to fill up the vacancy and the 1^st Petitioner joined service. The school then submitted the required proposal to the Respondent for approval of the Petitioner’s appointment as ‘Shikshan Sevak’ on 10 January 2020. The respondent rejected the proposal on the ground that the procedure of obtaining prior approval was not followed. It was argued on behalf of the petitioner, that the Respondent failed to convey to the school that the permission for selection process cannot be granted or that it has been refused for any reason and there was no communication at all regarding availability of surplus teacher of required qualifications. It is only after expiry of more than seven months, in the absence of a response of any kind, that the Management proceeded with selection procedure. The respondent however argues that this was in contravention of Government Resolution dated 6 February 2012 which mandated a ‘No Objection’ to be taken from the State Government prior to commencing of a selection procedure for filling up any vacancy, hence respondent prays for dismissal of the Writ Petition.

Court Analysis and Judgement:

The Court held that when the School Management informs the Education Department about a vacancy in its school seeking the latter’s permission for appointment, the Education Officer is expected to either forward names of suitable persons from the list of surplus teachers maintained by the Department or if no surplus teacher is available for absorption, permit the Management to appoint the teacher following regular appointment procedure. When the Education Officer does neither, the School Management is not expected to carry on with the vacancy awaiting a response from the Department indefinitely. The Court thus directed the Education Department to grant approval to appointments made by the Management in such cases and disburse the honorarium as per Rules. The court also held that the Petitioner is working in the school since 17 June 2019 and there has been no blemish on his performance. The Management was found to be well within its rights to commence the selection process in the absence of any response from the Respondents. The rejection letter dated 18 March 2020 was quashed and set aside. The Respondent was directed to grant the requisite approval to the appointment of the 1^st Petitioner as ‘Shikshan Sevak’ from the date of his appointment and include his name in the Shalarth ID within a period of two weeks from the date of this order.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Reema Nayak

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1 Sep

The Bombay High Court at Goa grants bail to accused for not being a flight risk, having no criminal antecedents and after considering that the trial might take a long period

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The Bombay High Court at Goa grants bail to accused for not being a flight risk, having no criminal antecedents and after considering that the trial might take a long period

Title: Joyal Graca v. State of Goa

Decided on: July 5, 2023

Citation: 2023 SCC OnLine Bom 1341

CORAM: HON’BLE JUSTICE M.S. KARNIK

Introduction

The Bombay High Court at Goa grants bail to the main accused in a murder case in bail hearing.

Facts of the Case

This is an application for bail for offences punishable under Sections 323, 427, 364, 302, 201 read with 34 of the Penal Code, 1860. There are three accused in all who have alleged to have had a fight with the deceased in a bar. It is alleged that the deceased was taken by the accused on a scooter. The dead body of the deceased was found and a murder weapon was recovered.

Court Analysis and Judgement:

The Court takes into account that the trial has commenced and 12 witnesses have been examined. However, the Court make the following observations: 1. some of the witnesses have turned hostile during the course of their examination, 2. there are no eyewitnesses to the incident, 3. the applicant has been in custody for more than 3 years and 288 days. The Court also states that considering the number of witnesses, the trial is likely to take long time to conclude. Meanwhile, there are no criminal antecedents against the applicant. The Court also finds that the applicant is a permanent resident of Goa and there is nothing on record to indicate that he is flight-risk. Therefore, the court grants him bail on a bond of the sum of Rs. 25000.

Written by- Reema Nayak

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31 Aug

Bombay HC: Commission payments are allowable as business expenditures

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Title: The Indian Hume Pipe Co. Ltd. v. Commissioner of Income Tax

Decided on: 31^st AUGUST, 2023.

+ INCOME TAX APPEAL NO.744 OF 2002

CORAM: G.S. KULKARNI & JITENDRA JAIN, JJ.

Facts of the Case:

This appeal consolidates disputes arising from assessment years 1986-87, 1987-88, and 1988-89, centered around a common order by the Income Tax Appellate Tribunal on January 18, 2002. The appellant, a listed limited company, specializes in manufacturing and selling R.C.C. Pipes and Steel Pipes used for water supply and drainage systems. The appellant’s return of income for the assessment year 1986-87 was selected for scrutiny assessment. The main issue revolves around the disallowance of commission payments made to various parties, amounting to Rs. 26,90,104.

Issues:

Whether the commission payments made by the appellant to various parties should be treated as allowable business expenditures?
Whether the Tribunal’s conclusion that the commission agents did not provide services justifying the payment of commission is based on valid and relevant material and is legally sustainable?

Contentions:

The appellant contends that the commission payments should be allowed as business expenditures, as they were made based on legally binding agreements with commission agents who rendered services to assist the appellant in securing contracts and recovering payments. The appellant points out that these commission agents were unrelated to the company and confirmed the receipt of the commissions. They argue that their case is consistent with prior assessment years and cite relevant case laws to support their contention.

On the other hand, the respondent revenue argues that the appellant failed to provide concrete evidence demonstrating the services provided by the commission agents. They assert that the Assessing Officer’s and Tribunal’s findings are based on factual analysis and should not be questioned under Section 260A of the Income Tax Act. The respondent revenue also raises the issue of the reasonableness of the expenditure, highlighting the Revenue’s role in assessing whether the commission payments were genuinely made for business purposes.

Decision:

After a comprehensive analysis, the Court finds that both the Assessing Officer and the Tribunal were unjustified in partially disallowing the commission payments. They noted that by allowing partial payments, both authorities had implicitly acknowledged the commission agents’ services. The Court further emphasized that the Revenue’s inconsistent stance and its involvement in determining the quantum of expenditure were not permissible under the Income Tax Act.

The Court ruled in favor of the appellant, emphasizing that the choice to engage commission agents for tendering and payment follow-ups is a business prerogative. They reiterate that commercial expediency should be viewed from the business’s standpoint and not from the Revenue’s perspective. Consequently, the Court allows the appellant’s appeal, emphasizing that the Revenue should maintain consistency in its approach. The decision serves as a precedent for the validity of commission payments made in commercial transactions, upholding the principles of business expediency and consistency.

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Written by- Aparna Gupta, University Law College & Dept. of Studies in Law

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