2017 SCC Vol. 8 September 14, 2017 Part 1

Arbitration Act, 1940 — S. 29 — Interest on claimed amount: Interest can be awarded (a) for pre-reference period, and (b) pendente lite, provided there is no express prohibition against same in contract. Further, said matter is within discretion of arbitrator to be decided on facts and circumstances of case. [Assam SEB v. Buildworth (P) Ltd., (2017) 8 SCC 146]

Arbitration and Conciliation Act, 1996 — Ss. 36 and 34 — Award — Execution of — Objections of facts — Non-consideration of, at the stage of execution: Executing court cannot hold any kind of factual inquiry which may have the effect of nullifying the decree itself but it can undertake limited inquiry regarding jurisdictional issues which goes to the root of the decree and has the effect of rendering the decree nullity. [Punjab State Civil Supplies Corpn. Ltd. v. Atwal Rice & General Mills,  (2017) 8 SCC 116]

Competition Act, 2002 — S. 27(b) — Penalty — Quantum of penalty — Determination of, on the basis of “relevant turnover” as opposed to “total turnover”: The concept of total turnover may bring out very inequitable results. When the agreement leading to contravention of S. 3 involves one product, there seems to be no justification for including other products of an enterprise for the purpose of imposing penalty. More so when total turnover of an enterprise may involve activities besides production and sale of products, like rendering of services, etc. Even as per the doctrine of “proportionality” court should lean in favour of “relevant turnover”. Penal provision contained in S. 27 of the Act serves this purpose as it is aimed at achieving the objective of punishing the offender and acts as deterrent to others and such a purpose can adequately be served by taking into consideration the relevant turnover. [Excel Crop Care Ltd. v. CCI, (2017) 8 SCC 47]

Constitution of India — Art. 20(2) r/w S. 300, Criminal Procedure Code, 1973 — Fodder Scam — Multiple offences punishable separately for different periods arising during the course of, as part of a continuing conspiracy: As there was large-scale defalcation of public funds, fraudulent transactions and fabrication of accounts in Animal Husbandry Department in various treasuries by various accused between 1988 and 1996 in State of Bihar in furtherance of conspiracy, discharge of accused L, S and J, on ground of their conviction in one of the criminal cases arising out of Fodder Scam, by impugned judgment, was not proper. The Court held that though there was one general conspiracy as alleged for period 1988 to 1996 but defalcations were from different treasuries for different financial years, amount involved was different, fake vouchers/allotment letters/supply orders were prepared with help of different sets of accused persons, and hence, separate trials were required to be conducted. Offence of conspiracy was continuing one, resulting in various offences punishable separately for different periods. Moreover, there can be different trials on same set of facts if tried under two different enactments and comprising of two different offences without violating Art. 20(2) of the Constitution or S. 300 CrPC. Furthermore, fact that there was one general charge of conspiracy which was allied in nature inconsequential, since it was qualified with substantive charge of defalcation of particular sum from particular treasury in particular period. Modus operandi being same would not make it single offence when offences are separate. One general conspiracy from 1988 to 1996 led to various offences and as such there must be separate trials for each of such offence. Impugned judgments were held to be unsustainable. Proceedings were restored and matter was remitted to trial court for expeditious disposal. [State of Jharkhand v. Lalu Prasad Yadav, (2017) 8 SCC 1]

Electricity Act, 2003 — Ss. 61 and 62 — Quantum of surcharge determined by Commission: Electricity tariff fixation/revision is to be done by Regulatory Commission and not the courts. The only explanation for judicial intervention in tariff fixation/revision is where the person aggrieved can show that the tariff fixation was illegal, arbitrary or ultra vires the Act. It would be termed as illegal if statutorily prescribed procedure is not followed or it is so perverse and arbitrary that it hurts the judicial conscience of the court making it necessary for the court to intervene. Even in these cases the scope of jurisdiction is a very limited one. [Waryam Steel Castings (P) Ltd. v. Punjab State Power Corpn. Ltd., (2017) 8 SCC 190]

Income Tax — Capital or Revenue/Trading/Business Receipt — Royalty payments/payments for technical know-how under technical collaboration agreement — When can be treated as capital expenditure: Test of enduring nature i.e. where the expenditure incurred gives enduring benefit, it is to be treated as capital expenditure. Expenditure under technical collaboration agreement to be considered as capital expenditure when (i) there is no existing business, and (ii) the agreement is crucial for setting up of the new manufacturing plant. [Honda Siel Cars (India) Ltd. v. CIT, (2017) 8 SCC 170]

Narcotic Drugs and Psychotropic Substances Act, 1985 — Ss. 21, 2(xi), 2(v), 2(xii), 2(xvi), 2(xix), 2(xx), 2(xiv) and 2(xxiii) — Noti. No. S.O. 2941(E) dt. 18-11-2009 amending Noti. No. S.O. 1055 (E) dt. 19-10-2001 by inserting Note 4 notifying limits of various drugs not in terms of pure drug content but aggregate weight of seized substance as “preparation” if it contained specified drug — Validity of Noti. No. S.O. 2941(E) dt. 18-11-2009: Decision in E. Micheal Raj, (2008) 5 SCC 161 which was subsequently followed/distinguished while interpreting S. 21, NDPS Act, 1985 holding that rate of purity of drug was decisive for determining quantum of sentence for “small”, “intermediary” or “commercial quantity”, as far as interpretation of S. 21 is concerned, would be binding. [Hira Singh v. Union of India, (2017) 8 SCC 162]

Penal Code, 1860 — S. 300 Fourthly and Ss. 302 and 328 r/w S. 120-B — Imminently dangerous act which in all probability would lead to death — “Hooch tragedy”: In this case where supply of adulterated liquor containing methyl alcohol with full knowledge of its consequences, led to death of 36 persons and 44 others lost eyesight permanently, conviction of respondents accused under S. 300 Fourthly, justified. [State of Haryana v. Krishan, (2017) 8 SCC 204]

Penal Code, 1860 — Ss. 302, 506 Pt. II and 34 — Murder — Appreciation of evidence: In this case involving land dispute between rival parties, closely related to each other, evidence adduced were full of contradictions and prosecution also failed to prove guilt of accused beyond reasonable doubt, hence, reversal of conviction, confirmed. [S. Subbulaxmi v. Kumarasamy, (2017) 8 SCC 125]

Prevention of Corruption Act, 1988 — Ss. 7 and 13(2) — Illegal gratification — Demand and acceptance of — Indispensability of proof of: In order to prove charge under Ss. 7 and 13, 1988 Act, prosecution has to establish by proper proof, the demand and acceptance of illegal gratification. Till that is accomplished, accused should be considered to be innocent. Proof of demand of illegal gratification, thus, is the gravamen of offence under Ss. 7 and 13(1)(d)(i) and (ii), 1988 Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors proof of demand, ipso facto, would thus not be sufficient to bring home charge under aforesaid two sections. As a corollary, failure of prosecution to prove demand for illegal gratification would be fatal and mere recovery of amount from person accused of offence under Ss. 7 or 13, would not entail his conviction thereunder. [Mukhtiar Singh v. State of Punjab, (2017) 8 SCC 136]

Join the discussion

Your email address will not be published. Required fields are marked *

16 − 13 =