Whether amount not disclosed in income tax return can be recovered in prosecution under S 138 of NI Act?

 The learned Single Judge in Criminal Appeal No. 6 of 2012 has 
observed that there is no provision of Income Tax Act, which makes an
amount not shown in the income tax returns unrecoverable. It has
been observed that if some amounts are not accounted for, the person
would be visited with the penalty or at times even prosecution under
the Income Tax Act, but it does not mean that the borrower can refuse
to pay the amount which he has borrowed simply, because there is
some infraction of the provisions of the Income Tax Act. It is further
observed that infraction of provisions of Income Tax Act would be a
matter between the revenue and the defaulter and advantage thereof
cannot be taken by the borrower. It has been held that to say that an
amount not disclosed in the income tax returns becomes irrecoverable
would itself defeat the provisions of Section 138 of the N. I. Act. The
learned Single Judge has respectfully disagreed with the observations
made in the case of “Sanjay Mishra ” (supra). No doubt, the above
judgment dated 19/07/2013, passed in Criminal Appeal No. 6 of 2013,
has been set aside by the Hon'ble Supreme Court, in Criminal Appeal
No. 614-615 of 2014. But the setting aside was because the appellant
(accused) had already paid the sum of ` 4,00,000/- in favour of the
complainant. The findings of the learned Single Judge in said Criminal
Appeal No. 6 of 2013 have not been set aside. I am in respectful
agreement with the observations made by the learned Single Judge
(R. C. Chavan, J) in Criminal Appeal No. 6 of 2012. I am of the view
that the provision of Section 138 of the N.I. Act does apply to the
present transaction.  
IN THE HIGH COURT OF BOMBAY AT GOA
 CRIMINAL REVISION APPLICATION NO. 53 OF 2014

Mr. Bipin Mathurdas Thakkar,Vs  Shri Samir alias Sameer Dessai,

 CORAM : U. V. BAKRE, J.

 Pronounced on : 5th February, 2015.
Citation; 2015 ALLMR (CRI)4172

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Whether order of issue process passed against accused residing outside territorial jurisdiction of court can be quashed?

 The learned Counsel for the applicants submits that
the applicants herein are residing beyond the territorial

jurisdiction of the learned Magistrate, who issued process
against the accused. Learned Counsel for the applicants submits
that, this is a patent irregularity and that the Magistrate ought to
have issued notice under Section 202 of the Code of Criminal
Procedure (Cr.P.C.) and, thereafter, proceeded with the matter
since he was inclined to issue process. The applicants herein
have therefore prayed that the order issuing process be quashed
and set aide.
 The learned Counsel for respondent No. 2 rightly
submits that, the proceedings under Section 202 of Cr.P.C. is
only an irregularity and it would not vitiate the proceedings and
hence there is no question of quashing the said proceedings for
non-compliance of Section 202 of Cr.P.C.
 In view of this, the matter deserves to be remanded
and is accordingly remanded to the Court of 7th Judicial
Magistrate First Class, Dhule for complying with the provisions
under Section 202 of Cr.P.C. The learned Magistrate ought to
have postponed the issuance of process. Hence, the order dated
22nd June, 2012 being at premature stage deserves to be quashed
and set aside. It is made clear that the complaint has not been
quashed in this petition and that the matter is remanded only

for complying with the provisions under Section 202 of Cr.P.C.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPLICATION NO. 5934 OF 2013

Deepak Damu Mahale, Vs The State of Maharashtra.


 CORAM : SMT. SADHANA S. JADHAV, J.
 DATED : APRIL 21ST, 2015.
Citation; 2015 ALLMR (CRI)4354

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Whether wife can claim maintenance from husband under Domestic violence Act after 22 years?

It cannot be disputed that in view of the
provisions of the D.V. Act, the wife is not expected to show
that just before the filing of the proceeding she was
subjected to domestic violence. This Court has observed in
the case cited supra that proceeding needs to be filed
within reasonable time from the cause of action but in
view of the other reliefs which are made available and the
observations made by the Apex Court particularly with
regard to economic abuse which finds mention in section
3, the definition of "domestic violence", it can be said
that the original applicant from the present proceeding
has made out her case. She has turned old, she has no
source of income but the husband is avoiding to provide
anything for her maintenance and he is having sufficient
property. It appears that he was Sarpanch of the village
also.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Writ Petition No.804 of 2014

Vrushiket S/o Sadashiv Shinde,

Versus
 Pamabai W/o Vrushiket Shinde,

 CORAM: T.V. NALAWADE, J.

 DATE : 17th JUNE 2015
Citation; 2015 ALLMR(cri) 4555

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Landmark Judgment on PCPNDT Act

  

    The   first   allegation   is   of   not   displaying   of   Registration
Certificate in the waiting room.   It is necessary to refer to provisions of
Section 19(4) of the PCPNDT Act, which reads as follow : 
(4) The certificate of registration shall be displayed by
the   registered   Genetic   Counselling   Centre,   Genetic
Laboratory or Genetic Clinic in a conspicuous place at its
place of business.
With this reference, learned counsel for applicant has relied upon evidence
of Dr. Vanita Gargelwar, who had admitted that at Brindavani Hospital,
apart from hospital of applicant, her mother Dr. Rajlaxmi is also running a
Hospital, who is also a Gynaecologist, where all kinds of gynaec patients
are treated and it is a maternity home.  As such, it appears that Brindavani
Hospital, where the inspection came to be carried out is not exclusively
run by applicant but her mother, who also is a Gynaecologist, has her
hospital.    This  fact  needs  to  be   borne  in  mind   with  reference   to  the
contents of inspection report, which is at Exhibit 53, according to which,
the Registration Certificate was displayed in USG Clinic room.  As such, it
is material to note that accused, in fact, finding  that clinic room would be
more   conspicuous   place,   had   displayed   the   concerned   Registration
Certificate in the clinic room, where the USG machine is also installed than
to display in the waiting room, which is found common waiting room of all
the patients visiting Brindavani Hospital.  In that view of the matter and as

it is no case of complainant that no Registration Certificate was at all
displayed,   I   find   no   reason   to   hold   on   this   count   that   applicant   has
committed contravention of sub­section (4) of Section 19 of the PCPNDT
Act.   On the contrary, applicant is found to have displayed the required
certificate  in the clinic room where only those patients, who are required
to   undergo   examination   at   USG   clinic   would   visit   and   in   that
circumstances, can have a look to the Registration Certificate, rather than
displaying it in a common waiting hall where patients of all kinds may be
waiting. 
19. Second contravention of the PCPNDT Act and Rules alleged is
with reference to use of Prosound Aloka Machine in place of Logic 202
model machine for which Registration Certificate No. 33 is issued.  With
reference to above contravention, Rule 13 contemplates that : 
13. Intimation of changes in employees, place or
equipment. ­ Every [Genetic Counselling Centre, Genetic
Laboratory,   Genetic   Clinic,   Ultrasound   Clinic   and
Imaging Centre] shall intimate every change of employee,
place   address   and   equipment   installed,   to   the
Appropriate Authority [atleast thirty days in advance of
the expected date of such change, and seek re­issuance of
certificate of registration from the Appropriate Authority,
with the changes duly incorporated.]
20.  Thus, it is the case of respondent that in spite of change of

machine, no intimation as required above was given by applicant.  On this
ground,   learned   counsel   for   applicant   has   rightly   relied   upon   the
correspondence   entered   into   by   the   Civil   Surgeon,   District   Hospital,
Chandrapur to Dr. Vanita Gargelwar, the letter is on record at Exhibit 66.
On   plain   reading   of   contents   of   this   letter,   it   established   that   on
3­12­2009, that is prior to the date of inspection, applicant had entered
into correspondence with the competent authority requesting to take note
of new sonography machine installed by her.   Said letter of applicant
dated 3­12­2009 is received in the office of Civil Surgeon, Chandrapur as
in Exhibit 66, there is also reference of inward no. 15789 and 15790 and
are further stated to be marked by one Mr. Deshmukh.
21.  Learned APP on this count had contended that in fact the said
letter is not available in the office of Civil Surgeon and has relied upon
documents   in   respect   of   Departmental   Enquiry   initiated   against
Mr.   Deshmukh,   contending   that   enquiry   was   initiated   against
Mr. Deshmukh, employee from the office of Civil Surgeon for committing
forgery establishing of fact of receipt of such letter in the office of Civil
Surgeon.  Admittedly, said documents do not form part of record.  As such,
even though there was any enquiry initiated against the employee of Civil
Surgeon, this by itself, at this stage, cannot be a ground to reject the claim

of applicant, more particularly, in view of contents of letter Exhibit 66 of
Civil Surgeon which prima facie establish correspondence by applicant. 
22. Moreover, it is material to note that order dated 5­10­2012
passed by respondent under sub­section (3) of Section 20 of the PCPNDT
Act,   1994     by   which   registration   of   Genetic   Clinic   of   applicant   was
suspended, is quashed by this Court by its order passed in Writ Petition
No. 4594/2013.  As such the order passed by the Appropriate Authority
and the Commissioner of Municipal Corporation, Chandrapur is set aside
and the registration of the Genetic Centre of applicant came to be restored.
         Respondent in its reply had raised this as one of its ground while
opposing this application contending that order cancelling registration of
applicant's Genetic Centre is also issued by the Appropriate Authority.  
 In   that   view   of   the   matter   and   further   considering   the
admission given by complainant Dr. Vanita Gargelwar that on 25­7­2012,
she received Exhibit 66 from the office of Civil Surgeon, Chandrapur, it is
prima facily established by applicant that she had duly informed about the
change of machine to the office of Civil Surgeon at the material time and
who   was   the   appropriate   authority.     In   the   background   of   above,
complaint fails on this count also. 

Lastly, it is the case of complainant that four numbers of forms
being F­Form Nos. 719, 720, 721 and 722 are incompletely filled, it is
alleged that :
columns no. 3 pertaining to name, age of the patient, 
column no. 4 pertaining to number of children with their sex, 
column no. 5 pertaining to husband's/father's name, 
column no. 6 pertaining to full address and telephone number of patient
and
column no. 15 pertaining to date on which CSJ procedure was carried out
are alleged to be not filled.  
In the background of above alleged contravention, sub­rule (4) of Rule 9 is
necessary to be considered.  It contemplates : 
(4)  The record to be maintained by every [Genetic Clinic
including a mobile Genetic Clinic], in respect of each man
or   woman   subjected   to   any   pre­natal   diagnostic
procedure/technique/test, shall be as specified in Form F.
Before considering this aspect, it is necessary to note that admittedly, there
are no allegation nor even it is the case of complainant that applicant has
contravened or is indulged into act of sex determination.  Coming back to
the  issue  of   incomplete  F­Form  Nos.  719  to  722,  learned  counsel  for
applicant has relied upon the evidence of Dr. Ramteke, who was Member
of   the   inspection   team   authorized   by   Appropriate   Authority   and   has

admitted that F­Form Nos. 719 to 722 are on record at Exhibit 78 to 81
and that there were many patients outside the chamber as well as in the
waiting hall of whose names were not recorded by any of the Members of
the inspection team.  It is further admitted that no enquiry was made as to
whom F­Form Nos. 719 to 722 belong.  Dr. Ramteke further admitted that
there was one assistant in the chamber of applicant and had enquired from
applicant about said forms to which   applicant replied that they were in
respect of patients who were in the waiting.   In a specific query put to
Dr.   Ramteke   about   the   procedure   to   be   carried   out   while   conducting
sonography,   it   is   replied   that   on   obtaining   consent,   sonography   is
performed   and   thereafter   F­Form   is   prepared   along   with   sonography
report on reading sonography print­out.   Considering above procedure
which is necessary to be followed and having considering the fact that four
patients were in the waiting of whom F­Form Nos. 719 to 722 were found
during the course of inspection alleged to be incomplete do not make out
any   case   against   applicant   as   according   to   the   case   of   applicant,   the
process of examination of patients was yet to be complete and as such,
there was no reason for completing those forms even prior conducting the
required medical examination. 
 Learned   counsel   for   applicant,   in   the   background   of   above

facts,   has   relied   upon   provisions   of   sub­rule   (8)   of   Rule   9   which   is
reproduced below. 
(8) Every   Genetic   Counselling   Centre,   Genetic
Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging
Centre shall send a complete report in respect of all preconception
  or   pregnancy   related
procedures/techniques/tests conducted by them in  respect
of each month by 5th  day of the following month to the
concerned Appropriate Authority.
  
So on considering above, it is necessary for applicant to prepare the record
of the cases attended by her during a particular month of which Form­F
are to be submitted along with all necessary particulars up to 5th day of
following   month   along   with   monthly   report   of   cases   attended   by   the
concerned Doctor.  In that view of the matter and particularly, when the
inspection came to be carried out since four patients of which forms are
alleged to be incomplete were to be examined, it cannot be said that
applicant,   with   any   bias   intention,   had   kept   forms   incomplete   as   the
procedure as well as diagnosis of four patients is found to be incomplete
when the inspection came to be carried out. 
 On considering above discussed facts, I find no substance in the
complaint in respect of any of the alleged contraventions of provisions of
the  PCPNDT  Act
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, AT NAGPUR.
CRIMINAL APPLICATION (APL) No. 245 of 2014
Dr. [Mrs.] Kalyani wife of Ritesh Dixit,

          : Versus :
State of Maharashtra, 

­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­
             CORAM : P. N. DESHMUKH, J.
             DATED  :    1stDecember, 2014
Citation; 2015 ALLMR(cri) 4413

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