MONTREAUX RESOLRTS (P) LTD. VS. [ENTITY] ORS. C.C. NO.22/4 11.3.2010 1. These are three different applications. The first application is filed, by applicant [ENTITY], against [ENTITY] u/[SECTION] of [ACT], for perjury. This application is accompanied with another application to proceed against [ENTITY], without issuance of notice to him, for the offence of perjury. 2. Briefly stated, on a complaint of M/s. Montreaux Resorts Pvt. Ltd. and two others (including the applicant), the four accused including [ENTITY] was summoned by this Court as an accused, vide order dated 03.12.2009. In the present application, it is prayed by the applicant, that on 28.10.2009 i.e. prior to the summoning of accused in the main complaint, [ENTITY] filed an application in this Court seeking inspection of the main complaint file and, in the said application, instead of disclosing that he was an accused in the complaint, he portrayed that the application was filed on behalf complainant no.1 M/s. Montreaux Resorts Pvt. Ltd. He did not file this application in his own name. He falsely portrayed himself as a director of the company. It is claimed that since [ENTITY] falsely ORDER IN MONTREAUS RESORTS (P) LTD. VS. [ENTITY] ORS./DATED 11.3.2010 page no. 1 to 21 /k claimed himself as a director of the company and also falsely claimed that the counsel for the company wants to inspect the file, therefore, he should be tried for perjury. It is claimed that he was no more a director of the company on the date of filing of this application, as well as for applying certified copies and, therefore, he made a false statement, knowingly, to mislead this Court that the complainant company was inspecting the file. It is also claimed that he was not even authorised by the company to represent the company in the present matter. Along with this application, another application is filed praying that notice be not issued to [ENTITY], before proceedings for perjury are initiated, as there is no requirement in law to give any such notice. 3. Second application has been filed by the company and its directors and shareholders, including the applicant, against all the four accused for initiating criminal contempt proceedings for having succeeded in inspecting the Court file and obtaining certified copies from the Court by dishonestly and fraudulently doing so in the name of complainant company and not in the name of accused. It is claimed by the applicant, that this was done knowingly and deliberately, to prejudice and interfere in the course of judicial proceedings and by acting in criminal conspiracy. It is also claimed that the authority of ORDER IN MONTREAUS RESORTS (P) LTD. VS. [ENTITY] ORS./DATED 11.3.2010 page no. 2 to 21 /k the Court is lowered because of this conduct and, therefore, a reference be made to Hon'ble Delhi High Court for committing criminal contempt. 4. In support of these applications, the applicant has placed reliance upon a large number of judgments. The applicant has been heard in person on these applications. Applicant places reliance upon the case of [PRECEDENT], wherein it was held that there is no requirement to afford an opportunity of hearing to the persons against whom the Court might file a complaint as, once the prosecution proceedings are commenced, the persons against whom the accusation is made, would have legal right to be heard. It is also held that it is not preemptory to hold preliminary inquiry. It would be worth mentioning that in this very judgment it was also held that before initiating proceedings, the Court is required to form an opinion that it is expedient in the interest of justice to initiate further proceedings. It was further held that even if the Court forms such an opinion, it is not mandatory that Court should make a complaint. Reliance is next placed upon the case of [PRECEDENT], wherein it was ORDER IN MONTREAUS RESORTS (P) LTD. VS. [ENTITY] ORS./DATED 11.3.2010 page no. 3 to 21 /k held that Court cannot grant permission to respondent to produce
evidence in defence u/[SECTION] [ACT]
Reliance is next placed upon the case of [PRECEDENT], wherein, after the Court formed an opinion that it was expedient in the interest of justice to hold an inquiry u/[SECTION] [ACT], the respondents were called upon to show cause as to why complaint should not be made.
Reliance is next placed upon the case of in re. [PRECEDENT], wherein it was held that in urgent matters, such as that case was, such a procedure becomes imperative to prevent injustice being done.
Reliance is next placed upon the case of [PRECEDENT], wherein also it was held that opportunity of hearing accused before filing complaint u/[SECTION] is not necessary.
Reliance is next placed upon the case of [PRECEDENT], wherein it was held that Court is not bound to hold a preliminary inquiry where a primafacie case is made out nor notice to prospective accused is necessary. Reliance is next placed upon the case of [PRECEDENT], wherein it was held that a ORDER IN MONTREAUS RESORTS (P) LTD. VS. [ENTITY] ORS./DATED 11.3.2010 page no.
4 to 21 /k civil suit can be filed by a director of a company , specifically empowered by board to file suits and not otherwise. Reliance is next placed upon the case of [PRECEDENT] and, [PRECEDENT], which were cases pertaining to [SECTION] [ACT] regarding inquiry by a Magistrate, and it was held that in such inquiry, prospective accused cannot be allowed to participate in the proceedings.
Reliance is next placed upon the case of [PRECEDENT], wherein it was held that u/[SECTION] [ACT], detailed preliminary inquiry is not necessary in each and every case and notice to prospective accused is also not required at the stage of directing filing of complaint.
Reliance is next placed upon the case of [PRECEDENT] in suo moto proceedings of perjury wherein in the facts of that case, it was held that the statement made, which were false and which the petitioner did not believe to be true were primafacie sufficient for filing complaint u/[SECTION] of [ACT]. It was also held that effective and stern action is required to be taken for preventing evil of perjury and Courts should stop taking evasive recourse despite proof of such ORDER IN MONTREAUS RESORTS (P) LTD. VS. [ENTITY] ORS./DATED 11.3.2010 page no.
5 to 21 /k offence.
Reliance is next placed upon the case of [PRECEDENT], wherein it was held that purpose of inquiry u/[SECTION] was very limited and it is not to find out whether a person is guilty or not but only to find out whether it is expedient in the interest of justice or not.
Reliance is next placed upon the case of [PRECEDENT] wherein it was held that the concealment of refusal of stay in earlier suit and filing a fresh suit on the same facts by a party was intentional and deliberate criminal contempt.
Reliance is next placed upon the case of [PRECEDENT], wherein also it was held that first thing in such proceedings are, whether it is expedient in the interest of justice that the matter should be inquired and a complaint should be made and there is no requirement to mechanically issue notice to prospective accused.
Reliance is next placed upon the case of [PRECEDENT] that suppression of material fact and misrepresentation amounted to fraud, when the land was surrendered by the declarant, by suppressing the fact that the same ORDER IN MONTREAUS RESORTS (P) LTD. VS. [ENTITY] ORS./DATED 11.3.2010 page no.
6 to 21 /k had already been acquired under the [ACT].
Reliance is next placed upon the case of [PRECEDENT], wherein it was held that in proceedings u/[SECTION] [ACT], irrespective of the result of main case, the only question to be considered is whether primafacie case is made out and whether it is also expedient in the interest of justice to initiate action. It would be pertinent to mention here that in this very case it was held that all lies made here and there are not subject matters for the Court to take action.
Reliance is next placed upon the case of [PRECEDENT], wherein it was held that the lies made be viewed sternly and dealt with effectively as contumacious falsehoods by unscrupulous litigants have been eating into the vitals of our judicial system and ought to be put down firmly. Reliance is next placed upon the case of [PRECEDENT], wherein it was held that false affidavit sworn by witness in proceedings before Court would fall u/[SECTION] & [SECTION] of [ACT].
Reliance is next placed upon the case of [PRECEDENT], with which we shall deal below.
ORDER IN MONTREAUS RESORTS (P) LTD. VS. [ENTITY] ORS./DATED 11.3.2010 page no.
7 to 21 /k Reliance is next placed upon the case of [PRECEDENT], wherein it is held that an advocate, who dealt with the matter in judicial capacity earlier, should refrain from appearing in such matters and the Trial Courts have inherent and statutory power to intervene and inquire into any impropriety and to control the proceedings. Reliance is next placed upon the case of [PRECEDENT], wherein, the defects in routinely filed vakalatnamas were highlighted and it was emphasised to properly check and verify vakalatnamas. Reliance is next placed upon the case of [PRECEDENT], wherein it was held that an advocate, without vakalatnama executed by his client and duly accepted by the advocate and filed in Court, no agency is created. Reliance is next placed upon the case of [PRECEDENT], wherein it was held that an advocate without vakalatnama appearing for another advocate can do so only with the permission of Court and presenting memo of appearance.
Reliance is also placed by the applicant on the case of [PRECEDENT], which is not applicable to ORDER IN MONTREAUS RESORTS (P) LTD. VS. [ENTITY] ORS./DATED 11.3.2010 page no.
8 to 21 /k the facts of the present case.
5. There is no dispute about the law laid down in the abovementioned judgments, but every case has to be judged on the facts and circumstances of that case. [SECTION] of [ACT] provides that when any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in [SECTION] of [ACT], appearing to have been committed in or in relation to a proceeding in that Court or in respect of a document produced or given in evidence in a proceeding in that Court, such Court may initiate proceedings as prescribed therein. What is important is the opinion of Court that it is expedient in the interest of justice to proceed under this provision. This provision need not be resorted to in every case. Certain observations made by Hon'ble Supreme Court and certain Hon'ble High Courts in different case, would be important to note as mentioned below.
6. In the case of [PRECEDENT], facts were that in a divorce case filed by the husband against his wife, the wife filed an affidavit for claiming maintenance under [SECTION] of the [ACT] stating therein that she was not able to maintain herself and her minor daughters. Maintenance was allowed by the court but later on it was ORDER IN MONTREAUS RESORTS (P) LTD. VS. [ENTITY] ORS./DATED 11.3.2010 page no.
9 to 21 /k found that the wife was a teacher during that period. The husband filed an application under [SECTION] [ACT] against the wife.
Hon'ble Delhi High Court held that the provisions of [SECTION] are intended to provide safeguard against criminal prosecution on insufficient grounds filed against a party by his opponent motivated by a revengeful desire to harass the opponent. It is not the law that every false statement should attract the provisions of [SECTION] [ACT]. If the Court is to notice every falsehood that is sworn to by the parties in courts there would be very little time for courts for any serious work other than directing prosecution for perjury. The gravity of the false statement, the circumstances under which such statement is made, the object of making false statement and its tendency to impede and impair the normal flow of the course of Justice are matters for consideration. Considering the circumstances under which the wife made an affidavit the High Court held that it seems that the object of filing the application was not so much to vindicate the purity of the administration of justice but to punish husband. Once it is held that the motivation behind the application was to ORDER IN MONTREAUS RESORTS (P) LTD. VS. [ENTITY] ORS./DATED 11.3.2010 page no.
to /k gratify his feelings of revenge, then automatically a finding on the issue of expediency must be recorded against the husband. Judicial process should not be allowed to be used as an instrument of oppression and harassment.
7. In the case of AIR 2005 SUPREME COURT 2119 "Iqbal Singh Marwah v. Meenakshi Marwah" = 2005 AIR SCW [SECTION]9, a constitution bench of hon'ble SC observed as follows;
" 18. In view of the language used in [SECTION], [ACT] the Court is not bound to make a complaint regarding commission of an offence referred to in [SECTION], as the Section is conditioned by the words "Court is of opinion that it is expedient in the interest of justice". This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the Court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in [SECTION]. This expediency will normally be judged by the Court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or ORDER IN MONTREAUS RESORTS (P) LTD. VS. [ENTITY] ORS./DATED 11.3.2010 page no.
to /k impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in Court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the Court may not consider it expedient in the interest of justice to make a complaint. The broad view of clause (b)(ii), as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged document remedy less. Any interpretation which leads to a situation where a victim of a crime is rendered remedy less, has to be discarded."
"19. There is another consideration which has to be kept in mind. [SECTION], [ACT] contemplates holding of a preliminary enquiry. Normally, a direction for filing of a complaint is not made during the pendency of the proceeding before the Court and this is done at the stage when the proceeding ORDER IN MONTREAUS RESORTS (P) LTD. VS. [ENTITY] ORS./DATED 11.3.2010 page no.
to /k is concluded and the final judgment is rendered. [SECTION] provides for an appeal against an order directing filing of the complaint. The hearing and ultimate decision of the appeal is bound to take time. [SECTION] confers a discretion upon a Court trying the complaint to adjourn the hearing of the case if it is brought to its notice that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen. In view of these provisions, the complaint case may not proceed at all for decades specially in matters arising out of civil suits where decisions are challenged in successive appellate fora which are time consuming. It is also to be noticed that there is no provision of appeal against an order passed under [SECTION], whereby hearing of the case is adjourned until the decision of the appeal. These provisions show that, in reality, the procedure prescribed for filing a complaint by the Court is such that it may not fructify in the actual trial of the offender for an unusually long period. Delay in prosecution of a guilty person comes to his advantage as witnesses become reluctant to give evidence and the evidence gets lost. This important consideration dissuades us from accepting the broad interpretation sought to be ORDER IN MONTREAUS RESORTS (P) LTD. VS. [ENTITY] ORS./DATED 11.3.2010 page no.
to /k placed upon clause (b)(ii)."
"20. An enlarged interpretation to [SECTION], whereby the bar created by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in Court, is capable of great misuse. As pointed out in [ENTITY], after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution, either at the instance of a private party or the police until the Court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would be highly detrimental to the interest of society at large. [PRECEDENT]."
8. In [PRECEDENT]" it is held that, It is not in all cases when witnesses speak falsehood that action shall be initiated against him for perjury by invoking [SECTION] of [ACT] There must me prima facie satisfaction on the part of the Court that such a proceeding should be initiated "for the ORDER IN MONTREAUS RESORTS (P) LTD. VS. [ENTITY] ORS./DATED 11.3.2010 page no.
to /k interests of justice" and that there is prima facie evidence to come to the conclusion that false evidence has been tendered. In the absence of those conditions, the Court will not be justified in proceeding with the matter. Also, the gravity of the false statement, the circumstance under which such statement is made, the object of making such statement and its tendency to impede and impair normal flow of the course of justice are matters for consideration when the Court decides on the propriety of instituting a complaint for perjury. Thus, the power under [SECTION] of the Code should be used with care and due consideration. If the court is to notice every falsehood that is sworn to by parties in Courts, there would be very little for Courts for any serious work other than directing prosecution for perjury. (Paras 4, 9)
9. In [PRECEDENT]" it is observed that, Therefore, it is clear that prosecution can be initiated by resorting to [SECTION] of [ACT] only in cases where it is expedient in the interests of justice to prosecute the party and prima facie evidence is adduced in that behalf and the provisions of [SECTION] of [ACT] cannot be resorted to lightly on the mere allegations, or to vindicate personal vendetta. (Para 30) ORDER IN MONTREAUS RESORTS (P) LTD. VS. [ENTITY] ORS./DATED 11.3.2010 page no.
to /k
10. In [PRECEDENT]" it is held, "The underlying purpose of enacting [SECTION] seems to be to control the temptation on the part of the private parties considering themselves aggrieved by the offences mentioned in those sections to start criminal prosecutions on frivolous, vexatious or insufficient grounds inspired by a revengeful desire to harass or spite their opponents. These offences have been selected for the court's control because of their direct impact on the judicial process. It is the judicial process, in other words the administration of public justice, which is the direct and immediate object or victim of those offences and it is only by misleading the courts and thereby perverting the due course of law and justice that the ultimate object of harming the private party is designed to be realised. As the purity of the proceedings of the court is directly sullied by the crime, the Court is considered to be the only party entitled to consider the desirability of complaining against the guilty party. The private party designed ultimately to be injured through the offence against the administration of public justice is undoubtedly ORDER IN MONTREAUS RESORTS (P) LTD. VS. [ENTITY] ORS./DATED 11.3.2010 page no.
to /k entitled to move the court for persuading it to file the complaint. But such party is deprived of the general right recognized by [SECTION] [ACT] of the aggrieved parties directly initiating the criminal proceedings. The offences about which the court alone, to the exclusion of the aggrieved private parties, is clothed with the right to complain may, therefore, be appropriately considered to be only those offences committed by a party to a proceeding in that court, the commission of which has a reasonably close nexus with the proceedings in that Court so that it can, without embarking upon a completely independent and fresh inquiry, satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party. It, therefore, appears to us to be more appropriate to adopt the strict construction of confining the prohibition contained in [SECTION] only to those cases in which the offences specified therein were committed by a party to the proceeding in the character as such party."
11. [PRECEDENT] "[PRECEDENT]" it is held , " Every incorrect or false statement does not make it incumbent on the court to order prosecution. The court has to ORDER IN MONTREAUS RESORTS (P) LTD. VS. [ENTITY] ORS./DATED 11.3.2010 page no.
to /k exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency. The court orders prosecution in the larger interest of the administration of justice and not to gratify feelings of personal revenge or vindictiveness or to serve the ends of a private party. Two frequent prosecutions for such offences tend to defeat its very object. It is only in glaring cases of deliberate falsehood where conviction is highly likely, that the court should direct prosecution." (Para 11)
12. [PRECEDENT]" also it is held , "It is not any and every statement made by a witness that the court would wish to examine. If the court is to notice every falsehood that is sworn to by parties in courts there could be very little time for courts for any serious work other than directing prosecution for perjury. Again the edge of such weapon would become blunted by indiscriminate use. The gravity of the false statement, the circumstances under which such statement is made, the object of making such statement and its tendency to impede and impair the normal flow of the course of justice are matters for consideration ORDER IN MONTREAUS RESORTS (P) LTD. VS. [ENTITY] ORS./DATED 11.3.2010 page no.
to /k when the court decides on the propriety of instituting a complaint for perjury (vide [PRECEDENT])".
13. In the present case also, this Court has given careful consideration to the submission of the applicant, and the conduct of nonapplicant in filing the application for inspection and in obtaining certified copies as mentioned above. The false statement is not such a grave false statement, it does not tend to impede and impair the normal flow of the course of justice. It may also be mentioned that between the two parties involved in this case, various litigations are pending in various Courts, including the company law board, and the opposite party i.e. non applicant are allegedly claiming to be directors of the company and, on the other hand, the applicant/complainant claims that they were not directors although some of them were made additional directors of the company. Therefore, the dispute between the parties is that both sides are claiming to be genuine directors and in such circumstances, filing of the application of inspection as if it was made by the complainant company and obtaining certified copies thereof, does not justify the test of expediency to proceed against them. This Court does not find it expedient in the interest of justice to initiate proceedings of perjury u/[SECTION] [ACT] or any other ORDER IN MONTREAUS RESORTS (P) LTD. VS. [ENTITY] ORS./DATED 11.3.2010 page no.
to /k provision. If this Court is to run after every lie or untrue statement made, there would be very little time left for trying the main matters, more particularly when more than 4500 matters are pending in this Court and few more thousand matters are being received on transfer on day to day basis.
14.For the said reasons, the application u/[SECTION] [ACT] is dismissed and for the same reasons the application for initiating criminal contempt of Court proceedings is also dismissed.
15.The third application has been filed by the complainant, seeking fixation of three years timetable for the present trial, on which also applicant has been heard. Applicant claims fixation of three years timetable on the basis of a D.O. Letter no.586 594/DHC/Gazette/G10/DIS/2009 dated 17.4.2009 from the Registrar General, High Court of Delhi, New Delhi, to the District Judges, whereby such a direction has been given to Higher Judicial Service Courts, to fix time frame for each stage of trial and to reduce the average trial period. Although, the said communication pertains to the Higher Courts of ADJ/ASJ, but anyhow, no Court would have any reservation to dispose of the matter expeditely. But, the pendency in a Court is always an important factor. As mentioned above in this Court, there are more than 4500 cases pending and few thousand ORDER IN MONTREAUS RESORTS (P) LTD. VS. [ENTITY] ORS./DATED 11.3.2010 page no.
to /k more cases are expected to receive. Every endeavor is being made to dispose of the cases as expeditely as possible, but, this Court is dealing with warrant triable/summons triable complaint cases only, regarding special acts, in which first pre summoning evidence is to be recorded then pre charge evidence is to be recorded and thereafter, after charge evidence is also to be recorded. The trial of these cases do take more time than other cases, where evidence is recorded only once, whereas in the cases pending in this Court, evidence is recorded twice or thrice, depending upon the nature of cases. The present complaint case has been instituted in 2009. The accused have been summoned already after recording pre summoning evidence and the date for appearance for accused is shortly arriving on 16.3.2010. Every endeavor would be made to dispose of the matter as early as possible and no further order on the application for fixing time frame is required. Accordingly, the third application is also disposed of.
16.Accordingly, all the three applications are disposed of as above and main file be put up on the date already fixed.
ANNOUNCED IN OPEN COURT ON 11th MARCH, 2010.
( [ENTITY] ) ACMM(SPL.ACTS)/CENTRAL TIS HAZARI COURTS/DELHI ORDER IN MONTREAUS RESORTS (P) LTD. VS. [ENTITY] ORS./DATED 11.3.2010 page no.
to /k