1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Criminal Application No.3731 of 2006 [J. Kumar Vs. State of Mah. & another] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. Deoki Nandan Loharuka son of Late Shri Ramjee Das, Applicant [original respondent no.2] in-person. Mr. V.A. Thakre, APP for respondent no.1. ----- CORAM : A.H. JOSHI, J. DATE : 11th September, 2008. 1. This is an application by the Original Respondent No.2 in Criminal Application No. 114 of 2006, who is referred hereinafter as “Applicant.” 2. Heard the Applicant – party-in-person at length. 3. Present application is titled as:- “APPLICATION ON BEHALF OF THE RESP. NO.2, SPEAKING TO MINUTES FOR CORRECTION IN ORDER DTD. 6/09/06 & 17/10/2006.” 4. It is seen from order dated 6th 2 September, 2006 passed in Criminal Application No. 114 of 2006 that the Respondent No.2 – present applicant was present, and was heard when said case was decided [Coram : R.C. Chavan, J.]. 5. It is further seen that Criminal Application No. 3148 of 2006 was filed by the Respondent No.2 – present applicant in Criminal Application No. 114 of 2006 [decided]. This application was listed before this Court [Coram:R.C. Chavan, J.] on 17th October, 2006. This Court had noted that the respondent was not present. This Court then perused the application and by order dated 17th October, 2006, directed certain corrections to be carried out in the original judgment dated 6th September, 2006. 6. Present Application No. 3731 of 2006 is for Speaking to Minutes of both the orders dated 6th September, 2006 passed in Criminal Application No.114 of 2006 and 17th October, 2006 passed in Criminal Application No. 3148 of 2006. 7. During oral submission, applicant urges that by correction, he means total review and recalling of this Court's order dated 6th September, 2006 and dismissal of Criminal Application No. 114 of 2006. He also means that this Court has to grant him compensation for undue damage suffered by him due to criminal 3 acts of accused who are discharged and their employer – WCL. Grounds for Speaking to Minutes put forward by applicant in brief. 8. According to the applicant :- [a] He was unable to attend the Court on 17th October, 2006, and has a justification for absence. [b] Serious acts of misrepresentation and fraud were committed by accused who was applicant before this Court and his Advocate. In the words of applicant, the averment in para 3 reads as follows:- “3. That the applicant returned Nagpur on 17th and got information that matter has been decided Ex.Party relying on the misleading reply submitted but without date by Ramesh Darda taken on record in para 2 of order dtd. 17th Oct. Whole reply is meant for fraud and confusion created earlier also before this Hon'ble Court for obtaining favorable orders and wherever he found himself reply-less on fraud committed and false statement made on behalf of all the four accused, very cunningly he submitted either not sought or not required, to which this Hon'ble Court overlooked.” [c] The background in which review and 4 correction of order is permissible when the order passed by the Court is impelled by fraud. [Paras 4 and 5 of the application]. 9. In the midst of oral submissions of the party-in-person, this Court had pointed out to present applicant that any applicant has to demonstrate an error of facts apparent on the face of record, on which it would be possible and permissible in law for this Court to entertain application for review. In reply, the applicant has reiterated all that he had alleged in Criminal Application Nos. 3148 of 2006 and 3731 of 2006, and reiterated the point of fraud. 10. The Applicant has then urged that the criminal intention and involvement of accused person, which was accepted in the form of “some role”, was the matter due to which criminal liability of the accused was rather absolute, but this aspect has not been correctly understood by this Court due to misleading statements and fraudulent acts of the Advocate of the applicant in Criminal Application No. 114 of 2006. 11. In addition, the applicant – party-in- person urged that the documents tendered by him before the Court, which are described in paragraph no.4, are not at all read properly or 5 understood and hence are not properly considered by this Court while deciding Criminal Application No. 114 of 2006. 12. This Court queried the applicant to give him an opportunity to demonstrate specific acts of fraud. 13. Applicant's reply to queries by Court was that the accused practised fraud all throughout, viz. :- [a] At the time of assigning the contract to the applicant. [b] Asking him to renew Bank guarantee. [c] Encashing the Bank Guarantee. [d] Suppressing the need of clearance from the Forest Department. [e] Suppressing the fact of not having in possession of the clearance from the Forest Department, and Empowered Committee. [f] In absence thereof allotting contract to him. 14. According to the applicant, fraudulent pleadings were done while filing Revision Application against issue of process etc. Status, designations etc., of accused were deliberately left either incomplete or erroneous, and the Advocate of the accused has made false and misleading statements and submissions. 6 15. According to the Applicant, suppression of all these facts constitutes the acts of fraud, and suppression of all this material from this Court, on the top of it, is a fraud committed by the accused persons and practised on this Court. 16. The applicant has placed reliance in support of his submissions, on various judgments referred to by him in paragraph 5 of the application. 17. On perusal of Judgment of this Court dated 6th September, 2006 delivered in Criminal Application No. 114 of 2006, it is seen that after giving consideration to submissions of the Respondent No.2, i.e., present applicant, this Court has concluded in paras 5,6 and 7 that:- [a] Offence, as defined under Section 405 of Indian Penal Code, is not spelt out from the complaint. [b] Section 409 of Indian Penal Code needs breach of trust by a Public Servant, which is not seen, as no domain over the property and misappropriation thereof by Public Servant is shown. [c] If the applicant [in Criminal Application No. 114/06] refers to bank guarantee given by him as 7 subject-matter of breach of trust, as it was encashed by the Western Coalfields Limited, it is not something which the accused could be said to have done per se dishonestly or in violation of any provision of law. [d] If the complainant was aggrieved about the breach of contract between him and the Western Coalfields Limited, his remedy was by way of appropriate civil action or if the contract provided, to arbitration. [e] There was no element of criminality or dishonest intention on the part of officer of WCL in dealing with the matter of tender. 18. If this Court finds, which is so held in Judgment/order dated 6th September, 2006, that “there was no entrustment to the WCL,” “WCL officers were not Public Servants,” and there is no “breach of trust”, are all the matters of findings and conclusions drawn by this Court. 19. If this Court's judgment is wrong due to error apparent on the face or fraud, it was possible for the applicant to demonstrate those, which is not done. 8 20. If respondent's submissions are to be considered to mean that the Judgment of this Court is erroneous, wrong or contrary to law, only inference to be drawn about applicant's grievance is that this Court has erred in its “judgment.” 21. This Court has to record that erroneous judgment is not a ground available for review or correction by speaking to minutes. 22. Any party, who is aggrieved by conclusions and judgment of this Court, has to make a grievance to the higher forum. The mechanism of review and/or speaking to minutes is not the course available to remedy such grievance. 23. The applicant seems to be one who has suffered, apparently due to various matters which he regards as matters of suppression which would have vitiated the invitation to offer of tender made by WCL. Depending on what he may plead, conduct of WCL and its officers, if shown, even may amount to procurement of loss to contractor due to suppressions etc. Had the respondent taken up recourse to remedy in civil law, by this time, his action could have reached at least end of first round of 9 litigation on merit. Prima facie, there appears to be in-built limitations for describing the conduct of accused to be breach of trust, and a criminal action to entail award of compensation as a restitutive measure. 24. Had the applicant not been unfortunate enough to have contested his litigation in absence of a legal advice, he may have found out some proper legal submissions as noted by this Court [Coram : R.C. Chavan, J.] while deciding earlier applications. For reasons which may be good and valid, the applicant is distanced from legal advice and assistance, and is seen labouring far way from his real remedy seeking compensation and restitution. 25. This Court is not at pains for the time lost, but certainly has to feel pity that the applicant does not get either satisfaction of a proper representation, or any concrete relief. He is unable to appreciate the limits of jurisdiction of a Court of Criminal Law and this Court exercising superintendence thereon, and on the top of it while sitting in an application for Speaking to Minutes or for review, and has spent two years with no gains. 26. Only option, in the light of above discussion, is to reject the Criminal 10 Application No.3731 of 2006, which is accordingly rejected. Judge |Hedau|