1 Contempt Petition No.27/10 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL CONTEMPT PETITION NO.27 OF 2010 IN WRIT PETITION NO.523 OF 2010 Shri R. Subramanian, age 44 years, Manging ] Director of Subhiksha Trading Services ] Limited Office at Habib Complex, 2nd ] Floor No.5 ] Durgabai Deshmukh Road, R A ] Puram, Chennai – 600 028 ] ... Petitioner versus 1. Tushar Bhachandra Patel Aged ] about 38 years, Hindu, Indian ] Inhabitant, Resident of Mumbai ] Associate Vice President and ] Authorised Representative of ] Kotak Mahindra Bank Limited, a ] Banking Company within the ] meaning of the Banking ] Regulation Act, 1949 and ] registered under the Companies ] Act, 1956, carrying on the ] Business of banking and having ] its Registered Office at 36-38A, ] Nariman Bhavan, 227 Nariman ] Point, Mumbai 400 021. ] ] 2. State of Maharashtra ] ... Respondents. Mr.Mubin Solkar, with Ms.Nikita Ajwani a/w Mrs.Cynthia Pereira a/w Ms. Tahera Qureshi i/by Rajani Associates for the Petitioner. Mr. Nitin Thakkar, Senior Counsel a/w Mr.Burgess Colabawalla a/w Ms.Revati Mohite-Dere and Mr.Jatin P Shah for Respondent No.1. Mr. D P Adsule, APP for Respondent No.2-State. 2 Contempt Petition No.27/10 CORAM : NARESH H PATIL & K U CHANDIWAL, JJ DATE : 11th AUGUST 2011 JUDGMENT : [PER NARESH H PATIL, J] 1 The petitioner prays this Court to take cognizance of the criminal contempt on its own motion on the basis of the information furnished in the present Petition. 2 Earlier Division Bench (Coram A M Khanwilkar & A P Bhangale, JJ) by an order dated 8th December 2010 issued show cause notice against Respondent No.1 as to why Respondent No.1 should not be proceeded for having made incorrect and misleading statement before the trial court in the reply dated 15th October 2010 filed before the trial Court at page-114 of the paper-book. 3 By an order dated 21st February 2011 the Division Bench of this Court (Coram : A M Khanwilkar and A R Joshi, JJ), directed that this matter would have to proceed on merits being suo moto contempt action initiated by this Court in terms of order dated 8th December 2010. 4 The petitioner herein contends that Respondent No.1 herein is the Associate Vice President and Authorised Representative of Kotak 3 Contempt Petition No.27/10 Mahindra Bank Limited. Respondent No.1, being an authorised representative, filed a complaint under section 138 of the Negotiable Instruments Act, 1881 being CC No.1378/SS/2009, pending on the file of the learned Metropolitan Magistrate’s 23rd Court, at Esplanade, Mumbai (Trial Court). 5 The Petitioner had filed a Petition before this Court in its writ jurisdiction under Article 226 of the Constitution of India under section 482 of the Criminal Procedure Code being Criminal Writ Petition No.523 of 2010 seeking inter-alia quashing of the order passed by the trial court on 20/7/2009 issuing process against the Petitioner and other accused for offences under section 138 r/w 141 of the Negotiable Instruments Act, 1881 and quashing of the criminal complaint and proceedings pending before the trial court. 6 Learned Single Judge of this Court by an order dated 15th February 2010 passed following order :- “Issue notice to the respondent returnable in two weeks. The learned counsel waives service for respondent no.1. The learned APP waives service for respondent no.2. Ad-interim relief in terms of prayer clause (b). 4 Contempt Petition No.27/10 7 The writ petition was finally heard and dismissed by the learned Single Judge. It is the Petitioner’s contention that copy of final order was made available by the Registry to the Petitioner on 1st September 2010 wherein it was endorsed that the order was reserved on 12th August 2010. The date of pronouncement of order was left blank. The Petitioner preferred Special Leave Petition against the judgment passed by the learned single judge. It is contended that the Petitioner’s advocates in Supreme Court mentioned the date of the final order as 1st September 2010 being the date on which the same was made available by the High Court Registry. 8 It is the contention of the Petitioner that Apex Court stayed the order of the learned single judge in Special Leave Petition No.7518 of 2010 on 9th September 2010. Subsequent to the order of stay by the Apex Court, Respondent No.1 filed an application seeking vacating the stay granted by the Supreme Court. The Petitioner avers in this Petition as :- “The Interim Application of the Respondent for dismissal of SLP states, inter alia, as under : “As the said action of the Petitioner has put the Respondent at the losing end, since in spite of having filed a caveat before this 5 Contempt Petition No.27/10 Hon’ble Court the Respondent lost the opportunity of defending itself and an ex- parte stay was obtained by the petitioner resulting in the stay of proceedings before the Trial Court, thus causing irreparable loss to Respondent No.1” “The continuation of this stay would thus prevent Respondent No.1 from proceeding further in a case where huge amount of Public Money is involved” It is the contention of the Petitioner that as final order of the High Court was stayed by the Apex Court on 9th September 2010, the vacation of the stay granted under the interim order no longer operated and it was in this sequence of facts that the Trial Court proceedings were stayed by the Apex Court. 9 The Petitioner states that Respondent No.1 made false averments before the trial Court contrary to its own stand before the Apex Court and procured orders from the trial court on 16th November 2010. It is submitted that false averments in affidavits and proceedings interfere with the administration of justice and prejudices due course of any judicial proceeding and are to be held as criminal contempt. According to the Petitioner, criminal contempt arises due to making of false statements before the trial Court in respect of order dated 9th September 2010 passed by the Supreme Court by the Respondent No.1. 6 Contempt Petition No.27/10 10 Respondent No.1 filed affidavit in reply. In para 2 of the reply Respondent No.1 stated as under :- 2) At the outset, I say and submit that I hold this Hon’ble Court and all other courts of the land, in great esteem and respect and had/have at no stage any intention to either disobey any orders of this Hon’ble Court or any other Court or to not comply with the same or to contravene the same in any manner. However, if for any reason this Hon’ble Court feels that any action of mine is not in compliance with any of the orders passed by this Hon’ble Court or any other Court is in contravention of the same, I hereby tender my unconditional apology for any such unintentional or inadvertent action.” Respondent No.1 contends that in the order dated 9th September 2010 passed by the Apex Court, only operative order dated 1st September 2010 was stayed [there was no such order dated 1st September 2010] and the Apex Court has not specifically stayed the proceedings before the trial Court. It is further stated that the Petitioner is taking undue advantage of the statement made which was made purely due to inadvertence without any intention to mislead or misguide the Apex Court or any other Court. It is further stated that the trial Court after perusing the order dated 9th September 2010 passed by the Apex Court was pleased to hold that the Apex Court had not stayed the proceedings before the trial Court and was pleased to direct Subhiksha and/or the Petitioner to obtain necessary orders from the Apex Court. 7 Contempt Petition No.27/10 11 The Petitioner filed affidavit in rejoinder of Shri R Subramanian – the Managing Director of Subhiksha Trading Services Limited. Respondent No.1 filed additional affidavit which is dated 10th March 2011. Respondent No.1 also filed affidavit in sur-rejoinder dated 10th March 2011. The Petitioner filed rejoinder to the additional affidavit dated 4th June 2011. 12 In Paras 7 and 8 of the additional affidavit, Respondent No.1 states as under :- “7 However, in the said Cr. M.P. No.20990 of 2010, a statement was made that the ex-parte stay obtained by the Petitioner resulted in stay of proceedings before the trial Court thus causing irreparable loss to KMBL. I say that the said statement was in fact made purely due to inadvertence and oversight and what was intended to be conveyed was that the order dated 9th September, 2010 passed by the Hon’ble Supreme Court in said SLP stayed the order of the High Court of Bombay. I say that a similar inadvertent statement was also made in paragraph no.11 of the Counter Affidavit filed by me on behalf of KMBL dated 21st October 2010 to the main SLP being SLP No.7518 of 2010. I say that both the said statements which were made inadvertently were corrected subsequently by filing Applications before the Hon’ble Supreme Court of India as detailed herein below. 8 To correct/amend the statements made purely due to inadvertence and oversight as aforesaid, KMBL filed 2 applications being CRMP No.3401 of 2011 and 3402 of 2011 before the Hon’ble Supreme Court of 8 Contempt Petition No.27/10 India to correct/amend the statements in the counter affidavit and in Cr.M.P. No.20990 of 2010 respectively.” 13 Respondent No.1 filed an application before the Apex Court in SLP to vacate the stay order. Relevant portion of Para 1 of the said application is relevant for the purpose of our consideration in respect of the contention raised in the said application. The same is reproduced as under :- “It is submitted that the order dated 9.9.2010 has been obtained by the Petitioners by representing that the impugned order is dated 1st September 2010 whereas in reality there is no order passed on that date. The said order has been obtained behind the back of Respondent No.1 by referring to an order dated 1st September 2010 that has never been passed by the Hon’ble Court, Bombay only with a view to bypass and circumvent the caveat filed by Respondent No.1 in this Hon’ble Court against the dismissal of the Criminal Writ Petition No.523 of 2010 filed in the Hon’ble High Court, Bombay, vide order dated 12th August 2010. The Petitioners have knowingly made false statements to obtain the interim order of stay. This Hon’ble Court has time and again held that any party who approaches a Court with unclean hands and misrepresents facts with a view to mislead the Court is not entitled for any reliefs.” Relevant portion in para 2 of the said application is reproduced as under :- “As the said action of the Petitioner has put the Respondent at the losing end, since in spite of having filed a caveat before this Hon’ble Court the Respondent lost the opportunity of defending itself and an exparte 9 Contempt Petition No.27/10 stay was obtained by the Petitioner resulting in the stay of proceedings before the trial court, thus causing irreparable loss to Respondent No.1. It is submitted that the Petitioner should be put to strict proof of the same. Relevant portion in para 7 of the said application is reproduced as under :- Since they are being prevented from proceeding with the said case which is substantially part heard in nature as Affidavit of Evidence of Respondent No.1’s witness has been filed and the matter is pending for the Cross examination. The continuation of this stay would thus prevent Respondent No.1 from proceedings further in a case where huge amount of public money is involved. 14 The cause of action for the Petitioner to file present petition is the reply affidavit filed on behalf of Respondent No.1 before the trial Court on 15th October 2010. Paras 5 and 6 are material for our purposes which are as under :- “5 That Hon’ble Supreme Court had stayed some order allegedly dated 01.09.2010 as represented by the Accused before Hon’ble Supreme Court. That there is no order which was ever passed by Hon’ble High Court, Bombay which was of dated 01.09.2010. It is respectfully submitted that the Accused have deliberately not placed the true and correct facts before this Hon’ble Supreme Court as well as before this Hon’ble Court and the said interim order has been obtained by them by representing that the impugned order is allegedly dated 1st September 2010 whereas in reality there is no such order passed on that date which is sought to be challenged before Hon’ble Supreme Court. 10 Contempt Petition No.27/10 6 Even otherwise there is no order as such thereby debarring this Hon’ble Court to proceed with the matter as per law.” Learned counsel Shri Mubin Solkar submitted that Respondent No.1 had adopted stand in the Apex Court knowing fully well that the order of the Apex Court amounts to staying of the proceedings before the trial Court. It is reflected from the pleadings of the application of Respondent No.1 that while applications were filed in the proceedings in SLP, in spite of this, Respondent No.1 deliberately and intentionally made false statement misleading the trial court. The learned counsel submitted that the Petitioner received copy of the judgment delivered by the learned single judge on 1st September 2010 and that date was mentioned in the proceedings of SLP. The allegations that though Respondent No.1 had filed caveat, copy of SLP was not served on them and the petition was circulated by mentioning wrong date of order are totally false and baseless. The learned counsel submitted that Respondent No.1 committed contempt of the trial court and also of the Apex Court. 15 Learned senior counsel appearing for Respondent No.1 Shri Thakkar submitted that the contempt petition is not maintainable for want of non-compliance of mandatory provisions of law/rules. It is submitted that though caveat was filed by Respondent No.1 in the Apex Court, but to avoid service of petition on caveator, the Petitioner deliberately mentioned 11 Contempt Petition No.27/10 wrong date of judgment/order passed by the learned Single Judge of High Court of Bombay as impugned order in the SLP. The learned senior counsel submitted that two applications filed by Respondent No.1, being Cr.MP Nos.3401/10 and 3402/10 before the Apex Court to correct/amend the statements in the counter affidavit and Cr.M.P. 20990/10, were allowed by the Apex Court on 11th February 2011. It is submitted that even trial Court was of the view that the proceedings were not stayed by the Apex Court, and what was stayed was the order of the High Court and, in the light of confusion created, Respondent No.1 had filed reply and made averments which were bonafide in nature. There was no attempt to make false statement to mislead the trial Court by Respondent No.1. It is submitted that the Petitioner wants to protract the trial and therefore they are resorting such proceedings. The learned senior counsel drew out attention to the applications, orders which were placed on record by the parties. 16 The learned senior counsel for Respondent No.1 Shri Thakkar submitted that under the provisions of Section 15(2) of the Contempt of Courts Act, 1971, the High Court would take action on a reference made to it by the subordinate court or on a motion made by the Advocate General. In support of his submission, the learned senior counsel placed reliance on the judgments this Court reported in 2009(1) Bom.C R 815 in the case of Antonio Sequeira Coutinho Pareira v/s. Prakash Fadte and ors and, 12 Contempt Petition No.27/10 2006 (6) Bom. C R 845 in the matter of Gopal L Raheja and anr. v/s. Vijay B Raheja and ors. 17 We have perused the provisions of Contempt of Courts Act and the relevant provisions Contempt of Courts (Bombay High Court) Rules 1994. Issue of maintainability raised by the learned senior counsel for Respondent No.1 is already settled in case of Daroga Singh and others v/s. B K Pandey reported in (2004) 5 SCC 26 where the Apex Court referred to the judgment in the case of S K Sarkar v Vinay Chandra Misra reported in (1981) 1 SCC 436 wherein the Apex Court observed :- 18. A comparison between the two sub-sections would show that whereas in sub-section (1) one of the three alternative modes for taking cognizance, mentioned is "on its own motion", no such mode is expressly provided in sub-section (2). The only two modes of taking cognizance by the High Court mentioned in sub- section (2) are : (i) on a reference made to it by a subordinate court; or (ii) on a motion made by the Advocate General, or in relation to a union territory by the notified Law Officer. Does the omission in Section 15(2) of the mode of taking suo moto cognizance indicate a legislative intention to debar the High Court from taking cognizance in that mode of any criminal contempt of a subordinate court ? If this question is answered in the affirmative, then, such a construction of sub-section (2) will be inconsistent with Section 10 which makes the powers of the High court to punish for contempt of a subordinate court, coextensive and congruent with its power to punish for its own contempt not only in regard to quantum or prerequisites for punishment, but also in the matter of procedure and practice. Such a construction which will bring Section 15(2) in conflict with Section 10, has to be avoided, and the other interpretation which will be 13 Contempt Petition No.27/10 in harmony with Section 10 is to be accepted. Harmoniously construed, sub-section (2) of Section 15 does not deprive the High Court of the power of taking cognizance of criminal contempt of a subordinate court, on its own motion, also. If the intention of the legislature was to take away the power of the High Court to take suo moto cognizance of such contempt, there was no difficulty in saying so in unequivocal language, or by wording the sub-section in a negative form. We have, therefore, no hesitation in holding in agreement with the High Court, that sub-section (2) of Section 15, properly construed, does not restrict the power of the High Court to take cognizance of and punish contempt of a subordinate court, on its own motion." 18 We have perused the record, judgments cited before us and considered the submissions of the learned counsel for the parties. We hold that the present contempt petition is maintainable. 19 It is a matter of record that the Petitioner had filed SLP against the order of the judgment of the learned single judge of the High Court. In the SLP the date of the impugned order of the High Court was mentioned as 1st September 2010 by the Petitioner. That date, according to the Petitioner is the date on which copy of judgment was received by the Petitioner. From the record, we have noticed that the learned single Judge (Coram : V M Kanade) while disposing of the Criminal Writ Petition No.523 of 2010 passed following order :- 14 Contempt Petition No.27/10 “1. Heard the learned Senior Counsel appearing on behalf of the Petitioners and the Respondents. 2. For the reasons separately recorded, the petition is dismissed. Interim order stands vacated. 3. Trial is expedited.” An application came to be filed before the learned single judge for speaking to the minutes in respect of the order passed on 12th August 2010. The learned single judge clarified that there was no question of reserving order on 12th August 2010 as it was already pronounced on that date. The order was accordingly modified. 20 The order dated 9th September 2010 passed by the Apex Court on the SLP filed by the Petitioner reads as under :- “Taken on board. Issue notice. Until further orders, the operation of the impugned judgment and final order dated 01.09.2010 passed by the High Court of Bombay in CRLWP No.523/2010 shall remain stayed. Tag with Special Leave Petition (Crl.) No.6708/2010.” 21 It is a matter of record that initially Respondent No.1 had averred before the Apex Court that the continuation of the stay would prevent Respondent No.1 from proceeding further in a case where huge amount of Public Money (Rs.Thirty Five Crores) is involved. Before the 15 Contempt Petition No.27/10 learned trial Court Respondent No.1 contended on 15/10/2010 that there was no order as such debarring the Court to proceed with the matter as per law and the Apex Court had stayed the said order allegedly dated 01/09/2010. 22 We have gone through the pleadings and the relevant orders passed by the court. Strictly speaking, Respondent No.1/Contemnor should have maintained the same stand in respect of the order passed by the Apex Court while making averments before the trial Court. But considering the matter in its entirety, the explanation tendered by the contemnor can not be rejected outright. We do not find that the averments made by Respondent No.1/contemnor before trial Court were deliberately made with an intention to mislead the Court. In the light of the record and the reply filed by Respondent No.1/contemnor we do not find that Respondent No.1/contemnor committed criminal contempt of trial court. We are of the view that this is not a fit case where Respondent No.1/Contemnor should be punished for committing criminal contempt of this Court. Respondent NO.1/Contemnor had tendered unconditional apology to this Court at the first instance. Considering the facts and circumstances of the case and the submissions advanced, we discharge the notice of contempt issued against Respondent No.1/contemnor and dispose of the contempt petition. (K U CHANDIWAL, J.) (NARESH H PATIL, J.)