1 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. NOTICE OF MOTION NO. 462 OF 2010 IN CHAMBER SUMMONS NO. 727 OF 2009 IN APPEAL NO. 166 OF 2009 IN ARBITRATION PETITION NO. 374 OF 2004 Maharashtra State Electricity Distribution Company and Anr .. Appellant Vs DSL Enterprises Pvt Ltd and Ors .. Respondents Prashant Chavan, Chandra Prakash, Rahul Sinha, Ms. Amrita Narayan i/b Khare Legal Chambers for the Appellant Sr. Counsel R.A. Dada & Shrihari Aney, Sr. Counsel a/w Cheerag Balsara & Mukul Tally i/b S. Mahamedbhai & Co for Respondent No. 2 CORAM : B.H. MARLAPALLE & SMT. V.K. TAHILRAMANI, JJ. DATE : 3rd March, 2010 P.C.: 1. This Motion is taken out by the original Respondent in Appeal No. 166 of 2009 praying for issuance of notice of perjury against Mr. R.G. Sheikh, presently Chief Engineer (Distribution) and Mr. S.T. Valekar, presently Chief Engineer, Nasik Zone and formerly Chief Engineer (Distribution) and for initiating prosecution against these 13a.nma462-10 2 persons in terms of Section 195 read with Section 340 of the Code of Criminal Procedure. 2. It is submitted that the affidavit filed in support of Chamber Summons No. 727 of 2009 contained false statements and the affiant deliberatly sought to mislead the Court and he did not act in good faith. Our attention was also invited to the affidavit sworn on 29.06.2009 by Mr. R.G. Sheikh and submitted before the learned single Judge and also the affidavit of Mr. S.T. Valekar of 22.04.2009. It was submitted by the learned senior counsel for the Applicant that these statements prima facie make out a case of an offence within the meaning of Section 191 of I.P.C and therefore, there is a case made out to initiate an appropriate proceeding for their prosecution. 3. We had directed Mr. R.G. Sheikh, Mr. S.T. Valekar and Mr. Dhande to remain present before us. We are informed that Mr. Valekar is posted on deputation and presently not in service with the Appellant and Mr. Shaikh and Mr. Dhande remained present before us. In fact, in this Motion, no action was sought against Mr. Dhande but during the course of hearing, it was noticed that the affidavit which was prepared to be sworn by Mr. Valekar was 13a.nma462-10 3 subsequently corrected half-heartedly and sworn by Mr. Dhande and that is why, we directed Mr. Dhande also to remain present before us 4. Mr. Sheikh as well as Mr. Dhande have submitted their affidavits and have tendered their apology for false statements. They have clarified that these statements were not deliberate and were made on the basis of the information they had received from their counsel who was present before the learned Sessions Judge all along. The present Applicant has submitted his affidavit in rejoinder and urged before us that a serious view is required to be taken regarding the false, irresponsible and contrary to the records, statements having been made in the affidavits filed by Mr. Sheikh and Mr. Dhande. 5. Mr. Sheikh had filed an affidavit in support of the Motion taken out before the learned single Judge for review / clarification of the order under challenge in the Appeal and the Motion has been decided. Mr. Dhande had verified the affidavit in support of the Chamber Summons which has been also disposed off by us. These statements made in the affidavits are not, in any way, likely to affect the case of the respective parties in the pending Appeal which as noted in our order passed on 03.03.2010 shall be decided on the 13a.nma462-10 4 basis of submissions made and available on record before the learned Single Judge, on remand. It is, therefore clear that these statements are not going to cause any prejudice to the present Applicant as that would not be taken into consideration while decideing the Appeal. 6. Mr. Aney, the learned senior counsel invited out attention to Section 191 of I.P.C and submitted that the officers are guilty of giving false evidence before this Court. While affirming the affidavit, it was necessary for these officers to act in good faith which means that they were required to act with due care and attention. Affidavit is sworn on the basis of personal knowledge or the information received from the counsel which the affiant believes to be correct. Both these officers are public servants occupying responsbile posts. In our opinion, they failed to act with due care and attention while affirming the affidavits referred hereinabove. However, they have tendered unconditional apology before us and we are satisfied that the apology so submitted deserves to be accepted and it is submitted with bonafides. We, at the same time, observe that these officers while discharging their duties shall act with due care and attention and shall not indulge in 13a.nma462-10 5 any act that will cause any adverse opinion personally against them while discharging their duites and more particularly while verifying any affidavit or written stattement or reply before the Court. 7. We, therefore, let off the officers on accepting their unconditional apology and the Motion is accordingly disposed off. [SMT. V.K. TAHILRAMANI, J.] [B.H. MARLAPALLE, J.] 13a.nma462-10