Case: National Fertilizers Ltd Vs. Tuncay Alankus &amp; Another

June 1, 2006 when the Swiss Supreme Court dismissed the petitioner’s appeal and the petitioner was able to obtain the next attachment order only on December 15, 2006. There was, thus, a period of slightly over six months when there was no attachment order in respect of the account and according to the bank’s statement, the amount was withdrawn on June 21, 2006 (i.e. , twenty days after the attachment order was lifted) and the account was closed on July 25, 2006. It is, thus, clear that on September 4, 2006 when this Court passed the order prohibiting respondent No.1 from withdrawing any money from the account there was actually no money in the account. That being the position, there could be no question of committing any violation of this Court’s order by respondent No.1.37. Mr. Banerjee referred to the many affidavits filed by respondent No. 1 and submitted that in those affidavits he has been taking inconsistent stands. It is true that the respondent has filed as many as eight affidavits and in all those affidavits his position does not appear to be completely consistent. But, it must be recalled that as far back as in September, 2006 and long before this contempt proceeding commenced, the respondent had instructed his counsel to submit before this Court, that he was not permitted to leave Delhi for the past ten years and since he was not getting any response from the Swiss banks, he was not aware of the state of his affairs in Switzerland and was, therefore, unable to give the undertaking as asked for by this Court. Moreover, any inconsistencies in the stand of the respondent before this Court coupled with the ambiguities in the communications from Pictet may give rise to a suspicion of wrong doing. But without anything else we find it very difficult to hold the respondent guilty of contempt of court on the definite charge that he withdrew a very large amount from his account in Pictet in violation of the orders of this Court. 38. In Sahdeo alias Sahdeo Singh v. State of Uttar Pradesh and others [(2010) 3 SCC 705] , this Court after referring to a number of earlier decisions, in paragraph 19 of the judgment, observed as under:- “In S. Abdul Karim v. M.K. Prakash, Chhotu Ram v. Urvashi Gulati, Anil Ratan Sarkar v. Hirak Ghosh, Daroga Singh v. B.K. Pandey and All India Anna Dravida Munnetra Kazhagam v. L.K. Tripathi, this Court held that burden and standard of proof in contempt proceedings being quasi-criminal in nature, is the standard of proof required in criminal proceedings, for the reason that contempt proceedings are quasi criminal in nature.” 39. In Chhotu Ram v. Urvashi Gulati and another [(2001) 7 SCC 530] , this Court in paragraph 2 and 3 of the judgment held as under:- “2. As regards the burden and standard of proof, the common legal phraseology “he who asserts must prove” has its due application in the matter of proof of the allegations said to be constituting the act of contempt. As regards the “standard of proof”, be it noted that a proceeding under the extraordinary jurisdiction of the court in terms of the provisions of the Contempt of Courts Act is quasi- criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond all reasonable doubt.3. Lord Denning (in Bramblevale Ltd., Re) lends concurrence to the aforesaid and the same reads as below: (All ER pp. 1063H-1064 C).“A contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be some further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him. But there must be some other evidence…. Where there are two equally consistent possibilities open to the court, it is not right to hold that the offence is proved beyond reasonable doubt.” 40. Mr. Banerjee submitted that a charge of contempt may also be established on preponderance of circumstances and in support of the submission he relied upon a decision of this Court in Rajendra Sail v. M.P. High Court Bar Association and others [(2005) 6 SCC 109 at paragraph 45]. 41. We have gone through the decision relied upon by Mr. Banerjee and we find that in Rajendra Sail, the Court held the contemnor guilty on the basis of “preponderant circumstances”. In other words, all the circumstances taken together led to the unimpeachable finding of the contemnor’s guilt. But that is not to say that in Rajendra Sail this Court relaxed or diluted the standard or degree of proof to establish the guilt of contempt.42. In the case in hand on taking into account all the circumstances as discussed above, we are of the view that it would not be wholly reasonable to hold that the respondent withdrew large amounts from his account with Pictet in violation of this Court’s orders.43. For the reasons discussed above, we hold that the respondent cannot be held guilty of contempt.44. Coming back to the order, dated April 1, 2010 by which this Court held that the respondent had withdrawn money from his account with Pictet by flouting the orders of this Court, it is to be noted that that order is founded on the premise that the respondent had not denied the allegation made by the petitioner against him. It is, however, to be noted that the respondent in his reply to the contempt petition filed on March 3, 2010 had stated in paragraph 2 (XIV) as under: “The Respondent takes liberty for reiterating that he has not withdrawn any amount in spite of (sic.) the order passed by this Hon’ble Court.”

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]35. In the letter of Pictet dated January 8, 2007, a copy of which is enclosed as Annexure P15 (collectively) thename is given asfurther, the letter does not state that on that date account No. 91925 in the name Alankus was alive and was bearing some amount. Moreover, the bank is not a party to the present proceedings and, therefore, we would not like to make any comment on the conduct of the bank. But on the materials produced before us, it is very difficult to hold the respondent guilty of contempt and to punish him for committing contempt of court.36. From the facts stated above, it is clear that the attachment against theaccount was lifted on June 1, 2006 when the Swiss Supreme Court dismissed theappeal and the petitioner was able to obtain the next attachment order only on December 15, 2006. There was, thus, a period of slightly over six months when there was no attachment order in respect of the account and according to thestatement, the amount was withdrawn on June 21, 2006 (i.e. , twenty days after the attachment order was lifted) and the account was closed on July 25, 2006. It is, thus, clear that on September 4, 2006 when this Court passed the order prohibiting respondent No.1 from withdrawing any money from the account there was actually no money in the account. That being the position, there could be no question of committing any violation of thisorder by respondent No.1.37. Mr. Banerjee referred to the many affidavits filed by respondent No. 1 and submitted that in those affidavits he has been taking inconsistent stands. It is true that the respondent has filed as many as eight affidavits and in all those affidavits his position does not appear to be completely consistent. But, it must be recalled that as far back as in September, 2006 and long before this contempt proceeding commenced, the respondent had instructed his counsel to submit before this Court, that he was not permitted to leave Delhi for the past ten years and since he was not getting any response from the Swiss banks, he was not aware of the state of his affairs in Switzerland and was, therefore, unable to give the undertaking as asked for by this Court. Moreover, any inconsistencies in the stand of the respondent before this Court coupled with the ambiguities in the communications from Pictet may give rise to a suspicion of wrong doing. But without anything else we find it very difficult to hold the respondent guilty of contempt of court on the definite charge that he withdrew a very large amount from his account in Pictet in violation of the orders of this Court.We have gone through the decision relied upon by Mr. Banerjee and we find that in Rajendra Sail, the Court held the contemnor guilty on the basis of. In other words, all the circumstances taken together led to the unimpeachable finding of theguilt. But that is not to say that in Rajendra Sail this Court relaxed or diluted the standard or degree of proof to establish the guilt of contempt.42. In the case in hand on taking into account all the circumstances as discussed above, we are of the view that it would not be wholly reasonable to hold that the respondent withdrew large amounts from his account with Pictet in violation of thisorders.43. For the reasons discussed above, we hold that the respondent cannot be held guilty of contempt.44. Coming back to the order, dated April 1, 2010 by which this Court held that the respondent had withdrawn money from his account with Pictet by flouting the orders of this Court, it is to be noted that that order is founded on the premise that the respondent had not denied the allegation made by the petitioner against him. It is, however, to be noted that the respondent in his reply to the contempt petition filed on March 3, 2010 had stated in paragraph 2 (XIV) asRespondent takes liberty for reiterating that he has not withdrawn any amount in spite of (sic.) the order passed by this