High Court

Legal Reasoning

( 1 ) cria2784.23IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO. 2784 OF 2023Abhaykumar Bansilal MuthaVERSUSState of Maharashtra & Anr.Mrs. Rashmi S. Kulkarni, Advocate for the applicant.Mr. K.B. Jadhavar, AGP for the respondent-State.Mr. A.N. Barhate, Advocate for respondent No.2.CORAM:KISHORE C. SANT, J.DATE:27.11.2024PC :-01.Present application is filed praying for taking action againstrespondent No.2 for taking action under section 340 r/w section 195(1)(b)(i) of the Criminal Procedure Code, for the offences punishable undersections 192, 193, 199 and 200 of the Indian Penal Code and forinitiating action of contempt under Article 215 of the Constitution ofIndia. The applicant has filed this application, since the respondent No.2has filed false affidavit in Criminal Application No. 1635 of 2022 inCriminal Revision Application No.177 of 2021 and in Criminal ApplicationNo. 3326 of 2022 in the same revision application and for making a falsestatement which is recorded by this Court in order dated 03.10.2022. Itis alleged that by way of filing such affidavit and making statement, heobtained orders from this Court. ( 2 ) cria2784.2302.The applicant happens to be an original complainant in a caseunder section 138 of the Negotiable Instruments Act, wherein respondentNo.2 was the accused. The case was registered as STC No.127 of 2005.The respondent came to be convicted in the said trial by judgment andorder dated 13.08.2012. It was directed to undergo rigorousimprisonment of three months and to pay fine of Rs.2,60,000/- withdefault sentence. Out of the amount of fine, amount of Rs. 2,50,000/-was to be paid to the applicant by way of compensation. RrespondentNo.2 preferred an appeal to the Sessions Court, Shrirampur, challengingthe judgment and order of conviction. The Sessions Judge in an appealset aside the substantive sentence by maintaining the conviction anddirected to pay compensation. It is against this judgment, the applicanthad approached this Court challenging the order passed by the AdditionalSessions Judge in Appeal no. 22 of 2012 to the extent of setting asidethe substantive sentence and also prayed for additional compensation ofRs.2 lakhs. Respondent No.2 also filed Criminal Revision Application No.13 of 2018 after limitation period was over and filed application forcondonation of delay. In Criminal Revision Application No. 13 of 2018,the accused initially prayed for referring the matter for mediation. ThisCourt directed him to deposit Rs.50,000/- to show bonafides. From time ( 3 ) cria2784.23to time he sought time to deposit the said amount by giving undertakingto this Court. Thereafter, he also sought time to deposit Rs.1,50,000/-and that was granted with some observations.03.In the revision filed by respondent No.2, he filed applicationfor suspension of sentence and at that time also he gave undertaking tothis Court that he would deposit the amount. Inspite of all these variousundertaking, respondent No.2 had not deposited the amount inspite of anundertaking and on the other hand he solicited order of suspension ofsentence from this Court on the pretext that he would deposit theamount..By order dated 16.03.2022 this Court allowed the CriminalRevision Application No. 13 of 2018 and restored the substantivesentence of the accused. Criminal Revision Application No. 177 of 2021of the accused came to be dismissed. It is, thereafter, the respondentfiled another application No. 1635 of 2022 invoking powers under section482 of the Cr.P.C. He prayed for quashing of the judgment and orderdated 16.03.2022 passed in Criminal Revision Application No. 177 of2021 and that time also he made a categorical statement that he woulddeposit Rs. 1 lakh for settlement. ( 4 ) cria2784.2304.After rejection of the application, the respondent, thereafter,even filed an SLP before the Hon’ble Supreme Court challenging thejudgment passed by this Court in revision of this applicant. In SLP theHon’ble Supreme Court permitted the accused to deposit remainingamount before this Court within 7 days from the date of passing of theorder. This order was without touching merits of the matter and theorder passed by this High Court was not set aside. This order wasobtained by representing before the Hon’ble Apex Court that the matteris settled between the parties. Thus, on this background this applicationis filed, when in-fact there was no settlement. It is pointed out thatrespondent No.2 misled this Court by making statement that the partieshave arrived at settlement after the decision of the revision applicationand respondent No.2 was ready to deposit the remaining amount of Rs. 1lakh and thus it is stated that respondent No.2 committed serious offenceby making false statement that caused obstruction to the administrationof justice.05.This Court issued notice to the respondents. RespondentNo.2, however, did not immediately accept the notice and much effortswere taken by the applicant to serve respondent No.2. Various orderswere passed by this Court. Respondent No.2 appeared in the revision, ( 5 ) cria2784.23however, he again sought time on some or other pretext and avoided todeposit the remaining amount. The only part of amount was depositedduring the pendency of the appeal while obtaining the order ofsuspension of sentence. Remaining amount was not paid though revisionand even this application was on board on many times. RespondentNo.2, thereafter, appeared as it was specifically recorded in the orderdated 04.10.2024 that inspite of order dated 28.08.2024 to show causeas to why action should not be taken under the Contempt of Courts Act.Respondent No.2 still neither filed reply nor tendered apology, this Courtin the said order looking to the conduct recorded that the respondent hasclearly committed contempt and issued notice in the format. Even afterservice of notice in the format, the respondent remained absent. ThisCourt, therefore, passed order directing him to remain present and incase of failure warrant would be issued. It is only, thereafter, on26.11.2024 respondent No.2 remained present and tenderedunconditional apology on affidavit and was ready with demand draft ofRs.50,000/- in the name of the Registrar (Judicial) of this Court. Thismatter was thereafter kept on 27.11.2024, after the cheque wasdeposited in this office.06.From the conduct, recorded above, of respondent No.2, it is ( 6 ) cria2784.23clear that respondent No.2 has deliberately avoided to obey the orderspassed by this Court. It is also clear from various orders and theaffidavit filed by the respondent that he has given false assurance/undertaking to this Court and has misled this Court. It is because ofsuch statements, this Court passed the orders granting time torespondent No.2. It appears from the record that respondent No.2 madefalse statement even before the Hon’ble Apex Court, purportedly sayingthat the matter is settled between the parties and he only needs time todeposit the amount before this Court, when in-fact at no point of time,there was any settlement between the parties. As is clear from theconduct that it was only an eye wash and this conduct clearly calls foraction at the hands of this Court.07.Coming to the prayers of the applicant, the prayers are forinitiating action under sections 192, 193, 199 and 200 of the IPC. ThisCourt finds that section 192 is about fabricating and false evidence. ThisCourt does not find that any case is made out showing that respondentNo.2 has fabricated any evidence. Thus, no action is required undersections 192, 193 of the IPC. So far as section 199 of the IPC isconcerned, this Court finds that though the statement is made, however,it is not a declaration receivable as evidence and thus no case is made ( 7 ) cria2784.23out under sections 199 and 200 of the IPC. Even from the conduct ofthe Advocate appearing for respondent No.2 in this case it appears thatthe he should have properly made respondent No.2 aware of theconsequences of the contempt proceeding. The 2nd respondent was awareof the exact consequences of the conduct and still he ventured to makefalse statement before this Court. This Court finds that Certainly a caseis made out under Article 215 of the Constitution of India, calling foraction of contempt. However, since respondent No.2 has tenderedapology and has deposited the amount, this Court feels that instead ofimposing substantive sentence, it is sufficient to admonish respondentNo.2 for committing contempt of this Court. With this, the followingorder :-ORDER(i)The criminal application is allowed in terms of prayerclause (B).(ii)Respondent No.2 is hereby admonished for committingcontempt of this Court.[KISHORE C. SANT, J.] snk/2024/dec24/cria2784.23