Bombay HC:- complaint under section 340 of Cr.P read with section 195(1)(b) for filing misleading affidavit and for not disclosing true and correct facts to this Court is made out
Bombay High Court
Ctr Manufacturing Industries … Petitioner
vs Sergi Transformer Explosion .& Oths
on 30October, 2012
Bench: B. P. Dharmadhikari
1 1282. 11caa
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
CIVIL APPELLATE JURISDICTION.
CIVIL APPLICATION NO. 1282 OF 2011
APPEAL FROM ORDER NO. 102 OF 2011
CTR Manufacturing Industries Limited, a company incorporated under the provisions of the Companies Act, 1956, having registered office at Nagar Road, Pune411
014. … Applicant.
1. Sergi Transformer Explosion Prevention
Technologies Private Limited,
of 324, Udyog ViharPhase
2. Antoine Magnier, s/o Phillipe Magnier,
Director, Sergi Transformer Explosion
Prevention Technologies Private Limited,
having his office at 426, Udyog ViharPhase
3. Dharmendra Tyagi,
Corporate Legal Manager,
Sergi Transformer Explosion Prevention
Technologies Private Limited,
having his office at 426, Udyog ViharPhase
IV , Gurgaon122016,
Haryana. … Respondents.
Navroz Seervai, Senior Advocate with Gulnar Mistry;
Aakash Rebello; Amit Jajoo; and Atul Singh i/b. Paras Kuhad & Associates for the applicant.
Atul Rajadhyaksha with S.Kher and C.Chavan i/b.
Ms.Rani Boazz for respondent Nos.1 and 2
CORAM: B.P.DHARMADHIKARI, J.
DATED : 30th October 2012.
This Civil Application is filed in a disposed of Appeal against order for action under S. 340 Cr.P.C.That appeal from order arose out of Special Civil Suit No.1/2010 and has been disposed of by this Court on 11th January 2011. This Court set aside the order dated 28th December 2010 passed by learned District Judge, Thane and allowed the application of appellant therein (respondent in thiscivil application) and permitted it to submit drawings to Delhi Transco Limited (DTL). It directed that the said appellant should not take any further steps for execution of contract except submission of drawings till the decision of application filed by the appellant/ respondent No.1 herein below Exh.5 under order 39 rules 1 and 2 of Code of Civil Procedure, 1908 (C.P.C.) (Said application below Exh.5 in special civil suit was filed by present applicant/plaintiff who was respondent in that appeal from order). It is not in dispute that later on temporary injunction as prayed for came to be denied & the said application at Exh.5 has been dismissed.
2. The present civil application is filed by respondent in that appeal from order 102 of 2011 for recording of finding that an offence under section 193 read with section 191 or section 209 of Indian Penal Code, 1860 has been committed by the respond-ents and for making a complaint in writing through competent officer of this Court to the Magistrate of First Class having jurisdiction. Thus the application is under section 195 read with section 340 of Cr.P.C.
3. Effort of applicant is to show that on 9 th December 2010 it had obtained orders from Thane Court in its civil suit restraining respondent from taking any steps in relation to tender floated by DTL. That order was served upon respondents on 14 th December 2010. Appeal challenging that order was filed by respondents before this Court on 20th December 2010 and that appeal was considered by Vacation Judge on 24th December 2010. The Vacation Judge did not interfere with the impugned order dated 9th December 2010 but directed the trial Court to hear the parties and pass appropriate orders on 27th December 2010. While obtaining this order and in the proceedings, it was not disclosed to this Court that drawings were already submitted by the respondent to DTL on 24 th December 2010. This fact was not even pointed out to the trial Court on 27 th December 2010 during hearing. The trial Court, as per the direction issued by this Court, heard parties and passed an order on 28 th December 2010 maintaining its earlier direction. That direction was then questioned in Appeal No. 102/2011 and even in that appeal or during said proceedings, which even ultimately decided by this Court on 11 th January 2011, the fact that direction dated 9 th December 2010 was violated and drawings were already submitted was not disclosed by the present respondent who was appellant in the said appeal.
4. It is in this background that learned Senior Advocate Shri Seervai appearing urges that a fact very relevant for consideration and critical in exercise of jurisdiction to grant temporary injunction was deliberately suppressed from this Court. Learned counsel submits that the affidavit in support of said appeal from order is sworn by one Dharmesh Tyagi, Corporate Legal Manager of respondent and though he is/was served with notice of present proceeding he has chosen not to appear. Learned counsel contends that the said affidavit is by and on behalf of appellant and, therefore, binding on all the respondents in present proceedings. Attention has been invited on ground(a) in the memo of said appeal to show how denial of even an opportunity to submit drawings & its adverse effect on the chances of present respondents has been pressed into service to seek vacation of interim direction. The statement made in Civil Application (St.) No.33479/2011 that parties have been litigating since February 2010 on weekly basis before the District Court, Thane is also pointed out. Attention is also invited to the fact that for said violation of interim direction, proceedings under order 39 rule 2A read with 2(11) of C.P are already instituted but then the scope thereof is entirely .C.different. Learned senior counsel has strongly relied upon the assertions in paragraphs4, 17, 18, 19, 20 and 21 of the present civil application.
5. In support of his contention, Shri Seervai has relied upon following judgments: Queen Empress v. Mehrban Singh (1884 6 All 626); Sanjeev Kumar Mittal v. State 174 (2010) DLT 214; In Re: Suo Motu Proceedings Against R.Karuppan, Advocate, (2001) 5 SCC 289; K.Karunakaran v. T.V.Eachara Warrier, (1978) 1 SCC 18; Pritesh v. State of Maharashtra, (2002) 1 SCC 253; Emperor v. Padam Singh, AIR 1930 Allahabad 490; and Emperor v. Ratanchand Dhannram, 1904 (6) BLR 886.
6. Shri Rajadhyaksha, learned senior advocate counsel for respondent Nos.1 and 2 in this civil application submits that interim prayer before the trial Court was much wider and only part of it was granted initially and the respondents were restrained only from actual “selling”. Thus, submission of drawings was not prohibited by that order which occupied the field till 9.12.2010. Parties appeared before the trial Court on several dates thereafter. In this background, on 9th December 2010, Trial Court was moved by present applicant plaintiff behind back of respondents and the order restraining them from taking any steps in the matter was obtained. Learned senior counsel submits that though this order was served upon the office of respondent No.1 at New Delhi on 14th December 2010 and though appeal against it was also filed before this Court, the officer who submitted drawings to DTL was unaware of the said order or developments. He has invited attention to the affidavit dated 1st May 2012 of one Rahul Chavan, employee of respondent No.1. For very same purpose, attention is also invited to the affidavit of one P.B.More dated 13 th July 2012. Affidavit in rejoinder filed by respondent 2 Antoine Magnier dated 22 nd September 2012 is also pointed out to show as to how that officer was very busy & occupied, and could not pay attention to these details. Learned senior counsel has urged that this was only a bonafide error which has not prejudiced the case of applicant in any way. Subsequent affidavit in rejoinder filed by Rahul Chavan is pressed into service to substantiate stand that it was a bonafide mistake.
7. By way of abundant precaution, it was submitted that interim order sought for by the applicant has been ultimately vacated and Hon’ble Apex Court has also permitted the respondents to participate in the tender process. Learned counsel submits that, thus, for an honest and bonafide mistake which has got no impact on administration of justice, no action under section 340 of Cr.P.C. Read with section 195 is called for. He has also relied upon various precedents reference to which is being made little later in the course of this judgment.
8. In his reply arguments, Shri Seervai has contended that reason of honest and bonafide mistake by Shri Chavan is erroneous. He points out that now said person is not in employment of the respondents and he obliged them by giving letters or affidavits as they wanted. The communication dated 9th November 2010 is signed by said Chavan and sent to Manager (Stores) of DTL confirming that M/s.Sergi India was in a position to execute the full project of DTL in spite of legal proceedings going on against it. He states that this knowledge has not been disputed by the respondents. He further contends that reliance upon affidavit of Antoine Magnier dated 30 th April 2012 or his later affidavit in an effort to show bonafide mistake is equally erroneous. He points out the statement contained in affidavit of Shri Chavan dated 1 st May 2012 that he had submitted drawings on 24th December 2010 as a routine purchase related activity. On 11 th or 12th January 2011, he was asked to submit drawings to DTL following the order of High Court and, accordingly, he submitted those drawings on 12th January 2011. The communication dated 12th March 2010 sent by respondent No.3 Shri Tyagi to DTL pointing out injunction order and hope that it would be vacated is also pressed into service.
9. I have perused all records in the light of rival contentions. Perusal of affidavit dated 13th July 2012 filed by Shri P.B.More on behalf of the applicant shows an assertion that drawings were not submitted second time in January 2011 and statement made by respondents that drawings were so submitted is false and malafide. It is claimed that Shri Chavan by his letter dated 12th January 2011 has only informed that drawings had already been submitted. The applicant claims that respondent 2 Mr.Magnier, therefore, is making false and incorrect statement on oath even before this Court.
10. In K.Karunakaran v. T.V.Eachara Warrier (supra), the Hon’ble Apex Court has held that in a proceeding under section 340(1) of Cr.P.C., the reasons recorded in the principal case, in which a false statement has been made have a great bearing and indeed action is taken having regard to the overall opinion formed by the Court in an earlier proceedings. At an enquiry held by the Court therein, irrespective of the result of the main case, the only question is whether a prima facie case is made out which, if unrebutted, may have a reasonable likelihood to establish the offence and whether it is also expedient in the interest of justice to take such action. The parties like present respondents may choose to place all their material before this court at this stage but then they are not estopped from disclosing it later during trial, in case prosecution is sanctioned by this court. Observations of this Court in this order are not detrimental and relevant during trial. The enquiry is only to afford a locus poenitentiae to a person at that stage. Only prima facie opinion is required to be reached by this court and challenge is required to be established during trial. In Pritesh v. State of Maharashtra (supra), the Hon’ble Apex Court has observed that merely because power is given to the Court under section 340 of Cr.P.C., it does not mean that the Court should as a matter of course make a complaint. But once the Court decides to do so, it should record a finding to the effect that on the fact situation it is expedient in the interest of justice that offence should be further probed into. Absence of preliminary enquiry by the Court does not vitiate a finding reached and aim of preliminary enquiry, if held, is not to find out whether particular person is guilty or not. In Motu Proceedings Against R.Karuppan, Advocate (supra), the Hon’ble Apex Court has found that justice dispensation system would be wrecked if statutory restrictions are not imposed upon the litigants, who attempt to mislead the court by filing and relying upon the false evidence. If the result of the proceedings are to be respected, these issues before the courts must be resolved to the extent possible in accordance with the truth. The common law pr0position is also appreciated by Hon’ble Apex Court in paragraph14 of this judgment and thereafter in paragraph15, law in India relating to offence of perjury as defined in section 191 and Chapter XI of I.P.C. is also noted. Hon’ble Apex Court has observed that unscrupulous litigants are found daily resorting to utter blatant falsehood in the courts which pollutes the judicial system. Hon. Court observes that if the system is to survive, effective action is the need of time.
11. In Emperor v. Padam Singh (supra), the Division Bench of Allahabad High Court has found that an express provision of law required defendant to confirm the truth of statement made by him in written statement and if that verification is found false, section 191 itself declares him a person giving false evidence. The meaning of word “evidence” in other sections may have different connotations but those words in section 191 and 193 have same meaning. In Emperor v. Ratanchand Dhannram (supra), plea of signing Darkhast when it was blank is held not sufficient to avoid penalties attached under section 193 of I.P The Division Bench has found that through .C. verification, Court is made to believe that statement of facts made are true and correct. In Queen Empress v. Mehrban Singh (supra), it has been held that essence of crime of perjury is not how it may injure the party to the litigation but how it may deceive or mislead the Court. Judgment of learned single Judge of Delhi High Court reported in Sanjeev Kumar Mittal v. State (supra) also considers these aspects and reiterates the same view. It has been found that it is the duty of the parties to disclose true and correct facts to the Court. The provisions of order VI rule 16 dealing with verification of pleadings are also looked into. It has also been observed that the person submitting false verification can be proceeded against in contempt and also for an offence of perjury. Reluctance of Court’s to prosecute for perjury is found to encourage parties to make false averments.
12. In the light of arguments, it is also necessary to refer to the judgments relied upon by Shri Rajadhyaksha, learned senior counsel for respondent Nos.1 and 2. The judgment of the Apex Court in Chajoo Ram v. Radhey Shayam, AIR 1971 SC 1367 shows that before sanctioning prosecution for perjury, the Court must be satisfied that there is prima facie case for deliberate falsehood on a matter of substance and that there is a reasonable foundation for the charge. The judgment reported in Santokh Singh v. Izhar Hussain, AIR 1973 SC page 2190 reveals that the High Court has to be cautious while ordering prosecution for such offence as frequent prosecutions often tend to defeat the purpose & therefore, only in glaring cases of deliberate falsehood where conviction is highly likely that the Court should direct prosecution. In K.T.M.S.Mohd and another v. Union of India, AIR 1992 SC 1831, the Hon’ble Apex Court has pointed out two conditions namely the Court must be of opinion that it is expedient in the interest of justice that enquiry should be made into offence and the offence must be in respect of document produced and/or given in the evidence in a proceeding of that Court. Same principle is reiterated in B.K.Gupta v. Damodar H. Bajaj, (2001) 9 SCC 742. Judgment in Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370 shows that the expediency is normally judged by the Court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. Judgment in Rugmini Ammal v. V.Narayana Reddiar, AIR 2008 SC 895 also lays down that purpose of preliminary enquiry is to find out whether it is expedient in the interest of justice to order prosecution. In Patel Laljibhai Somabhai v. State of Gujrat, (1971) 2 SCC 376, the underlined purpose and the object of legislature in creating bar to direct cognizance of such grievance is found to be to save the accused persons from vexatious or baseless prosecutions inspired by feelings of vindictiveness on the part of his adversary and also to avoid confusion which is likely to arise on account of conflicts between the findings of Courts in which forged documents are produced or false evidence is led and the conclusions of criminal courts dealing with the private complaint. In R.S.Sujatha v. State of Karnataka, 2011 (5) SCC 689, the earlier judgment reported in Pritish v. State of Maharashtra, AIR 2002 SC 236 pointing out the purpose of preliminary enquiry is cited with approval in paragraph11 thereof. In Mannala Sardarmal Jain v. Kishan Jodhraj Maharaj, AIR 1959 MP 264, standard of proof required in cases of perjury is looked into. In AIR 1957 AP 832 (In Re: Balabhadra Narayudu), the prosecution is found to have been sanctioned on an immaterial fact. In John Peter v. State, AIR 1953 TRAVCO 343, the purpose of prosecution is held to be not to satisfy private grudge of a litigant. In Keramat Ali v. Emperor, AIR 1928 Cal. 862, on facts the ordering of prosecution is found not expedient. In Vimala v. Ranjini Murugan, 1988 (2) Crimes 124, again it is found that purpose of such prosecution is not to assist adversary and not to further private revenge.
13. In Bhagirathibai v. Emperor, AIR 1926 Nag 141, reasonable possibility of conviction is found to be a decisive test. In Asgarali s/o Mulla Ibrahimjee Musalman v. Emperor, AIR (29) 1942 Nagpur 80, the intention of person charged with offence is held an essential ingredient. Judgments reported in Veerappa Shivappa Horadi v. Krishna Triyambak Deshpande, 1977 CRI.L.J. 1367, Anandi Prasad v. Emperor, AIR 1934 Oudh 65 also lay down same law. In Taj Mohammad v. Emperor, AIR 1928 Lah 125; Ramgobind v. Kind Emperor, AIR 1924 Patna 381; and Maharashtra State Electricity Distribution Co.Ltd. v. Datar Switchgear Ltd., 2010 (159) Com.Cases 545 (SC), same principles have been applied. However, this law is laid down while deciding the matter in challenge after finding by competent criminal court. There the orders passed by Court under section 340 of Cr.P were not .C.questioned. Yardsticks will be different when prosecution is being ordered under S. 340 & when challenge is to verdict delivered at the end of such prosecution. Maharashtra State Electricity Distribution Co.Ltd. v. Datar Switchgear Ltd. (supra), the Hon’ble Apex Court has found that false statement in declaration by a company does not render its Chairman automatically guilty.
14. In Esher Singh v. State of Andhra Pradesh, AIR 2004 SC 3030, the Hon’ble Apex Court has considered proof required for establishing criminal conspiracy where challenge was to a conviction by a competent criminal Court. The question whether criminal conspiracy was proved or not needs to be appreciated in the light of evidence which comes before the criminal Court. In K.T.M.S.Mohd v. Union of India (supra), the Hon’ble Apex Court has, after considering the evidence on record, appreciated the same to find out whether appellant Nos.1 and 2 before it knew that third appellant had intentionally fabricated false evidence or had willfully submitted a false return before IT. The Hon’ble Apex Court has noted that this was not a case of complainant at all. This law also needs to be applied by a competent Court when matter goes to it for trial. In Kehar Singh v. The State (Delhi Admn.) AIR 1988 SC 1883, the controversy considered is again after regular trial and in the light of evidence adduced. In Dadasaheb Bapusaheb Naik v. State of Maharashtra. 1982 CRI.L.J. 856, the learned single of this Court has considered the standard of proof required to establish criminal conspiracy in a criminal appeal. In Maharashtra State Electricity Distribution Co.Ltd. v. Datar Switchgear Ltd. (supra), the challenge has been considered after the judgment of this Court under section 482 of Cr.P.C. declining to quash criminal complaint.
15. In Maksud Saiyed v. State of Gujrat, 2008 (5) SCC 668 is again after judgment by High Court setting aside criminal prosecution and investigation. It has been found that Penal Code does not contain any provision for attaching vicarious liability to/on part of Managing Director or Director of the Company when the accused is company. The Magistrate, before whom complaint was filed, therefore ought to have examined whether complaint contained necessary material to make the Director personally liable. In Maharashtra State Electricity Distribution Co.Ltd. v. Datar Switchgear Ltd. (supra), same law has been followed and it was noted that there was no allegation that Chairman participated in or was managing arbitration proceedings. He was, therefore, held not liable for false statement made before the arbitral tribunal.
16. The facts presented to this Court reveal that the submission of drawings to DTL on 24 th December 2010 despite communication of restraining order on 14 th December 2010 is accepted by respondent 1 & 2. The fact that said submission of drawings was not pointed to this Court in a challenge presented to it & decided in winter vacation on the very same date or then in later proceedings till delivery of judgment therein on 11th January 2011 is not in dispute. This Court has to find out whether the respondents have given probable reasons for their inability to place said fact on record and impact, if any, of its nondisclosure.
17. The Managing Director of respondent No.1Shri Antoine Magnier is respondent No.2 in the present proceeding. His reply affidavit dated 30th April 2012 assumes importance. Apart from pointing out his heavy preoccupation, programme to leave India for his country for Christmas celebration, his affidavit also discloses that after receipt of purchase order from DTL, he had issued necessary oral orders to various departments to meet the purchase order requirements but to stop short of “selling” the product in dispute to DTL. He has expressly mentioned that he was aware of legal opinion given to Sergi by its lawyer in context of order of the trial Court dated 5 th February 2010. In this proceeding, we are not concerned with the said legal opinion. This affidavit, therefore, shows knowledge of the fact to respondent 1,2 & all concerned that product could not have been sold and all other steps were permitted. The said officer, thereafter in paragraph8.7 of that affidavit shows knowledge of order dated 9 th December 2012 preventing Sergi from taking any step whatsoever in relation to DTL purchase orders. This knowledge is acquired on 14 th December 2010. Seriousness & drastic nature of change brought about is well understood & hence, in affidavit, grievance is made by him about obtaining such an order ex parte. He, then, immediately instructed the Legal Manager to rush to Mumbai and coordinate with the Sergi lawyer to have that order vacated. Thus the urgent need felt by him to get that order vacated has also come on record. In the light of the earlier “oral orders” the change brought about in the situation by order dated 9th December 2010 has struck respondent No.1company and respondent No.2 and it made efforts to get that order vacated. However, the affidavit does not show any steps taken by either respondent No.1 or respondent No.2 to stop violation of latter order dated 9th December 2010 after 14th December 2010. The drawings/ designs have been submitted by Shri Chavan on 24 th December 2010 and he claimed ignorance of directions issued by the trial Court on 9 th December 2010. It is important to note that Shri Chavan is presently not in employment of respondent No.1. Its Legal Manager, who is respondent No.3 in the present proceeding is also not in employment. The affidavit filed by said Antoine Magnier, therefore, shows only oral directions issued by him on earlier occasion to see that the Court orders are not breached by actually selling the product to DTL. His affidavit discloses steps taken by him to get later order dated 9.12.2010 vacated as it altered the situation to the prejudice of respondent 1 , but then he has not taken any steps to prohibit its breach for violation. Whether this omission is accidental or deliberate is an issue which cannot be resolved in this proceeding. The law on point is well settled and this Court can only express prima facie opinion. Its conclusion is not binding when actually trial Court trial Court is competent criminal Court. This defence of oral order to stop “short of selling” and then the alleged later omission to issue instructions to others not to take any steps in the light of court order dated 9 th December 2010 itself appears to be doubtful. In any case, it may be the defence in criminal trial & burden to substantiate it is upon respondent Nos.1 and 2.
18. Shri Chavan, the exemployee of respondent No.1, in his affidavit has urged that on 24th December 2012, when he submitted drawings, he was not aware of order dated 9 th December 2010. His affidavit also shows that after the order of this Court dated 11 th January 2011, on 12th January 2011, he has submitted drawings. It is not his case that DTL demanded drawings twice. If the drawings were already submitted on 24th December 2010, there was no need to submit it again on 12th January 2011. The applicant has specifically come up with the contention that drawings were submitted only once. The respondents have not produced on record any communication with which drawings were submitted to M/s.DTL on 24th December 2010. If the drawings were already submitted, on 12 th January 2011 the respondents would have informed M/s.DTL that drawing were already submitted on 24 th December 2010. They could have also informed about the restraining orders, in ignorance of which, drawings were “inadvertently” submitted and its dilution or vacation by the High Court on 11 th January 2011. Such a disclosure would have been more desirable to show the bonafides of respondents in the matter. There is no attempt to point out to this Court the fact that submission of drawing in violation of interim directions was communicated by the respondents or by Shri Chavan to M/s.DTL.
19. If on 12th January 2012 Shri Chavan resubmitted the drawings, he ought to have or could have immediately informed his seniors/superiors about the first submission thereof already on 24 th December 2010. Thus the circumstances in which drawings were inadvertently submitted on 24th December 2010 would have then come on record in normal course of events. In that event, the respondents could have also pointed out that inadvertent submission to this Court by filing proper affidavit even though the appeal from order was disposed of on 11th January 2011. There is no such effort by the respondents. Though this is not a conclusive application of mind, in any way, at this stage it deserves to be given due importance.
20. As held by Hon’ble Supreme Court in Seema Arshad Zaheer v. Municipal Corporation of Greater Mumbai, 2006 (5) SCC 282, the remedy of injunction is an equitable remedy and plaintiff, who does not approach the Court with clean hands or suppresses material facts, can be denied that relief. This judgment has been followed by learned single Judge of this Court in Harcharanjit Singh Thind (Capt.) v. Deeksha Thind, 2008 (3) Mh.L.J. 587 and by me in General Manager, Central Railway v. Mehmooda Shikshan and Mahila Gramin Bahuuddeshiya Sanstha, Nagpur, 2010 (6) Bom.C.R. 828: 2011 (2) LJS 168. Thus, if material facts are suppressed by a party invoking said jurisdiction, the relief can be declined to it. Here the affidavits filed by respondents show knowledge of court litigation and they accept that it was being fought on weekly basis since February 2010. They are also aware that only part of the relief claimed as interim relief by present applicant/ plaintiff was initially granted on 5 th February 2010 and all of a sudden it was modified drastically on 9 th December,2010. The emergent situation resulting therefrom after 14 th December and hence hurried steps taken by them to have that order vacated have also come on record. Thus, the respondent company has, all the while, attempted to demonstrate that order prohibiting it from taking any steps in the matter was unjust and needed forthwith vacation. In the process, they did not point out the fact that drawings were already submitted on 24 th December 2010. On the contrary, they have again resubmitted the drawings on 12 th January 2011 after High Court orders without reference to the earlier submission on 24 th December 2010. The applicant has urged that there is no resubmission on 12th January 2011 and the drawings were already submitted on 24 th December 2010.
21. It is not necessary, at this stage, to resolve this factual dispute & issue. Now the fact of submission of drawings on 24 th December 2010 is accepted. The respondents have not pointed out that after the said resubmission they have informed M/s. DTL that earlier submission of drawings on 24 th December 2010 was contrary to Court orders. In injunction jurisdiction, when a party applies for grant of temporary injunction or for its vacation, its highhanded or disrespectful conduct is definitely relevant. The fact that drawings were already submitted on 24th December 2010 ought to have been disclosed to this Court. This Court in that event would have applied its mind appropriately and taken a suitable view of the matter. The fact relevant in the exercise of that jurisdiction has not been pointed out to this Court. Actual impact the said fact may have on the findings recorded in the judgment dated 11 th January 2011 is again not very important. The suppression of relevant facts and therefore denial to other side to point out its impact or then inability of this Court to consider its effect is the only relevant aspect in this jurisdiction & at this juncture. The present respondents continued to question the modified order dated 9.12.2010 by urging that denial of an opportunity to it to take even preliminary steps was unjustified. Conclusion that a fact relevant for administration of justice was held back & this Court was prohibited from looking into a relevant event is, therefore, the most significant facet in the present matter. The contention of learned senior advocate Shri Rajadhyaksha that original plaintiff or present applicant who seeks the prosecution is trade rival of respondents or has no stake in contract with M/s. DTL is totally irrelevant.
22. Discussion above shows that a case for filing complaint under section 340 of Cr.P read with section 195(1)(b) for filing .C. misleading affidavit and for not disclosing true and correct facts to this Court is made out. Respondent No.2 Antoine Magnier as also Mr.Chavan have independently filed their affidavits in this proceeding unequivocally stating that nothing material relevant has been concealed. Same discloser is also made by respondent No.3Mr. Tyagi in affidavit filed for respondent 1 Company in Appeal from Order No.102/2011 which has been decided on 11 th January 2011. It is expedient & the events noted above also indicate after this preliminary inquiry, a need for investigation into alleged offences under Section 195(1)(b) of Cr.P. C. to see that facts vital in exercise of any jurisdiction are not suppressed by parties. Thus by such suppression as also by declaring that nothing material has been concealed from this Court, prima facie, an offence under section 193 read with section 191 or section 209 of Indian Penal Code, 1860 appears to have been committed by the respondents which deserves to be inquired into by the competent judicial magistrate.
23. The Registrar (Judicial) attached to this Court is, therefore, directed to draw & make appropriate complaint before competent Court having jurisdiction for offences mentioned in S. 195(1)(b) Cr.P.C., supra. The respondent No.1Company thorough its authorized or competent officer as also its director i.e. respondent No.2 shall file undertaking before this court personally undertaking to appear before the trial Court in the said proceeding on first date scheduled for their appearance by it & as per law. Said undertaking/ bond to be executed by them for said purpose in the sum of Rs.50,000/each shall be filed in the registry of this Court within three weeks from today & shall be sent to concerned court of Magistrate.
24. The trial Court to proceed further in the matter in accordance with law uninfluenced by the observations made by this Court above.
25. Civil Application No.1282/2011 is, accordingly, allowed to that extent.
26. Learned Senior Advocate Shri Rajadhyaksha, at this stage, seeks stay of the present order for a period of six weeks. The request is being strongly opposed by Shri Seervai, learned Senior Advocate for the applicant.
27. In the interest of justice, the request made by Shri Rajadhyaksha is accepted. The order is stayed for a period of six weeks. The interim order shall cease to operate automatically thereafter.
Sanjay Nanoskar, P.S.