Bombay High Court
K. Hargovind Das & Co. (Exports) Pvt. ... vs Union Of India on 11 July, 1991
Equivalent citations: 1991ECR20(BOMBAY), 1992(57)ELT43(BOM)
JUDGMENT Pendse, J.
1. While summarily dismissing this Writ Petition filed under Article 226 of the Constitution of India, we propose to direct the Prothonotary and Senior Master to file prosecution against petitioner No. 2 for intentionally making a false declaration which is by law receivable as evidence. We are prima facie satisfied that petitioner No. 2 has used as true the declaration known to be false and made in Paragraph 15 of the petition. The facts leading to the filing of this petition are as follows :
2. The petitioner No. 1 is a Private Limited Company carrying on business of export and petitioner No. 2 Mansukhlal Chhaganlal Desai is the Director of the Company. The petitioners in the course of their business, imported five consignments of Mono Ethylene Glycol in March 1983. The Customs Authorities assessed the goods under Customs Tariff Item No. 29.01 for the purpose of Customs duty and under Tariff Item No. 68 for the purpose of additional duty/countervailing duty. The Customs authorities did not extend the benefit of the excluding Clause (a) of the Central Excise Tariff. The petitioners claim that they became aware that levy and collection of additional duty was illegal and without authority of law when judgment dated July 26, 1990 delivered by Division Bench of this Court in Appeal No. 24 of 1987, Union of India and Others v. Raman Kantilal Bhandari, came to their knowledge. The petitioners then filed five separate Refund Applications on August 8, 1990 before the Assistant Collector of Customs seeking refund of additional duty in respect of five consignments. The applications were rejected by the Assistant Collector of Customs. The present petition is lodged on June 28, 1991 by Shri K. P. Ravi, Advocate on behalf of the petitioners and the relief sought is direction to the respondents to refund Rs. 90,718.70 in respect of alleged collection of additional duty not permissible in law. The petition also seeks to set aside the orders passed by the Assistant Collector rejecting five applications for refund.
3. In Paragraph 15 of the petition, the following statement is made :
"The Petitioners have not filed any other Writ Petition in this Hon'ble Court or in any other High Court in India or in the Supreme Court of India on the same subject matter as the present petition."
The petition is duly signed by petitioner No. 2 for himself and on behalf of petitioner No. 1. The petition is solemnly declared by petitioner No. 2 before the Associate of this Court and the solemn declaration runs as follows :
"I, Mansukhlal Chhaganlal Desai, Petitioner No. 2 do hereby solemnly declare and say that what is stated in paragraphs 1 to 10 of the foregoing Petition is true to my own knowledge and that what is stated in the remaining paragraphs thereof is stated on information and legal advice which I believe to be true."
4. The petition came up for admission before us on July 2, 1991 and was adjourned to July 8, 1991 as the respondents desired to file return. On July 5, 1991 on behalf of the respondents, Shri Vijay Kumar Takkar, Assistant Collector of Customs, has filed return and pointed out that the petitioners had earlier filed Writ Petition No. 3357 of 1990 seeking refund of additional duty of customs in respect of four bills of entry dated March 24, 1983 and bearing Nos. 6313, 6315, 6318 and 6316. That Writ Petition being Writ Petition No. 3357 of 1990 came up for admission before Division Bench consisting of Justice Mrs. Sujata Manohar and Justice Saldhanha on November 21, 1990 and the following order was passed :
"Leave to amend in terms of the draft. Amendments to be carried out in the course of the day. In view of the amendments now made, the petition is filed more than three years after the discovery of mistake. Dismissed.
The return points out that the present petition is filed in respect of identical bills of entry and in addition, bill entry No. 6317 dated March 24, 1983 and the order total refund claim is Rs. 90718.70. The present petition seeks to set aside the order passed by the Assistant Collector and which was directly in issue in the earlier petition. The return further points out that a false statement on oath is made by petitioner No. 2 that previously no petition was filed in respect of the subject matter. The respondents, therefore, claim that the petitioners are trying to snatch the orders from the Court by knowingly making false statement on oath.
5. In view of the return filed on behalf of the respondents, we informed Shri K. P. Ravi, Advocate who was appearing for the petitioners on the last occasion that we propose to issue notice to petitioner No. 2 to show cause why action should not be taken under Contempt of Courts Act and also why prosecution should not be launched for making false statement on oath. The petitioner No. 2 was present in Court on July 8, 1991 and Shri Ravi, after taking instructions, informed us that petitioner No. 2 does not desire service of notice in respect of proposed action and he would remain present in Court on July 11, 1991 and will show cause why action should not be taken. Accordingly, the petition was adjourned till today. Shri Ravi informed us that he does not desire to appear the petitioners any longer and petitioner No. 2 informed us that he would make arrangement to engage another Advocate.
Today, Shri Jain, Advocate appeared on behalf of the petitioners and petitioner No. 2 is also present in Court. Petitioner No. 2 has filed affidavit sworn on July 8, 1991 and it is claimed in Paragraph 5 that the file was handed over to Shri Ravi, Advocate with instructions to file Writ Petition in regard to the pending refund claims and Shri Ravi inadvertently included the claim which was put in issue in the earlier Writ Petition No. 3357 of 1990. The petitioner No. 2 then claims that he was at Deolali and on his return, he declared the petition while his health was not good. The petitioner No. 2 tenders apology for the wrong which he has done. Shri Jain submitted that petitioner No. 2 is repenting for the wrong which he has done and, therefore, action should not be taken. We are not impressed by the submission. Prima facie, we are satisfied that the petitioners have tried to snatch orders from the Court by intentionally making a false declaration on oath which petitioner No. 2 knows to be false. We are not prima facie satisfied with the explanation that petitioner No. 2 was not in good health and made the declaration without reading the contents. Prima facie, we are satisfied that filing of the present petition is nothing but an abuse of the process of the Court. The attempt made by the petitioner by making false statement and seeking relief on second occasion brings the entire administration of justice into disrepute and it is necessary that prosecution should be launched against the petitioners who are indulging in such tactics.
Shri Jain submitted that the petitioners desire to withdraw the petition. We declined the permission. We are summarily dismissing the petition as the same is not maintainable and also on the ground that the petitioners have disentitled themselves from seeking any relief under Article 226 of the Constitution of India due to their conduct.
6. Accordingly, petition is summarily dismissed. The Prothonotary and Senior Master is directed to file prosecution in the Court of the Metropolitan Magistrate against petitioner No. 2 for having committed an offence punishable under Sections 193, 196, 199 and 200 of the Indian Penal Code. As we are directing prosecution against petitioner No. 2, it is not necessary to take any proceedings under the Contempt of Courts Act. The papers and proceedings of Writ Petition No. 2116 of 1991 and Writ Petition No. 3357 of 1990 along with companion Writ Petition No. 2117 of 1991 and Writ Petition No. 3358 of 1990 to be kept under seal by the Prothonotary and Senior Master and to be produced in the Court of Metropolitan Magistrate as and when necessary.
We wish to add that in the companion Writ Petition No. 3358 of 1990, petitioner No. 2 had made identical false declaration in respect of other bills of entries for seeking refund. The Prothonotary and Senior Master is directed while lodging the complaint to include the false declaration in the companion petition also for filing charges against petitioner No. 2.
7. Companion Writ Petition No. 2117 of 1991 is also summarily dismissed.