Orissa High Court
Hotel Alankar (P) Ltd. vs S.P. Nanda on 7 January, 1992
Equivalent citations: 1992CRILJ1788
Author: B.L. Hansaria
Bench: B.L. Hansaria
JUDGMENT B.L. Hansaria, C.J.
1. Shri S. P. Nanda, the Managing Director of Orissa State Financial Corporation (for short, 'the Corporation'), has faced this proceeding initiated by this Court suo motu on 14-11-1990 being prima facie satisfied from the averments made by the petitioner in Misc. Case No. 5556 of 1990, arising out of O.J.C. No. 4213 of 1990, about commission of criminal contempt by the Managing Director inasmuch as the acts and words attributed to him tended, inter alia, to lower the authority of this Court. Pursuant to show cause notice issued on that day, the Managing Director appeared in person on 16-11-1990 and denied the averments made by the petitioner by filing counter affidavit along with which affidavits of some other employees of the Corporation were filed to support the stand taken by the Managing Director in his affidavit. Because of the denial by Shri Nanda of the averments made by the petitioner, she filed her rejoinder on 19-11-1990 and thereafter examined herself in support of her case. The examination, however, took place on 26-11-1991 as the petitioner could not make herself available earlier because she was away at Bombay for a long period in connection with the treatment of her son in Tata Memorial Hospital. The petitioner was duly cross-examined. Arguments of learned counsel of the parties were heard on 18-12-1991.
2. The crux of the allegation made by the petitioner against Shri Nanda is that when on 13-11-1990 she had gone to the office of the Corporation situated at Cuttack with a certified copy of this Court's order passed on 12-11-1990 along with a banker's cheque for Rs. 10,000/- and had met Shri Nanda at about 2 p.m. in his office and requested him to act in accordance with the order of 12-11-1990, Shri Nanda after going through the certified copy of the order suddenly flared up and contemptuously threw away the certified copy and the banker's cheque on the face of the petitioner and in a very angry and loud voice asked the petitioner to go out. The further allegation is that Shri Nanda then uttered very harsh and disparaging remarks against this Court in particular and the entire judiciary in general.
3. The defence of Shri Nanda is that the petitioner had not met him on 13-11-1990 not only at about 2 p.m. but during his entire stay in the office on that day which was from about 1-30 p.m. to 6-45 p.m. This stand of Shri Nanda has been supported by (1) his two Personal Assistants, (2) the peon of the Corporation attached to Shri Nanda's office, (3) the Security Assistant of the Corporation, (4) the Deputy General Manager of the Corporation and (5) the Diarist-cum-Despatcher in the Managing Director's Section of the Corporation.
4. On the face of what is stated above, the first point for examination is whether the petitioner had at all met Shri Nanda on 13-11-1990 at about 2 p.m., or for that matter, at any other time. Shri Mukherjee urges that the case of the petitioner in this regard has to be believed because having obtained a certified copy of the order passed by this Court on 12-11-1990 by which it had ordered for the release of the seizure of the hotel in question and had also directed preparation of a list of inventory in presence of the petitioner or her representative, there was every reason for the petitioner to bring to the notice of the Corporation at the earliest about the contents of the order on 12-11-1990. It is submitted by the learned counsel that urgency of the matter is writ large on the face of it inasmuch as on special prayer being made, this Court had entertained the writ petition on the date of the filing itself which was 12-11-1990 and had passed the order to release the seizure of the hotel on condition, inter alia, that the petitioner would pay a sum of Rs. 10,000/- by the next day. It is because of this that urgent certified copy of the order was obtained on 12-11-1990 itself on being so ordered by the Court and banker's cheque of Rs. 10,000/-was obtained on 13-11-1990. All these, acts being done, it was only highly natural on the part of the petitioner to have carried the same to the office of the Corporation as, otherwise, the order of release from seizure would have become inoperative. Shri Nanda being the Managing Director of the Corporation at the relevant time, the petitioner must have thought it fit, argues the counsel, to meet him to enable him to pass necessary instruction to comply with this Court's order.
5. To persuade us to accept the case of the petitioner, Shri Mukherjee further contends that without loss of time the petitioner straight came to the Court from the Corporation's office and informed her advocate as to what had happened inside the office room of the Managing Director. The counsel drew up a petition on 13th itself which was sworn also on that day and filed in the Court on the next day and was taken up by the Court on that day which resulted in the initiation of the present contempt proceeding.
6. By referring to the evidence given by the petitioner, Shri Mukherjee has also submitted that the petitioner was able to stand the rigours of cross-examination and the detailed description given by her about the room of the Managing Director in cross-examination would clearly testify the truthfulness of the case of the petitioner inasmuch as without the petitioner having gone inside the room of the Managing Director, she would not have been able to give so correct a description about the room.
7. In countering the submission of Shri Mukherjee, it is urged by Shri Misra that the statements made by the petitioner in her rejoinder filed on 19-11-1990 are so discrepant to the evidence given by her on 26-11-1991 that no reliance can be placed on the case made out by the petitioner. In this connection, our particular attention is drawn to the fact that though according to the statement made in the rejoinder that when the petitioner had entered the room of the Managing Director, there was no peon outside the same, whereas as per the evidence given, the petitioner had handed over a slip to the peon who was sitting outside the office of the Managing Director for handing over the same to the Managing Director. The further evidence of the petitioner is that on being asked by the peon to take prior appointment from the Personal Assistant attahced to the Managing Director, she entered inside the office room since the matter was urgent. Shri Misra contends that because of this vital discrepancy, no reliance should be placed on the statement of the petitioner that she had met Shri Nanda on 13-11-1990. Shri Misra has also urged that if the petitioner would have come out from the chamber of Shri Nanda with tears in her eyes, as is her case, the same would not have gone unnoticed by others who were sitting outside the office of the Managing Director because of which the petitioner must have examined at least one of those persons in corroboration of her case, which has not been done. As to the description of the room of the Managing Director given by the petitioner, Shri Misra states that because the petitioner had visited the office of the Managing Director for 10-15 times in connection with her loan obtained from the Corporation, as is stated by her in cross-examination, the description given would not lend any assurance to the case of the petitioner that she had met Shri Nanda on 13-11-1990.
8. In reply, Shri Mukherjee contends that as the petitioner had given her evidence after about a year of the occurrence, she might have made some mistake about the presence of the peon outside the office of the Managing Director. It is submitted that the aforesaid discrepancy is not vital and if all the facts and circumstances and probabilities of the case are borne in mind, the visit of the petitioner to the office of the Managing Director on 13th cannot at all be disbelieved.
9. We have duly applied our mind to the aforesaid aspect of the matter and have entertained no doubt about the veracity of the case of the petitioner that she had gone to the office of the Managing Director on 13-11-1990. We have said so because any reasonable person would have taken the step of going to the office of the Corporation on 13th itself because by the order passed on 12th, this Court had ordered for the release of the seizure on condition that the payment of a sum of Rs. 10,000/- is made by 'tomorrow'. The urgent step taken for obtaining the certified copy on 12th itself and of procuring the banker's cheque of Rs. 10,000/- on 13th would have been a meaningless exercise if the cheque would not have been tendered on 13th. No prudent person could have taken the risk of not depositing the money with the Corporation on 13th as seizure had been lifted by this Court on condition that payment was made on 13th. The further fact that the petitioner got in touch with her advocate on 13th itself who prepared the petition which was sworn to by the petitioner also on that day amply satisfy our mind that the petitoner has not come out with a false case in this regard. As is often said, witnesses may lie, circumstances do not. There are tell-tale circumstances in the case as noted above to believe the averment of the petitioner that she had gone to the office of the Corporation on 13th and had met the Managing Director. As regards the discrepancy in the two statements relating to presence or absence of the peon, we would state that discrepancies in matters of detail or inconsequential aspects cannot affect the substratum of a case -- the same being meeting of the two concerned persons on 13th so far as the present proceeding is concerned, about which we entertain no doubt for reasons already stated.
10. As regards non-examination of any other person to corroborate the statement of the petitioner, it is urged by Shri Mukherjee that as the petitioner had not been accompanied by anybody else while going to the office of the Managing Director, she could not have produced any witness to corroborate her statement. In this connection, Shri Misra has submitted that there was nothing to prevent the petitioner from examining Jayant Satpathy to whom the incident of 13th had been narrated by the petitioner, as stated by her in cross-examination. AS to this, Shri Mukherjee contends that he being a member of the staff of the petitioner, his evidence could not have lent weight to the statement of the petitioner as Satpathy could have been well characterised as an interested witness. As regards the contention of Shri Misra that if the petitioner would have come out with tears from the chamber of the Managing Director, the same would have created a scene to be witnessed by many who were sitting in the verandah of the room (which fact is admitted by the petitioner in cross-examination) one among whom could have been examined to corroborate the statement of the petitioner Shri Mukherjee submits that the petitioner was in such a melancholy mood at that time that she could not have marked anybody in particular among the persons who were sitting outside in the verandah. It is because of this that nobody among those people could be cited by the petitioner as her witness. We accept this contention of Shri Mukherjee.
11. Because of what is stated above, we would not waterdown the weight of petitioner's statement because of non-examination of anybody to corroborate her. It is trite law that a Court can accept the happening of an occurrence by relying on the evidence of a solitary person. In this connection, reference may be made to Suresh v. State of U.P., AIR 1981 SC 1122 : (1981 Cri LJ 746), where a person was found guilty of a serious offence even like murder by relying on the solitary evidence of one witness, that too aged about five years. Of course, the evidence of such a person must inspire full confidence. As to this, Shri Misra urges that the petitioner cannot be said to be a witness of the type on whose sole evidence we should accept the case put up by her inasmuch as the petitioner not having made full disclosure regarding the amount of loan outstanding against her in the writ petition, the petitioner's creditworthiness has become impeachable. In this connection, it is also submitted that the statement made by the petitioner in cross-examination to the effect that she did not remember if anybody else had accompanied her to the office of the Managing Director would show that the petitioner was giving evasive answers which throws doubt on her straight-forwardness.
12. We have considered the aforesaid points raised by Shri Misra to shake the credibility of the evidence given by the petitioner, but the circumstances of the case which we have noted above do not permit us to take any other view than the one that the petitioner must have met Shri Nanda on 13th in his office. As already pointed out, the circumstances are so well knit that no reasonable person can doubt the veracity of the case of the petitioner that she had met the Managing Director in his office on 13th. Even if it is conceded that the present is not a fit case to accept this part of petitioner's case by relying on her statement alone for reasons pointed out by Shri Misra, we would state that whatever weakness might have been introduced in the case of the petitioner because of the aforesaid shortcomings in her evidence, the same is more than made up by the strength of the circumstances mentioned above.
13. Before summung up this aspect, we have to say something about the affidavits filed by the contemner in support of his case. As all the six affidavits have emanated from the employees of the Corporation subordinate to Shri Nanda, we have to accept the contention of Shri Mukherjee that we may not place any reliance on those affidavits to disbelieve the case of the petitioner as these deponents could have been well prevailed upon to stand with their boss/superior officer.
14. The next question for consideration is as to whether in the meeting that had taken place between the petitioner and Shri Nanda, the latter had done any act or made any utterances which tended to lower the authority of this Court. The case of the petitioner in this regard, as already noted, is that after going through the certified copy of the order passed by this Court on 12-11-1990, Shri Nanda suddenly flared up and contemptuously threw away the certified copy on the face of the petitioner and made very harsh and disparaging remarks against this Court in particular and the entire judiciary in general. Shri Nanda having denied to have met the petitioner at all on 13th, he does not naturally admit the aforesaid acts and utterances attributed to him. In this connection, he has stated in his show cause that the petitioner has told blatant lie to gain the sympathy of this Court to get favourable orders.
15. We shall first see whether the case of the petitioner that Shri Nanda had suddenly flared up after going through the certified copy of the order and had contemptuously thrown away the certified copy is acceptable or not. That Shri Nanda had refused to accept the certified copy of the order along with which banker's cheque for Rs. 10,000/- was enclosed, is apparent from the face of the record inasmuch as had Shri Nanda accepted the aforesaid papers on 13th on being produced by the petitioner, there would have been no occasion for the petitioner to pray this Court on 14th to depute a special peon to deliver the order dated 12th along with the banker's cheque to Shri Nanda. The order passed on 14-11-1990 in Misc. Case No. 5556 of 1990 shows that this prayer of the petitioner was accepted and a special messenger was deputed for the aforesaid purpose. We would, therefore, accept the case of the petitioner that on 13th Shri Nanda had refused to accept the certified copy of the order passed on 12th along with which banker's cheque of Rs. 10,000/ - was enclosed.
16. The further question is whether Shri Nanda had flared up and had contemptuously thrown away the aforesaid documents on the face of the petitioner. If the case of the Corporation, as put up in the counter-affidavit in the connected O.J.C. is noted -- the same being that the entire loan outstanding against the petitioner at the relevant time being rupees forty lakhs and odd because of which the seizure was made -- the indignation of the Managing Director at the order of this Court to release the seizure on payment of a paltry amount of Rs. 10,000/ - together with a draft for Rs. 27,000/ - lying in the locker of the hotel can well be understood. Human nature being what it is, the Managing Director must have felt that this Court's order dated 12-11-1990 was not at all justified and so, he could have well reached by showing his indignation at the order by flaring up and throwing away the certified copy of the order. Even a rational human being might have reacted as above on the heat of the moment. It is known that at times it becomes difficult for a person to check his impulses and he does indulge in such an activity which on deeper reflection may appear to be not called for.
17. This being not the first case where this Court had intervened either to stop the auction of seized property or to release seized properties, as would appear from large number of orders being passed by this Court on approaches being made by the persons who had obtained loans from the Corporation, and as the Corporation, more particularly its Managing Director, must have been feeling not very happy with the aforesaid orders of this Court, (in this connection the statement of Shri Nanda in para 10 of his counter that "this Deponent is a law abiding citizen and had complied with the order of the Hon'ble High Court wherever the same was not agitated before the higher forum" may be seen), we would accept the case of the petitioner that Shri Nanda had flared up upon seeing the certified copy and thrown the same on the face of the petitioner on knowing that this Court had ordered for the release of seizure on payment of a sum of Rs. 37,000/ -in all whereas the outstanding loan was more than rupees forty lakhs, which had lead the Corporation to seize the hotel in question. At this stage, it may, however, be pointed out that the order to release the seizure on payment of Rs. 37,000/- had, however, been passed by this Court on a contention being advanced by the counsel for the petitioner that as per the new schedule agreed by the Corporation, the petitioner was to pay a further sum of Rs. 9,000/- and odd if adjustment was made of a sum of Rs. 1,43,644.28 as mentioned in the order of 12th itself. It may, however, be stated that whether this Court had justification in passing the order on 12-11-1990 is not a question to be decided in this proceedings; indeed, it is irrlevant for the present case.
18. The last question is whether any disparaging remark was made by Shri Nanda against this Court in particular and the entire judiciary in general. On this part of the case, the statement of the petitioner as made in her rejoinder dated 19-11-1990 to which our attention has been invited by Shri Misra is that the utterances of Shri Nanda then were "To hell with your High Court order.... I do not care for the Judges etc." as mentioned in para 3, Shri Misra then draws our attention to the utterances said to have been made by Shri Nanda as per the evidence of the petitioner, recorded on 26-11-1991, which were as below :--
SE KAHILE KANA HIGH COURT ORDER ANI MOTE DEKHAUCHHA? TAME JANICHHA KAHA SANGE TOME KATHA KAHUCHHA. HIGH COURT JUDGES ARE MERE LL.B., MU JANE I.A.S."
The English rendering of the aforesaid is:--
He told, are you showing me the High Court order? Don't you know with whom you are talking. High Court Judges are mere LL.B. I am an I.A.S."
19. Shri Misra contends that as there is wide devergence regarding the uttarances said to have been made by Shri Nanda in the statements as made by the petitioner, we may not accept that the contemner had made any disparaging remark either against this Court or against the judiciary in general. Shri Mukherjee, however, urges that as the petitioner was giving her evidence more than one year after the occurrence, we may not place much importance on the divergence in the two statements of the petitioner relating to the actual words used by Shri Nanda; we should rather see to the substance of the matter which is that some remarks not befitting the dignity and respect of High Court Judges were made by the contemner.
20. As the proceeding relates to commission of criminal contempt, the punishment for which may extend to simple imprisonment for six months, we would say that because of the divergence in the statements of the petitioner relating to the utterances made by Shri Nanda being too wide, it is a fit case where benefit of doubt should be made available to Shri Nanda, and so we hold that the petitioner has failed to establish the aforesaid allegation by such standard of proof as is required in a proceeding of the present nature. We would, however, like to observe that we have not felt inclined to accept the case of Shri Nanda put up in this regard in his affidavit that the petitioner had told blatent lie to gain sympathy of this Court and to get favourable order, because the order favourable to the petitioner, if the one passed on 12th can be so characterised, had been passed before the allegation of making disparaging remark had been made in the petition sworn on 13th. We would, therefore, do not find any motive on the part of the petitioner in having made this allegation against Shri Nanda falsely. In this connection we would state further that a loanee like the petitioner having to re-pay as much as about forty lakhs of rupees to the Corporation, if the case of the Corporation as put up in the counter affidavit in this regard be true, just cannot afford to incur the displeasure of the Managing Director of the Corporation, which would be the result if false allegation is made.
21. May we say at this stage that one circumstances has lent further assurance in our mind about the correctness of the allegation which we have accepted as true. The same is the taking of a false stand by Shri Nanda in denying meeting with the petitioner on 13th at any time. Many a time a false plea is taken as a piece of circumstances against the person taking such a plea or, to put it differently, in support of the rival case. In this connection, we may also incidentally refer to the following statement made by Shri Nanda in para 10 of his counter affidavit:--
...there is no reason or occasion for this Deponent to pass any remark against the High Court or the judiciary as a whole as this Deponent is a law abiding citizen and had complied with the orders of the Hon'ble High Court wherever the same was not agitated before the higher forum....
We have referred to the aforesaid statement though the same related to the allegation of making of disparaging remark regarding which we have given benefit of doubt to Shri Nanda, as the same has been deemed relevant by us as an explanation even for the other contumacious conduct which we have believed to be true, namely, throwing away of the certified copy of this Court's order passed on 12th at the face of the petitioner. As to the statement that Shri Nanda had "no reason or occasion" to do as alleged, we would say that, as already pointed out, there were reasons for Shri Nanda to feel unhappy at the order of 12th, which might have led him to re-act the way which has been alleged by petitiner. In so far as the assertion of being "a law abiding citizen", it may be stated that this trait of character has relevance qua an allegation of wilful violation of this Court's order. In so far as the commission of criminal contempt is concerned, this has no relevance. If the statement would have been that Shri Nanda has very high regard for the judiciary, that would have been no different matter.
22. Because of all the above, we would hold that Shri Nanda had by his act in question tended to lower the authority of this Court. He is, therefore, found guilty of criminal contempt.
23. This takes us to the question of sentence, keeping in view the fact that the contumacious conduct of Shri Nanda which we have held to have been established fully to our satisfaction consists of an act which might have been committed on strong impulse, we are of the opinion that it is a fit case where, in the absence of tendering of any apology by Shri Nanda, which he may not have chosen to do because of his stand that he had not met the petitioner at all on 13th, not to speak of having acted as alleged by the petitioner and having made any disparaging remark against the High Court or against the judiciary as a whole, the contemner may be given the benefit of Section 3 of the Probation of Offenders Act, 1958 because no such previous conviction has been proved against him and the circumstances of the case including the nature of the offence and the character of the offender so demand. Therefore, instead of sentencing Shri Nanda to any punishment, we propose to release him after due admonition. Let Shri Nanda be present in Court for this purpose on 17th January, 1992, at 10.30 a.m. B.N. Dash, J.
24. I agree.