Gujarat High Court
Sonal Hardikbhai Thakkar vs State Of Gujarat on 20 March, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/690/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 690 of 2018
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SONAL HARDIKBHAI THAKKAR
Versus
STATE OF GUJARAT
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Appearance:
MR.MANAN BHATT(6535) for the PETITIONER(s) No. 1
KHUSHBU H DANECHA(7099) for the RESPONDENT(s) No. 2
MR MITESH AMIN, PUBLIC PROSECUTOR for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 20/03/2018
ORAL ORDER
1. By this application under Article227 of the Constitution of India, the applicant - original complainant has prayed for the following reliefs: 7(a) To pass an appropriate order, direction and/or writ to quash and set aside the award passed by learned the 10th Additional Sessions Judge, City Civil & Sessions Court [Lok Adalat], Ahmedabad dated 13/08/2016 passed in Criminal Appeal No.186 of 2014 (AnnexureA) being illegal, unlawful, nonest and void abinitio;
(b) To pass an appropriate order, direction and/or writ declaring that the award passed by learned the 10th Additional Sessions Judge, City Civil & Sessions Court [Lok Adalat], Ahmedabad dated 13/08/2016 passed in Criminal Appeal No.186 of 2014 (AnnexureA) is invalid, illegal, nonest and void abinitio as obtained by playing fraud/misrepresentation;
(c) To pass an appropriate order, direction and/or writ directing the City and Sessions Court, Ahmedabad to restore the Criminal Appeal No.186 of 2014 to its original file for further bearing and adjudication;
(d) Pending admission and hearing of the petition, this Hon'ble Court may be pleased to direct the City and Sessions Court, Ahmedabad to Page 1 of 13 R/SCR.A/690/2018 ORDER take necessary action for cancelling the bail and/or to send Respondent No.2 in Judicial Custody for the interest of justice & equity;
(e) Adinterim relief in para (d) may be granted;
(f) Any such other and further orders may be passed in the interest of Justice and equity.
2. On 14/02/2018, this Court passed the following order:
2. The writapplicant herein is the original complainant. He lodged a complaint against the respondent No.2 for the offence punishable u/s. 138 of the Negotiable Instruments Act. The complaint was filed in the Court of the learned Additional Chief Metropolitan Magistrate, Negotiable Instruments Act, Court No.30, Ahmedabad. The same came to be registered as the Criminal Case No. 291/2012. The trial Court convicted the respondent No.2 for the offence punishable under section 138 of the Negotiable Instruments Act. The respondent No.2 challenged the judgment and order of conviction before the City Civil and Sessions Court by filing the Criminal Appeal No. 186/2014. The Criminal Appeal No.186/2014 was put before the Lok Adalat for the purpose of settlement, on 30.08.2016. The Additional Sessions Judge, City Civil and Sessions Court, Court No.10, Lok Adalat, Ahmedabad, passed the following order: : ORDER BELOW EXH.1 :
"Today, both the parties remained present before the Lok Adalat. The parties have prayed for the compounding of the offence as contemplated by Section 147 of the said Act as the appellant and the respondent No.2 have arrived at a settlement and contents of the compromise purshish have been accepted by both the parties. Hence, in view of the nature of the offence in question and the fact that the complainant and accused have already entered into compromise, the Court thinks it proper to grant permission in facts and circumstances of the present case to compound. Hence, the following order is passed:
ORDER
1. The present Criminal Appeal is hereby ordered to be allowed and disposed of subject to the appellant will have to pay Rs.12,50,000/ within one year from the date of this order to the respondent no.2 and within a three months from the release of the appellant, appellant has to further pay Rs.50,000/ to the respondent no.2. If the appellant fails to comply with the terms and conditions of the compromise purshish and fails to pay the amount as agreed by the parties in the compromise purshish, then the respondent no.2 can initiate appropriate proceedings against the appellant.Page 2 of 13
R/SCR.A/690/2018 ORDER
2. Compromise purshish which was filed by the parties is recorded.
The appellant is hereby ordered to be acquitted under section 320(8) of the Criminal Procedure Code read with Section 147 of the Negotiable Instruments Act from the offence punishable under Section 138 of Negotiable Instrument Act and judgment and order dated 11.04.2014 passed by the Learned Additional Chief Metropolitan Magistrate, Negotiable Instruments Act Court No.30, Ahmedabad in Criminal Case No.291/2012 is hereby ordered to be quashed and set aside.
3. The fine and/or deposit, if any, deposited by the accused before the Court, be paid to the appellant after making due verification accordingly.
4. The order be intimated to learned Metropolitan Magistrate Court, Ahmedabad. Record and proceedings be sent back.
5. Necessary Yadi be sent to the Jail authority for releasing the appellant as per Rules.
Pronounced in open court on this 13th day of August, 2016.
3. It appears that the respondent No.2 did not pay a single penny. The Court below clarified that if the appellant failed to comply with the terms and conditions of the compromise pursis and pay the amount as agreed by the parties, then it would be open for the respondent No.2 to initiate the appropriate proceedings against the appellant i.e. the respondent No.2 herein.
4. On 29.01.2018, the following order was passed by this Court:
Let notice be issued to the respondents, returnable on 14th February 2018. The learned APP waives service of notice for and on behalf of the respondent no.1 State of Gujarat. Direct service to the respondent no.2.
On the returnable date, notify the matter on top of the board.
5. Although the respondent No.2 has been served with the notice issued by this Court, yet has chosen not to remain present before this Court either in person or through an advocate and oppose this application. The case, prima facie, appears to be outright of fraud.
6. The Registry is directed to issue a nonbailable warrant of arrest of the respondent No.2, to be served through the Isanpur Police Station, Ahmedabad making it returnable within two weeks. The respondent No.2 shall be produced before this Court on the warrant being executed. Direct service is permitted.
3. Thereafter, on 23/02/2018, the following order was passed: This matter is not on the regular board today. In the wake of certain Page 3 of 13 R/SCR.A/690/2018 ORDER developments, the registry was directed to prepare a separate board and notify this matter. That is how, the matter has come up.
Pursuant to the order passed by this Court dated 14th February 2018, the NonBailable Warrant issued for the arrest of the respondent no.2 has been executed and the respondent no.2 came to be arrested by the Isanpur Police Station, Ahmedabad.
The respondent no.2 was produced today before this Court. He files an undertaking, which reads as under :
"I, Parth Hemendra Jani, Aged 33 years, Resp. No. 2, Male, Residing at 30, Krishna Corner Society, Behind Anannya Bunglows, Near Mangleshwar Mahadev, Ishanpur, Ahmedabad, do undertake and state that:
1. Pursuant to the order dated 14/2/2018, I am arrested and currently in a custody of Isanpur Police Station. I state and submit that this Honble Court may accept my unconditional apology.
2. I state and submit that I shall pay sum of Rs.13,00,000/ as agreed by me through order dated 13/8/2016 to the petitioner herein.
3. I humbly request to this Honble Court to grant me 15 days time starting from tomorrow.
4. I undertake and promise to pay the above said amount within 15 days as stated herein above.
5. I state and submit that my advocate made me understand the consequences of nonabiding and noncompliance to this present undertaking. I therefore, state in my full mental capacity to undertake and abide this terms of undertaking.
6. I therefore, earnestly request this Honble Court to permit me to file and furnish relevant application/Bond to appropriate court for my release.
Whatever stated herein above is correct and true and I believe the same to be true and correct. I am not furnishing this undertaking under any threat or coercion. This undertaking reflects my true and correct intentions."
The undertaking is ordered to be taken on record.
Having heard the learned counsel appearing for the parties and having considered the undertaking filed by the respondent no.2 on oath, the respondent no.2, namely Parth Hemendra Jani, is ordered to be released on personal bond of Rs.5,000=00 (Rupees Five Thousand Only).
Page 4 of 13R/SCR.A/690/2018 ORDER The police officer concerned shall produce the respondent no.2 Parth Hemendra Jani before the Metropolitan Magistrate, Ahmedabad, and on his production before the Metropolitan Magistrate, the respondent no.2 shall furnish the bail.
Post this matter on 13th March 2018. The respondent no.2 Parth Hemendra Jani shall remain present before this Court on 13th March 2018.
The respondent no.2 shall be produced by the police concerned today itself before the Metropolitan Magistrate, Ahmedabad, so that he can furnish the bail.
A copy of the undertaking be furnished to Mr.Manan Bhatt, the learned counsel appearing for the applicant.
A copy of this order shall also be furnished to Ms.Moxa Thakkar, the learned APP, for onward communication.
Direct service today.
4. The undertaking, which was filed by the respondent no.2, reads as under: I, Parth Hemendra Jani, Aged 33 years, Resp. No.2, Male, Residing at 30, Krishna Corner Society, Behind Anannya Bunglows, Near Mangleshwar Mahadev, Ishanpur, Ahmedabad, do undertake and state that:
1. Pursuant to the order dated 14/2/2018, I am arrested and currently in a custody of Isanpur Police Station. I state and submit that this Hon'ble Court may accept my unconditional apology.
2. I state and submit that I shall pay sum of Rs.13,00,000/ as agreed by me through order dated 13/8/2016 to the petitioner herein.
3. I humbly request to this Hon'ble Court to grant me 15 days time starting from tomorrow.
4. I undertake and promise to pay the above said amount within 15 days as stated herein above.
5. I state and submit my advocate made me understand the consequences of nonabiding and noncompliance to this present undertaking. I therefore, state in my full mental capacity to undertake Page 5 of 13 R/SCR.A/690/2018 ORDER and abide this terms of undertaking.
6. I therefore, earnestly request this Hon'ble Court to permit me to file and furnish relevant application/Bond to appropriate court for my release.
Whatever stated herein above is correct and true and I believe the same to be true and correct. I am furnishing this undertaking under any threat or coercion. This undertaking reflects my true and correct intentions.
Ahmedabad. sd/
Date: 23/2/2018 Parth Hemendra Jani
5. Having regard to the conduct of the respondent no.2, I have no doubt in my mind that he played fraud with the appellate Court, at the time, when the Criminal Appeal No.186 of 2014 came to be disposed of in view of the undertaking, which was given by the respondent no.2 to make the payment within a period of one year. It is clear that the respondent no.2 had no intention of making any payment. He, however, was desperate to get out of the jail and in such circumstances, misled the appellate Court and got himself acquitted.
6. Any judgment or order obtained by fraud is a nullity and nonest in the eye of law. It could be challenged in any Court at any time in appeal, revision, writ or even in collateral proceedings.
7. In the aforesaid context, I may refer to and rely upon a decision of the Supreme Court in the case of 'A.V.Papayya Sastry and Ors. Vs. Government of A.P. and Ors. reported in AIR 2007 SC 1546. The relevant observations as contained in Paragraphs19 to 24 are extracted hereunder:
19. Now, it is well settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed;
Page 6 of 13R/SCR.A/690/2018 ORDER "Fraud avoids all judicial acts, ecclesiastical or temporal".
It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgment, decree or order by the first Court or by the final Court has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings.
20. In the leading case of Lazarus Estates Ltd. v. Beasley, (1956) 1 All ER 341 : (1956) 1 QB 702 : (1956) 2 WLR 502, Lord Denning observed :
"No judgment of a court, no order of a Minister, can be allowed to stand, if it has been obtained by fraud."
21. In Duchess of Kingstone, Smith's Leading Cases, 13th Edn., p.644, explaining the nature of fraud, de Grey, C.J. stated that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to show that the court was 'mistaken', it might be shown that it was 'misled'. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely, that on the merits, the decision was one which should not have been rendered, but it can be set aside, if the court was imposed upon or tricked into giving the judgment.
It has been said; Fraud and justice never dwell together (fraus et jus nunquam cohabitant); or fraud and deceit ought to benefit none (fraus et dolus nemini patrocinari debent).
22. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of 'finality of litigation' cannot be stretched to the extent of an absurdity that it can be utilized as an engine of oppression by dishonest and fraudulent litigants.
23. In S. P. Chengalvaraya Naidu (dead) by LRs. v. Jagannath (dead) by LRs. and Ors. (1994) 1 SCC 1 : JT 1994 (6) SC 331, this Court had an occasion to consider the doctrine of fraud and the effect thereof on the judgment obtained by a party. In that case, one A by a registered deed, relinquished all his rights in the suit property in favour of C who sold the property to B. Without disclosing that fact, A Page 7 of 13 R/SCR.A/690/2018 ORDER filed a suit for possession against B and obtained preliminary decree. During the pendency of an application for final decree, B came to know about the fact of release deed by A in favour of C. He, therefore, contended that the decree was obtained by playing fraud on the court and was a nullity. The trial court upheld the contention and dismissed the application. The High Court, however, set aside the order of the trial court, observing that "there was no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". B approached this Court. Allowing the appeal, setting aside the judgment of the High Court and describing the observations of the High Court as 'wholly perverse', Kuldip Singh, J. stated :
"The Courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Propertygrabbers, tax evaders, bankloandodgers and other unscrupulous persons from all walks of life find the courtprocess a convenient lever to retain the illegalgains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation". (Emphasis supplied) The Court proceeded to state: "A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would he guilty of playing fraud on the court as well as on the opposite party".
The Court concluded: "The principle of 'finality of litigation' cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants".
24. In Indian Bank v. Satyam Fibres (India) Pvt. Ltd., (1996) 5 SCC 550 : JT 1996 (7) SC 135, referring to Lazarus Estates and Smith v. East Elloe Rural District Council, 1956 AC 336 : (1956) 1 All ER 855 : (1956) 2 WLR 888, this Court stated;
"The judiciary in India also possesses inherent power, specially under Section 151 C.P.C., to recall its judgment or order if it is obtained by Fraud on Court. In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the Decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the Constitution of the Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to Page 8 of 13 R/SCR.A/690/2018 ORDER punish unseemly behaviour. This power is necessary for the orderly administration of the Court's business".
(Emphasis supplied)
8. I may also refer to and rely upon a decision of the Supreme Court in the case of 'Commissioner of Customs (Preventive) Vs. Aafloat Textiles (I) Pvt. Ltd. and Ors.' reported in (2009) 11 SCC 18. In the said judgment, the Supreme Court has explained the term "Fraud". The relevant observations as contained in Paragraphs9 to 16 are extracted hereunder:
9. "fraud" means an intention to deceive; whether it is from any expectation of advantage to the party himself or from the ill will towards the other is immaterial. The expression "fraud" involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include and any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non economic or nonpecuniary loss. A benefit or advantage to the deceiver, will almost always call loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. (See Dr. Vimla v. Delhi Administration (1963 Supp. 2 SCR 585) and Indian Bank v. Satyam Febres (India) Pvt. Ltd. MANU/SC/0657/1996: AIR 1996 SC 2592 :
(1996 (5) SCC 550).
10. A "fraud" is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. (See S.P. Changalvaraya Naidu v. Jagannath MANU/SC/0192/1994 : AIR 1994 SC 853 : (1994 (1) SCC 1).
11. "Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and Page 9 of 13 R/SCR.A/690/2018 ORDER injury ensues therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. (See Ram Chandra Singh v. Savitri Devi and Ors. MANU/SC/0802/2003 : (2003 (8) SCC
319).
12. "Fraud" and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton's sorcerer, Comus, who exulted in his ability to, `wing me into the easy hearted man and trap him into snares'. It has been defined as an act of trickery or deceit. In Webster's Third New International Dictionary "fraud" in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Legal Dictionary, "fraud" is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Indian Contract Act, 1872 defines "fraud" as act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact, which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it was false. In a leading English case i.e. Derry and Ors. v. Peek (1886 90) All ER 1 what constitutes "fraud" was described thus: (All ER p. 22 B C) "fraud" is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false". But "fraud" in public law is not the same as "fraud" in private law. Nor can the ingredients, which establish "fraud" in commercial transaction, be of assistance in determining fraud in Administrative Page 10 of 13 R/SCR.A/690/2018 ORDER Law. It has been aptly observed by Lord Bridge in Khawaja v. Secretary of State for Home Deptt. (1983) 1 All ER 765, that it is dangerous to introduce maxims of common law as to effect of fraud while determining fraud in relation of statutory law. "Fraud" in relation to statute must be a colourable transaction to evade the provisions of a statute. "If a statute has been passed for some one particular purpose, a court of law will not countenance any attempt which may be made to extend the operation of the Act to something else which is quite foreign to its object and beyond its scope. Present day concept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power or defeating the provision of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations. The colour of fraud in public law or administration law, as it is developing, is assuming different shades. It arises from a deception committed by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. It must result in exercise of jurisdiction which otherwise would not have been exercised. The misrepresentation must be in relation to the conditions provided in a section on existence or nonexistence of which the power can be exercised. But nondisclosure of a fact not required by a statute to be disclosed may not amount to fraud. Even in commercial transactions nondisclosure of every fact does not vitiate the agreement. "In a contract every person must look for himself and ensures that he acquires the information necessary to avoid bad bargain. In public law the duty is not to deceive. (See Shrisht Dhawan (Smt.) v. M/s. Shaw Brothers, MANU/SC/0295/1992 : AIR 1992 SC 1555 : (1992 (1) SCC 534).
13. In that case it was observed as follows:
"Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct. Michael levi likens a fraudster to Milton's sorcerer, Comus, who exulted in his ability to, 'wing me into the easyhearted man and trap him into snares'. It has been defined as an act of trickery or deceit. In Webster's Third New International Dictionary fraud in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Legal Dictionary, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment Page 11 of 13 R/SCR.A/690/2018 ORDER of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Contract Act defines fraud as act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of the fact with knowledge that it was false. In a leading English case Derry v. Peek [(188690) ALL ER Rep 1: (1889) 14 AC 337 (HL)] what constitutes fraud was described thus: (All Er p. 22 BC).
`Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false'."
14. This aspect of the matter has been considered by this Court in Roshan Deen v. Preeti Lal (2002 (1) SCC 100) Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education (2003 (8) SCC
311), Ram Chandra Singh's case (supra) and Ashok Leyland Ltd. v. State of T.N. and Another MANU/SC/0020/2004 : (2004 (3) SCC 1).
15. Suppression of a material document would also amount to a fraud on the court. (see Gowrishankar v. Joshi Amba Shankar Family Trust MANU/SC/0555/1996 : [1996] 2 SCR 949 : (1996 (3) SCC 310) and S.P. Chengalvaraya Naidu's case (supra).
16. "Fraud" is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. Although negligence is not fraud but it can be evidence on fraud; as observed in Ram Preeti Yadav's case (supra)."
9. In view of the above, the order passed by the Additional Sessions Judge, City Civil & Sessions Court, Court No.10, Lok Adalat, Ahmedabad, 13/08/2016 in the Criminal Appeal No.186 of 2014 is hereby quashed and set aside. The Criminal Appeal No.186 of 2014 is Page 12 of 13 R/SCR.A/690/2018 ORDER revived and is ordered to be restored to its original file in the Court concerned.
10. In view of the above, the bail, which came to be furnished by the respondent no.2 before the Metropolitan Magistrate, Ahmedabad, pursuant to the order passed by this Court dated 23/02/2018 referred to above also stands cancelled. The respondent no.2 is directed to immediately surrender himself before the Court of the Metropolitan Magistrate before whom the bail was furnished. On his surrendering before the Court concerned, he shall be taken in custody and shall be forwarded to the jail concerned. In the event, if the respondent no.2 fails to surrender himself before the Metropolitan Magistrate, then a Non bailable Warrant shall be issued against him and the same shall be effected for the purpose of his arrest.
11. As the respondent no.2 has committed willful disobedience of the undertaking filed before this Court, he is also, primafacie, guilty of the Civil Contempt as defined under section 2(b) of the Contempt of Courts Act read with Article215 of the Constitution of India.
The Registry shall issue notice to the respondent no.2 returnable within three weeks calling upon him to showcause as to why the proceedings under the provisions of Contempt of Courts Act should not be initiated. The contempt proceedings shall be dealt with by the Hon'ble Court taking up the contempt matters.
12. With the above, this application is disposed of. Direct service is permitted.
(J.B.PARDIWALA, J) aruna Page 13 of 13