Bombay High Court
Pankajj S. Bansal vs Arunkumar Ramswarup Agrawal And Ors on 18 February, 2020
Author: Sadhana S. Jadhav
Bench: Sadhana S. Jadhav
1 1.appp959.19.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 959 OF 2015
IN
CRIMINAL BAIL APPLICATION NO. 1052 OF 2015
WITH
CRIMINAL BAIL APPLICATION NO. 1116 OF 2015
Pankaj S. Bansal. ..Applicant.
v/s.
Arunkumar Ramswarup Aggarwal & ors. ..Respondents.
WITH
CRIMINAL APPLICATION NO. 693 OF 2017
IN
CRIMINAL BAIL APPLICATION NO. 1116 OF 2015
Arunkumar Ramswarup Aggarwal ..Applicant.
v/s.
The State of Maharashtra & anr. ..Respondents.
WITH
CRIMINAL APPLICATION NO. 694 OF 2017
IN
CRIMINAL BAIL APPLICATION NO. 1052 OF 2015
Sunita Arunkumar Aggarwal ..Applicant.
v/s.
The State of Maharashtra & anr. ..Respondents.
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
2 1.appp959.19.doc
WITH
CRIMINAL APPLICATION NO. 788 OF 2016
IN
CRIMINAL BAIL APPLICATION NO. 1052 OF 2015
Arunkumar Ramswarup Aggarwal & anr. ..Applicants.
v/s.
The State of Maharashtra & ors. ..Respondents.
WITH
CRIMINAL APPLICATION NO. 211 OF 2019
IN
CRIMINAL APPLICATION NO. 959 OF 2015
IN
CRIMINAL BAIL APPLICATION NO. 1052 OF 2015
Arunkumar Ramswarup Aggarwal ..Applicant.
v/s.
The State of Maharashtra & anr. ..Respondents.
WITH
CRIMINAL APPLICATION NO. 212 OF 2019
IN
CRIMINAL APPLICATION NO. 959 OF 2015
IN
CRIMINAL BAIL APPLICATION NO. 1052 OF 2015
Sunita Arunkumar Aggarwal ..Applicant.
v/s.
The State of Maharashtra & anr. ..Respondents.
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
3 1.appp959.19.doc
WITH
INTERIM APPLICATION NO. 1 OF 2019
IN
CRIMINAL APPLICATION NO. 693 OF 2017
IN
CRIMINAL BAIL APPLICATION NO. 1116 OF 2015
Arunkumar Ramswarup Aggarwal ..Applicant.
v/s.
The State of Maharashtra & anr. ..Respondents.
WITH
INTERIM APPLICATION NO. 1 OF 2019
IN
CRIMINAL APPLICATION NO. 959 OF 2015
IN
CRIMINAL BAIL APPLICATION NO. 1052 OF 2015
Sunita Arunkumar Aggarwal ..Applicant.
v/s.
The State of Maharashtra & anr. ..Respondents.
WITH
INTERIM APPLICATION NO. 1 OF 2020
IN
CRIMINAL APPLICATION NO. 959 OF 2015
IN
CRIMINAL BAIL APPLICATION NO. 1052 OF 2015
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
4 1.appp959.19.doc
Arunkumar Ramswarup Aggarwal ..Applicant.
v/s.
The State of Maharashtra & anr. ..Respondents.
Mr. Shyam M. Kalyankar, advocate for applicant in APPP 959/15.
Mr. Subhash Jha a/w. Mr. Siddharth Jha a/w. Ms. Sanjana Pardeshi
a/w. Mr. Hare Krishna Mishra i/b. Law Global Advocates, advocate
for respondent No. 1.
Mr. Ghanshyam Upadhyay a/w. Mr. Kunal Jha i/b. Mr. Nilesh C.
Ojha, advocate for respondent No. 2.
CORAM : SMT. SADHANA S. JADHAV,J.
DATE : FEBRUARY 18, 2020.
P. C. :
1 Heard the learned Counsel for the applicant, learned
Counsel for the respondents and learned APP for State.
2 This is an application seeking cancellation of bail filed by
the original complainant in Crime No. 403 of 2014 registered at
Dadar Police Station for offence punishable under sections 406, 420
read with section 34 of the Indian Penal Code. Investigation was
transferred to Economic Offences Wing and therefore, it was
registered as Crime No. 102 of 2014. The applicant herein seeks
recall of the order dated 18/6/2015 passed by this Court, thereby
granting bail to the respondents. Pursuant to the registration of
offence, the respondents were taken into custody on 6/5/2015 and
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
5 1.appp959.19.doc
their application was rejected by the Sessions Court on 28/5/2015 and
thereafter, this Court had granted bail on 18/6/2015.
3 This application has had a chequered history and
therefore, it would be necessary to consider the case of the
prosecution, the circumstances in which the bail was granted and
the prolonged hearing of the application seeking cancellation of bail.
4 It is the case of the prosecution that on 23/12/2014 Pankaj
Bansal i.e. present applicant had lodged a report initially at Dadar
police station alleging that the complainant was introduced to the
accused through a common friends. That the accused happens to be
the director of Sunshine Caterers Private Limited. They had received
loan and investment from several people to be invested in their
contract business i.e. for supplying foods to the Railway Catering
Services. It is alleged that the accused persons had offered good
returns of the business, which they were carrying on and therefore,
they had requested the complainant to invest in their business. Upon
considering the lucrative proposal presented by the accused,
complainant and his family members had invested total amount of Rs.
7,96,00,000/-. The said amounts were partly paid by cheques and
partly by cash.
5 It is the case of the complainant that he had received
interest on investment to the tune of Rs. 1,76,00,000/- till April,
2013. It is alleged that in the meeting dated 20th May, 2013 the
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
6 1.appp959.19.doc
meeting was held between the complainant and the accused persons.
It was decided that the accused would pay total amount of Rs. 13
crores and accordingly 40 cheques were issued on 2 to 3 different
occasions. That the cheques were dishonoured and hence, accused
had requested the complainant not to prosecute them for the offence
punishable under section 138 of the Negotiable Instruments Act and
to show their bonafide, the accused had reissued 40 cheques once
again. Subsequently, the accused had expressed their difficulties to
the complainant and once again requested them not to present the
cheques for encashment. However subsequently, the complainant
had presented cheques for encashment. Said cheques were also
dishonoured and therefore, he had issued a statutory notice to the
accused. The accused had replied the said notice by stating that they
had already paid the said amount and that no amount was due to
be paid towards cheque. Thereafter, the accused had again
approached the complainant and requested for extension of time to
repay the amount and not to present cheques which were given on
third occasions. At the end of the period of 6 months, the
complainant was constrained to initiate criminal proceeding and
accordingly, had approached Dadar Police Station. Taking into
consideration the quantum of amount that was involved, investigation
was transferred to Economic Offences Wing.
6 Accused persons had filed an application seeking
enlargement on bail. The investigating officer had filed a report
that although accused had withdrawn an amount of Rs. 2.71 Crores,
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
7 1.appp959.19.doc
same was not used for the catering business. The report further
reveals that the complainant had deposited an amount of Rs. 7 Crores
17 Lakhs in the account of both the accused person out of which an
amount of Rs. 5,66,30,000/- was misappropriated by the accused. It
was also contended by the Investigating Agency that the amount of
Rs. 8.12 Crores included cash of Rs. 1.87 Crores.
7 The accused had filed Bail Application Nos. 151/BA/2015
and 153/BA/2015. Initially, it was contended before the learned
Magistrate that the entire transaction was of civil nature and that
there was no entrustment, as contemplated under section 406 of the
Indian Penal Code. Learned Magistrate in the Order dated 19/5/2015
had considered that the informant i.e. present applicant had filed
summary suit before the Hon'ble High Court bearing Summary Suit
Nos. 980/14 and 981/2014, wherein it was specifically contended that
friendly loan was extended to the accused. It was also observed by
the Magistrate that prior to the institution of the suit, the informant
had approached the police for taking suitable action against the
accused. It was observed by the learned Magistrate that the
prosecution had made out sufficient ground showing the
involvement of the accused in the commission of the offence.
Investigation was in progress and hence, the application was rejected
on 19/5/2015.
8 The accused had approached the Sessions Court by filing
Bail application No. 1474 of 2015. Learned Sessions Court while
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
8 1.appp959.19.doc
deciding the said application had observed that the accused had
voluntarily placed on record the memorandum of understandings
executed between the parties on 20 th May, 2013 and 23rd May, 2013,
wherein outstanding liability of Rs. 13 Crores was admitted by the
accused. At that stage, it was contended by the accused that due to
genuine financial crisis, outstanding amount could not be paid by the
accused No. 1. Accused No. 2 had raised the plea that she had only
acted on the direction of her husband i.e. accused No. 1 and she is
in no way concerned with the transactions between her husband and
the informant. Learned Sessions Court by an order dated 28 th May,
2015 was pleased to reject said application.
9 The accused approached this Court under section 439 of the
Code of Criminal Procedure, 1973 on 28/5/2015. At the time of
hearing of the application, it was contended that on 15/6/2015 the
accused had voluntarily approached the complainant and offered to
amicably resolve the matter and further offered to pay sum of Rs.
12,00,00,000/- in minimum installment of Rs. 50,00,000/- and the
claimed amount will be paid within one year from the grant of bail
by disposing of their properties. It was also agreed that an amount
of Rs. 50 Lakhs would be paid on the 18 th of each month.
Memorandum of Understanding was executed between the accused
and the informant and his family on 15/6/2015. The said
Memorandum of Understanding was placed before the Court
voluntarily on 18/6/2015 in the course of hearing of Bail Application
No. 1116 of 2015. Learned Senior Counsel Mr. Gupte appearing for
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
9 1.appp959.19.doc
the accused, on the basis of the instructions received from the family
members, had undertaken to abide by the consent terms incorporated
in the Memorandum of Understanding executed on 15/6/2015. Copy
of the Memorandum of Understanding was taken on record and
marked as "X" for the identification. This Court (Coram : K.R.
Shriram, J) had specifically observed that the offence alleged against
the accused were compoundable offence as contemplated under
section 320 of the Code of Criminal Procedure, 1973 and therefore,
they were granted bail by this Court (Coram: Smt. Sadhana S.
Jadhav, J) subject to the undertaking given by the respondents to
abide by the terms and conditions incorporated in the Memorandum
of Understanding. The parties had also agreed to file a Writ Petition
seeking relief of quashing of FIR by consent, in view of the
Memorandum of Understanding filed by them.
10 On 10/7/2015 in Summary Suit Nos. 980 of 2014 and 981
of 2014 alongwith Notice Motion (L) Nos. 2766/2014 and 2767/2014
respectively before this Court (Coram: K.R. Shriram, J), it was
contended by the Counsel for the Plaintiffs and defendants that the
parties have amicably resolved the matter. The Counsel appearing for
defendants had categorically submitted that the plaintiffs and
defendants have signed Memorandum of Understanding. The
plaintiffs and defendants were personally present in the court.
Undertakings were given by the parties that memorandum of
understanding is accepted and that they would abide by the said
terms and conditions. In fact, Minutes of the Order were tendered to
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
10 1.appp959.19.doc
the Court which were marked at Exh. X. In view of the memorandum
of understanding and the undertakings, both the suits were disposed
of and the Court had further directed refund, if any, of the Court
fees in accordance with law. The minutes of the order was signed
by both the parties and clause (3) of the Minutes of the Order reads
as follows :
"The Defendants undertake to abide by the undertakings as
contained in the said Memorandum of Settlement dated
15/6/2015. The undertakings are accepted."
11 It is pertinent to note, at this stage, that one Dalchand H.
Gupta, who happened to be close relative of the informant Mr.
Bansal, had also filed Summary Suit (L) No. 982 of 2015 in this Court
and on 28/9/2015 this Court (Coram : R.P. SondurBaldota, J) had
passed an order against M/s. Sunshine Caterers Private Limited and
ors. that there were consent terms drawn between the parties and
their respective advocates had filed the same on record. Advocate
Ms. Wadkar who appeared for the defendants (i.e. accused in Crime
No. 102 of 2014) had submitted, that the Directors had signed the
consent terms in her presence and she identified their signatures. In
view of the same, the suit was disposed of in terms of Consent
Terms. In the said suit, present respondents were defendant Nos. 2
and 3 and their daughters and son aged about 28 years(housewife),
25 years(housewife) and 23 years respectively were defendant Nos. 4,
5 and 6. It was also accepted by the present respondents that they
had issued several post dated cheques, which would be returned after
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
11 1.appp959.19.doc
the amounts were duly paid.
12 In view of the memorandum of understanding and the
order dated 18/6/2015 granting bail to the respondents, on 18/7/2015
first installment was due. The same was paid. On 29/7/2015 the
parties had exchanged emails in respect of the due payments. On
10/9/2015 advocate notice was issued to the respondents calling for
payment.
13 On 17/11/2015 an application for cancellation of bail was
filed. In the said application, the applicant(complainant) had
specifically contended that on the day of execution of Memorandum
of Understanding, the respondents herein had paid an amount of Rs.
50 Lakhs. On 18/7/2015 2 cheques were issued by the respondents to
the tune of Rs. 25 Lakhs each. The respondents had requested the
applicant to deposit the cheque on 20/7/2015 and on 20/7/2015 there
was a request not to deposit the cheques. But by then, cheques were
already presented for encashment. The cheques issued by the
respondent No. 2 Sunita Agarwal, drawn on ICICI Bank to the tune of
Rs. 25 Lakhs were honoured. The cheque dated 20/7/2015 in favour
of Sushil Bansal was dishonoured. However, respondents in lieu of
the said cheques had transferred an amount of Rs. 20 Lakhs by RTGS
and Rs. 5 Lakhs on 22/7/2015. The cheque which was issued on
18/8/2015 was dishonoured. In lieu of which, the respondents paid
Rs. 6 Lakhs by RTGS and Rs. 12,50,000/- on 24/8/2015 and Rs.
2,50,000/- on 25/8/2015 and amount of Rs. 15,70,000/- and Rs.
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
12 1.appp959.19.doc
2,80,000/- were paid by RTGS on 20/8/2015. The amount of Rs.
6,50,000/- was paid on 21/8/2015.
14 When the third installment was due, on 1/9/2015 two
cheques were issued. However, request was made vide email dated
18/9/2015 not to deposit said cheques before 7/10/2015. The
respondents had paid Rs. 32 Lakhs and Rs. 2 Lakhs on 8/10/2015 and
Rs. 10 Lakhs on 21/10/2015 and Rs. 10 Lakhs on 28/10/2015 to the
applicant. The schedule that was given by the respondents for
payment of installment was not abided by and therefore, advocate's
notice was issued and the applicant had filed an application for
cancellation of bail on 17/11/2015.
15 The respondents appeared in the said application filed
under section 439 (2) of the Code of Criminal Procedure, 1973. On
22/12/2015 a submission was made before the Court (Coram: A.S.
Gadkari, J) that the respondents are in the process of collecting
funds, which are due and payable under the memorandum of
understanding dated 15/6/2015 and time of four weeks was granted
to comply with the undertaking given in the said MOU and the
matter was adjourned for 4 weeks.
16 On 19/1/2016 learned Counsel Mr. Raja Thakare appeared
for respondent No. 2 and submitted that his client i.e. respondent No.
2 would make payment of Rs. 50 Lakhs to the applicant on or before
15/2/2016. The Court had accepted the said statement. On 15/2/2016
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
13 1.appp959.19.doc
the applicant herein had admitted that in pursuance to the submission
made by Mr. Thakare on 19/1/2016 respondent Nos. 1 and 2 had
paid an amount of Rs. 50 Lakhs to the applicant. The Court had
recorded that on instructions of his client, learned Counsel Mr. Shirsat
holding for Mr. Thakare, had submitted that the next installment of
Rs. 75 lakhs would be paid to the applicant on or before 14 th March,
2016. The matter was posted on 16/3/2016. The matter had not
appeared on board and therefore, on 15/3/2016 the applicant had
circulated the matter and circulation was granted for 22/3/2016, when
the learned Counsel for the respondents had sought time till
23/3/2016. The matter was circulated before this Court on 15/6/2016
and was posted on 21/6/2016. On 21/6/2016 none appeared for the
respondents. In paragraph-2 of the order dated 21/6/2016 this Court
had observed as follows :
"Learned Counsel for the applicant fairly submits that on
1.5.2016 no amount was paid. On 1.6.2016 an amount of
Rs. 30 lakhs was paid and in the last week, respondents
had paid an amount of Rs. 35 lakhs approximately. It
would prima facie appear that the respondents are in the
process of paying. In fact, it was incumbent upon the
respondents to abide by the undertaking given to this
Court. Since it was an undertaking given to the Court,
non-compliance of the same would amount to contempt.
However, as on today, considering the bonafides of the
respondents that they are in the process of paying, it is
hereby directed that the respondents shall deposit an
amount of Rs. 45 Lakhs on or before 1.7.2016."
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
14 1.appp959.19.doc
17 On 1/7/2016 learned Senior Counsel Mr. Shirish Gupte
appearing on behalf of the respondents submitted that the respondent
is in the process of making arrangement of amount of Rs. 45 Lakhs
and till today he has paid almost Rs. One crore 24 Lakhs and that
the respondents had shown bonafides by making an attempt to abide
by the orders of the Court. It was also submitted that the charge
sheet is filed.
18 On 21/12/2016 Learned Counsel for the respondents sought
time to take instructions as to whether the respondents desire to
abide by the undertaking given to the court. On 23/12/2016 at the
request of the advocate on behalf of the respondent Nos. 1 and 2
matter was adjourned to 27/1/2017.
19 This Court had different assignment and therefore, due to
paucity of time, matter was adjourned on 2 nd March, 2017. On
19/6/2017 matter was listed on the board of Justice Prakash D. Naik,
who had passed an order of "Not before this Bench." On 10/7/2017
the matter was mentioned out of turn before Court (Coram: Revati
Mohite Dere,J) and was adjourned to 12/7/2017 and on 12/7/2017 it
was directed that the matter be placed before the appropriate Court.
On 27/7/2017 advocate Ms. Sanjana Pardeshi had requested this Court
to hear the application alongwith Criminal Application Nos. 693 of
2017 and 694 of 2017 filed by the respondents.
20 On 23/8/2017 this Court had observed the stages of the
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
15 1.appp959.19.doc
proceedings and that there were certain encumbrances on the said
property. It was observed by this Court that on 1/4/2016 the
respondents were present before the court and had agreed to pay sum
of Rs. 55 Lakhs to the complainant on 24/4/2016 and had also filed
an affidavit to that effect which was in the form of an undertaking.
The same was accepted by the court and this Court had observed that
no coercive action be taken and the matter was adjourned to
25/4/2016.
21 By Criminal Application No. 693 of 2017 and 694 of 2017
the respondents had prayed that they be relieved from the
undertaking given in paragraph-3 of the Order dated 18/6/2016 and
also from the memorandum of understanding dated 15/6/2015. It
was contended in paragraph-8 of the said application that the
Memorandum of Understanding dated 15/6/2015, based on which
this Hon'ble Court passed an order dated 18/6/2015 granting bail to
the applicant, has thus been fraudulently obtained and which
certainly does not therefore, bind the applicant. Upon considering
the said contention this Court had observed that the said contention
would amount to playing fraud upon the Court as the accused
applicant were personally present before the court and had given an
undertaking to that effect.
22 In the above circumstances, the Court had directed the
applicants in Criminal Application No. 693/2017 and 694/2017 to
remain present before the Court on 15/9/2017 and upon failure to
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
16 1.appp959.19.doc
attend the Court, the Court would be constrained to take coercive
action. On 15/9/2017 it was submitted by the Counsel for the
applicants that the applicant in Criminal Application No. 693 of 2017
was present however, the applicant in Criminal Application No. 694
of 2017 had expressed her inability to attend the court as she was
indisposed. Learned Counsel after advancing lengthy argument on
merits of the matter had prayed for carrying out amendment in the
application and in the interest of justice, liberty was granted subject
to the condition that the amendment would be carried out within one
week.
23 On 9/1/2018 this Court had observed that time was granted
to the learned Counsel for the respondents to file written submissions
in order to save time of the Court. The written submissions were not
filed within time but they were tendered across the bar and copy of
the same was furnished to the Counsel for the applicant only at 4.45
p.m. when the matter was called. Mr. Jha, Learned Counsel for the
respondent No.1 had submitted that he would take an hour to make
his oral submissions. The matter was directed to be heard on
7/9/2018.
24 On 6th October, 2018, the matter was heard till 5.20 p.m.
the learned Counsel had expressed his inability as it would not be
possible for him to continue the arguments, although the Court was
willing to proceed only in order to conclude the hearing of the
matter. It was also observed that lengthy arguments were being
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
17 1.appp959.19.doc
tendered. The learned Counsel for the respondents had appeared just
before the closure of the first sessions and requested that the matter
be adjourned to a future date. It was demonstrated by the applicant
that in an application seeking quashing of FIR, no relief was granted
by the Division Bench, however, trial was expedited. This Court
had observed that the trial being expedited, could not be a good
ground for adjournment.
25 It was submitted that recording of evidence has commenced
on 20th March, 2018 and that once trial is over, there would be no
question of considering an application for cancellation of bail. It
was vehemently argued on the basis of the previous orders passed by
this Court that upon commencement of trial, application seeking
cancellation of bail would loose its significance. At the end of the
session, the learned Counsel refused to continue the matter on 8 th
October, 2018 since he wanted to complete recording of evidence
before the trial Court and therefore, expressed his inability to appear
before this Court. This Court had observed that the application under
section 439(2) of the Code of Criminal Procedure, 1973 is pending for
more than 3 years only at the behest of the Counsel for the
respondents and had also observed that at any rate inconvenience of
the advocate could never have been a special reason for keeping the
matters pending like the present one. It was apparent, from the way
the matter was proceeding, that the learned Counsel for the
respondent No. 1 was only trying to protract the final decision of the
application by reading out entire roznama, 16 citations of various
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
18 1.appp959.19.doc
courts and had not even touched the facts of the case. At 5.15 p.m.
learned Counsel for the respondent No. 1 submitted that he would
take one more hour to address the Court and thereafter, according to
him, learned Counsel for the respondent No. 2 would take another
hour. Learned Counsel for the respondent No. 1 insisted upon
referring to substantive evidence recorded in the trial court although
the Court had specifically expressed that the application seeking
cancellation of bail under section 439(2) of the Code of Criminal
Procedure, 1973 was filed much before commencement of the trial or
even framing of charge and it was only necessary to see as to
whether there is a breach of undertaking given to the Court on the
day when the application seeking cancellation was filed. The matter
was part-heard on several occasions. The Court had made specific
observations. At the cost of repetition, it was submitted by the
learned Counsel for the respondent No.1 that there is corruption in
the police machinery and in Economic Offences Wing and due to
vested interest false FIR was filed. There is no occasion to consider
the same.
26 It was again reiterated in the said order that on 1/4/2018
the respondents were present before the court in person and had filed
an affidavit-cum-undertaking and also submitted a chart of the
schedule of payment to be made to the complainant. Second
undertaking was given by the respondents after filing of the
application under section 439(2) of the Code of Criminal Procedure,
1973 was filed. The respondents had addressed the Court on 1 st
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
19 1.appp959.19.doc
April, 2018 and were personally questioned as to whether said
affidavit is being filed voluntarily, only to ensure that it was not filed
under any coercion or due to any extraneous reasons and the
respondents had candidly submitted and addressed to the Court that
affidavit is being filed voluntarily. The respondents had also
submitted that the Schedule had been complied with on four
occasions in order to show their bonafides to comply with the
undertakings and the payment schedule.
27 Learned Counsel for the respondent No.1, despite being
shown the orders passed earlier, submitted that the Memorandum of
Understanding dated 15/6/2015 has been obtained fraudulently and
therefore, it is not binding upon the respondents.
28 This Court had perused the orders passed by Justice K.R.
Shriram wherein the respondents had personally appeared before the
Court and signed the Minutes of the Order and given an undertaking
to comply with the compromise decree. As on today, because of the
pendency of the criminal proceedings, execution of the said decree
also has been held in abeyance. In fact, the Judgment of the Civil
Court is Judgment in Rem and therefore, there was no reason to keep
it in abeyance. However, the respondents have flouted said orders
also. The contention that they are not liable to pay single farthing to
the complainant was reiterated and therefore, this Court had felt the
presence of the respondents would be necessary in the court and the
matter was adjourned to 9/10/2018.
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
20 1.appp959.19.doc
29 On 9th October, 2018 an adjournment was sought on the
ground that the order dated 6th October, 2018 needs to be impugned
and challenged before the Hon'ble Apex Court. In fact, the order
dated 6th October, 2018 was not an order deciding the rights of the
parties, except for the reasons assigned in the order. On that day,
the learned Counsel had filed an application that preliminary issue be
decided in respect of maintainability of the application after
commencement of the trial. In fact, the application under section
439(2) of the Code of Criminal Procedure, 1973 was filed much
before the trial was expedited.
30 The said application was filed only after the advocate had
chosen to proceed with the matter on merits by touching legal
aspects on 6th October, 2018 and for the first time, new contentions
were raised. They had expressed an apprehension that the accused
would be taken into custody forthwith. This Court had observed that
the Order dated 6th October, 2018 was loud and clear for the reasons
for which respondents were directed to remain present in the court
and no inclination of taking the respondents into custody except by
following due procedure of law. It appears that the respondents
were made to believe that there is a likelihood of being taken into
custody pursuant to which the aforesaid application was filed.
31 It appears that the order dated 6th October, 2018 was
challenged before the Apex Court and the Apex Court had declined to
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
21 1.appp959.19.doc
interfere and dismissed the petition and had observed as follows :
"The High Court would decide the matter in accordance
with law taking into account all contentions that may be
raised by the parties."
Respondents were granted liberty to approach in the event the final
order of the High Court goes against them.
32 On 11th October, 2018 it was submitted that a Special
Leave Petition is filed before the Supreme Court and therefore, an
adjournment was sought.
33 On 21/11/2018 it was informed that Additional Chief
Metropolitan Magistrate has passed some order and liberty was sought
to place on record the said order and it was shown that the petition
before the Apex Court would not be heard atleast till 14/12/2018.
On 5/12/2018 time was again sought on account of pendency of the
petition before the Supreme Court.
34 On 17th March 2019 it was brought to the notice of this
Court that the respondents have filed an application before the
Hon'ble the Chief Justice seeking transfer of the mater from this
Court. This Court had enquired as to why it was not pointed out on
the earlier occasions and it was informed that it is a private
communication between advocate and the Hon'ble the Chief Justice
and therefore, it was not necessary to bring it to the notice of this
Court.
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
22 1.appp959.19.doc
35 The respective Counsel had again referred to the order of
the expeditious trial and the progress of the trial. The respective
Counsel did not wish to proceed with the matter on the ground that
they were not aware of the next date, although the board was
published on 2nd March, 2019 and that they had presumed that the
matter is on 14th March, 2019. This Court had observed the manner
in which the learned Counsel for the respondent No. 1 alongwith the
Counsel for the respondent No.2 were raising frivolous issues before
the Court on every date and therefore, this Court was of the opinion
that the application would be heard after an appropriate order is
passed by the Hon'ble the Chief Justice.
36 On 6/9/2019 the matter was again kept part-heard. On
11/10/2019 learned Counsel for the respondent No.1 had again
requested for an adjournment on the ground that he had filed an
application before the Hon'ble Apex Court seeking clarification of the
order dated 12th April, 2019. The said application seeking
clarification was filed only on 19/9/2019 although the said order was
passed on 12/4/2019. It is pertinent to note that by an order dated
6th November, 2019 the Supreme Court had passed following orders:
" These are the applications for restoration.
Heard the learned Counsel for the applicants.
No clarification of the order dated 12th April, 2019 is called
for.
M.A. No. 2116 and 2117 of 2019 for
clarification/direction are dismissed."
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
23 1.appp959.19.doc
37 It appears from the record that on 30/9/2019 the applicant
i.e. original complainant had addressed letter to the Hon'ble the Chief
Justice and had pointed out the roznama to the Hon'ble the Chief
Justice seeking expeditious hearing of the present application.
38 Needless to say, that the Hon''ble the Chief Justice had
directed the Registry to place the application before this Court
(Coram : Smt. Sadhana S. Jadhav, J) and in view of this, this Court
was bound to hear the matter.
39 The respondents had filed Criminal Application Nos. 693 of
2017 and 694 of 2017 on 19/7/2017 praying for relieving the
applicants from undertaking which has been recorded in paragraph-3
of the order dated 18/6/2015. In paragraph-19(c) of the applications,
it was mentioned that on 1st April, 2016, presence of the applicant
was recorded but the complainant had played fraud not only on the
applicants, but also on the Court and therefore, the applicants sought
to be relieved from the affidavit dated 23rd March, 2016 and so also
the observations made by this Court in its order dated 1 st April, 2016
and similarly from all such statements and submissions made on
behalf of the applicants. It was submitted that Summary Suit Nos.
980 of 2014 and 981 of 2014 were filed on 21/11/2014 and within a
span of 36 days, the complainant has filed frivolous and vexatious
FIR at Dadar Police Station.
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
24 1.appp959.19.doc
40 In view of the above discussions, it is more than clear that
fraud has been practised on this Court on the civil side, where
Summary Suit No. 980 of 2014 and 981 of 2014 were filed and
decree has been obtained on 28/9/2015 and therefore, the respondents
sought to be relieved from their affidavit and undertakings. It is
pertinent to note that after 2 years of the said undertakings, for the
first time, the accused(respondents) were seeking to be relieved from
the undertaking given on the civil side as well as criminal side. In
fact, the consent decree was passed and is binding upon the parties.
It is pertinent to note that it has not been brought to the notice of
this court as to whether there is any application before the Civil
Court who has passed consent decree. The respondents were present
before the Court. Not a word had been stated.
41 The Supreme Court in the case of Bank of Baroda v/s.
Sadruddin Hasan Daya and anr. reported in 2003 Supp(6) SCR 764
had observed that -
"When a person appearing before a court files an
application or affidavit giving an undertaking to the court
or when he clearly and expressly gives an oral undertaking
which is incorporated by the court in its order and fails to
honour that undertaking then a willful breach of the
undertaking would amount to an offence punishable under
the Act."
That for two years, the respondents appeared before the Court on
Civil and Criminal side and had submitted that they wish to abide
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
25 1.appp959.19.doc
by the undertaking and in fact, had acted upon the undertaking.
42 The respondents had filed Criminal Application No. 211 of
2019 and prayed for dismissal of the Criminal Application No. 959 of
2015, in view of the certain admissions in the cross-examination of
P.W. 1.
43 Criminal Application No. 788 of 2016 was filed seeking
direction to defreeze the accounts freezed by Economic Offences Wing
on 12/5/2015, as the applicants desired that the additional amount,
which was accumulated by way of interest, on the fixed deposit with
Indian Railway, which if would be defreezed, could be used to pay to
the complainant. It is pertinent to note that C.R. No. 454 of 2015
came to be filed at the behest of Ajay Dalchand Gupta. In that case
also, the respondents had filed consent terms and the summary suit
between Dalchand Gupta and the respondents was decreed on
28/9/2015. In the said consent agreement, it was agreed that the
account which was freezed by Economic Offences Wing was in the
name of the applicants i.e. in the name of present respondents and
that amount would be transferred to Ajay Dalchand Gupta. The
respondents had specifically stated that they wish to comply with the
consent terms and therefore, had prayed for defreezing the account.
The consent terms were signed by the parties. Summary Suit No. 982
of 2015 was disposed of by this Court(Coram: R.P. SondurBaldotta,J)
on 28/9/2015, in which the advocate for the defendants had
identified their signatures before the Court and the suit was disposed
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
26 1.appp959.19.doc
of in terms of the consent terms.
44 The respondents filed interim application No. 1 of 2019
praying for expunging the observations made by this Court in its
order dated 6th October, 2018 in terms of paragraph-5 of the order as
well as recall/expunge the observations made by this Court in the
order dated 7th March, 2019 in terms of assertion in paragraph-6 of
the order, as the said observations were neither desirable nor
warranted. Prayer was also made to accord the same treatment to
the application filed by the original complainant to that of treatment
meted out to the other cases. This Court has observed the conduct
of the advocates on every date of hearing and it was loud and clear
that a clear attempt was made to browbeat the Court.
45 It would be necessary to note that the learned Counsel for
the respondents cited 29 orders of various courts and all the citations
were being read right from the fact sheet, thereby consuming the
valuable time of the Court and to protract passing of any orders and
rendering the application infructuous by passage of time and in the
meanwhile the trial would be completed. The gist of the arguments
advanced was that in most of the cases, the application seeking
cancellation of bail was either withdrawn or rejected after the filing
of charge-sheet or framing of charge and in the present case the trial
had commenced and therefore, there was no reason to hear the
application.
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
27 1.appp959.19.doc
46 Learned Counsel for the respondents has placed reliance
upon the Judgment of the Apex Court in the case of Biman Chaterjee
v/s. Sanchita Chatterjee & anr. reported in 2004 Cri. L.J. 1451, the
Hon'ble Supreme Court had observed that -
"non-fulfilment of the terms of the compromise cannot be
the basis of granting or cancelling a bail. The grant of bail
under the Criminal Procedure Code is governed by the
provision of Chapter XXXIII of the Code and the provision
therein does not contemplate either granting of a bail on
the basis of an assurance of a compromise or cancellation
of a bail for violation of the terms of such compromise."
In the facts of the case, there was no written compromise and the
bail was granted after noticing the fact that there was possibility
of compromise. It was pointed out that there were negotiations
going on for finalisation of compromise and therefore, question of
appellant contravening the terms of compromise did not arise.
47 In the case of Shri Pritpal Singh v/s. State of Bihar and
anr. reported in 2002(2) ACR 1927 SC, the Hon'ble Supreme Court
had refused to cancel the bail given to the accused in the facts of
the case that the dispute was in respect of the eviction of the
appellant, who was the tenant, from the premises of which the
respondent is the owner. There was compromise between the parties
that the appellant would pay certain amount and get the premises
vacated and it was alleged that the appellant had failed to comply
with the terms of compromise by not vacating the premises in
question. And therefore, the Hon'ble Supreme Court had refused to
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
28 1.appp959.19.doc
intervene.
48 In the case of Bal Kishan Das v/s. P.C. Nayar, reported in
1991 SCC (Cri.) 1055, the Hon'ble Supreme Court had observed that
matter is purely of civil nature. There was an arbitration proceedings
and the matter is pending for more than 17 years. Proceedings before
the Chief Judicial Magistrate was quashed. The Counsel had also
relied upon the orders of the Sessions Courts of Maharashtra &
Sessions Courts of other states knowing fully well that they would not
have any precedential value.
49 In some cases, Sessions Court had insisted upon depositing
money for grant of bail and this Court had held that the courts
cannot act as recovery agents and therefore this Court had refused to
cancel the bail.
50 In the present case also, it cannot be said that the
respondents herein have not only abided by the terms of compromise,
but subsequently, upon being enlarged on bail, the respondents
appeared before the Court, voluntarily and gave an undertaking.
They even partly abided by the undertaking and then it was
contended that fraud was played upon them. In fact, the
respondents played fraud upon the Court on civil as well as criminal
side.
51 In Criminal Writ Petition No. 3575 of 2019 this Court
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
29 1.appp959.19.doc
(Coram: Revati Mohite-Dere,J) was hearing an application
challenging the order cancelling the bail of the petitioner therein.
There was breach of consent terms. This Court had observed as
follows :
"As there was breach of the Consent Terms, the bail of the
petitioner and the other co-accused was cancelled. It is
pertinent to note, that the petitioner never objected to the
conditional bail, granted by the learned Magistrate vide
order dated 25th April, 2018 and in fact executed P.B. and
S.B. of Rs.15,000/-, that the Consent Terms will be
complied with.
10. There is no infirmity warranting interference in
writ jurisdiction. The learned Additional Sessions Judge has
rightly directed the petitioner and the other co-accused to
appear before the trial Court and surrender themselves
within 15 days from the date of order with liberty to file
fresh bail application. The trial Court was also directed to
decide the bail application on merits."
52 The distinguishing features in the cases relied upon and the
present case is that for 2 years after granting bail, the respondents
had never raised a word that the Memorandum of Understanding was
signed under coercion or by playing fraud. In fact, they had
appeared before the court i.e. this Court as well as the Court which
was trying Summary Suit Nos. 980 of 2014 and 981 of 2014 and had
signed consent terms. In the present case, it was the respondents
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
30 1.appp959.19.doc
who had in fact voluntarily given schedule of payment before this
Court. This Court had also observed that the parties would file
petition seeking quashing of FIR by consent. In the eventuality, the
respondents had expressed even once that they did not wish to abide
by the terms, since the first memorandum of understanding was
signed while they were in custody and that they wanted to be
released on bail, this Court would have considered the application on
its own merits. It was at the behest of the respondents that the
compromise terms were being entered into. It is for the first time,
by Criminal Application Nos. 693 of 2017 and 694 of 2017, they were
seeking prayer for being relieved from the undertaking. In fact,
there was no complaint made by the respondents either to the police
station or to any Magistrate contending therein that memorandum of
understanding has been obtained by playing fraud or under coercion.
No grievance was made to this court although fair opportunity was
given to them on the civil side as well as criminal side and even
after application for cancellation of bail was filed, they abided by the
terms. It is not their case that the Court had directed them to
deposit the money. It was out of their own volition that they had
signed consent terms. They had sealed memorandum of
understanding with their own seal after they were released on bail
without complaint. The question for determination is what made
the respondents suddenly change their minds and seek to be relieved
from the undertaking. The possibility of considering the prayer for
relieving them of their undertaking could also have been considered
provided the respondents surrendered after which their application
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
31 1.appp959.19.doc
would be heard on its own merits. At the cost of repitition it needs
to be observed that the order of bail was passed only having regard
to the MOU and not on merits.
53 Learned Counsel for the respondents had filed Criminal
Application No. 1 of 2020 praying that-
(a) that this Hon'ble Court may be pleased to clarify
the circumstances under which on 11th October, 2019 this
Hon'ble Court (Coram : Sadhana Jadhav, J) had felt the
need to call the police in the court room during the course
of a brief arguments;
(b) that this Hon'ble Court may be pleased to clarify
that calling police in the court room as was indicated by
this Court(Coram: Sadhana Jadhav, J) on 11 th October,
2019 was for what purpose and object to be achieved and
whether hence forth lawyers appearing in the court would
be required to argue under the shadow or presence of
police or after seeking their permission and consequences
that could follow upon refusal of on advocate to do so;
54 On 11/10/2019 this Court had observed that the learned
Counsel for the original applicant has also stated that the respondent
is seeking expeditious trial and proceeding with the trial and once
again respondents had filed petition seeking quashing of FIR before
the Division Bench bearing No. 123/2019 and 124/2019. This Court
had requested the learned Counsel for the respondents to restrict their
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
32 1.appp959.19.doc
arguments, but to no avail.
55 In fact, in the course of hearing at about 5.10.p.m. when
the court was about to rise, hot words were exchanged between both
the counsel. They raised their voices. Learned Counsel for the
respondents had gone to the extent of dictating terms to this Court in
a loud voice and both the counsel were arguing and therefore, this
Court had suggested that the Court would be constrained to call the
police. However, the same is not reflected in the orders and yet an
application was filed seeking clarification. This Court is of the firm
opinion that the Court is not bound to give clarification of any action
taken in the course of discharging their duties passed for maintaining
decorum of the court and the sanctity of the court proceedings. The
independence of judiciary cannot be overshadowed by the Counsel
who attempt to take the Courts for granted.
56 Most of the times, it is seen that various modes are
adopted for protracting the proceedings. There is no fear of the
Court and threat was being passed to this Court that every interim
order deserves to be challenged before the Apex Court, whether it
warranted any merit or not. Most of the times even observations of
this Court were challenged, as was done in respect of the order dated
6th October, 2019. Even on the last date, learned Counsel was
insisting upon deciding Interim Application No. 1 of 2020 before
deciding the Criminal Application No. 959 of 2015 finally. Finally,
this Court had allowed the learned Counsel to read evidence recorded
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
33 1.appp959.19.doc
before the trial Court.
57 It is submitted by the learned Counsel repetitively that
there has to be consistency in the order. There is no difficulty with
this proposition as long as facts are similar. In none of the cases
cited by the learned counsel for the respondents, it is seen that the
accused had appeared before the court in person and given an
undertaking with an affidavit appended thereto and agreed to abide
by the memorandum of understanding. Today the respondents are
seeking to resile from their undertaking after enjoying bail for four
years. The same cannot be countenanced. This Court would have
proceeded to hear the matter on merits and there would have been
no occasion to decide an application for cancellation of bail only for
non-compliance of the undertaking. Even today the respective Counsel
have submitted that in fact criminal law ought not to have been
initiated against respondents and the FIR is registered fraudulently.
This Court cannot be oblivious of the fact that two petitions filed on
two different occasions seeking relief of quashing of FIR have been
rejected by the Hon'ble Division Bench of this Court and the said
orders were never challenged before the Surpeme Court.
58 In fact, it is painful to observe that it is only orders of the
Court which speaks for itself. Courts generally refrain from
reprimanding advocates appearing unless it impedes the administration
of justice. In the interest of justice of the litigants, this Court feels
that it is incumbent upon the Court to hear the Counsel representing
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
34 1.appp959.19.doc
the litigants keeping solely in mind the interest of litigants.
59 In the present case, the Memorandum of Understanding
might have been signed between the parties, but the question
remains that an undertaking was given to the Court. In all cases
cited by the learned Counsel, the memorandum of understanding was
signed between the parties and not before the court. On 1/4/2016,
this Court had even enquired as to whether the respondents would
seek time to file affidavit and undertaking. However, it was the
respondents who were of the opinion that they would file it
forthwith and accordingly had filed it. The conduct of the
respondents would therefore, necessitate cancellation of bail of the
respondent No. 1.
60 As far as respondent No. 2 is concerned, she is the wife of
respondent No.1. She was not concerned with the day to day affairs
of the business of the catering company. Submission is made by the
learned Counsel for the respondent No. 2 that she had only agreed
with the husband and had signed the papers at the behest of her own
husband and therefore, this Court is not inclined to pass any coercive
orders as far as respondent No. 2 is concerned.
61 It appears that the memorandum of understanding was filed
only to mislead and obtain reliefs only to be resiled subsequently.
62 This Court in the present proceedings had actually insisted
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
35 1.appp959.19.doc
upon the advocate for the respondents to restrict their arguments to
the merits of the matter, instead of giving discourse on the conduct
of the police or the present situation in social forum. The advocate
for the respondents were insisting that the Court should disclose its
inclination as to whether the Court was inclined to allow the
application or reject the same. A judge is not bound to or expected
to express it's mind either ways in the course of hearing of the
proceedings. It needs to be noted at this stage that on every date of
hearing since 2017 whole afternoon session was consumed by the
respective Counsel appearing for the respondents and it further needs
to be noted that there were hardly any queries made to the Counsel
except asking as to whether lengthy arguments were necessary. All
the orders since 6/10/2018 are self speaking and the manner in which
the matter was conducted by the respondents. It would therefore, be
necessary to read the present order alongwith orders dated 23/8/2017,
15/9/2017, 9/1/2018, 6/10/2018, 9/10/2018, 16/10/2018, 21/11/2018,
5/12/2018, 6/3/2019, 16/10/2019 and thereafter, the Court was
constrained to hear the matter on day to day basis.
63 In the case of Sanjay Chandra v/s. C.B.I. decided on 23rd
November, 2011, the Hon'ble Apex Court has observed that-
"The grant or refusal to grant bail lies within the
discretion of the Court. The grant or denial is regulated, to
a large extent, by the facts and circumstances of each
particular case."
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
36 1.appp959.19.doc
64 Irrespective of the fact that whether bail was granted only
on the basis of the memorandum of understanding, this Court cannot
ignore the fact that the respondents remained present before this
Court, addressed the Court and had given an affidavit-cum-
undertaking that they would abide by the memorandum of
understanding and had partly acted upon the memorandum of
understanding.
65 In the case of Patel Rajnikant Dhulabhai & anr. v/s. Patel
Chandrakant Dhulabhai & ors. Reported in AIR 2008 S.C. 3016, the
Hon'ble Apex Court has held as follows:
"following conditions must be satisfied before a person can
be held to have committed a civil contempt;
(i) there must be a judgment, decree, direction, order, writ or other
process of a Court (or an undertaking given to a Court);
(ii) there must be disobedience to such judgment, decree, direction,
order, writ or other process of a Court (or breach of undertaking
given to a Court); and
(iii) such disobedience of judgment, decree, direction, order, writ or
other process of a Court (or breach of undertaking) must be willful."
"punishing a person for contempt of Court is indeed a drastic step
and normally such action should not be taken. At the same time,
however, it is not only the power but the duty of the Court to uphold
and maintain the dignity of Courts and majesty of law which may
call for such extreme step. If for proper administration of justice
and to ensure due compliance with the orders passed by a Court, it
is required to take strict view under the Act, it should not hesitate in
wielding the potent weapon of contempt."
66 In the present case, since the act was committed in the
proceedings seeking cancellation of bail, it would call for cancellation
of bail of Respondent No. 1. There is no doubt that since 2017 there
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
37 1.appp959.19.doc
has been tactful move to disobey the undertaking given to the Court
and even to protract the matter as far as possible so as to see that
the trial would conclude.
67 In the case of Dhananjay Sharma v/s. State of Haryana
reported in (1995) 3 SCC 757, the Hon'ble Apex Court has observed
as follows :
"The stream of justice has to be kept clear and pure and
anyone soiling its purity must be dealt with sternly so that
the message perculates loud and clear that no one can be
permitted to undermine the dignity of the court and
interfere with the due course of judicial proceedings or the
administration of justice."
68 Halsburi Laws of England 4th Edition Volum 9 page 44
observes that breach of an injunction or breach of undertaking
given to a Court by a person or corporation in pending proceedings
on the faith of which the court sanctions a particular course of action
is misconduct amounting to contempt.
69 There is no doubt that disobedience of the respondents is
willful and intentional. Valuable time of the Court has been
consumed in several proceedings including civil proceedings. In the
case of Ram Niranjay Roy v/s. State of Bihar reported in (2014) 12
SCC page 11, the Hon'ble Apex Court has held that-
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
38 1.appp959.19.doc
"while dealing with the nature and scope of power
conferred upon this Court and the High Court, being courts
of record under Articles 129 and 215 of the Constitution of
India respectively, this Court observed that the said power
is an inherent power under which the Supreme Court and
the High Court can deal with contempt of itself. The
jurisdiction vested is a special one not derived from any
other statute but derived only from Articles 129 and 215.
This Court further clarified that the constitutionally vested
right cannot be either abridged, abrogated or cut down by
legislation including the Contempt of Courts Act."
70 At the cost of repitition, it shall be mentioned that the
terms of the memorandum of understanding were never challenged
before this Court contending that they were obtained under coercion,
fraudulently or against wish of the accused/respondents. There was
every occasion for the respondents to challenge the same on merits.
However, it was the respondents who personally appeared before the
Court and gave an undertaking that they wish to abide by the terms
and conditions contemplated under the memorandum of
understanding.
71 In the same Judgment in the case of Ram Niranjan Roy
(cited supra), the Hon'ble Apex Court has held that-
"when a contempt is committed in the face of the High
Court or the Supreme Court to scandalize or humiliate the
Judge, instant action may be necessary. If the courts do
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
39 1.appp959.19.doc
not deal with such contempt with strong hand, that may
result in scandalizing the institution thereby lowering its
dignity in the eyes of the public. The courts exist for the
people. The courts cherish the faith reposed in them by
people. To prevent erosion of that faith, contempts
committed in the face of the court need a strict
treatment."
72 This Court is of the firm opinion that the dignity of the
Court and majesty of law deserves to be maintained at all cost. The
respondents left no stone unturned to defile the sanctitity and dignity
of the court. In the process, valuable time was consumed.
73 It is in the above mentioned circumstances that the only
order that can be justifiably passed would be an order under section
439(2) of the Code of Criminal Procedure, 1973, thereby cancelling
the bail granted in favour of the respondent No. 1 vide order dated
18/6/2015. However, leniency deserves to be shown to respondent
No. 2 being a woman, in view of the submission that she has only
followed the dictum of her husband, although she is responsible for
the said act.
74 Learned Counsel for the respondents was insisting upon
referring to the notes of evidence and has also read out substantive
evidence recorded in the trial court. But, it needs to be considered
that this is an application seeking cancellation of bail for committing
breach of the undertaking given to the Court in person by the
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
40 1.appp959.19.doc
respondents and therefore, this Court cannot traverse beyond the
order that is sought to be recalled.
75 At one stage, learned Counsel had also submitted that an
excess amount has been paid to the applicant and therefore, nothing
survives in the matter. However, the question before the Court is
whether there is breach of the undertaking given to the Court
coupled with willful misconduct by the respondents. The willful
misconduct of the respondent is writ large on the face of the record
which is set out in detail in the earlier paras.
76 In the case of Noorali Babul Thanewala v/s. K.M. M. Shetty
& ors. repported in AIR 1990 SC 464. The Hon'ble Supreme Court
has held that -
"Breach of an injuction or breach of any undertaking
given to a Court by a person in civil proceedings on the
faith of which the Court sanctions a particular course of
action is misconduct amounting to contempt."
77 The conduct of the respondents amounts to abuse of
process of the court and disregard for the process of justice.
Question for determination was whether after giving an undertaking
to the Court, there is willful disobedience to the undertaking by
taking somersault and contending that the undertaking was given
before the Court and an memorandum of understanding was signed
under coercion, which contention is raised for the first time after 2
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
41 1.appp959.19.doc
and half years of giving the undertaking, and more particularly, when
the terms of said MOU were acted upon.
78 In the case of Subrata Roy Sahara v/s. Union of India
reported on (2014) 8 Supreme Court Cases 470, the Hon'ble Apex
Court had observed thus :
"It is most unbefitting for an advocate to make
imputations against the Judge only because he does not get
the expected result, which according to him is the fair and
reasonable result available to him. Judges cannot be
intimidated to seek favorable orders. ..... No system of
justice can tolerate such unbridled licence on the part of a
person, be he a lawyer, to permit himself the liberty of
scandalising a Court by casting unwarranted, uncalled for
and unjustified aspersions on the integrity, ability,
impartiality or fairness of a Judge in the discharge of his
judicial functions as it amounts to an interference with the
dues course of administration of justice. ..... The
benchmark, that justice must not only be done but should
also appear to be done, has to be preserved at all costs."
79 In Criminal Application No. 5273 of 2018 this Court (Coram
: Prakash D. Naik, J) by an order dated 17/10/2018 while considering
an application filed by the applicant therein for setting aside the
order passed by the Revisional Court(Sessions Court) thereby setting
aside the order of the Sessions Court held that -
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
42 1.appp959.19.doc
"The learned Magistrate while cancelling the bail has not
only taken into consideration that consent terms were
flouted but also the fact that respondent no.2 had
committed breach of conditions while granting bail. The
condition to deposit was not imposed by Court but the
respondent no.2 had volunteered to make payment. The
conduct of accused depicts that sole intention was to seek
bail on the basis of false assurance and mislead the Court."
In the present case, although memorandum of understanding was
signed, when the accused was in custody, accused had signed the
memorandum of understanding. In all probabilities, the
Superintendent had permitted the applicants(respondents) to sign
memorandum of understanding after considering the terms and
conditions. Even thereafter, on the civil side as well as on the
criminal side, the respondents personally appeared before their court
voluntarily (although the Court had not summoned them) and
volunteered to abide by the terms and conditions. Hence, an
undertaking was given to the court.
80 In Interim Application No. 1 of 2019 in Bail Application
No. 1648 of 2019, this Court (Coram : S.K. Shinde, J) cancelled the
bail of the Applicant therein granted vide order dated 16/9/2019 after
observing as follows :
"5. On 18th October, 2019 applicant had tendered an
Affidavit-cum-Undertaking whereby he agreed and undertook
to pay the balance in installments. The Undertaking was
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
43 1.appp959.19.doc
accepted by this Court in the following terms.
"the applicant has also undertaken that installment
of Rs.1.5 crores due on 31st October, 2019 will be
paid by her to the complainant on /or before 18 th
November, 2019. She has further in para-5 stated
that, in the event, she is unable to comply with para-
3(b) and 3(c) and para-4, her bail application shall
suo-moto be cancelled."
Thus, in view of breach of undertaking, earlier order dated
16/9/2019 is recalled.
81 In the order dated 1/4/2016 the applicant/complainant had
stated that the default is not only the breach of undertaking, but the
suppression of facts before the High Court while obtaining consent
decree, which would hold the accused liable. On that very day the
respondents had appeared and filed an affidavit before this court.
They were present before the Court and submitted a chart and
schedule of payment to be made to the complainant.
82 The learned Counsel for the respondent No. 2 has after
closing the matter for orders mentioned that in view of the evidence
recorded on 28/1/2020 that accused has paid to the complainant,
excessive amount approximately Rs. One Crore, nothing survives in
the matter. The said submission is vehemently opposed by the
learned Counsel for the applicant. It is submitted that this is
completely an after thought to get relieved from the undertaking.
However, that is not the issue which requires consideration. The
Talwalkar
::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::
44 1.appp959.19.doc
issue is resiling from the undertaking. Even after the accused had
stated that he had already paid an amount due, this Court could have
considered the same. However, instead of that the respondent No.1
was of the opinion that he is not liable to pay any amount.
Secondly, criminal case is foisted upon him and thirdly, that he
should be relieved from the undertaking.
83 In view of the above observations, the application for
cancellation of bail deserves to be allowed in case of respondent No.
1. However, leniency deserves to be shown to respondent No. 2 being
a woman and in view of the submission that she has only followed
the dictum of her husband, although she is responsible for the said
act. Hence, following order is passed :
ORDER
(i) The Criminal Application No. 959 of 2015 is partly allowed and disposed of. The order granting bail to the respondent No. 1 is hereby recalled and the bail granted to the respondent No. 1 is cancelled. The respondent No. 1 shall surrender before the learned Magistrate seized with the Criminal Case No. 397/PW/2016 on or before 24th February, 2020, failing which the Learned Magistrate shall issue non-bailable warrant against respondent No. 1. The respondent No. 1 be remanded to Judicial Custody. In case, bail application is filed, Learned Magistrate shall decide the same on its own merits and in accordance with law.
Talwalkar ::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 ::: 45 1.appp959.19.doc
(ii) The bail granted in favour of the respondent No. 2 is hereby confirmed and the application seeking cancellation of bail in that regard is rejected.
(ii) In view of the aforesaid discussions, the applications made by the respondents are rejected and accordingly disposed of.
84 At this stage, learned Counsel for the respondent No. 1 has prayed for staying this order for a period of 8 weeks. Time to surrender is granted till 24/2/2020. In view of this, the prayer stands rejected.
[SMT. SADHANA S. JADHAV, J.] Talwalkar ::: Uploaded on - 18/02/2020 ::: Downloaded on - 21/02/2020 04:50:12 :::