Indian Structural Engineering Company Pvt. Ltd. Vs. Pradip Kumar Saha and ors. - Court Judgment

Excerpt:
- 1. challenge in this letters patent appeal has been made to the judgment of the learned single judge dated 27-1-2009, rejecting the application of the appellant-company under section 340 of cr. p.c. in the aforesaid application the prayers were made as follows:a. an order be passed asking the respondents to show cause as to why the prosecution proceedings shall not be initiated against them for offences under sections 193, 208, 209 and 210 of indian penal code;b. on consideration of the causes shown, if any, by the respondents, in terms of section 340 of criminal procedure code an order may be passed appointing an officer of this hon'ble court to file complaint against the respondents under sections 193, 208, 209 and 210 of indian penal code before a magistrate of competent jurisdiction at kolkata and to take all steps necessary for prosecuting the complaint;2. the above prayers of the company were rejected by the learned single judge with the observation that the court is not prima facte satisfied of commission of an offence and is, therefore, of the view that it would not be expedient to permit prosecution as prayed for by the company.3. heard learned counsel for the parties.4. learned counsel appearing for tata steel ltd., (respondent no. 2), earlier known as tisco, has submitted that in view of the specific bar contained in section 341 of the cr. p. c., the appeal would not be maintainable. on the other hand, learned counsel appearing for the appellant, mr. ghosh dastidar, submits that the bar contained under section 341 of the cr. p. c. cannot in any manner curtail the jurisdiction of this court under clause 15 of the letters patent and, therefore, the appeal would be maintainable. in support of the submissions learned counsel has relied on a judgment of supreme court in the case of p.s. sathappan (dead) by l. rs. appellant v. andhra bank ltd. and ors. respondents) reported in : air 2004 sc 5152.5. he further submitted that the winding up petition was admitted by the company court for an amount of rs. 19,16,444/-odd along with interest at 6% on and from 10-3-2003 till payment. this order was passed only because the respondents had misled the court by making false statements. the true facts were not placed before the learned single judge by the respondents. the finance manager of respondent no. 2, by a letter dated 24th march. 2006, had admitted the amount of rs. 8,160/- as due and payable by respondent no. 2 to the company. thereafter, there was continuous correspondence between the parties, none of this was mentioned in the affidavit-in-reply and, therefore, false evidence had been given in the affidavit dated 17-9-2004. relying upon this, the learned counsel submitted that in view of the false averments made in the affidavit-in-reply, the deponent of the affidavit (respondent no. 1) had clearly committed an offence under section 191 punishable under section 193 of i.p.c. it was also submitted that the respondent no. 1 being an officer of respondent no. 2 affirmed the said false affidavit to cause huge loss to the petitioner and for the gain of respondent no. 2. therefore, respondent no. 2 is also guilty of offences punishable under sections 208, 209, 210 of ipc. consequently, in view of section 195 of the cr. p.c., a complaint ought to be made under section 340 of the code of criminal procedure.6. we have considered the submissions by the learned counsel. it appears that the respondent no. 2 filed a winding up petition against the appellant (hereinafter referred to as the company). it was alleged that a sum of rs. 30,78,781/- was due and payable by the company to respondent no. 2. in that winding up petition the appellant claimed to have filed an affidavit in opposition making a counterclaim wherein it was alleged that the company had done various jobs for respondent no. 2, for which various amounts were claimed. an affidavit-in-reply was filed on behalf of the respondent no. 2 by pradip kumar saha, respondent no. 1 (legal & constituted attorney of respondent no. 2) refuting the counterclaim raised by the company in their affidavit-in-opposition. the affidavit-in-reply was duly affirmed by respondent no. 1. it was submitted before the learned single judge that in the affidavit-in-reply numerous false averments have been made which are as under:(i) in paragraphs 3(d) and 7 in the said affidavit dated 17-9-2004 the respondent no. 1 most falsely stated that the respondent no. 2 paid the entire amount to the petitioner against the construction job done by the petitioner as subcontractor of the respondent no. 2.(ii) in paragraph 3(e). 11 and 14 in the said affidavit dated 17-4-2004 the respondent no. 1 again most falsely stated that the petitioner was not entitled to get any amount on account of commission or on any other account.(iii) in paragraph 5, 10 and 12 in the said affidavit dated 17-9-2004 the respondent no. 1 most falsely stated that the petitioner resorted to mala fide pleas including counterclaims and there were no amount due and payable to the petitioner by the respondent no. 2.(vi) in paragraph 15 in the said affidavit dated 17-9-2004 the respondent no. 1 finally most falsely claimed that the petitioner had no claim against the respondent no. 2 in any respect whatsoever.6a. sections 191 - 210 of the i.p.c. are a part of chapter xi dealing with 'of false evidence and offences against public justice'. section 191 provides that 'whoever being legally bound by an oath or by an express provision of law to state the truth, or being by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true is said to give false evidence.' in our opinion, the aforesaid section clearly indicates that a person could only be held guilty of an offence under section 191 if false evidence is knowingly given or when the statement is believed to be not true. in the present case, the affidavit-in-reply sets out the bona fide belief of the deponent in the falsity of the counterclaim made by the company, being the appellant herein.7. in that view of the matter, it is not possible to accept the submissions of the learned counsel for the appellant that the conclusion arrived at by the learned single judge is either erroneous, illegal or contrary to any express provisions of law.8. undoubtedly, the judgment relied upon by the learned counsel for the appellant in the case of p.s. sathappan (dead) by l.rs air 2004 sc 5152 (supra) clearly lay down that the letters patent appeal would be maintainable. in the aforesaid judgment the supreme court observed as follows:32. it was next submitted that clause 44 of the letters patent showed that letters patent were subject to amendment and alteration. it was submitted that this showed that a letters patent was a subordinate or subservient piece of law. undoubtedly, clause 44 permits amendment or alteration of letters patent but then which legislation is not subject to amendment or alteration. cpc is also subject to amendments and alterations. in fact it has been amended on a number of occasions. the only unalterable provisions are the basic structure of our constitution. merely because there is a provision for amendment does not mean that, in the absence of an amendment or a contrary provision the letters patent is to be ignored. to submit that a letters patent is a subordinate piece of legislation is not to understand the true nature of a letters patent. as has been held in vinita khanolkar's case (supra) (vinita m. khanolkar v. pragna m. pal : (1998) 1 scc 500 : air 1998 sc 424 and sharda devi's case (sharda devi v. state of bihar : (2002) 3 scc 705 : air 2002 sc 1357. a letters patent is the charter of the high court. as held in shah babulal khimji's case (supra) (shah bahulal khimji v. jayaben d. kania : (1981) 4 scc 8 : air 1981 sc 1786 a letters patent is the specific law under which a high court derives his powers. it is not any subordinate piece of legislation. as set out in aforementioned two cases a letters patent cannot be excluded by implication. further it is settled law that between a special law and a general law the special law will always prevail. a letters patent is a special law for the concerned high court. it is well settled law, that in the event of a conflict between a special law and a general law, the special law must always prevail. we see no conflict between letters patent and section 104 but if there was any conflict between a letters patent and the civil procedure code then the provisions of letters patent would always prevail unless there was a specific exclusion. this is also clear from section 4 civil procedure code which provides that nothing in the code shall limit or affect any special law. as set out in section 4 cpc only a specific provision to the contrary can exclude the special law. the specific provision would be a provision like section 100a.9. the aforesaid observations would clearly show that the aforesaid judgment reiterates the law with regard to the scope and ambit of the applicability of the letters patent act. in view of the law laid down by the supreme court, it is evident that the letters patent appeal is maintainable. however, we are not inclined to interfere with the findings recorded by the learned single judge. upon a careful examination of all the facts and circumstances, the learned single judge was of the opinion that it would not be expedient to permit the prosecution of the respondents.10. we may notice here that section 195 of cr. p. c. provide the procedure for 'prosecution for contempt of lawful authority of public servants, for offences against public judges and for offences relating to documents given in evidence'. it is apparent that the proceedings under the aforesaid section are in the nature of criminal contempt. these proceedings are initiated when the court is of the opinion that it is expedient in the interest of justice that enquiry should be made into any offence involving giving of false evidence. therefore, the court has to take a very cautious approach and to initiate the proceedings only when it is absolutely necessary to preserve the purity and dignity of the judicial system. they are not to be initiated at the whim and fancy of a disgruntled litigant. in the facts and circumstances of the present case, we are not satisfied that the appellant has made out any case for initiation of any proceedings under sections 195 and 340 cr. p. c. against respondents.11. we find no reason to interfere with the judgment of the learned single judge.12. therefore, we are of the opinion that the appeal is not maintainable and the same is dismissed.13. urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.