YASHOVARDHAN BIRLA  v. KAMDHENU ENTERPRISES LIMITED AND ANR.

(collectively referred to as „the applicant") seek a common relief, i.e., dismissal of the captioned petitions filed by the non-applicant/petitioner, i.e., Yashovardhan Birla („the non-applicant") on the ground of fraud and initiation of proceedings under Section 340 read with Section 195(1)(b) of the Code of Criminal Procedure, 1973 („CrPC") against him. Vide order dated 04.11.2023, this Court had reserved orders in the interim applications, recording as under:

"CRL.M.A. 17894/2023 (Directions) in CRL.M.C. 3778/2023 CRL.M.A. 17815/2023 (Directions) in CRL.M.C. 3779/2023 CRL.M.A. 17817/2023 (Directions) in CRL.M.C. 3780/2023

1. The pleadings in the captioned petitions i.e. CRL.M.C. 3778/2023, CRL.M.C. 3779/2023 and CRL.M.C. 3780/2023 are complete and hence they were listed for hearing today.

2. Learned counsel for the applicant/respondent no.1 in the present applications submits that the applications may be decided at the first instance before the petitions are heard on merit.

3. Accordingly, arguments have been heard.

4. Order is reserved."

2. The captioned petitions, i.e., CRL.MC 3778/2023, CRL.MC 3779/2023 and CRL.MC 3780/2023 seek quashing of CC No. 31528/2016, CC No. 31517/2016 and CC No. 31829/2016, respectively, instituted by the applicant under Section 138 of the Negotiable Instruments Act, 1881 („NI Act"), pending in the Court of the learned Metropolitan Magistrate, Patiala House, Delhi and setting aside of summoning orders 09.11.2012 and orders dated 31.10.2021 whereby notice under Section 251 of the CrPC has been framed against the non-applicant.

3. A brief background of the lis between the parties is that the complaint cases which are the subject matter of the captioned petitions were instituted by the applicant against the non-applicant and other accused persons

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subsequent to dishonor of three separate cheques in the sum of Rs. 3,00,00,000/-. Rs. 2,00,00,000/- and Rs. 3,00,00,000/- issued in discharge of an alleged liability of respondent no.2/company towards the applicant.

4. Learned counsel for the applicant respondent no.1, in support of the present applications, made the following submissions:-

4.1. It was submitted that the non-applicant had filed three petitions at an earlier point of time under Section 482 of the CrPC seeking similar reliefs, i.e., CRL.MC. 1646/2013, CRL.MC. 1642/2013 and CRL.MC. 1644/2013 titled „Mr. Yasohvardhan Birla v. M/s Kamdhenu Enterprises Ltd.". It was submitted that the said petitions were dismissed as withdrawn by a learned Single Judge of this Court vide orders dated 14.08.2014 and liberty was granted to the non-applicant to agitate the grounds taken in the said petitions before the learned Trial Court at the time of hearing on the point of notice under Section 251 of the CrPC. Learned counsel for the applicant submitted that the non-applicant has intentionally concealed the factum of the filing and withdrawal of the said earlier petitions from this Court.

4.2. It was further submitted that the non-applicant has further concealed that the fact that none of the grounds taken in the earlier petitions were pleaded at the time of framing of notice under Section 251 of the CrPC before the learned Trial Court, as was specifically stated at the time of withdrawal of the said petitions.

4.3. Learned counsel for the applicant further submitted that the non- applicant has misrepresented that the learned Metropolitan Magistrate framed a notice under Section 251 of the CrPC without considering that fact that he was a Non-Executive Director of the accused company/respondent no. 2,

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which was a ground taken in the earlier petitions. It was submitted that the said ground was taken by the non-applicant only after framing of notice under Section 251 of the CrPC. Attention of this Court was drawn to the list of dates accompanying the captioned petition, wherein it has been stated that on 30.10.2021, the learned Trial Court proceeded to frame a notice under Section 251 of the CrPC against the non-applicant despite being specifically informed that he was only associated with the accused company/respondent no. 2 in the capacity of a Non-Executive Director and was not responsible for the conduct of day to day affairs of the said company. It was submitted that in the petition itself, the non-applicant has taken a contradictory stand, inasmuch as that in Para „I" thereof, it has been stated as under:

"That on 30.10.2021, the Patiala House Court proceeded to frame notice against the Petitioner whereby the Petitioner specifically informed while answering the questions that the Petitioner was only associated with the Respondent No. 2 Company in the capacity of a non-executive director and was not responsible for the day-to-day affairs of the Respondent No.

2 Company. Furthermore, it was also stated by the Petitioner that the cheque had not been signed by him."

It was submitted that the aforesaid paragraph makes it clear that the non-applicant has specifically pleaded the aforesaid ground after the notice was framed. It was submitted that the same is also clear from the plea recorded by the learned Metropolitan Magistrate alongwith the notice under Section 251 of the CrPC. In the said plea, it has been stated as under:

"Q.5 Specify your defence, if any?

Ans. At the time of issuance of the impugned cheque, I was one of the Non Executive Directors of accused no. 1 company and I was not responsible for managing the day to day affairs of accused no. 1 company and resigned soon after the date mentioned on the cheque i.e.

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on 27.12.2012 and I have been falsely implicated in the present case as I was not even the authorised signatory of accused no. 1 company at the relevant time"

4.4. Learned counsel for the applicant further submitted that the non- applicant, in the captioned petition, has averred that various legal grounds were agitated before the learned Metropolitan Magistrate, however, in reality, no such grounds were taken and the non-applicant has misrepresented before this Court that the said grounds were rejected by the learned Metropolitan Magistrate.

4.5. Learned counsel for the applicant further submitted that the non- applicant has falsely averred that the present petitions are maintainable. It was submitted that in view of a judgment of a learned Division Bench of this Court in Court On Its Own Motion v. State, 2022:DHC:1932-DB, the present petition is not maintainable. In the said case, it was held as under:

"A plain reading of the paragraphs extracted hereinabove leaves no manner of doubt that in terms of the judgment of the Hon"ble Supreme 2022:DHC:1932-DB CRL.REF. 4/2019 Page 7 of 8 Court in Adalat Prasad v. Rooplal Jindal and Others, (2004) 7 SCC 338 and Subramanium Sethuraman v. State of Maharashtra and Another, (2004)

13 SCC 324, the Trial Court cannot be conferred with inherent powers, either to review or recall the order of issuance of process. As held in Adalat Prasad (supra) and Subramanium Sethuraman (supra), the Magistrate is deluded with the power to revisit the order of issue of process, except to the limited extent that the Court has no jurisdiction to try the case. In other words, the Trial Court has no inherent jurisdiction to revisit the order of issue of process within the meaning of the provisions of Section 258 Cr.P.C.

Further, it has been clearly held that, in any event, the provisions of Section 258 Cr.P.C. are not applicable to complaints under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as „N.I. Act").

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In view of the foregoing, we are of the considered view that Question No.1 in the present reference is to be answered in the negative. The Court of a Magistrate does not have the power to discharge the accused upon his appearance in Court in a summons trial case based upon a complaint in general, and particularly in a case under Section 138 of the N.I. Act, once cognizance has already been taken and process issued under Section 204 Cr.P.C."

It was submitted that the non-applicant was duty bound to inform this Court that the present petition is not maintainable in view of the aforesaid judgment and in not doing to, a material legal proposition has been concealed from this Court.

4.6. Learned counsel for the applicant further submitted that the non- applicant has concealed that immediately after the notice was framed under Section 251 of the CrPC, the non-applicant filed an application under Section 145(2) of the NI Act on 16.02.2022 seeking to cross examine the complainant witness(es). Attention of this Court was drawn to orders dated 16.02.2022 and 18.11.2022 passed by the learned Metropolitan Magistrate to demonstrate that since the non-applicant moved an application under Section 145(2) of the NI Act, he consequently adopted all the other proceedings conducted by the learned Trial Court and therefore, cannot now seek quashing of the complaint in a proceeding under Section 482 of the CrPC. It was submitted that the non- applicant has not disclosed the factum of the said application in the list of dates accompanying the captioned petition and has therefore, intentionally and with a mala fide concealed the said fact from this Court.

4.7. Learned counsel for the applicant further contended that the non- applicant has falsely averred that apart from the relief sought by way of the

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captioned petitions, he has no other alternate efficacious remedy. It was submitted that the non-applicant had an alternate remedy provided for under Section 397 of the CrPC and could have approached the learned Sessions Court by way of a revision petition. It was submitted that the applicant chose not to do so within the prescribed period of limitation and has approached this Court directly.

4.8. To summarise, learned counsel for the applicant submitted that the non- applicant has committed fraud upon this Court and is not entitled to any relief. It was submitted that the non-applicant was well aware of the contents of the captioned petition and the supporting affidavits. He has intentionally concealed material facts which are essential for adjudication of the captioned petitions. It was submitted that the non-applicant was legally bound to disclose the complete facts and in doing so, he has committed an offence punishable under Section 193 of the Indian Penal Code, 1860 („IPC") and since the statements made by the non-applicant are evidence, he has also committed the offence under Section 199 of the IPC.

4.9. In support of his contentions, learned counsel for the applicant placed reliance on the following judgments:

i. AK Dixit v. Manoj Kumar and Ors, 1999 (1) JCC (Delhi) 181.

ii. Bata and Ors. v, Anama Behera, 1990 Crl.LJ 1110.

iii. SP Chengalvaraya Naidu v. Jagannath, AIR 1994 SC 853.

iv. MCD v. State, (2005) 4 SCC 605.

Satish Khosla v. Eli Lilly Ranbaxy Ltd., 1998 (1) JCC (Delhi) 54.

vi. State of Andhra Pradesh v. T. Suryachandra Rao, (2005) 6 SCC 149.

vii. Manohar Lal v. Vinesh Anand, 2001 Crl.LJ 2044.

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viii. N. Natarajan v. B.K Subba Rao ., AIR 2003 SC 541.

ix. Hamza Haji v. State of Kerala, (2006) 7 SCC 416.

x. Indian Bank v. Satyam Fibres (India) Pvt. Ltd. ., (1996) 5 SCC 550.

xi. P. Satyanarayanan v. Land Reforms Tribunal, AIR 1980 AP 149.

xii. Bimla Kumar and Ors. v. State of Uttar Pradesh and Ors.

xiii. Adalat Prasad v. Roop Lal Jindal and Ors., (2004) 7 SCC 338.

4.10. Learned counsel for the applicant drew the attention of this Court to the judgments in Re: Suo Moto Proceedings against Mr. R. Karuppan, Advocate, 2001 Cri.LJ 2611 (Paras 13 and 14) and Ambica Plastopack Pvt. Ltd. & Anr. v. State and Anr., 2014 (206) DLT 244 (Paras 11.2 and 11.3)

5. Learned counsel for the non-applicant made the following submissions:-

5.1. It was submitted that at the time of filing of the captioned petitions, an inadvertent clerical error was made stating the no similar petitions had been filed before this Court, however, the non-applicant had in fact filed petitions seeking similar relief in the year 2013 which were eventually withdrawn, with liberty to raise all issues before the learned Trial Court at the time of framing of notice under Section 251 of the CrPC. It was submitted that the petitions were withdrawn on 14.08.2014 and the order framing notice under Section 251 of the CrPPC was passed by the learned Trial Court on 31.10.2021. It was submitted that on 16.04.2021, a Constitution Bench of the Hon"ble Supreme Court, in a Suo Moto Writ Petition (Criminal) No. 2/2020 titled „In Re:

Expeditious Trial of Cases Under Section 138 of the Negotiable Instruments Act, 1881' (2021 INSC 257) held that the learned Trial Court has no powers to review or recall an order passed by it and upheld the

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judgment in Adalat Prasad (supra). Eventually, in Court on Its Own Motion (supra), a learned Division Bench of this Court reiterated the said position and held as under:

"….The Court of a Magistrate does not have the power to discharge the accused upon his appearance in Court in a summons trial case based upon a complaint in general, and particularly in a case under Section 138 of the N.I. Act, once cognizance has already been taken and process issued under Section 204 Cr.P.C."

It was submitted that in view of the judgment of the Hon"ble Supreme Court in In Re: Expeditious Trial (supra), the non-applicant could not have raised any of the objections to framing of notice and seek a discharge from the learned Trial Court. In light of the above, it was submitted that it was necessary for the non-applicant to approach this Court in a proceeding under Section 482 of the CrPC.

5.2. As far as the non-disclosure of the factum of filing of the earlier petitions is concerned, it was submitted that the same was omitted on account of an inadvertent error and the same was brought to the notice of this Court on the first date of hearing in the present petitions, i.e., on 23.05.2023. Thereafter, it was submitted that on 24.05.2023, the non-applicant filed additional documents/annexures pertaining to the proceedings in the earlier petitions, however, the same were marked with a defect on 05.07.2023 and therefore could not be placed on record of this Court. In order to place the said documents on record, the non-applicant filed an application as well. Thereafter, the applicant approached this Court by way of the present application on 12.07.2023. Learned counsel for the non-applicant submitted that the latter had no intention of playing fraud on this Court at the time of

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filing of the captioned petition and the same is evident from the fact that the fact of the earlier petitions was disclosed by way of additional documents. Be that as it may, it was submitted that the suppression of a prior suit in itself is not sufficient ground for dismissal. Reliance in that regard was placed on SJS Business Enterprises (P) Ltd. v. State of bihar and Ors., (2004) 7 SCC 166, Arunima Baruah v. Union of India and Ors., (2007) SCC 120 and

Alstom India Pvt. Ltd. v. Union of India, 2014 SCC OnLine Guj 15962.

5.3. Learned counsel for the non-applicant further submitted that for initiation of proceedings in terms of Section 340 of the CrPC, it must be proved that the concealment/content must be „deliberate", which is not the case herein. Reliance was placed on RS Sujatha v. State of Karnataka and Ors., (2011) 5 SCC 689 and Aarish Asgar Qureshi v. Fareed Ahmed Qureshi and Anr., (2019) 18 SCC 172.

5.4. Lastly, it was submitted that the applicant"s contention is that the captioned petitions are not maintainable since the non-applicant chose not to exercise an alternate remedy under Section 397 of the CrPC. It was submitted that it is settled law that existence of an alternate remedy under Section 397 of the CrPC is no bar to a proceeding under Section 482 of the CrPC. Relieance was placed on Prabhu Chawla v. State of Rajasthan and Anr., (2016) 16 SCC 30 and Dhariwall Tobacco Products Ltd. and Ors. v. State of Maharashtra and Anr., (2009) 2 SCC 370.

6. By way of rejoinder, learned counsel for the applicant submitted that the contention on behalf of the non-applicant that the concealment of the earlier petitions was only an inadvertent clerical error is not tenable as no affidavit given by the clerk to that effect has been placed on record. It was

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contented that the suppressions made by the non-applicant are material and significant. The earlier petitions sought identical reliefs and the application under Section 145(2) of the NI Act is an important proceeding before the learned Trial Court, which has not been disclosed.

7. Heard learned counsel for the parties and perused the record.

8. The main crux of the arguments of learned counsel appearing on behalf of the applicant is the alleged concealment by the non-applicant with respect to the earlier petitions filed under Section 482 of the CrPC seeking a similar relief, as in the present petitions. The fact that both the petitions primarily seek similar relief is not disputed. The earlier petitions were disposed of by a learned Single Judge of this Court vide order dated 14.08.2014. The operative portion of the said orders, common to the petitions is reproduced as under:

"Counsel for both the parties submit that notice under Section 251 Cr.P.C. has not yet been framed.

After some arguments, learned counsel for the petitioner submits that he may be permitted to withdraw the present petition with liberty to raise all the pleas before learned Metropolitan Magistrate at the time of notice under Section 251 Cr.P.C. The same is not opposed by learned counsel for the respondent.

As prayed, both the petitions are dismissed as withdrawn. However, the petitioner is at liberty to urge all the pleas before the trial Court at the time of hearing on the point of notice under Section 251 Cr.P.C. and the trial Court will consider the same in accordance with law.

Needless to say, in case, the trial Court finds that no case for proceeding against the petitioner is made out, then the Apex Court"s decision in „Adalat Prashad vs. Roop Lal Jindal & Others" , (2004) 7 see 338 will not stand in the way of the petitioner.

Till the trial Court passes an order regarding framing of notice under Section 251 Cr.P.C., personal appearance of the petitioner be not insisted upon subject to the condition that the petitioner is duly represented by counsel who does not seek adjournment.

In view of the above, both the petitions are disposed of."

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9. It is pertinent to note here that at the time of passing of the aforesaid order, the judgements in In Re: Expeditious Trial (supra) and Court on its Own Motion (supra) had not been passed. It is common knowledge that at that relevant point of time, various decisions giving similar direction as in the aforesaid order were passed, directing the parties to argue their case before the learned Metropolitan Magistrate at the stage of framing of notice under Section 251 of the CrPC. It is only after passing of the judgements as mentioned hereinabove, it is now settled that the learned Metropolitan Magistrate does not have any power to discharge an accused under Section 251 of the CrPC in a case under Section 138 of the NI Act.

10. Admittedly, the aforesaid earlier petitions and the said order is not mentioned in the present petitions. Learned counsel appearing on behalf of the non-applicant submitted that the fact of filing of the previous petitions had come forth during the arguments at the time when the petitions were first listed before this Court. Accordingly, additional documents were sought to be placed on record on the very next day itself. However, the same were marked with defect. Per contra, learned counsel appearing on behalf of the applicant submitted that the said submission is again misleading and the applications for placing the additional documents record were filed subsequent to the present applications moved on behalf of the applicant.

11. It was further submitted on behalf of the non-applicant that the non- mentioning of the aforesaid order is on account of inadvertence and fairly stated that the same could be attributed to the legal team and not necessarily to the clerk, as has been claimed in reply to the present application. It was

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urged that even if it is assumed, purely for the sake of arguments, that the non-mentioning of the aforesaid details were not on account of inadvertence but a deliberate concealment then the same should be of material in nature affecting the lis between the parties. It is submitted on behalf of non-applicant that the aforesaid order clearly reflects that the merits of the grounds taken in the petitions were never adjudicated. The aforesaid earlier petitions were simply withdrawn with liberty to agitate the grounds before the learned Metropolitan Magistrate at the stage of framing of notice under Section 251 of the CrPC.

12. In view of the above discussion, plea whether the aforesaid non- mentioning of the details, as referred to hereinabove, would be a deliberate material concealment needs to be examined.

13. Hon"ble Supreme Court of India in Arunima Baruah v. Union of India and Ors., (2007) 6 SCC 120, while examining a similar situation observed and held as under:-

"2. How far and to what extent suppression of fact by way of non- disclosure would affect a person's right of access to justice is the question involved in this appeal which arises out of a judgment and order dated 23-7-2003 passed by the High Court of Delhi in LPA No. 68 of 2003.

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5. The appellant filed a suit in the District Court on 28-3-2001. An application was filed for grant of injunction. On or about 9-4-2001, only a notice to the defendant was issued but no order of ad interim injunction was passed. She filed a writ petition before the Delhi High Court on 10-4-2001. Admittedly, in the said writ petition, the fact in regard to pendency of the said suit was not disclosed. However, before the writ petition came up for preliminary hearing, she filed an application for withdrawal of the suit on 12-4-2001. The said application allegedly could not be moved because of the strike resorted to by the lawyers. The writ petition came up for preliminary hearing on 18-4-2001. A notice was issued therein. Her

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application to withdraw the suit dated 12-4-2001 came up for consideration before the civil court and upon a statement made by her, the same was permitted to be withdrawn by an order dated 30-4-2001. The writ petition, however, was dismissed by a learned Single Judge of the Delhi High Court by an order dated 29-11-2002, opining:

"The petitioner has filed the present writ petition for issuance of a writ of mandamus for quashing the order dated 19th March, 2001 terminating the services of the petitioner.

Notice was issued in the writ petition.

In the counter-affidavit filed by Respondent 3, it has been disclosed that the petitioner had filed a civil suit in the District Court on 28th March, 2001. A photocopy of the civil suit filed by the petitioner for a declaration and permanent injunction is filed with the counter- affidavit as Annexure R3/A. The prayer made in the suit is for a declaration that the order dated 19th March, 2001 is illegal, null and void. An application was also filed for the grant of an ex parte ad interim injunction. It appears that no ex parte ad interim injunction was granted to the petitioner.

However, without disclosing all these facts, the present writ petition was filed on 10th April, 2001. There is not even a whisper in the writ petition about the civil suit. Learned counsel for the petitioner does not dispute that such a civil suit was filed. It is stated in the rejoinder-affidavit that the civil suit was subsequently withdrawn but the relevant orders have not been filed along with the rejoinder- affidavit.

In view of gross concealment of fact by the petitioner, it appears that the petitioner is doing nothing more than forum-hunting. Having failed to obtain any injunction in the civil suit, the petitioner has resorted to filing the present writ petition. In view of the conduct of the petitioner and a material concealment of fact, I am not inclined to entertain the writ petition. The same is, accordingly, dismissed."

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11. The court"s jurisdiction to determine the lis between the parties, therefore, may be viewed from the human rights concept of access to justice. The same, however, would not mean that the court will have no jurisdiction to deny equitable relief when the complainant does not approach the court with a pair of clean hands; but to what extent such relief should be denied is the question.

12. It is trite law that so as to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What

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would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction. It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is removed and the hands become clean, whether the relief would still be denied is the question.

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22. In this case, however, suppression of filing of the suit is no longer a material fact. The learned Single Judge and the Division Bench of the High Court may be correct that, in a case of this nature, the Court"s jurisdiction may not be invoked but that would not mean that another writ petition would not lie. When another writ petition is filed disclosing all the facts, the appellant would be approaching the writ court with a pair of clean hands, and the Court at that point of time will be entitled to determine the case on merits having regard to the human right of the appellant to access to justice, and keeping in view the fact that judicial review is a basic feature of the Constitution of India."

(emphasis supplied)

14. Similarly, the Hon"ble Supreme Court, in SJS Business Enterprises

(P) Ltd. v. State of Bihar and Others, (2004) 7 SCC 166, while dealing with the case of suppression of the fact of a prior litigation, observed and held as under:

"8. When the writ petition came up for disposal, the learned Single Judge dismissed it holding that as the appellant had suppressed the fact that it had filed a suit prior to the initiation of writ proceedings its conduct verged on fraud and that the appellant had disentitled itself to any relief in the extraordinary prerogative writ jurisdiction. It was also held that BICICO had acted bona fide in taking action under Section 29 and selling the hotel. While dismissing the writ petition, the learned Single Judge directed BICICO to consider the appellant"s application for one-time settlement in

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accordance with law. BICICO was directed to hand over the possession of the hotel to Respondent 6 and the appellant was directed to pay Rs 10,000 by way of costs to Respondent 6.

9. The Division Bench dismissed the appeal preferred by the appellant after rejecting the explanation given by the appellant that the two proceedings had been initiated independently by the two Directors of the appellant, each without the other"s knowledge. The Division Bench held that the Court would not interfere with the Single Judge"s order because of the material suppression of facts by the appellant.

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13. As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the courts to deter a litigant from abusing the process of court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the court, whatever view the court may have taken [R. v. General Commrs. for the purposes of the Income Tax Act for the District of Kensington, (1917) 1 KB 486 : 86 LJKB 257 : 116 LT 136 (CA)] . Thus when the liability to income tax was questioned by an applicant on the ground of her non-residence, the fact that she had purchased and was maintaining a house in the country was held to be a material fact, the suppression of which disentitled her to the relief claimed [Ibid.] . Again when in earlier proceedings before this Court, the appellant had undertaken that it would not carry on the manufacture of liquor at its distillery and the proceedings before this Court were concluded on that basis, a subsequent writ petition for renewal of the licence to manufacture liquor at the same distillery before the High Court was held to have been initiated for oblique and ulterior purposes and the interim order passed by the High Court in such subsequent application was set aside by this Court [State Of Haryana v. Karnal Distillery Co. Ltd., (1977) 2 SCC 431 : AIR 1977 SC 781] . Similarly, a challenge to an order fixing the price was rejected because the petitioners had suppressed the fact that an agreement had been entered into between the petitioners and the Government relating to the fixation of price and that the impugned order had been replaced by another order [Welcom Hotel v. State of A.P., (1983) 4 SCC 575 : 1983 SCC (Cri) 872 : AIR 1983 SC 1015] .

14. Assuming that the explanation given by the appellant that the suit had been filed by one of the Directors of the Company without the knowledge of the Director who almost simultaneously approached the High Court

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under Article 226 is unbelievable (sic), the question still remains whether the filing of the suit can be said to be a fact material to the disposal of the writ petition on merits. We think not. The existence of an adequate or suitable alternative remedy available to a litigant is merely a factor which a court entertaining an application under Article 226 will consider for exercising the discretion to issue a writ under Article 226 [A.N. Venkateswaran v. Ramchand Sobhraj Wadhwani, AIR 1961 SC 1506] . But the existence of such remedy does not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed. If, however, a party has already availed of the alternative remedy while invoking the jurisdiction under Article 226, it would not be appropriate for the court to entertain the writ petition. The rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another court. But this Court has also held in Chandra Bhan Gosain v. State of Orissa [(1963) 14 STC 766, 918 : (1964) 2 SCR 879] that even when an alternative remedy has been availed of by a party but not pursued that the party could prosecute proceedings under Article 226 for the same relief. This Court has also held that when a party has already moved the High Court under Article 226 and failed to obtain relief and then moved an application under Article 32 before this Court for the same relief, normally the Court will not entertain the application under Article 32. But where in the parallel jurisdiction, the order is not a speaking one or the matter has been disposed of on some other ground, this Court has, in a suitable case, entertained the application under Article 32 [Tilokchand Motichand v. H.B. Munshi, (1969) 1 SCC 110 : AIR 1970 SC 898] .

Instead of dismissing the writ petition on the ground that the alternative remedy had been availed of, the Court may call upon the party to elect whether it will proceed with the alternative remedy or with the application under Article 226 [K.S. Rashid and Son v. Income Tax Investigation Commission, AIR 1954 SC 207] . Therefore, the fact that a suit had already been filed by the appellant was not such a fact the suppression of which could have affected the final disposal of the writ petition on merits."

(emphasis supplied)

15. In the backdrop of the aforesaid principles, a fact which was stated to have been suppressed, would be considered material, when it is shown that

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had it not been suppressed, then the same would have an effect on the rights of the parties determining the merits of the case. Similarly, when a material fact has been admitted by any party, in any previous proceedings, having an effect on determining the same lis between the parties in the subsequent proceedings, is suppressed, the same would also amount to suppression of material fact. The order dated 14.08.2014 passed by learned Single Judge of this Court in the earlier petitions does not in any manner determine the lis between the parties as raised in present petitions and for that matter in the said earlier petitions. The aforesaid order simply permitted the petitioner herein to withdraw the petition at that time with liberty to raise the contentions in the petition before the learned Metropolitan Magistrate at the time of framing of notice under Section 251 of the CrPC which, at that point of time, was not opposed by learned counsel appearing on behalf of the respondent therein. As noted hereinabove, before, the judgments in In Re: Expeditious Trial (supra) and Court on its own motion (supra) had not been passed.

16. In the present applications, there is no averment made with respect to the effect of non-disclosure of the aforesaid filing of the earlier petitions and the order on the merits of the case. In the considered opinion of this Court, the aforesaid order cannot be in the nature of res judicata between the parties.

17. Similarly, the non-mentioning of the filing of the applications under Section 145(2) of the NI Act and the discrepancy in the language of the list of dates and the content of the main petition is not a material discrepancy which warrants a dismissal of the captioned petitions, at the very outset, without an examination of the merits of the case.

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18. The judgements relied upon by learned counsel appearing on behalf of the applicant, namely, Re: Suo Moto Proceedings against Mr. R. Karuppan, Advocate (supra) and Ambica Plastopack Pvt. Ltd. & Anr. (supra) are not applicable to the facts of the present case in view of the facts and circumstances discussed hereinabove.

19. Another factor which assumes significance in the present case is that it is not in dispute that the present matter has been pending adjudication between the parties since the year 2012 and that the same is being actively contested on behalf of both the parties is also apparent. In these circumstances, a deliberate attempt to conceal previous litigation between the parties would be a futile exercise. It is further fortified from the fact that the previous round of litigation did not decide anything on merits between the parties nor any benefit had been accrued to the non-applicant in the previous litigation which by way of concealment would have prejudiced the applicant's case. Further, during the course of arguments learned counsel appearing on behalf of non-applicant has fairly conceded to the fact that the inadvertence with regard to non-mentioning of the aforesaid details was also on account of error on part of the legal team.

20. In view of the aforesaid discussion, this Court is of the considered opinion that non-mentioning of details of the earlier petitions and their withdrawal, as referred hereinbefore does not amount to deliberate concealment on behalf of the petitioners and therefore the first prayer in the present applications is hereby dismissed.

21. So far as the second prayer with regard to initiation of proceedings under Section 340 read with Section 195(1)(B) of the CrPC against the

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present petitioner is concerned, it is relevant to note that for initiating proceedings under Section 340 of the CrPC, the statements should have been made deliberately and consciously, as has been held by the Ho"ble Supreme Court in a catena of judgments. The Hon"ble Supreme Court, in Chajoo Ram

v. Radhey Shyam & Anr., (1971) 1 SCC 774, while dealing with the provisions of Section 340 of the CrPC held as under:

"7. The prosecution for perjury should be sanctioned by courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge. In the present case we do not think the material brought to our notice was sufficiently adequate to justify the conclusion that it is expedient in the interests of justice to file a complaint. The approach of the High Court seems some- what mechanical and superficial: it does not reflect the requisite judicial deliberation: it seems to have ignored the fact that the appellant was a Panch and authorised to act as such and his explanation was not implausible. The High Court further appears to have failed to give requisite weight to the order of the District Magistrate which was confirmed by the Sessions Judge, in which it was considered inexpedient to initiate prosecution on the charge of alleged false affidavit that the appellant had not acted as Sarpanch during the period of the stay order. The subject- matter of the charge before the District Magistrate was substantially the same as in the present case. Lastly, there is also the question of long lapse of time of more than ten years since the filing of the affidavit which is the subject-matter of the charge. This factor is also not wholly irrelevant for considering the question of expediency of initiating prosecution for the alleged perjury. In view of the nature of the alleged perjury in this case this long delay also militates against expediency of prosecution. And then by

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reason of the pendency of these proceedings since 1962 and earlier similar proceedings before the District Magistrate also the appellant must have suffered both mentally and financially. In view of all these circumstances we are constrained to allow the appeal and set aside the order directing complaint to be filed."

(emphasis supplied)

22. Following the aforesaid precedent, Hon"ble Supreme Court in R.S. Sujatha v. State of Karnataka and Ors., (2011) 5 SCC 689, held as under:-

"18. Thus, from the above, it is evident that the inquiry/contempt proceedings should be initiated by the court in exceptional circumstances where the court is of the opinion that perjury has been committed by a party deliberately to have some beneficial order from the court. There must be grounds of a nature higher than mere surmise or suspicion for initiating such proceedings. There must be distinct evidence of the commission of an offence by such a person as mere suspicion cannot bring home the charge of perjury. More so, the court has also to determine as on facts, whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed.

*** *** ***

20. The Tribunal proceeded in great haste as the show-cause notice was issued by the Tribunal on 15-11-2002 for initiating the said proceedings, fixed the date for 12-12-2002 and disposed of the matter on 19-12-2002. The Tribunal failed to appreciate that criminal contempt proceedings are quasi-criminal in nature and any action on the part of a party by mistake, inadvertence or by misunderstanding does not amount to contempt. In contempt proceedings, the court is the accuser as well as the judge of the accusation. Therefore, it behoves the Tribunal to act with great circumspection as far as possible, making all allowances for errors of judgment. Any action taken in an unclear case is to make the law of contempt do duty for other measures and therefore is totally unwarranted and should not be encouraged."

(emphasis supplied)

23. In view of the discussion in the preceding paragraphs, this Court is of the considered opinion that non-mentioning of the details with regard to previous petitions and the order disposing of the said petitions was not

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deliberate material concealment on part of the non-applicant and therefore, second prayer in the present applications is also dismissed.

24. The application filed on behalf of the non-applicant under Section 482 of the CrPC to bring on record additional documents has already been allowed by an order of this Court on 06.09.2023, in view of the no objection given by the counsel for the present applicant.

25. The present applications are dismissed and disposed of accordingly.

26. Judgment be uploaded on the website of this Court, forthwith.

AMIT SHARMA

JUDGE

NOVEMBER 23, 2023/sn

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