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TMI Blog2010 (2) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 193 of the Indian Penal Code. The deponent of the company's affidavit herein, being legally bound by an oath to state the truth, is prima facie held to have made false statements and relied on fabricated documents which constitute offences of giving false evidence as defined under section 191 of the Indian Penal Code and of fabricating documents as defined under section 192 of the Indian Penal Code, punishable under section 193 thereof. It is also expedient in the interest of justice to make an enquiry against such deponent in relation to the offences committed by him. The Registrar, original side, will file a complaint under section 193 of the Indian Penal Code against Subhojit Ghose, the deponent of the company's affidavit, before a magistrate of competent jurisdiction in Kolkata within eight weeks from date and take all steps necessary for prosecuting the complaint. - C.A. NO. 444 OF 2009 CP. NO. 363 OF 2007 - - - Dated:- 19-2-2010 - SANJIB BANERJEE, J. Jishnu Saha and S. Dutt for the Petitioner. Surojit Nath Mitra, D.N. Mishra and V.N. Mishra for the Company. JUDGMENT Sanjib Banerjee, J. An utterly dishonest defence has been se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to such statutory notice. 6. The elaborate defence set out and the pains taken by or at the behest of the company need to be noticed in detail ; not the least for the effort expended. It must also be remembered that this second statutory notice was issued on a rebound, in the sense that a creditor's winding up petition had been previously filed and lawyers had already come into the picture and that an affidavit had been filed by the company to the previous petition. The company's response to the statutory notice of August 27, 2007, runs into four long sheets of paper. The company attempted to deal with every aspect of the matter. It is, in a sense, the ideal reply to a statutory notice that anyone trained in this branch of law would produce for a creditor's petition to be rejected on the basis of such reply. Yet, the reply must be considered in the context that the matter had by then reached the lawyers and it was not a lay response of a company to an alleged creditor demanding payment. 7. There is one aspect of the matter that requires to be referred to before the reply to the statutory notice is taken up in detail and the allegations meticulously arranged therein consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he reply, the company referred to its alleged letters of September 2, 2005, December 19, 2003 and March 30, 2004, which the company claimed to have addressed to the petitioner apparently raising its objection against the rates quoted by the petitioner for supply of the gunny bags. The company insisted that it was liable to pay only to the extent of Rs. 26.78 per bag and no more. 10. With the preliminaries as to questioning the rate having been taken care of in the fifth paragraph of the reply, the company introduced a debit note in the sixth paragraph thereof. According to the company the debit note was of value of Rs. 33,78,597 which had been issued after reckoning the accounts between the parties as at March 31, 2006. The company asserted that under cover of its letter of April 12, 2006, it had duly intimated the petitioner that a sum of Rs. 33,78,597 had been adjusted in the final accounts as at March 31, 2(106. The company asserted that the letter of April 12, 2006, had been duly received by the petitioner without raising any objection thereto. 11. At the next paragraph of the company's reply it suggested that the cheques bearing Nos. 430840, 430841 and 430842 had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstead of the figure of Rs. 15,000 being inserted in the cheque, the figure of Rs. 25,43,933 was inserted therein. The company insisted that the petitioner had practised fraud on the company. 14. Without going into the veracity of the other statements thus far noticed in the reply, it is necessary to concentrate on this aspect of the matter for the moment. Why was it necessary for the company to issue a blank cheque and leave the petitioner's employee to fill in the figure therein ? Why, indeed, would the company trust the petitioner or its representatives so when the company by then willy-nilly been cheated by the petitioner having fraudulently raised excess bills to the extent of over Rs. 33 lakhs (it should be remembered that the debit note is said to have been issued to the petitioner and received by the petitioner on or about April 12, 2006) ? There is also another question that arises. Why would the company be paying a sum of Rs. 15,000 to the petitioner in end-June, 2006. The sum would not represent the settlement of the balance dues of the petitioner, even if the company's version of things were to be believed. 15. To proceed with the rest of the story made out in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company's affidavit there is the copy of a letter dated September 2, 2005 ; at the next page there is a copy of a letter dated December 19, 2003 and at page 32 there is a copy of a letter dated March 30, 2004. The letters said to have been issued on September 2, 2005 and March 30, 2004 also suggest that they were issued under registered post. Again, the relevant acknowledgment due cards or copies thereof do not find any place in the company's affidavit. But the copies of the postal receipts were apparently showing the despatch of the postal articles have been appended at the foot of the said two letters. There is no attempt to explain or demonstrate the receipt of the letter dated December 19, 2003, by the petitioner. In the letter said to have been issued on September 2, 2005, the company referred to its previous letters of December 19, 2003 and March 30, 2004 (the copies whereof appear at pages 30 and 32 of the company's affidavit). In the letter purportedly written out and issued by the company on September 2, 2005, the company complained that "even after so many letters" the petitioner had not paid any attention and there had been a sharp decline in the company's business durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry for the company to carefully put in place to sustain its contrived defence that the petitioner had overcharged and the petitioner was liable to revise the bills. 22. There is a minor matter that the company appears to have overlooked. Even in the seemingly completeness of the dishonest picture that the company has put in place, the company overlooked that its letter said to have been issued on September 2, 2005, referred to the earlier letters said to have been issued on December 19, 2003 and March 30, 2004. By March 30, 2004, latest, the company was already aware, if the letters are to be believed, that the petitioner had overcharged and that there were other manufacturers in the industry who were charging much lesser rates than those quoted by the petitioner. If despite the company having such information, its officer chose to unreservedly acknowledge the indebtedness of the company to the extent of Rs. 43,43,933 against the balance confirmation of accounts for a larger figure of Rs. 43,48,130 indicated in the document of April 1, 2005, the defence which has been attempted to be set up by the palpably false and fabricated letter of September 2, 2005, falls flat. 23. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accounts for the previous financial years. After the petitioner had filed his affidavit-in-reply, he obtained leave in August, 2009, to use a supplementary affidavit. The supplementary affidavit discloses documents running from pages 5 to 19. These, according to the petitioner, are the balance confirmation of accounts for the several financial years preceding 2004-05 and including 2004-05. A copy of such supplementary affidavit had been contemporaneously served on the company. The company has acknowledged receipt of the supplementary affidavit and has chosen neither to deal with the same nor seek any leave even at the conclusion of the final hearing to respond thereto. 26. The supplementary affidavit reveals that the accounts for each financial year have been confirmed with the company's rubber stamp affixed thereon for the year ended March 31, 2002 and for the years ended March 31, 2003 and March 31, 2004. As at March 31, 2004, a sum of Rs. 37,80,992 remained due and owing from the company to the petitioner according to the accounts that had been confirmed by the parties. At pages 13 to 15 of the supplementary affidavit, the petitioner has detailed the transactions between t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n brought into existence ; or in the company accepting the balance confirmation of accounts at the end of every subsequent financial year, it waived or is deemed to have waived the objections that it apparently raised in the letters of December 19, 2003 and March 30, 2004. In either case, the letters of December 19, 2003 and March 30, 2004, cannot detract from the petitioner's claim or be legally relied upon by the company to resist such claim. 29. In the company's affidavit, there is no assertion at paragraph 3( e ) or at paragraph 3( f ) that the petitioner received the letter dated December 16, 2005, or the letter dated June 7, 2006. At paragraph 3( g ) of the company's affidavit there is a statement that after receipt of the fresh cheques issued in June, 2006, allegedly in lieu of the cheques issued in December, 2005, the petitioner "with a mala fide motive and intention failed to return the earlier cheques . . ." Yet the company did not deem it necessary or make it convenient to contemporaneously issue a letter of protest or a reminder to the petitioner that the petitioner was obliged to return the old cheques immediately upon receipt of the new cheques. The purported le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 and 16 of the said application, save what are matters of record and save what appears therefrom. I deny and dispute each and every allegations made in aforesaid paragraphs. It is specifically denied that despite repeated demands the said company has failed and neglected to pay the dues of the petitioner to the tune of Rs. 44,48,852.20 or that the company by its letter dated April 1, 2005, duly confirmed a sum of Rs. 43,43,933 being duo and payable to your petitioner. I say that the said applicant had rot disclosed the entire statement of accounts in respect of the transactions commencing on and from April 4, 2001, till March 31, 2006, disclosing the entire payments made by the company and adjustments towards the debit notes issued by the said company. The said company has from time to time raised debit notes for a total sum of Rs. 33,78,597 such debit note issued by the said company has been duly received by the applicant without raising any objection whatsoever. The said company has adjusted a total sum of Rs. 33,78,597 in its final account as on March 31, 2006, raised towards the debit notes." 32. If it is evident, as it obviously is from the company's affidavit, that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the petition and form annexure B thereto. The first notice (a copy whereof is at pages 492-493 of the petition) is dated July 8, 2006 and it is addressed to the company and to Subhojit Ghose. The petitioner has specifically referred to the acknowledgment due card (though it should be cards) at paragraph 14. The copies of the postal acknowledgment cards in respect of the first notice covering the first five of the seven cheques appear at pages 494 and 495 of the petition. It is evident therefrom that the two addressees received the notices by July 12, 2006. The second notice is dated August 12, 2006 and a copy thereof appears at pages 496-497 of the petition. The notice appears to have been addressed to the company and to Ravi Shankar Chatterjee and Subhojit Ghose. The copy of only one of the acknowledgment due cards has been included in the petition : the one relating to Subhojit Ghose which was received on behalf of the addressee on August 16, 2006. 35. Paragraph 14 of the petition has been dealt with in paragraph 8 of the company's affidavit. The company has altogether glossed over the notices of dishonour referred to in the petition. The company has side-stepped the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act, paragraph 7 of the company's affidavit covers paragraphs 10, 11 and 12 of the petition and, in the context of the company seeking to explain the "circumstances leading to (the) issuance of the aforesaid cheques", sub-paragraphs ( e ) to (1) of paragraph 3 of the company's affidavit have been repeated as the ten sub-paragraphs under paragraph 7 with the numbering now in Roman figures rather than English alphabets. The entirety of nearly seven pages has been robotically copied and pasted under paragraph 7 and even the annexures referred to earlier have been repeated. To come back to paragraph 8 of the company's affidavit, if the full-stop after the word "from" that seemingly ends the first sentence is disregarded then there is a bald denial of the statements in the three paragraphs of the petition under reference in the whole of the first sentence. In the next sentence (never mind that it does not begin with a capital letter) there is a specific denial that the petitioner (referred to as "the petitioner" or "the applicant" inter-changeably) requested the company to pay the amounts covered by the cheques. Such denial, however, is meaningless since the company's affidavit does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case has made out a dubious explanation its attempt to rebut the presumption that has arisen upon the cheques having been issued. The seven cheques issued by the company and dishonoured upon presentation, mostly for insufficient funds, add up to a total value of Rs. 43,43,933 which exactly reflects the company's admission of the extent of its indebtedness to the petitioner in the document dated April 1, 2005. 38. The company says that there is no effective denial in the affidavit-in-reply used by the petitione to the stand taken in the company's affidavit. The company has drawn attention, particularly, to paragraph 6 of the affidavit-in-reply that deals with sub-paragraphs ( a ) to ( d ) of paragraph 3 of the company's affidavit. According to the company, the petitioner did not deny that it did not receive the debit note which had been forwarded to the petitioner by registered post under cover of the letter dated April 12, 2006. The company is obviously incorrect in such assertion. There is a categorical denial into the fourth line of the fifth page of the petitioner's reply that the petitioner had never received the debit note. 39. There is a further argument made on behal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the company pays off the entire amount, inclusive of interest and costs assessed at 5,000 GM within a period of six weeks from date, C. P. No. 363 of 2007 will remain permanently stayed. 42. In default of the payment as directed in the immediate preceding paragraph being made within the time permitted, the petitioner will advertise the petition once in The Statesman and once in Pratidin. Publication in the Official Gazette will stand dispensed with. The advertisements should indicate that the matter will appear before the court on the first working day after the expiry of four weeks from the date of publication. 43. A petition of this nature and the defence that has been set up by this company were not required to be taken up in such detail. Considerable court time has been expended only to demonstrate the frivolous nature of the defence that has been unscrupulously set up and to call attention to a malaise that seems to have overwhelmed the judicial process. 44. There is an idea that appears to have gained currency that any frivolous claim and every deceitful defence will be tolerated by the Indian courts and even if they fail there will be no follow-up action. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ependent upon the statement of facts. If the result of the proceedings are to be respected, these issues before the courts must be resolved to the extent possible in accordance with the truth. The purity of proceedings of the court cannot be permitted to be sullied by a party on frivolous, vexatious or insufficient grounds or relying upon false evidence inspired by extraneous considerations or revengeful desire to harass or spite his opponent. Sanctity of the affidavits has to be preserved and protected discouraging the filing of irresponsible statements, without any regard to accuracy . . . 15. In India, law relating to the offence of perjury is given a statutory definition under section 191 and Chapter XI of the Indian Penal Code, incorporated to deal with the offences relating to giving false evidence against public justice. The offences incorporated under this Chapter are based upon recognition of the decline of moral values and erosion of sanctity of oath. Unscrupulous litigants are found daily resorting to utter blatant falsehood in the courts which has, to some extent, resulted in polluting the judicial system. It is a fact, though unfortunate, that a general impression is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008, will be sent by the Registrar, original side to the appropriate criminal forum for initiation of proceedings for perjury against the deponent of the affidavit upon it prima facie appearing to this court that false statements have been made on oath to court knowing the same to be false and documents have been manufactured, forged and/or brought into existence for the use in proceedings before the court with intent to substantiate a false and dishonest defence. 49. An affidavit is evidence within the meaning of section 191 of the Indian Penal Code and a person swearing to a false affidavit is guilty of perjury punishable under section 193 of the Indian Penal Code. The deponent of the company's affidavit herein, being legally bound by an oath to state the truth, is prima facie held to have made false statements and relied on fabricated documents which constitute offences of giving false evidence as defined under section 191 of the Indian Penal Code and of fabricating documents as defined under section 192 of the Indian Penal Code, punishable under section 193 thereof. It is also expedient in the interest of justice to make an enquiry against such deponent in relation to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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