G. Rohini, C.J. - CRL.M.A. No.18179/2015 in LPA No.888/2015
CRL.M.A. No.18178/2015 in LPA No.889/2015
1. The respondent No.1 in LPA Nos.888 and 889/2015 filed these two applications under Section 340 of Criminal Procedure Code, 1973 (Cr.P.C.) alleging that the appellants/non-applicants made false statements on oath in the said appeals and, therefore, it is necessary to refer the matter to the concerned Magistrate for appropriate action under Section 195 of Cr.P.C.
2. We may at the outset, refer to the relevant facts in brief.
3. The applicant/Telefonaktiebolaget LM Ericsson (Publ) (for short ''LM Ericsson'' is the plaintiff in C.S.(OS) No.442/2013 on the file of this Court for permanent injunction against the defendants viz. (i) Mercury Electronics Ltd. and (ii) Micromax Informatics Limited (for short ''Micromax'') restraining them from infringing the registered patents of the plaintiff/LM Ericsson. An interim order was passed on 12.11.2014 in IA Nos.3825/2013 and 4694/2013 directing the defendant to pay royalty to the plaintiff at the rate specified therein. Alleging that Yu Televentures Pvt. Ltd., which is a wholly owned subsidiary of Micromax/defendant No.2 has been using the suit patents without paying royalty to the plaintiff, Contempt Petition being CCP No.71/2015 has been filed under Order 39, Rule 2A of CPC against (i) Micromax, (ii) Yu Televentures Pvt. Ltd. and the Directors/Officers of Yu Televentures Ltd., namely, Mr.Rahul Sharma, Mr. Sumit Kumar and Mr.Vikas Jain. By order dated 02.12.2015 in CCP No.71/2015, the learned Single Judge held that Yu Televentures Pvt. Ltd. as well as the Directors are in contempt of the order of the Court dated 12.11.2014. Aggrieved by the said order, Yu Televentures Pvt. Ltd. filed LPA No.888/2015 whereas the Directors of Yu Televentures Pvt. Ltd. filed LPA 889/2015.
4. At page-H of the Synopsis and List of Dates and at page-6 of LPA 888/2015, it was stated by Yu Televentures Pvt. Ltd./appellant that ''the appellant never received notice in the contempt proceedings''. Similarly, at page-H of the Synopsis and List of Dates and at page-6 of LPA 889/2015 filed by the Directors, it was stated that ''the appellants never received notice in the contempt proceedings''. It was also stated in Ground-F of the LPA 889/2015 that the the learned Single Judge ought to have issued notice to the appellants.
5. The appeals were filed on 07.12.2015 after serving copies on the counsel for the respondent/plaintiff/LM Ericsson. Though the said appeals were listed before the Division Bench on 09.12.2015, they were not heard and were adjourned to 11.12.2015. In the meanwhile, on 10.12.2015, the present applications under Section 340 Cr.P.C. came to be filed alleging that the statements in both the appeals that notice in Contempt Petition was not served on the appellants is false and therefore, the appellants are liable to be prosecuted for perjury. On 11.12.2015, when the appeals were taken up by the Division Bench for hearing along with the present applications, i.e., Crl.M.A. Nos.18178/2015 and 18179/2015, it was at the outset represented by the appellants in the appeals/non-applicants in the Crl.M.A. Nos.18178/2015 and 18179/2015 that the fact that the notices were served in the Contempt Petition were not within their knowledge when the appeals were filed and tendering unconditional apology for the same. Separate affidavits have been file to that effect by the appellants/non-applicants explaining the circumstances which led to the inadvertent inclusion of the averments relating to service of summon and praying that the said averments in the Synopsis and the Memo of Appeal may be allowed to be unconditionally withdrawn as not pressed.
6. Though LPA Nos.888/2015 and 889/2015 were disposed of by order dated 11.12.2015, the present applications filed under Section 340 Cr.P.C. were segregated from the appeals and a separate file was directed to be made for the same. The affidavits dated 10.12.2015 filed by the appellants were also taken on record and they were granted time to file the response to Crl.M.A. Nos.18178/2015 and 18179/2015.
7. In pursuance thereof, the appellants in LPA Nos.888 and 889/2015/the non-applicants in the present applications filed their reply stating that the inclusion of the pleading with respect to service of notice of Contempt Petition in the Memo of Appeals was a bona fide mistake and that the same was not intended to derive any unfair advantage. While reiterating the circumstances explained in the affidavit dated 10.12.2015 which resulted in making the incorrect statements, it has been pleaded by the non-applicants that the said incorrect statements having been made under a bona fide mistake and through inadvertence, no action is warranted under Section 340 of Cr.P.C.
8. We have heard Sh.Neeraj Kishal Kaul and Ms. Pratibha M. Singh, the learned Senior Counsels appearing for the applicants and Sh. P.V. Kapur, the learned Senior Counsel and Sh. Ajit Warrier, the learned counsel appearing for the non-applicants.
9. It is vehemently contended by the learned Senior Counsels appearing for the applicants that the action of the non-applicants/appellants in LPA Nos.888 and 889/2015 in making false statements being deliberate to derive advantage in the appeals, they shall be dealt with seriously as held in Kishorebhai Gandubhai Pethani v. State of Gujarat and Anr., (2014) 13 SCC 539, Mahila Vinod Kumari v. State of Madhya Pradesh, (2008) 8 SCC 34 and In Re, Suo Moto Proceedings Against R. Karuppan, Advocate, (2001) 5 SCC 289.
10. The fact that the statements of the appellants in the Synopsis and the List of Dates and Memo of Appeals in LPA Nos. 888 and 889/2015 are incorrect is not in dispute. The non-applicants/appellants themselves admitted that the said statements are factually incorrect. As noticed above, even before the appeals were heard by this Court, the appellants/non-applicants had filed affidavits tendering unconditional apology and withdrawing the said wrong statements. It is also relevant to note that the decision in the appeals was not based on the said incorrect statements made by the appellants/non-applicants. In fact, even before the appeals were taken up for hearing, this Court was informed about the filing of the present applications under Section 340 of Cr.P.C., which were also listed along with the appeals as well as the sworn affidavits filed by the appellants/non-applicants tendering unconditional apology for the mistake that has crept in and praying for withdrawing the incorrect statements. Therefore, the question of the appellants deriving benefit out of the wrong statements did not arise at all.
11. It may also be mentioned that LPA Nos.888 and 889/2015 were disposed of holding that the findings recorded by the learned Single Judge in the order dated 02.12.2015 in CCP No.71/2015 that the appellants therein, i.e., the non-applicants in the present applications are guilty of contempt of Court for violation of the order dated 12.11.2014 shall not be treated as conclusive and that the Contempt Petition will be heard and decided by the learned Single Judge in accordance with law without being influenced by any of the findings/observations in the order dated 02.12.2015. In fact, the said order was a consent order recording the statement of the learned Senior Counsel appearing for the plaintiff/respondent No.1 in the appeals that the finding recorded by the learned Single Judge that the respondents in Contempt Petition are guilty of contempt can only be treated as prima facie view expressed by the learned Single Judge. The relevant passages from the order dated 11.12.2015 disposing of LPA Nos.888 and 889 of 2015 are reproduced hereunder for ready reference:
"9. Admittedly, the appellants in LPA No.889/2015 (respondents No.3 to 5 in CCP No.71/2015) were not heard by the learned Single Judge before passing the order under appeal. The specific case of Micromax Informatics Limited (respondent No.2 herein) before the learned Single Judge was that there is need for placing evidence on record in order to treat both YU Televentures Pvt. Ltd. and Micromax Informatics Limited as one unity. However, they could not put in their response before the learned Single Judge and they were not heard before the order under appeal came to be passed. That being the case, we are of the view that the finding of the learned Single Judge in the order under appeal that they are guilty of contempt cannot be treated as conclusive. Sh. Gopal Subramaniam, the learned Senior Counsel appearing for the respondent No.1 in LPA No.888/2015 has fairly conceded that the said findings in the order under appeal can only be treated as a prima facie view expressed by the learned Single Judge. However, it is stated by the learned senior counsel that the Appellants shall subject themselves to the contempt proceedings and file their replies, if any, on 15.12.2015 for consideration by the learned Single Judge. The learned senior counsels appearing for the appellants agreed for the same. While undertaking that the appellants would be represented by their counsels on 15.12.2015 before the learned Single Judge, the learned counsels for the appellants requested to cancel the bailable warrants issued by the learned Single Judge.
10. In the facts and circumstances of the case, we consider it appropriate to dispose of both of these appeals making it clear that the findings recorded by the learned Single Judge in the order under appeal that the appellants herein are guilty of contempt of court for violation of the order dated 12.11.2014 in CS(OS) No.442/2013 shall not be treated as conclusive.
11. The direction in the order under appeal for personal appearance of the appellants in LPA No.889/2015 (respondent Nos. 3 to 5 in CCP 71/2015) is set aside and the bailable warrants issued against them to ensure their presence on 15.12.2015 are hereby recalled. However, they shall subject themselves to the contempt proceedings and shall appear on 15.12.2015 through their respective counsels. We place on record the undertaking of the learned counsels appeared before us for the appellants in LPA No.889/2015 that the appellants would be represented by their counsels on 15.12.2015 before the learned Single Judge.
12. The appellants herein are permitted to put in their response in CCP No.71/2015 on 15.12.2015 and thereupon the contempt petition as well as all the pending applications therein, even if listed for some other date, will be heard and decided by the learned Single Judge in accordance with law without being influenced by any of the findings/observations in the order dated 02.12.2015.
13. Both the appeals are accordingly disposed of."
12. The law is well settled that every wrong statement in a judicial proceeding does not result in prosecution for perjury. In lieu of the language used in Section 340 Cr.P.C., filing of complaint under Section 195 of Cr.P.C. is necessary only where the Court is of the opinion that it is expedient in the interest of justice and where an offence under Section 195(1)(b) appears to have been committed. As held in Iqbal Singh Marwah and Anr. v. Meenakshi Marwah and Anr., AIR 2005 SC 2119, the expediency will normally be judged by the Court by weighing not the magnitude of injury suffered by the person affected by such wrong statement but having regard to the affect or impact such commission of offence has upon administration of justice. The same principle has been reiterated in a recent decision of the Supreme Court in Ashok Kumar Aggarwal v. Union of India and Ors., AIR 2014 SC 1020.
13. In the present case, it is no doubt true that an incorrect statement was made by the non-applicants in the Synopsis and Memo of Appeals. However, in the facts and circumstances of the present case, we are of the view that the said statements are immaterial since the order of this Court in LPAs No.888/2015 and 889/2015 was not in any manner based upon the said incorrect statements. This Court had only taken note of the fact that the appellants did not file their response to the Contempt Petition and that they were not heard by the learned Single Judge before passing the order dated 02.12.2015 holding that they were guilty of contempt. As is evident from the order in LPA Nos.888 and 889/2015, the said fact was conceded by the respondents. Thus, the fact remains that the incorrect statements made by the appellants had no affect or impact upon the administration of justice.
14. For the aforesaid reasons, we are of the view that the non-applicants cannot be said to have made the wrong statements in the appeals deliberately and it is not as if a conscious effort has been made to misguide the Court and interfere in the administration of justice. As held by the Courts, the prosecution for perjury is required only where perjury appears to be deliberate and conscious. Therefore, in our considered opinion, the ingredients of Section 340 of Cr.P.C. have not been made out in the present case. Hence, initiation of proceedings under Section 340 read with Section 195(1)(b) of Cr.P.C. is not warranted.
15. Accordingly, both these applications are dismissed.
