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2003(3) Supreme 626
SUPREME COURT OF INDIA
(From Mumbai High Court)
S.N. Variava and H.K. Sema, JJ.
Hindustan Construction Co. Ltd. & Anr. -Appellants
versus
Gopal Krishna Sengupta & Ors. -Respondents
Criminal Appeal Nos. 640-642 of 2001
Decided on 9-4-2003
Counsel for the Parties :
For the Appellants : Kapil Sibal, Ranjeet Kumar, Sr. Advocates, Mrs. Rakhi Ray, Ms. Bina Gupta, R.K. Sharma, Advocates.
For the Respondent No. 1 : In-person.
For the Respondent No. 2 : Ravinder Adsure, Advocate for V.N. Raghupathy, Advocate.
Held : In this Order it has been observed that during the hearing of the Revision Application no objection had been raised as to maintainability on the ground of limitation. The Court holds that Section 362 of the Criminal Procedure Code did not permit the Court to alter or review its earlier order which was a final order. In our view this finding is absolutely correct. It must be mentioned that the Court was convinced that 1st Respondent had played a fraud upon it and therefore issued a show-cause-notice to him to show cause why action should not be taken against him for having played such a fraud. At the time when Criminal Application No. 3643 of 2000 was being heard it came to light that the 1st Respondent had also filed an application for condonation of delay in filing the Criminal Revision Application No. 235 of 2000. No orders had been passed on that application. Yet Criminal Revision Application No. 235 of 2000 had been numbered, listed on board and disposed off by the Order dated 19th October, 2000. As this application for condonation of delay was still pending the High Court by an Order dated 22nd December, 2000 correctly held that that application had become infructuous. This is the third Order which has been impugned in these Appeals. (Paras 19 & 20)
We find no infirmity in the Order dated 13th/22nd December, 2000 to the extent that it holds that Section 362 of the Code of Criminal Procedure was a bar to the Court reviewing or altering its earlier order dated 19th October, 2000 which was a final order. Undoubtedly, the Court has concluded that the 1st Respondent had played a fraud upon it by not disclosing that he was aware of the Order dated 12th August, 1997 and for giving an impression that he only came to know about this order at a later date. The High Court has issued a show-cause-notice against the 1st Respondent which will be considered by the High Court on its own merit. We express no opinion on this aspect. It is also clear that the Appellants did not point out to the High Court, before or during hearing of Criminal Revision Application No. 235 of 2000, the various subsequent orders passed. These were all within their knowledge at time Order dated 19th October, 2000 was passed. We thus see no infirmity in the Order dated 13th/22nd December, 2000 in Criminal Application No. 3643 of 2000. We also see no infirmity in the Order dated 22nd December, 2000 in Criminal Application No. 2645 of 2000 as by the time this application was brought to the notice of the Court it had become infructuous. Thus the Appeal against these two Orders stands dismissed. (Para 24)
By these Orders it has been clarified by the High Court that the case has reached conclusion and liberty has been granted to 1st Respondent to raise all the points in a proceeding the 1st Respondent may have to adopt if the Criminal case is dismissed against him. The Appellants are within their right to oppose the directions issued in the Order dated 19th October, 2000. However in the long run this may prove disadvantageous to the Appellants. It is possible that if the case is decided against the 1st Respondent and the higher Court feels that application to lead necessary evidence has been wrongly rejected, the whole case may have to be sent back for leading this evidence. We therefore asked the Appellants whether they wanted to still oppose the directions issued. We were told that they did. We therefore allow the Appeal against the Order dated 19th October, 2000 and set aside the directions issued therein. (Para 25)
JUDGMENT
S.N. Variava, J.-These Appeals are against Orders of the Bombay High Court dated 19th October, 2000 in Criminal Revision Application No. 235 of 2000; 13th/22nd December, 2000 in Criminal Application No. 3643 of 2000 in Criminal Revision Application No. 235 of 2000 and 22nd December, 2000 in Criminal Application No. 2645 of 2000 in Criminal Revision Application No. 235 of 2000.
2. Briefly stated the facts are as follows:
The 1st Respondent was an employee of the Appellant Company. His service were terminated. The 1st Respondents challenge to his termination has been dismissed both by the Industrial Tribunal and the High Court.
3. On 5th September, 1988 the 1st Respondent purchased 50 shares of the Appellant Company from one Mr. Ambalal Shah. On 1st November, 1988 the 1st Respondent lodged the share certificate along with the share transfer form with the transfer agents of the Appellant. They were returned to the 1st Respondent on the ground that the signature of the transferor differed. On 4th August, 1989 the 1st Respondent again lodged a fresh share transfer form, duly signed by Mr. Ambalal Shah, and share certificate with the transfer agents of the Appellant. The Appellants claim that as per their internal procedure one employee wrote down the name of the 1st Respondent and his son on the share certificate for purposes of putting them up before the Board of Directors. The Appellants claim that they thereafter realized that the transfer form was not sufficiently stamped, so the endorsement on the share certificate was cancelled without effecting a transfer of the share certificate. The transfer form and the share certificate were again returned to the 1st Respondent. On 19th September, 1989 the 1st Respondent again lodged the share transfer form and the share certificate with the transfer agents of the Appellants. These were again returned on 10th November, 1989 on the ground that some entries had been made in pencil instead of ink.
4. It is the 1st Respondent s case that on this occasion, all that was received by him was the registered cover and a covering letter. It is the 1st Respondent s case that the share certificate and the transfer form were not returned to him. He immediately wrote to the Appellant pointing this out.
5. On 12th September, 1990 the 1st Respondent lodged a Petition, under Section 111 of the Companies Act, before the Company Law Board praying for rectification of the share register on the ground that the transfer in his name had been approved by the Board of Directors of the Appellant and that the share should be registered in his name.
6. Whilst the above-mentioned complaint was pending before the Company Law Board, in August 1991, the Appellants transferred this share certificate into the name of one Pritika Prabhudesai. The Appellants claim that they received the share certificate along with a duly signed transfer deed. The Appellants claim that they addressed a letter to Mr. Ambalal Shah calling upon him to disclose whether he had any objection to such transfer. They claim that they transferred the share into the name of Pritika Prabhudesai as they did not receive any objection from Mr. Ambalal Shah. Admittedly the Appellants knew, by August 1991, that 1st Respondent had claimed that the shares were not returned to him. The Appellants knew that 1st Respondent had lodged a Petition under Section 111 of the companies Act for transfer of the share to his name. The Appellants knew that this Petition was pending. They well knew that there was a dispute in regard to this share certificate. Yet they did not address any letter or intimation to the 1st Respondent informing him that some other person had lodged this share for transfer to their name. When asked why no intimation was given to the 1st Respondent, the answer given was that there was no requirement in law to do so. To be remembered that there was no requirement in law to send any notice to Mr. Ambalal Shah. Such notice was sent as Appellan
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