NON-REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL  NO(S). 2133/2009

M.D. JAIN APPELLANT(S)                                 VERSUS BHAGYAVATHI & ORS. RESPONDENT(S)

J U D G M E N T KURIAN, J.

1. The appellant is before this Court aggrieved by the denial  of  discharge  in  a  pending  contempt  proceedings. The  Respondent  No.1,  who  is  the  former  wife  of  the appellant,  made  a  complaint  that  the  appellant  in collusion  with  the  Court  staff  had  tampered  with  the documents.   On  that  basis,  it  appears,  there  was  also inquiry by the C.B.I. as ordered by the High Court.  In the Court monitored investigation, the C.B.I. has filed final  report  dated  13.04.2005  in  which  the  C.B.I.  has reported as follows:-

“To  conclude,  there  is  no  evidence  even circumstantial  against  A1,  A2  and  A3  as alleged in the matter of removal of Ex.P1, 12 and 13 and in the matter of removal, tampering and substitution of Ex.P.43.  It is  found  that  Sh.  Venkatachalam  (A3) custodian of case files did not take proper

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care  in  the  safety  and  security  of  case files which facilitated in the removal of the documents.  It is also found that the complaints raised by Smt. Bhagyawathi Jain and Advocate Sunderasha were found to be false  in  the  matter  of  the  identity  of Ex.P.43, P.12 and P.13 and that presumably they made this allegation purposefully as these alleged documents are incriminative in nature against Sh. M.D. Jain (A1) and as such  a  suspicion  could  be  effectively created, that he (M.D. Jain) is the person who could have removed these documents from the case file.  Therefore, it is found that they have knowingly and purposefully made false  complaint  in  the  Family  Court  and also  before  the  Hon'ble  High  Court. However, the evidence available may not be sufficient to establish beyond reasonable doubts that the tampering and removal of document  in  question  were  done  by  Smt. Bhagya Jain and her advocate or at their instance.   Similarly,  the  circumstantial evidence available is also not sufficient to  prove  the  offence  of  making  false complaint against Smt. Bhagya Jain or her advocate.

On completing the investiation of the case  a  report  was  submitted  before  the Hon'ble  High  Court  of  Karnataka  on 27.6.2003 to which the Hon'ble High Court of Karnataka passed an order dated 9.3.2005 in  Crl.CC  No.18/2002  (copy  enclosed) directing the office of the Registrar of Hon'ble High Court of Karnataka to return

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the report filed by the CBI, to the CBI counsel  and  directed  the  CBI  to  take necessary steps in accordance with law.  In compliance to the said Hon'ble High Court of Karnataka order and as the investigation did  not  disclose  any  cognizable  offence made out against the accused or any other person/persons, this Final Report is filed before this Hon'ble Court.

It  is  therefore  prayed  that  this Hon'ble Court may be pleased to accept this final report as there is no offence appears to  have  been  committed  by  the  accused persons or any other persons, and thus pass appropriate orders.

Pertaining to the lapses on the part of the  following  court  staffs,  Departmental Action has already been initiated against (1) Shri Venkatachalam, Pending Clerk for his  failure  in  keeping  the  case  files properly and safely, which facilitated the removal  of  Ex.P.1,  12  and  13  and  the removal of Ex.P.43 from the case files, (2) Shri  Lokesh,  Bench  Clerk  (A2)  for  the failure on his part in the preparation of list  of  exbibits  properly  and  (3)  Shri Shivananda, SDA for taking/keeping the case files  of  the  family  court  in  his  house without the permission of Judge and without proper accounting.”

2. Based on this Report the appellant sought discharge. There were other contentions as well.   3. Be that as it may, in the impugned order, the High

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Court was of the view that C.B.I. inquiry was directed only against the Court staff, as stated in paragraph 6, which reads as follows:-

“On the other hand, the CBI enquiry was directed  as  to  the  conduct  of  the  Court staff in helping the accused to the alleged disappearance of the Court records.  Though both are criminal in nature one is a penal offence, the other is committing contempt of  Court  and  hence  both  are distinguishable.  Any way, the filing of the “B” report can be used by the accused at the time of final hearing of the case after  the  evidence  is  completed  and arguments are addressed.  As such, it is not necessary to close the case only on the ground of CBI filing “B” report.

4. This appears to be a mistake of fact.  As can be seen from  the  Report,  which  we  have  extracted  above,  the appellant herein was accused No.1 in the case investigated by the C.B.I.  In the Report, the C.B.I. has specifically concluded  that  there  was  no  material  or  even  any circumstantial  evidence  to  show  that  the  appellant  was involved in the alleged missing or tampering of documents. 5. In that view of the matter, the impugned order is set aside and the appeal is allowed.  We request the High Court to consider the matter afresh having regard to the Report filed by the C.B.I. exonerating the appellant.

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6. Pending application(s), if any, shall stand disposed of.

.......................J.               [KURIAN JOSEPH]  

.......................J.               [R. BANUMATHI]  

NEW DELHI; JULY 26, 2017.

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ITEM NO.102               COURT NO.6               SECTION II-C                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Criminal Appeal  No(s).  2133/2009 M.D. JAIN                                          Appellant(s)                                 VERSUS BHAGYAVATHI & ORS                                  Respondent(s)

Date : 26-07-2017 This appeal was called on for hearing today.

CORAM :           HON'BLE MR. JUSTICE KURIAN JOSEPH          HON'BLE MRS. JUSTICE R. BANUMATHI

For Appellant(s) Mr. Rohan Thawani,Adv. Mr. Joseph Pookkatt,Adv. Mr. Prashant Kumar,Adv. Mr. Dhawesh Pahuja,Adv.

                   For M/s. AP & J Chambers                     For Respondent(s) Mr. V. N. Raghupathy, AOR

Mr. Parikshit P. Angadi,Adv.                   Mr. R.P. Wadhwani, AOR                   Mr. Tapesh Kumar Singh, AOR

Mr. Aditya Pratap Singh,Adv.                                UPON hearing the counsel the Court made the following                              O R D E R

The appeal is allowed in terms of the signed judgment.

(NARENDRA PRASAD)                               (RENU DIWAN) COURT MASTER (SH)                               ASST. REGISTRAR

(Signed “Non-Reportable” Judgment is placed on the file)

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