Karnataka High Court
Hasham Investment And Trading ... vs India Awake For Transparency Pvt ... on 14 January, 2022
Bench: B.Veerappa, K S Hemalekha
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JANUARY, 2022
PRESENT
THE HON'BLE Mr. JUSTICE B. VEERAPPA
AND
THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA
CRL.CCC No.9/2021
BETWEEN:
1. HASHAM INVESTMENT AND TRADING
COMPANY PRIVATE LIMITED,
NO.134, NEXT TO WIPRO CORPORATE OFFICE
DODDAKANNELLI, SARJAPUR ROAD,
BENGALURU - 560 035,
REPRESENTED HEREIN
BY ITS DIRECTOR,
MR. PAGALTHIVARTHI SRINIVASAN.
2. WIPRO LIMITED
76P AND 80P, DODDAKANNELLI,
SARJAPUR ROAD, BENGALURU - 560 035.
REPRSENTED HEREIN BY ITS VICE PRESIDENT
CORPORATE TAX,
MR. BALASUBRAMANIAN K.,
3. MR. AZIM HASHAM PREMJI,
FOUNDER CHAIRMAN,
WIPRO GROUP,
S/O SHRI MOHD. HASHAM PREMJI,
AGED ABOUT 74 YEARS
NO.574, DODDAKANNELLI,
2
SARJAPUR ROAD,
BENGALURU - 560 035.
...COMPLAINANTS
(BY SRI GANESH S., SENIOR COUNSEL FOR
SRI SANDEEP HUILGOL, ADVOCATE FOR COMPLAINANT No.1;
SRI C.V. NAGESH, SENIOR COUNSEL FOR
SRI SANDEEP HUILGOL, ADV., FOR COMPLAINANT Nos.2 & 3)
AND:
1. INDIA AWAKE FOR TRANSPARENCY PVT. LTD.,
(FORMERLY INDIA AWAKE FOR TRANSPARENCY)
SHRISTHI CRESCENDO, 24, DESIKA ROAD,
MYLAPORE, CHENNAI - 600 004.
REPRESENTED BY HEREIN
ITS VOLUNTEER AND
AUTHORISED REPRESENTATIVE,
MR. P. SADANAND.
2. MR. R SUBRAMANIAN,
S/O G. S. RAMASWAMI,
AGED ABOUT 54 YEARS,
ADVOCATE AND AUTHORISED
REPRESENTATIVE OF INDIA AWAKE
FOR TRANSPARENCY PVT. LTD.,
SHRISTHI CRESCENDO,
24, DESIKA ROAD,
MYLAPORE, CHENNAI - 600 004.
ALSO AT
NO.2/583, SINGARAVELAN ROAD,
CHINNA NEELANGARAI,
CHENNAI - 600 115.
AND AT
PLOT NO. 179, H.NO. 12-11-1595/12,
LALITHA NAGAR COLONY,
HYDERABAD - 500 044.
3
3. MR. P. SADANAND,
S/O PANJALA BIKSHAPATHI,
AGED ABOUT 44 YEARS,
VOLUNTEER AND AUTHORISED
REPRESENTATIVE OF INDIA AWAKE
FOR TRANSPARENCY PVT. LTD.,
SHRISTHI CRESCENDO, 24, DESIKA ROAD,
MYLAPORE, CHENNAI - 600 004.
ALSO AT:
NO.4-12, MARUTHI NAGAR,
MALKAJGIRI,
HYDERABAD - 500 060.
...ACCUSED
(BY SRI SHAKEER ABBAS M., ADVOCATE FOR ACCUSED No.1;
SRI R. SUBRAMANIAN, PARTY - IN -PERSON/ ACCUSED No.2;
SRI D.R. RAVISHANKAR, SENIOR COUNSEL A/W
SRI SHAKEER ABBAS M., ADVOCATE FOR ACCUSED No.3;
****
THIS CRL. CCC IS FILED UNDER ARTICLE 215 OF THE
CONSTITUTION OF INDIA, 1950 READ WITH SECTION 15 OF THE
CONTEMPT OF COURTS ACT, 1971, BY THE COMPLAINANTS
PRAYING TO -
A. TAKE COGNIZANCE OF THE OFFENCE OF CRIMINAL
CONTEMPT COMMITTED BY THE ACCUSED PERSONS
UNDER THE PROVISIONS OF THE CONTEMPT OF
COURTS ACT, 1971.
B. PASS ORDERS IMPOSING APPROPRIATE
PUNISHMENT AGAINST THE ACCUSED PERSONS UNDER
THE PROVISIONS OF THE CONTEMPT OF COURTS ACT,
4
1971, FOR COMMITTING THE ACTS OF CRIMINAL
CONTEMPT.
C. RESTRAIN AND INJUNCT THE ACCUSED AND THE
OTHER GROUP COMPANIES OF THE FIRST ACCUSED
(INCLUDING BUT NOT LIMITED TO THOSE LISTED IN
THE ORDER DATED 18.09.2015 PASSED BY THE
HON'BLE MADRAS HIGH COURT IN CRL.OP.NO.21449
OF 2015 AT ANNEXURE-AS) FROM INITIATING OR
PROCEEDING WITH ANY LEGAL PROCEEDINGS
AGAINST THE COMPLAINANTS AND THE
COMPLAINANTS' GROUP BEFORE ANY COURT,
TRIBUNAL, AUTHORITY, OR FORUM.
THIS CRL. CCC HAVING BEEN HEARD AND RESERVED FOR
ORDERS, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS
DAY, B.VEERAPPA J., PASSED THE FOLLOWING:
ORDER
I - FACTS OF THE CASE
The present Criminal Contempt Petition is filed by the
complainants under the provisions of Article 215 of the Constitution
of India r/w Section 15 of the Contempt of Courts Act, 1971,
seeking the following reliefs:
i) Take cognizance of the offence of criminal
contempt committed by the accused persons
under the provisions of the Contempt of Courts
Act, 1971;
ii) Pass orders imposing appropriate punishment
against the accused persons under the provisions
of the Contempt of Courts Act, 1971, for
committing the acts of criminal contempt;
iii) Restrain and injunct the accused and other group
companies of the 1st accused from initiating or
proceeding with any legal proceedings against the
complainants and the complainants' group before
any Court, Tribunal, authority, or forum.
2. The co-ordinate Bench of this Court, in the present
Criminal Contempt Petition, while passing the order dated
06.07.2021 observed that the learned single Judge while disposing
off W.P.No.172/2021 filed by the first accused, by the Order dated
12.02.2021, at paragraph 27 recorded the finding as under:
"Thus, there remains no doubt that petitioner is
indulging in forum shopping on the very same cause of
action as held in Udyami Evam Khadi Gramodyog
Welfare Sanstha and another vs. State of Uttar
Pradesh and others reported in (2008)1 SCC 560,
this amounts to criminal contempt as the core issue in
all these writ petitions is one and the same."
It was further observed that, challenging the said Order dated
12.02.2021 passed in W.P.No.172/2021, the first accused preferred
Writ Appeal No.307/2021 and the Division Bench, by the judgment
dated 25.03.2021, at paragraph 18, observed as under:
"In the light of the aforesaid judgments, this Court is
of the considered opinion that the writ petition is
nothing but sheer abuse of process of law. The
appellant has been unsuccessful on almost about
nine occasions by filing the frivolous proceedings.
Therefore, the learned single Judge was justified in
imposing the exemplary costs while dismissing the
writ petition. The learned single Judge has also
observed that petitioner is indulging in forum
shopping on the very same cause of action and this
amounts to criminal contempt as the core issue in all
these writ petitions is one and the same."
(underline supplied)
3. Though accused Nos.2 and 3 contended that,
challenging the aforesaid order they preferred Special Leave
Petition before the Hon'ble Supreme Court, to substantiate the said
fact, no material has been produced by them before this Court.
4. This Court, considering all the contentions urged by
learned counsel for both the parties, passed a detailed Order dated
23.12.2021 holding that the complainants have made out a case to
frame Charges against accused Nos.2 and 3 and accused have not
made out any case to drop the proceedings and discharge them in
the facts of the circumstances of the present case. Accordingly,
this Court opined that it is a fit case to frame Charge against
accused No.2(R.Subramanian/party-in-person) and accused No.3
who is also representing accused No.1- 'India Awake for
Transparency'. The said Order has reached finality.
5. This Court by the Order dated 23.12.2021 framed the
Charge against accused No.2 (R.Subramanian/ party-in-person),
and accused No.3 (P.Sadananda), which reads as under:
CHARGE
We, Justice B. Veerappa and Justice K.S.
Hemalekha, Judges of the High Court of Karnataka,
Bengaluru, do hereby charge you, accused No.2/Party-
in-Person named below:-
Mr. R. Subramanian,
Son of G.S. Ramaswami,
Aged about 54 years,
Advocate and Authorised
Representative of
India Awake for Transparency
Private Limited,
Shristhi Crescendo, 24,
Desika Road, Mylapore,
Chennai-600 004.
Also at
No.2/583, singaravelan road,
Chinna Neelangarai,
Chennai - 600 115.
and at
Plot no. 179, H.No. 12-11-1595/12
Lalitha Nagar Colony,
Hyderabad - 500 044.
as follows:-
That you being an authorised signatory and an
advocate of a non-existing company-accused No.1 -
'India Awake for Transparency Pvt. Ltd.,' (Formerly
'India Awake for Transparency') has a played dual
role between 23.4.2016 and 7.12.2020 and have
filed repeated number of frivolous writ petitions, writ
appeals, criminal petitions, original side appeals
against the complainants and others. This act of you
playing a dual role and suppressing facts amounts to
abuse of process of law.
You, inspite of dismissal of all writ petitions on
the same cause of action and despite of warning and
prohibition by the orders of the Court, filed several
cases and continued the proceedings and your
conduct is nothing but a daring ride on the Court and
you have made a mockery of the judicial process by
filing one or the other frivolous legal proceedings,
not only affecting the interest of public at large, but
also interfering with the administration of justice by
misusing the forum of various Courts, wasting
judicial time and abusing the process of law. Thereby
amounting to criminal contempt within the meaning
of the provisions of Section 2(c) of the Contempt of
Courts Act, 1971 punishable under Section 12 of the
said Act, within the cognizance of this Court.
Dated this the 23rd day of December, 2021.
Sd/- Sd/-
Judge Judge
The plea of accused No.2 to the Charge is as under:
PLEA
Question: Have you heard the charge now
read over and explained to you?
Answer : Yes
Question: Do you plead guilty or have you
any defence to make?
Answer : Not pleaded guilty.
We, Justice B. Veerappa and Justice K.S.
Hemalekha, hereby certify that the above charge was
read over and explained to accused No.2 in the
language known to him in our presence and hearing and
that the above answer is the true and correct recording
of the answer given by the accused on this day the 23 rd
December, 2021.
Sd/- Sd/-
Judge Judge
CHARGE
We, Justice B. Veerappa and Justice K.S.
Hemalekha, Judges of the High Court of Karnataka,
Bengaluru do hereby charge you, accused No.3 named
below:
MR. P. SADANAND,
S/O PANJALA BIKSHAPATHI
AGED ABOUT 44 YEARS,
VOLUNTEER AND AUTHORISED
REPRESENTATIVE OF INDIA AWAKE
FOR TRANSPARENCY PVT. LTD.,
SHRISTHI CRESCENDO, 24, DESIKA ROAD
MYLAPORE, CHENNAI - 600 004.
ALSO AT:
NO.4-12, MARUTHI NAGAR,
MALKAJGIRI
HYDERABAD - 500 060
as follows:-
That you, the Accused No.3 in the name of
non-existing company -accused No.1 - 'India Awake
for Transparency Pvt. Ltd.,' (Formerly 'India Awake
for Transparency') have filed repeated number of
frivolous writ petitions, writ appeals, criminal
petitions, original side appeals against the
complainants and others. This act of you amounts to
abuse of process of law having wasted precious
public and judicial time.
You, inspite of dismissal of all writ petitions on
the same cause of action and despite warning and
prohibition, by the orders of the Court, filed several
cases and continued the proceedings and your
conduct is nothing but a daring ride on the Court and
you have made a mockery of judicial process by
filing one or the other frivolous legal proceedings not
only affecting the interest of public at large, but also
interfering with the administration of justice, by
misusing the forum of various Courts, wasting
judicial time, thereby amounting to criminal
contempt within the meaning of the provisions of
Section 2(c) of the Contempt of Courts Act, 1971
punishable under Section 12 of the said Act, within
the cognizance of this Court.
Dated this the 23rd day of December, 2021.
Sd/- Sd/-
Judge Judge
The plea of accused No.3 to the Charge is as under:
PLEA
Question: You have heard the charge now
read over and explained to you?
Answer : Yes
Question: Do you plead guilty or have you
any defence to make?
Answer : Not pleaded guilty.
We, Justice B. Veerappa and Justice K.S.
Hemalekha, hereby certify that the above charge
was read over and explained to the accused No.3 in
the language known to him in our presence and
hearing and that the above answer is the true and
correct recording of the answer given by the accused
on this day the 23rd December, 2021.
Sd/- Sd/-
Judge Judge
6. At this juncture, it is pertinent to note the provisions of
Rule 10(vi) of The High Court of Karnataka (Contempt of Court
Proceedings) Rules, 1981, which reads as under:
10. Hearing of Cases and Trial:
(i) xxx xxx xxx
xxx xxx xxx xxx
(vi) If the accused pleads not guilty, the case
may be taken up for trial on the same day or
posted to any subsequent date as directed by
the Court.
The above provision makes it clear that, if the accused pleads
not guilty, the case may be taken up for trial on the same day or
may be posted to any subsequent date as directed by the Court.
7. However, the Hon'ble Supreme Court, in respect of the
very same parties i.e., in the case of Azim Hasham Premji and
another vs. India Awake For Transparency and others in Criminal
Appeal Nos.1177-1170/2021, by the Order dated 02.12.2021, laid
down six norms to deal with the present proceedings, which reads
as under:
1) No further applications will be entertained as
interlocutory applications by the Karnataka High
Court in the contempt proceedings.
2) If there are still some IAs lying under objections,
it will be the responsibility of the respondent to
get them cleared and listed on the next date
failing which they will stand as dismissed for non-
prosecution.
3) In our view, there is no question of agitating the
issue of hearing before consent being granted by
the Advocate General for initiation of contempt
proceedings and this is clearly an obfuscation of
the issue seeking to rely on practices of different
Courts.
4) Both the parties will be granted half an hour each
to make their oral submissions in the matter at
hand and can file a short synopsis running into
not more than three pages each. It is time the
Courts put a time limit to oral submissions.
5) In the present factual scenario which is based on
orders passed by Courts from time to time, there
is no question of claiming trial in the proceedings.
6) The contempt proceedings would stand concluded
in the aforesaid terms and it is for the Karnataka
High Court to then take a call on the merits of the
matter on which we are not commenting.
8. Thus, as per norm No.(5) stated supra, the Hon'ble
Supreme Court waived the compliance of the provisions of Rule
10(vi) of the High Court of Karnataka (Contempt of Court
Proceedings) Rules, 1981, therefore, question of conducting the
trial in the present proceedings does not arise. It is pertinent to
note that the Order passed by the Hon'ble Supreme Court is binding
on this court as well as the parties, in view of Article 141 of the
Constitution of India. Hence, posted the matter for hearing on
main matter.
9. We have heard the learned Senior counsel for
complainants, learned Senior counsel for accused No.3 and,
accused No.2/party-in-person, at length.
III - ARGUMENTS ADVANCED BY LEARNED SENIOR
COUNSEL FOR THE COMPLIANANTS
10. Sri Ganesh.S, learned Senior Counsel for complainant
No.1 and Sri C.V.Nagesh, learned Senior Counsel for complainant
Nos.2 and 3, both appearing on behalf of Sri Sandeep Huilgol,
learned counsel for the complainant Nos.1 to 3 filed common
synopsis as per Annexure-1 in respect of accused No.2
(R.Subramanian/party-in-person) and Annexure-2 in respect of
accused No.3 (P.Sadanand), Annexure-3 Order dated 04.01.2022
made in W.P.No.10235/2019 and connected petitions passed by the
learned single Judge of the High Court of Judicature, Madras, and
Annexure-4 the Order dated 31.12.2021 passed by XXI Additional
Chief Metropolitan Magistrate, Bengaluru, in C.C.No.25456/2009.
11. Sri C.V.Nagesh, learned Senior Counsel for complainant
Nos.2 and 3 pointed out that, W.P.No.10235/2019 and connected
petitions were preferred before the High Court of Judicature at
Madras, by 'India Awake for Transparency', assailing the Order
dated 17.08.2018 passed by the Regional Director (Southern
Region), Ministry of Corporate Affairs, Government of India-
respondent No.2 therein, by which, the license issued to the
petitioner-accused No.1 Company was revoked/ cancelled by virtue
of powers under Section 8(6) of the Companies Act, 2013. The
learned single Judge, by the Order dated 04.01.2022 dismissed the
said writ petitions, holding that, a perusal of the Order passed by
the respondent No.2 therein reveals that the shell companies that
were forming part of the cartel were dealt with in detail in the
anticipatory bail petition filed by one of the Directors of the concern
and taking note of the shell companies, the Court had detailed the
said companies which were functioning and the holding pattern in
the said companies, while dealing with Crl.O.P.No.21449/2015.
Thereafter, series of litigations were filed by the petitioner before
the Karnataka High Court against respondent No.3-M/s Hasham
Investment and Trading Company Pvt. Ltd., claiming defalcation of
accounts and after detailed hearing, the learned single Judge of the
Karnataka High Court dismissed the said writ petition in
W.P.No.172/2021 by imposing cost, holding that the petition at the
instance of the petitioner is a sheer abuse of process of law. It was
further observed that the petitioner also filed O.S.A.No.1/2021
before the Division Bench of the Karnataka High Court assailing the
correctness of the Order passed in Company Application
No.185/2016 and the Division Bench, while dismissing the said
appeal, observed that the petitioner is indulging in speculative
litigation not only by filing this appeal, but repeatedly over the
years has been filing litigation before one Court or the other for the
same cause of action. Further, the Division Bench also refrained
the petitioner from proceeding with filing any proceeding with
regard to the amalgamation of three companies before any Court or
authority or forum in view of the loss of precious court time under
the guise of public interest, which is nothing but an instance of
gross abuse of process of law. The Special Leave Petition in SLP
(Crl.) Diary No.12031/2020 filed against the said order stood
withdrawn by the petitioner. The learned single Judge of the High
Court of Judicature at Madras further observed that, action for
criminal contempt has been initiated, suo motu, against the
petitioner therein by the Karnataka High Court, which is yet to see
the light of the day and stepping into stopping the adjournment
spree, the Hon'ble Supreme Court in Criminal Appeal Nos.1177-
1179/2021 (Azim Hasham Premji and another vs. India Awake for
Transparency and others-dated 02.12.2021) has deprecated the act
of the petitioner in trying to obfuscate the proceedings before the
Karnataka High Court by seeking adjournment one way or the other
and had framed a time schedule within which the proceedings are
to complete. It was further observed that the above facts are
narrated to highlight the fact about the modus of the petitioner in
initiating litigative process, which are sheer abuse of process of law.
12. Learned Senior Counsel further pointed out that, the
learned single Judge of the High Court of Judicature at Madras
further observed that, a careful perusal of the Order dated
17.08.2018 reveals that the Regional Director (Southern Region),
Ministry of Corporate Affairs, has taken into consideration all the
materials including information collected by the SFIO, the
Enforcement Directorate, Banks, Income Tax Department, Statutory
Auditors, CBI, Commissioner of Service Tax, Regional Provident
Fund Commissioner and having analysed the said documents, has
come to an irrefutable conclusion that the motive behind the
formation of the respondent was not fulfilled even after six years of
incorporation and its objects are not achieved till date. Accordingly,
the learned single Judge dismissed the writ petitions holding that
the Order dated 17.08.2018 passed by the 2nd respondent therein
by virtue of powers provided under Section 8(6) of the Companies
Act, 2013, in no manner, suffers from the vice of any illegality and
the same deserves to be sustained.
13. Learned Senior Counsel further contended that the
complainant No.1 herein i.e., Hasham Investment and Trading
Company Private Limited had filed C.C.No.25456/2009 under
Section 138 of the Negotiable Instruments Act, on the file of the
XXI Additional Chief Metropolitan Magistrate, Bengaluru City,
against Subhiksha Trading Services Limited and others in which
R.Subramanian, accused No.2 herein was also accused No.2 in the
said proceedings, and by the Order dated 31.12.2021, the learned
Magistrate, exercising the powers conferred under Section 255(2)
of the Code of Criminal Procedure, convicted accused Nos.1, 2 and
5 for the offence punishable under Section 138 of the Negotiable
Instruments Act and sentenced them to undergo simple
imprisonment for a period of two years and to pay a fine of
Rs.62,63,59,893/- (Rupees sixty two crores sixty three lakhs fifty
nine thousand eight hundred and ninety three only). It was further
directed that out the said fine amount, complainant is entitled to a
sum of Rs.62,63,49,893/- (Rupees sixty two crores sixty three
lakhs forty nine thousand eight hundred and ninety three only) as
compensation under Section 357 of the Code of Criminal Procedure
and balance sum of Rs.10,000/- was ordered to be paid to the
State as fine.
14. Learned Senior Counsel further contended that the
Regional Director (Southern Region), Ministry of Corporate Affairs,
Chennai, exercising powers under the provisions of Section 8(6) of
the Companies Act, 2013, passed the Order dated 17.08.2018,
wherein, at paragraph-25, it is ordered as under:
"I deem it appropriate to revoke/cancel the license
issued to the respondent Company vide licence
No.102249 dated 22nd June 2012 with immediate effect
and the Registrar of Companies, Tamil Nadu, Chennai, is
hereby directed to upload this order into the portal of
the respondent Company and direct the company to
convert itself into a Non-Section 8 Company within 30
days as well as obtain change of name from the
Registrar of Companies, Tamil Nadu, Chennai, to add the
words "Private Limited" to its name. It is further
directed that in case of default in compliance of the
above directions by the company, the Registrar of
Companies, Tamil Nadu, Chennai, is directed to effect
changes in the master data of the company by adding
the words "Private Limited" to its name and to treat the
company as a non-section 8 company i.e., a non-
Government Private Limited Company, without prejudice
to the liability of the Directors of the respondent
Company for penal action in terms of Section 8(11) of
the Companies Act, 2013".
15. The aforesaid Order dated 17.08.2018 passed by the
Regional Director (Southern Region), Ministry of Corporate Affairs,
Chennai, when challenged by the accused, the learned single Judge
of the High Court of Judicature at Madras by the Order dated
04.01.2022 passed in W.P.No.10235/2019 and connected petitions,
confirmed the said Order dated 17.08.2018.
16. Learned Senior Counsel further contended that, the
Company Master Data depicts the name of the Company as "India
Awake for Transparency Private Limited". In spite of the same,
Writ Petitions, Writ Appeals and Original Side Appeals were filed by
the accused persons showing the company name as "India Awake
for Transparency", though the company was not existing after
passing of the Order dated 17.08.2018 by the Regional Director
(Southern Region), Ministry of Corporate Affairs, Chennai. Thereby,
a non- existing Company/accused filed litigations on the basis of
the resolution passed at the meeting of Board of Directors of 'India
Awake for Transparency' on 01.06.2015, wherein, accused No.3-
P.Sadanand, among two others was authorized to act jointly or
severally to institute, commence, prosecute, file, present, carry on
or defend or resist and conduct any complaint including Criminal
Complaint, Arbitral proceeding, suit, legal or other proceedings of
any kind for recovery or realization of monies or assets to which the
Company is entitled to, Company Petitions of all kinds both in
respect of matters of the company itself and in respect of those of
counter party companies including but not limited to petitions for
winding up of debtor companies or in respect of mismanagement
and oppression by investee companies, all actions or other
proceedings as may be necessary for and on behalf of the company
and to defend all forms of legal proceedings and claims including
but not restricted to Criminal and Civil proceedings or such other
claims including proceedings whether at Company Courts, Company
Law Board or before any Courts of law, Tribunals, Police, Arbitral
forum, statutory authority or Agency and other law enforcement
agencies and to institute, initiate, continue, commence, resist,
defend and compromise as necessary in all manner of proceedings
before any governmental and statutory authorities and
corporations, etc.,
17. Learned Senior Counsel further contended that,
W.P.No.3635/2020 was filed on 07.02.2020 by 'India Awake for
Transparency' which Company was not in existence as on the date
of filing of the said writ petition, in view of the Order dated
17.08.2018 passed by the Regional Director (Southern Region),
Ministry of Corporate Affairs. At paragraph 50 of the Memorandum
of the said writ petition, it is stated by the petitioner-'India Awake
for Transparency', that, 'the other defence of the 11th respondent
(Mr.A.H.Premji) and his entities is as though the proceedings are
mala fide as the petitioner is only a device being used by
Mr.R.Subramanian who as Managing Director of Subhiksha Trading
Services Ltd., had dealings with the 12th respondent (M/s Hasham
Investment and Trading Company Private Limited). The petitioner
states that there is nothing done behind the back, as the said
Mr.R.Subramanian is a volunteer of the petitioner and is the very
person who has filed the affidavits at this Hon'ble Court in support
of the CA's for recall of merger and has appeared in the
proceedings in various other judicial forums relating to the matters
in this regard being prosecuted by the petitioner as Advocate of the
petitioner. The role of the said person is evidently not suppressed
nor in any manner sought to be hidden. Therefore, he would
contended that the accused No.2 not only authorized signatory, but
also acted as an advocate on dual role which is impermissible.
Thereby, this Court framed the Charge in a right prospective.
Therefore, the accused persons are liable to be punished for
Criminal Contempt. Learned Senior counsel, further, reiterated the
averments made in the synospis about the punishment to be
initiated against accused Nos.2 and 3.
18. While reiterating the submissions made in the form of
synopsis filed on 06.01.2022, learned Senior Counsel contended
that the Charges framed against accused No.2 are fully covered by
the specific and unequivocal findings of the judgments of this Court
in W.P.Nos.12073/2020, 12769/2020, 13838/2020 and 172/2021,
W.A.Nos.229/2021, 384/2021, 228/2021 and 307/2021 and
Company Application No.185/2016 and OSA No.1/2021, which have
been referred to and discussed in detail in the Order dated
23.12.2021. Thereby, accused Nos.2 and 3 are liable for criminal
contempt and thereby, charges framed against accused Nos.2 and
3 are proved.
19. Learned Senior Counsel for the complainants further
contended that, not less than 10(ten) distinct proceedings were
filed challenging the legality of the amalgamation of three Azim
Premji Group companies with another group company, even though
no outside shareholder or creditor was in any way affected. The
challenge was on an absolutely frivolous and absurd ground viz.,
that as the amalgamating companies were shareholders of each
other, therefore, all their properties belonged to the Central
Government because of "bona vacantia" under Article 296 of the
Constitution of India. The Central Government passed an order
dated 10.11.2017 and specifically held that the properties of the
amalgamating companies did not belong to the Central
Government. The Division Bench of this Court, in its judgment
dated 25.03.2021 passed in W.A.No.307/2021 specifically held that,
after the said Central Government Order dated 10.11.2017, it was
not possible to understand how the said amalgamation could
possibly be challenged on the ground of bona vacantia. Though the
said Central Government Order dated 10.11.2017 was served on
the contemnors' advocate, Private Criminal Complaints were filed
by the contemnors without disclosing and by suppressing the said
Central Government Order dated 10.11.2017 and again alleging
that the assets of the amalgamating companies were the properties
of the Central Government, because of bona vacantia and that the
said amalgamation therefore, constituted criminal breach of trust.
As the Central Government Order dated 10.11.2017 was
suppressed, the Criminal Court was misled into taking cognizance
and issuing summons to the complainants, setting the criminal law
in motion against respectable law abiding citizens, by suppressing
the facts and by filing completely frivolous complaints and petitions
which is the most egregiously reprehensible kind of criminal
contempt.
20. It is further contended that there are 42 (forty two)
distinct proceedings initiated by 'India Awake for Transparency'
against the complainants at the instance of accused No.2, after the
complainants initiated prosecution under Section 138 of the
Negotiable Instruments Act, against accused No.2 and the Company
of which he was the Managing Director i.e., Subhiksha Trading
Services Ltd., for dishonour of cheques. It is further contended
that, accused No.2-R.Subramanian is the Alter Ego of "India Awake
for Transparency" in whose name all the various legal proceedings
were filed. Licence granted to "India Awake for Transparency" to
drop the words "Private Limited" from its name was revoked by the
Regional Director (Southern Region), Ministry of Corporate Affairs,
Government of India by an Order dated 17.08.2018, which when
challenged by the accused in W.P.No.10235/2019, came to be
dismissed by the Order dated 04.01.2022. Filing repeated petitions
in the name of non-existing Company-"India Awake for
Transparency" without using the words "Private Limited" is nothing
but a brazen suppression of identity and impersonation done only
with a view to mislead the judiciary. Further, 'India Awake for
Transparency' had only four share holders i.e., (i)Analog Financial
Services Private Limited, (ii)Analog Stock Broking Services Private
Limited, (iii)Intel Registry Services Private Limited, and (iv) Lucky
View Home Finance Private Limited. The Madras High Court, by its
judgment dated 18.09.2015 passed in Crl.O.P.No.21449/2015, has
specifically found that, these four shareholder companies were
established and controlled by accused No.2-R.Subramanian.
Further, R.Subramanian was appointed as authorized
representative of "India Awake for Transparency" vide resolution
dated 01.07.2015 and it was continued until December 2020, when
the authorization was replaced in the Court records by a
vakalathnama in favour of R.Subramanian. Moreover, 3(three) out
of the said 4(four) shareholder companies of 'India Awake for
Transparency' have been struck off by the Registrar of Companies
as being dormant and inactive companies and for non-compliance
with the provisions of the Companies Act, 2013. The Directors of
'India Awake for Transparency'-Mr. Rajender Kumar and Mrs.
Adiseshan Srimathi are disqualified to act as Directors and their
appointment as Additional Directors was not regularized in the AGM
of 'India Awake for Transparency'.
21. It is further contended that, in every single legal
proceeding, R. Subramanian has appeared as an Advocate. 'India
Awake for Transparency' is a mere shell company as is clear from
its last available balance sheet, as it has no income and negligible
expenditure, and does not even possess a bank account. All these
indisputable facts on record make it abundantly clear that accused
No.2-R.Subramanian is the Alter Ego of 'India Awake for
Transparency', that 'India Awake for Transparency' is only a
corporate facade used by accused No.2 and that all the legal
proceedings filed in the name of 'India Awake for Transparency' are
at his behest and instance and are financed and controlled by him,
as he is the 'directing mind' of 'India Awake for Transparency'.
22. Learned Senior Counsel for the complainants further
contended that, accused No.3-P.Sadanand has verified the
pleadings in each of the 42 proceedings filed by 'India Awake for
Transparency' against various entities in the WIPRO/Premji group.
Accused No.3 is described as a mere 'volunteer' of 'India Awake for
Transparency' and not its Employee, Director or Principal Officer.
The term 'volunteer' is unknown to law and accused No.3 had no
authority in law to verify any pleading on behalf of 'India Awake for
Transparency', having regard to the provisions of Order XXIX Rule 1
of the Code of Civil Procedure read with Section 21 of the
Companies Act, 2013. The verification of a large number of
pleadings over a period of several years without any authority to do
so and thereby becoming a willing instrument in the hands of
accused No.2 to commit gross abuse of the legal system, by itself
constitutes criminal contempt committed by accused No.3.
Therefore, it is a clearly case of joint participation and co-operation,
if not conspiracy between accused Nos.2 and 3 to commit criminal
contempt of Court in order to wreak vengeance on WIPRO/Premji
Group, for filing of proceedings under Section 138 of the Negotiable
Instruments Act, against accused No.2. Accused No.3 has
continued to represent as volunteer and filed numerous petitions
and applications in the same name, style and capacity even after
this Court categorically holding that he is incapable of verifying any
pleadings as volunteer, in OSA No.1/2021. It is further contended
that there is another distinct and independent reason why the
verification of pleadings by accused No.3 in the said 42 proceedings
constitutes criminal contempt. The accused No.3 has stated on
oath before the Criminal Court that he does not know English or
Kannada and that he only knows Telugu. Consequently, it is not
possible for him to be acquainted with the pleadings, facts,
allegations and contentions raised in each legal proceeding which is
in English. Thereby, accused No.3 has interfered with and
obstructed the administration of justice and the said act is squarely
covered by the definition of 'criminal contempt' under Section 2(c)
of the Contempt of Courts Act, 1971. Therefore, sought to allow
the contempt proceedings and convict accused Nos.2 and 3 under
the provisions of Section 12 of the Contempt of Courts Act, 1971.
23. Sri Ganesh.S, learned Senior Counsel for complainant
No.1, reiterating the contentions urged by Sri C.V.Nagesh, learned
Senior Counsel for complainant Nos.2 and 3, contended that,
knowingfully well that the licence of the 'India Awake for
Transparency' was cancelled and was directed to be named as
'India Awake for Transparency Private Limited' by the Order dated
17.08.2018 of the Regional Director (Southern Region), Ministry of
Corporate Affairs, still, in the name of non existing Company,
accused Nos.2 and 3 filed several writ petitions, post 17.08.2018.
He would further contend that the Orders passed in the Writ
Petitions, Writ Appeals and Original Side Appeals, it has been
specifically held that the conduct of the accused Nos.2 and 3
amounts to misuse and abuse of process of law and they have filed
repeated petitions only to wreak personal vengeance against
complainants. He further contended that this Court, while framing
Charge, passed a detailed Order dated 23.12.2021 and has
considered all the aspects of the matter holding that the
complainants have made out a case to frame Charge and
accordingly, framed Charge against accused Nos.2 and 3 and the
same is in proper perspective and therefore, accused Nos.2 and 3
are liable to be punished for criminal contempt. Therefore, learned
Senior Counsel sought to allow the present Criminal Contempt
Petition and to punish accused Nos.2 and 3 in terms of the
provisions of Section 12 of the Contempt of Courts Act, 1971.
IV - ARGUMENTS ADVANCED BY LEARNED SENIOR
COUNSEL FOR ACCUSED No.3
24. Per contra, Sri D.R.Ravishankar, learned Senior Counsel
for Sri Shakeer Abbas, learned counsel for accused No.3 contended
that withdrawal of W.P.No.3635/2020 and filing of different writ
petitions on different cause of action does not amount to abuse of
process of Court. He would further contend that the 2nd Charge
framed by this Court is not available since, after disposal of the writ
petitions, the accused has not filed any writ petition before this
Court. He further contended that with regard to first Charge, the
accused No.3 is neither the Manager nor Secretary or any other
Office Bearer of the accused No.1 Company as stipulated under
Section 2(c) of the Contempt of Courts Act, 1971. Therefore, no
criminal contempt is made out against accused No.3. He further
contended that after framing of Charge, Rule 11 of The High Court
of Karnataka (Contempt of Court Proceedings) Rules, 1981, comes
into force and therefore, question of filing synopsis by the
complainants and addressing arguments would not arise.
Therefore, complainants should not have been allowed to file
synopsis and address the arguments. Learned Senior counsel
further contended that the averments made against accused No.3
in paragraph 17 of the Memorandum of Criminal Contempt Petition
does not amount criminal contempt as contemplated under Section
12(5) of the Contempt of Courts Act, 1971. He further contended
that no criminal contempt is made against accused No.3. Mere
filing petitions to agitate the rights available to a person will not
amount to criminal contempt. The orders passed by the learned
single Judge confirmed by the Division Bench have not reached
finality, since the same have been subject matters of Special Leave
to Appeal pending before the Hon'ble Supreme Court. Thereby,
accused No.3 has not committed any act of contempt of Court.
25. Further, Sri D.R.Ravishankar, learned Senior Counsel
for accused No.3, reiterating the averments made in the short
synopsis dated 06.01.2022, contended that, accused No.1 was by
its articles, a private limited company from its formation in the year
2012. Its name would have been 'India Awake for Transparency
Private Limited', but however, as it was granted permission to not
use 'Private Limited' it was allowed to be called 'India Awake for
Transparency'. Every Company is identified in the records of the
Registrar of Companies by a CIN i.e., Corporation Identification
Number. This is assigned at formation of company and continues
till company is struck off from the register of Companies maintained
under the Companies Act. When accused No.1 was formed as
'India Awake for Transparency', its CIN was U93000TN2012NPL
087115. After its name was changed to 'India Awake for
Transparency Pvt. Ltd.,' also, same CIN continues. If accused No.1
converts to Public Limited Company and becomes 'India Awake for
Transparency Ltd.,' then also CIN will be the same. CIN has
nothing to do with private/public status or even with Section 8 of
the Companies Act, 2013. Learned Senior Counsel further
contended that there being no evidence on record to show that
accused No.1 is struck off from register of Companies, the Company
continues to exist in the eye of law albeit as 'India Awake for
Transparency' and goes with the same CIN. Even the cause title of
this case itself reflects that it was only a name change of 'India
Awake for Transparency'. If the Order dated 17.08.2018 was not to
be treated as void, the mistake would be to the extent of not
adding the words 'Private Limited' to the name 'India Awake for
Transparency' in the cause title. The call to treat the order dated
17.08.2018 as void being that of the client, accused No.2 cannot be
at fault for the same as the entity continued to exist and only the
manner of representation of its name was in question.
26. Learned Senior counsel for accused No.3 further
contended that, there is no issue of existence of accused No.1
raised in any judicial order except in OSA No.1/2021 in which the
said findings are made per incurium and are bound to be ignored.
It is further contended that, the complainants and their associates
have committed serious economic offences and violated the
provisions of Companies Act, PMLA, SEBI Act, RBI Act and Income
Tax Act and given their clout and influence the matter needed Court
monitored multi disciplinary investigation. The issues in respect of
the same along with the issue of misappropriation of assets of three
companies whose assets were bona vacantia and in the control of
the complainants, were the issues raised in PIL filed by accused
No.1 in W.P.No.3635/2020, which was dismissed as withdrawn,
since the Court held that it was not maintainable. Admittedly, the
Order passed in the Writ Petition which was adjudicated on merits is
subject matter of Appeal and all the matters are pending before the
Hon'ble Supreme Court on merits and the question of any
proceedings being frivolous would not arise. It is further contended
that the entire issues raised in W.P.No.3635/2020 are before the
Apex Court in WP(C) No.1079/2021 and WP(C) No.1161/2021. The
correctness of the orders in the Writ Appeals and OSA are also
before the Apex Court in Special Leave Petitions filed and are
pending. The entire Criminal Contempt Proceedings are only
malafide proceedings of complainants to try and evade prosecution
for their offences and is bound to be dismissed in limine acquitting
accused No.3. Therefore, sought to dismiss the Criminal Contempt
Petition. Learned Senior Counsel for accused No.3 further submits
that, if this Court comes to the conclusion that accused No.3 is
found guilty of the Charges levelled against him, accused No.3
tenders unconditional apology and he may be pardoned.
27. In support of his contentions, learned Senior Counsel
for accused No.3 relied upon the following judgments:
(i) Rajesh Kumar Singh vs. High Court of
Judicature of Madhya Pradesh Bench Gwalior
reported in (2007)14 SCC 126, paragraphs 20, 21.
(ii) The Bangalore Development Authority by its
Commissioner vs. Gururaj and another reported in
ILR 2007 KAR 5184, paragraphs 13 to 16.
V - ARGUMENTS ADVANCED BY ACCUSED NO.2/
PARTY-IN-PERSON
28. Sri R.Subramanian, accused No.2/party-in-person filed
short synopsis dated 06.01.2022 and contended that, no document
is produced by the complainants to prove that accused No.2 has
acted dual role as signatory to accused No.1 and as an advocate.
He was authorized by accused No.1 on 01.07.2015 and at that
time, he was not enrolled as an advocate and he was not practicing.
He was enrolled as an advocate only on 30.12.2015, but he was not
acting as advocate to accused No.1 till March/April 2017. In April
2016, when accused No.2 was not acting as advocate to accused
No.1, accused No.2 acted as representative of accused No.1 in
respect of Company Application No.185/2016 for recall of order of
merger dated 26.03.2015 and signed the pleadings and that would
not amount to contempt. Accused No.2 further contended that, a
firm of advocates were given vakalath to appear in the said
C.A.No.185/2016 and they were appearing till December 2020.
From December 2020, he started to appear in the said matter, after
application to substitute accused No.3 as representative of accused
No.1 was filed in C.A.No.185/2016 and the same was made known
to the learned Company Judge. In March 2017, when accused No.1
Company wanted to engage him as advocate, accused No.1 was
informed that accused No.2 will not be able to act as their
authorized representative from then on. The Board Resolution of
accused No.1 dated 07.01.2020 filed in C.A.No.185/2016 records
the same.
29. Accused No.2 further contended that there is not even a
single document on record to show that he did any act as
authorized representative of accused No.1 after March 2017, nor
any document to show that accused No.2 acted as advocate of
accused No.1 before March 2017. As such, the Charge that accused
No.2 played dual role from 23.04.2016 till 07.12.2020 is not
proved. There is no finding by any Court holding that accused No.2
played dual role from 23.04.2016 to 07.12.2020. The contents of
paragraph 50 of W.P.No.3635/2020 only sets out that accused No.2
is a volunteer of accused No.1 and not that he is authorized person
of accused No.1. The code of conduct only bars persons having
executive authority in an organization from acting as its advocate
and the same does not apply to members and volunteers. Accused
No.2 further contended that mere fact that accused No.1 chose to
file substitute application only on 07.12.2020 even though it was
notified of the withdrawal of accused No.2 as representative in
March 2017, cannot prove the Charge of dual role. It is further
contended that the name of accused No.1 would have been 'India
Awake for Transparency Private Limited' but, however, as it was
granted permission not to use 'Private Limited' it was allowed to be
called 'India Awake for Transparency'. He further contended that
accused No.1 exists even today. Post 17.08.2018, if the Order of
that date was not to be treated as void, the mistake would be to
the extent of not adding the words 'Private Limited' to the name
'India Awake for Transparency' in the cause title. But in each
proceeding filed, the fact in this regard were duly disclosed and
there was no suppression. The call to treat the order dated
17.08.2018 as void being that of the client, accused No.2 cannot be
at fault for the same as the entity continued to exist and only the
manner of representation of its name was in question.
30. Accused No.2 further contended that there is no issue
of existence of accused No.1 raised in any judicial order. The
Charge that accused No.2 played dual role and suppressed facts
and such act amounts to abuse of process of law, automatically
does not survive the position that accused No.2 played no dual role
and, no act of suppression by accused No.2 is set out. He further
contended that once the role of accused No.2 is limited to that of a
pure advocate with no dual role, the scope of dragging him into
these proceedings is very limited as it can only be in respect of
matters where the advocate can have some direct responsibility as
in the case of suppression or scandalous pleadings. In the present
case, there was no repetitive writ petition on same cause of action.
In W.P.No.172/2021 it has been erroneously held that the writ
petitions are being filed on same cause of action. When the reliefs
are different and the main respondent itself is different in each writ
petition, the question of there being repetition does not arise at all.
He further contended that no proceedings have been adjudicated on
merits and as such, question of any proceedings being frivolous
would not arise. The entire reason for complainants seeking prayer
(c) in the present petition is as they cannot face any proceedings on
merit. The learned single Judge and the Coordinate Bench deciding
W.A.No.307/2021 erred in not noting that the ratio of Sarguja
Transport was wholly inapplicable as it was applicable only to High
Courts where Code of Civil Procedure was not applicable to writ
petitions and since, in this High Court, Code of Civil Procedure is
wholly applicable to writ proceedings, the decision has no
relevance.
31. The accused No.2 further contended that absolutely
there is no case made out against accused No.2 by the
complainants and therefore, sought to drop the entire Criminal
Contempt Proceedings on the ground that the entire criminal
contempt proceedings are only malafide proceedings of the
complainants to try and evade prosecution for their offences and is
bound to be dismissed in limine acquitting accused No.2. Further,
accused No.2 submits that, if this Court comes to the conclusion
that accused No.2 is found guilty of the Charges levelled against
him, he tenders unconditional apology and he may be pardoned.
VI - POINTS FOR DETERMINATION
32. In view of the aforesaid rival contentions urged by the
learned Counsel for the parties as well as accused No.2/Party-in-
person, the points that would arise for our consideration in the
present Criminal Contempt Petition are as under:
(i) Whether the charge levelled against Accused Nos.2
and 3 is proved and that the said accused persons
have committed criminal contempt of court within
the meaning of Section 2(c) of the Contempt of
Courts Act, punishable under Section 12 of the
Contempt of Courts Act, in the facts and
circumstances of the case ?
(ii) Whether the Accused Nos.2 and 3 have made out a
case to drop the criminal contempt proceedings and
discharge them, in the facts and circumstances of
the case ?
33. We have given our anxious consideration to the
arguments advanced by the learned senior Counsel for the
complainants; learned senior counsel for the Accused No.3; and the
Accused No.2/party-in-person and perused the material on record
carefully.
VII - CONSIDERATION
34. It is the specific case of the learned counsel for the
complainants that though Accused No.1 - 'India Awake for
Transparency' came into non-existence by the order dated
17.8.2018 passed by the Regional Director under the provisions of
Section 8(6) of the Companies Act, still Accused No.3 filed repeated
number of writ petitions, writ appeals, wherein Accused No.2/party-
in-person was the authorized signatory and representative of
Accused No.1, who played dual role of authorized signatory of
Accused No.1 - company as well as advocate from 23.4.2016 to
7.12.2020 against the complainants and others. Hence, the
conduct of Accused Nos.2 and 3 is nothing but abuse of process of
law amounting to criminal contempt.
35. It is the specific case of Accused Nos.2 and 3 that in
order to protect public money, certain Writ Petitions were filed in
the name of Accused No.1 by Accused No.3 and represented by
Accused No.2, contending that the order dated 17.8.2018 passed
by the Regional Director (Southern region), Ministry of Corporate
Affairs is non-est and without jurisdiction and therefore, the writ
petitions, writ appeals, Original Side Appeal filed against the
complainants and others, are in the interest of public at large.
Accused No.2 has acted only as a counsel on behalf of Accused
Nos.1 and 3 to discharge his professional duties. Therefore, they
would contend there is no criminal contempt made out against
them as alleged.
36. It is an undisputed fact that in the meeting of Board of
Directors of 'India Awake for Transparency' dated 1.7.2015, it was
resolved that Accused No.2 (R. Subramanian s/o G.S. Ramaswami,
residing at No.2/583, Singaravelan Road, 1st cross, Chinna
Neelangarai, Chennai) be and is hereby authorized to act on
behalf of the company to do all acts in furtherance of its main
objects as set out in the Memorandum of Company and for this
purpose to do all things necessary including but not limited to the
acts there under. The said resolution was only signed by Accused
No.2 as authorized signatory to Accused No.1 - 'India Awake for
Transparency'.
37. It is also not in dispute that the Accused No.2, who is
the authorized signatory of Accused No.1 - 'India Awake for
Transparency' filed Company Application No.185/2016 in Company
Petition No.182/2014, which came to be dismissed on 17.3.2021.
The cause title of the said company application reads as under:
"INDIA AWAKE FOR TRANSPARENCY A NOT FOR PROFIT COMPANY
INCORPORATED UNDER SECTION 25 OF THE COMPANIES ACT,
1956 HAVING ITS REGISTERED OFFICE D-1, SRISHTI CRESENDO,
NO.24, DESIKA ROAD, CHENNAI -600004 TAMILNADU,
REPRESENTED BY ITS AUTHORISED SIGNATORY MR. R.
SUBRAMANIAN.
(BY SRI R. SUBRAMANIAN, ADVOCATE)"
38. It is also relevant to state at this stage that in Company
Application No.185/2016 in Company Petition No.182/2014, an
affidavit filed by Accused No.2/R. Subramanian. The affidavit
reads as under:
"Affidavit
I, R. Subramanian s/o Ramanswamy aged 49
years residing at No.2/583 Singaravelan Road, I Cross
Chinna Neelankari, Chennai 600115, now at Bengaluru,
do hereby solemnly affirm and state on oath as follows:
1. I am the Authorised Singatory of the
Applicant Company, and I am conversant
with the facts of the case and am able to
depose to the matters pertaining thereto.
2. ......
3. ......"
39. The learned Single Judge of this Court while dismissing
the said Company Application No.185/2016 on 17.3.2021, has
opined at paragraph 7(n) as under:
"7(n) A perusal of the aforesaid orders passed by
this Court clearly indicates that the applicant is guilty of
abuse of process of law and his conduct disentitles him
from any relief in the present petition also. In fact, as
noticed by this Court in the earlier orders, the claim of
the applicant has been rejected not only by the Ministry
of Corporate Affairs but also by the Reserve Bank of
India. Under these circumstances also, I am of the
considered opinion that the present application is not
maintainable and the same is liable to be dismissed."
40. It is an undisputed fact that Accused No.1 - Company
represented by its authorized signatory - Mr. P. Sadanand/Accused
No.3 filed Original Side Appeal No.1/2021 against the order dated
17.3.2021 passed by the learned Single Judge of this Court in
Company Application No.185/2016 in Company Petition
No.182/2014. The Co-ordinate Bench of this Court at paragraphs -
21, 23, 24 25 and 27 specifically held as under;
"21. That apart, we find that in the instant case, the
application filed by the appellant India Awake for
Transparency before the learned Company Judge in
Company Application No.185/2016 in Company Petition
No.182/2014 of this court seeking recall of order dated
26.03.2015 was by its authorised signatory, Sri.R.
Subramanian, who is also the counsel appearing for the
appellant in this appeal. When we queried
Sri.R.Subramanian, he stated that he is now appearing
as an advocate and Sri.P. Sadanand is the authorised
signatory and there is no impediment for him to
represent for the appellant/Company.
23. We find considerable force in the submission of
learned Senior counsel inasmuch as when a company is
seeking to file an appeal or a proceeding, then the
Board of Directors of the company has to authorise a
person who would verify the pleadings or file the
proceeding on behalf of the Company as its authorised
signatory at the risk in toto. In the instant case, it is not
known as to how a "volunteer" of the appellant-
company could have volunteered to verify the pleadings
by the verifing affidavit and file this appeal. The status
of this volunteer Sri. P.Sadanand vis-a-vis the Company
is not known. It is also not known whether he is a
shareholder, director or an employee of the company.
At any rate, there can be no authorisation for him to
vounteer to file this appeal. On this ground also, we find
that the appeal filed by the appellant is not in
accordance with the legal procedural requirement and
hence cannot be entertained.
24. Despite the above circumstances, we have
considered the order of the learned Single Judge in light
of the submissions made by the learned counsel for the
appellant and learned senior counsel for respondent
No.1 and we find that the learned single Judge was
justified in dismissing the application filed in Company
Application No.185/2016 seeking recall of the order
dated 26.03.2015, by which, the scheme of the
amalgamation of the three companies with respondent
No.1 was sanctioned in Company Petition No.182/2014
as the appellant had no locus standi to file such an
application hence, we find no merit in this appeal and
the appeal is hence liable to be dismissed.
25. Before parting with this judgment, we would like
to remind ourselves that in recent years there has
emerged a trend of filing speculative litigation before
various courts of law, not just in the Court of first
instance, but also in the High Court. It is the duty of
the Courts to ensure that such speculative litigation is
weeded out at the first instance rather than allowing it
to be festered and thereby coming in the way of
genuine litigants seeking justice in their cases. We find
that this is one stark instance of speculative litigation
being filed not just by this appeal, but repeatedly over
the years has been stated, filing of litigation has been
firstly, before the Court Hon'ble of the Chief Justice in
the form of a public interest litigation and thereafter in
separate writ petitions on the same cause of action
after withdrawing unconditionally the public interest
litigation and not being successful in those cases and
not being able to get over the order passed by the
Union of India, dated 10.11.2017, a litigative
mechanism has been devised to indirectly question the
said order by way of seeking recall of the order dated
26.03.2015 passed by the learned Company Judge of
this Court sanctioning the amalgamation of the three
companies with respondent No.1 this is without having
any locus standi to do so.
27. But, having regard to the checkered history with
regard to this controversy, we refrain the appellant
herein, India Awake for Transparency, from filing any
proceeding with regard to the amalgamation of the
three companies with respondent No.1 herein in future
before any Court or authority or forum. We are
constrained to pass such an order having regard to the
loss of precious public time of this court and other
courts by raking up such a controversy by the appellant
company, without having any locus standi to do so. The
same is an instance of gross abuse of the process of law
as well as of this Court."
41. Though learned Senior counsel for Accused No. 3 and
Accused No.2/party-in-person submitted that against the said order
passed by the Co-ordinate Bench of this Court, an SLP has been
preferred before the Hon'ble Supreme Court, but no material is
produced including the interim order, if any granted by the Hon'be
Supreme Court.
42. It is also not in dispute that Accused No.1 - 'India
Awake for Transparency' represented by its authorized signatory -
Accused No.3 - P. Sadanand filed Writ Petition No.3635/2020 (PIL),
wherein at paragraph-50 it is specifically stated as under:
"The Petitioner further states that the other
defence of the 11th Respondent and his entities is as
though the proceedings are mala fide as the Petitioner
is only a device being used by Mr. R.Subramanian who
as Managing Director of Subhiksha Trading Services Ltd
had dealings with the 12 th Respondent. The Petitioner
states that there is nothing done behind the back as the
said Mr. R.Subramanian is a Volunteer of the Petitioner
and is the very person who has filed the Affidavits at
this Hon'ble Court in support of the CA's for recall of
merger and has appeared in the proceedings in various
other judicial forums relating to the matters in this
regard being prosecuted by the Petitioner as Advocate
of the Petitioner. The role of the said person is evidently
not Suppressed nor in any manner sought to be hidden.
The law being well settled that mere claim of mala fide
is no defence to a charge founded on evidence the said
claims are mere red herring to try and distract the
judicial proceedings. The present proceedings are not
driven by mala fide but the sheer scale of the fraud got
effected with connivance of all who were to protect
public interest. The Petitioner states that many scams
be it the coal scam or the 2G scam have come to light
only through actions of persons adversarial to the
persons in power. That such persons would be the
watchdogs when regulators fail to act is well recognised.
The petitioner states that in any event there is no
requirement for it to be a front for any other as what
the issues herein can be raised by any one in public
interest."
(emphasis supplied)
The said writ petition came to be dismissed as it was
unconditionally withdrawn on 1.10.2020.
43. It is also not in dispute that in the name of Accused
No.1 - company, Accused No.3 - P. Sadanand as its authorized
signatory and Accused No.2 - Sri R. Subramanian, as its advocate
filed one more writ petition in W.P. No.12073/2020. The learned
Single Judge of this Court after hearing both the parties while
dismissing the said writ petition, has observed at paragraphs 13, 14
and 15 as under:
"13. In the PIL, Director of Enforcement was arrayed as
respondent No.7. As recorded hereinabove, petitioner
had sought for a direction against respondents No. 1 to
10 therein to constitute a multi-Disciplinary Team to
investigate and prosecute Mr. Azim Premji and his
associates. Prayer clause (i) in this writ petition is for a
direction against the against the Enforcement
Directorate to register a case for offences of money
laundering arising out of the scheduled offences in
Special Case No.69/2020. The trial of the said case has
been stayed by the Hon'ble Supreme Court of India.
14. In Sakiri Vasu Vs. State of Uttar Pradesh and
others, relied upon by Shri. Nagesh, the Apex Court has
held that when some one has a grievance that his FIR
has not been registered and he rushes to High Court
with a writ petition or a petition under Section 482
Cr.P.C., High Court should not encourage this practice
and ordinarily refuse to interfere in such matters and
relegate the petitioner to his alternative remedy.
15. Admittedly, as averred in paragraph No.20 of this
writ petition, petitioner has filed a petition under
Section 190(1) (c) read with Section 156(3) of Code of
Criminal Procedure before the Special PMLA Court."
44. Aggrieved by the said order passed by the learned
Single Judge, Writ Appeal No.229/2021 was preferred by the
Accused No.1 - India Awake for Transparency represented by A3 -
P. Sadanand as its authorized signatory and Accused No.2 - R.
Subramanian as its advocate and the Division Bench of this Court
by the judgment dated 30th March 2021 while dismissing the writ
appeal, has observed at paragraph-9 as under:
"The learned Counsel has vehemently argued
before this Court that the entire litigation against the
respondents makes it clear that there is a deliberate
attempt to ensure that the case registered under the
Negotiable Instruments Act does not proceed. He has
further brought to the notice of this Court that against
the order passed by this Court in the matter of
amalgamation of companies, a Company Application
was preferred i.e. C.A. 185/2016 in Company Petition
No.182/2014 and the same has also been dismissed by
the learned Single Judge of this Court on 17.03.2021. It
has also been brought to the notice of this Court that
the appellant has promoted as many as 49 Companies
as observed by the High Court of Judicature at Madras
in an anticipatory bail application preferred by R.
Subramanian. However, the bail petition was dismissed
by the Madras High Court vide its order dated
18.09.2015." (emphasis supplied)
45. It is also not in dispute that in the name of Accused
No.1 - India Awake for Transparency, Accused No.3 - P. Sadanand
as its authorized signatory and Accused No.2 - Mr. R. Subramanian
as its advocate filed Writ Petition No.13838/2020. The learned
Single Judge of this court dismissed the said writ petition on
8.1.2021, which was the subject matter of Writ Appeal
No.228/2021 filed by Accused No.3 - P. Sadanand as its authorized
signatory and Accused No.2 - Mr. R. Subramanian as its advocate.
The Co-ordinate Bench of this Court after hearing both the parties
by the judgment dated 30.3.2021 while dismissing the said writ
appeal, has specifically observed at paragraphs 3 and 7 as under:
"3. The core issue in the aforesaid writ petition was
arising Out of the amalgamation of three companies
namely M/s. Vidya Investment and Trading Company
Private Limited, M/s. Regal Investment and Trading
Company Private Lime and M/s Napean Trading and
Investment Company Private Limited and the Present
appellant has initially preferred a public interest
litigation registered as W.P.No.3635/2020 with a prayer
inter alia for issuance of writ of mandamus and a
direction to respondents No.1 to 10 therein to constitute
a multi disciplinary investigation team to investigate
and prosecute Mr.A.H.Premji and his associates for the
offences alleged to have been committed by them. The
public interest litigation was withdrawn unconditionally.
7. The learned Counsel has vehemently argued
litigation against the respondents makes it clear that
there is a deliberate attempt to ensure
that the case registered under the Negotiable
Instruments Act does not proceed. He has further
brought to the notice of this Court that against the
order passed by, this Court in the matter of
amalgamation of companies, a Company Application
was preferred i.e. C.A. 185/2016 in Company Petition
No.182/2014 and the same has also been dismissed by
the learned Single Judge of this Court on 17.03.2021.It
has also been brought to the notice of this Court that
the appellant has promoted as many as 49 Companies
as observed by the High Court of Judicature at Madras
in an anticipatory bail application preferred by R
Subramanian. However, the bail petition was dismissed
by the Madras High Court vide its order dated
18.09.2015."
46. According to learned senior counsel for Accused No.3 as
well as Accused No.2/party-in-person, against the said judgment,
an SLP was preferred before the Hon'ble Supreme Court, which is
still pending for adjudication. But, no material produced before
this Court in support of the same.
47. It is also not in dispute that in the name of Accused
No.1 - India Awake for Transparency, Accused No.3 - P. Sadanand
filed Writ Petition No.12769/2020 (T-IT) and the learned Single
Judge of this court by the order dated 26.2.2021 dismissed the
said writ petition, which was the subject mater of Writ Appeal No.
384/2021 (T-IT) filed by Accused No.1 represented by Accused
No.3 as its authorized signatory and Accused No.2 as its advocate,
which came to be dismissed on 21.4.2021. It is stated at the Bar
by the learned senior advocate for Accused No.3 as well as Accused
No.2/party-in-person that against the said order passed by the Co-
ordinate Bench, they have preferred an SLP before the Hon'ble
Supreme Court and the same is pending for consideration, but no
documents produced in support of the same.
48. It is also relevant to state that in the name of Accused
No.1, Accused No.3 - P. Sadanand filed Writ Petition No.172/2021
before this Court represented by Accused No.2 - Sri R.
Subramanian, as its advocate, wherein the learned Single Judge of
this Court by the detailed order dated 12th February, 2021
dismissed the writ petition with costs of Rs.10,00,000/- (Rupees
Ten Lakhs only) and specifically observed at paragraphs - 26, 27
and 28 as under:
"26. In W.P.No.3635/2020 (India Awake. Transparency
Vs. Union of India and others), the PIL filed in this
Court, petitioner has sought directions against the
respondents therein based on his representation/
complaints dated January 30, 2020 and February 3,
2020. Though the dates of complaint is
different, the subject matter is again the same i.e.,
transactions involving three Companies namely Vidya
Investment and Trading Company Pvt. Ltd., Regal
Investment and Trading Company Pvt. Ltd. and Napean
Trading and Investment Company Pvt. Ltd. (paragraph
No.10 of the writ petition).
27. Thus, there remains no doubt that petitioner is
indulging in forum shopping on the very same cause of
action. As held in Udyami, this amounts to criminal
contempt as the core issue in all these writ petitions is
one and the same.
28. In the result, this writ petition is not only devoid
of merits, but an absolute abuse of process of law.
Though petitioner was forewarned, he chose to argue
this writ petition as a stand-alone petition wasting the
valuable time of this Court to deal with such frivolous
cases. Therefore, imposition of punitive cost is
necessary."
49. Against the said order passed by the learned Single
Judge, Writ Appeal No.307/2021 was preferred in the name of
Accused No.1 by Accused No.3 represented by Accused No.2 as its
advocate, wherein the Co-ordinate Bench of this Court by the order
dated 25.3.2021 while dismissing the appeal, has observed at
paragraph-18 as under:
"18. in the light of the aforesaid judgments, this
Court is of the considered opinion that the writ petition
is nothing but sheer abuse of process of law. The
appellant has been unsuccessful on almost about nine
occasions by filing the frivolous proceedings. Therefore,
the learned Single Judge was justified in imposing the
exemplary costs while dismissing the writ petition.
The learned Single Judge has also observed that
petitioner is indulging in forum shopping on the very
same cause of action and this amounts to criminal
contempt as the core issue in all these writ petitions is
one and the same."
(underline supplied)
50. Learned senior Counsel for Accused No.3 as well as
Accused No.2/R. Subramanian - party-in-person submit that an SLP
filed against the said order is still pending for adjudication, but no
documents are produced in support of the same.
51. It is an undisputed fact that the Regional Director,
Ministry of Corporate Affairs by exercising his powers under the
provisions of Section 8(6) of the Companies Act has revoked/
cancelled the licence issued to Accused No.1/India Awake for
Transparency. The material on record clearly depicts that the
proceedings were initiated in the name of non-existent company
i.e., India Awake for Transparency represented by Accused No.3 as
its authorized signatory and Accused No.2 as its advocate in some
matters and Accused No.2 as its authorized signatory as well as
Advocate/party-in-person in some other matters as under:-
1. Company Application No.185/2016 in Company
Petition No.182/2014 dismissed on
17.03.2021.
2. Original Side Appeal No. 1/2021 dismissed on
22.4.2021
3. Writ Petition No.3636/2020 dismissed as
withdrawn unconditionally on 1.10.2020
4. Writ Petition No.12073/2020 dismissed on
21.1.2021
5. Writ Appeal 229/2021 dismissed on 30.3.2021
6. Writ Petition No.12769/2020 dismissed on
26.2.2021
7. Writ Appeal No.384/2021 dismissed on
21.4.2021
8. Writ Petition No.13838/2020 dismissed on
8.1.2021
9. Writ Petition No.172/2021 dismissed on
12.2.2021 with costs of Rs.10,00,000/-
10. Writ Appeal No. 307/2021 dismissed on
25.3.2021
52. In view of the above, it is clear that the 2nd Accused
besides being the one who is representing the 1st accused before
the Courts of Law and other forums as its Advocate, is also the
authorized representative of the 1st Accused-Company to act on
behalf of the 1st accused in the actions that are being brought by it
as well as the one that are brought against it. In other words, the
2nd accused has been performing the dual role in relation the
matters pertaining to the 1st Accused-Company. In fact in the
meeting of the Board of Directors of Accused No.1 - India Awake for
Transparency, held on 7.1.2020, it is resolved that the
authorization dated 1.7.2015 issued to Accused No.2 - Mr. R.
Subramanian shall stand withdrawn, in full. As such, Accused
NO.2 was authorized signatory of the Accused No.1 - India Awake
for Transparency till 7.1.2020. Knowing fully well that Accused
No.1 is a non-existent company and authorization dated 1.7.2015
issued to Accused No.2 stood withdrawn on 7.1.2020, Accused
NO.2 has appeared in all the cases stated supra and failed to
succeed either before the learned Single Judge or before the
Division Bench. Accused No.2 acted as an advocate and continued
as an authorized signatory of the Accused No.1 ( non-existing
company) between 23.4.2016 and 7.12.2020. Accused No.2 had
filed vakalathnama on 7.2.2020 in the Writ Petition No.3635/2020,
thereby he has given up all his professional ethics as contemplated
under the provisions of the Advocates Act, 1961. Being an
advocate and party-in-person, Accused No.2 has misused the
process of the court and harassed the complainants and others
repeatedly and wasted the precious public & judicial time of the
Court, thereby the accused No.3 filed number of writ petitions on
behalf of Accused No.1 - company which is non-existing and
continuously was represented by A2 - party in person, thereby it
amounts to daring ride on the Court. It is also to be stated that
carrying on proceedings which are frivolous, vexatious or
oppressive, also constitute an abuse of process.
53. The material on record clearly depicts that the 1 st
accused is completely under the control of the 2nd accused, who has
personally planned, organized and instituted various legal
proceedings and committed the various acts which constitute
criminal contempt. The accused Nos.2 and 3 directly and indirectly
continue to file further legal proceedings on the same subject and in
the same manner though the same is deprecated and held to be
illegal by this Court. The conduct of the Accused No.3 in filing
several writ petitions, writ appeals and Original Side Appeal in the
name of Accused No.1, a non-existing company and Accused No.2
appearing as its advocate, is nothing but indulging in forum
shopping on the same cause of action and amounts to criminal
contempt as observed by the Division Bench of this Court in Writ
Appeal No. 307/2021 dated 25.3.2021, which has reached finality.
54. It is also not in dispute that learned Advocate General
by his letter dated 10.6.2021 has given consent to the
applicants/complainants viz., Hasham Investment and Trading
Company Private Limited, Wipro Limited and Mr. Azim Hasham
Premji under Section 15(1) (b) of the Contempt of Courts Act, 1971
in Consent Application No.04/2021 to initiate criminal contempt
against 'Accused Nos.1, 2 and 3 in the present contempt petition'
and recorded a finding that the clauses of resolution of the Board of
Directors would show that the role of Accused No.2 - R.
Subramanian, is not limited to the role of counsel, but it is far
beyond that. In other words Accused No.2 - R. Subramanian can
be said to be part of Accused No.1 - 'India Awake for
Transparency'. Indeed, Accused No.2 - R. Subramanian has acted
as authorized signatory in some of the proceedings and one such
affidavit is filed in the Company Petition No.182/2014. According to
Accused No.2 - party in person, he has already filed W.P. (Civil)
No.885/2021 against the consent given by the learned Advocate
General and same is pending before the Hon'ble Supreme Court and
Accused Nos.1 and 3 also filed Writ Petition No.19026/2021 before
this Court and the same is pending for adjudication. Admittedly
either before this Court or before the Hon'ble Supreme Court, no
interim order is passed as on today.
55. It is also not in dispute that this Court in the present
contempt petition by the order dated 6.7.2021 relying upon the
observations made in Writ Petition No.172/2021 dated 12.2.2021
and Writ Appeal No.307/2021 dated 25.3.2021, has opined that
"this is a fit case to exercise suo motu power of contempt of court
proceedings." Further, in view of the consent given by the learned
Advocate General dated 10.6.2021, the Co-ordinate Bench of this
Court observed that "prima facie case of Accused Nos.1, 2 and 3
committing criminal contempt is made out."
56. It is also relevant to state at this stage that Accused
No.2 filed an application I.A. No.2/2021 to recall the order dated
6.7.2021 passed by the Co-ordinate Bench. After arguing the
matter at length, at the instance of Accused No.2/party-in person,
I.A. No.2/2021 came to be dismissed as withdrawn on 19.11.2021
with liberty to Accused No.2 to pursue his remedy in accordance
with law. According to Accused No.2/ party-in-person, against the
order dated 6.7.2021 passed by the Co-ordinate Bench of this Court
in the present contempt petition, he has filed an SLP before the
Hon'ble Supreme Court, but no documents are placed before this
Court in support of the same.
57. It is also relevant to state at this stage that against the
order passed by the Regional Director (Southern Region), Ministry
of Corporate Affairs, Government of India, Shastri Bhavan,
Chennai, dated 17.8.2018 canceling/revoking licence of India
Awake for Transparency, the 1st Accused filed Writ Petition
No.10235/2019 and connected matters before the High Court of
Judicature at Madras duly represented by Mr.R. Subramanian, the
2nd Accused herein as its advocate and the learned Single Judge of
Madras High Court while dismissing the said writ petition by the
order dated 4.1.2022, has observed at paragraphs - 24. 25, 26,
27, 28 and 29 as under:
24. In this regard, a perusal of the impugned order
reveals that the shell companies that were forming part
of the cartel were dealt with in detail in the anticipatory
bail petition filed by one of the Directors of the concern
and taking note of the shell companies, this Court had
detailed the said companies which were functioning and
the holding pattern in the said companies, while dealing
with Crl. O.P. No.21449/2015.
25. Thereafter series of litigations were filed by the
petitioner in the Karnataka High Court against the 3rd
respondent claiming defalcation of accounts and after
detailed hearing, learned single Judge of the Karnataka
High Court dismissed the said petition in W.P.
No.172/2021 (GM~Res) holding that the petition at the
instance of the petitioner is a sheer abuse of process of
law and also imposed cost.
26. The petitioner herein, thereafter filed appeal in
O.S.A. No.1/2021 before the Division Bench of the
Karnataka High Court assailing the correctness of the
order passed in Company Application No.185/2016 and
the Division Bench, while dismissing the said appeal,
observed that the petitioner is indulging in speculative
litigation not only by filing this appeal, but repeatedly
over the years has been filing litigation before one
Court or the other for the same cause of action.
Further, the Division Bench has also refrained the
petitioner herein from proceeding with filing any
proceeding with regard to the amalgamation of three
companies before any Court or authority or forum in
view of the loss of precious court time under the guise
of public interest, which is nothing but an instance of
gross abuse of process of law. The Special Leave
Petition in SLP (Crl.) Diary No.12031/2020 filed against
the said order stood withdrawn by the petitioner.
27. It is further borne out by record, which is also not in
dispute that action for criminal contempt has been
initiated, suo motu, against the petitioner by the
Karnataka High Court, which is yet to see the light of
the day and stepping into stopping the adjournment
spree, the Hon-ble Supreme Court in Criminal Appeal
No.1177 to 1179/2021 (Azim Hasham Premji & Anr. ~
Vs - India Awake for Transparency & Ors. ~ Dated
02.12.2021), has deprecated the act of the petitioner in
trying to obfuscate the proceedings before the
Karnataka High Court by seeking adjournment one way
or the other and had framed a time schedule within
which the proceedings are to complete.
28. The above facts are narrated to highlight the fact
about the modus of the petitioner in initiating litigative
process, which are sheer abuse of process of law. In
this regard, all the litigations have been raised against
the 3rd respondent herein before the Karnataka High
Court, which is an admitted fact. Merely because notice
has been issued in one of the matters by the Karnataka
High Court would not be a bar for this Court to consider
the sustainability of the impugned order passed by the
2nd respondent as there are many orders, which stare
on the face of the petitioner.
29. In the backdrop of the above facts, a careful perusal
of the order passed by the 2nd respondent reveals that
the 2nd respondent has taken into consideration all the
materials, including information collected by the SFIO,
the Enforcement Directorate, Banks, Income Tax
Department, Statutory Auditors, CBI, Commissioner of
Service Tax, Regional Provident Fund Commissioner and
having analysed the said documents, has come to an
irrefutable conclusion that the that the motive behind
the formation of the respondent was not fulfilled even
after six years of incorporation and its objects are not
achieved till date. Moreover, the regulatory
compliances by the respondent company as well as its
owner companies were not fulfilled and the companies
were not regular in filing their financial statements and
statutory annual returns and that the petitioner is only
using its privileged position as a Section 8 company by
involving itself in litigations with private limited
companies with no public interest nor serving any public
cause.
58. It is also relevant to state at this stage that the 1st
complainant in the present contempt petition initiated proceedings
under section 138 of Negotiable Instruments Act in C.C.
No.25456/2009 against Subhiksha Trading Services Limited; Mr.R.
Subramanian (Accused No.2 herein), the Director, Subhiksha
Trading Services and three others. "The XXI Addl. CMM & XXIII
ASCJ, Bangalore city by the order dated 31.12.2021, has convicted
Accused Nos.1,2 and 5 therein {Subhiksha Trading Services
Limited; Mr. R. Subramanian (present Accused No.2) and Mr. K.
Balasubramanian, Deputy General Manager, Subhiksha Trading
Services} for the offence punishable under section 138 of
Negotiable Instruments Act and sentenced them to undergo simple
imprisonment for a period of two years and shall pay fine of
Rs.62,63,59,893/- (sixty two crores sixty-three lakhs, fifty-nine
thousand eight hundred and ninety-three only)" and out of the fine
amount, the complainant therein viz., Hasham Investment and
Trading Company Limited, is entitled for a sum of
Rs.62,63,49,893/- as compensation under Section 357 of the Code
of Criminal Procedure and balance of Rs.10,000/- shall be paid to
the State as fine.
59. The material on record clearly depicts that the
proceedings were filed in the name of the non-existing company
(Accused No.1) by Accused No.3 as its authorized signatory and
Accused No.2 as its advocate challenging the legality of
amalgamation of three Azim Premji Group of companies with
another group company, even though no outside shareholder or
creditor was in any way affected. The challenge was on an
absolutely frivolous and absurd ground viz., that as the
amalgamating companies were shareholders of each other, all their
properties belonged to the Central Government because of "bona
vacantia" under Article 296 of the Constitution of India. The
Central Government by the order dated 10.11.2017 specifically held
that the properties of the amalgamating companies did not belong
to the Central Government. The same is also referred in Writ Appeal
No.307/2021 by the Division Bench of this Court. The proceedings
initiated by Accused No.1 - 'India Awake for Transparency' against
the complainants at the instance of Accused No.2/party-in-person
after the complainants initiated proceedings under section 138 of
the Negotiable Instruments Act in the year 2009 against the
Accused No.2 and others.
60. It is relevant to state that Accused No.2 - Subramanian
is the alter ego of Accused No.1 - 'India Awake for Transparency', in
whose name various legal proceedings stated supra were filed.
Licence granted to 'India Awake for Transparency' to drop the
words 'Private Limited' from its name was revoked by the Regional
Director by the order dated 17.8.2018 passed under Section 8(6) of
the Companies Act. It is important to note that in every single legal
proceedings, Accused No.2 - R. Subramanian has appeared as an
advocate. Accused No.1 - 'India Awake for Transparency', is mere
shell company as is clear from its last available balance sheet, as it
has no income and negligible expenditure, and does not even
possess a bank account. Its total assets are only about Rs. 1 lakh
and this has remained unchallenged in the last several years. All
these indisputable facts make it clear that Accused No.2 - R.
Subramanian is the alter ego of 'India Awake for Transparency',
that "India Awake for Transparency" is only a corporate facade used
by Accused No.2, and that all the legal proceedings filed in the
name of "India Awake for Transparency" are at his behest and
instance, as admitted by Accused No.3 in Writ Petition
No.3635/2020 (PIL), wherein at paragraph - 50 it is observed as
under:
"The Petitioner further states that the other defence of
the 11th Respondent and his entities is as though the
proceedings are mala fide as the Petitioner is only a
device being used by Mr. R.Subramanian who as
Managing Director of Subhiksha Trading Services Ltd
had dealings with the 12 th Respondent. The Petitioner
states that there is nothing done behind the back as the
said Mr. R.Subramanian is a Volunteer of the Petitioner
and is the very person who has filed the Affidavits at
this Hon'ble Court in support of the CA's for recall of
merger and has appeared in the proceedings in various
other judicial forums relating to the matters in this
regard being prosecuted by the Petitioner as Advocate
of the Petitioner. The role of the said person is evidently
not Suppressed nor in any manner sought to be hidden.
The law being well settled that mere claim of mala fide
is no defence to a charge founded on evidence the said
claims are mere red herring to try and distract the
judicial proceedings. The present proceedings are not
driven by mala fide but the sheer scale of the fraud got
effected with connivance of all who were to protect
public interest. The Petitioner states that many scams
be it the coal scam or the 2G scam have come to light
only through actions of persons adversarial to the
persons in power. That such persons would be the
watchdogs when regulators fail to act is well recognised.
The petitioner states that in any event there is no
requirement for it to be a front for any other as what
the issues herein can be raised by any one in public
interest."
(emphasis supplied)
61. As already stated supra, the writ petition filed in the
name of Accused No.1 - India Awake for Transparency in Writ
Petition No.3635/2020 came to be dismissed as it was
unconditionally withdrawn on 1.10.2020 and no liberty was granted
to Accused No.1 represented by Accused No.3 as its authorized
signatory. In the absence of the same, subsequent writ petitions
filed on the same cause of action, are not permissible as observed
by the learned Single Judge of this Court and confirmed by the
Division Bench as stated supra.
62. Our view is fortified by the judgment of the Hon'ble
Supreme Court in the case of Sarguja Transport Service v.
S.T.A.T., reported in (1987)1 SCC 5, wherein the Hon'ble Supreme
Court while considering the provisions of Order 23 Rule 1 of the
Code of Civil Procedure, has held at paragraph 9 as under:
9. The point for consideration is whether a petitioner
after withdrawing a writ petition filed by him in the High
Court under Article 226 of the Constitution of India
without the permission to institute a fresh petition can
file a fresh writ petition in the High Court under that
article. On this point the decision in Daryao case [AIR
1961 SC 1457 : (1962) 1 SCR 574] is of no assistance.
But we are of the view that the principle underlying
Rule 1 of Order XXIII of the Code should be extended in
the interests of administration of justice to cases of
withdrawal of writ petition also, not on the ground of
res judicata but on the ground of public policy as
explained above. It would also discourage the litigant
from indulging in bench-hunting tactics. In any event
there is no justifiable reason in such a case to permit a
petitioner to invoke the extraordinary jurisdiction of the
High Court under Article 226 of the Constitution once
again. While the withdrawal of a writ petition filed in a
High Court without permission to file a fresh writ
petition may not bar other remedies like a suit or a
petition under Article 32 of the Constitution of India
since such withdrawal does not amount to res judicata,
the remedy under Article 226 of the Constitution of
India should be deemed to have been abandoned by the
petitioner in respect of the cause of action relied on in
the writ petition when he withdraws it without such
permission. In the instant case the High Court was right
in holding that a fresh writ petition was not
maintainable before it in respect of the same subject-
matter since the earlier writ petition had been
withdrawn without permission to file a fresh petition.
We, however, make it clear that whatever we have
stated in this order may not be considered as being
applicable to a writ petition involving the personal
liberty of an individual in which the petitioner prays for
the issue of a writ in the nature of habeas corpus or
seeks to enforce the fundamental right guaranteed
under Article 21 of the Constitution since such a case
stands on a different footing altogether. We, however
leave this question open.
63. The Hon'be Supreme Court while considering the
provisions of Section 2(c) of the Contempt of Courts Act and
Article 226 of the Constitution of India in the case of Udyami Evam
Khadi Gramodyog Welfare Sanstha v. State of U.P., reported
in (2008) 1 SCC 560, has held at paragraphs 15 and 16 as
under:
"15. In the said counter-affidavit, it has further been
disclosed that after being unsuccessful in their attempt
to stall the recovery proceedings against the Samiti, a
fictitious welfare Sanstha, namely, Udyami Evam Khadi
Gramodyog Welfare Sanstha was started by Appellant
2. We, therefore, are of the opinion that the attempt on
the part of the appellants herein must be termed as
"abuse of the process of law".
"16. A writ remedy is an equitable one. A person
approaching a superior court must come with a pair of
clean hands. It not only should not suppress any
material fact, but also should not take recourse to the
legal proceedings over and over again which amounts to
abuse of the process of law. In Advocate General, State
of Bihar v. M.P. Khair Industries [(1980) 3 SCC 311 :
1980 SCC (Cri) 688] this Court was of the opinion that
such a repeated filing of writ petitions amounts to
criminal contempt."
64. The Hon'ble Supreme Court while considering the
provisions of Articles 129 and 142 of the Constitution of India, in
the case of Sanjiv Datta, Dy. Secy., Ministry of Information &
Broadcasting, reported in (1995)3 SCC 619, has held at
paragraphs 19 and 20 as under:
19. Of late, we have been coming across several
instances which can only be described as unfortunate
both for the legal profession and the administration of
justice. It becomes, therefore, our duty to bring it to
the notice of the members of the profession that it is in
their hands to improve the quality of the service they
render both to the litigant-public and to the courts, and
to brighten their image in the society. Some members
of the profession have been adopting perceptibly casual
approach to the practice of the profession as is evident
from their absence when the matters are called out, the
filing of incomplete and inaccurate pleadings -- many
times even illegible and without personal check and
verification, the non-payment of court fees and process
fees, the failure to remove office objections, the failure
to take steps to serve the parties, et al. They do not
realise the seriousness of these acts and omissions.
They not only amount to the contempt of the court but
do positive disservice to the litigants and create
embarrassing situation in the court leading to avoidable
unpleasantness and delay in the disposal of matters.
This augurs ill for the health of our judicial system.
20. The legal profession is a solemn and serious
occupation. It is a noble calling and all those who
belong to it are its honourable members. Although the
entry to the profession can be had by acquiring merely
the qualification of technical competence, the honour as
a professional has to be maintained by its members by
their exemplary conduct both in and outside the court.
The legal profession is different from other professions
in that what the lawyers do, affects not only an
individual but the administration of justice which is the
foundation of the civilised society. Both as a leading
member of the intelligentsia of the society and as a
responsible citizen, the lawyer has to conduct himself as
a model for others both in his professional and in his
private and public life. The society has a right to expect
of him such ideal behaviour. It must not be forgotten
that the legal profession has always been held in high
esteem and its members have played an enviable role
in public life. The regard for the legal and judicial
systems in this country is in no small measure due to
the tireless role played by the stalwarts in the
profession to strengthen them. They took their
profession seriously and practised it with dignity,
deference and devotion. If the profession is to survive,
the judicial system has to be vitalised. No service will
be too small in making the system efficient, effective
and credible. The casualness and indifference with
which some members practise the profession are
certainly not calculated to achieve that purpose or to
enhance the prestige either of the profession or of the
institution they are serving. If people lose confidence in
the profession on account of the deviant ways of some
of its members, it is not only the profession which will
suffer but also the administration of justice as a whole.
The present trend unless checked is likely to lead to a
stage when the system will be found wrecked from
within before it is wrecked from outside. It is for the
members of the profession to introspect and take the
corrective steps in time and also spare the courts the
unpleasant duty. We say no more.
65. Like any other organ of the State, the Judiciary is also
manned by human beings - but the function of the judiciary is
distinctly different from other organs of the State - in the sense its
function is divine. Today, the judiciary is the repository of public
faith. It is the trustee of the people. It is the last hope of the
people. After every knock at all the doors fail, people approach the
judiciary as the last resort. It is the only temple worshipped by
every citizen of this nation, regardless of religion, caste, sex or
place of birth. It is high time the judiciary must take utmost care
to see that the temple of justice does not crack from inside, which
will lead to a catastrophe in the justice-delivery system resulting in
the failure of public confidence in the system. We must remember
that woodpeckers inside pose a larger threat than the storm
outside.
66. The accused No.2 who is the Officer of the Court must
ensure that the majesty of the Court is maintained and not to take
advantage to file repeated petitions at the instance of Accused No.3
in the name of Accused No.1 company - 'India Awake for
Transparency', which is non-existing. In such an event, the people
lose confidence in the profession on account of deviant ways by
Accused No.2 at the instance of Accused No.3. It is not only the
profession which will suffer but also administration of justice as a
whole. It is for the members of the profession to introspect and
take corrective steps in time and also spare the Courts the
unpleasant duty. The conduct of Accused NO.3 filing the petitions
again and again against the complainants in the name of Accused
No.1 - company, which is non-existent, is nothing but daring ride
on the Court, which is impermissible.
67. It is true that the judges should not be hyper sensitive
in discharging judicial functions, but that does not mean and imply
that they ought to maintain angelic silence also. Immaterial it is
as to the person but it is the seat of justice which needs protection;
it is the image of judicial system which needs protection. Nobody
can be permitted to tarnish the image of the temple of justice.
The majesty of the Court shall have to be maintained and there
ought not to be any compromise or leniency in that regard. It is
well settled that legal profession is a solemn and serious
occupation. It is a noble calling and all those who belong to it are its
honourable members. Although the entry to the profession can be
had by acquiring merely the qualification of technical competence,
the honour as a professional has to be maintained by its members
by their exemplary conduct both in and outside the court. The
casualness with which some members practice the profession is
certainly not calculated to achieve that purpose or to enhance the
prestige either of the profession or of the institution they are
serving.
68. The experience of this Court depicts that in recent years
there has emerged a trend of filing speculative litigations before
various Courts of law, not just in the Court of first instance, but also
in the High Court as well as before the Hon'ble Supreme Court. It
is the duty of the Courts to ensure that such litigations shall be
weeded out at the first instance rather than allowing to be festered
and thereby coming in the way of genuine litigants seeking justice
treating the Court as "Temple of Justice" and to protect precious
public & judicial time of the court.
"This augurs ill for the health of our judicial system".
69. It is high time for the Court to protect not only the
majesty of the court, but also ensure judicial discipline of the Court,
since it is the repository of public faith and trustee of the people.
The circumstances warrant that the Court has to act as 'Societal
Parent' to protect Dharma as preached by Bhagvan Sri Krishna, at
verse 7-8 of Chapter 4 of the Bhagavadgeetha, which is as under:
"यदा यदा ह धम य, लानीं भव त भरत
अ य थानम
ु ् अधम य, तदा मनम ् ीजा यहम ्
प र ाणाय सौधनाम
ु ्, $वनशाय च द'कताम
ु ृ ्
धमसं था प*नाथाय, संभवा+म यगे
ु यगे
ु "
which means:
Whenever there is decay of righteousness, O Bharata,
And there is exaltation of unrighteousness, then I
myself come forth;
For the protection of the good, for the destruction of
evil-doers,
For the sake of firmly establishing righteousness, I am
born from age to age.
70. It is the contention of learned senior counsel for
Accused No.3 that after withdrawal of Writ Petition No. 3635/2020,
filing of five separate writ petitions in the name of Accused No.1
by Accused No.3, cannot be treated as abuse of the process of the
Court and thereby the charges framed against Accused No.3 is not
proper. The said contention cannot be accepted in view of the
discussion/reasons stated supra that the accused No.3 conducted
the proceedings stated above even after cancellation of licence of
the Accused No.1 - company by the Regional Director, in exercise of
the powers under the provisions of Section 8(6) of the Companies
Act by the order dated 17.8.2018 and the writ petition
No.10235/2019 filed before the High Court of Judicature at Madras
against the order dated 17.8.2018 came to be dismissed by the
order dated 4.1.2022.
71. The further contention of the learned senior Counsel for
Accused No.3 is that the averments made in the contempt petition
do not amount to criminal contempt, since Accused No.3 is neither
Manager nor Secretary or other Officer as contemplated under sub-
section 2 of Section 59 of the Companies Act. The said contention
cannot be accepted for the simple reason that Accused NO.3 has
acted on behalf of Accused No.1 company, in terms of the
resolution of the Board of Directors of Accused No.1 - 'India Awake
for Transparency' dated 1.6.2015, wherein at serial No.2 -Mr.
Panjala Sadananda was authorized to act jointly or severally along
with two others, to institute, commence, prosecute, file, present,
carry on or defend or resist and conduct any complaint including
criminal contempt, Arbitral proceeding, suit, Legal or other
proceedings of any kind for recovery or realization of monies or
assets to which the Company is entitled to, company petitions of
all kinds, both in respect of matters of company itself and in respect
of those of counter party companies etc.,
72. Learned senior counsel for Accused No.3 submits that if
for any reason, this Court comes to the concussion that Accused
No.3 filing the petitions after petitions in the name of Accused No.1
- company, which was non-existing amounts to criminal contempt,
his unconditional apology may be accepted and pardon the Accused
No.3. The same cannot be accepted as this Court by the order
dated 23.12.2021 while holding that this is a fit case to frame the
charge, has not accepted the apology and the said order passed by
this court has reached finality. Further, Accused No.3 has not filed
any affidavit of unconditional apology, in writing before this Court.
If really Accused No.3 wants to tender unconditional apology, he
should have given it in writing by way of personal affidavit and used
the proper words and it should have been sincere and should have
expressed regret. In the absence of the same and in the absence
of any affidavit of unconditional apology in writing, the oral
submission of the learned senior counsel for Accused No.3, cannot
be accepted.
73. In the judgment relied upon by learned senior counsel
for Accused NO.3 in the case of Rajesh Kumar Singh -vs- High
Court of Judicature of Madhya Pradesh Bench, Gwalior
reported in (2007)14 SCC 126 [para 20 and 21) the Hon'ble
Supreme Court repeatedly cautioned that the power to punish for
contempt is not intended to be invoked or exercised routinely or
mechanically, but with circumspection and restraint. Courts should
not readily infer an intention to scandalize courts or lowering the
authority of he court unless such intention is clearly established.
Nor should they exercise power to punish for contempt where mere
question of propriety is involved and the Judges, like everyone else,
will have to earn respect and they cannot demand respect by-
(i) punishing persons for unintended acts or technical violations;
(ii) frequent summoning of Government officers to court; and
(iii) making avoidable adverse comments and observations
against persons who are not parties.
The exercise of such powers results in eroding the confidence of the
public, rather than creating trust and faith in the judiciary.
We have no quarrel with the law laid down by the Hon'ble
Supreme Court about the over sensitivity and punishing persons
for unintended acts or technical violations etc, but in the present
case, admittedly the licence granted to Accused No.1 - 'India
Awake for Transparency' came to be cancelled/revoked by the
Regional Director, in exercise of the powers under Section 8(6) of
the Companies Act as per the order dated 17.8.2018. Though a
writ petition came to be filed in Writ Petition No.10235/2019 before
the High Court of Judicature at Madras challenging the order dated
17.8.2018, no interim order was granted during the pendency of
the said writ petition and ultimately the said writ petition came to
be dismissed on 4.1.2022. It is not in dispute that in the name of
Accused No.1 - company, Accused No.3 as its authorized signatory
and Accused No.2 as its advocate filed several writ petitions, writ
appeals against the complainants and others and failed to succeed
in those matters. Though learned counsel for Accused No.3 and
Party-in-Person/Accused No.2 submit that SLPs filed before the
Hon'ble Supreme Court, but no material produced before this Court
to show that Hon'ble Supreme Court has passed any interim order.
In the present case, the acts committed by Accused Nos.2 and 3,
are nothing but lowering the dignity and majesty of the Court and
the Courts should not be silent spectators allowing the Accused
No.3 to file litigation after litigation on the same cause of action, in
the name of Accused No.1 (non-existing company) represented by
Accused No.2/advocate and the same is nothing but forum
shopping and cannot be encouraged. Therefore, the said judgment
relied upon by the learned senior counsel for Accused No.3 has no
application to the facts and circumstances of the present case.
74. In the judgment of the Co-ordinate Bench relied upon
by the learned senior counsel for Accused No.3 in the case of the
Bangalore Development Authority by its Commissioner -vs-
Gururaj and another reported in ILR 2007 Kar. 5184, this Court
held that filing of the appeal against the order of rejection of plaint
cannot be termed as interference in the administration of justice or
obstruction of the same - order VII Rule 13 clearly permits the
accused for filing fresh suit on the same cause of action, when the
plaint is rejected on any of the grounds enumerated under Rule 11
of Order VII CPC. Since the accused has availed the statutory
remedy by filing a second suit, the same cannot be termed as
obstruction or interference in the administration of justice.
It is not in dispute that in the name of Accused No.1 -
company, Accused No.3 as its authorized signatory and Accused
No.2 as its advocate filed several writ petitions, writ appeals
against the complainants. The same is admitted by Accused
No.3 in Writ Petition No.3635/2020 (PIL), wherein at paragraph-50
it is specifically stated as under:
"The Petitioner further states that the
other defence of the 11th Respondent and his
entities is as though the proceedings are mala
fide as the Petitioner is only a device being
used by Mr. R.Subramanian who as Managing
Director of Subhiksha Trading Services Ltd had
dealings with the 12th Respondent. The
Petitioner states that there is nothing done
behind the back as the said Mr. R.Subramanian
is a Volunteer of the Petitioner and is the very
person who has filed the Affidavits at this
Hon'ble Court in support of the CA's for recall
of merger and has appeared in the proceedings
in various other judicial forums relating to the
matters in this regard being prosecuted by the
Petitioner as Advocate of the Petitioner.
75. It is also not in dispute that Writ Petition No.172 of
2021 filed by the 1st accused was disposed of by the order dated
12.2.2021, wherein the learned Single Judge of this Court observed
that there remains no doubt that petitioner is indulging in forum
shopping on the very same cause of action and as held in the case
of Udyami - (2008)1 SCC 560, this amounts to criminal contempt.
Admittedly, the said order passed by the learned Single Judge is
confirmed by the Division Bench of this Court in Writ Appeal No.307
of 2021 by the judgment dated 25.3.2021 and the same has
reached finality. Therefore, it is clear that Accused Nos.2 and 3
have filed several writ petitions and writ appeals against the
complainants to settle the score between them and the
complainants, as there was no direct lis between the parties.
Therefore, the dictum of the co-ordinate Bench in the case of BDA
stated supra has no application to the facts and circumstances of
the present case.
76. Though Accused No.2 contended that no documents are
produced to prove the charge No.1 that he has played a dual role
i.e., both as an authorized signatory as well as an advocate, the
material on record stated supra clearly indicates that he has acted
not only as an authorized signatory but also as an advocate from
23.4.2015 till 7.1.2020 and his authorization dated 1.7.2015 was
withdrawn only on 7.1.2020 in the meeting of Board of Directors of
Accused No.1 - 'India Awake for Transparency', a non-existing
company. In fact the said resolution dated 7.1.2020 was signed by
only one Director. Therefore, the contention of the Accused
No.2/party-in-person cannot be accepted.
77. Though the contentions urged by accused No.2/Party-
in-Person that his role is limited to that of a pure advocate with no
dual role and therefore, the scope of dragging him into these
proceedings is very limited as it can be only in respect of matters
where the advocate can have some direct responsibility as in the
case of suppression or scandalous pleadings; In the present case,
as there was no repeated filing of writ petitions on the same cause
of action, the judgment dated 12th February, 2021 delivered in Writ
Petition No.172/2021 is erroneous since it has been held that the
writ petitions are being filed on the same cause of action; and
When reliefs are different and the main respondent itself is different
in each of the writ petitions, the question of filing writ petition
repeatedly does not arise, the same cannot be accepted, when the
learned Single Judge of this Court at paragraph-27 has specifically
held as under:
"27. Thus, there remains no doubt that petitioner
is indulging in forum shopping on the very same
cause of action. As held in Udyami Evam Khadi
Gramodyog Welfare Sanstha and Another -vs-
State of Uttar Pradesh and Others reported in
(2008)1 SCC 560, this amounts to criminal
contempt as the core issue in all these writ
petitions is one and the same."
The said writ petition was dismissed with cost of Rs.10 lakhs
(Rupees Ten Lakhs). It is also not in dispute that against the said
order passed by the learned Single Judge of this Court, Writ Appeal
No.307/2021 was preferred by India Awake for
Transparency/accused No.1 represented by the said Sri P.
Sadananda/accused No.3, authorized signatory represented by an
advocate, Sri R. Subramanian/accused No.2, and a Co-ordinate
Bench of this Court by the judgment, dated 25th March, 2021 at
paragraph 18 has opined that, in the light of the judgments referred
therein, writ petition is nothing but sheer abuse of process of law.
The appellant therein (respondent No.1 herein) had been
unsuccessful on almost about nine occasions by filing the frivolous
proceedings. Therefore, the learned Single Judge was justified in
imposing the exemplary costs while dismissing the writ petition and
against said order, the writ appeal preferred was also not
maintainable in the light of the judgment of the Hon'ble Supreme
Court in the case of Sarguja Transport Service -vs- State Transport
Appellate Tribunal, M.P. Gwalior and Others reported in (1987)1
SCC 5 and accordingly, it was dismissed. Therefore, the contention
of accused No.2 that, the learned Single Judge erred in holding that
the writ petition is being filed on the same cause of action, cannot
be accepted. However, in the present contempt proceedings,
admittedly, when the orders passed by the learned Single Judge is
confirmed by the Division Bench of this Court and has reached
finality, the contention of accused No.2 that, the subject matter of
writ appeals are before the Hon'ble Supreme Court, cannot be
accepted in the absence of any material produced before this Court.
78. With regard to other contention urged by the Party-in-
Person/accused No.2 with regard to the merits of the orders passed
by the learned Single Judge and Division Bench stated supra, this
Court cannot adjudicate the case on merits except in verifying
whether the proceedings set out are being action of criminal
contempt or not. As already stated supra, all the proceedings
initiated in the name of non-existing company-accused No.1
represented by accused No.3 as authorised signatory, through an
advocate, Sri R. Subramanian/accused No.2, clearly depicts that
the accused persons have abused the process of law. It is the duty
of accused No.2 being an advocate, who is called the Officer of the
Court, to advise accused No.3 properly and ought not to have
supported accused No.3 in filing successive writ petitions against
the complainants and others, even though he has been
unsuccessful in all the matters, when according to him, all the
matters have reached finality before the Co-ordinate Bench of this
Court in writ appeals and original side appeals which are also
subject matters of appeals before the Hon'ble Supreme Court, but
no material is produced before this Court to prove that there is no
interim order passed by the Hon'ble Supreme Court. Therefore, the
contention of accused No.2 that no charge is made out against him
and the entire criminal contempt proceedings are only malafide
proceedings, cannot be accepted.
79. As already stated supra, when the charges framed
against accused Nos.2 and 3 by this Court on 23.12.2021 has
reached finality, the material on record clearly depicts that accused
No.2, being the authorized signatory and an advocate of a non-
existent company-accused No.1-India Awake for Transperancy, has
played dual role between 23.4.2016 and 7.12.2020 by filing
number of frivolous writ petitions, writ appeals, criminal petitions,
original side appeals against complainants and others suppressing
the facts amounting to abuse of process of law and continued the
proceedings; and inspite of dismissal of all the writ petitions filed on
the same cause of action and despite warning and prohibition by
the orders of this Court, still filed several cases and continued the
proceedings and his conduct (accused No.2) is nothing but daring
ride on the Court and mockery of judicial process, not only affecting
the interest of the public at large, but also interfering with the
administration of justice by misusing the forum of various Courts,
wasting precious public judicial time, thereby amounting to criminal
contempt within the meaning of the provisions of Section 2(c) of
the Contempt of Courts Act, 1971 punishable under Section 12 of
the said Act.
80. The material on record clearly depicts that the charge
framed against accused No.3 also proves the fact that he filed
repeated number of frivolous writ petitions, writ appeals, criminal
petitions, original side appeals against the complainants and others
in the name of accused No.1/India Awake for Transparency which is
a non-existing Company amounting to abuse of process of law in
wasting precious public judicial time. Depsite warning and
prohibition by the orders of the Court, he filed several cases and
continued the proceedings and his conduct is nothing, but daring
ride on the Court and mockery of judicial process not only affecting
the interest of public at large, but also interfering with the
administration of justice and by misusing the forum of various
Courts, thereby amounting to criminal contempt within the meaning
of the provisions of Section 2(c) of the Contempt of Courts Act,
1971 punishable under Section 12 of the said Act.
81. The further contention of the party-in-person/accused
No.2 that, no proceedings have been adjudicated on merits and as
such, the question of any further hearing being frivolous does not
arise, cannot be accepted. Admittedly, the orders passed by the
learned Single Judge has been confirmed by a Co-ordinate Bench of
this Court and consequently, the cognizance of criminal contempt
has been taken against accused Nos.2 and 3 by the order dated
6.7.2021 holding that the action of accused Nos.2 and 3 amounts to
criminal contempt and the same has reached finality.
82. The present contempt proceedings is arising out of the
order dated 6.7.2021 passed by the Co-ordinate Bench of this Court
for taking cognizance of the offence of the criminal contempt
committed by the accused persons and to punish them for
commission of acts of criminal contempt. It is also relevant to
mention, at this stage, that inspite of serious contest by accused
Nos.2 and 3, during the course of arguments, the submission made
by the accused that, if the Court comes to the conclusion that,
accused Nos.2 and 3 are found guilty of charges levelled against
them, they would tender unconditional apology and may be
pardoned by dropping the contempt proceedings, cannot be
accepted in the present contempt proceedings. In the entire
synopsis filed by either accused No.2 or learned Counsel for
accused No.3, they have submitted that they would tender
unconditional apology in the form of affidavit. The way in which the
arguments are submitted on behalf of accused Nos.2 and 3 is that,
if this Court comes to the conclusion that accused Nos.2 and 3 are
found guilty of the charges leveled against them, they would tender
unconditional apology, is a fence sitting attitude and clearly depicts
that they are not expressing any remorse. As such, the oral
unconditional apology in the absence of any affidavit cannot be
accepted.
83. It is also the specific contention of the complainants
that the verification of the pleadings by Accused No.3 in all 42
proceedings filed in the name of 'India Awake for Transparency'
against the complainants and others constitute criminal contempt.
Accused No.3 has stated on oath before the criminal court that he
does not know English or Kannada and that he only knows Telugu.
Consequently, it is not possible for him to be acquainted with the
pleadings and the facts and the allegations and contentions raised
in each legal proceeding. In these circumstances, the blind and
mindless participation of Accused No.3 in the number of legal
proceedings, only in order to enable Accused No.2 to file number of
legal proceedings in order to wreak vengeance on the complainants
and others and this itself constitutes criminal contempt as it has
interfered with and obstructed the administration of justice
simultaneously. The same is admitted by Accused No.3 in writ
petition filed by him in W.P. No.3635/2020 stating that - "The
petitioner is only a device being used by Mr. R.Subramanian who as
Managing Director of Subhiksha Trading Services Ltd had dealings
with the 12th Respondent. The Petitioner states that there is nothing
done behind the back as the said Mr. R.Subramanian is a Volunteer
of the Petitioner and is the very person who has filed the Affidavits
at this Hon'ble Court in support of the CA's for recall of merger and
has appeared in the proceedings in various other judicial forums
relating to the matters in this regard being prosecuted by the
Petitioner as Advocate of the Petitioner"
84. It is undisputed fact that the accused persons filed
repeated Writ Petitions, Writ Appeals etc., in the name of non-
existing company - 'India Awake for Transparency' without using
the words 'Private Limited', is nothing but a brazen suppression of
identity and impersonation done only with a view to mislead this
Court (judiciary). Further, 'India Awake for Transparency' had only
four share holders i.e., (i)Analog Financial Services Private Limited,
(ii)Analog Stock Broking Services Private Limited, (iii)Intel Registry
Services Private Limited, and (iv) Lucky View Home Finance Private
Limited. The Madras High Court, by its judgment dated 18.09.2015
passed in Crl.O.P.No.21449/2015, has specifically found that, these
four shareholder companies were established and controlled by
accused No.2-R.Subramanian. The Directors of 'India Awake for
Transparency'-Mr. Rajender Kumar and Mrs. Adiseshan Srimathi are
disqualified to act as Directors and their appointment as Additional
Directors was not regularized in the Annual General Body Meeting
of 'India Awake for Transparency'. It is an undisputed fact that in
every single legal proceeding, R. Subramanian has appeared as an
Advocate. 'India Awake for Transparency' is a mere shell company
as is clear from its last available balance sheet, as it has no income
and negligible expenditure, and does not even possess a bank
account. All these indisputable facts on record make it abundantly
clear that accused No.2-R.Subramanian is the Alter Ego of 'India
Awake for Transparency', that 'India Awake for Transparency' is
only a corporate facade used by accused No.2 and that all the legal
proceedings filed in the name of 'India Awake for Transparency' are
at his behest and instance and are financed and controlled by him,
as he is the 'directing mind' of 'India Awake for Transparency', and
thus continuous and long drawn litigations are at the instance of
Accused Nos.2 and 3, thereby they invited the criminal contempt on
their own acts and deeds.
85. The definition of 'criminal contempt' under the
provisions of Section 2(c) of the Contempt of Courts Act is very
wide and squarely covers all the aforesaid acts committed by
Accused Nos.2 and 3. In view of the above, Accused Nos.2 and 3
have committed criminal contempt as contemplated under the
provisions of Section 2(c) of the Contempt of Courts Act, 1971 and
they are liable to be punished under the provisions of Section 12 of
the Act. Keeping in view the fact that Accused No.2, who is a
practicing Advocate has misused not only the trust of the litigant
entrusted with him, but also has abused the process of the court
and such action not only tends to lower the dignity of the court, but
also lower the prestige of the court in the eyes of the public litigant,
it is desirable to impose maximum sentence awardable under
Section 12 of the Contempt of Courts Act, but having regard to the
totality of the peculiar facts and circumstances of the present case
and in order to provide an opportunity to Accused Nos.2 and 3 to
reform themselves, we are of the considered opinion that accused
Nos.2 and 3 are liable to be convicted for the contempt of Court
punishable under Section 12(1) of the Contempt of Courts Act and
sentence them to undergo Simple Imprisonment for TWO MONTHS
with fine of Rs.2,000/- each, in default to undergo Simple
Imprisonment for a further period of one month.
VIII - CONCLUSION
86. On appreciation of the entire material placed on record
and for the reasons stated above and in the light of the principles
enunciated in the dictums of the Hon'ble Supreme Court stated
supra, we answer the points raised in the present contempt petition
as under:
(i) The 1st point raised is answered in the
affirmative holding that the charge levelled
against Accused Nos.2 and 3 is proved beyond
reasonable doubt, thereby the said accused
persons have committed criminal contempt of
court within the meaning of Section 2(c) of the
Contempt of Courts Act, punishable under
Section 12 of the Contempt of Courts Act, in the
facts and circumstances of the case.
(ii) The 2nd point raised is answered in the negative
holding that the Accused Nos.2 and 3 have not
made out a case to drop the criminal contempt
proceedings and discharge them, in the facts and
circumstances of the case.
IX - RESULT
87. In view of the above, we pass the following order:
(i) The criminal contempt petition is allowed.
(ii) Accused No.2 - Mr. R. Subramanian and Accused
No.3 - Mr. P. Sadanand, are hereby convicted for
the contempt of Court, punishable under the
provisions of Section 12(1) of the Contempt of
Courts Act and sentence them to undergo Simple
Imprisonment for TWO MONTHS with fine of
Rs.2,000/- (Rupees two thousand only) each, in
default to undergo Simple Imprisonment for a
further period of one month.
(iii) The Accused Nos.2 and 3 are hereby restrained
from initiating any legal proceedings against the
Complainants and their group of companies
before any Court, Tribunal, Authority or forum.
(iv) The Registrar (Judicial) of this Court is directed to
prepare a warrant of commitment and detention
in respect of Accused No.2 and Accused No.3 in
Form No.3 as contemplated under Rule 16(1) of
the High Court of Karnataka (Contempt of Court
Proceedings) Rules, 1981 and take further action
against the Accused Nos.2 and 3 to undergo
punishment imposed.
Sd/-
JUDGE
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JUDGE
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