Sm. Basanti Devi Paul vs Kamal Kr. Paul

A.N. Ray, J.—On January 6, 1960 I appointed Mr. B.K. Chakravarty, Barrister-at-Law and Mr. B.K. Bachawat, Barrister-at-Law, as interim Joint Receivers in this suit over books of account, documents and papers relating to the estate of Sir Hari Shankar Paul at 92, Sovabazar Street, Calcutta. I further ordered that the Joint Receivers were to act on a copy of the order countersigned by the Court Officer. The notice of motion was returnable uan the following Monday January 11, 1960.

On January 7, 1960, Mr. Ghose, counsel for the Defendants mentioned the matter in the presence of Mr. S. Roy and Mr. S. Mukherji, Counsel for the Plaintiff. After hearing counsel for both parties I passed the following order:

Let the Joint Receivers initial and keep the books of account in a separate almirah to be provided for by Mr. Kamal Krishna Paul at 92, Sovabazar Street. Receivers will be at liberty to take possession of the books of accounts at 5 o'' clock.

On January 14, 1960, the matter was again mentioned by Mr. Somnath Chatterji, Counsel for the Defendants and an order was made allowing the Defendants inspection of the books of account in the possession of the Joint Receivers and the Defendant No. 1 was further given liberty to receive draft or cheque which might be sent to him as rent and also to receive rents sent by money orders but he was to make over such cheques, drafts and such amounts as might be remitted by money order to his Solicitor Mr. Arun Kumar Roy, who would inform the Plaintiff''s solicitor about the same. Defendant No. 1 was further ordered to make over the counter foils of the rent receipts as also a list of the tenants to the Joint Receivers by the following day, January 15, 1960. The joint Receivers were also permitted to act on a copy of the minutes of the order.

The application came up for hearing on February 3, 1960. There was very little opposition to the application for appointment of Receiver. The only contention was that there had been in the past an order appointing Mr. Monotosh Mukherji as Receiver in certain eventuality and circumstances had not changed much. I thought it fit and proper in a case of this, nature to have two Receivers and that is why I appointed Mr. Chakravarty and Mr. Bachawat as Joint Receivers.

When I appointed the Joint Receivers I asked for a report from them on four points (i) as to the income available, (ii) expenditure that is to be incurred monthly, (iii) the extent of liability, and (iv) how the debt can be liquidated. I directed that the report should be submitted by February 9, 1960 and I indicated that after the report had been submitted by the Joint Receivers the same would be considered by the Court on hearing both parties.

When the report was submitted, counsel for the Plaintiff made several allegations against the Defendant Kamal Krishna Paul that he had flouted the order of injunction and that he had interferred with the Receiver''s right to possession of the property as also possession of income of the estate. In view of such allegations Mr. Banerjee, counsel for the Defendant Kamal Krishna Paul contended that such allegations should, be put on affidavit and his client would answer the same. Directions were given for affidavits to be filed by the parties. Under those circumstances the Plaintiff filed an affidavit affirmed by her on February 13, 1960. The Defendant Kamal Krishna Paul affirmed on February 15, 19660 an affidavit in answer to the Plaintiff''s affidavit. The Plaintiff affirmed another affidavit on February 17, 1960 being an affidavit in reply to the Defendant''s affidavit.

On February 9, 1960 the matter came up before me. The Receiver''s report was placed. The affidavits were also placed. One of the charges was that the Defendant Kamal Krishna Paul had accepted a sum of Rs. 2,800 from the Indian Cable Company on January 27, 1960. Mr. Ray counsel for the Plaintiff, produced a document from the custody of Indian Cable Cd. being voucher No. 200 showing payment of Rs. 2,800 in cash to Kamal Krishna Paul on January 27, 1960. Mr. Banerjee, Counsel for the Defendant was given a copy of the voucher. I directed the-appearance of Kamal Krishna Paul at 2 p.m. for examination on the document in particular.

Kamal Krishna Paul was examined as well as cross-examined on February 19, 1960. His cross-examination was not concluded. Counsel for Kamal Krishna Paul this morning submitted, on behalf of Kamal Krishna Paul, unconditional apology for having accepted the sum of Rs. 2,800 on January 27, 1960 as also for all other allegations made against Kamal Krishna Paul. Counsel for Kamal Krishna Paul further submitted that in view of the fact that Kamal Krishna Paul had taken moneys in advance as and by way of rent from parties orders could be passed to the effect that he should be deprived of his right of maintenance out of the estate for some time to come.

The question now is whether this unconditional apology submitted by the Defendant through his counsel is sufficient to exonerate him from the guilt which he has admittedly committed. Mr. Banerjee did not challenge that. It was established beyond doubt that Kamal Krishna Paul had committed the guilt of disobeying the orders of this Court by having, inter alia, accepted Rs. 2,800 in cash on January 27, 1960 from the Indian Cable Company I do not wish to deal with his evidence by reason of the admission of guilt. Mr. Roy, counsel for the Plaintiff, contended that the admission of guilt was enough to show that the Defendant Kamal Krishna Paul had committed perjury in the sense that on February 19, 1960 he denied having received payment of Rs. 2,800 on January 27, 1960 and he further sought to justify the receipt of money on January 5, 19t''0 which now were admitted by Kamal Krishna Paul to be incorrect and untrue.

Mr. Roy invited my attention to a decision reported in Jai Prakash Beni Pershad v. Ram Sarup R. (1958) P&H. 471. Tek Chand, J., has held there that apology in a case of contempt is intended to be a genuine expression of the sincere regrets of the contemnor, who frankly admits his guilt and expresses his contriteness and seeks forgiveness. An apology which is not a free and frank expression of condemner''s contrition, indicating a penitent attitude as to his guilt is absolutely of no avail, when throughout he was justifying his conduct. In the case of Sub-Judge, First Class, AIR 1940 407 (Nagpur) . Vivian Bose, J., said as follows:

An apology is not a weapon of defence forged to purge the guilt of their offences-It is not an additional insult to be hurled at the heads of those who have been wronged. It is intended to be evidence of real contriteness, the manly consciousness of a wrong done, of an injury inflicted, end the earnest desire to make such reparation as lies in the wrong doors power. Only then it is of any avail in a court of justice.

But before it can have that effect it should be tendered at the earliest possible stage, not the latest, and even if wisdom dawns only at the appellate stage, the apology should be tendered unreservedly and unconditionally before the arguments begin and before the person tendering the apology discovers that he has a weak case and before the Judge (when that happens, as it did here) has indicated the trend of his mind. Unless that is done, not only is the tendered apology robbed of all grace but it ceases to be an apology; it ceases to be the full, frank, manly, confession of a wrong done which it is intended to be.

It becomes instead the cringing of a coward shivering at the prospect of the stern hand of justice about to descend upon his head. It then deserves to be treated with the contempt with which cowards and bullies who do not hesitate to threaten Others and to impugn their honesty and character without the slightest foundation and who cringe and wail when their own safety is at stake, are treated

The observation of Vivian Bose, J., applies to each and every aspect of the present case. The attitude of Kamal Krishna Paul could be described, to borrow the words of Vivian Bose, J., as the cringing of a coward shivering at the prospect of the stern hand of justice.

On Friday when this matter was heard on evidence it was established beyond any doubt as has been admitted by the Defendant''s counsel to-day that he was guilty of disobedience of the order of this Court by having accepted Its. 2,800 in cash on 27th January, 1960. The attitude of Kamal Krishna Paul to my mind is not one of contrition or repentance. He committed act a not bonafide. The apology which is being offered to-day is so done inasmuch as he realises that the guilt is there and the punishment will follow.

In the matter of Barindra Kumar Ghosh (1958) 62 C.W.N. 862 (Special Bench), Mr. Justice Das Gupta said:

The fact that he had tendered an unqualified apology has to be taken into consideration in deciding what punishment we should order for this contempt.

Mr. Justice Mukharji in the same ease said:

The offence of contempt is complete by the attempt and does not depend on actual deflection of justice and purity of motive of the contemnor, Administration of justice in this Court is public and not private. In awarding punishment for contempt, the court always takes into consideration the attitude taken by the contemnor. The court, however, does not consider that apology to be enough by itself.

To my mind it appears that apology tendered almost after the trial is over and the guilt is established is not of that character which is given by a penitent person.

Chief Justice Mahajan observed that there cannot be both justification and an apology. An apology is not a weapon of defence to purge the guilty on their offence; nor is it intended to operate as a universal panacea, but it is intended to be evidence of real contriteness. The apology tendered in the present stage is in the nature of an afterthought and does not amount to free and frank admission. The Defendant Kamal Krishna Paul throughout attempted to justify his conduct and the belated attempt in the words of Mahajan C.J., is in the nature of calculated volte-face, which deserves to be discountenanced.

I am satisfied that the tender of apology is not by itself sufficient to purge the Defendant Kamal Krishna Paul of the guilt he has committed. In my opinion, all that can be done is to take notice of this belated apology only for a limited purpose of the sentence that I propose to pass for him. I am of opinion that a fine of Rs. 500 should be inflicted on him. I, therefore, order him to pay Rs. 500. The fine is to be paid within seven days. If the fine is not paid within seven days this matter should be put up before me for further orders.

There is another aspect emerging out of this matter. On Friday 20, 1960 Kamal Krishna Paul was examined in Court. He was asked by his counsel questions in examination-in-chief on two documents. The first document was the bill No. 1551 dated 5th January, 1980 signed by Kamal Krishna Paul and the second document was voucher No. 200 of the Indian Cable Company Ltd., dated 27th January, 1960 also signed by Kamal Krishna Paul. The witness was asked questions and both the documents were tendered by counsel for the witness. Thereafter cross-examination started. Counsel for the Plaintiff put some questions on the factum of receipt of payment of Rs. 2,800 on 27th January, 1960. Counsel wanted to put questions on the receipt, dated 5th January 1960. The document was missing. For some-time the officers of the court as well as the counsel made searches for the document. The same could not be found. After certain time the court clerk asked for my permission to search the witness. I granted the permission. The court clerk went to search and at the touch by the court clerk the witness produced from his pocket the document which had been missing for certainly over 20 minutes. The witness stated that the document was in his pocket as the interpreter had asked him to keep it there. The interpreter denied that he had asked so. I believe the interpreter and I do not believe the Defendant Kamal Krishna Paul at all that the interpreter ever made such a statement that the witness should keep the document with him. Furthermore, when the search was going on for the document the witness was there in the box all the time and never did he think of bringing out the document if the document had really been kept there by inadvertence. The document in question was one which could be described as severally incriminating as far as Kamal Krishna Paul is concerned. It has now been established that he brought into existence a false document giving a false date namely 5 January 1960 for receipt of Rs. 2,800 when in fact he received the money on the 27th January 1960. In my experience I have not come across such an instance of a document being purloined by a witness while he is under cross-examination. This act I consider to be a clear case of contempt of Court. As far as this act is concerned no apology has been tendered. Mr. Banerjee, counsel for Kamal Krishna Paul stated that it might be due to carelessness of the witness that the document was there but Mr. Banerjee was not present in Court when this incident happened. I do not believe that the witness Kamal Krishna Paul put the document in his pocket out of carelessness. In my opinion for this act of contempt Kamal Krishna Paul deserves to be punished and I inflict a fine of Rs. 500 which I direct him to pay within seven days from this date. If the fine is not paid within seven days the matter should be put up before me for further orders.

(His Lordship gave certain directions for better management of the estate.)