21

IN THE COURT OF MS. SHIVANGI MANGLA, MM (N.I. ACT)

NORTHWEST DIGITAL COURT -02, ROHINI COURT’S, NEW
DELHI
C.C. N.I Act. No. 1843 OF 2022

IN THE MATTER OF :-
RAJNI ……COMPLAINANT
VS.
SUMIT BAINSLA …. ACCUSED
U/s. 138 of N.I Act
D.O.H : 26.05.2023
INDEX
S. Particulars Court Page
No. Fees No.
01 APPLICATION ON BEHALF OF APPLICANT Rs. 2/- 01-03
/ACCUSED UNDER SECTION 145 (2) OF N.
I. ACT. SEEKING PERMISSION TO CROSS
EXAMINE THE COMPLAINANT

02 APPLICATION ON BEHALF OF APPLICANT Rs. 2/- 04-20

/ACCUSED FOR COMPOUNDING OFFENCE

Delhi Applicant/Accused
Date: 22.05.2023 Through

VIKRANT BHARDWAJ
(Advocates)
Office at : Civil Bar Room No.3,
Civil Wing, Tis Hazari Courts
Delhi – 110054
Cell No. +91-9911132259
 1

IN THE COURT OF MS. SHIVANGI MANGLA, MM (N.I. ACT)

NORTHWEST DIGITAL COURT -02, ROHINI COURT’S, NEW
DELHI
C.C. N.I Act. No. 1843 OF 2022

IN THE MATTER OF :-
RAJNI ……COMPLAINANT
VS.
SUMIT BAINSLA …. ACCUSED
U/s. 138 of N.I Act
D.O.H : 26.05.2023
APPLICATION ON BEHALF OF APPLICANT /ACCUSED UNDER
SECTION 145 (2) OF N. I. ACT. SEEKING PERMISSION TO
CROSS EXAMINE THE COMPLAINANT

MOST RESPECTFULLY SHOWETH:

1. The above-mentioned complaint case is pending for trial before this

Hon’ble Court and is fixed for 26.05.2023 for purpose fixed.

2. That the complainant of the above-noted case has given evidence by

way of affidavit i.e. examination in chief. Hence the cross-
examination of the complainant is very much necessary for a just
decision in case.

3. That the applicant/ accused has a tenable defence in his favor in the
present case as mentioned herein and the present case is the false and
frivolous case filed by the complainant against the applicant/accused
for harassment and to create pressure upon applicant/ accused on the
bases of cheque which were never issued by accused for the purpose
mentioned in the complaint.

4. That the present complainant is not maintainable against the

applicant / accused as per law. That the real fact is this, that the
complainant is the greedy lady and for full-fill her desire the
 2

complainant show her interest to investing her money in digital

marketing through applicant. It is also submitted that the return of
said investment is based upon market condition. It is also submitted
that after investment in digital market the entire market of digital
marketing was fall down due to RBI guideline. It is also submitted
that the complainant is the friend of applicant’s friend hence the
applicant issued security cheque to her for return the amount to the
complainant if any profit received from her investment, but the said
cheque is misused by the complainant against the applicant in the
present complaint.

5. That the present complaint is also not maintainable against the

applicant. It is also submitted that the complainant supress the
material facts before this Hon’ble Court. It is also submitted that the
complainant received entire amount from the applicant through bank
transfer/Paytm. It is also submitted that the complainant received
amount from applicant on following dated:
24/08/2021 - Rs. 4,000/- Transfer to her bank account.
26/08/2021 - Rs. 4,000/- Transfer to her bank account.
06/10/2021 - Rs. 10,000/- Transfer to her bank account.
20/11/2021 - Rs. 60,000/- Transfer to her bank account.
22/12/2021 - Rs. 60,000/- Transfer to her bank account.
07/02/2022 - Rs. 60,000/- Transfer to her bank account by Paytm
03/11/2022 - Rs. 2,00,000/- Transfer to her bank account
25/03/2023 - Rs. 2,000/- Transfer to her bank account by Paytm
------------------------------------------------------------------------------------------
Total Rs. 4,00,000/- Transfer to Complainants account.

It is also submitted that the present complaint filed on 17/06/22 and

prior to filing the present complaint the complainant received sum
of Rs. 1,98,000/- from the complainant and the same facts was
supress by the complainant from this Hon’ble Court. Copy of bank
statement also filed on 03/05/2023.
 3

6. That the applicant/ accused disclosed almost all the real facts before
this Hon’ble court on 25/03/2023 and 03/04/2023 and also filed his
bank statement, whereas the applicant/accused submitted that the
entire amount were paid to the complainant and the same facts also
reflect in the bank statement filed by the applicant/accused on
03/04/2023. It is also submitted that the complainant suppressed the
material facts that prior to filing the present complaint, the
complainant received almost half of the cheque amount from the
accused.

7. That the complainant filed a false and frivolous case against the
present applicant/ accused and the applicant/ accused presently has
no liability to pay any amount either the present cheque or other
cheques misused by the complainant.

8. That the applicant/ accused has various issues in his favor which
were never disclosed by the accused at the present time and the same
was disclosed by the applicant/ accused at the time of cross-
examination of the complainant.

PRAYER:-
It is, therefore, most respectfully prayed that the application Under Section
145(2) of N. I. Act may kindly be allowed for the cross-examination of the
complainant, in the interest of justice.
It is prayed accordingly.
Delhi Applicant/Accused

Date: 13.05.2023 Through

VIKRANT BHARDWAJ
(Advocates)
Office at : Civil Bar Room No.3,
Civil Wing, Tis Hazari Courts
Delhi – 110054
Cell No. +91-9911132259
 4

IN THE COURT OF MS. SHIVANGI MANGLA, MM (N.I. ACT)

NORTHWEST DIGITAL COURT -02, ROHINI COURT’S, NEW
DELHI
C.C. N.I Act. No. 1843 OF 2022

IN THE MATTER OF :-
RAJNI ……COMPLAINANT
VS.
SUMIT BAINSLA …. ACCUSED
U/s. 138 of N.I Act
D.O.H : 26.05.2023

APPLICATION ON BEHALF OF APPLICANT /ACCUSED FOR

COMPOUNDING OFFENCE

MOST RESPECTFULLY SHOWETH:

1. The above-mentioned complaint case is pending for trial before this

Hon’ble Court and is fixed for 26.05.2023 for purpose fixed.

2. That the applicant/accused is a law-abiding citizen of India and

heaving deep root in our society and also belong to a reputed family.

3. That the offence of U/s. 138 of N. I. Act. is compoundable as per

apex court Judgement “Damodar S. Prabhu Versus Sayed Babalal
H.” hence the applicant filed the present application on the basis of
following ground.

i. That the complaint received entire amount from the applicant

as per apex court judgement.
ii. That the complainant not come before this Hon’ble Court with
clean hand.
 5

iii. That the complainant supresses the material facts before this
Hon’ble Court for taking the benefit on the basis of wrong
facts. That the applicant relied upon the following
judgements:

A. That the impugned summoning order is liable to be set-aside in

view of the fact that the complainant has filed the complaint by
twisting the facts and by making the false statement which is not
permissible under the law.

B. That the impugned order is liable to be set-aside in view of the fact

that the complainant has not approached the Hon’ble Court with
clean hands and has concealed the true and correct fact of receipt
of amount from the applicant, which was received by him prior to
the filing of the complaint case before the Hon’ble Court. It is
submitted that in a judgement passed by Hon’ble Supreme Court
held that “It is often seen that petitioners file Writ Petitions in the
High Court but do not come with clean hands and suppress
material facts in their Petition. The Courts have univocally held
that suppression of material facts & not coming with clean hands
disentitles the petitioners of discretionary relief under Article
226/227 of the Constitution. The doctrine is often stated as those
seeking Equity must do Equity or Equity must come with Clean
Hands.”

C. It is settled law that a person who approaches the Court for granting
relief, equitable or otherwise, is under a solemn obligation to
candidly & correctly disclose all the material/important facts
which have bearing on the adjudication of the issues raised in the
case. He/she owes a duty to the court to bring out all the facts and
desist from concealing/suppressing any material fact within his
knowledge or which he could have known by exercising due
diligence expected of a person of ordinary prudence.

D. If a petitioner / appellant / applicant / complainant is found guilty

of concealment of material facts or making an attempt to pollute
the pure stream of justice, the court not only has the right but a
duty to summarily deny relief to such person to prevent an abuse
of the process of law and reject the Petition / Appeal / complaint
on this ground alone without going to the merits of the case. The
Apex Court has repeatedly invoked and applied the rule that a
 6

person who does not disclose all material facts has no right to be
heard on the merits of his grievance:

✓ State of Haryana v. Karnal Distillery Co. Ltd. (1977) 2 SCC

431.

✓ Vijay Kumar Kathuria v. State of Haryana (1983) 3 SCC 333.

✓ S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead)

by LRs. and others (1994) 1 SCC 1.

✓ Agricultural and Processed Food Products v. Oswal Agro

Furane and others (1996) 4 SCC 297.

✓ Union of India and others v. Muneesh Suneja (2001) 3 SCC 92.

✓ Sunil Poddar and others v. Union Bank of India (2008) 2 SCC

326.

✓ G. Jayshree and others v. Bhagwandas S. Patel and others

(2009) 3 SCC 141.

E. It is relevant that the Apex Court in Dalip Singh v. State of

U.P. (2010) 2 SCC 114 condemned the practice of misrepresentation
of facts and suppression of material facts & observed as under:

“For many centuries, Indian society cherished two basic

values of life i.e., Satya (truth) and `Ahimsa' (non-violence).
Mahavir, Gautam Buddha and Mahatma Gandhi guided the
people to ingrain these values in their daily life. Truth constituted
an integral part of justice delivery system which was in vogue in
pre-independence era and the people used to feel proud to tell truth
in the courts irrespective of the consequences.”

“However, post-independence period has seen drastic

changes in our value system. The materialism has over-shadowed
the old ethos and the quest for personal gain has become so intense
that those involved in litigation do not hesitate to take shelter of
falsehood, misrepresentation and suppression of facts in the court
proceedings. In last 40 years, a new creed of litigants has cropped
up.”

“Those who belong to this creed do not have any respect

for truth. They shamelessly resort to falsehood and unethical
 7

means for achieving their goals. In order to meet the challenge

posed by this new creed of litigants, the courts have, from time to
time, evolved new rules and it is now well established that a
litigant, who attempts to pollute the stream of justice or who
touches the pure fountain of justice with tainted hands, is not
entitled to any relief, interim or final.”

F. The Apex Court in Hari Narain v. Badri Das in AIR 1963 SC 1558,
this Court adverted to the aforesaid rule and revoked the leave granted
to the appellant by making the following observations: “It is of utmost
importance that in making material statements and setting forth
grounds in applications for special leave made under Article 136 of
the Constitution, care must be taken not to make any statements which
are inaccurate, untrue and misleading. In dealing with applications
for special leave, the Court naturally takes statements of fact and
grounds of fact contained in the petitions at their face value and it
would be unfair to betray the confidence of the Court by making
statements which are untrue and misleading.” “Thus, if at the hearing
of the appeal the Supreme Court is satisfied that the material
statements made by the appellant in his application for special leave
are inaccurate and misleading, and the respondent is entitled to
contend that the appellant may have obtained special leave from the
Supreme Court on the strength of what he characterizes as
misrepresentations of facts contained in the petition for special leave,
the Supreme Court may come to the conclusion that in such a case
special leave granted to the appellant ought to be revoked.”

G. In the case of G. Narayana Swamy Reddy and others v. Governor

of Karnataka and other AIR 1991 SC 1726, the Court denied relief
to the appellant who had concealed the material facts. While
dismissing the special leave petition, the Court observed thus:

“Curiously enough, there is no reference in the Special Leave

Petitions to any of the stay orders and we came to know about these
orders only when the respondents appeared in response to the notice
and filed their counter affidavit. In our view, the said interim orders
have a direct bearing on the question raised and the non-disclosure of
the same certainly amounts to suppression of material facts.”

“On this ground alone, the Special Leave Petitions are liable to be
rejected. It is well settled in law that the relief under Article 136 of the
Constitution is discretionary and a petitioner who approaches this
Court for such relief must come with frank and full disclosure of facts.
If he fails to do so and suppresses material facts, his application is
 8

liable to be dismissed. We accordingly dismiss the Special Leave

Petitions.”

H. In the case of Amar Singh v. Union of India (2011) 7 SCC 69, the
Apex Court while dealing with the said controversy held thus:
“57. In one of the most celebrated cases upholding this principle,
in the Court of Appeal in R. v. Kensington Income Tax
Commissioner{1917 (1) K.B. 486} Lord Justice Scrutton formulated
as under: and it has been for many years the rule of the Court, and
one which it is of the greatest importance to maintain, that when an
applicant comes to the Court to obtain relief on an ex parte statement
he should make a full and fair disclosure of all the material facts-
facts, now law.”

“He must not misstate the law if he can help it - the court is
supposed to know the law. But it knows nothing about the facts, and
the applicant must state fully and fairly the facts, and the penalty by
which the Court enforces that obligation is that if it finds out that the
facts have been fully and fairly stated to it, the Court will set aside any
action which it has taken on the faith of the imperfect statement.”

“58. It is one of the fundamental principles of jurisprudence that

litigants must observe total clarity and candour in their pleadings and
especially when it contains a prayer for injunction. A prayer for
injunction, which is an equitable remedy, must be governed by
principles of uberrima fide.”

I. It is apposite to refer to the Apex Court in K.D. Sharma v.

SAIL (2008) 12 SCC 481, wherein the Apex Court observed thus:

“24. The jurisdiction of the Supreme Court under Article 32 and

of the High Court under Article 226 of the Constitution is
extraordinary, equitable and discretionary. Prerogative writs
mentioned therein are issued for doing substantial justice. It is,
therefore, of utmost necessity that the petitioner approaching the Writ
Court must come with clean hands, put forward all the facts before the
Court without concealing or suppressing anything and seek an
appropriate relief. If there is no candid disclosure of relevant and
material facts or the petitioner is guilty of misleading the Court, his
petition may be dismissed at the threshold without considering the
merits of the claim. .......”

“26. A prerogative remedy is not a matter of course. While

exercising extraordinary power a Writ Court would certainly bear in
 9

mind the conduct of the party who invokes the jurisdiction of the
Court. If the applicant makes a false statement or suppresses material
fact or attempts to mislead the Court, the Court may dismiss the action
on that ground alone and may refuse to enter into the merits of the
case by stating:

We will not listen to your application because of what you have

done. The rule has been evolved in larger public interest to deter
unscrupulous litigants from abusing the process of Court by deceiving
it.”

“28. The above principles have been accepted in our legal system
also. As per settled law, the party who invokes the extraordinary
jurisdiction of this Court under Article 32 or of a High Court under
Article 226 of the Constitution is supposed to be truthful, frank and
open. He must disclose all material facts without any reservation even
if they are against him. He cannot be allowed to play `hide and seek'
or to `pick and choose' the facts he likes to disclose and to suppress
(keep back) or not to disclose (conceal) other facts. The very basis of
the writ jurisdiction rests in disclosure of true and complete (correct)
facts. If material facts are suppressed or distorted, the very
functioning of Writ Courts and exercise would become impossible.
The petitioner must disclose all the facts having a bearing on the relief
sought without any qualification. This is because, the Court knows law
but not facts.”

J. It is pertinent to refer to Tilok Chand H.B. Motichand 1969 1 SCC

110 & A Shanmugam v. Ariya Kshatriya Rajakula Vamsathu
Madalaya Nandhavana Paripalanai Sangam (2012) 6 SCC 430
have held that person seeking equity must do equity. It is not just the
clean hands, but also clean mind, clean heart and clean objective that
are the equitable fundamentals of judicious litigation. The legal
maxim jure naturae aequum est neminem cum alterius detrimento
et injuria fieri locupletiorem, which means that it is a law of nature
that one should not be enriched by the loss or injury to another, is
the percept for Courts.

K. Wide jurisdiction of the court should not become a source of abuse of

the process of law by the disgruntled litigant. Careful exercise is also
necessary to ensure that the litigation is genuine, not motivated by
extraneous considerations and imposes an obligation upon the litigant
to disclose the true facts and approach the court with clean hands. No
litigant can play hide and seek with the courts or adopt pick and choose
True facts ought to be disclosed as the Court knows law, but not facts.
 10

L. One, who does not come with candid facts and clean breast cannot
hold a writ of the court with soiled hands. Suppression or concealment
of material facts is impermissible to a litigant or even as a technique
of advocacy. In such cases, the Court is duty bound to discharge rule
nisi and such applicant is required to be dealt with for contempt of
court for abusing the process of the court.

M. In Ram Saran vs. IG of Police, CRPF and others, 2006) 2 SCC 541,
the Apex Court observed thus:

“A person who seeks equity must come with clean hands. He, who
comes to the court with false claims, cannot plead equity nor would
the court be justified to exercise equity jurisdiction in his favour. A
person who seeks equity must act in a fair and equitable manner.
...............”

N. In Ram Preeti Yadav Vs. U.P. Board of High School and

Intermediate Education and others, 2003 (Suppl.) 3 SCR 352, it
was reiterated after referring to various earlier decisions of the Apex
Court that fraud, misrepresentation and concealment of material fact
vitiates all solemn acts In Rajabhai Abdul Rehman Munshi Vs.
Vasudev Dhanjibhai Mody, AIR 1964 SC 345, it was held that if
there appears on the part of a person, who has approached the Court,
any attempt to overreach or mislead the Court by false or untrue
statements or by withholding true information which would have a
bearing on the question of exercise of the discretion, the Court would
be justified in refusing to exercise the discretion.

O. It would be trite to refer to the case of Ramjas Foundation v. Union

of India & others (2010) 14 SCC 38 wherein the Apex Court has
removed the misconception that these principles are only applicable
to Writs & SLP’s before the Apex Court & the High Courts. The
Phrase but also to the cases instituted in others courts and judicial
forums in the said judgment specifically lays down that the principle
that it is obligatory for a petitioner/appellant/applicant to approach any
court or judicial forum with clean hands or face the ire of the
courts/judicial forums who will not hesitate in applying the Doctrine
of Clean Hands and rejecting his appeal/revision. Thus statement of
untrue & misleading facts in the petition/appeal not only before the
High Court & Apex Court but also before the District Courts, ITAT
or CESTAT could entail rejection of the petition/appeal on this ground
alone.
 11

P. The Apex Court, in this case, propounding this principle observed as

under:

“The principle that a person who does not come to the Court with
clean hands is not entitled to be heard on the merits of his grievance
and, in any case, such person is not entitled to any relief is applicable
not only to the petitions filed under Articles 32, 226 and 136 of the
Constitution but also to the cases instituted in others courts and
judicial forums.”

Q. The object underlying the principle is that every Court is not only
entitled but is duty bound to protect itself from unscrupulous litigants
who do not have any respect for truth and who try to pollute the stream
of justice by resorting to falsehood or by making misstatement or by
suppressing facts which have bearing on adjudication of the issue(s)
arising in the case.
R. It would be pertinent to refer to the case of Avenue Realities and
Developers Private Limited vs. Appropriate Authority of IT
Department (2012) 80 CCH 0124 wherein the Delhi High Court
while dismissing the Writ Petition held as under:
Writ jurisdiction is discretionary. It is an equitable jurisdiction
meant to do justice to the parties and remedy to injustice suffered by
the petitioner at the hands of the Government/State. Concealment of
material facts can disentitle a petitioner from seeking relief under a
discretionary remedy. The petitioner must come to the Court with
clean hands and state truly and correctly the material facts. The present
case is clearly one where the petitioner has failed and has not stated
the material fact that they, i.e., the petitioner and the respondent Nos.
3 and 4 had received the full apparent sale consideration.

S. The High Court of Karnataka in Ratnachudamani S. Utnal vs.

Income Tax Officer (2004) 269 ITR 272 dismissed the Writ as the
Petitioner had not approached the Court with clean hands & held thus:

Further, it is significant to note here itself that, the petitioner

himself has appeared before the assessing authority on 16th Aug.,
2000 and stated that : I have converted the lands into NA and paid Rs.
1,21,410 as development charges and Rs. 2,00,000 as cost of land. The
cost of land was paid to above two persons in 1987. I sold so far 56
plots from 1984 to 1996. But, this aspect of the matter has not at all
whispered by the petitioner in the present writ petitions. The petitioner
has intentionally and deliberately suppressed the material facts. If the
petitioner wants any relief at the hands of this Court, he has to
approach the Court with clean hands and it is duty cast on the
 12

petitioner to state the true facts and make out a case, as rightly pointed
out by the learned senior standing counsel for the respondent.
Therefore, the writ petitions are liable to be dismissed on the ground
of suppression of material facts.

T. The Karnataka High Court in the case of Commissioner of Income

Tax vs. Electronic Research Ltd. & Anr. (2003) 262 ITR 361 while
dismissing the Writ Petition of the assesse vehemently criticized the
conduct of the assesse in not approaching the Court with clean hands
& held thus:
It is rather unfortunate that the Tribunal has not focused the after
effect of fraudulent pleas and fraudulent acts by litigants while passing
the impugned order. I must also point out at this stage that the wheels
of justice can move only on true facts. Any mischief including a fraud
on the Tribunal would result in derailing the wheels of justice. Justice
is based on truth and truth cannot be trampled by an act of fraud.

A litigant has to come to the Court with clean hands and an

unclean hand has to be shown the door by a Court and not an entry
to the Court. Such entries to such persons would pollute the true
atmosphere of a temple of justice. All these necessary material
unfortunately is not considered by the Tribunal, while rejecting the
petition.

U. The High Court of Kerala in Hajee P. Hussain Khan vs.

Agricultural Income-Tax Officer & Ors. (2000) 241 ITR 308 has
held thus:

Thus there is a clear case of material suppression of facts and lack

of bona fides in coming to the Court without disclosing them. The
jurisdiction under article 226 of the Constitution of India cannot be
invoked in favour of a person who has not come to this Court with
clean hands.

V. In Marappa Gounder vs. Central R.T. Board (1956) 1 MLJ 324,

the learned judge of the Madras High Court has held that the Court
shall refuse a writ on the basis of suppression of facts. It was observed
as follows:

It is a well-settled proposition of law that it is the duty of a person

invoking the special writ jurisdiction of a Court to make a full and true
disclosure of all relevant facts. He should not suppress any facts. An
applicant for a writ under article 226 of the Constitution must come in
the manner prescribed and must be perfectly frank and open with the
 13

Court. It he makes a statement which is false or conceals something

which is relevant from the Court the Court will refuse to go into the
matter.

If the Court comes to the conclusion that the affidavit in support of

the application was not candid and did not fully state the facts, but
either suppressed the material facts or stated them in such a way as to
mislead the Court as to the true facts, the Court ought, for its own
protection and a prevent an abuse of its process, to refuse to proceed
any further with the examination of the merits.

The reason for the adoption of this rule is not to arm the applicant’s
opponent with a weapon of technicality against the former, but to
provide an essential safeguard against abuse of the process of the
Court. Where the petitioner is clearly found to have suppressed
material and relevant facts which, if brought to the notice of the Court
when applying for a rule nisi, should certainly have influenced the
Court in deciding one way or the other, and such suppression was
certainly calculated to deceive the Court into granting the order of the
rule nisi, the petition should on that short ground be dismissed.

W. Similarly the Indore Bench of the Madhya Pradesh High Court in Ajit
Kumar Pitaliya vs. Income Tax Officer (2009) 318 ITR 0182
dismissed the appeal of the assessee in limine for failure to come with
clean hands & held as under:
He must come to the Court with clean hands. Accordingly and
in view of foregoing discussion, which alone is sufficient, the appeal
is found to be devoid of any merit. It fails and is dismissed in limine.

X. It would be trite to refer to the Apex Court's Judgment in Prestige

Lights Ltd. v. State Bank of India, (2007) 8SCC 449, wherein the
Court held thus:

The High Court is exercising discretionary and extraordinary

jurisdiction under Article 226 of the Constitution. Over and above, a
Court of Law is also a Court of Equity. It is, therefore, of utmost
necessity that when a party approaches a High Court, he must place
all the facts before the Court without any reservation. If there is
suppression of material facts on the part of the applicant or twisted
facts have been placed before the Court, the Writ Court may refuse to
entertain the petition and dismiss it without entering into merits of the
matter......
 14

Y. The said observation was quoted with approval by one of us

in Arunima Baruah v. Union of India (UOI) and Ors., (2007) 6
SCC 120, wherein the question which was raised was:

How far and to what extent suppression of fact by way of non-

disclosure would affect a person's right of access to justice is the
question involved in this appeal.......

The Court further held thus: It is trite law that so as to enable

the court to refuse to exercise its discretionary jurisdiction suppression
must be of material fact. What would be a material fact, suppression
whereof would disentitle the appellant to obtain a discretionary relief,
would depend upon the facts and circumstances of each case. Material
fact would mean material for the purpose of determination of the lis,
the logical corollary whereof would be that whether the same was
material for grant or denial of the relief. If the fact suppressed is not
material for determination of the lis between the parties, the court may
not refuse to exercise its discretionary jurisdiction. It is also trite that
a person invoking the discretionary jurisdiction of the court cannot be
allowed to approach it with a pair of dirty hands. But even if the said
dirt is removed and the hands become clean, whether the relief would
still be denied is the question.

Z. In S.J.S. Business Enterprises (P) Ltd. AIR 2004 SC 2421 the Apex
Court held thus:

As a general rule, suppression of a material fact by a litigant

disqualifies such litigant from obtaining any relief. This rule has been
evolved out of the need of the Courts to deter a litigant from abusing
the process of Court by deceiving it. But the suppressed fact must be
a material one in the sense that had it not been suppressed it would
have had an effect on the merits of the case. It must be a matter which
was material for the consideration of the Court, whatever view the
Court may have taken.

AA. It would be trite to refer to G.M. Haryana Roadways (2008) 4 SCC

127, a Special Leave Petition was filed which was barred by time.
Reinstatement and regularization of service was not brought to the
notice of the Court. The petition was dismissed by observing as
under:-
12. ......Suppression of material fact is viewed seriously by the
Superior Courts exercising their discretionary jurisdiction. In S.J.S.
Business Enterprises (P) Ltd. v. State of Bihar and Ors. AIR 2004 SC
2421 this Court on suppression of fact held thus: As a general rule,
 15

suppression of a material fact by a litigant disqualifies such litigant

from obtaining any relief. This rule has been evolved out of the need
of the Courts to deter a litigant from abusing the process of Court by
deceiving it. But the suppressed fact must be a material one in the
sense that had it not bean suppressed it would have had an effect on
the merits of the case.

It is thus no more Res Integra that the Doctrine of Clean Hands

& non suppression of material facts is applicable with full force to
every Proceedings before any Judicial Forum and therefore it is
obligatory on the Petitioner/Appellant/Revisionist to stringently state
the true & complete material facts of the case so that no allegation of
falsehood or suppression of facts is made and the
Petition/Appeal/Revision is not rejected at the first instance itself on
this ground alone.
Wilful concealment of facts from court punishable offence: HC
The High Court (HC) of Jammu & Kashmir and Ladakh held that any
wilful concealment of material facts from court can attract the punishment
of imprisonment for a term, which may extend to one year.
The court said this in an appeal filed by one, Mohammad Rafiq
Ganie, who had challenged the judgment and decree passed by Principal
District Judge, Anantnag on April 04 and 05, 2016.

The appellant was sentenced to one year imprisonment in terms of

Rule 16 of Order XX1 (A) CPC which was then applicable in the
erstwhile state of J&K, for concealing the material facts with regard to the
property which had been inherited by him from his father.

It was stated before the court that the appellant had an account in
the J&K Bank Branch Jablipora and another account maintained in the
name of his daughter, which had not been reflected in the schedule of
property filed by the appellant.

It was further stated before the court that the appellant is a

judgment debtor against whom a decree for an amount of Rs. 4,52,677
with interest @ 9 percent was allowed.

The court of Justice Thakur after perusing the material on record

noted that it can be seen that there was in fact a clear attempt made by the
appellant to conceal material facts from the court with a view to avoid the
judgment and decree passed against the appellant.
 16

Justice Thakur recorded that it is not denied that the appeal

preferred against the judgment and decree too was dismissed in which the
appellant had not at all raised the issue of insolvency.

"While it may be open to a judgment debtor, who has been

arrested or imprisoned in execution of a decree for money, to claim
that he be declared insolvent, it is incumbent upon such a judgment
debtor to ensure that there is no concealment in regard to the
property which belongs to him whether actually in his possession
or the property which is expected to inherit or is held for him in
trust," the court said.

It recorded that any such willful concealment would certainly

attract the punishment of imprisonment for a term, which may extend to
one year.

In the present case, Justice Thakur said, there is sufficient material

on record to suggest that the appellant had in fact concealed material facts
with regard to the property and assets owned by him with a view to
somehow defeat the execution of the decree obtained by the decree holder.

The court also pointed out that the appellant had concealed his
account number and falsely stated that he was living like a destitute since
2008.
"However, on the issue of sentence, in my opinion, while the court
did have the power to sentence the appellant for a term of one year, in the
facts and circumstances of the case, I deem it appropriate to reduce the
sentence to a period of three months," Judge Thakur recorded.

However, the court said, in case the entire decretal amount is

liquidated by the appellant within one month from today, the sentence
shall be further reduced to one month instead of three months.

It is a settled principle that the petitioners while filing the Writ Petitions must
come to the court with clean hands and no material facts should be concealed. In
a recent judgment of Kerala High Court in Pottakalathil Ramakrishnan v.
Thahsildar, Tirur and Ors.[ WA NO. 1513 OF 2020], the Division Bench
addressed the effects of approaching the court with unclean hands. While
addressing the issue, the High court considered the following Supreme Court
decisions:
One of the most celebrated cases upholding the principle of clean hands is R. v.
Kensington Income Tax Commissioner [1917 (1) K.B. 486], it was observed
that applicant should make full and fair disclosure of all the material facts. The
court is supposed to know the law but it knows nothing about the facts, and the
 17

applicant must state fully and fairly the facts, and the penalty by which the Court
enforces that obligation is that if it finds out that the facts have not been fully
and fairly stated to it, the Court will set aside any action which it has taken on
the faith of the imperfect statement.
In Arunima Baruah v. Union of India[(2007) 6 SCC 120] the Supreme court
held that it is trite law that to enable the court to refuse to exercise its
discretionary jurisdiction suppression must be of material fact. Material fact
would mean material for the purpose of determination of the lis. It was further
held that it is also a trite that a person invoking the discretionary jurisdiction of
the court cannot be allowed to approach it with a pair of dirty hands.

The Supreme Court in the same year in Prestige Lights Ltd., v. State
Bank of India [(2007) 8 SCC 449] held that if the applicant does not disclose
full facts or suppresses relevant materials or is otherwise guilty of is leading the
Court, the Court may dismiss the action without adjudicating the matter. The
very foundation of the writ jurisdiction rests in disclosure of true, complete and
correct facts. If the material facts are not candidly stated or are suppressed or
are distorted, the very functioning of the writ courts would become impossible.

The Supreme Court in Udyami Evam Khadi Gramodyog Welfare

Sanstha and another v. State of Uttar Pradesh [(2008) 1 SCC 560], held that
a writ remedy is an equitable one. Any person approaching a superior court must
come with a pair of clean hands. It neither should suppress any material fact,
but nor take recourse to the legal proceedings over and over again which
amounts to abuse of the process of law.

In K.D. Sharma v Steel Authoriy of India ltd & ors. [(2008) 12 SCC
481], the Supreme court held that no litigant can play “hide and seek” with the
courts or adopt “pick and choose”. To hold a writ of the court one should come
with candid facts and clean breast. Suppression or concealment of material facts
is forbidden to a litigant or even as a technique of advocacy. In such cases, the
Court is duty bound to discharge rule nisi and such applicant is required to be
dealt with for contempt of court for abusing the process of the court.

Further in Dalip Singh v State of U.P. [(2010) 2 SCC 114], the Supreme
court observed that who come with “unclean hands” and are not entitled to be
heard on the merits of their case. The post-independence period has seen drastic
changes as litigants do not hesitate to take shelter of falsehood, misrepresentation
and suppression of facts in the court proceedings. To face the challenge posed
by this new creed of litigants, the courts have, from time to time, evolved new
rules and it is now well settled that a litigant, who attempts to pollute the stream
of justice or who touches the pure fountain of justice with tainted hands, is not
entitled to any relief, interim or final.
 18

In the case of Amar Singh v Union of India and others, [(2010) 2 SCC
114], the Apex Court held that Courts have, over the centuries, frowned upon
litigants who, with intent to deceive and mislead the courts, initiated proceedings
without full disclosure of facts. Courts held that such litigants have come with
“unclean hands” and are not entitled to be heard on the merits of their case.

In Kishore Samrite v. State of U.P. & Others [(2013) 2 SCC 398], the
Apex Court held that the party not approaching the court with clean hands would
be liable to be non-suited and such party, who has also succeeded in polluting
the stream of justice by making patently false statements, cannot claim relief
specifically under Art. 136 of the Constitution. The person seeking equity must
do equity. It is not just the clean hands, but also clean mind, clean heart and clean
objective that are the equi-fundamentals of judicious litigation.

The High Court dismissing the writ appeal held that the honesty, fairness, purity
of mind and approaching the writ court with clean hands should be of the highest
order and is a sine qua non to maintain a writ petition and secure orders, failing
which the litigant should be shown the exit door at the earliest point of time. If
the tendency of the litigant to suppress material aspects if not eradicated, the
resultant quotient would be lack of faith of the citizens in the legal system and
the courts of law, and if that is allowed to happen, it would ruin the basic tenets
of the democratic system and the rule of law prevailing in this country.

4. That the complainant filed the false and frivolous complainant case
U/s. 138 of N. I. Act. against the applicant/accused for harassment
and to create pressure upon applicant/ accused for grabbing the
money on the bases of cheque which were never issued by accused
for the purpose mentioned in the complaint. It is also submitted that
the complainant instead off filing her bank statement orally denied
that she already received entire amount from applicant.

5. That the present complaint is also not maintainable against the

applicant. It is also submitted that the complainant supresses the
material facts before this Hon’ble Court. It is also submitted that the
complainant received entire amount from the applicant through bank
 19

transfer/Paytm. It is also submitted that the complainant received

amount from applicant on following dated:
24/08/2021 - Rs. 4,000/- Transfer to her bank account.
26/08/2021 - Rs. 4,000/- Transfer to her bank account.
06/10/2021 - Rs. 10,000/- Transfer to her bank account.
20/11/2021 - Rs. 60,000/- Transfer to her bank account.
22/12/2021 - Rs. 60,000/- Transfer to her bank account.
07/02/2022 - Rs. 60,000/- Transfer to her bank account by Paytm
03/11/2022 - Rs. 2,00,000/- Transfer to her bank account
25/03/2023 - Rs. 2,000/- Transfer to her bank account by Paytm
------------------------------------------------------------------------------------------
Total Rs. 4,00,000/- Transfer to Complainants account.

It is also submitted that the present complaint filed on 17/06/22 and

prior to filing the present complaint the complainant received sum
of Rs. 1,98,000/- from the complainant and the same facts was
supress by the complainant from this Hon’ble Court. Copy of bank
statement also filed on 03/05/2023.

6. That the applicant/ accused disclosed almost all the real facts before
this Hon’ble court on 25/03/2023 and 03/04/2023 and also filed his
bank statement, whereas the applicant/accused submitted that the
entire amount were paid to the complainant and the same facts also
reflect in the bank statement filed by the applicant/accused on
03/04/2023. It is also submitted that the complainant suppressed the
material facts that prior to filing the present complaint, the
complainant received almost half of the cheque amount from the
accused.

7. That the complainant filed a false and frivolous case against the
present applicant/ accused and the applicant/ accused presently has
 20

no liability to pay any amount either the present cheque or other

cheques misused by the complainant.

8. In the above said facts and circumstances the applicant prayed before
this Hon’ble Court, kindly call the bank statement of complainant on
which the complainant received the entire amount from the
applicant.
PRAYER:-
It is, therefore, most respectfully prayed that the offence U/s. 138 Of N. I.
Act. May kindly compound after verifying the payment received by the
complainant.
That the applicant also prayed that, if Court found that the complainant
suppresses the material facts and not come with clean hand before this
Hon’ble Court, kindly take appropriate action against the complainant as
per law.
Or pass any other order which is deem fit and proper in favour of applicant
and against the complainant in the interest of justice.

It is prayed accordingly.

Delhi Applicant/Accused

Date: 22.05.2023 Through

VIKRANT BHARDWAJ
(Advocates)
Office at : Civil Bar Room No.3,
Civil Wing, Tis Hazari Courts
Delhi – 110054
Cell No. +91-9911132259