Supreme Court of India
NATIONAL FERTILIZERS LTD.versusTUNCAY ALANKUS & ANR.
- Citation
- 2013 INSC 203
- Decided
- 2 April 2013
- Disposal
- Dismissed
- Bench
- AFTAB ALAM
Holding
The respondent cannot be held guilty of contempt as there was no money in the account at the time of the Supreme Court's order, and the earlier contempt order is recalled.
Summary
National Fertilizers Ltd. (NFL) paid $38 million for urea to a Turkish company, Karsan, but never received the product. The manager of Karsan, Tuncay Alankus, was extradited to India and faced criminal proceedings. The Supreme Court, on 4 September 2006 and again on 14 December 2006, restrained Alankus from withdrawing any money from his Swiss bank account (Pictet & Cie). NFL filed a contempt petition alleging that Alankus withdrew US$10.7 million after those orders. The Court examined the Swiss attachment orders, bank statements and the timeline, finding that the attachment was lifted on 1 June 2006, the account balance became zero on 21 June 2006, and the account was closed on 25 July 2006 – i.e., before the Supreme Court’s restraining order. Consequently, Alankus could not have violated the order, and the earlier finding of contempt dated 1 April 2010 was based on an erroneous premise. The contempt petition was dismissed and the order of contempt recalled.
Issues considered
- The respondent withdrew money from his Swiss bank account after the Supreme Court's restraining order, constituting contempt.
- Whether the burden and standard of proof in contempt proceedings require proof beyond reasonable doubt.
- Whether an order of contempt based on an erroneous factual premise can be recalled.
Legislation cited
- Code of Criminal Procedures. 313
- Constitution of Indias. Art. 129
- Indian Penal Code, 1860s. 1208, s. 409, s. 420
- Prevention of Corruption Act, 1988s. 11, s. 13(1)(c), s. 13(1)(d), s. 13(2), s. 7
- Rules to Regulate Proceedings for Contempt of Supreme Court, 1975s. Rule 3(c)
- Supreme Court Rules, 1966s. Order XLVII
Subjects
contempt of courtSupreme Court orderforeign bank accountattachment orderburden of proofquasi‑criminal proceedingextraditioncorporate fraud
Judgment
[2013) 2 S.C.R. 496
A NATIONAL FERTILIZERS LTD.
v.
TUNCAY ALANKUS & ANR.
(Contempt Petition (Civil) No. 320 of 2009)
IN
B (Criminal Appeal No. 926 of 2006)
APRIL 2, 2013.
[AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ.]
C CONSTITUTION OF IND/A, 1950:
Art. 129 - Contempt petition filed for violation of order of
Supreme Court - Held: Respondent cannot be held guilty of
contempt of court on the definite charge that he withdrew a very
0 large amount from his account in Pictet in violation of the
orders of Supreme Court - The amount had been withdrawn
prior to the order restraining the respondent from withdrawing
the amount from the account in question - Further, the amount
had been withdrawn during the period when there was no
E attachment order in respect of the account - That being the
position, there could be no question of committing any
violation of Court's order by respondent - The order holding
the respondent guilty of contempt is based on an erroneous
premise, and is, therefore, recalled - Supreme Court Rules,
F 1966 - 0. 47 - Rules to Regulate Proceedings for Contempt
of Supreme Court, 1975 - r. 3(c).
On failure of a company in Turkey, of which
respondent no. 1 was the Manager, to supply urea in spite
of the petitioner-company having paid the full price, a
G criminal case was registered in India against a number
of accused including respondent no. 1 (accused No. 11 ).
Respondent no. 1 and another accused were extradited
to India on 3.10.1997. In the SLP filed by the petitioner
before the Supreme Court, it moved an application
H 496
NATIONAL FERTILIZERS LTD. v. TUNCAY ALANKUS 497
&ANR.
requiring respondent no. 1 not to withdraw any portion A
of the defrauded amount lying in foreign jurisdiction. On
4.9.2006, Supreme Court passed an interim order
restraining respondent no. 1 from withdrawing the
amounts from the accounts in Swiss Bank. By order
dated 14.12.2006 the interim order dated 4.9.2006 was B
made ab$olute. On 9.3.2009, the bank concerned
informed that they did not hold any asset on behalf of
respondent no. 1. The instant contempt petition was filed
alleging violation of orders dated 4.9.2006 and 14.12.2006.
By order dated 1.4.2010, the respondent was held guilty c
of contempt of court. The case was directed to be listed
on 12.4.2010 for passing the sentence on the contempt
giving liberty to respondent no. 1 meanwhile to deposit
the amount. However, respondent no. 1 did not deposit
the amount. D
Dismissing the petition, the Court
HELD: 1.1 A careful scrutiny of the material facts
makes it clear that respondent No.1 cannot really be held
guilty of contempt. [para 31) [507-F-G] E
1.2 In the connected proceedings in Switzerland, on
June 19, 1996, the petitioner was able to obtain a criminal
attachment order against the three accounts in Pictet,
including account No.91925 in the name of respondent F
no. 1. However, the criminal attachment order was
defreezed on April 1, 2003 as the trial was not concluded
within one year and respondent no. 1 was no~ freed on
bail during that period as per thg terms stipulated by the
Swiss authorities. [para 21) [505-D-E]
G
1.3 From the facts, it is clear that the attachment
against the respondent's account was lifted on 1.6. 2006
when the Swiss Supreme Court dismissed the petitioner's
appeal and the petitioner was able to obtain the next
H
498 SUPREME COURT REPORTS (2013] 2 S.C.R.
-A attachment order only on 15.12.2006. There was, thus, a
period of slightly over six months when there was no
attachment order in respect of the account and
according to the bank's statement, the amount was
withdrawn on June 21, 2006 (i.e. twenty days after the
B attachment order was lifted) and the account was closed
on 25.7.2006. It is, thus, clear that on 4.9.2006 yvhen this
Court passed the order prohibiting respondent No.1 from
withdrawing any money from the account there was
actually no money in the account. That being the position,
c there could be no question of committing any violation
of this Court's order by respondent No.1, therefore,
cannot be held guilty of contempt of court on the definite
charge that he withdrew a very large amount from his
account in Pictet in violation of the orders of this Court.
[para 36 and 37) [510-F-H; 5·12-A-EJ
0
Sahdeo alias Sahdeo Singh v. State of Uttar Pradesh
and Others 2010 (2) SCR 1086 = 2010 (3) SCC 705; Chhotu
Ram v. Urvashi Gulati and Another 2001 (7) SCC 530 •
referred to.
E
Rajendra Sail v. M.P. High Court Bar Association and
Others 2005 (3) SCR 816 = 2005 (6) sec 109 • held
inapplicable.
F 1.4 The order dated 1.4. 201 Oby which this Court held
that the respondent had withdrawn money from his
account with Plctet by flouting the orders of this Court,
is founded on the premise that the respondent had not
denied the allegation made by the petitioner against him.
G It is, however, to be noted that the respondent in his reply
to the contempt petition filed on March 3, 2010 had stated
to the effect that he did not withdraw any amount after
the orders passed by this Court. The order dated April 1,
2010, was, thus, clearly based on an erroneous premise
of fact. It is, accordingly, recalled. [para 44-45) [513-D-G]
H
NATIONAL FERTILIZERS LTD. v. TUNCAY ALANKUS 499
& ANR.
Case Law Reference: A
2010 (2) SCR 1086 referred to para 38
2001 (7) sec 530 referred to para 39
2005 (3) SCR 816 held inapplicable para 40 B
CIVIL ORIGINAL JURISDICTION : Contempt Petition (Civil)
No. 320 of 2009.
IN
Criminal Appeal No. 926 of 2006. c
~- Gaurav Banerjee, ASG, Arjun Krishnan, Ghanshyam Joshi
for the Appellant.
Shanti Bhushan, Bahar U. Barqi, Mahmood Alam (for Aftab
D
Ali Khan) for the Respondents.
The Judgment of the Court was delivered by
AFTAB ALAM, J. 1. This petition is filed under Article 129
of the Constitution of India read with Order XLVll of the Supreme E
Court Rules, 1966 and rule 3(C) of the Rules to regulate
proceedings for Contempt of the Supreme Court, 1975 making
the prayer to punish respondent No.1 for withdrawing a very
large sum of money from his bank account in a Swiss bank in
violation of this Court's orders dated September 4, 2006 and F
December 14, 2006. As a matter of fact, by an earlier order
passed by the Court on April 1, 2010, in course of the
proceedings of the case, respondent No.1 has actually been
held guilty of contempt of court; it is a brief order, wherein
Paragraphs 6 & 7, the Court observed and held as follows:
G
"6. For the allegations made in the contempt petition, a
notice had been issued to the contemnor. In the notices it
was specifically mentioned that the charge against him is
that he has violated the order of this Court dated 4.9.2006.
H
500 SUPREME COURT REPORTS [2013] 2 S.C.R.
A In fact, the respondent No.1-contemnor has filed his reply
thereto. However, from a perusal of the reply filed by the
contemnor it is clear that he has not denied the allegation
of the petitioner that he has withdrawn money by flouting
the order of this Court dated 4.9.2006.
B
7. From the above discussion, we are satisfied that there
is sufficient material on the record to suggest that
contemnor-respondent No. 1 has committed contempt of
Court. Therefore, we hold the contemnor guilty of Contempt
of Court."
c
2. On that date, however, the Court did not give any
punishment to the respondent but directed the case to be listed
on April 12, 2010 for passing the sentence on the contempt,
observing further that, in the meanwhile, if the contemnor
D deposited the amount withdrawn from the bank, the Court might
consider recalling the order passed on that date.
3. The respondent did not deposit the amount allegedly
withdrawn by him from the bank account but on April 6, 2010
E filed a petition for recall of the order holding him guilty of
contempt of court. He took the plea that the order dated April
1, 2010 was based on the incorrect premise that in the reply
to the contempt petition filed by him, he did not deny the
allegation that he had made withdrawals from his bank account
by flouting the Court's order dated September 4, 2006. He
F pointed out that in the reply petition, he had clearly and
repeatedly said that he had not withdrawn any money from his
bank account after the orders of this Court, dated September
4, 2006 and December 14, 2006 and he reiterated that
statement in the petition for recall of the order.
G
4. After that, the case was heard on a number of dates and
was finally taken up on July 17, 2012 when the matter was
practically heard all over again also on the question whether
or not the respondent had committed contempt of court by
H withdrawing money from his bank account in the Swiss bank
NATIONAL FERTILIZERS LTD. v. TUNCAY ALANKUS 501
& ANR. [AFTAB ALAM, J.]
in violation of the Court's orders dated September 4, 2006 and A
December 14, 2006.
5. The relevant facts necessary to appreciate the
respective contentions made on behalf of the parties may be
stated thus. The petitioner, National Fertilizers Ltd., is a 8
company registered under the provisions of the Companies Act
owned and controlled by the GOI.
6. Karsan Danismanlik Turizm Sanayi Ve ncaret Limited
STI (hereinafter: Karsan) is a Turkish company. The respondent,
Tuncay Alankus was the manager of Karsan with individual C
signature and one Cihan Karanci (not a party to this
proceeding) was his deputy manager and counselor. Both
Alankus and Karanci were the beneficiaries of Karsan.
7. The petitioner company entered into an agreement, D
dated November 9, 1995 with Karsan, which presented itself
as a producer of urea. The contract was for supply of two lakh
· metric tons of urea, 46 N fertilizer at a price of US$ 190 per
metric ton. The total value of the contract was US$ 38,000,000.
In terms of the contract, the petitioner company was to pay to E
Karsan the full contract value in advance by way of two
remittances i.e., (1) US$ 380,000 towards insurance premium
before entering into the contract and (2) US$ 37,620,000
towards cost of urea after entering into the contract.
8. On November 22, 1995, three bank accounts in the F ·
names of Karsan, Alankus and Karanci were opened with Pictet
and Cie Bank (hereinafter: Pictet) in Geneva. The form for
opening the account of Karsan indicated that Alankus and
Karanci as the beneficial owners.
G
9. The three freshly opened accounts were numbered as
(i) Account No. 91923, (ii) Account No. 91924 and (iii) Account
No. 91925. In this case, we are concerned with the operations
in Alankus's account number 91925 with Pictet.
10. On November 23, 1995, Karsan asked the petitioner H
502 SUPREME COURT REPORTS [2013) 2 S.C.R.
A company to wire the sale price of urea on its account, opened
with Pictet. On November 29, 1995, the amount
US$37,620,000 was paid by the petitioner company on that
account.
11. On November 30, 1995, the account of Karsan was
8
debited and the sum of US$ 28, 100,000 was transferred to the
account of Alankus (Account No. 91925) with Pictet; from that
amount, the sum of US$12,500,000 was split between
November 30, 1995 and May 20, 1996, on the accounts of
C Alankus, his daughter and Cihan Karanci in banks in Ankara,
Almaty and Geneva.
12. Despite making full payment of the contract money, the
petitioner did not receive a single grain of urea and it later came
to light that the insurance cover taken out in connection with the
D contract did not provide any protection against the loss suffered
by the petitioner. Enquiries were made in India and on May 28,
1996, the CBI lodged a first information report under section
1208 read with sections 409/420 of the Penal Code and
section 13(2) read with section 7/11/13(1)(c) and (d) of the
E Prevention of Corruption Act, 1988 against a number of
accused, including Cihan Karanci and Tuncay Alankus
respondent No.1 (as accused No. 11 ).
13. In connection with the criminal case, Alankus and
Karanci were arrested in Geneva on September 16, 1996 and
F were extradited to India on October 3, 1997. On being brought
to India, both the accused were remanded to judicial custody
and after several years of custody Alankus was released on bail
subject to the condition that he would not leave Delhi.
G 14. In the trial of the case, after the prosecution had led
its evidence and Alankus was also examined under section 313
of the Code of Criminal Procedure, a petition was submitted
on his behalf for examining 63 persons, living in 10 different-
countries, through video-conferencing, as defence witnesses.
H The trial court by order, dated October 11, 2004 gave
NATIONAL FERTILIZERS LTD. v. TUNCAY ALANKUS 503
& ANR. [AFTAB ALAM, J.]
permission for examination of only 6 out of the 63 witnesses. A
Against the order of the trial court, Alankus filed criminal
revision No.126 of 2005 before the .Delhi High Court on which
the High Court by order dated July 14, 2005 allowed him to
examine, in. addition to the 6 witnesses allowed by the trial
court, 21 more witnesses, of whom a list was placed on record 8
before the High Court, at the expense of the State.
15. Against the order of the Delhi High Court, two special
leave petitions came to this Court. One, being SLP (Criminal)
No.6291 of 2005 was filed by the CBI and the other, SLP
(Criminal) No.13 of 2006, was filed by the present petitioner. C
The petitioner in its SLP also moved an application making the
prayer for a direction to respondent No.1 (Tuncay Alankus) "to
furnish an undertaking to the effect that. he will not withdraw any
portion of the defrauded amount identified and lying in foreign
jurisdiction in general and Geneva and Monaco in particular. D
16. Both the aforesaid special leave petitions were tagged
together and on August 21, 2006 during the hearing of the
SLPs, the Court enquired from the counsel appearing for
respondent No.1 whether he was willing to give an undertaking E
that he would not withdraw the money from his Swiss bank
account. The counsel appearing for the respondent asked for
a short adjournment to take instructions regarding the
undertaking asked for by the Court and the SLPs were,
therefore, directed to be listed on September 4, 2006.
F
17. On September 3, 2006, the respondent communicated
to his lawyer Miss Seema Juneja in. writing, stating that he had
been in jail for about 7.5 years and after release on bail, under
one of the conditions of the bail, he was not permitted to leave
Delhi. His request for permission to travel abroad . and meet G
his advocates for consultation had been declined. Therefore,
he could not get any information. He further stated in the
communication to his lawyer that he had asked Pictet bank for
information by fax but he had not received any response.
Referring further to the various kinds of proceedings going H
504 SUPREME COURT REPORTS [2013] 2 S.C.R.
A before the Swiss courts, he requested his lawyer to inform the
Supreme Court that he was in India for 1O years and he had
no access to his accounts in Switzerland and to submit before
the Court that the matter had already been decided after lapse
of 10 years (sic). He had not received any reply ~nd he was
8 waiting for further instructions.
18. On September 4, 2006 this Court was informed about
the response of the respondent in regard to the undertaking
sought for from him and on that date this Court passed the
following order:
c
"Instead of giving an undertaking, learned counsel has
produqed before us a letter dated 3rd September, 2006,
said to have been written by the respondent to his
advocate, Ms. Seema Juneja, trying, inter alia, to say that
D he is in India for ten years and has no access to his
accounts in Switzerland. It is stated that, in view of what is
stated in this letter, the respondent is not in a position to
give an undertaking, as noticed in the order dated 21st
August, 2006. Be that as it may, we grant leave and
E expedite the hearing of the appeals which shall be listed
for hearing within a period of three months. All the parties
agree that the appeal be heard on the existing record.
Additional documents, if any, may be filed within two
weeks.
F Pending disposal of the appeals, the order of stay granted
by this Court on January, 2006, will continue to operate.
However, the trial can go on and the respondent, if so
advised, can produce such witnesses which have been
allowed by the order of this Special Judge. We restrain
G the respondent from withdrawing the amounts from
the accounts in Swiss Bank till the decision of these
appeals."
(emphasis added)
H
NATIONAL FERTILIZERS LTD. v. TUNCAY ALANKUS 505
& ANR. [AFTAB ALAM, J.]
19. The special leave petitions were finally allowed by A
.order, dated December 14, 2006 by which this Court set aside
the order of the High Court and remanded the matter for a fresh
consideration by the High Court. While concluding the judgment,
this Court made the following direction:
B
"The interim order dated 4.9.2006 is made absolute
to the effect that the respondent is restrained from
withdrawing the amount from the accounts in Swiss
Bank till the decision of the matter. The appeals are
allowed accordingly."
c
(emphasis added)
20. This contempt petition is filed alleging violation of the
aforementioned two orders, dated September 4, 2006 and
December 14, 2006. D
21. Let us now take a look at some of the connected
proceedings in Switzerland. On June 19, 1996, the petitioner
was able to obtain a criminal attachment order against the three
accounts in Pictet, including account No.91925 in the name of
Tuncay Alankus. However, the criminal attachment order was E
defreezed on April 1, 2003 as the trial was not concluded within
one year and Alankus was not freed on bail during that period
as per the terms stipulated by the Swiss authorities.
22. Besides the criminal attachment, dated June 19, 1996, F
the petitioner was also able to obtain the civil attachment of the
three bank accounts in question on October 3, 2000 from the
Court of First Instance, Geneva.
23. On September 30, 2002, Pictet and Cie Bank,
Geneva, informed the Federal Department of Justice and G
Police, Geneva, as follows:
"Please share below the total balance of the sued
accounts.
H
506 SUPREME COURT REPORTS [2013] 2 S.C.R.
A Their credits (value on 30.09.2002) are as follows:
Account No.91923 owner Karsan Ltd. - US$
232,253/
Account No.91924 owner Mr. Cihan Karanci - US$
B 394,757/
Account No.91925 owner Mr·. Tuncay Alankus -
US$10,763,412."
24. The civil attachment order dated October 3, 2000
C became inoperative on June 1, 2006 when the petitioner lost
its appeal in Swiss Supreme Court. And it was presumably for
that reason that the stay petition was filed by the petitioner in
SLP(criminal) No.13 of 2006 which was apparently on an
altogether different issue. Nonetheless, this Court deemed fit
D to pass the order dated September 4, 2006 prohibiting
respondent No.1 from withdrawing any money from the
accounts in Swiss bank.
25. On September 9, 2006, the advocate of the petitioner
E sent a copy of the order dated September 4, 2006 passed by
this Court to Pictet which was received by Pictet on September
21, 2006.
26. On December 12, 2006, the petitioner's Swiss lawyer
applied for attachment in respect of the amounts lying in Pictet
F including the amount lying in the accounts of respondent No.1.
27. On December 15, 2006, the Court of the First Instance
at Geneva granted attachment in favour of the petitioner against
respondent No.1 and others in respect of the amount lying in
G Pictet. Pictet acknowledged the Sequestration order sent by
the petitioner's Swiss attorneys vide its communication dated,
December 20, 2006 which is as under:
Concerns: sequestration no. 06 070 321 Z-C/30199/06
H Dear Sir,
NATIONAL FERTILIZERS LTD. v. TUNCAY ALANKUS 507
& ANR. [AFTAB ALAM, J.]
We acknowledge receipt of your mail dated 15 December A
2006 and have taken good note of its contents.
Remaining at your disposal and with regards.
For PICTET & CIE
Signature" B
28. Apparently this attachment too lapsed and finally on
March 4, 2009, the petitioner's Swiss lawyer obtained a fresh
attachment order from the Court of First Instance, Geneva, but
on March 9, 2009 Pictet informed the Debts Collection Office c
at Geneva that they do not hold any assets, inter alia, on behalf
of respondent No.1.
29. On April 23, 2009, the Debts Collection Office at
Geneva forwarded the letter dated March 9, 2009 of Pictet to D
. the Swiss Attorneys of the petitioner and, completely surprised
by the bank's response. the petitioner filed this contempt petition
on August 26, 2009.
30. Mr. Gourab Banerjee, learned Additional Solicitor
General appearing for the petitioner strongly argued that E
respondent No.1 had withdrawn a huge sum of money
amounting to US$10,763,412 from his account No.91925 with
Pictet in brazen violation of this Court's prohibitory orders,
dated September 4, 2006 and December 12, 2006 and he is,
therefore, liable to be given the most stringent punishment. F
31. At first sight the conduet of the respondent may indeed
appear contumacious but, a careful scrutiny of the material facts
makes it clear that respondent No.1 cannot really be held guilty
of contempt. G
32. It may be recalled here that on November 21, 2011 on
hearing counsel for the parties, this Court had passed the
following order:
H
508 SUPREME COURT REPORTS [2013] 2 S.C.R.
A "Mr. Shanti Bhushan, senior advocate appearing for
the contemnor-Tuncay Alankus, stated that on September
04, 2006, when this Court passed the interim order of
injunction against his client (which was later confirmed by
order dated December 14, 2006), there was no money in
B his account No. 91925 with the PICTET & CIE Bank,
Geneva. There is, therefore, no question of any withdrawals
from that account after that date in violation of the court's
orders.
In support of the statement, Mr. Bhushan placed
c great reliance on the decision of the Swiss Supreme Court
dated June 01, 2006. The decision of the Swiss Supreme
Court indeed takes note of the fact.that on November 29,
1995, the petitioner (National Fertilizers Limited) paid a
sum of $3,76,20,000 into Account No. 91923 held by
D Karsan Danismanlik Turizm Sanayi Ve Ticaret Limited STI
(shortly known as 'Karsan'). It then goes on to give a break
up of the aforesaid sum of $3,76,20,000 from which, on
the following day, i.e. on November 30, 1995, a sum of
$2,81,00,000 was transferred to the contemnor's personal
E account No. 91925.
From the Swiss Court decision, it is not clear that
on the date this Court passed the injunction order
restraining the contemnor from withdrawing any amount
F from his account, the account was already bereft of any
money.
Mr. Bhushan also relied upon a Certificate issued by
the Bank, according to which the account in question was
closed on July 25, 2006 .
.G
Mr. Gourab Banerjee, Additional Solicitor General
appearing for the petitioner, submitted that on the date this
Court passed the interim order against the contemnor,
there was substantial money in his account. In support of
H this averment, he referred to the order dated June 24, 1996
NATIONAL FERTILIZERS LTD. v. TUNCAY ALANKUS 509
& ANR. [AFTAB ALAM, J.]
passed by the Special Judge, Delhi, granting bail to the A
contemnor and a certificate dated September 30, 2002
issued by the Bank (a copy of which is at Annexure P-3 of
the Contempt Petition).
On the basis of the materials so far produced before B
us, we are not satisfied and we find it difficult to hold with
any conviction that on the date the interim order of
injunction was passed against the contemnor, there was,
in fact, no money in his account with the PICTET& CIE,
Geneva.
c
However, one thing is clear from the decision of the
Swiss Court: that is, on November 30, 1995, a sum of
$2,81,00,000 was credited to the contemnor's personal
account from the amount deposited by the petitioner in the
account of Karsan. D
We would like to see the bank statement of the
contemnor's Account No. 91925 held with PICTET & CIE
Bank from November 30, 1995 till the date of the closure
of the account on July 25, 2006 to see the inflow and E
outflow of money from that account.
Mr. Bhushan prays for some time for producing the
bank statement. As prayed by him, put up after six weeks.
Let a copy of this order be given to the counsel for F
the contemnor."
33. In pursuance of the aforesaid order, respondent No.1
has filed an affidavit enclosing a copy of the bank statement
certified by Pictet and Cie bank, Geneva. From the bank G
statement it appears that the entire amount in account
No.91925 was withdrawn by June 21, 2006 and on that date,
the balance had become nil. The bank has also issued a
certificate dated September 13, 201 O stating that account
No.91925 was closed in their books on July 25, 2006.
H
510 SUPREME COURT REPORTS [2013] 2 S.C.R.
A 34. Mr. Banerjee submitted that no reliance could be
placed on the bank statement and the number of affidavits filed
on behalf of respondent No.1. He referred to the
acknowledgement made by Pictet bank on September 30,
2002 according to which, on that date, a sum of
B US$10,763,412 was lying in account No.91925 of Tuncay
Alankus. Mr. Banerjee submitted that the aforesaid amount
must have remained in the account until June 1, 2006, the date
on which the Swiss Supreme Court dismissed the appeal
preferred by the petitioner. Further, Pictet in its communication
c of January 8, 2007 had clearly acknowledged the sequestration
order and had assured that it had taken good note of its
contents. It is, therefore, not possible to believe that the account
had come to nil on June 21, 2006 and it was closed on July
25, 2006. .
D 35. In the letter of Pictet dated January 8, 2007, a copy of
which is enclosed as Annexure P15 (collectively) the debtor's
name is given as "Karsanrizm"; further, the letter does not state
that on that date account No. 91925 in the name Alankus was
alive and was bearing some amount. Moreover, the bank is not
E a party to the present proceedings and, therefore, we would not
like to make any comment on the conduct of the bank. But on
the materials produced before us, it is very difficult to hold the
respondent guilty of contempt and to punish him for committing
contempt of court.
F
36. From the facts stated above, it is clear that the
attachment against the respondent's account was lifted on June
1, 2006 when the Swiss Supreme Court dismissed the
petitioner's appeal and the petitioner was able to obtain the
G next attachment order only on December 15, 2006. There was,
thus, a period of slightly over six months when there was no
attachment order in respect of the account and according to
the bank's statement, the amount was withdrawn on June 21,
2006 (i.e., twenty days after the attachment order was lifted)
and the account was closed on July 25, 2006. It is, thus, clear
H
NATIONAL FERTILIZERS LTD. v. TUNCAY ALANKUS 511
& ANR. [AFTAB ALAM, J.]
that on September 4, 2006 when this Court passed the order A
prohibiting respondent No.1 from withdrawing any money from
the account there was actually no money in the account. That
being the position, there could be no question of committing
any violation of this Court's order by respondent No.1.
B
37. Mr. Banerjee referred to the many affidavits filed by
respondent No. 1 and submitted that in those affidavits he has
been taking inconsistent stands. It is true that the respondent
has filed as many as eight affidavits and in all those affidavits
his position does not appear to be completely consistent. But, C
it must be recalled that as far back as in September, 2006 and
long before this contempt proceeding commenced, the
respondent had instructed his counsel to submit before this
Court, that he was not permitted to leave Delhi for the past ten
years and since he was not getting any response from the
Swiss banks, he was not aware of the state of his affairs in D
Switzerland and was, therefore, unable to give the undertaking
as asked for by this Court. Moreover, any inconsistencies in
the stand of the respondent before this Court coupled with the
ambiguities in the communications from Pictet may give rise
to a suspicion of wrong doing. But without anything else we find E
it very difficult to hold the respondent guilty of contempt of court
on the definite charge that he withdrew a very large amount
from his account in Pictet in violation of the orders of this Court.
38. In Sahdeo alias Sahdeo Singh v. State of Uttar F
Pradesh and Others1 , this Court after referring to a number of
earlier decisions, in paragraph 19 of the judgment, observed
as under:
"In S. Abdul Karim v. M.K. Prakash, Chhotu Ram
v. Urvashi Gulati, Anil Ratan Sarkar v. Hirak Ghosh, G
Daroga Singh v. B.K. Pandey and All India Anna Dravida
Munnetra Kazhagam v. L.K. Tripathi, this Court held that
burden and standard of proof in contempt proceedings
1. c2010) 3 sec 10s. H
512 SUPREME COURT REPORTS [2013] 2 S.C.R.
A being quasi-criminal in nature, is the standard of proof
required in criminal proceedings, for the reason that
contempt proceedings are quasi criminal in nature."
39. In Chhotu Ram v. Urvashi Gulati and Another2 , this
Court in paragraph 2 and 3 of the judgment held as under:
8
"2. As regards the burden and standard of proof, the
common legal phraseology "he who asserts must prove"
has its due application in the matter of proof of the
allegations said to be constituting the act of contempt. As
C regards the "standard of proof', be it noted that a
proceeding under the extraordinary jurisdiction of the court
in terms of the provisions of the Contempt of Courts Act
is quasi-criminal, and as such, the standard of proof
required is that of a criminal proceeding and the breach
D shall have to be established beyond all reasonable doubt.
3. Lord Denning (in Bramblevale Ltd., Re) lends
concurrence to the aforesaid and the same reads as
below: (All ER pp. 1063H-1064 C).
E "A contempt of court is an offence of a criminal
character. A man may be sent to prison for it. It must
be satisfactorily proved. To use the time-honoured
phrase, it must be proved beyond reasonable
doubt. It is not proved by showing that, when the
F man was asked about it, he told lies. There must
be some further evidence to incriminate him. Once
some evidence is given, then his lies can be thrown
into the scale against him. But there must be some
other evidence .... Where there are two equally
G consistent possibilities open to the court, it is not
right to hold that the offence is proved beyond
reasonable doubt."
40. Mr. Banerjee submitted that a charge of contempt may
H 2. (2001) 1 sec 530
NATIONAL FERTILIZERS LTD. v. TUNCAY ALANKUS 513
& ANR. [AFTAB ALAM, J.]
also be established on preponderance of circumstances and A
in support of the submission he relied upon a decision of this
Court in Rajendra ,Sail v. M.P. High Court Bar Association and
Others3.
41. We have gone through the decision relied upon by Mr.
Banerjee and we find that in Rajendra Sail, the Court held the B
contemnor guilty on the basis of "preponderant circumstances".
In other words, all the circumstances taken together led to the
unimpeachable finding of the contemnor's guilt. But that is not
to say that in Rajendra Sail this Court relaxed or diluted the
standard or degree of proof to establish the guilt of contempt. c
42. In the case in hand on taking into account all the
circumstances as discussed above, we are of the view that it
would not be wholly reasonable to hold that the respondent
withdrew large amounts from his account with Pictet in violation
of this Court's orders. D
43. For the reasons discussed above, we hold that the
respondent cannot be held guilty of contempt.
44. Coming back to the order, dated April 1, 201 O by which
this Court held that the respondent had withdrawn money from
his account with Pictet by flouting the orders of this Court, it is E
to be noted that that order is founded on the premise that the
respondent had not denied the allegation made by the petitioner
against him. It is, however, to be noted that the respondent in
his reply to the contempt petition filed on March 3, 201 O had
stated in paragraph 2 (XIV) as under: F
"The Respondent takes liberty for reiterating that he
has not withdrawn any amount in spite of (sic.) the order
passed by this Hon'ble Court."
45. The order dated April 1, 2010, was, thus, clearly based
on an erroneous premise of fact. It is, accordingly, recalled. G
46. For the reasons discussed above, we find no merit in
the contempt petition. It is dismissed.
R.P. Contempt Petition dismissed.
3. (2005) 6 sec at paragraphs 45. H
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