Does hiding of information means fraud, if the other party can acquire the information on its own and has time to acquire it?

Shri Krishnan v. The Kurukshetra University, Kurukshetra

Bench :Justice Fazalali, Syed Murtaza; Justice Khanna, Hans Raj; Justice Bhagwati, P.N.

Issue:

Did the appellant committed fraud by not disclosing that he was short of attendance to the University?

Facts:

• The appellant was a teacher in the Government High School, Dumarkha in the District of Jind(Haryana).
• The respondent organised evening classes for 3-year LLB aspirants who were in Service.
• The appellant used the opportunity and joined LLB Part I in 1971.
• The University gives a student of the Faculty of Law, the option to clear certain subjects in which he may have failed at one of the examinations before completing the three years course.
• Every year student has to give 6 papers and in 1972 the appellant failed in 3 of these papers.
• Afterwards, he was promoted to Part II which he joined in 1972.
• The annual examination for Part II was to be held on May 19, 1973 and on April 26, 1973 the appellant applied for his Roll No. from university to clear the 3 papers in which he failed earlier, but the university refused without any reason.
• The appellant approached the University for granting him provisional permission to appear subject to his getting the permission from his employer to attend the Law Faculty.
• In between the appellant had been prosecuted for offence under Section 376, 366 and 363 I.P.C. and was suspended during the period when the case was going on against him.
• The appellant was, however, acquitted and was reinstated by his employer on August 22, 1972. It implies that on the date of application of Roll No. there was no charge against the appellant.
• On May 18, 1973 the appellant wrote a letter to the University giving an undertaking that if he was not able to get the requisite permission from his employer to join the Law Classes, he would abide by any order that the University may pass.
• On basis of above undertaking he was allowed to take Part II papers.
• On June 20, 1973 the appellant wrote to the University that the condition on which he was to get the permission was not at all necessary and that his results may now be announced.
• On June 26, 1973 the respondent informed appellant that due to low attendance your candidature is cancelled.
• Then the appellant and defendant had a lot of arguments for permission to appear in Part III papers and then the appellant filed an appeal to Vice Chancellor of the University which was rejected.
• After that, the appellant filed a writ of certiorari against order of university to cancel candidature of appellant, but the High Court rejected the petition.
• Hence the appeal was filed in SC.

Argument raised by Appellant:

• It was argued that since the appellant was allowed to appear in L.L.B. Part II Examination his candidature could not be withdrawn, in view of the mandatory provisions of clause 2(b) of the Kurukshetra University Calendar Vol. I, ordinance X under which the candidature could be withdrawn before the candidate took the examination.
• It was argued that the order of the University was mala fide because the real reason for cancelling the candidature of the appellant was the insistence of the District Education officer that the appellant should not have been admitted to the Law Faculty unless he had obtained the permission of his superior officers. Thus, it is clear that university can only cancel the candidature if the appellant’s candidature was cancelled before giving the exam

Argument raised by Respondent:

• The respondents contended that since the appellant was involved in a criminal case a result the head of organization of appellant was not able to give a good moral character certificate i.e. essential for admission.
• It was also contended that the appellant had a low attendance in the Part I i.e. he can’t be admitted to Part II Examination of the course.
• They contended that since the evening course was to benefit the member of service and it was necessary for appellant to obtain permission of his superior officer which he was unable to get; it is well within the rights of the University to refuse permission to enter Part II of exam.
• It was also contended that the appellant was aware that his attendance was low and yet he did not draw the attention of the University authorities when he applied for admission to appear in LL.B. Part II Examination. Thus, the appellant was guilty of committing fraud.

Judgment:

The admission form of appellant was sent in December of 1971 for the examinations to be conducted in April-May of 1971. The court stated that if neither the university nor the head of department of law were able to fulfil their duty to scrutinize the form in 5-6 months’ time period and; check that all essential documents and essential conditions have been fulfilled by the appellant. The question that appellant tried to commit fraud does not arise and stated that: “It is well settled that where a person on whom fraud is committed is in a position to discover the truth by due diligence, fraud is not proved. It was neither a case of suggestio falsi, or suppressio veri.”

The court based its judgment on “Premji Bhai Ganesh Bhai Kshatriya v. Vice-Chancellor, Ravishankar University, Raipur and others[1].”

The appeal was allowed and the order of university was quashed by writ of certiorari and the respondent was directed to release Part II result and to allow the appellant to give Part III examination as well as 3 papers of Part I in which the appellant failed