Delhi District Court
Mukul Kumar Chaturvedi vs Neelam Chaturvedi on 9 September, 2016
1 of 46
IN THE COURT OF SH. NARINDER KUMAR:SPECIAL JUDGE2
NDPS ACT:(CENTRAL DISTRICT):TIS HAZARI COURT:DELHI
Case No. 54806/2016 Decided on: 09.09.2016
CA No. 05/2016
Mukul Kumar Chaturvedi
S/o Late Y.C. Chaturvedi
R/o Patwan Gali, Kaimganj,
Distt. Farukhabad, U.P. .....Appellant
Versus
1.Neelam Chaturvedi
(Through Sh. V.K. Chaturvedi
D/o Sh. H.C. Chaturvedi
R/o 98H, Railway Colony,
Naya Bazar, Delhi110006.
2.State .....Respondents
+++++
Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016
V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016
2 of 46
Case No. 54851/2016 Decided on: 09.09.2016
CA No. 14/2016
V.K. Chaturvedi
S/o Late H.C. Chaturvedi
R/o 98, H.Railway Colony,
Naya Bazar, Delhi6 .....Appellant
Versus
1)Mukul Kumar Chaturvedi
S/o Late Y.C. Chaturvedi
R/o Patwan Gali, Kaimganj,
Distt. Farukhabad, U.P.
2)Brij Pal Singh
S/o Pattu Lal
R/o Village Naraina Mau,
PS Kaimganj, Pargana Kampil
Distt. Farukhabad, U.P. .....Respondents
JUDGMENT
CA No. 05/2016, referred to above has been filed by Mukul Kumar Chaturvedi challenging judgment dated Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 3 of 46 17.12.2015 passed by Learned Trial Court in CC No. 4268/3 titled as V.K. Chaturvedi v. Mukul Chaturvedi and Ors, whereby he has been convicted of an offence U/s 500 IPC. He has also challenged order on sentence dated 08.01.2016 passed by Learned Trial Court, whereby he has been sentenced to undergo simple imprisonment for two months and also to pay compensation of Rupees One Lakh or in default of payment of compensation, to undergo SI for one month.
2. The accused - appellant faced trial on the accusation that in furtherance of his common intention and that of his co accused father Yatish Chandra Chaturvedi (Since deceased) and Brij Pal, an affidavit dated 08.12.1980 of one Brij Pal, was filed, during pendency of a petition U/s 9 of HMA filed by his wife (Wife of the appellant herein), before Learned Addl. District Judge, and in that affidavit, defamatory allegations were levelled against her casting aspersions on her character. Feeling aggrieved, Smt. Neelam Chaturvedi (wife of the accused appellant), sister of Sh. V.K. Chaturvedi, her authorized representative filed complaint alleging commission of offence Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 4 of 46 punishable U/s 500 IPC.
3. Consequent upon summoning of the accused - appellant , his father Yatish Chandra Chaturvedi (Since deceased) and Brij Pal Singh, notice for an offence U/s 500 IPC read with Section 34 IPC was served upon all the three accused persons.
4. Since the accused persons pleaded not guilty and claimed trial, case was listed for evidence of the complainant.
5. It may be mentioned here that Sh. Yatish Chandra Chaturvedi (Since deceased) left his world during the pendency of trial.
6. In support of her case, complainant - Smt. Neelam Chaturvedi stepped in the witness box as her own witness as CW2 whereas her brother Sh. V.K. Chaturvedi made statement as CW1.
Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 5 of 46
7. In their statements U/s 313 Cr.PC, the accused appellant admitted factum of pendency of petition U/s 9 of HMA filed by his wife against him, and the factum of other litigation between them. As regards, filing of the affidavit ExX, Mukul Kumar, the accused appellant pleaded as under: "I am innocent. My sister Mamta was married to the brother of Neelam and of V.K.Chaturvedi and I was married to Neelam Chaturvedi who is the sister of Sh. V.K.Chaturvedi. Differences arose in the matrimonial life of both the couples mentioned above and marriages were strained. My father Sh. Y.C. Chaturvedi was practicing advocate at Farookhabad UP in the year 1980 onwards, whereas, I was working as Officer in State Bank of India at Varanasi, UP from 1978 to 1984. The distance between Farookhabad and Varanasi is about 450KM. In the year 1980, Neelam Chaturvedi had filed a case against me at Delhi of restitution of conjugal rights and her brother Narendera Kr Chaturvedi had filed a case of Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 6 of 46 divorce against my sister and his wife Smt. Mamta at Delhi. Both of them had stated, as their last residence together, 98H, Railway Colony, Naya Bazar, Delhi which is the address of CW1 V.K. Chaturvedi. Besides this, they had levelled many false allegations. Both the cases were defended by our father Y.C. Chaturvedi who had to come from Farookhabad to Delhi to attend dates of Court's cases. My father had grudge against Neelam Chaturvedi, V.K. Chaturvedi and their family. As my father used to take keen interest in the cases filed by Narender Kr Chaturvedi and Neelam Chaturvedi in order to wreak his own vengeance, my father, without my knowledge consent or approval might have filed affidavit in the Court. I never attended the court of Ms. Usha Mehra except once or twice. I was not present on 08.12.80 when the alleged affidavit Ex.X was filed. I do not know coaccused Brij Pal. The other ground of grudge of my father against the Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 7 of 46 complainant and his family was that he had filed a case u/s 403/406/34 IPC against Narender Kr, CW V.K. Chaturvedi and their father Hukam Chand at Farookhabad Court, prior to the filing of the present complaint against me and my father. As a counterblast to the said complaint, the present complaint was filed. Neither I filed nor I got filed Ex.X in the Court. I have no connection with the filing of the said affidavit. Before filing of the present complaint, Narender Kr. And Hukam Chand who are the brother and father of the complainant had misbehaved with my father and gave him filthy abuses. As such my father was very much annoyed with them. I used to sign on the blank papers and to deliver to my father in good faith. I had not signed the WS after it was typed. It was prepared by my father on the those blank papers which he should not have done.
I did not defame anyone. Even after decree of conjugal rights, CWs Neelam and V.K. Chaturvedi Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 8 of 46 had made efforts to reconcile before High Court as well as in the petition of divorce filed by me. But I refused to reconcile."
Brijpal, accused put forth following defence plea :
"I am innocent. I have neither filed any affidavit particularly Ex.X, nor deposed and signed the same. In fact, I have not come to Delhi on the said date. In fact, my mother had expired on 07.12.1980 and I was attending her cremation on 08.12.80 at Dhai Ghat, Shamshabad, Distt. Farookhabad, UP."
8. In defence, accusedappellant M.K.Chaturvedi appeared in court as DW1.
DW2 Sh. Deepak Jain, handwriting and finger print expert, DW3 Hari Ram and DW4 Sh. Ram Bharose have been examined in support of defence of Brijpal Singh, accused.
Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 9 of 46 CA No. 14/2016
9. Present appeal has been filed challenging the judgment dated 17.12.2015 passed by Learned Trial Court in CC No. 4268/3 titled as V.K. Chaturvedi v. Mukul Chaturvedi and Ors, whereby respondent no. 1 herein has been convicted for an offence U/s 500 IPC whereas respondent no. 2 herein has been acquitted. Order on sentence dated 08.01.2016 passed by Learned Trial Court has been challenged with prayer for enhancement of sentence and increase in the compensation awarded by the Trial Court.
In this very appeal, he has also challenged acquittal of respondent no. 2, with the other prayer that he convicted and sentenced for the said offence.
Upon service of notice of appeal, both the respondents put in appearance. They are represented by their respective counsel. Appellant has argued in person. Despite opportunity, he opted not to avail of facility of free legal aid. One of the contentions advanced by learned Counsel for respondent no.1 is on the maintainability of this appeal. The Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 10 of 46 contention is that the appellant should have filed an application before Hon'ble High Court seeking special leave to appeal against the order of acquittal and then filed appeal as provided U/s 378(4) Cr.PC. the submission is that under Section 377 Cr.PC only State is empowered to file appeal for enhancement of sentence and State Government may direct the Public Prosecutor to present an appeal in this regard, and the present appeal having been filed not by the State Government or the Public Prosecutor, is not maintainable on the point of enhancement of sentence.
In support of this contention, reference has been made to the decision in Subhash Chand v. State, 2013(1) FAC 1 and decision in Selvaraj v. Venkatachalapathy, 2015(1) MWN (Cr.) DCC 26 (Mad.) On the other hand, appellant has submitted that appeal having been filed under proviso to Sec.372 Cr.P.C. is very much maintainable against both the respondents i.e. by way of challenge to the acquittal of respondent No.2 and also by way of challenge to the impugned judgment on the point of inadequacy of sentence and compensation.
Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 11 of 46 In the course of arguments, Court put a specific query to the appellant, as to whether, as regards respondent No.1, he wants enhancement in sentence or only enhancement in the amount of compensation awarded by the Trial Court. The appellant clearly submitted that by filing of appeal, as regards respondent No.1, he wants adequate compensation and not enhancement of sentence.
10. In case of order of acquittal in any case constituted upon complaint, sub section (4) of Section 378 Cr.PC provides a remedy to the complainant to present appeal before the Hon'ble High Court, after seeking special leave to appeal.
In case of inadequacy of sentence, section 377 Cr.PC provides remedy of appeal by the State Government.
11. Appellant has filed present appeal under proviso to section 372 Cr.PC, which provision has been inserted by Act 5 of 2009. Proviso to this section provides remedy to a victim by way of appeal, against any order of acquittal or where accused has Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 12 of 46 been convicted for a lesser offence or has been imposed inadequate compensation. Such an appeal lies to the court to which an appeal ordinarily lies against order of conviction of such court.
12. In Subhash Chand's case (supra), cited by learned counsel for respondent no.1, Hon'ble Apex Court, while dealing with the provisions of Section 378(4) Cr.PC observed in para 21 of the judgment as under: "We conclude that a complainant can file an application for special leave to appeal against an order of acquittal of any kind only to the High Court. He cannot file such appeal in the Sessions Court. In the instant case the complaint alleging offences punishable under Section 16(1) (1A) read with Section 7 of the PFA Act and the Rules filed by complainant Shri Jaiswal, Local Health Authority through Delhi Administration. The appellant was acquitted by the Metropolitan Magistrate, Patiala House Courts, New Delhi. The complainant can challenge the order of acquittal by filing an application for special leave to appeal in the Delhi High Court and not in the Sessions Court".
Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 13 of 46 Hon'ble Apex Court accordingly set aside the impugned order holding that case was not governed by Section 378(4) of Cr.PC. Admittedly, in that case, scope of proviso to Section 372 Cr.PC was not the subject matter of discussion or interpretation.
The other decision i.e. in Selvaraj (Supra) pertained to appeal against judgment of acquittal passed in a complaint case Us.138 of N.I. Act. That appeal was filed by the complainant under the proviso to Section 372 Cr.P.C. The appellate Court presided over by learned Additional District & Sessions Judge allowed the appeal, set aside the order of acquittal passed by the trial court and convicted the accused for an offence U/s.138 of N.I. Act.
While interpreting the provisions of Section 372, Hon'ble High Court of Madras, while relying on decision in Subhash Chand's case (Supra) observed that though the scope of proviso to Section 372 Cr.P.C. was not canvassed and conceded by the Hon'ble Apex Court in the said case, it provided a necessary clue that complainants have been treated differently Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 14 of 46 than the States and the victim in cases instituted in police report. Hon'ble Court accordingly observed that term 'victim', available in the proviso to Section 372 Cr.P.C. shall not include a victim, who is a complainant in a complaint case and further that this term used in the said proviso shall be confined to victims in cases instituted otherwise than on a complaint. Accordingly, Hon'ble High Court found merit in the contention raised by the complainant in challenging the judgment passed by the learned Additional District & Sessions Judge on the ground of absence of jurisdiction.
On the point of maintaining of appeal under the proviso to Section 372 Cr.PC, this court is not to tread a virgin path. There is already decision on this point, by our own Hon'ble High Court in the case of Jagmohan Bhola v. Dilbagh Rai Bhola, 2011 (2) JCC 777. Therein, Hon'ble High Court has observed in the manner as:
"All these provisions were existing when the proviso to section 372 was introduced with effect from 31.12.2009. It is apparent that in some appeals i.e., in the case of convicts appeals against conviction and the State's appeals Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 15 of 46 seeking enhancement of sentence, no leave to appeal i.e., appeals by the State against acquittals and appeals by the complainant against acquittal, leave and special leave from the High Court was necessary.
The Legislature was aware of this position. We cannot assume that the Legislature was ignorant of the fact that in some appeals leave was necessary while in others it was not. Keeping this in mind, upon a plain reading of the proviso to section 372, we cannot discern any limitation in respect of the requirement to take leave of the High Court before an appeal is presented by a victim.
The proviso to section 372 is a special provision and it deals with three different situations, namely, appeals against acquittal, conviction for lesser offence and inadequacy of compensation. The proviso to section 372 is not limited to appeals against acquittals. All the appeals, whether they are against acquittal or conviction for a lesser offence or inadequate compensation have been placed on the same footing.
So while a parallel is sought to be drawn by the learned counsel for the respondents between and appeal under the proviso to section 372 Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 16 of 46 with an appeal against acquittal under section 378, it cannot be forgotten that the appeal under the proviso to section 372 is not limited to appeals against acquittals but also concerns itself with appeals against conviction for lesser offence which is akin to the State's appeals for enhancement for sentence under section 377 which, in turn, does not require any leave of the High Court to be taken. Similarly, there is no requirement under statute for leave to be taken in respect of appeal in respect of inadequate compensation. All these three circumstances have been placed on section 372 and, therefore, no limitation with regard to the requirement of taking leave or special leave of the High Court before an appeal is presented to it by a victim can be read into the proviso to section 372."
Hon'ble Judges of Delhi High Court have further observed that in view of the aforesaid position, the present appeal would be clearly maintainable, inasmuch as there is no requirement for first obtaining leave of the Court. In view of above discussion, it can safely be said that under section 372 Cr PC an appeal against order of acquittal passed by Metropolitan Magistrate in cases including a complaint Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 17 of 46 case would be maintainable before Court of Session, to which Court an appeal ordinarily lies against the order of conviction . Similarly, in case of inadequacy of compensation , conviction for lesser sentence, appeal against order of acquittal passed by Metropolitan Magistrate would lie to Court of Session.
Proviso to section 372 of the Code has been inserted as a special remedy to a "victim". Expression "victim" has been defined in section 2(wa) of the Code, as a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression 'victim' includes his or her guardian or legal heir.
In Chattar Singh v. Subhash, 2011 (176) DLT 536, it has been held that the word "victim" in the context of the proviso to section 372 read with section 2(wa) of the Code referred to the crime victim in the natural and ordinary sense as the person who directly and most proximately suffered the loss or injury.
As noticed above, the proviso to section 372 of the Code has not been limited to appeals against acquittals. Rather all appeals, whether against acquittal or conviction for a lesser Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 18 of 46 offence or inadequate compensation have been placed on same footing.
13. Having regard to the pronouncement by our own Hon'ble High Court, the appellant is safely covered by expression "victim" and present appeal is maintainable, before the court of session, as against the order of acquittal and imposition of inadequate compensation. In view of the authoritative decision by our own Hon'ble High Court, the contention authoritatively advanced by counsel for respondent no.1 regarding non maintainability of the appeal filed against judgment of acquittal and against the order of inadequate compensation is misconceived and as such cannot be sustained at all .
Once, the point of maintainability of appeal has been decided, this court proceeds to decide the two appeals on merits.
As regards M.K.Chaturvedi
14. On behalf of the appellant, it has been submitted that this is a case where the appellant could not be held liable for the Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 19 of 46 acts done by his father, who was an Advocate, and represented him in the petition under Section 9 of Hindu Marriage Act, but defended him by filing not only the affidavit in question , but even the written statement prepared without consulting or informing him. In support of this submission, it has been pointed out that on 8.12.1980 i.e. the date of execution, attestation and filing of the affidavit in question in Delhi, the appellant was at Varanasi. Even further, it has been submitted that the father of the appellant, while conducting petition under Section 9 of H.M.Act, took the things personally, the reason being that Narendera Kr Chaturvedi, brother of Smt.Neelamcomplainant herein, had filed a case of divorce against Smt.Mamta, his sister (sister of present appellant) at Delhi and as such his father was very much annoyed and revengeful against them. The contention is that for the personal and revengeful act of a father, son should not be held liable in the given facts and circumstances.
It has also been submitted that in a criminal trial, it is sufficient enough for an accused to bring material on record which probablizes his defence plea, whereas standard of proof on the prosecution is more stricter that it has to establish its case Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 20 of 46 against the accused beyond shadow of reasonable doubt. Further, it has been submitted that in this case, when M.K.Chaturvedi brought on record material which probablized his defence plea regarding his noninvolvement in the wrongful act, the judgment of conviction recorded by the Trial Court deserves to be set aside. Further, it has been submitted that where two views are possible, the benefit has to be extended to the accused, and even on this ground, the appeal filed by M.K.Chaturvedi deserves to be allowed.
In support of this submission, reference has been made to following decisions:
1.Balwan Singh etc. Vs. State of Haryana, 2005[2] JCC 1021
2. Chander Bhan Vs. State CBI 1998[2] JCC [Delhi]69
3.Varkey Joseph Vs. State of Kerala 1993 CAR 264(SC)
4.Suresh @ Bona Vs. State 2013 [4] JCC 2876
5.Sunil Bansal Vs. The State of Delhi 2007 [2] JCC 1415.
In Balwan Singh etc. Vs. State of Haryana, 2005[2] JCC 1021 it was held by Hon'ble Supreme Court, that while the prosecution has to prove its case beyond reasonable Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 21 of 46 doubt, the defence has only to produce evidence or show material on record which probablises defence.
Similarly, in case Chander Bhan Vs. State CBI 1998[2] JCC [Delhi]69 it was held by Hon'ble High Court that an accused is under no obligation to prove his defence. It is sufficient if he comes out with a probable and plausible version.
In case Varkey Joseph Vs. State of Kerala 1993 CAR 264(SC) it was held by Hon'ble Supreme Court, that suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its case beyond all reasonable doubt.
In this regard, reference has also been made to decision in Suresh @ Bona Vs. State 2013 [4] JCC 2876.
Reference has been made to decision in Sunil Bansal Vs. The State of Delhi 2007 [2] JCC 1415 wherein it was held by Hon'ble High Court that if two views at charge framing stage exist, based upon the materials available, the view favouring the accused is to be preferred.
On behalf of respondent No.1Smt. Neelam Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 22 of 46 Chaturvedi, reference has also been made to application dated 22.08.80 submitted by M.K.Chaturvedi seeking modification of the order on maintenance, to point out that therein also M.K.Chaturvedi leveled false and baseless allegations against his wife pleading that she was a society girl.
Record reveals that in Para 5 of his objection petition filed for modification of the order on maintenance, M.K. Chaturvedi testified that his wife was not domestic woman but was society girl and that she earned a lot of money to defray on all her expenses. Admittedly, this allegation came to be leveled on 22.8.1980 i.e. prior to the filing of the affidavit of Brij Pal Singh.
On behalf of the respondent reference has also been made to written statement (Ex.PW1/X3) filed by M.K. Chaturvedi in petition no.1170/80, under Section 9 of Hindu Marriage Act, so as to point out that the written statement was filed under the signatures of M.K.Chaturvedi.
Record reveals that in Para 3 of the said written statement it was pleaded that in reply to the corresponding para Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 23 of 46 of the petition under Section 9 that the petitioner had purposely and with oblique motive omitted to give her place of residence of her unmarried status; that she could not give that because she was living with different men at different places and had no fixed place of residence.
In para no.5 of written statement to the petition under Section 9, M.K. Chaturvedi pleaded that the petitioner herself left the house and the protection of her husband on 27.03.80, at Varanasi; since then he had come to know that the petitioner was a girl of easy virtue, and had been leading an unchaste life at Delhi and wanted to continue the same mode of life at Varanasi.
In para no.12 of the written statement i.e. in reply to the prayer clause of the petition under Section 9, M.K. Chaturvedi prayed for dismissal of the petition by pleading that she had proved unfaithful to him and had been living in adultery even after her marriage.
On behalf of M.K.Chaturvedi, it has been contended that the written statement does not bear the signatures of this Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 24 of 46 accused. Further it has been submitted that his father had obtained his signatures on various blank papers, out of which he utilized one bearing the signatures of this accused in preparing the written statement. The contention is that when this written statement was not signed by this accused, and rather it was prepared by his father of his own and then submitted in court, the allegations levelled in the written statement cannot be attributed to this accused so as to hold him criminally liable.
It is significant to mention that there is nothing on record to suggest that at any point of time, M.K.Chaturvedi submitted any application in the court of Learned Addl. District Judge, where petition under section 9 of HM Act was pending, that his father had of his own prepared written statement, without his instructions or that his father had utilized blank papers bearing his signatures, in preparing the written statement on his behalf and submitted the same in court or that he would file fresh written statement giving him version. No step was taken by this accused to lead any cogent and convincing to prove this plea of preparation of written statement on blank papers, bearing his signatures. Therefore, the contention raised on behalf Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 25 of 46 of M.K.Chaturvedi that the allegations levelled in the para no. 3,5 and 12 of the written statement be not attributed to him, is without any substance.
It is true that in this case, it is not the case of M.K.Chaturvedi that the objection petition dated 22.08.80 does not bear his signatures or that the same was not presented on his behalf.
It has also been submitted that in the proceedings initiated by the Bar Council against Sh.Y.C.Chaturvedi, Advocate, father of the accusedappellant, Smt.Neelam Chaturvedi, while making statement deposed that the accusedappellant had no knowledge of leveling of defamatory allegations in the affidavit filed by his father, and as such Trial Court should not have held the accusedappellant guilty.
This submission is without any substance. A perusal of statement Ex.CW2/D1 made by Smt.Neelam Chaturvedi, in the proceedings conducted by Bar Council of India, she did not attribute ignorance of knowledge to her husband or his non Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 26 of 46 involvement in filing of the affidavit dated 8.12.1980. It is obvious from her this very sentence, when read in entirety , that this fact, according to her, was the stand taken by her father in law before the Hon'ble High Court.
In view of the material available on record, Court finds that the complainant established on record involvement of M.K.Chaturvedi, accused, in the wrongful act, and that too beyond shadow of reasonable doubt. On the other hand, appellantM.K.Chaturvedi failed to lead cogent and convincing evidence even to probablize his defence plea. Court also does not find it to be a case where two views are possible from the material on record so as to extend benefit of doubt to the accused.
Another contention has been raised that the notice under Section 251 Cr.PC having been served upon the accused persons for an offence under Section 500 IPC read with Section 34 IPC, Trial Court could not hold the accused appellant guilty for an offence under Section 500 IPC.
It is true that the accused persons were put to trial Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 27 of 46 for an offence under Section 500 IPC with the aid of Section 34 IPC, but the Trial Court held the accused guilty of an offence under Section 500 IPC. In the given facts and circumstances established from the material on record, the accusedappellant should have been held guilty not for the offence punishable under Section 500 IPC, but with the aid of Section 34 IPC. But having regard to the substance of accusation clearly explained to the accused in the notice; that the evidence led by the prosecution was put to him and he was given opportunity to crossexamine the witnesses and also to lead defence evidence, Court finds that no prejudice can be said to have been caused when the Trial Court held him guilty of the offence under Section 500 IPC instead of sec.500 r.w.sec.34 IPC, even though notice was served for the offence under Section 500 read with Section 34 IPC, as it appears to be an inadvertant error which has crept in the judgment.
Further, it has been submitted that Trial Court having acquitted the main accused Brij Pal Singh, accused appellant deserved to be acquitted in the case.
This argument is also without any merit, the reason Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 28 of 46 being that acquittal of the three accused put to trial did not absolve the accusedappellant of the criminal liability proved against him.
While arguing on behalf of the appellant that he could not be held liable for the acts done by his Advocateagent, in the petition under Section 9 of Hindu Marriage Act, reference has been made to decisions in:
1. Subbu Chettiar V. Ayyavu Chettiar, AIR 1959 Kerala 342.
2. Saukhi Gope and others vs. Uchit Rai, AIR (35) 1948 Patna, 56,
3. Nirsu Naryan Singh V. Emperor, 27 Cr.L.J. 1926,
4. Himalayan Co.OP Group v. Balwan Singh, 223 (2015) DLT
103.
In Subbu Chettiar V. Ayyavu Chettiar, AIR 1959 Kerala 342, relied on by counsel for appellant, in response to notice issued by the wife, to her husband and father in law, reply was caused to be sent by both of them through their lawyers denying the maintenance claim on account of unchastity of the wife. It was held by the Hon'ble High Court of Kerala that the presumption that so long as the reply of the accused stood Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 29 of 46 proved the accused might be taken to have given instructions therefore was not inevitable seeing that Counsel's volition had intervened and it was unsafe to found criminal liability on the accused on such basis.
In another decision titled as Saukhi Gope and others vs. Uchit Rai, AIR (35) 1948 Patna, 56, while dealing with point of liability of party for the defamatory questions put by the counsel for the said party in cross examination of a witness, it was observed as under :
"where a party to a judicial proceeding is charged under S.499 for the alleged defamatory questions put by his counsel in cross examination, it is not possible to assume that the questions were put upon definite instructions. It would have to be proved and having regard to S.126, Evidence Act it could not possibly be proved unless with the client's express consent which in the circumstances be would hardly be likely to accord. Consequently no one Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 30 of 46 could ever be prosecuted for defamation in regard to any instructions which he might have given to his lawyer. It is the lawyer's business to decide whether he could propertly act upon the instructions, and whatever responsibility might ensue from acting upon those instructions would be his and no one else's.
It would have to be proved, and having regards to S.126 it could not possibly be proved, unless with the client's express consent which in the circumstances he would hardly be likely to accord. It follows from this that no one could ever be prosecuted for defamation in regard to any instructions which he might have given to his lawyer. It is the lawyer's business to decide whether he could properly act upon the instructions and whatever responsibility might ensue from acting upon those instructions would b e his and no one else's. The present attempt to prosecute the petitioners was in the circumstances Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 31 of 46 completely misconceived."
In Nirsu Narayan Singh V. Emperor, 27 Cr.L.J. 1926, on the point of liability of advocate charged with defamation in respect of word spoken or written, Hon'ble Patna High Court observed that advocates in discharge of their onerous and sacred duties must be very careful not to give rise to the faintest suspicion of a personal element in their speech or action as advocates.
In case Himalayan Co.OP Group v. Balwan Singh, 223 (2015) DLT 103, Hon'ble Apex court observed that according to the accepted notion of professional responsibilities, lawyers should follow the client's instructions rather than substitute their judgment for that of the client.
15. Ld. Counsel representing M.K.Chaturvedi has submitted in the course of arguments that while serving a notice U/s 251 Cr.P.C, the Trial Court did not mention therein allegations levelled in the written statement, and as such no reliance can be placed on the allegations available in the written statement.
Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 32 of 46 The criminal complaint came to be filed on the basis of allegations contained in affidavit dated 08.12.80 of Brij Pal Singh filed in petition U/s 9 of H.M.Act. Therefore, while serving notice u/s 251 Cr.P.C, allegations levelled by the respondent in reply to petition U/s 9 of H.M.Act could not find mention in the notice. The allegations levelled in the written statement and the objection petition dated 22.08.80 have been referred to by the opposite side to highlight that affidavit Ex.PW1/A was an intentional act not only of Y.C.Chaturvedi but also of M.K.Chaturvedi, particularly when earlier to it he had put forth similar allegations in the written statement and the objection petition. Court finds merit in the argument advanced on behalf of the complainant that the affidavit Ex.PW1/A came to be filed in the court of Learned Addl. District Judge, by Y.C.Chaturvedi, on 08.12.80, in furtherance of common intention of his coaccused M.K. Chaturvedi and another I.e. the executant of the affidavit, whose identity could not be established during trial. It is not believable that his father filed this affidavit containing objectionable allegations without taking his son, M.K.Chaturvedi into confidence. The decisions cited on Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 33 of 46 behalf of M.K.Chaturvedi on the liability of Advocate or lawyer engaged by a party for the act done by Advocate or lawyer do not come to the aid of the accused, in view of affectionate relationship between the two as father and son, as the father represented his son in the capacity an Advocate as well. It does not stand established that the father of the accusedappellant acted of his own or without consulting the son in the criminal act.
15. Having regard to the above material regarding his pleadings in the petition under H.M.Act, which reveal his mens rea from the very beginning, the fact that as on 08.12.80, M.K. Chaturvedi was not in Delhi or not in attendance before the concerned court of Learned Addl. District Judge, in proceedings U/s 9 of H.M.Act, when affidavit came to be filed and that on that date he was in Varanasi, does not come to his help to absolve him of the criminal liability in defaming his wife by allowing filing of affidavit dated 8.12.1980 containing false and baseless allegations against his wife.
Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 34 of 46 Appeal As regards Brij Pal Singh
16. Sh. Deepak Jain, handwriting and finger print expert appeared as DW2 as regards analysis of the specimen signatures of Brij pal with the disputed signatures available on the affidavit Ex. X, and proved his report as Ex.DW2/A. DW3 Hari Ram Agnihotri was examined in support of defence of Brijpal Singh accused.
Sh. Ram Bhoresa was also examined as DW4 to prove death certificate Ex.DW4/A in support of defence of Brijpal Singh, Accused.
DW3 Hari Ram Agnihotri is a priest from a village in District Farookhabad. He knew Brij Pal Singh, client/ yajman of his fatherinlaw Ram Sevak Pathak. According to the witness, mother of Brij Pal Singh died on 07.12.80 and her dead body was cremated on 08.12.80 at Dhai Ghat Samshabad, Farookhabad, UP on the bank of Holy Ganges. The witness further stated that the dead body was cremated by Brij Pal Singh, under his instructions and as per their custom.
There is nothing in the statement of DW3 or any Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 35 of 46 material from the side of prosecution to disbelief his testimony regarding death of mother of Brij Pal Singh ) or to show that his mother was alive as on 07.12.80 and that on 08.12.80 cremation of her dead body was not done by said Brij Pal Singh. The witness knew about the factum of death of father of Brij Pal Singh before 07.12.80. He also knew that Brij Pal Singh has no sibling. He denied that any place is required to be got booked on payment, at Dhai Ghat.
DW4 Ram Bharose Lal is from Village Narain Pur, Fatehgarh, District Farookhabad. During the period from 1994 to 1996, he was serving as BDO at Time Ganj, District Farookhabad, UP. He was examined to prove death certificate Ex.DW4/A. This document is only a photocopy of death certificate of Smt. Surjo Devi stated to be the mother of Brij Pal Singh. Its original was not proved on record .
In his crossexamination DW4, admitted that the original of its affidavit is not available. This photocopy also does not bear any attestation in original. In absence of due certification/ attestation of this document, which is only a photocopy, no reliance could be placed on this death certificate, Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 36 of 46 as rightly submitted by V.K.Chaturvedi in the course of arguments.
17. The appellant has submitted that in affidavit in question i.e. dated 08.12.80, Brijpal Singh, deponent was stated to be resident of A8748 C/o Raja Ram, Pahari Dhiraj, Delhi, but as per certificate issued by Municipal Corporation of Delhi , no such address existed in the said area, and as such Brijpal Singh, respondent, herein is the person who executed the affidavit.
Trial court record reveals that letter dated 16.12.1980 purported to have been issued by Assistant Assessor and Collector, Sadar, Pahar Ganj Zone, was filed. But this original document was not got proved on record. However, trial court record also contains a certified copy of this letter, exhibited as Ex. PW2/A. This certified copy purports to have been collected from the record of petition U/s.9 H.M. Act. The fact remains that the complainant did not examine in this case any officer from MCD to prove this letter Ex. PW2/A. Therefore, neither reliance can be placed on this document dated Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 37 of 46 16.12.1980 nor it can be said that no such address i.e. H.No. 8748, Pahari Dheeraj, Delhi, existed as on 08.12.1980 i.e. the date of execution of the affidavit. In the criminal complaint submitted by the complainant to the court, the complainant herself mentioned the address of Brij Pal Singh as Village Naraina Mau, Pargana Kampil, PS Kaimganj, Distt. Farukhabad, U.P. As per settled principle of criminal law, in criminal proceedings, it is for the complainant to substantiate all the allegations levelled against accused person. Similarly, here, it was for the complainant to prove that the affidavit Ex. PW1/A filed in petition U/s.9 of H.M. Act was filed by Brij Pal Singh s/o Kutu Lal, arrayed as accused no.3. But complainant could not lead cogent and convincing evidence to suggest that Brij Pal Singh, whose affidavit Ex. PW1/A was submitted before learned Additional District Judge, was the same Brij Pal Singh who was arrayed as accused no.3.
It has been pointed out that a sale deed was executed by Sh. Y.C. Chaturvedi, father of M.K. Chaturvedi, in favour of Brij Pal Singh on 01.12.80 in respect of sale of immovable Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 38 of 46 property by the former in favour of the later, for a sum of Rs.8,500/. The contention is that the affidavit dated 12.08.80 was testified by said Brijpal Singh, in whose favour the sale deed was executed , and that the trial court went wrong in acquitting Brijpal in the case although his participation in commission of the crime stood duly proved.
On behalf of the respondents, it has been submitted that the sale deed was not got duly proved before trial court and as such not exhibited, and therefore this document was inadmissible in evidence.
Trial court would reveal that copy of sale deed dated 01.12.80 executed by Sh. Yatish Chand Chaturvedi was exhibited as Ex.PW1/B in respect of a house situated in Mohalla Mathuria Patwan, Gali Kayam Ganj. The sale deed was executed in favour of Lalman s/o Sh. Horilal r/o Mohalla Mathuria Patwan, Gali Kayam Ganj and Sh. Brijpal Singh s/o Sh. Puttulal Gaganwal r/o Naraina Mau Pargana Pampil.
Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 39 of 46 A perusal of statement of Sh. V.K. Chaturvedi recorded on 19.05.2001 as CW1 would reveal that when he deposed about Sale Deed Ex. PW1/B, objection was raised by the other side. Once the objection was raised to the exhibition of the Sale Deed, learned Metropolitan Magistrate should have specifically recorded the objection raised and then decided the same then and there, after providing reasonable opportunity of being heard to both the sides, so that the complainant could get opportunity to duly prove the execution of the document. It appears that the objection raised by the opposite side to the exhibition of Sale Deed was not decided by the learned Metropolitan Magistrate. But the fact remains that without due proof of this document, same could not be exhibited, as rightly submitted by learned counsel for M.K. Chaturvedi. Even if it is assumed for the sake of argument that Sh.Y.C.Chaturvedi executed this document on 1.12.1980, the sale deed was for consideration and the transfer of the property, was in favour of two persons, and not only in favour of Brij Pal, and that too not by way of gift .
Furthermore, this circumstanceexecution of the sale Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 40 of 46 deed was even not put to Brij Pal Singh accused while recording his statement U/s.313 Cr.P.C. and as such he could not furnish any explanation/reply as regards this document. As a result, it cannot be said that Sh. Y.C. Chaturvedi, father of M.K. Chaturvedi executed any such Sale Deed in favour of Brij Pal s/o Sh. Kutu Lal and another, in respect of a house, on 01.12.1980, for sale consideration of Rs.8500/.
18. Another submission put forth on behalf of the appellant against acquittal of Brijpal Singh is that Brijpal Singh did not lead any evidence in defence and that he failed to discharge onus which was on him to prove that the affidavit dated Ex.PW1/A i.e. dated 08.12.80 was not testified by him or that the same did not pertain to him. Reference has also been made to illustration (g) of Sec.114 of Evidence Act to draw adverse inference against Brijpal Singh, appellant.
It is true that Brij Pal Singh did not step in the witness box as his own witness, but this fact does not go against Brij Pal Singh. In the criminal proceeding, it was for the Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 41 of 46 complainant/prosecution to substantiate the allegations leveled against Brij Pal Singh that the affidavit Ex. PW1/A dated 08.12.1980 was executed by him.
19. In Balwan Singh etc. Vs. State of Haryana, 2005[2] JCC 1021 it was held by Hon'ble Supreme Court, that while the prosecution has to prove its case beyond reasonable doubt, the defence has only to produce evidence or show material on record which probablise its defence.
Similarly in case Chander Bhan Vs. State CBI 1998[2] JCC [Delhi]69 it was held by Hon'ble High Court that an accused is under no obligation to prove his defence. It is sufficient if he comes put with a probable and plausible version. The appellant has put forward a probable and plausible version in the present case.
In case Varkey Joseph Vs. State of Kerala 1993 CAR 264(SC) it was held by Hon'ble Supreme Court, that suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its case beyond all reasonable Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 42 of 46 doubt.
In this regard, reference has also been made to decision in Suresh @ Bona Vs. State 2013 [4] JCC 2876 Reference has been made to decision in Sunil Bansal Vs. The State of Delhi 2007 [2] JCC 1415 it was held by Hon'ble High Court that if two views at charge framing stage exist, based upon the materials available, the view favouring the accused is to be preferred.
20. However, Brij Pal Singh examined in defence DW2, DW3 & DW4. Sh. Deepak Jain handwriting and fingerprint expert was examined as DW2 for Brijpal Singh accused.
Sh. Deepak Jain (DW2) was examined to prove his report Ex. DW2/A as regards comparison of disputed signatures Mark Q1 and Q2 of affidavit dated 08.12.80 Ex.DW1/PX2 with the admitted signatures A1 available on bail application dated 09.03.84 (although the witness initially stated that Mark A1 was available on bail bond dated 09.03.84). It is in the statement of DW2 that he arrived at the conclusion that the disputed signatures Q1 and Q2 were not written by the writer of admitted Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 43 of 46 signature A1. The witness also stated that his reasons and observations were contained in report Ex. DW2/A. It is in his crossexamination that as per principle of 'like compare like' signature in English are compared with signatures in English. He further stated in crossexamination that he had not taken fresh specimen signature of Brijpal Singh, the reason being that according to science of handwriting comparison, admitted signature must be of the period of disputed signature.
21. In view of the above discussion, court does not find any ground to interfere in the judgment of acquittal of Brij Pal Singh passed by the trial court. As a result, appeal filed by Sh. V.K. Chaturvedi, challenging the judgment of acquittal is hereby dismissed.
So far as the judgment of conviction of M.K. Chaturvedi recorded by the trial court, is concerned, in view of the above discussion, court does not find any ground to interfere in the said judgment.
Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 44 of 46 On the point of sentence
22. As regards submission put forth by learned counsel for M.K. Chaturvedi, for release of this appellant on probation is concerned, learned trial court has given good reasons for not extending this concession to the accused. Even otherwise, court finds that the accusedappellant defamed his wife by leveling false and baseless allegations against her, assassinating her character, while contesting her claim for maintenance during pendency of her petition, which she had filed with prayer for restitution of conjugal rights. It is true that the parties have been litigating with each other for about 36 years, marital relationship of the accusedappellant and his wife came to an end with decree of divorce, that the accusedappellant, presently about 62 years of age, faced trial for about 32 years, but neither it can be said that it is the accusedappellant who delayed disposal of the criminal case, nor Court finds to it to be a fit case to extend concession of probation to the convict, having regard to the criminal act in levelling false and baseless allegations against his wife, resulting in defamation. But having regard to all these facts and circumstances, court finds it to be a fit case to modify the Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 45 of 46 sentence awarded to the accusedappellant M.K. Chaturvedi.
Learned Metropolitan Magistrate has awarded substantive sentence of imprisonment for two months and awarded to the complainant compensation to the tune of Rs.1 lac. Court finds that instead of sentencing the accusedappellant to any period of imprisonment the amount of compensation should be enhanced so as to duly punish him and with a view to duly compensate the complainant.
Accordingly, the amount of compensation payable by M.K. Chaturvedi accusedappellant deserves to be enhanced to Rs.1,50,000/ from Rs.1,00,000/ awarded by Learned Metropolitan Magistrate.
As a result, the order on sentence passed by the trial court is modified, by setting aside the substantive sentence of imprisonment awarded to accusedappellant for the offence U/s.500 IPC, and by sentencing to pay a sum of Rs.1,50,000/ to the complainant - victim by way of compensation. The amount Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016 46 of 46 of compensation to be deposited with trial court within 15 days from today. In default of payment of amount of compensation, the accusedappellant shall undergo simple imprisonment for six months.
Consequently, CA No.5/16 filed by M.K. Chaturvedi is disposed of with modification on the point of sentence in the manner indicated above; CA No.14/16 filed by V.K. Chaturvedi is partly allowed with modification on the point of compensation, as regards M.K. Chaturvedi, as indicated above, but the same is dismissed as regards Brij Pal Singh respondent.
Trial court record be returned. Copy of the judgment be sent to the trial court. One copy of judgment be placed in the file of CA No. 14/16. Appeal files be consigned to RecordRoom. Announced in the open Court on this 9th September, 2016.
(NARINDER KUMAR) SPECIAL JUDGE2, NDPS ACT CENTRAL DISTRICT TIS HAZARI COURT:DELHI Mukul Kumar Chaturvedi v. Neelam Chaturvedi & Ors. CA No. 05/16 DoD: 09.09.2016 V.K. Chaturvedi v. M.K. Chaturvedi & Anr. CA No. 14/16 DoD: 09.09.2016