Delhi District Court
M/S. Dalip Kumar Jamiat Ram & Co vs Narain Das S/O Sh. Sughna Mal on 21 September, 2019
IN THE COURT OF Ms. NEHA MITTAL: CIVIL JUDGE10, CENTRAL,
TIS HAZARI COURTS : DELHI
M. No.59599/16
M/s. Dalip Kumar Jamiat Ram & Co.
(Acting through its partner Sh. Jamiat Ram)
C37, New Subzi Mandi, Azadpur, Delhi. .... Applicant
Versus
1. Narain Das S/o Sh. Sughna Mal,
2. Rajan Kumar @ Sunil Choudhary S/o Sh. Narain Dass
both of M/s. Narain Dass Sunil Choudhary,
C/o Shed No.6, Phar No.9, Transport Centre,
New Subzi Mandi, Azadpur, Delhi.
3. Sh. Ashok Khurana, President M/s. Apple Exporters
Association, C71, New Subzi Mandi, Azadpur, Delhi.
4. Parmanand @ Pamma S/o Sh. Bhagwan Dass,
Vice President M/s. Apple Exporters Association,
C71, New Subzi Mandi, Azadpur, Delhi.
5. Harbans Lal, General Secretary, M/s. Apple Exporters
Association, C71, New Subzi Mandi, Azadpur, Delhi.
6. Bhagwan Chand S/o Sh. Sat Ram Dass,
C/o M/s. Om Parkash Sat Ram Dass & Co. C34,
New Subzi Mandi, Azadpur, Delhi.
7. Harish Kumar S/o Sh. Shamu Mal, Partner
M/s. Khem Chand Harish Kumar, Shed No.6,
Phar No.10, New Subzi Mandi, Azadpur, Delhi.
8. Ashok Kumar Sole Proprietor
M/s. Ashok Kumar & Co., Shed No.6,
Phar No.8, New Subzi Mandi, Azadpur, Delhi.
9. Jagdish Kumar, Partner of M/s. Kumar Fruit,
Shed No.6, Phar No.7, New Subzi Mandi,
Azadpur, Delhi. ....... Respondents
Date of Filing : 23.9.94
Date of Reservation : 11.9.19
Date of Order : 21.9.19
No 59599/16
DALIP KUMAR JAMIAT RAM Vs. NARAIN DASS
Page No.1/7
ORDER
1. Vide this order, I shall dispose of the application filed by the applicant u/s. 340 Cr.P.C.
2. Brief facts are that the respondents no.1 to 3 are parties to the suit, who have intentionally raised dispute with regard to Phar number of applicant with a view to subvert his claim. It is averred that despite the fact that there is authentic record filed by the applicant in the shape of allotment letter of the DDA and also of M/s. Apple Merchant Association (Regd.) regarding payment of licence fee, showing the allotment and lawful possession of the applicant, the said respondents have unnecessarily raked controversy with regard to Phar number; that the respondents no.1 to 3 procured false affidavits of respondents no.6 to 9 through the aid and assistance of respondents no.4 and 5 to the effect that M/s. Narain Dass Sunil Choudhary was occupying Phar no.10B, Shed no.6 for the last about four years and further that the respondents no.6 to 9 were occupying the different sheds as stated in their respective affidavits; that both Sh. Jamiat Ram partner of the applicant and his son Sh. Madan Lal conversed with the respondents no.6 to 8 individually and succeeded in secretly tape recording the said conversation; that in the course of conversation, the respondent no.6 has admitted that he had not sworn any affidavit but his signatures had been obtained on blank papers by the respondent no.2 & 4 under pressure and further that he was not a partner of M/s. Om Parkash Satnam Dass & Co., and had no competence to sign and swear such an affidavit; that during the course of conversation, the respondent no.7 conceded that the affidavit given by him was totally false but it was given at the instance of respondent no.4 & 5 as the leaders of the association i.e. M/s. Apple Exporters Association wanted it to be mentioned; that the said respondent not only conceded that the Phar number written by him regarding himself was wrong but also frankly admitted that he knew the Phar number of the applicant which was No.9; that it has No 59599/16 DALIP KUMAR JAMIAT RAM Vs. NARAIN DASS Page No.2/7 also been conceded by the respondent that the sheds had been allotted by the DDA although they were being distributed by the Apple Exporters Association but he could not state under what authority the said Association was competent to make any such distribution or allocation; that during conversation, the respondent no.8 admitted that the affidavit in question had been signed by him on the dictates of respondent no.4 and other people of the association; that he also admitted that his firm was in occupation of Phar no.8 which was previously in occupation of M/s. R.T. allotted to R.T. by the DDA ; that he also admitted that the Phar number of the applicant was No.9; that admissions made by the respondent no.8 was also confirmed by Sh.Moti Lal, partner of R.T.; that both respondents no.8 and Sh. Moti Lal have also admitted that the Phar number of respondent no.9 was No.7 and not No.8 as stated by him in his affidavit and the affidavits in question were prepared as per the dictates of the association; that the respondents entered into a criminal conspiracy to delay and defeat the lawful claim of the applicant and in pursuance thereof, the respondents no.3 to 5 procured false affidavits of respondents no.6 to 9 by bluff; that similarly, the respondents no.6 to 9 also knew and had reasons to believe that the papers signed by them were being converted into affidavits were factually wrong and were intended to be used in the present judicial proceedings but they knowingly assisted the other respondents in the fulfillment of their vicious designs. Hence, the present application.
3. Reply has been filed on behalf of plaintiff/ respondent stating that the present application has been moved simply to harass the respondents / defendants no.1 and 2 and others knowing fully well that the Phar and shed in question i.e. Shed no.6 and Phar no.9, Transport Centre, New Subzi Mandi, Delhi has not been in the possession of the defendants nor at the time of filing the present suit they were the owners and / or allottees of the said Phar; that in fact the said Phar in question was allotted to M/s. Narain Dass Sunil Chaudhary since 1990 and they are No 59599/16 DALIP KUMAR JAMIAT RAM Vs. NARAIN DASS Page No.3/7 in actual physical possession thereof and carrying on their business activities uninterrupted right up to this date.
4. I have heard arguments advanced on behalf of the parties and perused the record.
5. The present application has been filed in the name of M/s. Dalip Kumar Jamiat Ram & Co. through its partner Sh. Jamiat Ram. However, Sh. Jamiat Ram has already expired and thus the partnership firm has automatically dissolved as per Section 42 (c ) of Partnership Act. Even if it is assumed that the present application was filed in personal capacity, no steps have been taken by the LR of applicant for his impleadment in the present matter despite specific directions vide order dt. 25.4.19 and 15.5.19. Rather, it was submitted on behalf of applicant that LR has already been impleaded. However, neither there is any such application on record nor any order of impleadment.
6. Copies of transcript between the parties have been filed on behalf of the applicant to support its contention. However, the same have not been approved in accordance with law. These transcripts are stated to be one tape recorded conversation. However, neither cassette containing the original conversation has been produced nor has it been stated as to who prepared the said transcript from the conversation. Hence, it cannot be looked into for any purpose.
7. It is also to be mentioned that the respondents have placed on record copy of order dt. 10.7.18 passed in complaint case no.154/1/14. The said complaint has been filed by Madan Lal S/o Jamiat Ram u/s. 465/467/468/471/420 IPC. It is to be noted that Section 340 CrPC creates a bar against taking cognizance of an offence in certain specified situations except upon complaint by the court. In the present No 59599/16 DALIP KUMAR JAMIAT RAM Vs. NARAIN DASS Page No.4/7 case, when the applicant himself had filed a complaint then no question of bar u/s. 195 CrPC applies. The power u/s. 340 CrPC is to be invoked only in those limited situations where there is bar in filing of private complaint.
8. The purpose of Section 195 and 340 of Cr.PC is to bar private prosecution where the course of justice is sought to be subverted, leaving to the Court itself to uphold its dignity and prestige. Accordingly, safeguard is given under Section 195 and 340 of Cr.PC in the form that any offence committed in course of the proceedings in any Court can be taken cognizance of, only on a complaint made by the Court in whose proceedings such offence had taken place. It has been held by Hon'ble Supreme Court of India in Sachidanand Singh Vs. State of Bihar (1998 2 SCC 493) and in Iqbal Singh Marwah Vs. Minakshi Marwah and another (Supreme Court, Criminal Appeal No. 402 of 2005) that the scope of preliminary inquiry envisaged under Section 340 Cr.PC is to ascertain whether the offence affecting the administration of justice has been committed in respect of a document produced in the Court or given in evidence in a proceeding in that Court.
9. In other words, the offence should have been committed during the time when the document was in custodia legis. In case, a document has been forged far outside the precincts of the Court and long before its production in the Court, it cannot be treated as one affecting the administration of justice merely because that document later reached the Court records.
10. The conclusion of the above discussion is that the bar contained under section 195 (1) (b) (ii) of the Criminal Procedure Code is not applicable to a case where a forgery of document was committed before the documents was produced in a Court, and in such case, no inquiry under Section 340 Cr.PC and no complaint No 59599/16 DALIP KUMAR JAMIAT RAM Vs. NARAIN DASS Page No.5/7 by the Court would be necessary and a private complaint would be fully maintainable.
11. It is not the case of the applicant that the documents / affidavits had been forged while they were in the custody of the Court. Rather, it has been stated in para 8 of the application that the respondents knowingly signed the papers which were to be converted into factualy wrong affidavits and were intended to be used in the judicial proceedings. Accordingly, as per plaintiff's own averments, no case for inquiry under Section 340 Cr.PC is made out.
12. Further, the law is well settled that it is not in every case of falsehood that proceedings u/s. 340 Cr.PC ought to be resorted to. It must be resorted to only in rare cases where it is absolutely necessary in the interest of justice. What is important is the opinion of court that it is expedient in the interest of justice to proceed under this provision. This provision need not to be resorted to in every case. Reference in this regard is being made to the observations made in the case of Jagjit Kaur vs. Lt. Col. Harjeet Singh 2000(1) JCC Delhi 28. It has been held therein that it is not the law that every false statement should attract the provision of section 340 CrPC. If the court is to notice every falsehood that is sworn to by the parties in courts, there would be very little time for courts for any serious work other than directing prosecution for perjury.
13. The gravity of false statement, the circumstances under which such statement is made, the object of making false statement and its tendency to impede and impair the normal flow of the course of justice are matters for consideration.
14. Similarly, it has been held in Santokh Singh vs. Izhar Hussain AIR 1973 SC 2190 that every incorrect or false statement does not make an incumbent on the No 59599/16 DALIP KUMAR JAMIAT RAM Vs. NARAIN DASS Page No.6/7 court to order prosecution. The court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency. The court orders prosecution in the larger interest of administration of justice and not to gratify feelings of personal revenge or to serve the ends of private party.
15. In the present case, neither can it be said that there is prima facie evidence to show that false statement has been made by respondent nor it can be said that the interest of justice requires the initiation of prosecution u/s. 340 CrPC.
16. With these observations, the application u/s. 340 Cr.P.C. is dismissed.
17. No order as to costs.
18. File be consigned to the record room after necessary compliance.
Digitally signed NEHA by NEHA MITTAL
Announced in the open MITTAL Date: 2019.09.21
16:34:37 +0530
Court on 21.09.2019 (Neha Mittal)
Civil Judge10 (Central)
THC/Delhi
No 59599/16
DALIP KUMAR JAMIAT RAM Vs. NARAIN DASS
Page No.7/7