Delhi District Court
Sh. Vivek Sahni vs Smt. Mridula Gupta on 28 January, 2017
IN THE COURT OF MS. MANJUSHA WADHWA
ADJ 08 (WEST), TIS HAZARI COURTS, DELHI
RCA DJ No. 61058/16
Sh. Vivek Sahni
S/o Late Sh. B.D. Sahni
R/o Shop No.43,
South Patel Nagar Market,
New Delhi110008. .......Appellant
versus
1. Smt. Mridula Gupta
W/o Sh. R.S. Gupta
2. Sh. R.S. Gupta
Both R/o Flat No.V, First Floor,
South Patel Nagar Market,
New Delhi110008
3. Sh. Ripu Daman Sahni
S/o Late Sh. B.D. Sahni
R/o 91, Gujrawalan Town,
Model Town, Delhi 110009. .........respondents
Date of Institution : 10.03.2016 Date of Reserving Judgment : 12.01.2017 Date of Judgment : 28.01.2017 J U D G M E N T :
1. This is an appeal filed under Section 341 Cr.P.C against the order dated 08.02.2016 passed by the Court of Ld. Civil Judge06 (West), RCA No. 61058/16 Vivek Sahni vs. Mridula Gupta & ors. ...1/9 Delhi whereby the application filed by the appellant under Section 340 Cr.P.C being M.No. 13/14 titled as Vivek Sahni vs. Ms. Mridula Gupta & ors filed in suit titled as Vivek Sahni vs. MCD & ors has been dismissed.
2. The appellant herein had initially filed suit for mandatory and permanent injunction against the respondent no.1, Ms. Mridula Gupta wife of Sh. R.S. Gupta, L&DO and MCD. During the pendency of the suit, Ms. Santosh Sahni, mother of the appellant filed an application under Order 1 Rule 10 CPC for seeking impleadment in the present suit. The said application got dismissed by the learned trial court vide order dated 12.12.2011. Thereafter, the appellant herein initially filed an application under Section 340 Cr.P.C against the defendant no.3, Ms. Mridula Gupta as respondent No.1 besides impleading Sh. R.S. Gupta, respondent No. 2; Sh. Ripudaman Sahni, respondent no.3, Shri Dhruv Mohan, respondent no.4; Sh. Parth Goswami, respondent no.5; Sh. Praneet Parnav, respondent no.6 and prayed that an inquiry be initiated under the provisions of section 340 CrPC. It is pleaded in the said application that the applicant, Smt.Santosh Sahni did not sign the application under Order 1 Rule 10 CPC and the signature of Smt. Santosh Sahni had been forged and fabricated by the respondent nos. 3 to 6 in connivance and collusion with the respondent no.1 & 2. Reply to the said application was filed by the respondent nos.1 to 3.
3. During the pendency of the said application under Section 340 Cr.P.C, the learned trial court vide order dated 22.03.2012 deleted the RCA No. 61058/16 Vivek Sahni vs. Mridula Gupta & ors. ...2/9 respondent no. 4 to 6 from the array of the respondents on the request of ld. counsel for the appellant.
4. In another application filed under Order VII Rule 11 CPC on behalf of the defendant no. 3, the plaint was rejected vide order dated 17.12.2012. During the pendency of the application, Smt Santosh Sahni appeared before the learned trial court on 16.03.2012 and her statement was recorded on the said date. Thereafter, on 20.03.2012, an application was filed under section 151 CPC by the Appellant whereby, he sought permission to crossexamine Smt. Santosh Sahni. The said application remained pending and the appellant filed another application under Section 151 CPC on 08.02.2016 before the Ld Trial Court with a prayer that the earlier application under Section 151 CPC be disposed of and Smt. Santosh Sahni may kindly be impleaded as respondent no. 3A in an application under Section 340 Cr.P.C. Ld Trial Court vide impugned order dated 08.02.2016 has dismissed both the applications filed under section 151 CPC and an application under Section 340 Cr PC. Hence the present appeal.
5. The main grievance of the appellant is that the learned trial court has violated the principles of natural justice and has decided the application under Section 340 Cr.P.C. along with the aforesaid application under Section 151 CPC filed on 20.03.2012 for seeking permission to cross examine Smt. Santosh Sahni and another application under section 151 CPC for seeking impleadment of Smt Santosh Sahni.
RCA No. 61058/16 Vivek Sahni vs. Mridula Gupta & ors. ...3/9
6. It is also the contention of ld. counsel for the appellant that he was not given an opportunity of hearing before the learned trial Court. He has drawn attention of this Court to the impugned order dated 08.02.2016 whereby it has been recorded as "Nonetheless, I shall proceed to decide both the application in accordance with the material available on record and on the basis of current law of the land". Ld. Counsel for the appellant contended that had the trial court heard the arguments, the same would have been recorded in the impugned order.
7. Ld. counsel for the appellant also contended that the trial court could not have examined Smt. Santosh Sahni under Order X Rule 2 CPC as the provision of Order X Rule 2 CPC can be considered only at the first hearing of the suit i.e. after framing of issues. In support of his contention, ld. counsel for the appellant has relied upon the judgment of Hon'ble Apex Court bearing Criminal Appeal No. 1798/09 titled as Kanwar Singh Saini vs. High Court of Delhi.
8. Per contra, ld. counsel for the respondents submitted that ld. counsel for the appellant has raised all the contentions before the learned trial court and learned trial court has passed the impugned order after giving proper hearing. Ld. Counsel for the respondents submitted that as per the averments raised in application under Section 340 Cr.P.C., signature of Smt. Santosh Sahni has been forged by respondent nos. 3 to 6 in connivance and collusion with respondent no. 1 & 2. He submitted that once the respondent no. 4 to 6 have been deleted from the array of the respondents vide order dated 22.03.2012, nothing RCA No. 61058/16 Vivek Sahni vs. Mridula Gupta & ors. ...4/9 survives in the application under Section 340 Cr.P.C. Ld. Counsel for the respondents has relied upon the judgment of Hon'ble Apex Court reported as 2001 (9) SCC 742 titled as B.K. Gupta vs. Damodar H. Bajaj & ors. in support of his contention that case has not been made out under section 340 CrPC and thus, the present appeal is liable to be dismissed. He has also placed reliance on the judgment of the Hon'ble Apex Court reported as AIR 2010 SC 2809 titled as Kapil Corepacks Pvt Ltd & ors. vs. Shri Harbans Lal (since deceased) through LRs.
9. Heard learned counsel for the parties and perused the record.
10. The main contention of ld. counsel for the appellant is that he has not been given proper hearing before the learned trial court, which he argued is apparent from the perusal of the impugned order. As per impugned order dated 08.02.2016, the counsel for the appellant was present before the learned trial court at the time of passing of the impugned order. The contention of ld counsel for the appellant that the ld. trial court has not recorded in the impugned order in sufficient words that it has heard the ld counsel for the appellant would not draw an inference that he has not been heard at the time of passing of the impugned order. Ld trial court has passed the detailed judgment and has considered the contentions of ld. counsel for the appellant.
11. The further contention of learned counsel for the appellant that the trial court could not have recorded the statement of Smt. Santosh Sahni under Order X rule 2 CPC as the same could be recorded at the first RCA No. 61058/16 Vivek Sahni vs. Mridula Gupta & ors. ...5/9 hearing of the suit i.e. after framing of issues, is misconceived in the facts of the present case. In this regard, suffice is to state that the learned trial court has simply recorded the statement of Smt. Santosh Sahni on 16.03.2012 and has not made mention of provision of Order X Rule 2 CPC while recording statement dated 16.03.2012. Moreover, proceedings under section 340 CrPC is not to be equated with trial of suit.
12.Under Section 340 (i) Cr.P.C., the court is to form an opinion upon an application made to it or otherwise that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in Section 195(1) (b) Cr.P.C. which appears to have been committed in or in relation to proceedings in that court and the court after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and a make a complaint thereof in writing.
13. While forming an opinion under Section 340 (1) Cr.PC, two conditions are required to be satisfied on receiving an application or otherwise as :
(i) person has committed an offence under Section 195 (1) (b) Cr.P.C which appears to have been committed in relation to a proceeding in that court;
(ii) in the opinion of the court, it is expedient in the interest of justice to make an inquiry against such person in relation to the offence committed by him.
RCA No. 61058/16 Vivek Sahni vs. Mridula Gupta & ors. ...6/9
14. The word used in Section 340 Cr.P.C is inquiry and not trial. Section 2 (g) of the Cr.P.C defines "inquiry" as every inquiry, other than a trial, conducted under this Code by a Magistrate or Court. In order to do inquiry, it was within the ample power of learned trial court to record statement of Smt. Santosh Sahni whose signature are alleged to have been forged. The said power can be exercised under section 165 of Evidence Act. Thus, the contention of ld counsel for the appellant that the trial court ought to have not recorded the statement of Smt. Santosh Sahni, is without any merit.
15. Ld. counsel for the appellant has also argued that once the trial court has recorded the statement of Smt. Santosh Sahni, he should have been given an opportunity to cross examine Smt.Santosh Sahni. He submitted that the cross examination of Smt.Santosh Sahni was required as application under Order 1 Rule 10 CPC was filed on 01.11.2011 and she has deposed in her statement before the learned trial court that the application was signed by her in the month of January at Tis Hazari Court itself. This Court is of considered opinion that once Ms. Santosh Sahni has admitted her signature on the application under Order 1 Rule 10 CPC, no fruitful purpose could be achieved by allowing the appellant to crossexamine her. Moreover, inquiry is required to be conducted under Section 340 (1) Cr.P.C. by the Court itself. Not only this, Smt. Santosh Sahni has also filed an affidavit dated 07.02.2012 on 16.03.2012 wherein she stated that the said application was drafted under her instructions and the annexures were filed by her. Thus, there is no merit in the contention of ld.
RCA No. 61058/16 Vivek Sahni vs. Mridula Gupta & ors. ...7/9 counsel for the appellant that the application for seeking permission to crossexamine Smt. Santosh Sahni has been wrongly dismissed.
16. It is also contended by ld. counsel for the appellant that learned trial court has wrongly dismissed the application filed by him under Section 151 CPC for seeking impleadment of Smt. Santosh Sahni as respondent no. 3 A. In this regard, suffice is to state that after the deposition of Smt. Santosh Sahni on 06.03.2012 coupled with her affidavit dated 07.02.2012 filed on 06.03.2012 that she had signed the application under Order 1 Rule 10 CPC, the prayer for seeking her impleadment is abuse of process of law.
17. Even otherwise, the application under section 340 Cr.P.C. is not maintainable as the Apex Court in Appeal (Crl.) 402 of 2005, Iqbal Singh Marwah & Anr. vs Meenakshi Marwah & Anr decided on 11 th March, 2005 has held that Section 195 (1) (b) (ii) Cr.P.C. would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court i.e. during the time when the document was in custodia legis. In the present case, the application under order 1 rule 10 CPC has been filed in the Court subsequently. It is not his case that any offence as enumerated in Section 195 (1) (b) (ii) of Cr.P.C. was committed in respect to the said application after it had been filed before the learned trial court. In other words, the offence should have been committed during the time when the document was in custodia legis. Thus, the remedy, if any, available RCA No. 61058/16 Vivek Sahni vs. Mridula Gupta & ors. ...8/9 to the appellant was to file separate criminal complaint.
18. In view of the above, there is no infirmity and illegality in the impugned order dated 08.02.2016. Appeal is, accordingly, dismissed with no order as to costs. Trial Court record be sent back along with copy of this order.
19. Appeal file be consigned to Record Room.
Announced in the open court (Manusha Wadhwa ) today i.e. 28th January, 2017. Addl. District Judge08 (West) Tis Hazari Court/Delhi RCA No. 61058/16 Vivek Sahni vs. Mridula Gupta & ors. ...9/9