Delhi District Court
Vineet Kumar Tyagi vs Si Sandeep Kumar on 14 October, 2015
1
IN THE COURT OF SH. GURDEEP SINGH, ADDITIONAL
SESSIONS JUDGE, NEW DELHI DISTRICT, PATIALA HOUSE
COURTS, NEW DELHI.
Criminal Appeal No. : 21/15
Unique Case ID No. : 02403R0158312015
CC No.: 235/1/2015
U/s : 340 r/w 195 (1) (b) (i)
PS : Tilak Marg
Title :
1. Vineet Kumar Tyagi, Advocate
Office of : Library IInd
Supreme Court of India
New Delhi .... Appellant
Versus
1. SI Sandeep Kumar
PS Tilak Marg
New Delhi
2. Bhagat Singh Chauhan
S/o Sh. Trilok Singh
st
R/o : A360, Moti Bagh1
New Delhi.
3. Govt. of NCT of Delhi .... Respondents
Date of Institution : 25.08.2015
Date of reserving : 13.10.2015
Date of pronouncement : 14.10.2015
C.A. No.: 21/15 Vineet Kumar Tyagi v. SI Sandeep Kumar Etc. Page 1 of 14
2
JUDGMENT
1. Vide this judgment, I shall decide the present appeal directed against order dated 16.07.2015 passed by Learned Metropolitan Magistrate, New Delhi District, Patiala House Courts, New Delhi in CC No.235/1/2015, titled as Vineet Kumar Tyagi, Advocate v. S. I. Sandeep Kumar & Ors whereby an application u/s 340 Cr.PC was dismissed.
2. The bare reading of appeal does not make out as to what are the facts and lacks clarity. The facts, however, as culled out from the present appeal, appears that an FIR No.164/14, PS Tilak Marg, u/s 420/468/471 IPC was registered against the appellant on the complainant of Bhagat Singh Chauhan, respondent no.2 herein. In nutshell, the FIR was in respect of cheating and forgery committed by the appellant of Rs.3 lacs in cash and cheque of Rs. 2 lacs on the pretext of getting job of son of the complainant at Hon'ble Supreme Court of India. It appears that in respect of those cheques, complaint u/s 138 of N. I. Act by appellant was filed. The investigating officer of police case made request before the court of Ld. Metropolitan Magistrate Ms. Swati Katiyar for release of original cheque and C.A. No.: 21/15 Vineet Kumar Tyagi v. SI Sandeep Kumar Etc. Page 2 of 14 3 cash receipts for the purpose of investigation to take expert opinion. The said application was directed to be put up on 06.09.2014 in case file no.183/1/14. However, on 06.09.2014 vide order of learned Metropolitan Magistrate, the cash receipt and cheque were directed to be released to IO, however, certified copies of both the documents were directed to be kept on record. In the order of Ld. MM, the CC No. is written as 12/1/14 titled as Vineet Kumar Tyagi v. Bhagat Singh Chauhan. The seizure memo of documents was also prepared by IO. Thereafter an application/complaint for offence punishable u/s 340 r/w S. 195 (1) (b) (i) of Cr.PC was filed by the appellant and impugned order is passed by learned Metropolitan Magistered whereby dismissing the said application/complaint.
3. Notice of the appeal was given to respondents. Trial Court Record received. Perused.
4. I have heard Sh. R. K. Dubey, Ld. Counsel for the appellant and Sh. Arun Kumar, Ld. Addl. PP for State and respondents. I have also gone through the record.
5. Although the facts as mentioned in the appeal are not comprehensive. However, I have tried to make some sense out C.A. No.: 21/15 Vineet Kumar Tyagi v. SI Sandeep Kumar Etc. Page 3 of 14 4 of it and mentioned the facts. The facts as mentioned in the present appeal are that the complaint u/s 195 (1) (b) (i) r/w S. 340 Cr.PC was filed and order passed due to wrong statement by respondent on 03.09.2014 before the trial court. The application dated 03.09.2014 was moved by respondents in the trial court (it should be by IO). It is also mentioned that the trial court is habitual defaulter in (sic) passing wrong and complicated judgment as well as having expertization to divert the attention on the main law point and the judgments cited in the order are irrelevant . In the previous application dated 23.09.2014 u/s 195 (1) (b) (i) r/w S. 340 Cr.PC but the said application was decided by the court below on 29.01.2015, against which criminal appeal is already pending (Reference to another application not relevant for present appeal). It is also stated that respondent no.1 had moved an application dated 03.09.2014 before trial court for taking original cheque no. 179123 and original cash receipt in case no. 183/1/14 but in the said case, the cheque and cash receipts were not filed by the complainant but he had filed the same in case no. 12/1/14 (on behalf of insufficient fund u/s 138 of N. I. Act) which is pending trial and therefore, the IO in illegal manner succeeded in taking C.A. No.: 21/15 Vineet Kumar Tyagi v. SI Sandeep Kumar Etc. Page 4 of 14 5 the original cheque and the cash receipt and is liable to be punished u/s 166 of IPC. It is also stated that two cases are already pending against respondent no.1; one in Hon'ble High Court of Delhi for quashing FIR and another case is 183/1/14 before Ld. MM which is complaint against IO with respect to documents taken away by IO from the court record.
6. It is also mentioned that the respondents are habitual cheater and disobedient of law and respondent no.2 firstly took Rs.5 lacs from the appellant and thereafter appellant sent demand notice which he never replied and thereafter the appellant filed police complaint in PS Tilak Marg, New Delhi but the respondent no.1 demanded Rs.50,000/ to lodging FIR but appellant not paid bribery so his genuine FIR not lodged and fake FIR of respondent no.2 lodged by respondent no.1.
7. In the grounds for appeal, it is mentioned that the application was decided u/s 195 (1) (b) (ii) of Cr.PC instead of u/s 195 (1)
(b) (i) of Cr.PC and therefore the order is liable to be set aside. It is also prayed that the sentence u/s 199 IPC be passed against respondent and u/s 167 IPC for obtaining incorrect document record.
C.A. No.: 21/15 Vineet Kumar Tyagi v. SI Sandeep Kumar Etc. Page 5 of 14 6
8. Written memorandum of arguments were also filed and similar submissions were made. It is also mentioned that the court below corruptly made in judicial proceeding so on this behalf u/s 210 of IPC r/w Section 197 as well as Crl. Writ Petition may be lied (it should be may lie) and it is also mentioned that since judgments of hon'ble Supreme Court of India have been wrongly and irrelevantly cited, it is contempt of Supreme Court.
9. It is also pertinent to mention that when the case was listed for arguments before this court, another application u/s 340 r/w Section 195(1) (b) (i) and Section 357 (1) (b) of Cr.PC was moved against Sh. Anil Dhyani, Advocate who was appearing for the respondent, stating therein that on the previous date of hearing, on the question of filing vakalatnama, the advocate made a statement that due to atrocities of the appellant his client namely Bhagat Singh Chauhan suffered heart attack so he was unable to move the vakalatnama on the record and same statement was made in the court of Sh. S. C. Rajan, Ld. Special Judge (P. C. Act), CBI03, Patiala House Courts, New Delhi and medical document was filed. It is stated that the said document is fake (which is filed in other court) and counsel has made false statement and is liable to be punished u/s 199 IPC. It is also C.A. No.: 21/15 Vineet Kumar Tyagi v. SI Sandeep Kumar Etc. Page 6 of 14 7 prayed that the counsel for respondent be punished.
10. Firstly coming to the order of Learned Metropolitan Magistrate.
Ld. Metropolitan Magistrate has observed, to quote, :
12. In this case at hand, firstly, the provisions under S. 340 r/w S. 195 (1) (b) (ii), Cr.PC 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, which is not the case herein. Secondly, in my opinion even otherwise the averments in the present application cannot be said to be an offence affecting the administration of justice. Thirdly, the reason given for initiating proceedings under S. 340 Cr.PC is that for ulterior purpose the original documents of CC No. 183/1/14 have been taken by accused no.1 in conspiracy with the accused no.2 is false and clearly to hamper the investigation of FIR No. 164/2014 of PS Tilak Marg. Fourthly, on perusal of the record, it is mainfest that the basic concern of the complainant in the present application is that after the filing of the complaint case against the accused no.2, the accused no.2 has made a complaint at PS Tilak Nagar and consequent upon it an FIR against the complainant has been lodged and thus this application is filed. Mere averments to this effect is not sufficient for exercising powers under S. 195 r/w S. 340 Cr.PC. In view of the C.A. No.: 21/15 Vineet Kumar Tyagi v. SI Sandeep Kumar Etc. Page 7 of 14 8 foregoing discussion, the application is hereby dismissed.
11. Ld. Counsel for the appellant submits that he had moved the application u/s 195 (1)(b)(i) r/w Section 340 Cr.PC whereas Learned Metropolitan Magistrate has decided the application u/s 195 (1) (b) (ii). The section 195 (1)(b)(i) Cr.PC reads as under : 195 (1)(b)(i) .. of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, section 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or...
12. In the application on which the impugned order was passed, it is stated that accused person, by way of cheating, moved application mentioning wrong complaint number and misguided and mislead the hon'ble court and liable to be punished u/s 420, 199 of IPC and u/s 12 of Contempt of Courts Act, 1973. It is also stated that by taking those documents offence punishable u/s 166 IPC is also made out for not taking permission of the court. It is also stated that there are three cases pending in the same court which are as follow:
(i) CC No. 12/1/14, U/s 138 N. I. Act C.A. No.: 21/15 Vineet Kumar Tyagi v. SI Sandeep Kumar Etc. Page 8 of 14 9
(ii) Complaint Case u/s 156 (3) Cr.PC read with Section 200 of Cr.PC vide Case No. 183/1/2014
(iii) FIR No. 164/2014, PS Tilak Marg, New Delhi
(iv) Criminal Complaint Case No. 224/1/2014, which was dismissed by Ms. Snigdha Sarvaria, Hon'ble MM, New Delhi.
13. As per Section 195 (b) (i) Cr.PC, the offences u/s 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228 falls under the category where the court is debarred for taking cognizance when such offence is alleged to have been committed in, or in relation to, any proceeding to any court.
14. In respect of these offences, the procedure as mentioned in Section 340 Cr.PC is required to be followed.
15. The allegations in the complaint are that the IO had moved the application mentioning case No.183/1/14 and documents have been received which were filed in Case No. 12/1/14 and thereby IO misguided and mislead the court. However, Learned Metropolitan Magistrate has dealt with application on the premise that this is with respect to a document which is forged at a time prior to its production or giving in evidence in court C.A. No.: 21/15 Vineet Kumar Tyagi v. SI Sandeep Kumar Etc. Page 9 of 14 10 cannot strictly speaking, be said to be an offence affecting the administration of justice. The present complaint is, however not with respect to the documents. In fact what is alleged is that by mentioning different case number, the documents were taken which was in different file.
16. The offence against which bar is provided u/s 195 (1)(b) (ii) Cr.PC are in the nature of forged documents or counterfeiting devices etc. Therefore this is not alleged that the documents, received on application filed by IO before court was in any manner forged.
17. However, coming to other aspect whether this amount to offence punishable u/s 420 and 199 IPC and 12 of Contempt of Courts Act to attract bar u/s 195 (1)(b)(i) Cr. PC. It cannot be disputed that the FIR was registered in this case against appellant for the offence of cheating and forgery on the complaint of Sh. Bhagat Singh Chauhan, respondent no.2 herein, and those are the relevant documents for the purpose of investigation. It is also cannot be disputed that the IO is not entitled to investigation in respect of those document and is also not entitled to apply to court and to receive the documents. The only grievance is that C.A. No.: 21/15 Vineet Kumar Tyagi v. SI Sandeep Kumar Etc. Page 10 of 14 11 the application of the IO finds mentioned the both document have been filed in case No. 183/1/14, a case u/s 138 NI Act by the alleged Vineet Kumar Tyagi whereas the number of the complaint for offence u/s 138 NI Act is 12/1/14. It is mentioned in the application u/s 340 Cr.PC itself of the appellant that four cases have been pending in the same court having different number and case no. 183/1/2014 is regarding complaint u/s 156 (3) Cr.PC. IO has categorically mentioned in his application about the complaint under Section NI Act, filed by Vineet Kumar Tyagi. Merely by putting different number of case which is also between the same parties and pending in the same court, does not in any manner amount to cheating and it should be at the most an inadvertent mistake.
18. Ld. Metropolitan Magistrate has dismissed the application not only on the ground of the forged documents filed, but on the other ground also that the present application cannot be said to be an offence affecting the administration of justice and application u/s 340 Cr.PC is moved for ulterior purpose. I am in fully agreement with Learned Metropolitan Magistrate on this aspect.
C.A. No.: 21/15 Vineet Kumar Tyagi v. SI Sandeep Kumar Etc. Page 11 of 14 12
19. It is for the court to consider whether in the matter it is expedient in the interest of justice to proceed with the inquiry u/s 340 Cr.PC. Hon'ble Supreme Court, Constitution Bench, in case titled as Iqbal Singh Marwah v. Meenakshi Marwah reported as AIR 2005 Supreme Court 2119, wherein the question regarding the bar u/s 195 (1) (b) (ii) in respect of cases where the documents have been forged was before the Hon'ble Apex Court. However, with respect to proceedings u/s 340 Cr.PC, the Hon'ble Supreme Court of India has observed:
23. In view of the language used in Section 340 Cr.PC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195 (1) (b), as the section is conditioned by the words 'court is of opinion that it is expedient in the interest of justice'. This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that ti is expedient in the interest of justice that enquiry should be made into any of the offences referred to in Section 195 (1) (b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice....
C.A. No.: 21/15 Vineet Kumar Tyagi v. SI Sandeep Kumar Etc. Page 12 of 1413
Emphasis supplied.
20. Learned Trial Court has rightly observed that the proceedings have arisen because of ulterior motive and therefore cannot be termed as same are affecting the administration of justice.
21. Coming to application moved before this Court u/s 340 Cr.PC.
Notice of the application was not given to the counsel for the respondent for simple reason that such application u/s 340 Cr.PC is abuse of process of the court as every word uttered at bar are taken note of and converted to an application for contempt. If one goes by definition of the counsel for the appellant of contempt, everyone would be liable for contempt of the court. The application u/s 340 Cr.PC moved before this court as well as the present appeal is abuse of the process of the court. The language used against learned Trial Court is not language which is to be used in judicial proceedings. Every word spoken at bar does not attract contempt. Moreover, even on the facts of the appeal as well as application u/s 340 Cr.PC moved before this court, the offence as alleged for initiation of enquiry u/s 340 Cr.PC are not made out.
22. In view of discussion above, I am of the opinion that order dated C.A. No.: 21/15 Vineet Kumar Tyagi v. SI Sandeep Kumar Etc. Page 13 of 14 14 16.07.2015 passed by Learned Metropolitan Magistrate, Patiala House Court, New Delhi does not call for any interference. Accordingly the appeal is dismissed. The application u/s 340 Cr.PC filed before this Court against counsel for respondent is also dismissed.
23. The trial court record be sent back alongwith copy of the order.
24. Appeal file be consigned to record room.
Announced in the open court today i.e. on 14.10.2015 (GURDEEP SINGH) ADDITIONAL SESSIONS JDUGE NEW DELHI/14.10.2015 C.A. No.: 21/15 Vineet Kumar Tyagi v. SI Sandeep Kumar Etc. Page 14 of 14