Delhi District Court
Rakesh Kumar Jain vs Dinesh Kumar Gupta on 19 January, 2019
IN THE COURT OF SH. ARVIND KUMAR
SPECIAL JUDGE, CBI-01, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
Cr. Appeal : 48/2018
In the matter of :-
Rakesh Kumar Jain
S/O Late Sh. Manohar Lal Jain
R/O F-9, Preet Vihar
Delhi ........... Appellant
Versus
Dinesh Kumar Gupta
S/O Sh. I.P.Gupta
R/O 55/77, Punjabi Bagh
New Delhi .........Respondent
Date of Institution : 16.04.2018
Date on which reserved for order : 15.12.2018
Date of order : 18.01.2019
ORDER
1 Vide this order, I will be disposing of an appeal filed by the Page No. 1 appellant against the impugned order dated 21.03.2018 passed by Ld. MM holding that there is sufficient material on record to proceed against appellant Rakesh Kumar Jain, Col. Ravi Raj Singh and Rakesh Kumar Sharma qua offence U/S 193 IPC and directing the Reader of the Court to prepare complaint U/S 340 CrPC and to file before Ld. CMM.
2 Brief facts leading to the present appeal are that the appellant has filed a complaint case U/S 499 & 500 IPC titled "Rakesh Kumar Jain Vs. M/s Metcalfe Properties Pvt. Ltd. & Ors.", impleading respondent Dinesh Kumar Gupta as accused no. 3, alleging that accused have defamed him and also narrated an incident of 23.05.2011 of Leela Hotel where accused allegedly used unparliamentary language against appellant (complainant in the complaint case). Ld. Trial Court vide order dated 05.10.2011 while declining to summon accused no. 1, 2, 4, 5, 6 & 8 of the said complaint, observed that the matter was not falling in his jurisdiction and matter be placed before Ld. ACMM. Thereafter vide order dated 18.11.2011, Ld. ACMM/ST/Saket Court summoned the respondent Dinesh Kumar Gupta (accused no. 3 in the complaint case) and one Sh. Suresh Poddar (accused no. 7 in the complaint case).
3 The aforesaid orders were challenged by the respondent as well as Suresh Poddar (both accused in complaint case) and vide order dated 30.03.2014, Ld. Additional Session Judge, South District, Saket set aside the order dated 18.11.2011 and remanded the case to the Ld. Trial Court with directions to look into the evidence brought on record, consider the contentions to be raised and pass speaking order.
Page No. 24 Thereafter on 20.02.2018, Ld. Counsel for the appellant (complainant in the complaint case) withdrew his complaint under Section 499/500 IPC and on the same day Ld. Counsel for the appellant (complainant in the complaint case) as well as Ld. Counsel for the respondent (accused in the complaint case) addressed arguments on the application U/S 340 CrPC filed by the respondent, Dinesh Kumar Gupta alleging that on 23.05.2011, the date of alleged incident at Leela Hotel, Chankayaprui he was out of India and the allegations made in complaint case are false. Vide order dated 21.03.2018, Ld. MM directed the Reader of the Court to file complaint U/S 340 CrPC before Ld. CMM, Delhi against appellant Rakesh Kumar Jain, Col. Ravi Raj Singh and Rakesh Kumar Sharma qua offence U/S 193 CrPC. Against this order the appellant has filed the present appeal.
5 I have heard Ld. Counsels for the parties.
6 Ld. Sr. Counsel for the appellant submitted that the respondent has falsely named the appellant in the petition U/S 340 CrPC filed by respondent. Ld. Counsel submitted that it is clear from the averments made in the complaint case filed by the appellant that the appellant did not name the respondent specifically and categorically in regard to defamatory remarks stated in the complaint case. It is further submitted that respondent has filed a petition U/S 340 CrPC just to pressurize the appellant so that the appellant does not pursue recovery proceedings against all the Directors of the company, M/s Metcalfe Page No. 3 Properties Pvt. Ltd. & Ors. by way of Execution Petition pending before the High Court of Delhi for recovery of Rs.15,84,18,516/- in terms of Award dated 12.10.2015 passed against all the directors of the aforesaid company including respondent no. 1 by the sole Arbitrator. It is submitted that order of the Arbitrator was challenged by the respondent and other judgment debtors before the single Judge of High Court of Delhi in OMP04/2016 which was dismissed vide order dated 27.04.2017 and thereafter the order of the Ld. Single Judge was challenged before the Division Bench of Delhi High Court in FAO (OS) (COMM) no. 134/2017 and thereafter Special Leave Petition No. 27854/2017 was filed which was also dismissed as per order dated 03.11.2017 as the respondents have failed to deposit the directed money.
7 It is further submitted that the order dated 21.03.2018 passed by Ld. Trial Court is without jurisdiction, without considering the material placed before the Court and even the arguments addressed by Counsel for appellant were not discussed in the impugned order. It is submitted that appellant has not named the respondent in his complaint and no specific allegations have been made against respondent in the complaint filed by appellant and the order passed by Ld. Trial Court is based on assumptions.
8 On the other hand Ld. Counsel for respondent contended that appellant has withdrawn his complaint and same has nothing to do with petition U/S 340 CrPC filed by the respondent. It is submitted that in the memo of parties of the complaint U/S 499/500 IPC filed by the Page No. 4 appellant, before the Ld. Trial Court, respondent has been named as accused no. 3, as the main accused. Further summoning order has been passed against respondent (accused no. 3 in complaint case) and Suresh Poddar (accused no. 7 in complaint case). The notice dated 05.07.2011 was sent to respondent demanding Rs.5 Crore for defamation caused to appellant. It is submitted that the contention of Ld. Counsel for appellant that respondent has not been named in the complaint is without any basis.
9 It is also submitted that appellant has entered into witness box and has falsely deposed against respondent and further examined two more witnesses and CW-2 Col. Ravi Raj Singh has clearly named the respondent alleging that respondent has used unparliamentary language against appellant (complainant in complaint case).
10 I have perused the material on record.
11 Before delving on the contentions of counsel for parties it would be relevant to reproduce relevant part of Section 340 Cr. PC and Section 193 IPC. Section 340 (1) of Cr. PC reads as under:-
" 340. Procedure in cases mentioned in Section 195.-(1) When upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub- section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court, or as the case may be, Page No. 5 in respect of a documents produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, -
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance for the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so do do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and given evidence before such Magistrate"
Section 193 (1) IPC reads as under:-
"193. Punishment for false evidence.- Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
..............."Page No. 6
12 There is no dispute on the point that Ld. Trial Court is empowered to make a complaint in writing and send it to Magistrate in respect of offences, defined in Section 195 (1) (b) IPC, appears to have been committed in relation to proceeding in that court. Section 193 IPC provides for punishment for giving false evidence in any stage of a judicial proceedings.
13 It is noted that a complaint case U/S 499/500 IPC was filed by the appellant impleading respondent Dinesh Kumar Gupta as accused no. 3 in the said complaint. The appellant alleged that in a social gathering organized at Hotel Leela, near Chanakya Puri, New Delhi, accused levelled false and frivolous allegations against the appellant (complainant in complaint case) and also abused and shouted on the appellant (complainant in complaint case) and at the same time used unparliamentary language against the appellant (complainant in complaint case). At that time appellant (complainant in complaint case), his associates and his friends were also present in the said social gathering. The appellant sent a legal notice dated 05.07.2011 to respondent (accused no. 3 in complaint case) besides other persons asking them to pay Rs. 5 Crore for the defamation caused to appellant. The appellant (complainant in complaint case) entered into witness box and examined himself as CW-1 and deposed before Ld. Trial Court that in the last week of May, 2011, the appellant was present in one of the social gathering of Sh. Ashok Gupta in a party at Hotel Leela, near Chanakaya Puri and Page No. 7 Directors of the above named companies were also present there and on seeing appellant they started using unparliamentary and abusive language and also told " Dekho Ye Sala Chor Aagaya or iska dhanda dusro ko loot na hai". Further people intervened and he came back to his home immediately. Appellant (complainant in complaint case) further stated that he served a legal notice and explained them what has happened and his intention to file a case against them in the court of law to which they never replied and told appellant that they were well politically connected people and appellant can do whatever he feel as he was not in a position to harm them.
14 The appellant (complainant in complaint case) also examined Col. Ravi Raj Singh as CW-2 and Sh. Rakesh Kumar Sharma as CW-3. Here it is relevant to reproduce the testimonies of CW-2, Ravi Raj Singh & CW-3, Sh. Rakesh Kumar Sharma.
15 CW-2 Ravi Raj Singh deposed as under:-
"On 23.5.2011, I was invited in a party by Ashok Gupta as he was blessed with a grandchild. The party was organized at Leela Hotel, Chanakayapuri which is a 5 star hotel. I know the complainant being member of Rajasthan Club and we kept meeting there. I was present in the party before complainant Rakesh reached there. I was with Dinesh Gupta and Suresh Poddar. Both of them are businessmen. I saw Rakesh Jain entering the party hall, and as soon as he entered the hall, Dinesh Gupta and Suresh Poddar said " Dekho Page No. 8 ye sala chor hai aur fraud karta hai". I was not aware why they were saying so. They used unparliamentary language for Rakesh Kumar Jain and Rakesh Kumar Jain was perturbed and was saying that he has done nothing of this sort. The party was being attended by almost 200 people. They were doing it deliberately and were also threatening Rakesh Kumar Jain. I asked Rakesh Kumar Jain as to why they are saying so, he stated that he himself was not aware as to why they were saying so, but he asked me to protect him as as he was apprehensive of physical assault by Dinesh Gupta, Suresh Poddar and other person with them. Rakesh stayed there for sometime. Rakesh called two persons, one of them was his driver. The language used by Dinesh and Suresh was defamatory and I too felt that the statements were defamatory. Therefore, Rakesh left along with family and after that I also left the party."
Sh. Rakesh Kumar Sharma as CW-3 as under:-
" I am Accounts Manager in Fashion Makers Group, C-129, Sector-63, Noida, whose proprietor is Mr. Rakesh Jain. On 23.05.2011 at around 8.00-8.30 pm I went to Leela Hotel, Chanakayapuri where Mr. Rakesh Kumar Jain was present to seek his signatures on two cheques and fund transfer letters. It was urgent to seek his signatures on above said documents. There was gathering in the hotel, and when I entered party hall, I found Mr. Rakesh Kumar Jain surrounded by some persons who were using abusive language "sale tu party me aane layak nahi hai logo ke paise thagna tera kaam hai aur bahar aane par tujhe dekh lenge". Then I Page No. 9 requested Rakesh Kumar Jain to leave the party as it was not good for him to stay there under such circumstances. Thereafter I along with Rakesh Kumar Jain came out of the party. The language used was defamatory and harmed the reputation of Rakesh Kumar Jain. I have been working with Rakesh Kumar Jain for 4 ½ years and he is a very good person of high reputation."
16 The aforesaid facts clearly shows that appellant has made specific and categoric allegations against respondent Dinesh Kumar Gupta. The appellant (complainant in complaint case) firstly impleaded respondent as an accused in the complaint case filed under Section 499 & 500 IPC for defaming the appellant. Secondly, notice was also sent to accused Dinesh Kumar Gupta besides other Directors of M/s. Metcalfe Properties Pvt. Ltd. & Ors regarding aforesaid defamation. Thirdly, the appellant has stated that accused had used unparliamentary language when appellant was present in Hotel Leela, near Chanakaya Puri in a social gathering. The appellant although did not name the respondent, Dinesh Kumar Gupta in his testimony, however, produced two more witnesses to prove the incident at Leela Hotel and Col. Ravi Raj Singh, (CW-2 in complaint case) clearly named the respondent as the person who had used unparliamentary language against appellant.
17 There is no substance in the contention of Ld. Sr. Counsel for appellant that appellant has not mentioned the name of respondent in the allegations regarding defamation made in complaint. The aforesaid facts leaves no doubt that the allegations regarding using of Page No. 10 unparliamentary language in a social gathering, were imputed to the respondent as clear from the testimonies of appellant and Ravi Raj Singh, who was produced by the appellant as his witness to prove his case. Further, setting aside of the orders dated 05.10.2011 and 18.11.2011 by the Appellate Court vide order dated 31.03.2014 has hardly any bearing on the present matter as Ld. Appellate Court has only set aside the order passed by Ld. MM summoning the accused persons including respondent and remanded the matter to Ld. MM for considering the entire material and then passed the order on summoning.
18 Ld. Sr. Counsel for the appellant also contended that application U/S 340 CrPC was filed by respondent as counter blast to the case filed by appellant against respondent for recovery of amount in terms of the order passed by Ld. Arbitrator.
19 It is noted that the pendency of other civil suits or proceedings has hardly any effect on the application U/S 340 CrPC which was passed on altogether different facts and particularly on incident of May, 2011 at Hotel Leela, near Chanakaya Puri, New Delhi. It has been discussed by Ld. MM that the respondent has placed on record the copies of passport, air tickets and telephone bills to show that he was not in India on 23.05.2011 and false allegations were made against him that he was in present in a party and used unparliamentary language.
20 Thus considering the over all facts and circumstances, I do not find any illegality or any error in the order passed by Ld. Trial Court.
Page No. 11The appeal filed by the appellant has no merit and hence, dismissed.
Digitally signed ARVIND by ARVIND KUMAR KUMAR Date: 2019.01.19 16:33:56 +0530 Announced in the open court (Arvind Kumar) on 19.01.2019 Spl. Judge CBI-01 PHC/New Delhi Page No. 12 CA No : 94/2018 Rakesh Kumar Jain V. Dinesh Kumar Gupta 19.01.2019 Present: Sh. Abhishek Aggarwal, Ld. Counsel for appellant. None for respondent.
Vide separate order, the appeal filed by the appellant is dismissed.
Trial Court Record be sent back.
Copy of the order be also sent to the concerned court.
File be consigned to record room.
Digitally signed by ARVIND ARVIND KUMAR
KUMAR Date: 2019.01.19
16:34:14 +0530
(Arvind Kumar)
Spl. Judge CBI-01
PHC/New Delhi/19.01.2019
Page No. 13