Delhi District Court
Vide This Order vs Marykutty George Page 1 Of 19 on 25 November, 2014
IN THE COURT OF SH. LALIT KUMAR:
ADDITIONAL DISTRICT JUDGE 01 SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CS 364/2013
Shajan K. Thomas
Versus
Marykutty George
ORDER:
25.11.2014
1. Vide this Order, I shall decide application under Order 340 Cr.P.C. moved by the plaintiff. It is submitted that plaintiff has filed a suit against defendant no.1 for a decree of damages of Rs. 10 lakhs and the defendant filed the written suit in the suit alongwith certain documents. It is further submitted that after the issuance of the legal notice and filing of the instant suit, the defendant submitted various bogus complaints against the defendant to the Hospital authority of his wife, Government and Police. It is submitted that the plaintiff had filed a complaint against the defendant for forgoing the signatures of 3 office bearers of the Society in the letters submitted to the Hospital authority. That the respondents have formed a separate group in the society and have engaged into unlawful activities against the defendant. It is CS-364/2013 Shajan K. Thomas Vs. Marykutty George Page 1 of 19 reliably learned that respondents are illegally spending fund of the society for the litigation of defendant, which is not authorised by the byelaw of the society and the applicant is taking necessary steps to curb the corruption in the society with the help of authorities. The plaintiff has gone through the written statement documents filed by the defendant and having understood the contents of thereof and the documents produced thereto. That on enquiry, secretary of the society Mrs. Purnima chibbar informed that she did not prepare the minutes, which is produce by the defendant / Respondent no.1. It is submitted that the Secretary of the Society is authorised to an in charge of the preparation of minutes of meeting of society. Mrs. Purnima Chibbar informed the Applicant that she did not see the minutes book, which is produced by the defendant before the Court. That the Annexure D3 minute is not the original minutes of the meeting of the society. It is a forged document. The last pages of the minutes are seen, signed by nine office bearers. However, Secretary of the society Mrs. Purnima Chibbar, Vice President Mr. Vikas Yadav and executive member Mr. Prasanna Babu declared and stated that any of the signatures shown in the minutes is not belonging to them. Mrs. Deepa Lazarus (Joint Secretary) informed the Applicant that any of the signatures shown in the minutes is not belonging to her. Therefore, it can be presumed that at least three signatures in the minutes are forged and the defendants had cheated not only the plaintiff but this Court also. Copy of attendance CS-364/2013 Shajan K. Thomas Vs. Marykutty George Page 2 of 19 Register and minutes produced by defendant with the statements of the secretary of the society Mrs. Purnima Chibbar, Vice President Mr. Vikas Yadav and executive member Mrs. Prasanna Babu is annexed here with as Annexure1. Statements given by Secretary of the society Purnima Chibbar, Vice President Vikas Yadav and executive member Prasanna Babu is annexed here with as Annexure2 (colly). It is further submitted that a general body meeting was convened on 11.08.2013, however 114 members and executive committee members did not attend the meeting as claimed in the written statement. Only about 75 persons had attended in the meeting. It is further submitted that "Annexure D2 of written statement" is a forged document for the purpose of producing before the Hon'ble Court in order to show that Mrs Kim and Mrs. Lissy had not attended the meeting. It was revealed that participant "no. 36 Suman Lata"
had also signed as participant "no. 105" in the same attendance register. An RTI information reveals that participant "No.78 Ashok Kumar" who has signed in the attendance register was on duty in RML hospital at the time of meeting. Participant "No.18 KT Jose" has also written his name as "serial no.109" of the attendance register. Therefore, it is submitted that the minutes and attendance register were forged to produce before the Court. The original minutes and attendance are secreted by the Respondents. Mrs. Lissy Shajan, wife of the applicant filed an application to the Secretary of Society for the inspection minutes book and CS-364/2013 Shajan K. Thomas Vs. Marykutty George Page 3 of 19 books of account of the society as per the byelaws. However by a reply dated 04.12.2014, Secretary informed Mrs. Lissy Shajan that the minutes book and books of account of the society are kept by Mrs. Marykutty from the beginning. It is submitted that the secretary is the custodian of the byelaws of the society. Reply dated 04.12.2014 given by the secretary of the society Purnima Chibbar to the Application filed by Mrs. Lissy Shajan for the inspection of minutes book and books of account of the society is also annexed as Annexure 3. It is further submitted that the Respondents by conspiring together fabricated attendance register and submitted it to this Hon'ble Court with a fraudulent intention to show the Court that the Key witnesses of Applicant / plaintiff Mrs. Kim and Mr. Lissy did not attend the meeting held on 11.08.2013. That the Respondents by conspiring together, fabricated the minutes book of meeting held on 11.08.2013 by putting fabricated and forged signatures of the Joint Secretary, Executive Member and Secretary and submitted to this Court with fraudulent intention to show the Court that no defamatory statement was made by the Respondent no.1 in the meeting held on 11.08.2013 and with ulterior purposes. It is also submitted that the defendant had sworn supporting affidavit of the written statement knowing that the contents of the same are not true. Therefore, the respondents had committed offence of fabricating and giving false evidence, forgery for cheating, secreting documents and cheating by personation and punishable u/S. 193, 196, 120B, 204, 419 CS-364/2013 Shajan K. Thomas Vs. Marykutty George Page 4 of 19 and 468 r/w 34 and allied provisions of IPC and is a fit case to be enquired by this Hon'ble Court u/S. 340 of Cr. P. C and take appropriate steps to punish them according to law. It is therefore prayed that an enquiry u/S 340 Cr. P.C. About the offence of the respondent be conducted and he finding to the effect be recorded and a complaint be made and the same may be send to the concerned Magistrate.
2. In reply to the said application, it is stated that the applicant / plaintiff has not only concealed material facts but also relied documents which is not attached or which is issued by any competent authority and that all the averments made in the application are made with malafide intention and ulterior motives to mislead this Court. It is further submitted that the respondent / defendant is an elected President of the Central Government Hospital Burses Complex Allottees Welfare Society which is registered under Societies Registration Act of 1860 dated 13.12.2006. As per the decision of the Executive Committee of the said Society, a Genral Body Meeting was assembled on 11.08.2013 at the Community Hall in the Complex. The defendant presided over the meeting and members and Executive Committee Members attended the meeting. The General Body meeting had discussed various common issues and decisions were taken. The main issue of discussion was about the disturbance and interference of the applicant with the works of the above said Society. The applicant is acting with ulterior motive to CS-364/2013 Shajan K. Thomas Vs. Marykutty George Page 5 of 19 disturb the functions of the Executive Committee of the said society. It is further submitted that it is not clear from the statement 'that after issuance of the legal notice and filing of the instant suit, the defendant submitted various bogus complains against the Defendant to Hospital authority of his wife, Government and Police". It is submitted that the defendant has not submitted any / various bogus complaints against the applicant / plaintiff to hospital authority of his wife, Government and Police. It is a fact that plaintiff / applicant had filed various frivolous and bogus complaints to various authorities. It is not in the knowledge of the respondent / defendant that the plaintiff / applicant had filed a complaint against the respondent /defendant for forging the signatures of 3 office bearers of the Society in the letters submitted to the Hospital Authority. It is denied that the respondents have formed a separate group in the Society and have engaged into unlawful activities against "Defendant". It is submitted that the answering respondent has not formed a separate group in the Society and have not engaged into unlawful activities. It is further denied that the defendant is illegally spending fund of the Society for the litigation of the defendant which is not authorised by the byelaws of the society. It is further denied that the Annexure - D3 minute is not the original minutes of the meeting of the Soecity. It is denied that it is a forged document. It is submitted taht al the signatures in the Annexure D2 and Annexure D3 documents are original signatures of the respective members. The CS-364/2013 Shajan K. Thomas Vs. Marykutty George Page 6 of 19 applicant /plaintiff is put to strict proof of authenticity of authorship of Annexure 1 and Annexure 2 (colly) attached with the present application under reply. The secretary of the Society considers herself it lowering her status by writing the minutes and keeping documents. Ms. Purnima Chibber is highly educated and well placed in the Government sector. So, the other members volunteered to keep documents, registered and prepare documents. It is pertinent state that once the secretary of the society tried to destroy the minutes book at the instance of the applicant. It is further submitted that the signature of the secretary Ms. Purnima Chibber and signatures of the members of the society in the minutes which is produced by the respondent / defendant alongwith the written statement is original signatures of the respective authors. It is denied that Ms. Purnima Chibbar did not see the minutes which is produced by the respondent before the Court. The last page of minutes is signed by nine members who are highly educated and well placed in the Government Sector, however, as stated by the applicant, if secretary of the sopciety Mrs. Purnima Chibber, Vice President Mr. Vikas Yadav and Executive Member Mrss. Prasanna Babu declared and stated that any of the signatures shown in the minutes is not belonging to them are false statement before the Court of law hence they have committed offences affecting the administration of justice. They are to be tried as per the provisions of section 340 of the Code of Criminal Procedure Code, 1973. If Mrs. Deepa Lazarus (Joint Secretary) CS-364/2013 Shajan K. Thomas Vs. Marykutty George Page 7 of 19 informed the applicant that any of the signatures shown in the minutes is not belonging to her, both may be put to strict proof of the same. From the avernments para 5 cannot draw any presumption that at least three signatures in the minutes are forged and the respondent had cheated not only the plaintiff but the Court also as all the statements are wrong and untrue. It is stated that it is true that on 11.08.2013 a General Body was held and 114 members and executive members attended who have signed in the attendance book as serial numbers shown in the attendance book. It is denied that it is only about 75 persons had attended the meeting. It is further denied that Annexure D2 of Written Statement is not the copy of attendance register of the meeting. It is denied that Annexure D2 of written statement is a forged document for the purpose to show that Mrs. Kim and Mrs. Lissy had not attended the meeting. The attendance book in question was circulated among the participants who attended the meeting and all of them signed voluntarily. The anwering respondent was presiding over the meeting and was not personally monitoring the signatures and names of the participants hence the answering respondent cannot say that the particpant 'No.36 Suman Lata' had also signed as partipant 'No. 105' in the same attendance register. However, the attendance book shows name of Suman Lata in two columns. The other averment in the para 6 that an RTI information reveals that particpant 'No. 78 Ashok Kumar' who had signed in the attendance register was on duty in CS-364/2013 Shajan K. Thomas Vs. Marykutty George Page 8 of 19 RML hospital at the time of meeting is wrong and hence denied. The respondent has personally interacted with the said 'No.78 Ashok Kumar' during the time of meeting. Itis pertinent to state that the applicant has not attached the copy of the RTI information alongwith and he may be put to strict proof of the same. It is further submitted that one name appears in the serial no. 109 of the attendance register as "KT Jose", however there is no signature is seen. It may have occurred by an inadvertent mistake by the person above named or a volunteer who was helping the participants to sign on the attendance register. It is further submitted that the above inadvertent mistakes crept in attendance book is not intentional, thereby misguide this Court and to take any undue advantage or to interfere with the administration of justice. It is further submitted that all the averments are false and imaginary and hence denied and that it is a fit case to be enquired by this Court u/S. 340 of Cr. P.C. Against the applicant / plaintiff. It is further submitted that the applicant / plaintiff is not entitled to the reliefs prayed in the application on the contrary liable to be dismissed with compensatory cost of the defendant / respondent. It is therefore prayed that this Court may direct to conduct an enquiry u/S. 340 of the Code of Criminal Procedure Code, 1973 against the applicant and also direct to conduct an enquiry u/S. 47 and 73 of the Indian Evidence Act, 1872.
3. I have heard the arguments and have perused the relevant CS-364/2013 Shajan K. Thomas Vs. Marykutty George Page 9 of 19 record. The main contention of the applicant / plaintiff is that defendant had forged the signatures of some of the members of the society and has filed the forged documents before this Court alongwith her written statement. It is argued by the Counsel for the applicant / plaintiff that the Annexure D3 which is filed alogwith the WS is not the original minutes of the meeting of the society and it is a forged document. It is argued that the Secretary of the society and the Vice President of the Society and one Executive Member Mr. Prasanna Babu declared that they had not signed the minutes of meeting. The Joint Secretary also stated that no signatures of her on the Minutes of the meeting. It is argued that atleast 3 signatures on the minutes are forged. It is further argued on behalf of the plaintiff that the General Body Meeting was convened on 11.08.2013, wherein at serial no. 78 Ashok Kumar who had signed in the attendance register was on duty in RML hospital at the time of meeting. It is submitted that the attendance register was forged to produce before the Court. Ld. Counsel for defendant has denied all the allegations levelled against defendant. It is argued that nothing has been produced on the record which is a false or bogus document. It is argued that plaintiff / applicant had filed various bogus and frivolous complaints to various authorities. Defendant argued that the minutes of the meeting produced on the record are genuine and are the original minutes of the meeting of the society. The signatures of all the office bearers are genuine. The original minutes CS-364/2013 Shajan K. Thomas Vs. Marykutty George Page 10 of 19 book of the society is a genuine document. It is argued that if the Secretary, Vice President and the Executive Member Mr, Prasanna Babu stated that any of the signatures formed in the minutes of the meeting not belonging to them, are false statement before the Court of law, hence they have committing the offences affecting Administration of Justice.
4. I have gone through the records and the argument raised before me. The bare perusal of Section 340 Cr.P.C. shows that "when upon an application made to Court on behalf of the parties, or otherwise, any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub section (1) of Section 195 of Cr.P.C. Which appears to have been committed in or in relation to a proceeding in that court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect, made a complaint thereof in writing, send it to a Magistrate of the First Class having jurisdiction. Thus the power under Section 340 Cr.P.C. r/w Section 195 IPC can be exercised only where someone fabricates false evidence or gives false evidence. The core of the section is 'inquiry should be made into any offence', 'appears to have been committed in or relation to a proceeding in the Court' and ' in respect of a document produced or given in evidence in proceeding in that Court'. In any of the case, the Court may CS-364/2013 Shajan K. Thomas Vs. Marykutty George Page 11 of 19 conduct a preliminary inquiry."
The intention of the legislature while enacting this act was to deter people not to give any false and frivolous evidence in the Court of law. It is apparent from the record that whatever documents alleged to be forged, are the documents pertaining to the society and these documents were at the time of alleged fabrication, were in the custody of the society. No forgery has been done after filing of these documents from the judicial record. The factum of their genuineness or the forged one, can only be decided after getting their authenticity of the documents by leading evidence or by calling the experts in the witness box. Since, the alleged forgery has not been done in the Court, hence plaintiff had other option also to initiate action against the defendants. It is the case of the defendant that plaintiff had already initiated complaint against him at various forums. In Iqbal Singh Marwah Vs. Meenakshi Marwah, 2005(4) SCC 370 it is held by the Hon'ble Supreme Court that "33. ............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 the 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."
5. In Bank of India Vs. Vijay Transport & Ors. (2000) 8 SCC 512, it is held that property custodia legis means that the property is kept in the possession and under the protection of Court.
CS-364/2013 Shajan K. Thomas Vs. Marykutty George Page 12 of 196. In Chajoo Ram v Radhey Shyam (Dua.J.) AIR 1971 Supreme Court 1367 "The prosecution for perjury should be sanctioned by Courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defects its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the Court should be satisfied that there is reasonable foundation for the charge."
7. In S.P. Kohli vs. High Court of Punjab & Haryana (Jaswant Singh, J.) AIR 1978 Supreme Court 1753, it is held that "16. All this apart, the impugned order cannot be sustained for another reason. It is now well settled that prosecution for perjury should be sanctioned by courts only in those cases where it appears to be deliberate and conscious and the conviction is reasonably probable or likely. It is also well recognised that there must be a prima facie of deliberate falsehood on a matter of substance and the Court should be satisfied that there is reasonable CS-364/2013 Shajan K. Thomas Vs. Marykutty George Page 13 of 19 foundation for the charge."
8. In B.K. Gupta Vs. Damodar H. Bajaj and Others 9 SCC 742 it is held that "3. From the above, it follows that there are two conditions on fulfilment of which a complaint can be filed against a person who has given a false affidavit or evidence in a proceeding before a Court. The first condition being that a person has given a false affidavit in a proceeding before the Court and, secondly, in he opinion of the Court it is expedient in the interest of justice to make a enquiry against such a person in relation to the offence committed by him".
9. In Punjab Tractors Limited Vs. Unternational Tractors Ltd. & Ors. 167 (2010) DLT 490 it is held that The sole purpose of this litigation is on the personal grudge between the plaintiff and defendant. The applicant has adopted this process of Court through this vexatious and frivolous applicaiton on failing other alternative remedies. The Hon'ble High Court of Delhi taken the following view its one of the decisions.
"18. In my opinion, an application u/S. 340 of Cr.P.C. Ought to be normally considered at the time of final decision of the case only and not at the interim stage as the defendants / applicant have pressed in the present case. It is the settled legal position that the said provision cannot be resorted to, to satisfy a private grudge of the litigant. In fact the very genesis of this provision is to CS-364/2013 Shajan K. Thomas Vs. Marykutty George Page 14 of 19 prevent complaints being filed of offences having being committed in relation to the Court proceedings; it was felt that if such compaints are permitted to be filed, the same may be used to force the other party into giving up its claim / defence or to dissuade witnesses from appearing before the Courts under threat of criminal prosecution. It was held as far back in Rewashanker Moolchand v. Empror, AIR 1940 Nagpur 72 that proceedings u/S. 340 Cr.P.c. Should not be resorted to when the criminal case is calculated to hamper fair trial of issue in the civil Court before which the matter would probably go on for longer. This Court also in M/s. Jindal Ployester Ltd. V. Rahul Jaura, 124 (2005) DLT 613 and in Kuldeep Kapoor V. Susanta Sengupta, 126 (2006) DLT 149 has held that applications u/S 340 of the Cr.P.C. Should be dealt with at the final stage only and not at the interim stage. I also find a consistency of view in this regard in the other High Courts. The law is that a prosecution for perjury should not be ordered by the Court before the close of the proceedings in the case in which false evidence is given. It is highly wrong for a Court to take action under the said provision against a witness or a party for giving false evidence when trial is underway.
19. Section 340 of the Cr.P.C. Cannot be resorted to when genuineness of documents alleged to be forged and false in a case was still subject matter of a pending civil suit. The application is thus liable tot be dismissed on this CS-364/2013 Shajan K. Thomas Vs. Marykutty George Page 15 of 19 ground alone. The question of deferring the decision on the application does not arises since the Counsel for the defendants / applicants had been warned in this regard as noted herein above."
It is further held that "21. Formation of prima facie opinion that a person charged has intentionally given false evidence is a condition precedent for directing lodging of a complaint. The existence of mens rea or criminal intention behind act complained of will have to be looked into and considered before any action u/S. 340 of the Cr.P.c. is recommended. Before setting the criminal law into motion, the Court should exercise great care and caution and it must be satisfied that there is reasonable foundation for the charge in respect of which prosecution is directed. No prosecution ought to be ordered unless reasonable probability of conviction is found. Considering the nature of the documents and evidence in relation whereto offences are alleged to have been committed, I find the said ingredients to be lacking in the present case." It is further held that "23. It cannot be only loss sight of that in criminal prosecution there is waste of public funds and time of Courts. For this reason also in every case of perjury the Court would not mechanically take cognizance or direction prosecution. Prosecution should be ordered only when it is considered expedient and in the interest of CS-364/2013 Shajan K. Thomas Vs. Marykutty George Page 16 of 19 justice to punish the delinquent. Every incorrect or false statement does not make it incumbent on the Court to order prosecution."
10. The main ground for filing the present application of the plaintiff/applicant as alleged by the appellant that respondent by conspiring together fabricated attendance register to show the Court that the key witnesses of applicant/plaintiff Ms. Kim and Mrs. Lissy did not attend the meeting held on 11.08.2013 by putting forged and fabricated signatures of Mrs. Deepa Lazarus (Joint Secretary), Mrs. Prasanna Babu (Executive Member) and Mrs. Poornima Chibbar (Secretary) with the intention to show that no defamatory statement was made by the respondent no.1. Defendant had sworn supporting affidavit of the written statement knowing the contents of the same are not true. Applying the case of Iqbal Singh Marwah (supra), we can easily conclude that the whole allegations of the plaintiff are based on the documents filed by the defendant which were prepared outside the Court and which cannot be construed as an affidavit or evidence in a proceeding before the Court. In fact, the very genesis of this provision is to prevent the complaint being filed of the offences having been committed in relation to the Court proceedings. But during the court proceedings, nothing as such happened which give rise to the situation wherein the proceeding u/S. 340 Cr.P.C. could be resorted. Moreover in Punjab Tractors Limited (supra) CS-364/2013 Shajan K. Thomas Vs. Marykutty George Page 17 of 19 wherein it has been held that the genuineness of the alleged document to be forged and false in a case was still subject matter of the pending civil suit, the application is liable to be dismissed on this ground alone.
11.In view of the above background, the genuineness of the document alleged to be forged fabricated in this case is still a subject matter which is pending and in the present suit also, the alleged fabricated attendance register submitted to this court has been prepared outside the Court before filing that on the record. Moreover, for the alleged fraud, plaintiff has already filed complaint before other appropriate forum. The suit is at the preliminary stage. It is also to be kept in mind that plaintiff had filed this suit for compensatory and punitive damages. The nature of the suit reveals that the present suit is a suit of defamation. The litigation is between the office bearers of the society. It is a settled legal position that the provision of Section 340 Cr.P.C. cannot be resorted to, to satisfy a private grudge of the litigant. An application u/S. 340 Cr.P.C. ought to be normally considered at the time of final decision of the case only and not at the interim stage. Section 340 of the Cr.P.C. cannot be resorted to when genuineness of document alleged to be forged or false in a case, was still subject matter of a pending civil suit and the application is thus liable to be dismissed on this ground.
12.Keeping in view the facts and circumstances of the present CS-364/2013 Shajan K. Thomas Vs. Marykutty George Page 18 of 19 case, no action u/S. 340 Cr.P.C. is warranted at this stage. Consequently, the application u/S. 340 Cr.P.C. filed by the plaintiff is dismissed and accordingly disposed off.
Announced in the open (LALIT KUMAR) court on 25.11.2014. Additional District Judge 01(SE) Saket Courts, New Delhi.
CS-364/2013 Shajan K. Thomas Vs. Marykutty George Page 19 of 19 CS 364/2013 15.11.2014 Present : Proxy Counsel for the plaintiff Ld. Counsel for the defendant No time left. Put up for Orders on 25.11.2014. ( LALIT KUMAR ) ADJ1(South East) Saket Courts New Delhi/15.11.2014 CS-364/2013 Shajan K. Thomas Vs. Marykutty George Page 20 of 19 CS 364/2013 25.11.2014 Present : Proxy Counsel for the plaintiff Ld. Counsel for the defendant
Vide separate Order, the application u/S. 340 Cr.P.C.
moved by the plaintiff is dismissed.
Put up for framing of issues on 22.12.2014.
( LALIT KUMAR ) ADJ1(South East) Saket Courts New Delhi/25.11.2014 CS-364/2013 Shajan K. Thomas Vs. Marykutty George Page 21 of 19