Delhi District Court
Smt. Promila vs Smt. Nashreen Sajid on 18 January, 2012
IN THE COURT OF SH. PRASHANT KUMAR CCJ/ARC TIS HAZARI COURTS
DELHI
Case No. : 69/06
1. Smt. Promila
W/o. Sh. Jagdish Prashad
R/o. 2721, Chatta Partap Singh,
Kinari Bazar, Delhi - 110 006 (PLAINTIFF)
Versus
1. Smt. Nashreen Sajid
W/o. Sh. Syed Sajid Hussain
R/o. R - 14, Ramesh Park, Jharwal Dairy,
Luxmi Nagar, Delhi - 110 092
Also At :
388, Double Story, DDA Flats,
Kabool Nagar, Shahdara, Delhi - 110 032. (DEFENDANTS)
Date of Institution of the Suit : 01.06.2005
Date of reserving the order : 18.01.2012
Date of pronouncement : 18.01.2012
Case No.69/06 1/12
ORDER
1. By this order I shall decide one application u/o. 340 Cr.P.C.
The facts of the case in brief are as under that: Present application has been filed by the applicant/ plaintiff Nasreen alleging that the suit number 446/03 was filed by the plaintiff, who is wife of Jagdish Prashad against the defendant for recovery of Rs. 25,000/ on the basis of false, frivolous and distorted averments and declarations, knowingfully that his averments/ statements and declaration are absolutely false. It is alleged that Jagdish Prashad has filed a false suit, forging the signatures of his wife and intentionally given false evidence in judicial proceedings and to obtaining the favourable order for which he was not entitled and this has cause injuries to the name and reputation of the defendant and his husband. It is alleged that Jagdish Prashad had tendered the false evidence for which he has tendered false plaint before the Court, after putting signatures his wife. Jagdish Prashad has also verified the plaint knowingly that he is not authorize to do so and despite having knowledge of the facts that contents of the suit are false. It is stated by the applicant that Jagdish Prashad has forged the signatures of his wife instead of getting the signs of his wife, thus, has impersonated. It is further alleged that at the time of plaintiff's evidence, Jagdish Prashad filed the Power of Attorney that the said Power of Attorney has been executed by his wife, however, during his cross examination, he is specifically admitted that the plaint was filed by himself, of his own and it was drafted under his instructions and he had signed the plaint after verifying its contents. Jagdish Prashad had also admitted that he was not having the Power of Attorney in his favour at the time of filing of this suit and his wife never came to the Cort to file Case No.69/06 2/12 or sign the plaint and she had never appeared before any Court. Therefore, Jagdish Prashad has committed an offence describe u/s. 195 (1) (b) of Cr.P.C., hence, this petition.
2. In his reply, counsel for respondent has opposed this application and has stated that this application is totally wrong and false, hence, denied. It is alleged that Jagdish Prashad did not filed any false suit nor forged signatures of his wife nor gave any false evidence during the proceedings of the said suit nor the the said suit was filed to obtain any favourable order on the basis of any forged documents. It is further alleged that Jagdish Prashad never tendered any false evidence before this Court and he has not filed any false claim. Power of Attorney has been rightly executed and filed by the Jagdish Prashad. It is further alleged that Jagdish Prashad is an illiterate person and could not understand the English questions, therefore, some confusion might have arisen in giving the answers by him otherwise he has said in his cross examination that he has filed the suit under the oral instructions of his wife and there is nothing illegal in the said saying.
3. Arguments on this application heard at length. Record perused thoroughly. It is stated by the applicant, during arguments, that Jagdish Prashad has filed a false forged and fabricated affidavit and falsely sworn in the Court, hence, he is liable to be punished u/s. 340 Cr.P.C. Record is perused. The main file suit number 446/03 is attached with this miscellaneous file. The plaint is perused. It is reflected from the perusal of the plaint that plaint has been purportedly signed by Smt. Promila, wife of Jagdish Prashad. Perusal of the record further reflects that there is one document, Ex. PW1/16, Special Power of Attorney Case No.69/06 3/12 purportedly executed by the Promila in favour of her husband, Jagdish Prashad, under which she had assigned the power to look after the present suit. Signatures of Promila on this document Ex. PW1/1, which is Special Power of Attorney is perused. The signatures of Promila appended on the main suit are also perused. After comparing the signatures prima facily under the power assigned as per Section 73 of Indian Evidence Act, it is reflected that both these signatures seems to be put by one person as the flow of signatures and depth of writing in both the signatures i.e., the main suit and Special Power of Attorney are almost identical apparently. Now another document Ex. PW1/A, which is affidavit and which has been tendered accordingly, asper the law, reflects any such averment made by Jagidsh Prashad that he had signed or verified the said plaint. Now the cross examination of Jagidsh Prashad is perused, which was conducted on 01.04.2004. In his cross examination PW1, Jagidsh Prashad has alleged that the plaint was filed by himself and it was drafted under his instructions. PW1 has further stated that he has signed the plaint after verifying its contents. PW1 has further explained that he has filed the present petition under oral instructions of his wife, who had never come to the Court but file or sign the plaint. The judgment dated 15.04.2005 vide which the suit of plaintiff was dismissed on merits, is also perused. It has been observed by my Ld. Predecessor and it is the matter of record, which is reflected from the cross examination of PW1, Jagidsh Prashad that he was not having any Power of Attorney in his favour at the time of filing of this suit. Special Power of Attorney, which is Ex. PW1/1 is perused again. This document is dated 17.03.2004 and the present suit has been filed on 27.03.2003. Therefore, this fact alleged by the PW1 that he was not having any Power of Attorney at the time of the filing of the suit is correct, as per the record. Perusal of the record further reflects, however, that the plaint has not been filed by any authorize person but by Case No.69/06 4/12 the wife of the Jagidsh Prashad, Promila herself. Cross examination of PW1, which was recorded on 01.04.2004 is perused again. Nowhere in the said cross examination, the counsel for defendant/ applicant had put any question with regard to the Special Power of Attorney, Ex. PW1/1 raising question with regard to its execution and its alleged falsehood. In these circumstances, therefore, one thing is reflected from the record itself duly executed by the plaintiff, Promila in favour of her husband is not disputed, therefore, this document has to be considered accordingly prima facily as correct and the signatures of the parties on this document, therefore, cannot be question at all by the parties. It has already been observed above from the bare perusal of the Ex. PW1/1 and the plaint, it is admitted that the signatures of Promila are apparently put by one and the same person.
4. Before proceeding further, it is important to discuss here the scope of Section 340 & 195 (1) (b) of Cr.P.C.
Section 195 (1) (b) of Cr.P.C. reads as under: Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence -
(1) No Court shall take cognizance
(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 Case No.69/06 5/12 offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii.) of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii.) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in subclause (i.) or subclause(ii.).
except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.
5. Section 195 (1) (b) (i) Cr.P.C. Speaks about commission of offence punishable under Section 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228. Applicant has alleged that Jagdish Prashad has deliberately filed the false evidence before the Court by placing on record a forged and fabricated plaint on behalf of the plaintiff. It is important to mention here that plaintiff has not been examined in this case and Jagdish Prashad, husband of plaintiff, has been examined as Special Power of Attorney of the plaintiff. During his cross examination, PW, Jagdish Prashad has alleged that the plaint was filed by him and drafted under his instructions and he had signed the plaint after verifying the content of the same. Subsequently, during his cross examination Jagdish Prashad has alleged that plaint was filed under oral Case No.69/06 6/12 instructions of his wife. The examination of PW, Jagdish Prashad has been done as per the law on oath, which has taken place in open Court on 01.04.2004. Therefore, certain facts seems to have been alleged by the Jagdish Prashad that the plaint was not signed by the plaintiff but by the PW, Jagdish Prashad.
6. Section 195 (1) (b) (ii) of Cr.P.C. further talks about the commission of offence described under Section 463, 471, 475 & 476 of IPC. Section 463 IPC talks about the commission of forgery. It is important to mention here that as per the law, such a plea of commission of forgery can be taken by the aggrieved person, the person whose signatures has been allegedly forged by some other person. It is important to mention here that no such plea has been taken by the Promila, the plaintiff who is the wife of Promilla, the plaintiff, who is the wife of Jagdish Prashad that Jagdish Prash had committed the forgery. Promilla has also not been examined in this case suit number 446/03. Therefore, there is nothing available on the record any objection from the side of the plaintiff, Promilla that her signatures has been forged, therefore, Section 463 IPC cannot be said to have been attracted. It is further important to mention here that from the arguments of the applicant, the applicant has not been able to show as to what loss has been caused to him or to his property.
7. In other Sections i.e., 471, 475, 476 IPC are not attracted in the present circumstances.
8. Now Section 340 Cr.P.C. is taken up, which reads as under: Section 340 Cr.P.C. Procedure in cases Case No.69/06 7/12 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 interest of justice that an inquiry should be made into any offence referred to in clause (b) of subsection (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, 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,
(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 of the accused before such Magistrate, or if the alleged offence is nonbailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.
(2)The power conferred on a Court by sub section (1) in respect of an offence may, in any case where that Court has neither made a complaint under subsection (1) in respect of that offence nor rejected an Case No.69/06 8/12 application for the making of such complaint, be excercised by the Court to which such former Court is subordinate within the meaning of subsection (4) of Section 195.
(3)A complaint made under this Section shall be signed,
(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
(b) in any other case, by presiding officer of the Court.
(4) In this section, "Court" has the same meaning as in Section 195.
9. The condition which are to be fulfilled before invoking Section 340 Cr.P.C. for giving false evidence are two folds i.e. (i.)That a person has given false affidavit or false evidence in a proceedings before a Court.
(ii.)That any opinion of the Court it is expedient in the interest of justice to make any enquiry against such person in relations to the offence committed by him.
No sanction for prosecution should be granted if this Court is prima facie satisfied with the offence as alleged has been committed by an individual against whom the proceedings in a Criminal/Civil Court are being taken. It must also be satisfied that it is in the public interest that the criminal Case No.69/06 9/12 proceedings is to be instituted . It is to form such opinion that a preliminary enquiry is to be made by the Court u/sec. 340 Cr.P.C. It was observed in Santokh Singh Vs. Ijhar Ahmad AIR 1973 Supreme Court of India 2190 .
10. It is important to mention here that it is laid down under Section 340 Cr.P.C. that if Court is on the opinion that an enquiry should be made into any offence referred under Section 195 (1) (b) of Cr.P.C., then, Court may direct to such enquiry as deem fit necessary. Record is perused again. It has already come on record that Promilla, plaintiff was never examined by and on behalf of the plaintiff. It is also reflected from the record that Jagdish Prashad in his affidavit nowhere has stated that he has put his signatures on he plaint, however, during his cross examination, recorded on 01.04.2004, he has stated so.
11. Coming down to the conditions to be fulfilled for evoking the condition 340 Cr.P.C., it is reflected from the record that no such false statement has been given by the Jagdish Prashad in his affidavit, Ex. PW1/1. Certain things have been emerged, during his cross examination dated 01.04.2004. Therefore, the fact alleged by the Jagdish Prashad cannot be said to have controverted any of his statement mentioned in his affidavit, therefore the first condition, as mentioned above, is not applicable here in this case. The judgement dated 15.04.2005 is also perused, wherein no observation has been given by my Ld. Predecessor, while pronouncing judgement dated 15.04.2005 with regard any false fact alleged by Jagdish Prashad may be relevant with regard to the facts alleged by the Promilla, he plaintiff, in this suit number 446/03, however, Jagdish Prashad, cannot be said to have stated any fact falsely on his behalf, whether the facts alleged by the Jagdish Prashad, during his cross Case No.69/06 10/12 examination is amount to furnishing the false fact by the plaintiff, Promilla in suit number 446/03 is a matter of contradiction, which is however, not under consideration, while deciding this petition as it has not been filed against Promilla, therefore, no observation on this aspect can be given by the Court, whether the plaintiff has presented false and wrong facts before the Court or not. In these circumstances, therefore, I am of the opinion that there is no need to initiate any enquiry under Section 340 Cr. P.C. Or the alleged offence committed by the Jagdish Prashad, as alleged by the applicant. Therefore, the application filed by the applicant under Section 340 Cr.P.C is devoid of any merits, hence, file be consigned to Record Room.
Announced in Open Court (Prashant Kumar)
Dated 18.01.2012 CCJ/ARC/Tis Hazari/Delhi
Case No.69/06 11/12
Suit. No. : 69/06
18.01.2012 Present: Counsel for applicant.
Sh. O.P. Gupta, Counsel for respondent.
Arguments on application u/s. 340 Cr.P.C. heard at
length. Vide separate order sheet application is dismissed.
File be consigned to Record Room.
(Prashant Kumar) CCJ Cum ARC/North Tis Hazari Courts, Delhi 18.01.2012 Case No.69/06 12/12