Calcutta High Court
Ankur Malik vs Calcutta Medical Centre Ltd on 2 May, 2023
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
IA No: GA 6 of 2022
In CS 68 of 2011
Ankur Malik
Versus
Calcutta Medical Centre Ltd.
Mr. Abhrajit Mitra, Sr. Adv.
Mr. Satadeep Bhattacharya
Mr. Subhankar Chakraborty
Mr. Saptarshi Bhattacharjee
... for the plaintiff/petitioner.
Mr. Utpal Bose, Sr. Adv.
Mr. Sayantan Basu
Ms. Tanaya Ghose
Mr. Raghunath Ghose
Ms. Pritha Ghose
Ms. Shusna Santra
... for the defendant/respondent.
Heard on : 04.04.2023 & 05.04.2023
Judgment on : 02.05.2023
2
Krishna Rao, J.:
The plaintiff has filed the instant application under Section 340 of the Code of Criminal Procedure, 1973 for grant of sanction to prosecute Mr. Raghib Hasnain for committing offences by filing false, untrue, misleading statement by way of an affidavit before this Court in the proceeding of CS 68 of 2011.
The plaintiff submits that in the affidavit-in-opposition filed by Mr. Raghib Hasnain being the Director of the defendant Company in connection with GA 4 of 2022 which was affirmed on 29th July, 2022 stating the following at para 3 (x) and para 9 which reads as follows :
"3(x). It was also agreed that the said Dr. Ashok Kumar Gupta and/or their family members have deposited the original title of the said property to the investors of the said property and the same shall remain charged in favour of the said investors till payment of all sums due and payable by the respondent..............."
"9. The existence of tenancy in respect of suit property is denied and disputed. The respondents are the owner of the said property."
The plaintiff submits that the respondent has filed another petition under Section 144 (2) of the Code of Criminal Procedure against Dr. Kalpana Chakravarty, daughter of late Smt. Prema Gupta being MP Case No. 178 of 2022 in the Court of the Learned 10th Metropolitan Magistrate at Kolkata which has been supported with an affidavit duly affirmed on 26th March, 2022 by one Mr. Anup Karmakar, being the authorized representative of the respondent, Calcutta Medical Centre Limited wherein it is stated that : 3
"Your petitioner is a tenant of late Smt. Prema Gupta since 1990 and has been enjoying khas possession of the said portion and occupying the same and using the same for its commercial purpose."
Mr. Abhrajit Mitra, Learned Senior Advocate representing the plaintiff submits that the above statements have been affirmed as true to the knowledge of the authorized representatives of the defendant i.e. Calcutta Medical Centre Limited.
Mr. Mitra submits that the affidavit-in-opposition filed on 29th July, 2022 is to mislead this Court and to interfere with the administration of justice by abusing the process of the Court and thus it is necessary to grant sanction to prosecute Mr. Raghib Hasnain for committing perjury.
Mr. Mitra submits that Mr. Raghib Hasnain by affirming a false affidavit in the present case has committed an offence punishable under Sections 193/200/207 and 209 of the Indian Penal Code.
Mr. Mitra relied upon the Judgment reported in (2001) 5 SCC 289 (In Re: Suo Motu proceedings against R. Karuppan) submits that at common law courts took action against a person who was shown to have made a statement, material in proceedings, which he knew to be false or did not believe to be true. The offence committed by him is known as perjury.
Mr. Mitra relied upon the Judgment reported in 2011 (121) DRJ 328 (Sanjeev Kumar Mittal vs. State) and submits that making false averments in the pleading pollutes the stream of justice. It is an attempt at 4 inviting the Court into passing a wrong judgment and that is why it must be treated as an offence.
Mr. Mitra submits that still the defendant is continuing with both the proceedings though the respondent had the knowledge that they have made a false and fabricated statement on affidavit in different proceedings in relation with same matter.
Mr. Mitra relied upon the judgment reported in MANU/SCOR/90108/2022 in Criminal Appeal No. 335 of 2022 dated 15th September, 2022 (State of Punjab vs. Jasbir Singh) and submits that the Court is not obliged to make a preliminary inquiry on a complaint but if the Court decides to do so, it should make a final set of facts which is expedient in the interest of justice that offence should be further probed into.
Mr. Utpal Bose, Learned Senior Advocate representing the respondent submits that the suit filed by the plaintiff is pending and the same is still to be decided. He submits that it is the case of the respondent that the Directors and/or shareholders of the company have by entering into the agreement for sale have became the part owners of the suit property and are in possession of the suit property.
Mr. Bose submits that there has been no misstatement made by the respondents. The affidavit-in-opposition filed by the respondent was affirmed on 29th July, 2022 by Mr. Raghib Hasnain being one of the Directors of the respondent Company and in the said opposition, it was 5 mentioned that as per the agreement dated 24th October, 1999 and it was agreed that Dr. Ashok Kumar Gupta and/or their family members shall deposit the original title of the said property to the investors of the said property and the same shall be remain charged in favour of the said investors till payment of all sums due payable to the respondent under several agreements executed between the respondent and Dr. Ashok Kumar Gupta, their family and the investors.
Mr. Bose by referring paragraphs 3 (xxii), (xxiii) and (xxiv) of the affidavit-in-opposition in GA 4 of 2022 in CS 68 of 2011 and submits that the respondent has made out a specific case and the said two agreements were duly annexed with the affidavit-in-opposition and there is no question of false statement or committing perjury.
Mr. Bose submits that it cannot be said that the affidavit affirmed on 26th March, 2022 by Mr. Anup Karmakar before the Court of 10th Metropolitan Magistrate and the affidavit-in-opposition in G.A. No. 4 of 2022 by one Raghib Hasnain are both affirmed by same person.
Mr. Bose relied upon the judgment reported in 1971 (1) SCC 774 (Chajoo Ram -vs- Radhey Shyam and Another) and submits that 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. He submits that 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.
6Section 340 of Cr.P.C. 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, 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 non-bailable 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 application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (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 the presiding officer of the 1 Court [or by such officer (4) In this section, "Court" has the same meaning as in Section 195.'' 7 The Supreme Court in the case of K.T.M.S. Mohd. Vs. Union of India reported in (1992) 3 SCC 178 has held as under:-
''35. In this context, reference may be made to Section 340 of the Code of Criminal Procedure under Chapter XXVI under the heading "Provisions as to Offences Affecting the Administration of Justice". This section confers an inherent power on a court to make a complaint in respect of an offence 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, if that court is of opinion that it is expedient in the interest of justice that an enquiry should be made into an offence referred to in clause (b) of subsection (1) of Section 195 and authorises such court to hold preliminary enquiry as it thinks necessary and then make a complaint thereof in writing after recording a finding to that effect as contemplated under sub-section (1) of Section 340. The words "in or in relation to a proceeding in that court" show that the court which can take action under this section is only the court operating within the definition of Section 195(3) before which or in relation to whose proceeding the offence has been committed. There is a word of caution inbuilt in that provision itself that the action to be taken should be expedient in the interest of justice. Therefore, it is incumbent that the power given by Section 340 of the Code should be used with utmost care and after due consideration. The scope of Section 340(1) which corresponds to Section 476(1) of the old Code was examined by this Court in K. Karunakaran v. T.V.
Eachara Warrier and in that decision, it has observed:
"At an enquiry held by the Court under Section 340(1), Cr.P.C., irrespective of the result of the main case, the only question is whether a prima facie case is made out which, if unrebutted, may have a reasonable likelihood to establish the specified offence and whether it is also expedient in the interest of justice to take such action....
The two per-conditions are that the materials produced before the High Court make out a prima facie case for a complaint and secondly that it is 8 expedient in the interest of justice to permit the prosecution under Section 193 IPC."
36. The above provisions of Section 340 of the Code of Criminal Procedure are alluded only for the purpose of showing that necessary care and caution are to be taken before initiating a criminal proceeding for perjury against the deponent of contradictory statements in a judicial proceeding.'' The Supreme Court in the case of Pankaj Chaudhary reported in (2019) 11 SCC 575 has held as under:-
''49. There are two preconditions for initiating proceedings under Section 340 Cr.P.C.:
(i) materials produced before the court must make out a prima facie case for a complaint for the purpose of inquiry into an offence referred to in clause (b)(i) of sub-section (1) of Section 195 Cr.P.C., and
(ii) it is expedient in the interests of justice that an inquiry should be made into the alleged offence."
Observing that the Court has to be satisfied as to the prima facie case for a complaint for the purpose of inquiry into an offence under Section 195(1)(b) Cr.P.C. The mere fact that a person has made a contradictory statement in a judicial proceeding is not by itself always sufficient to justify a prosecution under Sections 199 and 200 of the Indian Penal Code, but it must be shown that the defendant has intentionally given a false statement at any stage of the judicial proceedings or fabricated false evidence for the purpose of using the same at any stage of the judicial proceedings. Even after the above position has emerged also, still the Court has to form an opinion that it is expedient in the interests of justice to initiate an inquiry 9 into the offences of false evidence and offences against public justice and more specifically referred to in Section 340(1) Cr.P.C., having regard to the overall factual matrix as well as the probable consequences of such a prosecution. The Court must be satisfied that such an inquiry is required in the interests of justice and appropriate in the facts of the case.
In the process of formation of opinion by the Court that it is expedient in the interests of justice that an inquiry should be made into, the requirement should only be to have a prima facie satisfaction of the offence which appears to have been committed. It is open to the Court to hold a preliminary inquiry though it is not mandatory. In case, the Court is otherwise in a position to form such an opinion, that it appears to the Court that an offence as referred to under Section 340 of Cr.P.C has been committed, the Court may dispense with the preliminary inquiry. Even after forming an opinion as to the offence which appears to have been committed also, it is not mandatory that a complaint should be filed as a matter of course.
Iqbal Singh Marwah v. Meenakshi Marwah, a Constitution Bench of this Court has gone into the scope of Section 340 Cr.P.C, Para 23 deals with the relevant consideration:
"In view of the language used in Section 340 Cr.P.C. 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 interests 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 10 the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests 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. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the court may not consider it expedient in the interest of justice to make a complaint."
It has been consistently held by the Court that prosecution for perjury be sanctioned by the courts only in those cases where perjury appears to be deliberate and that prosecution ought to be ordered where it would be expedient in the interest of justice to punish the delinquent and not merely because there is some inaccuracy in the statement. In Chajoo Ram v. Radhey Shyam, this Court held as under:
"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 defeats 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 11 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. In the present case we do not think the material brought to our notice was sufficiently adequate to justify the conclusion that it is expedient in the interests of justice to file a complaint. The approach of the High Court seems somewhat mechanical and superficial: it does not reflect the requisite judicial deliberation...."
Thus, it is clear that before taking action under Section 340 of Cr.P.C., the Court is required to see as to whether:-
"(i) materials produced before the court makes out a prima facie case for a complaint for the purpose of inquiry into an offence referred to in clause (b)(i) of sub-
section (1) of Section 195 Cr.P.C., and
(ii) it is expedient in the interests of justice that an inquiry should be made into the alleged offence." The petitioner being the plaintiff has filed the suit being CS No. 68 of 2011 against the respondent company for recovery of Khas vacant and peaceful possession of the suit property and allied prayers.
The main contention of the plaintiff is that the defendant has made different statement in default proceedings with regard to the suit property. The plaintiff has filed the instant application on the basis of the statement made by the defendant on affidavit which reads as follows:
"3(x). It was also agreed that the said Dr. Ashok Kumar Gupta and/or their family members have deposited the original title of the said property to the investors of the said property and the same shall remain charged in favour of the said investors till payment of all sums due and payable by the respondent..............."12
"9. The existence of tenancy in respect of suit property is denied and disputed. The respondents are the owner of the said property."
"Your petitioner is a tenant of late Smt. Prema Gupta since 1990 and has been enjoying khas possession of the said portion and occupying the same and using the same for its commercial purpose."
The main contention of the defendant in in the written statement is as follows:
"xxii) Further, it is evident that the Probate proceeding was initiated by Dr. Ashok Kumar Gupta and on the basis of the un-registered Will. The Letter of Administration also had to proceed on the basis of the same unregistered Will. However, it appears that the Letter of Administration has been on the basis of a registered Will of Prema Gupta, since deceased. Such reliance on two separate Wills, one registered and unregistered and that also after her death casts a clout on the said Last Will and Testament of Prema Gupta itself.
xxiii) However, from both the Wills, it is apparent that the said property was bequeathed to Dr. Ashok Kumar Gupta by Prema Gupta, since deceased.
Whatever right title and interest of the said property as on date belongs to Dr. Ashok Kumar Gupta. Ankur Malik and or any of the other legal heirs of Prema Gupta cannot claim any right title and interest of the said property nor can they demand for payment of any amount in respect of the said flat from the Respondent.
xxiv) The said particular shares of the properties have already been purchased upon part consideration of Rs. 14,50,000/- + 20,00,000/- being paid by the present shareholders and/or Directors of the Company from Dr. Ashok Kumar Gupta and Dr. Kalpana Chakravarty, are their legal heir of Late Prema Gupta by executing two Agreements for Sale respectively. Ashok Kumar Gupta being the heir of Prema Gupta had the right to collect rent, if at all. The said Petitioner could not have made an application for collection of rent without informing 13 and/or consent of Dr. Ashok Kumar Gupta. It was also agreed by and between Ashok Kumar Gupta and the present Director and/or shareholders of the Company that the said execution of the Deed of sale would be made upon the outcome of the Probate proceedings which was pending adjudication before the Learned City Civil Court at Calcutta. The said properties are also under the management and control of the administrator and for which the Sale Deed could not be executed till date. A copy of the said two Agreements for Sale is annexed hereto and marked as Annexure "K"."
The respondent is claiming the property as per two agreements of sale which have been disclosed by the defendant in the written statement.
The plaintiff relied upon the statement made in paragraph 3 of the application filed before 10th Metropolitan Magistrate at Calcutta and paragraph 3(x) and 9 of the written statement.
Paragraph 7 of the application filed before the 10th Metropolitan Magistrate read as follows :
"7. That the opposite party has suddenly raised an illegal demand of evicting your petitioner and claiming to be the sole owner of the scheduled premises, despite the opposite party having executed a Memorandum of Agreement of Sale between herself and shareholders of your petitioner's company for sale of her 1/5th undivided share in respect of the scheduled premises. Your petitioner craves leave to produce the said document at the time of hearing if necessary."
The petitioner has filed the application on the fact that the defendant has made contradictory statements in the judicial proceedings and still the defendant is proceeding with two statements. It is found from the record, the 14 statement made by the defendant in the written statement is affirmed by the respondent but in the statement made in the application under Section 144 of the Code of Criminal Procedure before the Learned 10th Metropolitan Magistrate is by one Anup Karmakar. It is also found from record that in the present suit, the plaintiff is Ankur Malik and Dr. Kalpana Chakravarty is not a party to the suit but in the application filed by the Company through Shri Anup Karmakar, the Opposite Party is Dr. Kalpana Chakravarty and the present plaintiff namely Ankur Malik is not the party.
It is settled law that mere fact that a person has made contradictory statement in a judicial proceeding is not by itself always sufficient to justify the prosecution under Sections 199 and 200 of the Indian Penal Code but it must be shown that the defendant has intentionally given a false statement in any stage of judicial proceedings or fabricated false evidence for the purpose of using the same at any stage of judicial proceedings. Even after the above position has emerged also, still the Court has to form an opinion that it is expedient in the interest of justice to initiate an inquiry into the offences of false evidence and offences against the public justice as referred in Section 340 (1) of Cr.P.C, having regard to the overall factual matrix as well as the probable consequences of such a prosecution. The Court must be satisfied that such an inquiry is required in the interest of justice and appropriate in the facts of the case.
In the present case after going through the entire pleadings of the parties in the present suit and in the application filed under Section 144(2) of the Code of Criminal Procedure before the 10th Metropolitan Magistrate, 15 Calcutta, this Court finds that there is no prima facie case of deliberate falsehood is made out and there is no reasonable foundation for the charge of the offence punishable under Sections 193, 200, 207 and 209 of the Indian Penal Code.
In view of the above, this Court do not think the materials brought on record are sufficiently adequate to justify the conclusion that it is expedient in the interest of justice to file a complaint.
G.A. No. 6 of 2022 is thus dismissed.
(Krishna Rao, J.)