Delhi District Court
Ashok Kumar Gupta vs State on 4 August, 2014
Ashok Kumar Gupta Vs State
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 (CENTRAL): DELHI
CA No. 59/2012
ID No. 02401R0421432012
Ashok Kumar Gupta,
S/o Late Sh. Bhagwan Dass Gupta,
R/o B-131, Surya Nagar,
Ghaziabad.
.............Appellant
versus
State
..........Respondent
Date of Institution : 10.09.2012
Date of judgment : 04.08.2014
Present: Sh. Gurpreet Singh, Advocate, counsel for the appellant
Sh. R.K. Tanwar, Additional Public Prosecutor for the
State
O R D E R :-
1. This criminal appeal has been filed against the impugned order dated August 08, 2012 whereby by the Court of learned Metropolitan Magistrate - 06 Central District Delhi dismissed the application of the CA No. 59/12 Page 1 of 6 Ashok Kumar Gupta Vs State present appellant moved under Section 340 Code of Criminal Procedure (in short Cr. P.C.).
2. Necessary facts in brief leading to filing the present criminal appeal are that Mr. Rakesh Gupta had filed a criminal complaint against Ashok Kumar Gupta, present appellant and his wife Rama Gupta for various offences punishable under Section 379/380/384 /403/420/468/471/ 474/34 of Indian Penal Code (in short IPC) read with Section 120B IPC and also moved an application under Section 156 (3) Cr. P.C. The said complaint was filed on January 09, 2012. The application moved under Section 156 (3) Cr. P.C. was disposed of vide separate order dated August 08, 2012. On February, 18 2012, an application was moved before the Court of learned Chief Metropolitan Magistrate under Section 340 Cr. P.C. and same was assigned to learned Trial Court where the main criminal complaint was pending, thus, application under Section 340 Cr. P.C. was moved even before taking cognizance on the criminal complaint.
3. After hearing the counsel for appellant at length, learned Trial Court dismissed the present application vide impugned order. Aggrieved by the said order, appellant filed the present criminal appeal.
4. During the pendency of the appeal, Mr. Bharat Dubey, Advocate appeared on behalf of original complainant and sought permission to advance arguments, however, request was declined vide order dated July 14, 2014. But, liberty was given to assist learned Additional Public Prosecutor, if he intends.
5. Learned counsel appearing for the appellant contended that learned Trial Court had committed an error by not holding an inquiry and by CA No. 59/12 Page 2 of 6 Ashok Kumar Gupta Vs State rejecting the application. It was submitted that the application even can be moved at any stage of the proceeding; even at the time of filing all the documents by the party and there is no requirement that both the parties be appeared in the Court. In support of his contention, he relied upon two judgments i.e. Sanjeev Kumar Mittal Versus State, 2010 (174) DLT 214 and Kuldeep Kapoor Versus Susanta Sengupta, 126 (2006) DLT 149.
6. Per contra, learned Additional Public Prosecutor opposes the said contentions by sagaciously arguing that the application moved by the appellant was premature as the learned Trial Court had not taken any cognizance. It was submitted that mere fact that the complaint had been filed against the appellant and in support of his complaint, complainant had placed reliance on certain documents, which according to appellant are false, application under Section 340 Cr. P.C. is not maintainable as Court had no opportunity even to consider the said documents. It was further submitted that mere fact that a complaint had been filed is ipso-facto not sufficient for the learned Trial Court to summon the appellant and his wife; it may be possible that the criminal complaint may be dismissed after considering all the documents and evidence led by complainant during pre- summoning stage. It was submitted that by filing the present application under Section 340 Cr.P.C. an attempt has been made to overawe the original complainant to proceed with his complaint.
7. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully including citations relied upon by counsel for the appellant.
8. First of all, I am of the view that the facts of both the cases cited by learned counsel for appellant are totally different from the facts of CA No. 59/12 Page 3 of 6 Ashok Kumar Gupta Vs State the case in hand as in both the cases, Court invoked the provisions of Section 340 Cr. P.C. after giving sufficient opportunities to both the parties to furnish their version on the fabricated/false documents whereas in the instant case, said stage has not even yet reached.
9. Now coming to the provisions of Section 340 Cr. P.C., which 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 interest 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 relations to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary -
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(emphasis supplied)
10. Bare perusal of Section 340 Cr.P.C. makes it clear that before invoking Section 340 Cr. P.C., Court has to form an opinion that an inquiry is essential in the interest of justice, and said inquiry is required qua offences referred in Clause (b) of sub-Section 1 of Section 195, which prima-facie appears to be have committed or same are in relations to a proceeding in that Court. Thus, decision to proceed under Section 340 Cr.
CA No. 59/12 Page 4 of 6Ashok Kumar Gupta Vs State P.C. is not a mere formality, but Court has to apply its mind judiciously to form an opinion on the basis of material and to form an opinion that whether material is sufficient enough to proceed under Section 340 Cr. P.C. or not. There may be instances where prima-facie a case is made out but the circumstances of all the cases are such that the interest of justice may not demand any further inquiry under Section 340 Cr. P.C. Thus, mere fact that the present appellant had moved an application at the nascent stage is ipso-facto not sufficient for the Court to proceed under Section 340 Cr. P.C. after leaving the main criminal complaint.
11. Further, at this stage, no prejudice has been caused to the present appellant because the Court has not even taken any cognizance on the criminal complaint/documents filed by the original complainant. Mere fact that criminal complaint has been filed against the present appellant is not sufficient to draw an inference that Court would summon the accused. Before summoning, the present appellant as an accused, again Court has to apply its mind judiciously to satisfy itself whether the evidence led by complainant are sufficient to summon the accused or not. If Court forms an opinion that evidence led by complainant are sufficient to summon the appellant as an accused, appellant shall have a right to urge that the complainant had misled the Court by placing reliance on fabricated and false documents and at that stage, appellant shall have liberty to make a prayer before the Court to invoke the provisions of Section 340 Cr.P.C but at this initial stage, the application moved under Section 340 Cr.P.C is not maintainable as the appellant was an alien to the proceedings initiated on the criminal complaint filed by the original complainant.
12. In view of the aforesaid discussion, I am of the considered view that there is no merit in the present appeal, thus, I hereby, dismiss the CA No. 59/12 Page 5 of 6 Ashok Kumar Gupta Vs State same.
13. Copy of the order be sent to the learned Trial Court immaterial.
14. TCR be sent back.
15. Criminal appeal file be consigned to record room.
Announced in the open Court [PAWAN KUMAR JAIN]
On this 04th day of August, 2014 Additional Sessions Judge-01
Central District/THC/DELHI/sm
CA No. 59/12 Page 6 of 6