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Delhi District Court

)Mamta Saboo vs )The State on 7 March, 2023

                    IN THE COURT OF ADDITIONAL SESSIONS JUDGE-05,
                         SOUTH DISTRICT, SAKET COURTS : DELHI

                   CRL. APPEAL Nos. 43, 44, 45, 46, of 2019
                   CNR No. DLST01-007844-2018
                   CNR No. DLST01-007845-2018
                   CNR No. DLST01-007846-2018
                   CNR No. DLST01-007847-2018

                   1)MAMTA SABOO
                   W/O SH ARUN KUMAR SABOO
                   R/O H. NO. 1655-B /15, GF, BLDG,
                   OPPOSITE SANT NIRANKARI
                   SCHOOL GATE, GOVIND PURI
                   NEW DELHI -19

                   2)ARUN KUMAR SABOO
                   R/O H. NO. 1655-B /15, GF, BLDG,
                   OPPOSITE SANT NIRANKARI
                   SCHOOL GATE, GOVIND PURI
                   NEW DELHI -19                                             .........APPELLANTS

                                                      VERSUS


                   1)THE STATE

                   2)RAJESH DUGAR
                   SOLE PROPRIETOR
                   ARIHANT INCORPORATED
                   OFFICE AT X/899, 1ST FLOOR,
                   CHAND MOHALLA, STREET NO. 8,
                   GANDHI NAGAR, DELHI- 11003   ....... RESPONDENTS


RAKESH
KUMAR DATE OF INSTITUTION                                          :          28.11.2018
SINGH ARGUMENTS HEARD ON                                           :          25.02.2023
                   DATE OF JUDGMENT                                :          07.03.2023
Digitally signed
by RAKESH
KUMAR SINGH
Date:
2023.03.07
16:23:28 +0530



                   CA No. 43, 44, 45 and 46 of 2019   Mamta Saboo Vs State                 Page 1 of 6
                    JUDGMENT

1. Four petitions were filed by accused persons against an order dated 05.11.2018 passed by the Ld. MM whereby she directed the filing of complaint for different offences by virtue of Section 340 Cr.P.C. Initially, the petitions were filed in the form of revision but later on, Ld. Predecessor ASJ directed to convert the same into appeal in terms of Section-341 Cr.P.C. Accordingly, all the petitions were treated as appeal. All the petitions came before this court on transfer. By the present common judgment, I shall dispose of all the present petitions/appeals.

2. Initially, the appellants were interested in pursuing the appeals however later on they stopped appearing and sometimes their counsels were putting appearance. Notices were issued to the appellants but the same remained unserved. When the notice was issued to the Ld. Counsel for appellants, he put appearance and indicated that his clients are not in touch with him but his vakalatnama is still on record and that he would be arguing the matter. Accordingly, the Ld. APP and Ld. Counsel for appellants were heard. So far as respondent no. 2 (original complainant) is concerned, he had also put appearance sometimes but later on he also stopped appearing in this case. In the order dated 09.02.2023, it was indicated that the respondent no. 2 (i.e. complainant) if appears, might also advance arguments. He has not chosen to appear and advance arguments. The court can neither force any party either appellant or the respondent to appear or argue the matter. It could have only given an opportunity to the parties which the court has done in the case. However, since the cases pertain to the RAKESH KUMAR offences related to criminal justice system, this court was not inclined SINGH to dismiss the appeal for non appearance. As such on the basis of the Digitally signed by RAKESH KUMAR SINGH Date: arguments advanced by the Ld. Counsel for appellants and Ld. APP 2023.03.07 16:23:49 +0530 CA No. 43, 44, 45 and 46 of 2019 Mamta Saboo Vs State Page 2 of 6 and upon going through the available material, this court is proceeding to dispose all these appeals.

3. Following observations of the Ld. Trial Court are relevant and therefore, the same are re-produced as under:-

The afore-mentioned cases were pending before this court and vide judgment dated 19.07.2018, accused no. 1 Mamta Saboo was acquitted and accused no. 2 Arun Kumar Saboo was convicted for to offence punishable u/s 138 NI Act in all the above mentioned cases, present application u/s 340 Cr.P.C were filed by the complainant stating therein that accused persons have tempered with the cheques in question bearing numbers 221321, 221322, 221323, 221324, 185930, 185931, 185934 and 185935 by writing the words 'for security purpose only' and 'for security pu' on the back side of the said cheques. Reply to the said application was filed by the accused persons stating therein that no such tampering or addition or deletion was done by the accused persons on the cheques in questions and that the fact that the said cheques were security was mentioned on the back sides of the cheques. That endorsement on the said cheques about them being security cheques proves innocences of the accused persons. It was also stated by the accused persons that since knowledge of the alleged tampering was gained by the complainant in civil suit filed by the complainant; present application is not maintainable before this court.

XXXX In the instant case, complainant/applicant has filed certified copies of the back sides of cheques in question bearing numbers 221321, 221322, 221323, 221324, 185930, 185931, 185934 and 185935. The same have been compared with back sides of the said cheques as present on the court record to ensure that the said certified copies filed by the complainant pertain to the said cheques only and not to any other cheques. Upon comparing of endorsement made by the concerned bank on the back side of the said cheques, there is no doubt that ceritified copies filed by the complainant alongwith the present application u/s RAKESH 340 Cr.P.C pertain to cheques in question bearing numbers 221321, 221322, KUMAR 221323, 221324, 185930, 185931, 185934 and 185935. The said certified SINGH copies show that the above mentioned cheques, originally filed only contained Digitally signed endorsement made by the concerned bank alongwith bar codes at their back by RAKESH KUMAR SINGH sides and nothing pertaining to the said cheques being security cheques was Date:

2023.03.07 mentioned on the same. However, the term 'for security purpose only' is now 16:24:27 +0530 to be found on the back side of cheques in question bearing numbers 221321, CA No. 43, 44, 45 and 46 of 2019 Mamta Saboo Vs State Page 3 of 6 221322, 221323, 221324, 185930, 185931, 185934 and 185935. Back side of cheque bearing no. 185934 now contains the words 'for security purpose only'. For security pu' and 'securitycheque' were not to be found on the back sides of the said cheques as originally filed. The same is clear from the certified copies of the back side of the said cheques filed by the complainant alongwith the present application. The same shows that assertion made by the accused in para 5 of reply to the present application to the effect that the said words were always there on the cheques in question is absolutely false and untrue. Thus, it is clear that accused person have tampered with judicial record and written the terms for security only 'for security purpose and 'security cheque' on the back side of the above mentioned cheques during course of trial in cases bearing CIS numbers 467035/2016, 46008/2016, 464925/2016 and 467979/2016 so as to fabricate evidence and concoct a false defence about the above mention cheques being security cheques. Also stand taken by the accused about this application not being maintainable before this court is absolutely untenable as the above mentioned cheques were in the custody of this court. Hence, in my opinion, accused Mamta Saboo and Arun Saboo have committed offence punishable u/s 193/196/209/463/471 IPC. In view of gravity of misdeeds of the accused person and impunity and audacity displayed by them in tampering with court record, I am of the opinion that it is expedient in the interest of justice that present application u/s 340 Cr.P.C be allowed and complaint be filed against the accused person in this regard. A separate complaint u/s 340 Cr.P.C is thus, being forwarded to Ld. CMM, south, Saket for proceeding against accused Mamta Saboo and Arun Kumar Saboo. I hereby authorize Reader of this court to sign and file the said complaint u/s 340 (3) (b) Cr.P.C application u/s 340 Cr.P.C filed by the complainant are accordingly disposed off.

4. It appears that on comparison of earlier certified copies and the cheques available on the record, the Ld. MM came to a conclusion that something was written on the back of the cheques after the same were filed in the court. To this extent, I do not find any illegality in the order passed by the Ld. MM. However, suddenly, the Ld. MM indicated that this interpolation was committed by Mamta and Arun RAKESH that is the accused persons of the original NI Act cases. For arriving at KUMAR SINGH this conclusion, the Ld. MM has not provided any reason at all.

Initially, the NI Act cases were filed but later on the original by RAKESH KUMAR SINGH Date: documents and cheques were returned to the complainant on account 2023.03.07 16:24:03 +0530 CA No. 43, 44, 45 and 46 of 2019 Mamta Saboo Vs State Page 4 of 6 of change of jurisdiction so that he could have filed the new case at the proper jurisdictional place.

5. Then the cases were filed and obviously the case files would have been in the custody of the concerned Ahlmad. In such circumstances, it could not have been decided with certainty that only the accused persons could have written something on the back of the cheques. It seems that the Ld. MM was swayed away by the fact that writing something related to security purpose on the back of the cheques would only benefit the accused who can claim acquittal on the basis of such writing and therefore, only they could have made such type of manupulation. This assumption is clearly wrong and has no legal or factual basis. As is well known, a cheque given for security is also covered under Section 138 if the amount has become due on or before the presentation of the cheque. As such, there might not have been benefit for the accused persons in writing something related to the security on the back of the cheques. On the other hand, a complainant in NI Act cases may try to force an accused person to settle the matter by adopting a pressure tactics that is envisaging some new criminal offences of false evidence, forgery etc and for this, he might introduce some manipulation in the documents available on the case file so that an action u/s 340 Cr.P.C may be initiated. Even there can be a third angle. The judicial file is always in the custody of Ahlmad of the concerned court. It is that Ahlmad who is required to explain as to how such manipulation has occurred in a document (cheque) which was lying in the case file within his custody.

RAKESH 6. Since there may be several angles as discussed above, it is not KUMAR SINGH prudent on the part of the Ld. Magistrate to directly assume that the manipulation on the back of the cheques could only have been done Digitally signed by RAKESH KUMAR SINGH by the accused persons.

7. However, at the same time, it is clear that there was some manipulation with the cheques and therefore, the situation must be inquired into. The Ld. Magistrate should properly make an inquiry for the purpose of Section-340 Cr.P.C and thereupon shall arrive at prime facie finding as to who may be the culprit. This inquiry shall be only with a view to make a prima facie opinion and not for taking cognizance. The reason is obvious i.e. congizance would be taken by Ld. CMM before whom a proper complaint is intituted after conclusion of inquiry under Section-340 Cr.P.C.

8. In view of the aforesaid discussion, order dated 05.11.2018 passed by the Ld. Trial Court in miscellenious case number 4/2018, 5/2018, 6/2018, 7/2018 is set aside. Ld. Trial Court to pass afresh order after proper inquiry.

9. A copy of this judgment sent to the Trial Court.

10. Appeals file be consigned to the record room after due compliance.

ANNOUNCED IN THE OPEN COURT TODAY ON THIS 7th DAY OF MARCH, 2023 RAKESH Digitally by RAKESH signed KUMAR KUMAR SINGH Date: 2023.03.07 SINGH 16:23:07 +0530 (RAKESH KUMAR SINGH) ADDITIONAL SESSIONS JUDGE (SOUTH) SAKET COURTS : NEW DELHI CA No. 43, 44, 45 and 46 of 2019 Mamta Saboo Vs State Page 6 of 6