Delhi District Court
Vivek Garg vs (1) State on 6 August, 2013
IN THE COURT OF SH. YASHWANT KUMAR: ADDL SESSIONS
JUDGE03: NW : ROHINI : DELHI
Criminal Appeal No. 22/13
Vivek Garg
s/o Sh. Ram Kumar Garg,
r/o 18/1, Shakti Nagar,
Delhi110007 .................Appellant
Versus
(1) State
(2) Kanwar Karan Singh,
r/o T80, Gurmandi,
Rajpura, Delhi07
(3) M. N. Mishra
s/o late Sh. Basudh A. Mishra
r/o H. No. 6, Kewal Park,
nd
2 Floor, Azadpur, Delhi ..................Respondents
JUDGEMENT
1. The appellant has filed this appeal u/s 341 Cr.P.C. for setting aside the impugned order dated 12022013 passed by Sh. D. K. Jangala, Ld. ACMM (NW) Rohini Courts, Delhi in CC no. 551/1/12 vide Misc. No. 2/12 u/s 340 Cr.P.C. in case titled Vivek Garg Vs. Kanwar Karan Singh on the application u/s 340 Cr.P.C. Crl. A. No. 22/13; Vivek Garg Vs. State & Anr. Page 1 of 9 filed by M. N. Mishra i.e. respondent no. 3.
2. TCR has already been summoned. I have heard Ld. counsel for the appellant and Ld. APP for the State/ respondent and have perused the materials on record.
3. The brief facts, as set out in the appeal, are that appellant is the complainant before the Ld. Trial Court and respondent no. 3 is a stranger who filed the application u/s 340 Cr.P.C against the appellant. It is a clear cut case of cheating, fraud, corruption, criminal breach of trust etc. committed by respondent no. 2 and others against the Govt./ public at large and encroachment of Govt. land by respondent no. 2 worth more than Rs. 50 crores. When the case was fixed for arguments on application u/s 156 (3) Cr.P.C. then strangely the respondent no. 3 appeared before the Ld. Trial Court and filed an application u/s 340 Cr.P.C. against the appellant without any legal right. Respondent no. 3 is not the party of the complaint and case is at initial stage and by this complaint, no personal rights of respondent no. 3 is affecting. Hence, he has no locus standi to file the application u/s 340 Cr.P.C. but the Ld. Trial Court without due application of mind and without using his judicial mind, issued the Crl. A. No. 22/13; Vivek Garg Vs. State & Anr. Page 2 of 9 notice to the appellant and even without deciding the complaint u/s 156 (3) Cr.P.C. & 200 Cr.P.C. of the appellant (complainant), the Ld. Trial Court issued this notice.
4. The appellant has taken the grounds among others that the Ld. Trial Court completely failed to understand that the respondent no. 3 has no locus standi to file the application u/s 340 Cr.P.C. The respondent no. 3 has not mentioned in his application that how his personal rights are getting affected by the complaint filed by the appellant against the respondent no. 2. The Ld. Trial Court completely ignored the arguments placed by the appellant. The case is at the initial stage before the Ld. Trial Court and copy of the complaint and documents are in the possession of IO and the Trial Court. Respondent no. 3 has not specified the source from where he got the copy of the complaint along with all the documents. The appellant has also filed a separate complaint u/s 156 (3) & 200 Cr.P.C. with the Trial Court regarding the theft etc. but the Trial Court completely ignored this fact and issued notice to the appellant. The Ld. Trial Court completely ignored the argument that it was a pressure tactics on the part of respondent no. 2 and 3 and further respondent no. 2 & 3 are working under Crl. A. No. 22/13; Vivek Garg Vs. State & Anr. Page 3 of 9 connivance with their dishonest intention to put pressure on the appellant through so that the appellant might got scared and left the ongoing litigation against respondent no. 2. The Ld. Trial Court seems to be accepting the contention of the respondent no. 3 without passing the direction to the respondent no. 3 to file the record of ownership in respect of land where the petrol pump is running where the respondent no. 2 claims that he is the owner. The Ld. Trial Court in place of appreciating the evidence of appellant, issued the notice to the appellant.
5. The appellant has further taken the ground that the Ld. Trial Court completely ignored the documents filed by the appellant and unfairly issued the notice u/s 340 Cr.P.C. against the appellant. The Ld. Trial Court instead of issuing the notice u/s 340 Cr.P.C. and contempt of court Act to respondent no. 3, issued the notice to the appellant in an unjustified manner. The Trial court also ignored how respondent no. 2 could lease out an encroached government land to BPCL. This fact was also unfairly ignored by the Ld. Trial Court and issued notice u/s 340 Cr.P.C. which is liable to be set aside. The Ld. Trial Court while passing the order did not go through the letter dated 23072009 filed by Crl. A. No. 22/13; Vivek Garg Vs. State & Anr. Page 4 of 9 the respondent no. 3 along with his application u/s 340 Cr.P.C. Respondent no. 3 in his application has specified that the letter dated 23072009 speaks that the petrol pump under oil company BPCL is running on private land. In fact, this is one of the main evidences of the crimes of respondent no. 2. Even DDA in its other replies has accepted that this land was acquired. Respondent no. 2 failed to produce any ownership documents. The Ld. Trial Court before issuing of notice u/s 340 Cr. P. C. to the appellant, must satisfy himself by directing to respondent no. 3 to produce the ownership documents as well as Khatoni, Girdawari, Farad and other concerned land records which affirm that the land where Petrol Pump is running is a private land or not. As per the documents submitted by the respondent no. 3 in his application u/s 340 Cr.P.C., BPCL has stated that property tax to MCD is being paid by BPCL. The Trial Court should have directed respondent no. 3 to file the status of the village where the property no. T80 Gurmandi, Rajpura, Delhi is situated. Instead of doing so, the Ld. Trial Court accepted the contention of the respondent no. 3 that the resident of village area need not to pay house tax. The respondent no. 3 with dishonest intention has filed his Crl. A. No. 22/13; Vivek Garg Vs. State & Anr. Page 5 of 9 application u/s 340 Cr.P.C. against the appellant to cover up the crimes of respondent no. 2 and other persons/ Govt. officials. The issuance of notice u/s 340 Cr.P.C. by the Trial Court is itself illegal.
6. The Ld. counsel for appellant argued that the appellant was the complainant and filed the complaint before the Ld. Trial Court. However, the respondent no. 3, being the stranger, filed the application u/s 340 Cr.P.C. but he has no locus standi to file the said application. The Ld. Trial Court, without deciding the complaint u/s 156 (3) & 200 Cr.P.C., issued notice of the application u/s 340 Cr.P.C. Even the respondent no. 3 did not mention in his application as to how his rights are affected by the complaint filed by the complainant/ appellant against respondent no. 2. The respondent no. 3 did not specify how he got the copy of the complaint and the documents. Therefore, issuance of notice u/s 340 Cr.P.C. is illegal. Ld. counsel for appellant, in support of his arguments, relied upon the judgements reported in the case of Arun Kumar Agarwal Vs. Mrs. Radha Arun; I (2002) DMC 84, ILR 2001 KAR 4925 (Karnataka High Court); Krishnappa Vs. Thoppaiah Shetty, 1997 CriL.J. 188; ILR 1996 KAR 3249, Crl. A. No. 22/13; Vivek Garg Vs. State & Anr. Page 6 of 9 1996 (6) KarLJ 574 (Karnataka High Court); Jose John Vs. KC Kuruvilla, son of Chanda, 1996 (1) ALT Cri 514, 1996 CriLJ 1449 (Kerala High Court); Ghanshyam Singh Takreria Vs. State of UP (Allahabad High Court). The Ld. APP for the State/ R1 argued that the Ld. ACMM, after considering the facts and circumstances of the case, issued notice of the application to the complainant/ appellant.
7. Vide order dated 12022013 of the Ld. ACMM, NW, Rohini Courts, Delhi, the applicant/ accused moved an application u/s 340 Cr.P.C. to initiate an inquiry for making false and frivolous complaint against the Member of Legislative Assembly. The Ld. ACMM opined that inquiry should be made into the offence alleged by the applicant/ complainant in the aforesaid application since the offence was allegedly committed in relation to the complaint filed in the court. Therefore, notice of the said application was issued to the complainant/ appellant who filed complaint before the Ld. Trial Court.
8. In the case of Krishnappa Vs. Thoppaiah Shetty (supra), the Hon'ble High Court of Karnataka considered that the revision petitioner calls in question the legality and the correctness Crl. A. No. 22/13; Vivek Garg Vs. State & Anr. Page 7 of 9 of issue of notices to him and six others by the II Addl. Sessions Judge, Bangalore in Crl. Misc. 1143/92 on 20081992 on an application by the respondent herein under section 340 of Cr.P.C. praying the court to conduct preliminary enquiry, record its findings and punish the petitioner and six others for an offence u/s 195 r/w section 34 of IPC. It was held by the Hon'ble High Court of Karnataka as under:
"Therefore, I find no merit in the argument that the court committed an error in entertaining an application u/s 340 Cr.P.C. However, there is merit in the arguments that the court on receiving such application could not have straight away proceeded to issue notices to those persons against whom such application is made.
In the instant case, it is averred that there was enough material in the statement of the witnesses in the Sessions trial that the respondents gave false evidence with intent to procure conviction of the applicant and three others for an offence u/s 307 of IPC. On receiving the application the court should have considered the allegations therein and only thereafter if the court was of the opinion that there was material to proceed against those persons for an offence u/s 195 of IPC, should have resorted to the course of action as provided under subsection (1) (b) to (e) and 3 (b) of Section 340 Cr.P.C. If after preliminary enquiry the court is of the opinion that there exists no material to proceed, can reject the application. But the procedure adopted by the court is registering it an issuing notices straight away after receiving the application is irregular and improper, and cannot stand the test of judicial scrutiny. Therefore, the petitioner succeeds.
9. In the result, this revision is allowed and the order dated August 20, 1992 issuing notices to the revision petitioner and six others is set aside, matter is remitted back to II Addl. Sessions Judge, Bangalore City with a direction to take it on file in its original number and proceed to dispose of the application in accordance with law keeping in mind the observations made Crl. A. No. 22/13; Vivek Garg Vs. State & Anr. Page 8 of 9 during the course of this order."
9. Considering the above facts and circumstances of the case and the aforesaid judgement of the Hon'ble High Court of Karnataka, I am of the considered opinion that the Ld. ACMM should not have straight away issued notice of the application u/s 340 Cr.P.C. to the complainant/ appellant. Accordingly, the impugned order dated 12022013 of the Ld. ACMM, NW, Rohini Court Delhi is set aside with the direction to dispose of the application u/s 340 Cr.P.C. in accordance with law. With the above directions, this appeal is disposed of. Copy of this order along with TCR be sent back to Ld. Trial Court and thereafter appeal file be consigned to Record Room.
(YASHWANT KUMAR) ASJ/NW03/ROHINI/DELHI ANNOUNCED IN OPEN COURT on 06082013 Crl. A. No. 22/13; Vivek Garg Vs. State & Anr. Page 9 of 9