Delhi District Court
Ms. Shefali Kaul vs State on 21 May, 2011
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IN THE COURT OF SHRI AJAY KUMAR JAIN: ASJ03: SE: SAKET
COURT COMPLEX: NEW DELHI
CA No. 66/10
Ms. Shefali Kaul
R/o H.No. 2742, Gali No. 7
Gali Nani Khan
Near Moti Mahal Estate
Darya Ganj, New Delhi
.................... Appellant/accused
Versus
State,
Govt. of NCT, New Delhi
..................Respondent
Date of Institution : 03.11.2010 (Old date of Institution:
24.04.2009)
Decision reserved on : 14.05.2011
Date of decision : 21.05.2011
ORDER:
1. Present appeal is preferred u/s 341 Cr.P.C by appellant against the impugned order dated 24.03.2009 passed by the trial court dismissing his miscellaneous application U/s 340 Cr.P.C in criminal complaint case no. 212/2001.
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2. Mr. Arun Bhan complainant though not made party in present appeal but my Ld. Predecessor vide order dated 25.03.2010 issued notice to Arun Bhan ( complainant) for hearing as respondent.
3. Brief facts of criminal Complaint filed by the respondent/complainant Arun Bhan for offences u/s 211/389/500 IPC are that the appellant Shefali is distantly related to the wife of the complainant. On being lost the job and due to break in the matrimonial life had persuaded wife of the complainant to have some job, thereafter, she started working with office of complainant for maintaining file, papers, Bank statements etc. and in this regard she was entrusted with work of maintenance of papers, files, bank accounts, cheque books etc. It is further alleged in said complaint that accused used to demand financial help from complainant and his wife which was being provided by them but started interfering in the life of complainant and his wife. Therefore, complainant asked the accused/appellant to refrain from doing so, this hurts appellant and complainant was shocked when he received a demand notice dt. 13.02.09 claiming Rs. 8 lakhs from the complainant on the basis of forged cheque which was not issued by him. When complainant asked accused to show the cheque in question and for this fact she 3 visited the residence of his brother, thereafter lodged a false complaint pursuant to which FIR u/s 354/509/34 IPC was registered and complainant and his brother were released on bail.
4. It is further alleged in the said complaint that the said FIR was registered on false and fabricated facts just to blackmail the complainant and entire complaint on the face of it is vague and motivated by the false allegations and further appellant not only made the false complaint but got publications in newspapers such as Times of India, Amar Ujala and Sandhya Times with exaggerations and embellishments depicting the complainant as arch swindler and thus being the most hatred person of the society which affected his honour and reputation in the society. She further falsely cooked up the story by saying that she had purchased a Skoda car which had been falsely taken by the complainant after leaving the cheque in question though the said allegations are conspicuously absent in the legal notice. Therefore, accused in order to blackmail the complainant had indulged in fabrication of false complaints and allegations, in order to put him in further fear and defamed him in society and thereby committed the office punishable u/s 354/509/34 IPC and filed the present complaint before the Court of Ld. CMM 4 and the same was marked to the Ld. Metropolitan Magistrate for 02.03.09 and listed for consideration on 13.03.09.
5. The appellant/ accused had filed an application u/s 340 Cr.P.C before the court even before recording of the complainant evidence by the trial court at pre cognizance stage itself.
6. The grounds raised in the said application u/s 340 Cr.P.C by the appellant /accused that the present complaint filed by the complainant by making false and frivolous allegations against the appellant and raised a false plea that there is no bar of section 195 Cr.P.C in filing the present complaint as no judicial proceedings is pending and matter is still pending before the police. And had concealed the material fact that an FIR No. 32/09 dt. 9.3.09 u/s 420 IPC was registered against him in the connected matter at PS Tuglak Road and concealed the material fact of the proceedings pending in the court of Sh Pritam Singh, ld. MM in connected matter. It is further alleged in the said application that present complaint is filed as a counter blast to the FIR and a complaint case proceedings u/s 138 NI Act. It is further alleged by accused/respondent in the said application that the complainant is well aware of the fact that the 5 complaint is based on false allegations even then filed the same before the court therefore, committed offences u/s 193/195/196/199/202/209/211 IPC.
7. It is further alleged in the said complaint that offence have been committed by the complainant/respondent against administration of justice and has no right to file any complaint for offences punishable u/s 193/199 IPC due to bar of section 195 Cr.P.C.
8. Ld. counsel for the respondent further submitted that the appellant has no right to be heard on the application u/s 340 Cr.P.C as he is not entitled to participate in the preliminary inquiry to be conducted in terms of section 340 Cr.P.C and in this regard relied upon judgment of Supreme court "Pritish Vs. State of Maharashtra, AIR 2002 SC 236". Ld. Counsel further submitted that the preliminary inquiry required u/s 340 Cr.P.C is like an inquiry u/s 202 Cr.P.C therefore, appellant/ prospective accused has no right to participate in the same and referred to the judgment of "Chitra Narain Vs. NDTV" reported in, '2004 Crl.J 2618" Ld. Counsel for the accused further submitted that the complaint as filed by the appellant before the trial court is a document relating to a false information and causing a public servant 6 to use the power to cause injury to another person therefore, an he commits an offence u/s 182 IPC and in this regard relied upon the judgment of Delhi High Court titled "Varsha Heera Vs. State, Crl. Revision No. 174/2008". Ld. counsel for the accused further submitted that by filing the present complaint, the accused had committed offence against Administration of Justice and is guilty of offence u/s 193/195/199/202/209/211 IPC. Lastly, Ld. Counsel for the respondent submitted that the present complaint as filed is not maintainable due to the bar of section 195 Cr.P.C and in this regard relied upon judgment of Delhi High Court, titled as " Geetika Batra Vs. OP Batra, 2009 (1) JCC 707", wherein Delhi High court observed that after registration of FIR the respondent applied for anticipatory bail thereby, observed that some judicial proceedings took place and as complaint was filed after grant of bail , therefore bar of section 195 Cr.P.C is attracted and same is not entertainable. Ld. counsel for the respondent also submitted that as a subsequent development chargesheet is filed by the police in the court in case FIR No. 108/09 u/s 354/509/34 IPC. And this development to be taken into account at this stage also.
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9. Ld. counsel for complainant/respondent submitted that the Apex court in case titled "M.L. Sethi Vs. R.P. Kapoor, AIR 1967 SC 529", had observed that if during the pendency of criminal investigation, a complaint is filed before the Magistrate for commission of offence u/s 211 Indian penal Code, then the bar of section 195 Cr.P.C is not attracted. Ld. counsel for the appellant further submitted that the respondent had filed the complaint before the trial court on 27.2.09 whereas the FIR no. 32/09 u/s 420 IPC was registered on 09.03.09, therefore, there is no question of any concealment of that fact regarding registration of that FIR. Ld. Counsel for the appellant also submitted that the fact about the falsity of complaint u/s 138 NI Act is very much alleged in the said complaint and the basis of the said complaint is only the false and fabricated FIR no. 108/09 lodged by the respondent at PS Amar colony u/s 354/509/34 IPC and has filed the present complaint before the Metropolitan Magistrate before the filing of the chargesheet in said FIR therefore, the complaint is very much maintainable and bar u/s 195 Cr.P.c is not attracted at all. Further, the application u/s 340 Cr.P.C as filed by the respondent devoids of any merits and same is rightly rejected by the trial court. 8
10. Ld. Trial court vide impugned order had accepted the contention of the respondent that application u/s 340 Cr.P.C moved by the applicant cannot be summarily be rejected on the ground of locus standi. Ld. Trial court further observed that accused has right to be heard and can be called to participate in preliminary inquiry in this regard, relied upon the judgment "Mohd. Zahir Vs. Govt. of NCT, Delhi 1998 Crl.J 298 SC" and "I. K. Karunakaran Vs. T. V. Eacher Warrier AIR 1978 SC 290". ld. trial court in the impugned order further observed that though the prospective accused had no statutory right of hearing in an application u/s 340 Cr.P.C but the court is always empowered to call the accused to participate in such inquiry.
11. Arguments heard. Record perused.
12. Two conditions that required to be fulfilled before invoking section 340 Cr.P.C for leading false evidence firstly that a person has given false affidavits or false evidence in a proceeding before a court and secondly in the opinion of the court it is expedient in the interest of justice to make an inquiry against such person in relation to the offence committed by him. The expression used in section 340 9 Cr.P.C is "expedient in the interest of justice", means that it is not every incorrect or false statement that makes it incumbent on the court to order prosecution and it is only in glaring cases of deliberate falsehood where the conviction is highly likely that court should direct prosecution. The court should remember that (a) too frequent prosecutions for such offences tend to defeat its very object (b) prosecution would be resorted to only in the larger interest of administration of justice and not gratify the feeling of personal revenge or vindictiveness or to serve the ends of a private party.
13. Coming to the facts of the present case is that both the parties have acrimonious relations between them. According to complainant, the appellant misused his office records and sent legal notice u/s 138 NI Act claiming Rs. 8 lakhs on the basis of the forged cheque though he has no liability. And further when she was called for explaining how the liability accrued against the complainant, she visited the residence of his brother and consequently lodged a false complaint pursuant to which FIR U/s 354/509/34 IPC was registered. It is further alleged by the complainant that the said FIR was registered on false and fabricated facts just to blackmail the complainant and further for the purpose of blackmailing and defaming the 10 complainant and his family, she published these false allegations in various daily newspapers pursuant to which he has filed the present complaint.
14. According to application u/s 340 Cr.P.C filed by the appellant before trial court that the complainant had not disclosed the factum of registration of FIR No. 32/09 dt. 9.3.09 u/s 420 IPC registered against him and further the present complaint was filed as a counterblast of two FIR's one registered u/s 420 IPC and other registered u/s 354/509/34 IPC. And further as he is well aware that the complaint is based on false allegation, hence he committed the offence of perjury and therefore, filed the present application.
15. Basis of the filing of the complaint filed by the complainant in trial court on 27.2.09 is primarily lodging of false FIR u/s 354/509/34 IPC against him and his brother and consequent publications in various newspapers such as Times of India, Navbharat Times, Amar Ujala, thereby defaming the complainant and his family in the society. Though in the complaint the entire background is also averred i.e, the using of the forged cheque and issuance of false notice u/s 138 NI Act. Therefore, the arguments of the Ld. Counsel 11 for the appellant that there is a concealment of proceeding u/s 138 NI Act and pendency of investigation in FIR u/s 420 IPC is hardly relevant in the present set of facts required for filing the complaint. It is further pointed out by the Ld. Counsel for the complainant that the said FIR u/s 420 IPC was registered on 9.3.09 i.e, after filing of the present complaint on 27.2.09. Therefore, ground of non mentioning of that FIR is all frivolous.
16. The falsity or truthness of the allegations in the complaint cannot be adjudged at the pre cognizance stage when even the statement of complainant had not been recorded. Therefore, the argument of the Ld. counsel of the appellant that the complaint is filed on false and fabricated facts holds no ground. Even otherwise the issue raised by the appellant is so innocuous and inconsequential and further smacks the feeling of personal vengeance and vindictiveness and lacks contents of larger interests of administration of Justice.
17. Once it is held that facts raised through application U/s 340 Cr.P.C are hardly material to initiate any inquiry and shows no material to affect administration of justice. Then, contention of right of hearing of respondent on that application is all academic, though rightly 12 appreciated by trial court.
18. So far as question of bar to proceedings U/s 195 Cr.P.C that is not attracted as no judicial proceedings are pending at the time of filing of the complaint before trial court. Further complainant had not approached court for grant of bail. Even otherwise, this ground of bar is out of the purview of the proceeding u/s 340 Cr.P.C.
19. Ld. Counsel for appellant lastly submitted that the chargesheet is also filed in FIR U/s 354/509/34 IPC. But these subsequent developments cannot be taken into consideration at this stage.
20. In view of the above discussion, I find no infirmity in the impugned order passed by the trial court. Present appeal stands dismissed. Copy of this order alongwith TCR be sent back. File be consigned to Record Room.
Announced in Open Court
Dated: 21st May 2011 (Ajay Kumar Jain)
ASJ03: SE: NEW DELHI