Delhi District Court
Nitu Kumari vs Municipal Corporation Of Delhi on 17 February, 2024
IN THE COURT OF SH. MAYANK GOEL, JSCC/ASCJ/GJ,
SHAHDARA, KARKARDOOMA COURTS, DELHI
Misc. SCJ No. 113/2023
NITU KUMARI Vs. MUNICIPAL CORPORATION OF DELHI.
ORDER ON APPLICATION UNDER SECTION 340 r/w
SECTION 195 Cr.P.C
1. Vide this order I shall dispose of the application under section
340 r/w Section 195 of Cr.P.C. which is filed by the plaintiff/applicant
Ms. Nitu Kumari against Municipal Corporation of Delhi through
Commissioner.
Grounds of Application
2. It is averred by the plaintiff/applicant in the application under
Section 340 r/w 195 of Cr.P.C. that the present application has been
arose out from Civil Suit bearing CS No. 434/2021, titled as "Nitu
Kumari Vs. Ompal Dhama & Ors." It is further averred by the
plaintiff/applicant that the respondent/MCD is defendant no. 7 in the
said suit who have suppressed material facts and filed false status report before this court and tried to save defendant no. 1 to 5. It is further averred by the plaintiff/applicant that this court vide order dated 10.01.2023 and 01.04.2023 issued directions to Deputy Commissioner, MCD, to file status report. Thereafter, MCD filed the status report on 11.04.2023 and 19.07.2023. That the status report filed by MCD on 19.07.2023 is false and fabricated and did not comply the order of this court dated 10.01.2023, 01.04.2023 and 11.04.2023 and in the Status Report, so many material facts have been suppressed to mislead the court with intention to save the defendant Digitally signed MAYANK by MAYANK GOEL GOEL ____________________________________________________ Date: 2024.02.17 14:32:05 +0530 Misc. SCJ No. 113/2023 NITU KUMARI Vs. MUNICIPAL CORPORATION OF DELHI. Page No. 1 of 7 no. 1 to 5. That the facts suppressed by MCD are as follows:
(i) Ownership of the said property is in question till date,which has not mentioned by MCD in present Status Report dated 19.07.2023 intentionally.
(ii) Actual height of the said building is in question till date, which has not mentioned by MCD in present Status Report dated 19.07.2023 intentionally.
(iii) Actual measuring area of the said property is in question till date, which has not mentioned by MCD in present Status Report dated 19.07.2023 intentionally.
(iv) Actual measuring area of the flat of ground floor purchased by the plaintiff (informant herein) of this property, is in question till date, not mentioned after to passed strict order of this Hon'ble Court, in the present Status Report intentionally.
(v) How MCD tried to prove ground floor as stilt to legalize fourth floor intentionally, is matter of perjury also.
(vi) When application for construction under Saral Scheme UBBL, 2016 made for 105 sq. mts. = 125.58 sq. yds. only then construction made upon 200 sq. yds. (as per MCD Status Report), How it has been possible has suppressed by MCD before this Hon'ble Court.
(vii) How two flats of "Upper Ground Floor" constructed in which electric meters are installed, are in question till date, which has suppressed by MCD before this Hon'ble Court.
(viii) How two flats of "Fourth Floor" constructed in which electric meters are installed illegally also which has suppressed by MCD before this Hon'ble Court.
(xi) Why MCD has suppressed "Two work stop notice dated 18.04.2017 and 09.05.2017" intentionally before this Hon'ble Court only to save because both notice in-
self explained that entire building is unauthorized and book for demolition.
(x) Why MCD is not ready to file original documents of ownership, chain documents and documents of property tax related which the said property in question, etc even after to file application u/o XI Rule 14 r/w Section 151 CPC also.
It is further averred by the plaintiff/applicant that MCD has committed perjury to give advantage to the wrong doers.
Digitally signed byMAYANK MAYANK GOEL ____________________________________________________ GOEL Date: 2024.02.17 14:32:14 +0530 Misc. SCJ No. 113/2023 NITU KUMARI Vs. MUNICIPAL CORPORATION OF DELHI. Page No. 2 of 7 Ld. Counsel for plaintiff relied upon the judgment of Hon'ble Supreme Court of India in "Meghmala & Ors. Vs. G. Narasimha Reddy & Ors., (2010) 8 SCC 383". The facts of the said judgment are different from the facts of the present case as in the said judgment, the facts are that the applicant/appellant had played fraud in obtaining the order from the Special Court by suppressing the material facts. In view of this fact, it was held by Hon'ble Supreme Court of India in the said judgment that "Fraud is an intrinsic, collateral act, and fraud of an egregious nature would vitiate the most solemn proceeding of courts of justice. Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. The expression 'Fraud' involves two elements, deceit and injury to the person deceived. It is the cheating intended to get an advantage. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab-initio. Fraud and deception are synonyms. Fraud is proved when it is shown that a false representation has been made knowingly, or without belief in its truth or recklessly, careless whether it be true or false. Suppression of a material document also amounts to a fraud on the court. It is evident that even in judicial proceedings, once a fraud is proved, all advantages gained by playing fraud can be taken away."
3. Per contra, it is averred by the respondent/defendant no. 7 in its reply to the application under Section 340 r/w Section 195 of Cr.P.C that the present application under Section 340 r/w Section 195 of Cr.P.C has been filed without any basis. It is further averred that the respondent/MCD had not suppressed any material facts before the court. It is further averred that the status report filed by MCD is not false and fabricated and the same is filed in discharge of their statutory duties. It is averred by the respondent/defendant no. 7 that application Digitally signed by MAYANK MAYANK GOEL ____________________________________________________ GOEL Date: 2024.02.17 14:32:20 +0530 Misc. SCJ No. 113/2023 NITU KUMARI Vs. MUNICIPAL CORPORATION OF DELHI. Page No. 3 of 7 under Section 340 r/w Section 195 of Cr.P.C be dismissed as same has been filed without any merits.
4. The applicant has also filed rejoinder to the reply filed by the respondents reiterating the facts of the application and denying the contents of the reply.
Finding by the Court
5. After hearing the submission on behalf of the plaintiff and before proceeding further with the present application the court deem it fit to discuss here the provisions as enumerated under section 340 Cr.P.C.
Section 340 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.Digitally signed
MAYANK by MAYANK GOEL GOEL Date: 2024.02.17 ____________________________________________________ 14:32:28 +0530 Misc. SCJ No. 113/2023 NITU KUMARI Vs. MUNICIPAL CORPORATION OF DELHI. Page No. 4 of 7 (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 sub- section (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 Court.
(4) In this section," Court" has the same meaning as in section 195.
6. So after going through the provisions as enumerated under section 340 of Cr. PC. It is clear that proceedings under section 340 of Cr.PC can be invoked if the offence as mentioned under section 195 (1) clause (b) of Cr.P.C appears to have been committed. Section 195 (1) (b)(i) of Cr. PC provides the offences as enumerated under section 193 to 196, 199,200,205,211 and 228 of IPC. The section 193 to section 211 of IPC comes under chapter XI under the headings of the false evidence and offences against public justice. However, in the present matter, even the issues have not been framed, so it is very much clear that the offence as enumerated under section 195 (1) (b)(i) have not been committed. As far as the offences as mentioned under section 195 (1)(b)(ii) of Cr. PC are concerned, same pertains to commission of the offence, with respect to the documents produced or given in evidence. However, in the present application, there is admittedly nothing to substantiate that any document had been produced or given in evidence. In other words, the present matter in hand does not pertains to forgery with respect to any documents accordingly even the offence as enumerated under section 195 (1)(b) Digitally signed by MAYANK MAYANK GOEL ____________________________________________________ GOEL Date: 2024.02.17 14:32:38 +0530 Misc. SCJ No. 113/2023 NITU KUMARI Vs. MUNICIPAL CORPORATION OF DELHI. Page No. 5 of 7
(ii) have not been committed. As far as the offence as mentioned under section 195(1)(b)(iii) are concerned, same pertains to criminal conspiracy, with respect to the offence as mentioned under section 195 (1)(b)(i) & (ii) of Cr. PC, however, there is no evidence or averments w.r.t the commission of Criminal conspiracy of any of the offences as mentioned under Section 195 (1)(b)(i) & (ii) of Cr. PC.
7. In view of the above mentioned the Court left with no doubt that the present application under section 340 of Cr. PC is not maintainable on the face of it. Though from the above mentioned discussion, it is clear that present application under section 340 of Cr. P.C is not at all maintainable, yet in the interest of justice the Court is also deciding the application on merits on the basis of facts as mentioned in the application.
8. As far as the contention of the plaintiff to the effect that the defendant no. 7 has filed false and fabricated report suppressing the material facts to save defendant no. 1 to 5 is concerned, the Court is of the view that filing a innocuous report in the court cannot attract the proceedings under Section 340 of Cr.P.C. as till date no benefit has been given to the defendant no. 1 to 5 on the basis of report filed by defendant no. 7/MCD.
9. It is also pertinent to mention here that it is not the case of the plaintiff/applicant that due to the report filed by MCD/defendant no. 7, any harm has been caused to the merits of the present case.
Court observations
10. After going through the above mentioned the court is of the view that there are no ground for invoking the provisions Under Digitally signed by MAYANK MAYANK GOEL GOEL Date: 2024.02.17 ____________________________________________________ 14:32:43 +0530 Misc. SCJ No. 113/2023 NITU KUMARI Vs. MUNICIPAL CORPORATION OF DELHI. Page No. 6 of 7 section 340 Cr.P.C. It is clear that the present application under Section 340 Cr.P.C. has been moved without any basis.
Conclusion
11. In view of the above mentioned observation, the application u/s 340 Cr. P. C stands disposed of as dismissed.
12. File be consigned to record room after due compliance.
Announced in open Court.
On this 17th February, 2024
This Order contains 7 pages MAYANK Digitally signed by
MAYANK GOEL
and is signed by me. GOEL Date: 2024.02.17
14:32:48 +0530
(MAYANK GOEL)
JSCC/ASCJ/GJ, SHAHDARA,
KARKARDOOMA COURTS, DELHI
____________________________________________________ Misc. SCJ No. 113/2023 NITU KUMARI Vs. MUNICIPAL CORPORATION OF DELHI. Page No. 7 of 7