Delhi District Court
Vijendra Nath Gupta vs The State on 28 September, 2022
IN THE COURT OF SHRI SANJEEV KUMAR-II,
SPECIAL JUDGE (NDPS)-02, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
Criminal Revision No. 246/2022
CNR No. DLCT01-007466-2022
Vijendra Nath Gupta
Son of Late Shri Rajendra Nath Gupta
Resident of 2764, Ramroop Street,
Main Bazar, Subzi Mandi,
Delhi-110006 ....Revisionist
Versus
1. The State
(Government of NCT of Delhi)
2. Raghubir Singh Chhabra
Son of Late S.Gurbux Singh,
Resident of 4/26, Ist Floor,
Shanti Niketan, New Delhi-110026. ....Respondents
Preferred on : 06.05.2022
Reserved on : 21.09.2022
Pronounced on : 28.09.2022
JUDGMENT
This revision has been filed under section 397 of the Code of Criminal Procedure, 1973 (in short 'CrPC') against order dated 02.04.2022 passed by the learned Metropolitan Magistrate-05 (NI Act), Central District, Tis Hazari Courts, Delhi, in Complaint Case No. 533060/2016, under section 138 of the Negotiable Instrument Act, 1881 (in short 'IPC') titled as "S. Raghubir Singh v. Vijendra Nath Gupta".
C. R. No. 246/2022 Vijendra Nath Gupta v. State & Anr. 1 Submissions
2. Mr. Harsh Khanna, learned counsel appearing for the revisionist has submitted that learned Metropolitan Magistrate by impugned order directed that the arguments on the application as well as preliminary inquiry, if any, under section 340 of the CrPC be conducted alongwith final arguments and decision on the same will be rendered alongwith or after the judgment. The said order is erroneous and final in nature as the bone of contention raised by the revisionist regarding the effect of the forged and fabricated document has become meaningless.
3. Mr. Khanna has further submitted that learned Metropolitan Magistrate has miserably failed to draw the ratio of judgments cited by the revisionist which are part of the trial court record and are highlighted and are crystal clear to the effect that the application under section 340 CrPC must be decided before adjudication of the case if the effect of the forged document is upon the outcome and final decision of the case.
4. Mr. Khanna further submitted that from the facts it is clear that respondent no.2/Raghubir Singh Chhabra in connivance with Sanjeev Chauhan, Neeraj Kanotra and Shailesh Gupta have not only been making contradictory statements to cover up their illegal acts but also have connived to cheat the revisionist and have forged Government security papers i.e. stamp papers, have misappropriated the cheque given by the revisionist to respondent no.2, therefore, the application filed by the revisionist under section 340/195 CrPC must be decided before proceeding further for final arguments. Learned counsel in support of his submissions, has relied on Amar Nath and others v. State of C. R. No. 246/2022 Vijendra Nath Gupta v. State & Anr. 2 Haryana and others, AIR 1977 SC2185; Adalat Prasad v. Rooplal Jindal and others, 2004 (24)AICI20; Iqbal Singh Marwah and others v. Meenakshi Marwah and others, 2005(2) ACR 1379 (SC) and The State of Punjab v. Jasbir Singh, 2022 LiveLaw (SC) 776.
5. On the other hand, Mr. Prashant Batra, learned counsel appearing for the respondent no. 2 has opposed the revision contending that the revision against impugned order is not maintainable because same is interlocutory in nature. The learned Trial Court has rightly passed impugned order. Learned counsel has relied upon Mahua Moitra v. State and others, MANU/DE/3378/2019; Vishal Kapoor v. Mrs. Sonal Kapoor, LPA No.322/2014; Rajeev Choudhary @ Rajeev v. State, CRL Rev. Petition 1052/2018 and 1068/2018; Iqbal Singh Marwah (supra); Ashish Bhalla v. State & Another, Crl.A. 1049/2019 and Prem Prakash Dabral v. State and others, Crl. M.A. 17199/2017.
Analysis and Discussion
6. The respondent no. 2 herein has filed complaint under section 138 of the Negotiable Instruments Act, 1881 against appellant herein and another. The revisionist had filled application under section 340 of the CrPC before learned Metropolitan Magistrate and by impugned order dated 02.04.2022 it was directed that the arguments on the application under Section 340 CrPC moved by the revisionist herein as well as preliminary inquiry, if any, under section 340 of the CrPC was directed to be conducted along with final arguments and decision on the same will be directed to be rendered along with or after judgment.
C. R. No. 246/2022 Vijendra Nath Gupta v. State & Anr. 3
7. In Mahua Moitra (supra) Hon'ble Delhi High Court held that order whereby if application under Section 340 CrPC has not been decided finally but only adjourned the same, is interlocutory order. In relevant para it was held;
"32. Perusal of the above ordersheets reveals that Ld. Trial Court has yet to decide the application moved on behalf of the prospective accused under Section 340 CrPC as well as on the application filed on behalf of the prospective accused seeking dismissal of the complaint on the ground of fraud on the court.
33. Perusal of the order dated 01.08.2019 of the Ld. MM further reveals that prospective accused has filed an application under Section 340 CrPC. Part detailed arguments on the point of maintainability were heard by the Ld. MM. Further arguments were deferred at the request of Ld. Counsel for the applicant himself. Ld. MM, thereafter, has held that proceedings in the complaint case cannot be stalled because of filing of application under Section 340 CrPC. In the opinion of this Court, the order passed by the Ld. MM dated 01.08.2019 on the application under Section 340 CrPC is an interlocutory order as it does not decide anything finally.
34. In the judgment titled "Sethuraman v. Rajamanickam, CR. Appl. No. 486-487/2009 (in SLP (Crl.) No. 2688-89/2005)", the Hon‟ble Supreme Court has defined interlocutory order and relevant para is as under;
"4. Secondly, what was not realized was that the order passed by the Trial Court refusing to call the documents and rejecting the application under Section 311 Cr.P.C., were interlocutory orders and as such, the revision against those orders was clearly barred under Section 397(2) Cr.P.C. The Trial Court, in its common order, had clearly mentioned that the cheque was admittedly signed by the respondent/accused and the only defence that was raised, was that his signed cheques were lost and that the appellant/complainant had falsely used one such cheque. The Trial Court also recorded a finding that the documents were not necessary. This order did not, in any manner, decide anything finally. Therefore, both the orders, i.e., one on the application under Section 91 Cr.P.C. for production of documents and other on the application under Section 311 Cr.P.C. for recalling the witness, were the orders of interlocutory nature, in which case, under Section 397(2), revision was clearly not maintainable.
C. R. No. 246/2022 Vijendra Nath Gupta v. State & Anr. 4 Under such circumstances, the learned Judge could not have interfered in his revisional jurisdiction."
(Emphasis supplied).
35. In another judgment titled "Amarnath and Ors. Vs. State of Haryana and Anr., (1977) 4 SCC 137", the Hon‟ble Supreme WP.Crl.2864/2019 Page 24 of 25 Court has also defined interlocutory order and relevant para is as under;
"(3) The term "interlocutory order" in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad and artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceedings, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code.
But orders which are matters of moment and which affect or adjudicate the rights of the accused on a particular aspect of the trial cannot be said to be interlocutory so as to be outside the purview of the revisional jurisdiction of the High Court."
(Emphasis supplied).
36. In view of the above proposition of law, the order passed by the Ld. MM on 01.08.2019 is clearly an interlocutory order as she has not decided the application under Section 340 CrPC moved by the respondent finally but only adjourned the same and observed that by moving such application, the respondent i.e. prospective accused cannot stall the proceedings in the main complaint case and, therefore, no revision lies against the said order to the Ld. Sessions Judge. Ld. Addl. Sessions Judge has, therefore, wrongly entertained the revision petition and stayed the proceedings of the criminal complaint. The order dated 25.09.2019 passed by the Ld. Addl. Sessions Judge, is therefore, set aside and proceedings pending before the Ld. Addl. Sessions Judge are quashed being not in accordance with law. The petition stands disposed of accordingly."
C. R. No. 246/2022 Vijendra Nath Gupta v. State & Anr. 5
8. As per sub-section (2) of section 397 of the CrPC, the powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. In view of the proposition of law as observed in Mahua Moitra (supra), I am of the view that the impugned order is clearly an interlocutory order and no revision is maintainable as learned Metropolitan Magistrate has not decided the application under section 340 of the CrPC finally but only held that the arguments on the said application as well as preliminary inquiry, if any, under section 340 of the CrPC be conducted along with final arguments and decision on the same will be rendered along with or after judgment.
9. Even if, it is assumed for the sake of arguments that impugned order is not an interlocutory order and revision is maintainable, then also learned Metropolitan Magistrate has rightly passed impugned order whereby the arguments on the application under Section 340 CrPC moved by the revisionist herein as well as preliminary inquiry, if any, under section 340 of the CrPC was directed to be conducted along with final arguments and decision on the same will be directed to be rendered along with or after judgment. In support of my this view, I am referring following judgments wherein it was held that normally, a direction for filing of a complaint under section 340 of the CrPC is not made during the pendency of the proceeding before the Court and this is done at the stage when the proceeding is concluded and the final judgment is rendered:
C. R. No. 246/2022 Vijendra Nath Gupta v. State & Anr. 6
10. In Iqbal Singh Marwah (supra), the Constitutional Bench of Hon'ble Supreme Court held:
"18. In view of the language used in Section 340 Cr.P.C. the Court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the Section is conditioned by the words "Court is of opinion that it is expedient in the interest of justice." This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the Court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(i)
(b). This expediency will normally be judged by the Court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in Court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the Court may not consider it expedient in the interest of justice to make a complaint. The broad view of clause (b)(ii), as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged document remedyless. Any interpretation which leads to a situation where a victim of a crime is rendered remedyless, has to be discarded.
19. There is another consideration which has to be kept in mind.
Subsection (1) of Section 340 Cr.P.C. contemplates holding of a preliminary enquiry. Normally, a direction for filing of a complaint is not made during the pendency of the proceeding before the Court and this is done at the stage when the proceeding is concluded and the final judgment is rendered. Section 341 provides for an appeal against an order directing filing of the complaint. The hearing and ultimate decision of the appeal is bound to take time. Section 343(2) confers a discretion upon a Court trying the complaint to adjourn the hearing of the case if it is brought to its notice that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen. In view of these provisions, the complaint case may not proceed at all for decades specially in matters arising out of civil suits where decisions are challenged in successive appellate fora which are time consuming. It is also to be noticed that there is no provision of appeal against an C. R. No. 246/2022 Vijendra Nath Gupta v. State & Anr. 7 order passed under Section 343(2), whereby hearing of the case is adjourned until the decision of the appeal. These provisions show that, in reality, the procedure prescribed for filing a complaint by the Court is such that it may not fructify in the actual trial of the offender for an unusually long period. Delay in prosecution of a guilty person comes to his advantage as witnesses become reluctant to give evidence and the evidence gets lost. This important consideration dissuades us from accepting the broad interpretation sought to be placed upon clause (b)(ii)."
[underlines are mine]
11. In Mr. Vishaal Kapoor (supra), Divisional Bench of Hon'ble Delhi High Court also held:
"6. It is unfortunate that neither counsel drew attention to the law on the matter. One of us (Rajiv Sahai Endlaw, J.) had occasion in Punjab Tractors Ltd. Vs. M/s International Tractors Ltd. 167 (2010) DLT 490 to deal with the said aspect and on a conspectus of the case law on the subject, held as under:-
"18. In my opinion, an application under Section 340 of the Cr.PC ought to be normally considered at the time of final decision of the case only and not at the interim stage as the defendants/applicant have pressed in the present case. It is the settled legal position that the said provision cannot be resorted to, to satisfy a private grudge of the litigant. In fact the very genesis of this provision is to prevent complaints being filed of offences having being committed in relation to the court proceedings; it was felt that if such complaints are permitted to be filed, the same may be used to force the other party into giving up its claim/defence or to dissuade witnesses from appearing before the courts under threat of criminal prosecution. It was held as far back as in Rewashankar Moolchand Vs. Emperor AIR 1940 Nagpur 72 that proceedings under Section 340 Cr.PC should not be resorted to when the criminal case is calculated to hamper fair trial of issue in the civil court before which the matter would probably go on for longer. This court also in M/s Jindal Polyster Ltd. Vs. Rahul Jaura 124 (2005) DLT 613 and in Kuldeep Kapoor Vs. Susanta Sengupta 126 (2006) DLT 149 has held that applications under Section 340 of the Cr.PC should be dealt with at the final stage only and not at the interim stage. I also find a consistency of view in this regard in the other High Courts. The law is that a prosecution for perjury should not be ordered by the court before the close of the proceedings in the case in which false evidence is given. It is highly wrong for a court to take action under the said provision against a witness or a party for giving false evidence when trial is underway.
C. R. No. 246/2022 Vijendra Nath Gupta v. State & Anr. 8
21. Formation of prima facie opinion that a person charged has intentionally given false evidence is a condition precedent for directing lodging of a complaint. The existence of mens rea or criminal intention behind act complained of will have to be looked into and considered before any action under Section 340 of the Cr.PC is recommended. Before setting the criminal law into motion, the court should exercise great care and caution and it must be satisfied that there is reasonable foundation for the charge in respect of which prosecution is directed. No prosecution ought to be ordered unless reasonable probability of conviction is found. Considering the nature of the documents and evidence in relation whereto offences are alleged to have been committed, I find the said ingredients to be lacking in the present case.
23. It cannot also be lost sight of that in criminal prosecution there is waste of public funds and time of courts. For this reason also in every case of perjury the court would not mechanically take cognizance or direct prosecution. Prosecution should be ordered only when it is considered expedient and in the interest of justice to punish the delinquent. Every incorrect or false statement does not make it incumbent on the court to order prosecution.
24. There is yet another principle of law though relating to witnesses. A witness is entitled to an opportunity to correct himself. In the present case, Mr. Rihal during the cross examination admitted two mistakes in the drawings alleged to be fabricated. Mr. Rihal having corrected himself, ought not to be prosecuted.
25. This court in Rawal Singh Vs. Quality Stores AIR 1986 (Delhi) 236 in spite of finding a document having been fabricated, yet dismissed the application under Section 340 of the Cr.PC finding it not to be a fit case for recourse to any such action. In my view, the application under Section 340 of the Cr.PC at this stage if allowed would give a handle to the defendants against the plaintiff and would give unfair advantage to the defendants over plaintiff in the suit proceedings. It is still to be investigated and found out by this court as to whether the plaintiff had devised improvements/modifications over and above the drawings of CMERI and if so whether the defendants have copied/infringed the said drawings of the plaintiff.
Allowing the application at this stage would tantamount to this court returning finding that the drawings of the plaintiff are the same as that of the CMERI. While the proposition in R. Karuppan (Supra) & Mahila Vinod Kumari (Supra) cannot be disputed, it cannot also be lost sight of that too frequent prosecutions for such offences tend to defeat its very object. It is only in glaring cases of falsity where conviction is highly likely that the court should direct prosecution."
C. R. No. 246/2022 Vijendra Nath Gupta v. State & Anr. 9
7. As far as the reliance by the counsel for the appellant on K. Karunakaran (supra) is concerned, it is not as if the same was not noticed in Punjab Tractors Ltd. Moreover, K. Karunakaran was not concerned with the question whether the application under Section 340 Cr.P.C. is to be taken up at the time of final disposal of the matter or whenever it is filed. It may also be recorded that the application under Section 340 Cr.P.C. in that case was in a habeas corpus petition and was filed after the petition had been disposed of. Thus the observation in para 21 of the judgment that the enquiry under Section 340(1) Cr.P.C. is irrespective of the result of the main case, cannot be read as laying down that the hearing of the application under Section 340 Cr.P.C. is not to be deferred till the final decision in the proceeding. This becomes clear from para 24 of the judgment where it is held that when the trial commences (in that case of offence under Section 193 IPC), the reasons given in the judgment in the habeas corpus petition or in the order under Section 340(1) Cr.P.C. should not weigh with the Criminal Court in coming to its independent conclusion whether offence has been established.
8. The matter is however put beyond any pale of controversy in Rugmini Ammal by LR's Vs. V. Narayana Reddiar (2007) 12 SCC 611, which remained to be noticed in Punjab Tractors Ltd. (supra). The Supreme Court in the said judgment held, "normally, a direction for filing of a complaint is not made during the pendency of the proceeding before the Court and this is done at the stage when the proceeding is concluded and the final judgment is rendered". It was also held that as per language of Section 340 of the Cr.P.C., the Court is not bound to make a complaint as the Section is conditioned by the words "Court is of the opinion that it is expedient in the interests of justice". The said words were held to show that such a course would be adopted only if the interest of justice requires and not in every case. It was further held that this expediency would normally be judged by the Court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact such commission of offence has upon administration of justice. It was further held that even where the forged document or forgery may cause a very serious or substantial injury to a person but where such document is just a piece of evidence, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice is minimal, the Court may not consider it expedient in the interest of justice to make a complaint.
9. Reference may also be made to the judgment of the Division Bench of this Court in Deepak Khosla Vs. Anand Mohan Mishra MANU/DE/1447/2010 which also though not directly concerned with the said issue, otherwise suggests that the application under Section 340 of the Cr. P.C. will be disposed of along with main C. R. No. 246/2022 Vijendra Nath Gupta v. State & Anr. 10 proceedings. Similarly a learned Single Judge of this Court in Dheeraj Singh Rana Vs. State (NCT of Delhi) MANU/DE/0400/2013 also held that the application under Section 340 of the Cr.P.C. is to be decided at the final stage of the proceeding in which it is made. Similarly in Subhash Chandra Vs. State of U.P. (2000) 5 SCC 356 where offence within the meaning of Section 340 of the Cr. P.C. was stated to have been committed in the matter of filing of an application under Section 156(3) Cr.P.C. in the Court of the Sessions Judge and the High Court had ordered prosecution, the Supreme Court held the High Court to have acted in haste and held that since the application under Section 156(3) Cr.P.C. was still to be investigated, the direction for prosecution at that stage was premature."
[underlines are mine]
12. In Rajeev Choudhary (supra), Hon'ble Delhi High Court held:
"50. In the present case, since the trial is at the fag end and most of the evidence has already been recorded, it would be expedient for the Trial Court to form such an opinion, as required by section 340 Cr.P.C., only after the trial is concluded and final arguments are advanced."
13. In view of above discussion, I am of the view that revision is liable to be dismissed and accordingly, same is dismissed.
Dated: 28.09.2022
SANJEEV Digitally signed by SANJEEV
KUMAR
KUMAR Date: 2022.09.28 15:22:09
+0530
(Sanjeev Kumar-II)
Special Judge, (NDPS)-02,
Central District, Tis Hazari Courts, Delhi
C. R. No. 246/2022 Vijendra Nath Gupta v. State & Anr. 11