Delhi District Court
Kishore Biyani vs State Nct Of Delhi on 2 March, 2024
DLSE010016822024
IN THE COURT OF SH. LOVLEEN, ADDITIONAL SESSIONS
JUDGE-03, SAKET COURTS, NEW DELHI
Crl. Appeal. No. 67/2024
1. KISHORE BIYANI
R/o 406, Jeevan Vihar Manav Mandir Road,
Malabir Hill,
Mumbai - 400006.
2. AVNI BIYANI
R/O 406, Jeevan Vihar Manav Mandir Road,
Malabir Hill,
Mumbai - 400006.
3. VIJAY BIYANI
R/o B-3603,
Vivarea Towers, B Wing,
SG Marg, Jacob Circle, Mahalaxmi
Mumbai-400011
4. RAKESH BIYANI
R/o 1903, Vivarea Towers, B Wing,
SG Marg, Jacob Circle, Mahalaxmi,
Mumbai-400011.
...Appellants
Versus
1. STATE NCT OF DELHI
Through the SHO PS CR Park
New Delhi-110019
Crl. Appeal. No. 67/2024 Kishore Biyani Vs. State 1/11
2. NEETA AJWANI,
Proprietor of Nita Enterprises
Office at 52/11, CR Park
New Delhi -110019.
...Respondents
Date of institution : 19.02.2024
Date of reserving the order : 19.02.2024
Date of pronouncement : 02.03.2024
JUDGMENT
1. This is an appeal under section 341 Cr.PC preferred by the appellants/ proposed accused against the impugned order dated 18.01.2024 passed by Court of Ld. Metropolitan Magistrate-04/SE/Saket Court, New Delhi whereby the application of appellants / proposed accused moved u/s 340 Cr.P.C. r/w Section 195(1)(b) Cr.P.C. against one Neeta Ajwani was dismissed. Said Neeta Ajwani is stated to have filed an application u/s 156(3) Cr.P.C. against appellants / proposed accused and some others, which was pending in the Court of Ld. Metropolitan Magistrate- 04/SE/Saket Court, New Delhi at the relevant time. It is the case put forth by the appellants / proposed accused in their application u/s 340 Cr.P.C. r/w Section 195(1)(b) Cr.P.C. that Said Neeta Ajwani had made false claims in her application filed u/s 156(3) Cr.P.C.
Grounds of Appeal
2. The grounds cited by the appellants / proposed accused against the impugned order are as under :
A. Because the impugned order erroneously and complete derogation of the settled law holds that the appellants had no Crl. Appeal. No. 67/2024 Kishore Biyani Vs. State 2/11 locus standi to file the application u/s 340 Cr.P.C. It is submitted that the appellants had made specific submissions and placed reliance on the judgments of the Hon'ble Supreme Court in Natarajan V. B.K. Subba Rao, AIR 2003 SC 541 and A.R. Antuley V. R.S. Nayak, 1998 SCC (Crl) 372, which have held time and again that an application under section 340 Cr.P.C. is maintainable and can be preferred by even a stranger and resultantly, the proposed accused persons have a locus standi to file the 340 application qua the complaint case.
B. Because the Ld. Trial Court, despite having recorded the submission of the appellants and the reliance placed by the appellants on the said judgments, has surprisingly passed the impugned order which stands in complete derogation of the law laid down in terms of the said judgments. C. Because in view of the judgment of Hon'ble Supreme Court in Mrs. Priyanka Srivastava and Anr. V. State of UP and Ors., Criminal Appeal No. 781 of 2012 ("Priyanka Srivastava Judgment") and in light of the directions of the Ld. Metropolitan Magistrate vide the order dated 12.05.2023 passed in the complaint case, the respondent No.2 had filed an affidavit in support of the application u/s 156(3) Cr.P.C. r/w section 200 Cr.P.C.
D. Because, having filed the application which was supported by a duly sworn affidavit and made blatantly false statements, it is imperative that the 340 application of the appellant is allowed a formal complaint is registerded against Crl. Appeal. No. 67/2024 Kishore Biyani Vs. State 3/11 the respondent No.2, in line with the scheme and intent of the Priyanka Srivastava's judgment of the Hon'ble Supreme Court which sought to curb the increasing instances of the misuse of applications under section 156(3) Cr.P.C. to only harass certain persons, such as the appellants in the present case. E. Because the impugned order erroneously holds that the 340 application is liable to be dismissed since the complaint case is a premature stage as no evidence has been led by the respondent No.2 as the complainant. It is submitted that such an interpretations is completely contrary to the intent of section 340 read with section 195(1) (b) Cr.P.C. since no such requirements or the stage of the application of section 340 have been provided under the said sections. Evidently, false pleadings on affidavit have been made by the respondent No.2 by placing reliance on false documents. It is therefore clear as crystal that the respondent No.2 has committed perjury in terms of Section 340 r/w Section 195(1)(b) Cr.P.C.
therefore, to dismiss the 340 application by holding that it is not maintainable at this stage, when there are no such requirements prescribed under the applicable law as to the stage at which a 340 application is maintainable, is an erroneously drawn conclusion. Resultantly, the impugned order lacks judicial application of mind and therefore, ought to be set aside by this Hon'ble Court.
F. Because the impugned order dismisses the 340 application premised on the hypothetical contingency that in the event the complaint u/s 156(3) Cr.P.C. of the respondent Crl. Appeal. No. 67/2024 Kishore Biyani Vs. State 4/11 No.2 is dismissed, the 340 application shall become infructuous. Even assuming but not admitting that the section 340 application may be rendered infructuous, since at this stage no such occasion has arisen and the complaint case is still being considered by the Ld. Metropolitan Magistrate, dismissal of the 340 application, without the dismissal of the complaint but on the hypothetical that the 340 application may, at some point in future, be rendered infructuous, is completely flawed and suffers from non-application of judicial reasoning.
G. Because, a person is always expected to and must approach a Court of Law with clean hands as observed by the Hon'ble Superme Court of India in judgment titled as "S.P.Chengalavaraya V. Jagannatha" cited as AIR 1994 SC
853. H. Because the Hon'ble Supreme Court of India in the judgment titled "Oswal Fats and Oils Ltd. V. Addl. Commissioner (Administration) bearing Civil Appeal No. 76982 of 2002 has observed:-
"15. It is settled law that a person who approaches the Court for grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose all the material/important facts which have bearing on the adjudication of the issues raised in the case. In other words, he owes a duty to the court to bring out all the facts and refrain from concealing/suppressing any material fact within his knowledge or which he could have known by exercising diligence expected of a person of ordinary prudence. If he is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the court not only has the right but a duty to deny Crl. Appeal. No. 67/2024 Kishore Biyani Vs. State 5/11 relief to such person.............."
I. Because a litigant while approaching the Court withholding vital documents is guilty of playing fraud on the Court as well the opposite party, as held by the Hon'ble Delhi High Court in judgment titled as Satish Khosla V. Eli Lilly Ranbaxy Ltd. Cited as 1998 (1) JCC (Delhi) 54.
J. Because, it has been observed in catena of cases that a Court of law upon receiving an application u/s 340 Cr.P.C. must be primarily concerned with the question as to whether a prima facie case is made out , which if un-rebutted may have a reasonable likelihood to establish a specific offence and if it is so expedient in the interest of justice to take such action. The Court must really not be concerned with the result of the main case. The Hon'ble High Court of Delhi in judgment titled as Kuldeep Kapoor V. Susanta Sengupta cited at (2006) DLT 149.
K. Because, it is pertinent that he 340 application is heard considering the malafide actions of the respondent No.2 and that the appellants have the locus and entitled to be heard in view of the above cited judgments passed by the Hon'ble Supreme Court.
L. Because the case of the respondent No.2 is purely a money claim as the respondent No. 2 was a supplier of goods to future Retail Ltd. For their stores namely "Foodhall" multi brand grocery stores operating in Delhi-NCR. It is an admitted case that the respondent No.2 raised invoices on Future Retain Ltd. against the goods supplied to Foodhall Crl. Appeal. No. 67/2024 Kishore Biyani Vs. State 6/11 stores regularly in the time range of 2-3 months. Most importantly, the civil dispute between the parties is already under the adjudication at the MSME Council and in view of the ongoing adjudication of the sole dispute between the parties, the present criminal proceedings do not lie. M. Because there is a clear distinction between mere breach of contract and an offence of cheating, for an offence of cheating intention of the accused at the time of inducement ought to be looked at and merely the subsequent conduct is not the sole test as held by the Hon'ble Supreme Court of India in the case titled as Anil Mahajan v. thar Industries Ltd. cited as (2005) 10 SCC 228.
N. Because, the absence of any mens rea at the time of initiation of the transaction between the parties an offence under Section 415 of the Indian Penal Code, 1860 (IPC) is not made out In the instant case, the Respondent No. 2 in the captioned case has failed to demonstrate as to how the ingredients of Section 415 of the Indian Penal Code, 1860 as it an admitted position that the Respondent No. 2 used to duly receive the payments from Future Retail Ltd against supply of goods.
O. Because, the ingredients of Section 405 IPC are not made out from the allegations as levied by the Respondent No. 2 in the captioned case. It is further submitted, that the transaction between the Respondent No. 2 and Future Retail Ltd does not amount to any entrustment of property as such which is the basic ingredient for an offence under Section 405 IPC The Crl. Appeal. No. 67/2024 Kishore Biyani Vs. State 7/11 Respondent No. 2 has merely concocted facts before this Ld Court and not only has played fraud on this Ld. Court but also a fraud on the Appellants herein.
P. Because, the ingredients of Section 468 IPC are not made out against the Appellants upon a bare reading of the captioned case. The Appellant is relying on a Business Service Agreement dated 14.04.2022 which the Respondent No. 2 alleges was illegible. It is submitted that the Business Service Agreement dated 14.04.2022 was an agreement entered into between Future Retail Ltd. and TNSI Retail Pvt. Ltd. for transfer of operations of Foodhall stores to TNSI Retail Pvt. Ltd. It is pertinent to mention herein that no assets have been transferred in favour of TNSI Retail Pvt. Ltd. and only the operation rights of the Foodhall stores were transferred from Future Retail Ltd. to TNSI Retail Pvt. Ltd. Furthermore, TNSI Retail Pvt. Ltd. is a 100% set down subsidiary of Future Retail Ltd. and therefore there is no question of alienating any assets whatsoever by Future Retail Ltd.
Q. Because, the offence of Section 468 IPC, the document as alleged which is forged ought to be used for the purpose of cheating, however, in the instant case it is the case of the Respondent No. 2 themselves that on 28.04.2022, the Respondent No. 2 were informed via email that with effect from 28.04.2022 the bills, invoices and other compliances were to be done in the name of TNSI Retail Pvt. Ltd and not Future Retail Ltd. The Respondent No. 2 with malafide Crl. Appeal. No. 67/2024 Kishore Biyani Vs. State 8/11 intentions, while relying on the email dated 28.04.2022, has alleged that TNSI Retail Pvt. Ltd. assured the Respondent No. 2 that whatever dues which were payable to the Respondent No. 2 by Future Retail Ltd. would now be paid by TNSI Retail Pvt. Ltd., however on a bare reading of the email dated 28.04.2022 no such assurances have been given to the Respondent No. 2. Therefore, Respondent No. 2 is guilty of giving false evidence and stating false facts before this Ld. Court.
R. Because, the Respondent No. 2 has at every stage before this Ld. Court given false statements to support the baseless allegations as stated in the captioned case. The Respondent No. 2 first filed a 2 page complaint dated 10 August, 2022 before the Economic Offence Wing, Mandir Marg. Delhi ("EOW") alleging non-payment of dues to the Respondent No. 2. however has alleged that due to non-action on part of the Police at EOW, the non respondent No. 2 was constrained to file another complaint before the Station House Officer Cr. Park New Delhi which runs into 7 pages. It is pertinent to note that the respondent No. 2 has improved their version of the complaint which is clear from a bare perusal of the complaint dated 10.08.2022 filed before the EOW and the complaint dated 30.01.2023. This is not permissible in law.
3. It is prayed that the impugned order dated 18.01.2024 may be set aside, appropriate action / inquiry may be taken up against said Neeta Ajwani and the proceedings in the case titled Neeta Ajwani Vs. Future Retail Ltd. (pending in the Court of Ld. Metropolitan Magistrate-04/SE) Crl. Appeal. No. 67/2024 Kishore Biyani Vs. State 9/11 may be stayed.
4. The prayer has been vehemently opposed by the Ld. Addl. PP who submits that the appellants / proposed accused are indirectly trying to create a locus in a complaint case filed by said Neeta Ajwani, which is still at pre-cognizance stage.
Discussion
5. This Court has considered the oral submissions as well as the records.
6. Admittedly, Neeta Ajwani has filed a complaint against the appellants / proposed accused u/s 200 Cr.P.C. r/w Section 156(3) Cr.P.C. for the commission of offences punishable inter alia u/s 420/406/468/471 IPC. Admittedly, the said complaint is still at pre-cognizance stage as the Ld. Metropolitan Magistrate is yet to dispose of the prayer made by said Neeta Ajwani u/s 156(3) Cr.P.C. Admittedly, at pre-cognizance stage, the Ld. Metropolitan Magistrate is required to see if the complaint bears all the necessary ingredients of the cognizable offences complained of and whether or not the matter requires police investigation (please see "Alok Kumar Vs. Harsh Mander and Another 2023 SCC Online Del 4213"). Admittedly, appreciation of the merits of the allegations made by the complainant is a task which is generally dealt with at the post-cognizance stage. Admittedly, as of now the appellants / proposed accused do not have any locus to enter appearance or address arguments in the said complaint filed by said Neeta Ajwani. As such, the appellants / proposed accused could not be permitted to indirectly force the Ld. Metropolitan Magistrate to enter into the exercise of assessment of truth or otherwise of the averments / allegations made in the complaint filed by said Neeta Ajwani, Crl. Appeal. No. 67/2024 Kishore Biyani Vs. State 10/11 which is at pre-cognizance stage. Allowing the present appeal would lead to a grave procedural anomaly as the Ld. Metropolitan Magistrate would then be required to deal with a task pertaining to post-cognizance stage even before disposing of the application moved u/s 156(3) Cr.P.C. by said Neeta Ajwani. The prayer made by the appellants / proposed accused persons to stay proceedings in the complaint filed by said Neeta Ajwani exposes the fact that the application moved before Ld. Metropolitan Magistrate u/s 340 CrPC and the present appeal are just a rise to seek audience in said complaint, where, at this stage, they do not have any locus. That apart, the Ld. Metropolitan Magistrate could not be forced to exercise jurisdiction u/s 340 Cr.P.C. by the appellants / proposed accused. Reason being the fact that the same is a discretionary power which may or may not be invoked against the said Neeta Ajwani (please see observations in Amar Sang Nathaji Vs. Hardik Harshad Bhai Patel AIR 2016 SC 5384 and Davesh Kumar Vs. Gauri & Ors. 2024 SCC Online Del 754) . The present appeal is devoid of any merits and is hereby dismissed.
7. Let copy of judgment be sent to Ld. Trial Court.
8. Appeal file be consigned to Record Room.
Digitally signed by LOVLEEN Date: LOVLEEN Announced & Dictated in the 2024.03.02 16:01:19 +0530 Open Court today i.e. 02.03.2024. (Lovleen) ASJ-03 (South East) Saket Courts, Delhi Crl. Appeal. No. 67/2024 Kishore Biyani Vs. State 11/11