Delhi District Court
M/S Sunair Hotels Ltd vs The State on 20 March, 2012
-1-
IN THE COURT OF MS. NEENA BANSAL KRISHNA :
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
CA No. 07/10
M/s Sunair Hotels Ltd.
Through it's Officer
Sh. B. L. Bhardwaj ..... Appellant /Applicant
versus
The State ..... Respondents /
Non-applicant
Date of institution of the revision : 16.01.2010
Date of reserving judgment/order : 07.02.2012
Date of judgment / order : 20.03.2012
JUDGMENT :
1. This is an appeal u/s 341 of Code of Criminal Procedure (hereinafter referred to as "Cr.PC") against the impugned order dated 16.12.2009 vide which the miscellaneous application u/s 340 Cr.PC filed by the appellant against Harsh Allagh in criminal complaint case no. 712/01, was dismissed.
2. It is submitted in the appeal that the respondent Harsh Allagh had filed a complaint No. 712/01, titled "Harsh Allagh v. M/s Sunair Hotels Ltd. & Ors." against the appellant in which the respondent concealed material facts from the Court. It is alleged by the appellant that the complaint filed by Respondents herein, before the Ld. MM has false as they had CA No. 07/10 Page No. 1 of 8 -2- stolen records from the Income Tax Office pertaining to their company and the respondent also failed to disclose that an FIR bearing No. 326/04, PS Connaught Place, u/s 406/409/420/424/120B IPC had been registered against the respondent Harsh Allagh and other officials of company M/s VLS Finance Ltd. on the complaint of the appellant. The respondent had also concealed the material fact that it had filed a quashing petition before the Hon'ble High Court against FIR No. 326/04 on which directions had been issued whereby the investigations in the said FIR had been stayed. It is, thus, submitted that non-disclosure of lodging of FIR No. 326/04 in the complaint by respondent Harsh Allagh clearly shows that a false complaint had been filed which is an offence u/s 191/192/193/195/196/199/202/203/ 209/211/120B of IPC and accordingly an application u/s 340 Cr.PC was filed by the appellant. However, Ld. MM has dismissed the same vide order dated 16.12.2009.
3. Ld. counsel on behalf of appellant has argued that the respondent has tried to misuse the process of the Court for their nefarious means by suppressing material information and, therefore, the impugned order is liable to be set aside and the directions be issued to the Ld. MM for making a complaint u/s 340 Cr.PC against the various offences.
4. Ld. counsel on behalf of the appellant has also submitted written arguments.
5. Ld. Additional PP on behalf of the State has argued that there is no infirmity in the order of the Ld. MM and the CA No. 07/10 Page No. 2 of 8 -3- present appeal is liable to be dismissed.
6. Arguments have also been addressed by the ld. Counsel on behalf of respondent Harsh Allagh, who had submitted that there was no merit in the present appeal.
7. To appreciate the arguments addressed on behalf of the appellant it would be useful to produce the relevant part of Section 340 Cr.PC, which reads as under :
"340 (Clause i) - It clearly mentions in this Section that :
If the Court is of the opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in Clause (b) of Sub Section (1) of Section 95, 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 documents produced or given in evidence in a proceeding or that Court, such Court may after making enquiry record a finding to that effect and make a complaint in writing to the Magistrate of First Class.
The requirements, therefore, are that there must be a commission of an offence which are referred to in Clause (b) of Sub Section (1) of Section 95 and it should be in the interest of justice that the complaint should be made in respect of thereof."
8. In the present case, the complaint had been filed by respondent no. 2 u/s 200 Cr.PC before Ld. MM against the respondents therein of whom appellant M/s Sunair hotels was one of the party, wherein it was alleged that there was multiple litigations between the parties and that on the complaint of CA No. 07/10 Page No. 3 of 8 -4- M/s VLS Finance Ltd., of which complainant Harsh Allagh was an authorized representative, FIR No. 99/02 had been registered against the respondents (mentioned in the complaint) and that a charge-sheet had also been filed against respondents no. 2 to 4 (in the complaint). It was further stated that FIR No. 90/02 and FIR No. 148/02, in which M/s VLS Finance Ltd. were the complainants, the charge-sheets have been filed and the Court has summoned the accused persons. It was further submitted that pursuant to criminal conspiracy respondents no. 2 to 4 on behalf of respondent no. 1/company had authorized respondent no. 5 to lodge a false complaint against the complainant therein at PS Malviya Nagar on 21.03.2005 and subsequently another complaint dated 14.04.2006 was lodged wherein allegations were made that the complainant and other had procured the documents of the Income Tax Department and, thus, they had stolen the property and committed various offences. On the said complaint, notice was issued to Income Tax Department, who reported that no such documents had been stolen, which were in the custody of the concerned officer and no theft was made out. The respondents had even filed a Writ Petition No. 983/06 before Delhi High Court for getting the FIR registered on the false allegations of theft of Income Tax documents, but the same was dismissed vide order dated 07.08.2007. It was alleged that even at the time of making the said complaint the respondents were aware that no theft had been committed by the complainant therein and that the said false complaint had CA No. 07/10 Page No. 4 of 8 -5- been made with an intent to cause injuries to the complainant and thus offence were committed by the respondents u/s 211/34/120B IPC.
9. The criminal complaint before the Ld. MM, in short alleged that false allegations had been made against the complainant Harsh Allagh in regard to theft of Income Tax records and that on investigations it was found that those allegations were false. The respondents had even approached the High Court for issuing directions for registration of the FIR but the same was also dismissed.
10. The main grievance of the appellant herein is that there was already existing FIR No. 326/04 wherein the appellant herein had clearly stated that the respondent had stolen documents from the Income Tax Department and that a charge-sheet had already been filed in the Court on which cognizance had been taken. It was argued that this FIR No. 326/04 pertained to theft of documents from Income Tax Department and was, therefore, material and should have been mentioned by the respondent herein in their complaint.
11. The copy of the FIR bearing No. 326/04 has been placed on record which has been registered u/s 406/409/420/424/120B IPC. The FIR had been registered on the directions issued by Ld. MM u/s 156 (3) Cr.PC. In the complaint, the appellant herein had alleged various acts of misappropriation and in that context had mentioned about the theft of documents of Income Tax Department by the respondent but the offences under which the FIR has been CA No. 07/10 Page No. 5 of 8 -6- registered is 406/409/420/424 and 120B IPC. The specific complaint by the appellant about the theft had been made on 21.03.2005 at PS Malviya Nagar and the said complaint on investigations was found to be false and no FIR was registered. Merely, because there was a reference about the alleged theft of Income Tax documents in the earlier complaint of the appellant on which an FIR was registered, would not make it a relevant document or a document of such consequences as to constitute has material concealment which would go into the root of the matter.
12. Ld. counsel on behalf of the appellant has relied upon the case "Suo Motu Proceedings Against Mr. R. Karuppan, 2001 Crl. L. J. 2611", wherein it was observed that recognizing the decline of moral values and erosion of sanctity of oath, the effective and stern action is required to be taken for preventing the evil of perjury.
13. It is no doubt true that perjury is a serious offence and if committed during the Court proceedings, no leniency should be exercised. However, the said facts are not applicable to the present case, as it was only on the basis of averments contained in the complaint filed that the allegations of concealment of material facts has been made and it is not a case where any false affidavit has been furnished or false statement on oath has been made.
14. Ld. counsel has also relied upon the cases "S. P. Chengalvaraya Naidu v. Jagannath, AIR 1994 supreme Court 853", but the said case pertains to a suit for partition CA No. 07/10 Page No. 6 of 8 -7- wherein the fraud had been committed on the Court by withholding vital documents. In the present case even the statement of the complaint had not been recorded at the time of making of the application and thus, the said judgment is again not applicable to the facts of the present case.
15. The other judgment relied upon by the appellant is "Satish Khosla v. Eli Lilly Ranbaxy Ltd., 1998 [1] JCC [Delhi] 54", wherein again it was a matter pertaining to Contempt of Courts Act, wherein despite dismissal of a suit for stay, a second suit had been filed without disclosing the institution of first suit. Again in the said case there was material concealment of facts, which would have a direct impact on grant of relief claimed in the suit and thus, it was observed that it amounted to criminal contempt. The said case is again distinguishable on facts.
16. The other judgment, which is relied upon by the appellant is "Daulat Ram v. State of Punjab, 1962 92) Cri. L. J. 286", wherein it was observed that the offence is complete if there is a false report furnished irrespective of the fact that no action is taken on the said report.
17. In the present case the FIR No. 326/04 was not a material fact which would have direct impact on the relief which was claimed by the complainant as a separate enquiry had been held in the specific allegations of alleged theft of Government documents by the respondents and had been found to be false by the police. In the FIR No. 326/04 there was only a mention of the documents of Income Tax CA No. 07/10 Page No. 7 of 8 -8- Department being illegal available with the respondents, but in itself was not enough to substantiate that the respondent had committed theft of Income Tax records.
18. It has been rightly observed by the Ld. MM in his impugned order that mere non-mentioning of FIR No. 326/04 would not come within the ambit of the offence u/s 195 Cr. PC and also observed that it was not expedient to conduct any enquiry on the application made by the appellant and thereby has rightly dismissed the application u/s 340 Cr.PC.
19. There is no merit in the appeal. The same is hereby dismissed.
20. Trial Court Record be sent back along with the copy of this order.
21. Appeal file be consigned to the Record Room. Announced in the open Court on 20th Day of March,2012.
(Neena Bansal Krishna) ASJ-01/PHC/New Delhi CA No. 07/10 Page No. 8 of 8