Delhi District Court
Vikash Gupta vs Deep Mala Gupta on 29 November, 2017
CA No.52/16
Vikash Gupta vs Deep Mala Gupta
IN THE COURT OF VIKAS DHULL, SPL. JUDGE,
(PC ACT), CBI 03, DWARKA COURTS, NEW
DELHI
CA No. 52/16
ID No.440479/16
CNR No.DLSW010037962016
Vikash Gupta vs Deep Mala Gupta
Vikash Gupta
S/o Late Sh. Satrughna Prasad
R/o C4, Mansarovar Apartments
Plot no.3, Sector5, Dwarka,
New Delhi - 110 075
Currently staying at:
Flat no.503, AL Jaber Building,
AL Sarafi Street, Buteena,
Sharjah, UAE
... Appellant
Versus
Deep Mala Gupta
W/o Sh. Vikash Gupta
D/o Sh. Sadan prasad Gupta
R/o Jain Mandir Road,
P.S. Daltonganj,
Distt. Palamu, Jharkhand
... Respondent
Page: 1/18
CA No.52/16
Vikash Gupta vs Deep Mala Gupta
Date of institution of appeal :04.07.2016
Date on which judgment reserved :27.11.2017
Date on which judgment pronounced :29.11.2017
JUDGMENT
1. The present appeal has been filed by the appellant (husband) u/s.341 of the Code of Criminal Procedure, 1973 being aggrieved by the order dated 28.05.2016 of the ld. Trial court (hereinafter referred to as 'impugned order') vide which the application of the appellant u/s.340 CrPC was dismissed.
2. The brief facts which are relevant for deciding the present appeal are that respondent (wife) had filed an application u/s.12 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as PWDV Act), alleging acts of domestic violence against the appellant. In the said application in para 1(k), it was averred by the respondent as follows :
Page: 2/18 CA No.52/16 Vikash Gupta vs Deep Mala Gupta "That on the other hand, the respondent is earning a handsome amount of Rs.5,00,000/ (approximately) and is deliberately ignoring to maintain the complainant and her son, and further is not paying even a single penny for the maintenance of both."
3. The appellant was issued notice of the application of the respondent and thereafter, appellant had filed written statement and alongwith the written statement, the appellant had filed an application u/s.340 CrPC praying for initiation of criminal proceedings against the respondent for making false statement in para 1(k) of her application.
4. It was submitted in the application u/s.340 CrPC by the appellant that respondent had concealed the material fact that she was getting maintenance of Rs.15,000/ per month as per the order of Hon'ble High Court, Jharkhand which was later on reduced to Rs.5,000/ per month by the Hon'ble Supreme Court of India and the appellant was continuously Page: 3/18 CA No.52/16 Vikash Gupta vs Deep Mala Gupta paying the maintenance to the respondent even prior to the filing of the application u/s.12 of PWDV Act.
5. The ld. Trial court, after seeking reply from the respondent/wife had heard the parties and thereafter, vide the impugned order, had dismissed the application on the ground that it was not in the interest of justice to initiate criminal proceedings against the respondent, even though the respondent was guilty of concealment of facts regarding the receipt of maintenance from the appellant, pursuant to the order of Hon'ble Jharkhand High Court and Hon'ble Supreme Court of India. Aggrieved by the impugned order, the appellant/husband has approached this court in appeal.
6. Notice of the appeal was issued to the respondent/wife, who on being served chose not to file any reply.
7. I have heard Sh. Ashok Chaitanya, ld. Counsel for Page: 4/18 CA No.52/16 Vikash Gupta vs Deep Mala Gupta the appellant and Sh. Manoj Taneja, ld. Counsel for respondent.I have also summoned the trial court record and have carefully perused the same and the judgments relied upon by the respective counsels.
8. It was submitted by ld. Counsel for the appellant that the impugned order is not sustainable on law as well as on facts and the ld. Trial court committed grave illegality by dismissing the application of the appellant. It was further submitted that the ld. Trial court had ignored the judgments cited by the appellant at the time of arguments and even the same were not referred in the impugned order which shows complete non application of judicial mind.
9. It was submitted that the false averments made by the respondent in para 1(k) of her application u/s.12 of PWDV Act were duly supported with verification and affidavit of the respondent and the same were false averments to the knowledge of the Page: 5/18 CA No.52/16 Vikash Gupta vs Deep Mala Gupta respondent.
10. It was further submitted that respondent is an educated lady and is presently working as an IAS Allied Officer in the state of Jharkhand. Therefore, she was well aware regarding the averments being made in para 1(k) of the application.
11. It was further submitted that respondent was also aware regarding the passing of the order by Hon'ble High Court of Jharkhand and Hon'ble Supreme Court of India regarding directing the appellant to pay subsistence allowance to the respondent as she was receiving susbsistence allowance from the appellant. This fact was also admitted by the respondent in her rejoinder.
12. It was further submitted that as per Section 26(3) of the PWDV Act, the respondent was duty bound to inform the ld. Magistrate of the grant of relief of subsistence allowance by the Hon'ble High Court of Jharkhand, which was later on modified by the Hon'ble Supreme Court of India. Therefore, Page: 6/18 CA No.52/16 Vikash Gupta vs Deep Mala Gupta intentionally the respondent had made false averments on oath which amounted to an offence u/s.193 IPC. Therefore, the ld. Trial court ought to have made a complaint u/s.340 CrPC against the respondent. Accordingly, a prayer was made to set aside the impugned order.
13. In support of his contention, the ld. Counsel for the appellant has relied upon the judgment of Hon'ble High Court of Delhi delivered in Sanjeev Kumar Mittal vs State 178 (2010) DLT 214 and another judgment of Hon'ble High Court reported in Irkon International Ltd. Vs Union of India & Ors. 108 (2003) DLT 656.
14. On the other hand, ld. Counsel for respondent has vehemently opposed the plea of the appellant and has submitted that there was no illegality or infirmity in the impugned order of the ld. Trial court. It was submitted that the respondent was under some misconception regarding the subsistence allowance and the maintenance Page: 7/18 CA No.52/16 Vikash Gupta vs Deep Mala Gupta allowance and that is why, the details of the subsistence allowance granted by the Hon'ble Jharkhand High Court was not mentioned in the application u/s.12 of PWDV Act.
15. It was further submitted that respondent was duty bound to inform the ld. Magistrate of any relief which she had obtained u/s.26(3) of PWDV Act only when any relief has been granted to her on an application filed by the respondent. It was further submitted that no application or petition was filed by the respondent seeking any monetary relief from the appellant.
16. It was further submitted that when the appellant had approached the Hon'ble Jharkhand High Court seeking anticipatory bail with regard to FIR registered against the appellant u/s.498A IPC and Section 3(4) of Dowry Prohibition Act, then the Hon'ble Jharkhand High Court had laid down a condition while granting anticipatory bail whereby the appellant was directed to pay Rs.15,000/ per Page: 8/18 CA No.52/16 Vikash Gupta vs Deep Mala Gupta month as subsistence allowance to the respondent and her child and the said order was later on modified to Rs.5,000/ per month by the Hon'ble Supreme Court of India. Therefore, the respondent/wife had not filed any petition or application claiming any maintenance or monetary relief from the appellant and the order directing the payment of subsistence allowance was made a part of conditions imposed while granting anticipatory bail to the appellant. Therefore, Section 26(3) of PWDV Act, 2005 had no application to the facts of the present case.
17. It was further submitted that even assuming that respondent was duty bound to inform the court regarding the grant of subsistence allowance by the Hon'ble Jharkhand High Court and Hon'ble Supreme Court of India, then also there was no illegality in the impugned order of the ld. Trial court as firstly, the respondent had herself filed alongwith her application u/s.12 of PWDV Act, Page: 9/18 CA No.52/16 Vikash Gupta vs Deep Mala Gupta copy of FIR and copy of the order of Hon'ble Jharkhand High Court and in her rejoinder, she had admitted the fact that she is receiving subsistence allowance from the appellant. Therefore, at the time of arguments, the ld. Trial court would have definitely considered the admission made by the respondent in her rejoinder as well as the order of Hon'ble Jharkhand High Court placed on record.
18. Secondly, it was submitted that in the present case, no interim order was passed by the ld. Trial court in favour of the respondent, believing the averments made in para 1(k) of the application.
19. Lastly, it was submitted that in the evidence by affidavit filed by the respondent, she has categorically admitted about the grant of subsistence allowance by the Hon'ble Jharkhand High Court which was later on modified by Hon'ble Supreme Court of India.
20. Therefore, the fact which had come on record Page: 10/18 CA No.52/16 Vikash Gupta vs Deep Mala Gupta showed that respondent/wife had not taken any advantage of her alleged false averments made in para 1(k) as no interim order was obtained on the same and even in her evidence, she had not deposed any false averments and had admitted the fact of receiving subsistence allowance from the appellant. Therefore, it was not expedient in the interest of justice to initiate criminal proceedings by making a complaint u/s.340 CrPc and the ld. Trial court rightly dismissed the application of the applicant.
21. In support of his submissions, ld. Counsel for respondent had relied upon the judgments Santokh Singh vs Izhar Hussain AIR 1973 SC 2190, BSES Rajdhani Power Ltd. Vs Shiv Lal & Ors (2009) 158 DLT 510, 2008 SCC Online 1150, Ashok Kumar Aggarwal vs Union of India Crl Misc. Application no.3314/2006 in Writ Petition (Crl) No.938/2001, decided on 16.04.2010, Ashok Kriplani vs Dr. Jethanand Jethwani & Anr. in Crl Page: 11/18 CA No.52/16 Vikash Gupta vs Deep Mala Gupta Appeal no.955/2012 decided on 18.09.2013, Amarsang Nathaji vs Hardik Harshadbhai Patel & Ors. 2016(4) Crimes 190 (SC), Seema Thakur vs Union of India & Ors. 2017 (1) JCC 792, Pawan Kumar Aggarwal vs Usha Rani & Anr. 2016 (4) JCC (NI) 241, Prem Sagar Manocha vs State (NCT of Delhi) 2016 (2) Crimes 52 (SC) and State of Goa vs Jose Maria Albert Vales @ Robert Vales 2017 (4) JCC 2245.
22. I have considered the rival submissions and have carefully perused the record.
23. The short question involved in the present appeal is whether the alleged false averments made by the respondent in para 1(k) as reproduced hereinabove in her application u/s.12 of PWDV Act made out a case for making a complaint u/s.340 CrPC or not?
24. There can be no dispute with regard to the law cited by respective counsels for initiation of criminal complaint u/s.340 CrPC i.e. the court Page: 12/18 CA No.52/16 Vikash Gupta vs Deep Mala Gupta should be satisfied on two counts - firstly, it should have prima facie come on record that respondent had deliberately made false averments and secondly, the court should be satisfied that it is expedient in the interest of justice to make a criminal complaint u/s.340 CrPC for the prosecution of the respondent for giving false evidence. When these two conditions are satisfied, then a criminal complaint can be made u/s.340 CrPC by the court.
25. I do not agree with the submissions put forward by ld. Counsel for respondent that respondent was not duty bound to inform the ld. Trial court regarding grant of subsistence allowance by the Hon'ble Jharkhand High Court, which was later on modified by Hon'ble Supreme Court. Although it is true that the said relief granted by Hon'ble Jharkhand High Court was not granted on any application or petition filed by the respondent, but still since, respondent was a beneficiary of Page: 13/18 CA No.52/16 Vikash Gupta vs Deep Mala Gupta monetary relief and the receipt of such monetary relief would have a bearing on the monetary relief being sought by the respondent u/s.12 of PWDV Act, therefore in the opinion of this court, it was a relevant fact to have been disclosed by the respondent, as per Section 26(3) of PWDV Act.
26. Now, the next question arises is whether withholding of the subsistence allowance being received by the respondent from the appellant pursuant to the order of the Hon'ble Jharkhand High Court was intentional or not? In the opinion of this court, certain misconception was there in the mind of the respondent regarding there being difference in subsistence allowance and the maintenance allowance and since the respondent was claiming only maintenance allowance in her petition u/s.12 of PWDV Act, therefore it might be that the subsistence allowance was not mentioned by her in her application u/s.12 of PWDV Act.
27. The second reason for coming to this conclusion Page: 14/18 CA No.52/16 Vikash Gupta vs Deep Mala Gupta is that such concealment was not intentional is the fact that alongwith application u/s.12 of PWDV Act, not only the respondent had annexed copy of FIR bearing no.346/07 P.S. Sadar Shehar, Distt. Palamu, Jharkhand, but she had also annexed copy of the order dated 08.12.2008 passed by Hon'ble Jharkhand High Court in ABA no.2088 of 2008 granting subsistence allowance to the respondent of Rs.15,000/ per month. Even in the rejoinder filed by the respondent, she had admitted regarding receipt of subsistence allowance of Rs.15,000/ per month and the fact of the same being reduced to Rs.5,000/ per month by the Hon'ble Supreme Court of India.
28. Therefore, all these facts show that respondent had not intentionally concealed the fact of receipt of subsistence allowance but due to some confusion regarding the difference being there between subsistence allowance and the maintenance allowance.
Page: 15/18 CA No.52/16 Vikash Gupta vs Deep Mala Gupta
29. Further, it is also an admitted fact that based on her alleged false averment made in para 1(k), no interim order was obtained by the respondent. It is also an admitted fact that no evidence was led on record by the respondent with regard to her false averments made in para 1(k) of the application. On the contrary, in her evidence by affidavit filed on record dated 15.10.2014, the respondent had in fact admitted about receipt of Rs.15,000/ as subsistence allowance which was later on reduced to Rs.5,000/ from the appellant.
30. Therefore, in the facts of the present case, the administration of justice with regard to grant of maintenance to the respondent/wife would not have been affected despite there being concealment of facts in para 1(k) of the application filed by the respondent as there was other material on record filed by the respondent in the nature of Hon'ble High Court of Jharkhand's order dated 04.12.2008, admission made in the rejoinder Page: 16/18 CA No.52/16 Vikash Gupta vs Deep Mala Gupta regarding receipt of subsistence allowance and the evidence by affidavit being there on record admitting claiming of subsistence allowance from the appellant.
31. The ld. Trial court would have definitely considered all the abovementioned documents while granting maintenance to the respondent/wife. Therefore, the administration of justice would not have been affected even though there was concealment of material fact in para 1(k) of the application.
32. Therefore in the opinion of this court, it was not expedient in the interest of justice to have made a complaint u/s.340 CrPC with regard to offence of giving false evidence. Hence, I do not find any illegality or infirmity in the order of the ld. Trial court dismissing the application of the appellant. The appeal is accordingly dismissed.
33. Trial court record be sent back alongwith a copy of this judgment.
Page: 17/18 CA No.52/16 Vikash Gupta vs Deep Mala Gupta
34. Appeal file be consigned to Record Room.
Announced in the open court (Vikas Dhull) Dated : 29.11.2017 Spl. Judge (PC Act) CBI03 Dwarka/New Delhi Page: 18/18