Delhi District Court
Indemnis Legis & Co vs Kanika Bhardwaj on 11 February, 2022
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Revision No. 267/2021
CNR No.: DLCT01-017205-2021
Indemnis Legis & Co.
Managium Juris LLP, Infova, 4th Floor,
Statesman House, Barakhambha Road,
Connaught Place, New Delhi-110001
Through: Mr. Shreepal, The Executive Assistant
..... Petitioner
VERSUS
1. Kanika Bhardwaj
Plot No. 2, 3 & 4, Office No. 724,
Sector 19A, Bombay Oil Seeds,
Vashi Mumbai-400 705
Also at: 205, 2nd Floor, Modi Tower,
Nehru Place, New Delhi-110019
2. Atul Dewan
Plot No. 2, 3 & 4, Office No. 724,
Sector 19A, Bombay Oil Seeds,
Vashi Mumbai-400 705
Also at: 205, 2nd Floor, Modi Tower,
Nehru Place, New Delhi-110019
3. Vicky Gupta
Chamber No. 406, Patiala House Courts,
New Delhi
4. Umesh Pandit Gaikwad
Plot No. 2, 3 & 4, Office No. 724,
Sector 19A, Bombay Oil Seeds,
Vashi Mumbai-400 705
Also at: 205, 2nd Floor, Modi Tower,
Nehru Place, New Delhi-110019
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5. Bright Ecomshop Solutions India Pvt. Ltd.
Plot No. 2, 3 & 4, Office No. 724,
Sector 19A, Bombay Oil Seeds,
Vashi Mumbai-400 705
Also at: 205, 2nd Floor, Modi Tower,
Nehru Place, New Delhi-110019
..... Respondents
Date of Institution : 13.12.2021
Date of Arguments : 07.02.2022
Date of Judgment : 11.02.2022
JUDGMENT
INTRODUCTION:
1. The criminal revision petition under Section 397 of 'The Code of Criminal Procedure, 1973' (Hereinafter referred to as 'Cr.P.C.') is directed against order dated 07.10.2021 (In short 'the impugned order') in complaint case vide Case No. 1596/2021 titled as 'Bright Ecomshop India Solution Pvt. Ltd.
vs. Ram Mani Pandey & Ors.' whereby Ld. MM-03, Central District, Tis Hazari Courts, Delhi (In short 'the trial Court') directed the area police to file an action taken report (ATR).
2. On 28.06.2021, the respondent No. 5 (In short 'the complainant') filed an application under Section 156 (3) Cr.P.C. seeking registration of FIR under Section 420/463/465/ 467/468/471/474/506 of 'The Indian Penal Code, 1860' (In short 'IPC') against Mr. Ram Mani Pandey and Ms. Anchal Saluja on the averments that the accused persons dishonestly induced the complainant to pay an amount of Rs. 99,75,000/- on the pretext of providing legal services to the complainant.
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3. On 27.08.2021, Ld. Counsel for the petitioner and Mr. N.K. Srivastava, Advocate appeared before the trial Court and submitted that the complaint case was filed on the basis of fabricating minutes of meeting dated 13.02.2021 authorizing Ms. Kanika Bhardwaj to file the said case on behalf of the complainant. They informed the trial Court that separate applications under Section 340 Cr.P.C. are filed against Ms. Kanika Bhardwaj and other persons. Mr. N.K. Srivastava, Advocate had stated that application under Section 340 Cr.P.C. was pending consideration before Ld. CMM, Central District, Tis Hazari Courts, Delhi. Ld. Counsel for the petitioner intended to file an application under Section 340 Cr.P.C. directly in the trial Court. However, the trial Court advised him to file application under Section 340 Cr.P.C., through filing counter. The trial Court refused to entertain the application unless it was received by way of assignment.
4. On 07.10.2021, the respondent No. 4 was substituted as Authorized Representative (AR) of the complainant in place of the respondent No. 1 as the respondent No. 1 stated to have resigned and another director of the complainant, namely, Nirender Dubey passed away. The trial Court further directed area police to file an action taken report (ATR) on the complaint made by the complainant seeking registration of FIR against the accused persons and whether any cognizable offence was disclosed during the enquiry.
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5. Feeling aggrieved and dissatisfied with the impugned order, the petitioner challenged the said order.
6. I have heard Dr. Kislay Pandey, Advocate for the petitioner and examined the trial Court record.
7. It may be relevant to note that the petitioner is not one of the accused persons before the trial Court. The accused persons have not been summoned by the trial Court. The complaint case is listed for arguments on application under Section 156 (3) Cr.P.C. on 23.02.2022. The trial Court, vide the impugned order, directed the area police to submit action taken report (ATR) and listed the case for arguments on application under Section 156 (3) Cr.P.C. The petitioner has no locus to challenge the impugned order.
8. Ld. Counsel for the petitioner fairly conceded the legal proposition that the petitioner has no locus to challenge the impugned order so far as the impugned order directing the area police to submit action taken report (ATR) is concerned.
9. Ld. Counsel for the petitioner submitted that he is not pressing prayer A to C of the criminal revision petition. He submitted that he is pressing prayer D that the trial Court should proceed with application of the petitioner under Sec. 340 Cr.P.C.
10. Ld. Counsel for the petitioner submitted that Ms. Kanika Bhardwaj, AR for the complainant filed a false affidavit on the basis of a forged board resolution dated 12.02.2021. He submitted that the address mentioned in the said board resolution does not exist.
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11. Ld. Counsel for the petitioner referred lease agreement pertaining to Office No. 720, 7 th Floor, Commodity Exchange Building, Sector 19, Plot No. 2 / 3 / 4, opposite Mathadi Bhawan, Vashi, Navi Mumbai, Maharashtra - 400 705 to contend that lease agreement pertaining to the said office came to an end on 09.01.2020. He referred verification report dated 13.12.2021 submitted by Krishan Lal, ACP, Legal Cell, Central District, Delhi that the said office was found locked and one Arun Kumar (neighbour) stated that the said office is closed since 2 years. He submitted that another address i.e. 205, 2 nd Floor, Modi Tower, Nehru Place is also reported locked since June, 2021 vide report dated 13.12.2021 submitted by Krishan Lal, ACP, Legal Cell, Central District, Delhi. He referred photographs of Modi Tower to contend that there is no such office in the said building. He submitted that when there is no such office is existing at the given address, there is no question of any board meeting or passing of any board resolution. He submitted that board resolution dated 12.02.2021 is patently forged. He submitted that the petitioner is entitled to maintain an application under Section 340 Cr.P.C. He relied on judgment in N. Natarajan vs. B.K. Subba Rao, (2003) 2 SCC 76 that a complaint can be lodged by anyone who has become aware of a crime having been committed and thereby set the law into motion. He submitted that the petitioner, though not arrayed as accused in the complaint case, he is entitled to file an application under Section 340 Cr.P.C.
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12. So far as locus standi of the petitioner to file an application under Section 340 Cr.P.C., it is well settled that anyone can set the criminal law into motion. In N. Natarajan vs. B.K. Subba Rao (supra), Hon'ble Supreme Court of India held as under:
"8.....It is well settled that in criminal law that a complaint can be lodged by anyone who has become aware of a crime having been committed and thereby set the law into motion. In respect of offences adverted to in Section 195 CrPC, there is a restriction that the same cannot be entertained unless a complaint is made by a court because the offence is stated to have been committed in relation to the proceedings in that court. Section 340 CrPC is invoked to get over the bar imposed under Section 195 CrPC. In ordinary crimes not adverted to under Section 195 CrPC, if in respect of any offence, law can be set into motion by any citizen of this country, we fail to see how any citizen of this country cannot approach even under Section 340 CrPC. For that matter, the wording of Section 340 CrPC is significant. The Court will have to act in the interest of justice on a complaint or otherwise. Assuming that the complaint may have to be made at the instance of a party having an interest in the matter, still the court can take action in the matter otherwise than on a complaint, that is, when it has received information as to a crime having been committed covered by the said provision. Therefore, it is wholly unnecessary to examine this aspect of the matter. We proceed on the basis that the respondent has locus standi to present the complaint before the Designated Judge."
13. The precise case of the petitioner is that Ms. Kanika Bhardwaj, AR for the complainant filed an affidavit on the basis of a board resolution dated 12.02.2021. According to the petitioner, the address mentioned in the said board resolution and verification of the said affidavit is non-existent.
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14. Section 340 Cr.P.C. is 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 for 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."
15. In State of Goa vs. Jose Maria Albert Vales alias Robert Vales, (2018) 11 SCC 659, Hon'ble Supreme Court of India held as under:
"30.....The two essential pre-requisites, as predicated by this provision, are formation of an opinion (1) even if prima facie, that an offence referred to Section 195(1)(b) appears to have been committed in or in relation to a proceeding of the court or as the case may be in respect of any document produced or given in evidence in a proceeding in that court, and (2) it is expedient in the interests of justice that an enquiry should be made into such offence.
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35. A Constitution Bench of this Court in Iqbal Singh Marwah v. Meenakshi Marwah, while dealing with the ambit of the restraint contained in Section 195 with regard to lodging of complaint vis-a-vis the offences referred to in sub-section (1)(b)(ii) in particular did rule as well on the import of Section 340 of the Code. It propounded that the language used in Section 340 CrPC does not make it imperative for a court 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 interests of justice" which demonstrate that such a course would be adopted only if in the interests of justice, it is required and not otherwise. In elaboration, it was held that before filing of the complaint, the Court may hold a preliminary inquiry and record a finding to the effect that it is expedient in the interests of justice that inquiry should be made into any of the offences referred to in Section 195(1)(b) and 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 the administration of justice. This elucidation reiterates the prerequisites for initiating an action under Section 340 of the Code, the impelling factor being the concern for sustaining the purity of the process of administration of justice."
16. In K.T.M.S. Mohd. & Anr. vs. Union of India, (1992) 3 SCC 178, Hon'ble Supreme Court of India held as under:
"35.....The words "in or in relation to a proceeding in that court" show that the court which can take action under this section is only the court operating within the definition of Section 195(3) before which or in relation to whose proceeding the offence has been committed. There is a word of caution inbuilt in that provision itself that the action to be taken should be expedient in the interest of justice. Therefore, it is incumbent that the power given by Section 340 of the Code should be used with utmost care and after due consideration."
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17. This Court has undertaken a brief survey of legal principles for exercising the jurisdiction vested in the Court just to bring on record that the trial Court is the Court having jurisdiction to form an opinion as to whether the respondents have committed any offence against public justice and whether it is expedient in the interests of justice that an inquiry should be made into such offences referred to in clause (b) of sub-section (1) of Section 195 and the stage of making such inquiry.
18. This Court is of the opinion that no such direction to the trial Court to proceed with application under Section 340 Cr.P.C. can be issued. The trial Court has the jurisdiction to decide the stage when it will be appropriate to hear application under Section 340 Cr.P.C. filed by the petitioner. Accordingly, the criminal revision petition filed by the petitioner is dismissed. Trial Court record alongwith a copy of the present judgment be sent back to the trial Court. Revision file be consigned to record room. SANJAY Digitally signed by SANJAY SHARMA SHARMA Date: 2022.02.11 16:17:59 +0530 Announced in the open Court SANJAY SHARMA-II on this 11th February, 2022 Addl. Sessions Judge-03 (Central) Tis Hazari Courts, Delhi Crl. Rev. No. 267/2021 Indemnis Legis & Co. vs. Kanika Bhardwaj & Ors. Pg No. 9 of 10 Indemnis Legis & Co. vs. Kanika Bhardwaj & Ors. CNR No.: DLCT010172052021 Crl. Revision No. 267/2021 11.02.2022 Present : Dr. Kislay Pandey, Advocate for the petitioner.
Vide separate judgment, the criminal revision petition filed by the petitioner is dismissed. The revision file be consigned to record room. Digitally signed SANJAY by SANJAY SHARMA SHARMA Date: 2022.02.11 16:18:11 +0530 Sanjay SharmaII ASJ03, Central District, Tis Hazari Courts, Delhi NK 11.02.2022 Crl. Rev. No. 267/2021 Indemnis Legis & Co. vs. Kanika Bhardwaj & Ors. Pg No. 10 of 10