Delhi District Court
Prith Pal Singh vs Ld. Acmm on 19 October, 2013
ID No. 02406R0252532013
IN THE COURT OF ADDITIONAL SESSIONS JUDGE -04 &
SPECIAL JUDGE (NDPS) SOUTH EAST, SAKET COURTS, NEW DELHI
Criminal Appeal No. 44/2013
ID No.02406R0252532013
Prith Pal Singh
s/o late Sh. S. Sujan Singh
r/o Baytree Villa Hendon Wood Lane,
London NW7, 4 HS, UK ..........Appellant
Versus
Ld. ACMM, South East District
through its Reader, S. Sreelata,
Saket District Courts ..........Respondent
Instituted on : 16th September
Argued on :09th October, 2013
Decided on : 19th October, 2013
ORDER
1. This appeal u/s 341 of the Code of Criminal Procedure 1973 is preferred against order dated 05.08.2013 passed by the Court of Sh. Pritam Singh, Learned Addl. Chief Metropolitan Magistrate, South-East, Saket Courts, New Delhi arising out of a Criminal Complaint (CC No. 82/1/12), whereby an application u/s 340 of the Code of Criminal Procedure filed by Sh. Ajit Singh Maker is allowed.
2. In brief, facts leading to the filing of this appeal are that on 29.05.2012, Prithpal Singh, appellant filed a complaint u/s 156 (3) Cr.P.C. against Ajit Singh Maker, who is brother of complainant (appellant herein) and Japinder Kaur Maker, wife of Ajit Singh Maker, Krishna Kumar Batra and Pradeep Kapoor. Vide order dated 31.05.2012, Learned Trial Court took cognizance u/s 349/411/420/468/ 471/34/120-B IPC and listed the case for pre-summoning evidence. Appellant appeared in the witness box as CW-1 on 06.11.2012. On 13.01.2013, an application u/s 340 Cr.P.C was filed on behalf of Ajit Singh Maker(R-1) alleging that appellant had committed perjury. Appellant sought time to Prith Pal Singh Vs. Ld. ACMM, South East - CR No. 44/2013 1/6 ID No. 02406R0252532013 file reply on 04.04.2013. On 25.04.2013, matter was listed for reply as well as arguments on the application u/s 340 Cr.P.C. as well as for remaining evidence. On 02.05.2013, appellant sought time to file reply. Time was granted. On 18.07.2013, appellant again sought time to file reply. Learned Trial Court observed that several opportunities had been granted to file reply, but in the interest of justice, one and last opportunity was granted to file reply and it was made clear that arguments on the application u/s 340 Cr.P.C will be heard alongwith arguments on summoning. Trial Court heard arguments on the application u/s 340 Cr.P.C on 02.08.2013 and reserved the case for orders, however, an opportunity was granted to the appellant to argue. At 02:00 pm, arguments, from the side of appellant were addressed and on 05.08.2013, Learned Trial Court passed the impugned order, whereby application u/s 340 Cr.P.C was allowed. Consequently, a complaint u/s 340 r/w 195 (B) (1) Cr.P.C was placed before Learned Chief Metropolitan Magistrate, South District for taking cognizance and proceeding against the appellant u/s 340 r/w 195 (B) (1) Cr.P.C.
3. Ajit Singh Maker moved an application u/s 340 Cr.P.C stating that a registered memorandum of Family Settlement (MOS) dated 02.11.2011 was executed between the family members including Prithpal Singh (appellant herein). It was categorically agreed in 'MOS' that the residential house bearing Municipal No. B-30, Kilokri, 8 Eastern Avenue, Maharani Bagh New Delhi having a plot area of 1191.6 sq. yards alongwith a bungalow and a commercial premises comprising of land and building no. 6, Community Center, New Friends Colony, Delhi ad- measuring 222.95 sq. yards were not part of any joint family property and the same could be disposed of by their respective owners in the manner, they desire. House situated at Maharani Bagh was owned by mother-Mrs. Mohinder Kaur and the commercial premises was owned by the company namely, Nina International. It was recorded in the 'Memorandum of Family Settlement' that mother of both parties namely, Mrs. Mohinder Kaur by virtue of gift deed had gifted the Maharani Bagh house to Mrs. Jupinder Maker, wife of complainant and all the family members including complainant gave their consent and no objection to said arrangement. It is further recorded therein that Mrs. Jupinder Kaur had sold the Prith Pal Singh Vs. Ld. ACMM, South East - CR No. 44/2013 2/6 ID No. 02406R0252532013 Maharani Bagh property to a third party. It is submitted that the sale proceeds of the said commercial property was also recorded in the Memorandum of Family Settlement. Commercial property owned by M/s Nina International was stated to have been sold for a sum of Rs. 4.5 crores and the sale proceeds was equally distributed among the three brothers, each getting Rs. 1.5 crores including complainant. It is stated that cash worth Rs. 3,51,22,488/- was also divided among the three brothers and each got Rs.1,17,07,496/-.
4. Sh. R. P. Khatana, Learned Counsel appearing on behalf of appellant submitted that impugned order is illegal. Appellant was not given opportunity of being heard. Reply was ready and new counsel was engaged and the appellant was in London. Learned Trial Court refused to allow appellant to file reply and heard arguments. It is submitted that Counsel for accused has no right to be heard before he is summoned and he had no locus to file perjury application u/s 340 Cr.P.C., before his summoning and application u/s 340 Cr.P.C is to be decided at the time of finally deciding the case. It is submitted that family settlement dated 02.11.2011 only pertains to two properties mentioned therein and non-disclosure of the said settlement was bonafide and that appellant had not intended to mislead or to provide false evidence. It is submitted that said settlement was entered into with a malafide motive and was null and void. That appellant was under the impression that the said deed need not to be disclosed as it was not material document and therefore, was not required to be produced at the stage of proceeding. It is urged that appellant could present it, whenever he wanted, as it was his case. It is argued that it is a matter of fact that appellant had filed a civil suit in which interim restrain order was passed on 31.01.2012. On the basis of a complaint filed by the complainant, another FIR No. 344/13 was lodged on 30.05.2013 against Ajit Singh Maker (R-1) and his wife and employees. In support, Learned counsel placed reliance upon Chitra Narain vs NDTC 109 (2004) DLT 394 and Chajju Ram vs Radhey Shyam 1971 (1) SCC 774.
5. Per contra, Sh. Vishal Gosain Learned Counsel appearing for respondent argued that even in Chitra Narain's case referred by the Court for appellant, it has been noted that an accused persons before summoning may Prith Pal Singh Vs. Ld. ACMM, South East - CR No. 44/2013 3/6 ID No. 02406R0252532013 remain present either in person or through the Counsel or agent with a view to be informed of what is going on and his participation in the proceedings is like a member of the public and not as an accused. It is submitted that if a party's case is based on a patent falsehood, then Court can throw it away at the threshold of its own motion. He submits that it is well settled that the prosecution for perjury should be sanctioned by Courts in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. He urged that giving of false evidence and filing false affidavit is an evil which must be effectively curbed with a strong hand. No doubt prosecution for perjury has to be due care and caution and prosecution can be ordered when it is considered expedient in the interests of justice to punish the delinquent. It is urged that there is a prima-facie case of deliberate falsehood on a matter of substance and the Court was satisfied that there is reasonable foundation for the allegation.
6. After hearing Learned counsel for parties, this Court finds no merit in the contention of Learned counsel for appellant. As regards the contention of Learned counsel for the appellant that complaint could only be filed by the Presiding Officer, it appears that amendment of Section 340 (3) (B), has escaped notice of the learned Counsel appearing for the appellant, according to which, "the Presiding Officer of the Court or such officer of the Court as the Court may authorize in allowing in this behalf, can make and sign the complaint," as per the amendment which came into force w.e.f 16.04.2006. Furthermore, now vide notification of High Court of Delhi dated 18.07.2012, Rule IV, Part A of chapter 8 stands deleted, which earlier stipulated about deciding of such application at the time of final order or judgment.
7. On perusal of record and after due consideration of submissions advanced at bar, this Court finds that on the face of it, it is a case of deliberate falsehood on a matter of substance. In the present case, appellant has concealed and suppressed the factum of registered Memorandum of Family Settlement (MOS) executed between the parties including Prithpal Singh/appellant and it pertained to two properties i.e. (i) B-30, Kilokari, 8 Eastern Avenue, Maharani Bagh and (ii) Commercial premises, 6 Community Center, New Friends Colony.
Prith Pal Singh Vs. Ld. ACMM, South East - CR No. 44/2013 4/6 ID No. 02406R0252532013 Learned Trial Court noted that existence of the registered Memorandum of Family Settlement dated 02.11.2011 and a fact which was not disputed by the appellant. Even during argument in the appeal before this Court, existance of this Memorandum was not disputed . Trial Court correctly noted that it was not submitted by Learned counsel for appellant that memorandum was forged or was not in the knowledge of complainant being a party or a signatory to the same. He could not have denied the execution thereof. It was therefore, incumbent upon the appellant to clearly disclose the said Family Settlement and to come to the Court with clean hands. It was the legal obligation of the appellant to tell true and complete facts. Prima-facie, suppression of the material fact can be said to be with intention of deceiving the Court and to take undue advantage over other party.
8. It may be noted that u/s 340 Cr.P.C, Court can, even on its own motion, if it is of the opinion, that it is expedient in the interest of justice, proceed to make an inquiry and file the complaint. The ground taken by the appellant that "it was the appellant's case or he thought, it was not a material document and could present it whenever he wanted" is liable to be outrightly rejected being devoid of any merits. The ground that appellant was not given opportunity of addressing the Court or of being heard at that stage is also incorrect on the face of record. Certain facts had come to the notice of the Trial Court, which are not controverted by the appellant. In a case reported as "MCD Vs. State of Delhi & Anr., 2005 SCC (Cri) 1322", it was observed that litigant withholding a vital document or suppressing a material fact in order to gain advantage in the case, held, would be guilty of playing fraud on Court as well as on opposite party. Person whose case is based on falsehood can be summarily thrown out at any stage of the litigation.
9. Judicial system has to protect itself from such wrong doing. Making false averments in the pleadings or on oath or misleading the Court by suppression of material facts pollutes the stream of justice. It has a propensity to cause serious interference in the administration of justice. This Court finds no infirmity, illegality or any procedural irregularity in the impugned order. No Prith Pal Singh Vs. Ld. ACMM, South East - CR No. 44/2013 5/6 ID No. 02406R0252532013 interference is therefore, warranted therein. In the result, appeal is dismissed.
10. It may be noted that at the stage, when order had been announced in the open Court, Sh. Khatana, Learned Counsel for appellant submitted that he may be allowed to withdraw the appeal with liberty to raise the issues before the concerned Court. Since, appeal had now already been dismissed, now, appellant could not be allowed to withdraw it. Appellant is at liberty to raise issues of facts and law before the concerned Court at appropriate stage, in accordance with law. announced in the open court on 19th October, 2013. (Vinay Kumar Khanna) Additional Sessions Judge-04 & Special Judge (NDPS) South East, New Delhi Prith Pal Singh Vs. Ld. ACMM, South East - CR No. 44/2013 6/6