Delhi District Court
Nitu Kumari vs Bses Yamuna Power Ltd on 17 February, 2024
IN THE COURT OF SH. MAYANK GOEL, JSCC/ASCJ/GJ,
SHAHDARA, KARKARDOOMA COURTS, DELHI
Misc. SCJ No. 104/2023
NITU KUMARI Vs. BSES YAMUNA POWER LTD.
ORDER ON APPLICATION UNDER SECTION 340
r/w SECTION 195 Cr.P.C
1. Vide this order I shall dispose of the application under section
340 r/w Section 195 of Cr.P.C. which is filed by the plaintiff/applicant
Ms. Nitu Kumari against BSES Yamuna Power Ltd. through
Directors.
Grounds of Application
2. It is averred by the plaintiff/applicant in the application under
Section 340 r/w 195 of Cr.P.C. that the present application has been
arose out from Civil Suit bearing CS No. 434/2021, titled as "Nitu
Kumari Vs. Ompal Dhama & Ors." It is further averred by the
plaintiff/applicant that the respondent/BSES is defendant no. 8 in the
said suit who have suppressed material facts before this court and tried to save defendant no. 2 to 5. It is further averred by the plaintiff/applicant that the respondent/BSES has neither filed written statement nor filed any documents till date, which are related with the nine electric meters which has been illegally installed in July 2019 in the said unauthorized property which was booked since 2017 and also demolished two times as per MCD record, with the intention to suppress material facts and to mislead the court to save the culprits/defendant no. 2 to 5.
Digitally signedMAYANK by MAYANK GOEL GOEL Date: 2024.02.17 14:31:09 +0530 ____________________________________________________ Misc. SCJ No. 104/2023 NITU KUMARI Vs. BSES YAMUNA POWER LTD. Page No. 1 of 7 That the facts suppressed by BSES are as follows:
(I) That property documents are "RED STAMPED", "NOT AS PER BUILDING BYE LAWS" and/or acquired by government (as per information), which has been suppressed by BSES-YPL before this Hon'ble Court.
(II) That entire property bearing no. 5/357, Mohalla Maharam, Vishwas Nagar, Shahdara, Delhi-110032, is unauthorized construction and booked for demolition and two times demolition has been made also (As per RTI reply of MCD dated 12.02.2021), which has been suppressed by BSES-YPL before this Hon'ble Court.
(III) That no any completion certificate has been issued by the MCD till date and entire building constructed under violation of Order dated 22.03.2017 and 26.05.2017 passed by Hon'ble Delhi High Court in partition suit of the said property, Suit No. CS(OS)334/2016, titled as Sachin Gupta & Anr. Vs. Mohan Lal Gupta & Ors., which has been suppressed by BSES-YPL before this Hon'ble Court.
(IV) That nine electricity meters have been illegally installed in 2019 under the hands in gloves with higher officials of BSES-YPL in the said unauthorized property which has booked for demolition since 2017, which has been suppressed by BSES-YPL before this Hon'ble Court.
(V) That two flats at fourth floor of the said building has been illegally constructed against which on 22.03.2021 informant's/plaintiff's husband namely H.S. Kumar, Advocate had complained in written to the BSES-YPL about the said illegal construction and illegal installation of electricity connection upon third floor which is actually 4 th floor of the property in question, and on 22.07.2021, he has sent legal notice also but neither any official concerned visited nor any higher officials has taken any legal action against any one and they have turned deaf ear as their hands are in gloves as yet and only to suppressed these all facts BSES-YPL has neither filed written statement nor filed any documents as yet and tempering evidence to save all above mentioned CA holders as yet.
(VI) That ownership of entire property is in question till date.
It is further averred by the plaintiff/applicant that BSES has committed perjury by suppressing material facts to give advantage to the wrong doers.
Digitally signed by
MAYANK MAYANK GOEL
GOEL Date: 2024.02.17
____________________________________________________ 14:31:15 +0530 Misc. SCJ No. 104/2023 NITU KUMARI Vs. BSES YAMUNA POWER LTD. Page No. 2 of 7 Ld. Counsel for plaintiff relied upon the judgment of Hon'ble Supreme Court of India in "Meghmala & Ors. Vs. G. Narasimha Reddy & Ors., (2010) 8 SCC 383". The facts of the said judgment are different from the facts of the present case as in the said judgment, the facts are that the applicant/appellant had played fraud in obtaining the order from the Special Court by suppressing the material facts. In view of this fact, it was held by Hon'ble Supreme Court of India in the said judgment that "Fraud is an intrinsic, collateral act, and fraud of an egregious nature would vitiate the most solemn proceeding of courts of justice. Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. The expression 'Fraud' involves two elements, deceit and injury to the person deceived. It is the cheating intended to get an advantage. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab-initio. Fraud and deception are synonyms. Fraud is proved when it is shown that a false representation has been made knowingly, or without belief in its truth or recklessly, careless whether it be true or false. Suppression of a material document also amounts to a fraud on the court. It is evident that even in judicial proceedings, once a fraud is proved, all advantages gained by playing fraud can be taken away."
3. Per contra, it is averred by the respondent/defendant no. 8 in its reply to the application under Section 340 r/w Section 195 of Cr.P.C that the present application under Section 340 r/w Section 195 of Cr.P.C has been filed without any basis. It is further averred that non filing of any written statement or documents cannot amount to perjury. It is averred by the respondent/defendant no. 8 that application under Section 340 r/w Section 195 of Cr.P.C be dismissed as same has been filed without any merits. Digitally signed MAYANK by MAYANK GOEL GOEL Date: 2024.02.17 14:31:20 +0530 ____________________________________________________ Misc. SCJ No. 104/2023 NITU KUMARI Vs. BSES YAMUNA POWER LTD. Page No. 3 of 7
4. The applicant has also filed rejoinder to the reply filed by the respondents reiterating the facts of the application and denying the contents of the reply.
Finding by the Court
5. After hearing the submission on behalf of the plaintiff and before proceeding further with the present application the court deem it fit to discuss here the provisions as enumerated under section 340 Cr.P.C.
Section 340 Cr. P. C reads 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 of 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.
(2) The power conferred on a Court by sub- section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub- section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub- section (4) of Digitally signed by MAYANK MAYANK GOEL GOEL Date: 2024.02.17 ____________________________________________________ 14:31:24 +0530 Misc. SCJ No. 104/2023 NITU KUMARI Vs. BSES YAMUNA POWER LTD. Page No. 4 of 7 section 195.
(3) A complaint made under this section shall be signed,-
(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
(b) in any other case, by the presiding officer of the Court.
(4) In this section," Court" has the same meaning as in section
195.
6. So after going through the provisions as enumerated under section 340 of Cr. PC. It is clear that proceedings under section 340 of Cr.PC can be invoked if the offence as mentioned under section 195 (1) clause (b) of Cr.P.C appears to have been committed. Section 195 (1) (b)(i) of Cr. PC provides the offences as enumerated under section 193 to 196, 199,200,205,211 and 228 of IPC. The section 193 to section 211 of IPC comes under chapter XI under the headings of the false evidence and offences against public justice. However, in the present matter, even the issues have not been framed, so it is very much clear that the offence as enumerated under section 195 (1) (b)(i) have not been committed. As far as the offences as mentioned under section 195 (1)(b)(ii) of Cr. PC are concerned, same pertains to commission of the offence, with respect to the documents produced or given in evidence. However, in the present application, there is admittedly nothing to substantiate that any document had been produced or given in evidence. In other words, the present matter in hand does not pertains to forgery with respect to any documents accordingly even the offence as enumerated under section 195 (1)(b)
(ii) have not been committed. As far as the offence as mentioned under section 195(1)(b)(iii) are concerned, same pertains to criminal conspiracy, with respect to the offence as mentioned under section 195 (1)(b)(i) & (ii) of Cr. PC, however, there is no evidence or averments Digitally signed by MAYANK MAYANK GOEL ____________________________________________________ GOEL Date: 2024.02.17 14:31:36 +0530 Misc. SCJ No. 104/2023 NITU KUMARI Vs. BSES YAMUNA POWER LTD. Page No. 5 of 7 w.r.t the commission of Criminal conspiracy of any of the offences as mentioned under Section 195 (1)(b)(i) & (ii) of Cr. PC.
7. In view of the above mentioned the Court left with no doubt that the present application under section 340 of Cr. PC is not maintainable on the face of it. Though from the above mentioned discussion, it is clear that present application under section 340 of Cr. P.C is not at all maintainable, yet in the interest of justice the Court is also deciding the application on merits on the basis of facts as mentioned in the application.
8. As far as the contention of the plaintiff to the effect that the defendant no. 8 has not filed any written statement or document to suppress the material facts to save defendant no. 2 to 5 is concerned, the Court is of the view that non-filing of written statement or any document before the court, cannot attract the proceedings under Section 340 of Cr.P.C.
9. It is also pertinent to mention here that it is not the case of the plaintiff/applicant that due to the non filing of written statement or any document by BSES/defendant no. 8, any harm has been caused to the merits of the present case.
Court observations
10. After going through the above mentioned the court is of the view that there are no ground for invoking the provisions Under section 340 Cr.P.C. It is clear that the present application under Section 340 Cr.P.C. has been moved without any basis.
MAYANK Digitally signed by
MAYANK GOEL
Date: 2024.02.17
GOEL 14:31:40 +0530
____________________________________________________ Misc. SCJ No. 104/2023 NITU KUMARI Vs. BSES YAMUNA POWER LTD. Page No. 6 of 7 Conclusion
11. In view of the above mentioned observation, the application u/s 340 Cr. P. C stands disposed of as dismissed.
12. File be consigned to record room after due compliance.
Announced in open Court.
On this 17th February, 2024 Digitally signed
This Order contains 7 pages
MAYANK by MAYANK
GOEL
and is signed by me. GOEL Date: 2024.02.17
14:31:52 +0530
(MAYANK GOEL)
JSCC/ASCJ/GJ, SHAHDARA,
KARKARDOOMA COURTS, DELHI
____________________________________________________ Misc. SCJ No. 104/2023 NITU KUMARI Vs. BSES YAMUNA POWER LTD. Page No. 7 of 7