Delhi District Court
Crl.Revision No.58/09 vs State on 25 July, 2009
1
IN THE COURT OF ADDITIONAL SESSIONS JUDGE:EAST
KARKARDOOMA: DELHI
Case I.D.Number 02402R0165372009
02402R0165362009
Crl. Revision No. 58/09&59/09
Date of institution 01/06/09
Order reserved on 25/07/09
Date of order 25/07/09
IN THE MATTER OF:
Crl.Revision No.58/09
M/s ICICI Bank Limited ..........Revisionist
Versus
1.State
2.Mahender Singh ...........Respondents
Crl.Revision No.59/09
M/s ICIC Bank Limited ...........Revisionist
Versus
1.State
2.Jagan Nath ............Respondents
ORDER
25.7.09 Present: Sh.Vijay Aggarwal ld.counsel with Sh.Niraj Kumar AR of revisionist .
Sh.Taufiq Ahmed Ld.Additional PP.
Heard. These two revisions are directed against the order dated 5.5.09 passed by ld.MM . Ld.Trial court while dismissing the complaint filed by the revisionist had issued notice to the MD of the complainant company as well as AR to appear in person for explanation as to why they be not convicted for the offence u/s 344 Cr.P.C. I have considered the submissions made by ld.counsel for the revisionist and have perused the trial court record. ld.counsel for revisionist submits that there is no concept 2 of vicarious liability in criminal law, hence MD could not have been called . Moreover section 344 Cr.P.C. can be initiated in case witness has appeared. MD has never appeared as witness in this case . Hence calling upon MD to appear is erroneous and as regards AR also mens rea is a must u/s 344 Cr.P.C. which is missing in the instant case. Moreover there is no expression of opinion by the ld.MM that it is expedient in the interest of justice hence mandatory requirement of section 344 Cr.P.C. has not been fulfilled. As far as dismissal of the complaint is concerned ,it has not been agitated in this revision.
2. The perusal of the loan application form attached with the complaint shows that there is error while mentioning the address in the complaint . There is no material on record to infer that the address has been mentioned incorrectly/knowingly or intentionally by the complainants AR. As far as MD is concerned , he is nowhere in the picture as complaint has not been filed against the company and he has not filed any affidavit on record. In Varghese Alias Sibi vs State of Kerala ,1989 Crl.L.J.2041 it was observed that when the discretion is exercised in favour of initiating action u/s 344 of the Code, there must be satisfaction for the court that it is necessary and expedient in the interest of justice that the witness should be tried summarily. The said satisfaction is not meant to be subjective only. It must be objective. It must be objective. It must appear from the proceeding that the court initiated action only on such satisfaction. In Dwaraka Prasad and others vs State of MP, 1992 Crl.L.J.2027 it was held that recording of opinion by court that witness gave false evidence intentionally is necessary to prosecute 3 him and is an essential pre-condition. In Mahila Vinod Kumari vs State of MP,2008(8)SCC34 it was observed that Essential ingredients for invocation of section 344 Cr.P.C. are :(i) Court at the time of delivery of judgment or final order must at the first instance express an opinion to the effect that the witness before it has either intentionally given false evidence or fabricated such evidence; (ii)Court must come to the conclusion that in the interest of justice the witness concerned should be punished summarily by it for the offence which appears to have been committed by the witness; and (iii) Before commencing the summary trial for punishment the witness must be given reasonable opportunity of showing cause why he should not be so punished-All these conditions are mandatory. In BSES Rajdhani Power Ltd. and Ors vs Ishwar Chand and Anr 2009(2) JCC 985 it was observed that section 344 has no application where neither any evidence was led by the petitioner/complainant nor any false affidavit was filed nor any other act or omission was committed on the part of the petitioner knowingly. In view of the aforesaid legal position, MD could not have been summoned by ld.MM to reply to the show cause notice u/s 344 Cr.P.C. as he did not appear as a witness . As regards, the ARs who appeared as witnesses in such proceedings, the requirement of section 344 Cr.P.C. is that such witness, should have given the false evidence knowingly or willfully, so the question of mens-rea is important. In this case, the ARs appeared and testified in routine manner. AR seems to be negligent in not carefully comparing the contents of the affidavit with the relevant record but it cannot be held that he had intentionally or knowingly given false evidence , so the 4 necessary ingredients are not established, even against the AR. The impugned orders in both the petitions suffers from illegality and are therefore set aside. The notice to the MD of the complainant company is recalled. Copy of this order be placed in Cri.Revision No.59/09.TCR alongwith copy of this order be sent to concerned court. Revision file be consigned to RR.
Announced in the (VINAY KUMAR KHANNA)
open court on 25.7.09 Additional Sessions Judge
04-East/Karkardooma : Delhi