Delhi District Court
Through Its Authorized Representative vs State on 3 December, 2021
IN THE COURT OF SH REETESH SINGH: ADDITIONAL SESSIONS
JUDGE-2 (EAST), KARKARDOOMA COURTS, DELHI
CR No. 106/2021
In the matter of
M/s Dalmia Cement (Bharat) Ltd.
Having its registered office at :
11-12th Floor, Hansalaya Building,
15, Barakhamba Road, New Delhi-110001.
Through its authorized representative:
Dr. Sanjeev Gemawat
..... Petitioner
Vs.
1. State
Through: APP (East District),
Karkardooma Courts, Delhi
2. M/s IL & FS Securities Services Limited
Having its registered office at:-
IL & FS House, Raheja Vihar, Chandivali,
Andheri (East) Mumbai, Maharashtra-400072.
Also at:-
303, 3rd Floor, Vishal Bhavan,
Nehru Place, New Delhi-110019
........ Respondents.
Date of institution : 02.12.2021
Final arguments : 02.12.2021
Date of order : 03.12.2021
CR No. 106/2021 M/s Dalmia Cement (Bharat) Ltd Vs. State & Ors Page 1/ 7
ORDER
1. This petition has been registered as a Criminal Revision Petition under section 397 of the Cr.P.C. by the Ahlmad of this court. The Prayer made in this petition is as under :-
"a. Pass necessary orders and directions to call for records of Ld. Trial Court in the main case viz. application u/s 156(3) Cr.P.C. titled "IL & FS Securities Services Ltd. Vs Allied Financial Services Pvt. Ltd. & Anr." bearing CC No. 128 of 2020 in which the application u/s 340 Cr.P.C r/w Section 195 (1) (b) CrPC was filed by the Petitioner, presently pending in the court of Shri Atul Krishna Agrawal, Ld. CMM(E);
AND b. Pass necessary orders and directions thereby quashing, setting aside and canceling the impugned order dated 25.10.2021 passed by the court of Shri Atul Krishna Agrawal, Ld. CMM, (East) Karkardooma Courts, Delhi in the matter titled "IL & FS Securities Services Ltd. Vs Allied Financial Services Pvt. Ltd. & Anr." bearing CC no. 128/2020.
AND c. Pass necessary orders and directions, thereby, directing Ld. Trial Court that the Application u/s 340 of the Cr.P.C. read with Section 195(1) (b) of the Cr.P.C. filed by the Petitioner be heard and decided forthwith before hearing arguments on the Application u/s 156(3) of the Cr.P.C. filed by the Respondent no. 2;"
2. The petition was listed for hearing on 02.12.2021. Sh. Vijay Aggarwal, Ld. Counsel for the petitioner had submitted that the present petition was filed under section 340 (2) of the Cr.P.C. but had been registered as a criminal revision petition under section 397 of the Cr.P.C. because there no nomenclature has been assigned for registration of an application / petition under section 340 (2) of the CR No. 106/2021 M/s Dalmia Cement (Bharat) Ltd Vs. State & Ors Page 2/ 7 Cr.P.C. He submitted that even though the present petition has been registered as a criminal revision petition, this court ought to consider the same as an application under section 340(2) of the Cr.P.C.
3. Sh. Vijay Aggarwal has submitted that the petitioner / applicant has not chal- lenged the order dated 25.10.2021 of the Ld. Trial Court but has approached this Court to exercise its power under section 340 (2) of the CrPC on the application of the petitioner under section 340 CrPC filed before the Ld. Trial Court as the Ld. Trial Court vide the order dt.25.10.2021 has neither made a complaint under sec- tion 340 (1) nor rejected the application of the petitioner for the making of such complaint. He submitted that in such circumstances, this court being the immediate Superior Court of the Ld. Trial Court should then exercise its power under section 340(2) of the Cr.P.C. in respect of the application of the petitioner under section 340 of the Cr.P.C.
4. Sh. Vijay Aggarwal, Ld. Counsel for the petitioner / applicant has submitted that the Ld. Trial Court was seized with an application under section 156(3) of the Cr.P.C. filed by the respondent no. 2 M/s IL & FS Securities Services Limited in which false statements had been made and material information and facts concealed. The petitioner upon coming to know of filing of the said application moved an application under section 340 of the Cr.P.C. read with section 195(1) (b) before the Ld. Trial Court. He submitted that the Ld. Trial Court instead of hearing the application under section 340 of the Cr.P.C., directed by order dated 25.10.2021 that the application of the respondent no. 2 under section 156(3) of the Cr.P.C. shall be heard and disposed before taking up the application under section 340 of the Cr.P.C. of the petitioner / applicant. Sh. Vijay CR No. 106/2021 M/s Dalmia Cement (Bharat) Ltd Vs. State & Ors Page 3/ 7 Aggarwal has submitted that the course adopted by the Ld. Trial Court is contrary to law as in the case of Union of India Vs Haresh V. Milani, the Hon'ble High Court of Bombay has been pleased to hold that an application under section 340 of the Cr.P.C. has to be decided first, before adjudicating the proceedings in which the said application has been filed. He submitted that the Hon'ble High Court of Bombay for this purpose relied on the judgment of the Hon'ble Allahabad High Court in the case of Syed Nazim Husain Vs The Additional Principal Judge, Family Court & Anr. in which similar observations have been made. He submitted that in the case of Dr. Praveen R Vs Dr. Arpitha the Hon'ble High Court of Karnataka has held that consideration of such a complaint cannot be deferred or delayed as there will be possibility of the fountain of justice being polluted. Sh. Vijay Aggarwal, has also relied on the observations and directions of the Hon'ble High Court of Delhi dated 06.05.2008 in the case of Sonia Khosla Vs Vikram Bakshi & Ors., Co. A. No. 1/2008 in which the Hon'ble High Court has been pleased to direct the Company Law Board to decide the application under section 340 of the Cr.P.C. before the main case in which it has been filed.
5. Sh. Vijay Aggarwal, Ld. Counsel for the petitioner / applicant has further submitted that in view of the law as laid down in above mentioned cases, this court may either itself pass an order under section 340(2) of the Cr.P.C. on the complaint of the application under section 340 of the Cr.P.C. or pass a direction to the Ld. Trial Court to consider and dispose the said application prior to hearing the application under section 156(3) of the Cr.P.C. of the respondent no. 2.
6. I have heard the Ld. Counsel for the petitioner / applicant and have gone through the contents of the petition filed before this court. Perusal of the CR No. 106/2021 M/s Dalmia Cement (Bharat) Ltd Vs. State & Ors Page 4/ 7 order dated 25.10.2021 reveals that the Ld. Trial Court had framed the following question for consideration: -
"The short question before this court is whether application u/s 340 of the Cr.P.C. r/w Sec 195 of the Cr.P.C. ought to be heard and decided prior to hearing and disposal of application u/s 156 (3) of the Cr.P.C. or vice versa ?"
7. The Ld. Trial Court after considering the submissions made before it held that it is the application under section 156(3) of the Cr.P.C. of the respondent no.2 which needs to be heard and disposed first. The Ld. Trial Court observed that the respondent no. 2 / complainant had moved an application under section 156(3) of the Cr.P.C. praying for registration of an FIR which was yet to be registered. The Ld. Trial Court placing reliance on the judgment of Hon'ble Supreme Court in the case of Subhash Chandra Vs State of UP reported (2000) 9SCC 356 and of the Hon'ble High Court of Delhi in the case of Vishal Kapoor Vs Sonal Kapoor reported in 2014 SCC Online Del 4484 held that the application of the petitioner herein under section 340 of the Cr.P.C. cannot be considered prior to reaching any finding that allegations of the complainant / respondent no.2 as made in the application under section 156(3) of the Cr.P.C. are false. It was observed that permitting the applicant/ prospective accused to address arguments first on the application under section 340 of the Cr.P.C. will overlap the consideration of the application of the respondent no. 2 under section 156(3) of the Cr.P.C. as no legal right is vested in the prospective accused to oppose an application under section 156(3) of the Cr.P.C. The Ld. Trial Court observed that what cannot be done directly cannot permitted to be done indirectly.
CR No. 106/2021 M/s Dalmia Cement (Bharat) Ltd Vs. State & Ors Page 5/ 78. Sh. Vijay Aggarwal, Ld. Counsel for the petitioner / applicant had prayed this court to exercise its powers under section 340(2) of the Cr.P.C. on the ground that the Ld. Trial Court neither made any complaint nor rejected the application of the petitioner under section 340 (1) of the Cr.P.C.
9. Section 340(2) of the Cr.P.C. provides that the power exercisable by a Court under section 340 (1) of the Cr.P.C. may be exercised by the court to which such Court is subordinate "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".
10. In the present case facts recorded in the order dated 25.10.2021 reveal that the respondent no. 2 M/s IL & FS Securities Services Ltd. had moved an appli- cation under section 156(3) of the Cr.P.C. praying for registration of an FIR against the prospective accused M/s Dalmia Cement (Bharat) Ltd. Upon gaining knowl- edge of the filing of such an application, M/s Dalmia Cement (Bharat) Ltd. the pe- titioner herein then moved an application under section 340 of the Cr.P.C. claiming that the allegations made in the application of the respondent no.2 under section 156(3) of the Cr.P.C. are false and suffer from concealment of material facts. The Ld. Trial Court has only directed that it shall first hear and dispose the application under section 156(3) of the Cr.P.C. following the ratio laid down in the cases of Subhash Chandra Vs State of UP and Vishal Kapoor Vs Sonal Kapoor (supra).
11. In the opinion of this court, the situation contemplated under section 340(2) of the Cr.P.C. has not arisen in the present case. There is therefore no occasion for this court to exercise its power 340(2) of the Cr.P.C. on the application CR No. 106/2021 M/s Dalmia Cement (Bharat) Ltd Vs. State & Ors Page 6/ 7 under section 340 of the CrPC of the petitioner as prayed for by the Ld. Counsel for the petitioner.
12. Hence, for the reasons recorded above, this petition has no merit and is dismissed. Digitally signed by REETESH SINGH REETESH Location:
(Reetesh Singh) Karkardooma SINGH Court Date: 2021.12.03 ASJ-2/KKD/East/03.12.2021 16:28:57 +0530 Announced in open court on 03.12.2021 CR No. 106/2021 M/s Dalmia Cement (Bharat) Ltd Vs. State & Ors Page 7/ 7