Delhi District Court
Court Acmm South vs . Akhtar Malik. on 24 January, 2022
IN THE COURT OF MS. CHARU GUPTA,
CHIEF METROPOLITAN MAGISTRATE, DISTRICT SOUTH,
SAKET COURTS COMPLEX, NEW DELHI.
CNR No.DLST02-009221-2016
IN THE MATTER OF:
Court ACMM South Vs. Akhtar Malik.
CC No.474536/2016
PS Saket
U/s 209 IPC
JUDGMENT
A) Sl. No. of the case : CC No.474536/2016
B) The date of commission of : 2016
offence
C) The name of the : Court of ACMM South.
complainant
D) The name and address of : Akhtar Malik S/o Sh. Mr. Abdul
accused Hameed, R/o Shop No.10,
Khokha Market, Mandir Marg, J-
Block, Saket, New Delhi.
E) Offence complained of : 193/199/209 IPC.
F) The plea of accused : Not Guilty
G) Final Order : 24.01.2022.
H) The date of such Order : Convicted.
DATE OF INSTITUTION : 18.10.2016
DATE OF FINAL ARGUMENTS : 24.01.2022
DATE OF JUDGMENT : 24.01.2022
CC No.474536/2013 PS Saket Page No.1 of 10
Digitally signed
CHARU by CHARU
GUPTA
GUPTA Date: 2022.01.24
15:53:47 +0530
THE BRIEF REASONS FOR THE JUDGMENT:-
1. The present is a complaint instituted by the Court of then Ld. ACMM, South through its Reader. As per the complaint, the Court of Ld. ACMM, vide order dated 13.10.2016, directed its reader to lodge a complaint against accused Akhtar Malik.
2. It is alleged that accused Akhtar Malik and his co-accused were charge-sheeted by police on 12.02.2016 for offences punishable u/s 323/341/34 IPC, on the basis of complaint lodged by one Prabhunath Rai, before the court of Ld ACMM,South. On 12.02.2016, the Court recorded statement of complainant and joint statement of accused Akhtar Malik and his son/co-accused Salman Malik. In his statement, accused Akhtar Malik undertook to "remove the kabari shop which is otherwise illegal," upon which the matter was disposed of by such Court as compounded.
3. On 04.03.2016, complainant Prabhunath Rai filed an application u/s 362 CrPC before such Court stating that the parties had agreed upon a settlement that the accused will give an undertaking that they will remove their kabadi shop within a week. Upon receipt of certified copy of order dated 12.02.2016, complainant came to know that the order did not prescribe any time limit for removal of illegal kabari shop. The undertaking of accused was also silent on this aspect. Thus, complainant sought rectification of the order dated 12.02.2016 to issue directions to accused persons for removing their kabadi shop within a reasonable time.
CC No.474536/2013 PS Saket Page No.2 of 10 Digitally signed by CHARU CHARU GUPTA
GUPTA Date: 2022.01.24
15:54:32 +0530
4. Pursuant to notice, accused appeared before such Court on 09.03.2016. and his statement was recorded which reads as under:-
"I was one of the accused in the present case. On 12.02.2016, I had given a statement in this court to the effect that I had undertaken to remove the kabari shop situated adjacent to shop no.J-10, which I had described to be otherwise illegal. I have no concern, whatsoever, with the aforementioned kabari shop which is abutting my shop no.J-10. I used to do chunk business four years ago which I had stopped. Thereafter, I used to take some junk in my shop bearing no.J-10 from which I am running my Kiryana shop which I have stopped after my undertaking dated 12.02.2016. I have no objection, whatsoever, if the said kabadi shop is removed by the appropriate authorities."
5. In view of this statement given on oath by accused Akhtar Malik, application u/s 362 CrPC dated 04.03.2016 was disposed off with direction to concerned SHO to inform SDMC about illegal construction/ encroachment by a junk dealer abutting Shop No.J-10, Khokha Market, Mandir Marg, New Delhi.
6. Thereafter, complainant moved an application u/s 340 CrPC against accused Akhtar Malik on the basis of inconsistent statements given by him on 12.02.2016 and 09.03.2016. Upon a preliminary inquiry CC No.474536/2013 PS Saket Page No.3 of 10 Digitally signed CHARU by CHARU GUPTA GUPTA Date: 2022.01.24 15:54:40 +0530 conducted by the Court and statement of complainant dated 28.05.2016, the Court of Ld. ACMM ordered inquiry into offence punishable u/s 193/199/209 IPC against accused and directed filing of complaint u/s 340 (3)
(b) CrPC against the accused. It is pleaded that since accused Akhtar Malik had intentionally made a statement on 12.02.2016 in order to get a favourable order in case FIR No. 873/2014, PS Saket, which was contradictory on material aspects to his statement made on 09.03.2016, knowing it to be false and fraudulently or dishonestly made a claim which he knew to be false with intent to injure or annoy the complainant, he be tried u/s 200 CrPC for offences punishable u/s 193/199/209 IPC.
7. Pursuant to this complaint, Court took cognizance of offences u/s 193/199/209 IPC and issued summons to accused. Accused appeared on 24.01.2017 and after supplying him complete set of complaint and documents, arguments on charge were heard. Vide order dated 27.08.2018 , charge was ordered to be framed u/s 209 IPC. Charge was framed, read over and explained to the accused to which he pleaded not guilty and claimed trial.
8. Thereafter, prosecution lead its evidence by examining one witness, CW-1 Ms. Dazy Dandhi, Senior Judicial Assistant, posted in Court of Sh. A.K. Jain, Ld. ASJ-02, South Saket Court.
9. CW-1 Ms. Dazy Gandhi, Sr. JJA deposed that On 12.10.2016, she was posted as Reader in the Court of Sh. Sandeep Garg, Ld. ACMM, CC No.474536/2013 PS Saket Page No.4 of 10 Digitally signed CHARU by CHARU GUPTA GUPTA Date: 2022.01.24 15:54:51 +0530 South. A complaint case under section 200 Cr. P.C. against accused Akhtar Malik, for commission of offence punishable under section 193/199/209 IPC lodged through me as per the direction of presiding officer Sh. Sandeep Garg, Ld. ACMM, South. The said complaint is Ex.CW1/A bearing my signatures at point A on each page. On 12.02.2016, accused Akhtar Malik appeared before the court of Sh. Sandeep Garg, Ld. ACMM, South and he gave his statement for settlement in the present case. Thereafter, he also appeared on 09.03.2016 and again he gave his statement. Aforesaid both statements were found to be contradictory. In his statement dated 12.02.2016 accused Akhtar Malik has stated that he undertake to remove the kabari shop which is otherwise illegal and also undertake not to repeat the said mistake again however, his statement dated 09.03.2016 he has stated that he had no concern with the said shop and which is abutting his shop No.J-10, where he used to do junk business four years ago and now stopped and at present he used to take some junk in his shop bearing No.J-10 from which he is running a kiryana shop and also that he had at present stopped the same as well after his undertaking dated 12.02.2016. These two statements were found to be contradictory on material aspects and both the statements were given before the court intentionally knowing them to be false with intention to injure or annoy the complainant. The specific details are mentioned in my complaint Ex.CW1/A. She was duly cross-examined by Ld. Defence counsel. PE was closed as no other witness was sought to be examined by State.
10. Upon conclusion of prosecution evidence, statement of accused CC No.474536/2013 PS Saket Digitally signed Page No.5 of 10 CHARU by CHARU GUPTA GUPTA Date: 2022.01.24 15:54:58 +0530 under Section 313 Cr.P.C. read with Section 281 Cr.P.C. was recorded in which all incriminating material was put to them, to which they pleaded innocence and claimed to have been falsely implicated. Accused chose to lead DE and examined one Mr Rizwan as DW-1.
11. DW-1 Mr. Rizwan deposed that he has taken shop no.12 khokha Market Mandir Marg, Saket, Opposite J-Block, Saket on rent from Mrs. Maya Devi, W/o Sh. Tulsi Ram, House No.F-247, Gali No.20, Pul Prahladpur, New Delhi-110044. The rent of the said Khokha was Rs.3000/- per month from 01.01.2016 to 30.11.2016. The said Khokha Market was demolished by the MCD. The rent agreement is Mark-A. He was cross- examined by Ld. Substitute APP for the State.
12. Final arguments of both the parties were heard at length.
Court Observation
13. Before adverting to the facts and discussion on the case, it is pertinent to analyse provision of section 209 IPC. Section 209 IPC reads as under:-
"209. Dishonestly making false claim in Court:- whoever fraudulently or dishonestly, or with intent to injure or annoy any person, makes in a Court of Justice any claim which he knows to be false, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine."CC No.474536/2013 PS Saket Page No.6 of 10 Digitally signed
CHARU by CHARU GUPTA GUPTA Date: 2022.01.24 15:55:05 +0530 Thus, in order to bring home the guilt u/s 209 IPC prosecution must establish that the claim of accused made on impugned dates, was known by him to be false and must have been made fraudulently or dishonestly or with intent to injure or annoy any person.
14. Now reverting to the facts at hand, it is an undisputed fact and a matter of record that accused gave a statement on 12.02.2016 which reads as under:-
"Statement of accused Akhtar Malik S/o Sh. Abdul Hameed and 2. Salman S/o Akhtar Akhtar Malik both R/o Shop No.10, Khokha Market, Mandir Marg, Saket, New Delhi.
Without oath We have compounded the present matter with the complainant. We undertake to remove the kabari shop which is otherwise illegal. We undertake not to repeat our mistake again.
RO&AC ACMM/SD/Saket/ND/12.02.2016"
15. His statement recorded pursuant to application u/s 362 CrPC on 09.03.2016 reads as:-
"Statement of accused Akhtar Malik S/o Sh. Abdul Hameed R/o Shop No.10, Khokha Market, Mandir Marg, Saket, New Delhi and permanent R/o Village Majidpura, Gali CC No.474536/2013 PS Saket Digitally signed Page No.7 of 10 CHARU by CHARU GUPTA GUPTA Date: 2022.01.24 15:55:14 +0530 No.6, PS Hapur Kotwal, Distt.Hapur, UP.
On SA I was one of the accused int eh present case. On 12.02.2016, I had given a statement in this Court to the effect that I had undertaken to remove the kabari shop situated adjacent to shop no.J-10 which I had described to be otherwise illegal. I have no concern whatsoever with the aforementioned kabari shop which is abutting my shop no.J-10. I used to do chunk business four years ago which I had stopped. Thereafter, I used to take some junk in my shop bearing no.J-10 from which I am running my Kiryana shop which I have stopped after my undertaking dated 12.02.2016. I have no objection, whatsoever, if the said kabadi shop is removed by the appropriate authorities."
16. As per CW-1 statement dated 12.02.2016 before concerned Court to settle/compound case lodged by complaint. Bare reading of the said statement clearly shows that accused had undertaken to remove the kabri shop which he believed to be otherwise illegal as also in categorical terms agreed not to repeat his mistake. On subsequent dated i.e. 09.03.2016, without denying to have made the first statement he resiled from the fact that he was the owner of that kabri shop and stated that the kabri shop was infact merely "abutting" his shop J-10. During cross-examination of CW-1 also, the CC No.474536/2013 PS Saket Page No.8 of 10 CHARU Digitally signed by CHARU GUPTA Date: 2022.01.24 GUPTA 15:55:20 +0530 only defence put forth by accused is that he could not read and understand English or that there is nothing on record to establish that he was owner of the kabari shop in question. In the opinion of this Court, the very fact that accused has disputed his ownership rather concern with kabari shop which he believed to be otherwise illegal & categorically undertook to even remove it implies his intent to mislead the Court into believing that he had concern with such kabari shop and only therefore could remove it. It is based on this statement (which accused himself later falsifies by resiling from concern with it) that the Court allowed the matter to be compounded. It is apparent from the second statement dated 09.03.2016 that despite such undertaking, accused did not remove his shop and thus his intent to cause monetary loss to complainant Prabhunath, by withdrawing his claim from Court of law on the basis of compounding statement as well as annoyance to the complainant is self evident. Even if statement of accused dated 09.03.2016 which was recorded upon administering oath to him, is to be believed, his first statement duly signed by him and resulting in disposal of case and having legal effect of his acquittal, is clearly fraudulent or dishonest. Further, testimony of DW- 1 is unreliable as he alleged to be knowing the accused due to proximity of cite of their shops, however, failed to even prove that he carries on any business at or near the alleged place. He further could neither prove nor disprove the defence of the accused and as such his testimony is found to be irrelevant as well. Thus, the act of the accused in making two divergent statements before the Court in order to obtain a favourable order in his CC No.474536/2013 PS Saket Digitally signed Page No.9 of 10 CHARU by CHARU GUPTA GUPTA Date: 2022.01.24 15:55:27 +0530 favour, obviously to cause monetary loss by way of withdrawal from legally proceeding against him and causing annoyance to him, attracts penal consequences u/s 209 IPC. Hence, accused Akhtar Malik stands convicted for the offence under Section 209 IPC.
17. Copy of judgment be given to convict free of cost.
CHARU Digitally signed by CHARU GUPTA GUPTA Date: 2022.01.24 15:55:34 +0530 (CHARU GUPTA) CHIEF METROPOLITAN MAGISTRATE DISTRICT SOUTH, SAKET COURTS COMPLEX Announced in the open Court on 24th January, 2022 CC No.474536/2013 PS Saket Page No.10 of 10