Delhi District Court
M/S Champa Impex Pvt Ltd And Ors vs Karur Vysya Bank Ltd And Anr on 4 April, 2024
IN THE COURT OF SH. PURSHOTAM PATHAK, ASJ-05,
SOUTH DISTRICT, SAKET COURTS : DELHI
CRL. APPEAL No.194/2023
CNR No. : DLST01-006795-2023
1. M/s Champa Impex Pvt. Ltd.
1A, Madan Mohan Burman Street,
Kolkata-700007
2. Mr. Lakshman Prasad Agarwala
S/o Mr. Uma Shankar Agarwala
10 May Fair Road, Ballygunge,
Kolkata-700019 .........APPELLANT
VERSUS
1. The Karur Vysya Bank Ltd.
Having its head Office at: Erode Road,
Karur, Tamilnadu
Branch Office At:
Ground Floor, SB Towers, 37,
Shakespeare Sarani, Kolkata-700017
2. Sh. P. S. Bhaskaran,
S/o P Santhanam,
Chief Manager & Authorised Officer,
The KaruruVysya Bank Ltd.
Divisional Office at 3rd Floor,
No. 6, Opp. Metro Pillar No. 80
Pusa Road, Karol Bagh
New Delhi-110005
and having branch at
Ground Floor,
SB Towers, 37,
Shakespeare Sarani
Kolkata-70001710-D ......... RESPONDENT
CA NO. 194/2023
M/s Champa Impex Pvt. Ltd. And Ors. Vs. Karur Vysya Bank Ltd. And Anr. Digitally signed
Page no. 1 of 16 by PURSHOTTAM
PURSHOTTAM PATHAK
PATHAK Date: 2024.04.04
16:39:02 +0530
DATE OF INSTITUTION : 18.07.2023
ARGUMENTS HEARD ON : 21.03.2024
DATE OF JUDGMENT : 04.04.2024
JUDGMENT
1. The present appeal under Section 341 Cr.P.C. has been filed by the appellants against the impugned order dated 21.03.2023, passed by the court of Ld. CMM, South, Saket, New Delhi, whereby application of appellant under Section 340 Cr.P.C was dismissed.
2. Brief facts as mentioned in the appeal are that the application under Section 14 of securitization and reconstruction of financial assets and enforcement of security interest Act 2002 (hereinafter referred as SARFAESI Act) with CT No. 6228/2020, was filed by the respondents before Ld. CMM for taking possession of residential land and building at plot no. 28, Block no. P, Green Park Extension, New Delhi, Village Yusuf Sarai, Mehrauli Road, New Delhi. The application of respondents was allowed by Ld. CMM vide order dated 05.11.2020 and receiver was appointed.
3. Thereafter, appellant moved an application under Section 340 r/w 195(1) (b) Cr.P.C. before the court of Ld. CMM, South, wherein he prayed for initiation of perjury proceedings against the respondents on the ground that the respondents have filed false affidavit stating therein that 'nothing material has been concealed therefrom'. Thus, suppressed the material facts and the proceedings pending CA NO. 194/2023 Digitally signed by M/s Champa Impex Pvt. Ltd. And Ors. Vs. Karur Vysya Bank Ltd. And Anr. PURSHOTTAM Page no. 2 of 16 PURSHOTTAM PATHAK PATHAK Date:
2024.04.04 16:39:09 +0530 before the courts of competent jurisdiction, in order to play fraud upon the court and to get favourable orders. The application of appellant u/s 340 Cr.P.C. was dismissed by Ld. CMM vide order dated 21.03.2023 by passing detailed order with following observations:-
"Section 340 Cr. P. C. provides procedure in cases mentioned in Section 195 Cr. P. C. Section 195 Cr. P. C. provides for the manner in which court shall take cognizance of various offences under IPC including offence U/sec 211 IPC.
Section 195 Cr. P. C. provides that no court shall take cognizance inter alia for offence U/sec 211 IPC when such offence is alleged to have been committed in or in relation to any proceedings in any court except on a complaint in writing of that court or by such officer of the court as that court may authorize in writing in this behalf or of some other court which that court is subordinate.
Section 340 Cr.P.C. very specifically provides that when any court is of the opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to under Section 195 (1) (b) Cr.P.C. which appears to have been committed in or in relation to proceedings in that court, such court may after such preliminary inquiry, if any as it thinks necessary record a finding to that effect and make a complaint thereof in writing to the Magistrate of the First Class having jurisdiction.
Thus, there are two conditions on fulfillment of which a complaint can be filed. Firstly, that a person has given a false affidavit in a proceeding before the court and secondly, in the opinion of the Court, it is expedient in the interest of justice, to make inquiry against such person in relation to the offence committed by him. Both these conditions are required to be fulfilled at the same time. It is now well settled that the Court is not bound to make a complaint. Complaint will be made only if it is expedient in the interest of justice and not in every case.
Now coming to the facts of the present case under consideration, the applicant has alleged that the respondent in its application under Section 14 of the SARFAESI Act, made a false statement and concealed material facts and also misled the Court so as to secure a favorable order for appointment of Receiver to take possession of the secured asset. It has been submitted that the non- applicant/ respondents were duty bound to disclose the details of all the litigations pending between the parties and failure on the part of the non-applicant amounts to perjury and thus action under Section 340 Cr.P.C. is warranted against them.Digitally signed by
CA NO. 194/2023 PURSHOTTAM PURSHOTTAM
M/s Champa Impex Pvt. Ltd. And Ors. Vs. Karur Vysya Bank Ltd. And Anr. PATHAK PATHAK
Page no. 3 of 16 Date: 2024.04.04
16:39:13 +0530
Now it is to be seen whether the statement has been made by the respondent in the said application is such that it necessitates initiation of proceedings under Section 340 Cr.P.C. Admittedly, litigations between the parties were pending and during the pendency of the said litigations, the application under section 14 SARFAESI Act was filed on behalf of the non-applicant for appointment of Receiver. However, the applicant has failed to show that there was a stay granted by a competent court in favour of the applicant which would have precluded the non-applicant bank from taking possession of the secured asset. After going through the record, this Court is satisfied that the application under Section 14 of the SARFAESI Act and the affidavit filed therein substantially complies with the provisions of the Act and there is nothing in the said affidavit which would show that the application was filed with the malafide intention or with the intention to mislead the court so as to obtain favorable order and thus resulting into action under Section 340 Cr.P.C.
In the considered opinion of this Court, this is not the fit case to initiate criminal proceedings under section 340 Cr.P.C. against the respondents especially when there was no stay in favour of the applicant or agaist the non-applicant with respect to the secured assets in question. Thus, it is not expedient in the interest of justice to penalize the respondents for some mistake which might have occurred bonafidely. Thus, in view of the above, the application under Section 340 Cr.P.C. being devoid of merits stands dismissed.
4. The appellant aggrieved by the impugned order of Ld. CMM, has preferred the present appeal on following grounds:-
i. Ld. CMM has erred in passing the impugned order as the same is prima facie contrary to the facts and circumstances of the case and relevant provisions of law.
ii. Ld. CMM failed to appreciate that the respondent has played fraud upon the court and it is a prima facie case of deliberate falsehood in relation to facts essential for adjudication of the Section 14 application.Digitally signed by
CA NO. 194/2023 PURSHOTTAM M/s Champa Impex Pvt. Ltd. And Ors. Vs. Karur Vysya Bank Ltd. And Anr. PURSHOTTAM PATHAK PATHAK Page no. 4 of 16 Date:
2024.04.04 16:39:20 +0530 iii. The judgment and order dated 21.03.2023 has been passed by the Ld. CMM without applying the judicial mind and without considering the facts and circumstances of the case.
iv. Ld. CMM failed to consider the fact that the respondents have suppressed material facts from the court and the order dated 05.11.2020 had been obtained with concealment and complete misrepresentation of facts.
v. Ld. CMM did not consider the facts that respondent bank has suppressed all the material facts and has filed the application u/s 14 SARFAESI Act 2002, which he should have considered in view of amendment in Act.
vi. That the respondents were legally bound to furnish correct information about the real facts of the cases which were well within the knowledge of respondents, but instead of doing so, respondent no. 2, intentionally, deliberately and malafidely filed a false affidavit furnishing false information before Ld. CMM.
5. TCR was called and has been perused.
6. I have heard the arguments advanced by Ld. counsels for both the parties.
7. It was submitted by learned counsel for appellant that respondents have made false statement before the court of Ld. CMM in order to obtain order dated 05.11.2020, which has affected administration of justice.
CA NO. 194/2023 M/s Champa Impex Pvt. Ltd. And Ors. Vs. Karur Vysya Bank Ltd. And Anr. Digitally signed by Page no. 5 of 16 PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date: 2024.04.04 16:39:25 +0530
He also argued that on account of various developments, respondents have no right to proceed against appellant under SARFAESI Act, but respondents did not disclose any of said vital developments in their SARFAESI application and statutory affidavit during the course of their statement before Ld. Trial Court. It is stated that appellant in application U/sec 340 Cr. P. C categorically and specifically pointed out that respondents are guilty of concealment and perjury by making false deposition in their aforesaid application U/sec 14 of SARFAESI Act and statutory affidavit thereof. He prayed to set aside the impugned order passed by learned CMM.
8. Per contra, it was submitted by learned counsel for respondents that filing of said affidavit cannot be said to be mala fide on the part of the respondents. It was further submitted that appellant entered into a loan agreement with the respondent no.1 and as per the said agreement, respondent no.1 has disbursed the loan to appellant. He submitted that learned CMM rightly dismissed the application of appellant. He further submitted that there is no illegality, infirmity or impropriety in the order of learned CMM. He prayed to dismiss the appeal of appellant being devoid of any merit.
9. The only contention of appeallant is that the respondents have made false, misleading and concealing statements in there application and affidavit before Ld. CMM, with the objective of obtaining favourable order Digitally CA NO. 194/2023 signed by PURSHOTTAM M/s Champa Impex Pvt. Ltd. And Ors. Vs. Karur Vysya Bank Ltd. And Anr. PURSHOTTAM PATHAK Page no. 6 of 16 PATHAK Date:
2024.04.04 16:39:32 +0530 from Ld. Trial Court U/sec 14 of SARFAESI Act, which has affected the administration of justice.
10. It is not disputed that appellant had availed financial assistance from Karur Vysya Bank. The appellant nowhere disputed that there were no dues against him. He further did not contend that the property in question was not mortgaged with the respondent bank. He also did not contend that no notice under section 13 (2) of The SARFAESI Act was given to him. It is also not his case that the documents filed by respondent alongwith application in the court were/are forged and fabricated. The appellant only disputed regarding the pendency of litigation between the parties.
11. Under the entire scheme of SARFESI Act, the court is empowered to only grant assistance to a secured creditor in taking possession of the secured asset. The court is bound to provide such assistance U/s 14 of the Act where the word used is 'Shall'. Besides this power of grant of assistance to secure creditors, the court has no other power under SARFAESI Act to, either decide any right, title or interest of any of the parties, or to enter into any other question of fact. Appropriate remedies are available to the parties to approach proper forums, more particularly, under Section 17 of the Act.
12. Section 17(1) of SARFAESI Act provides that any person including borrower aggrieved by any of the measure referred to in sub section (4) of Section 13 taken CA NO. 194/2023 Digitally signed M/s Champa Impex Pvt. Ltd. And Ors. Vs. Karur Vysya Bank Ltd. And Anr. by PURSHOTTAM Page no. 7 of 16 PURSHOTTAM PATHAK PATHAK Date:
2024.04.04 16:39:36 +0530 by secured creditor or his authorized officer under this chapter, may make an application along with such fee, as may be prescribed to the DRT having jurisdiction in the matter within 45 days from the date on which such measure had been taken.
13. Perusal of aforesaid provision of 17 SARFAESI Act shows that remedy of appellant against action taken by respondent bank before Court of Ld. CMM lied before DRT. Section 340 Cr.P.C. is not mandatorily to be allowed by a Court unless Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into offences 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 document produced or given in evidence in a proceeding in that Court.
14. Further, section 35 of SARFAESI Act provides that provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being enforced or any instrument having effect by virtue of any such law. Section 29 of SARFAESI Act provides that if any person contravenes or attempts to contravene or abets the contravention of the provisions of this Act or of any rules made thereunder, he shall be punishable with imprisonment for a term which may extend to one year or with fine or with both.
Digitally signed byCA NO. 194/2023 PURSHOTTAM PURSHOTTAM
PATHAK PATHAK
M/s Champa Impex Pvt. Ltd. And Ors. Vs. Karur Vysya Bank Ltd. And Anr.
Page no. 8 of 16 Date: 2024.04.04
16:39:41 +0530
15. Respondent bank filed application u/s 14 of SARFAESI Act before Court of Ld. CMM as per provisions of SARFAESI Act and in case any contravention has been made by respondent Bank of any provision of the Act, it is punishable u/s 29 of the Act. Section 35 of SARFAESI Act as mentioned above confers overriding effect to provisions of this Act. As action was taken by respondent Bank under provisions of SARFAESI Act which according to appellant was not confirming to provisions of SARFAESI Act and was misleading and amounting to concealment of material facts, in view of above mentioned provisions of SARFAESI Act, the appropriate remedy in my point of view lied before DRT. SARFAESI Act was enacted with a view to early recovery of debts of financial institutions. Respondent No. 1 is a bank and no malafide can be attributed to it while initiating proceedings inter alia against appellant u/s 14 of SARFAESI Act.
16. If these sorts of applications are allowed as a matter of routine, the purpose of enacting SARFAESI Act will become infructuous and will open a pandora's box. Otherwise and hence, it is not expedient in interest of justice to initiate proceedings against respondents for commission of alleged offences.
17. In this regard, it may be noted that statutory protection has been granted under the SARFASI Act itself. Relevant provision u/s 32 of the said Act runs as under:-
Digitally CA NO. 194/2023 signed by M/s Champa Impex Pvt. Ltd. And Ors. Vs. Karur Vysya Bank Ltd. And Anr. PURSHOTTAM PURSHOTTAM PATHAK Page no. 9 of 16 PATHAK Date:
2024.04.04 16:39:48 +0530 "No suit, prosecution or other legal proceedings shall lie against any secured creditor of any of his officers or manager exercising any of the rights of the secured creditor or borrower for anything done or omitted to be done in good faith under this Act."
18. Ld. CMM in his order has rightly observed that the applicant has failed to show that there was a stay granted by a competent court in favour of applicant which would have precluded the non applicant bank taking possession of the secured asset. Merely by non mentioning some facts in the affidavit by respondent No.1, which were not necessary for deciding the petition u/s 14 of the SARFAESI Act, cannot be said to be malafide intention on the part of respondents and this is no ground to proceed under section 340 Cr.P.C.
19. It was sufficient for proceeding under section 14 of The SARFAESI Act, if respondent bank was able to show that there was outstanding amount against the appellant and despite service of statutory notice, he failed to clear it. Under the above facts and circumstances of the case, it cannot be said that the respondent made a false statement before the court to obtain the order dated 05.11.2020 which affected the administration of justice.
20. In the case of Chajoo Ram Vs. Radhey Shyam & Another (1971) 1 SCC 774, it was held by Hon'ble Apex Court that prosecution for perjury should be ordered when it is expedient in the interest of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. Moreover, the prosecution for perjury should CA NO. 194/2023 Digitally M/s Champa Impex Pvt. Ltd. And Ors. Vs. Karur Vysya Bank Ltd. And Anr. signed by PURSHOTTAM Page no. 10 of 16 PURSHOTTAM PATHAK PATHAK Date:
2024.04.04 16:39:52 +0530 be sanctioned by the courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely,
21. Law is well settled that it is not in every case of falsehood that proceedings u/s 340 Cr.P.C ought to be resorted to. It must be resorted to only in rare cases and where it is absolutely necessary in the interest of justice.
22. In the case of Jagjit Kaur vs. Lieutenant Colonel Harjeet Singh 2000 (1) JCC Delhi 28, facts were that in a divorce case filed by the husband against his wife, the wife filed an affidavit for claiming maintenance under Section 24 of the Hindu Marriage Act stating therein that she was not able to maintain herself and her minor daughters. Maintenance was allowed by the court but later on it was found that the wife was a teacher during that period. The husband filed an application under section 340 Criminal Procedure Code against the wife.
23. Hon'ble Delhi High Court held that:- "the provisions of section 340 are intended to provide safeguard against criminal prosecution on insufficient grounds filed against a party by his opponent motivated by a revengeful desire to harass the opponent. It is not the law that every false statement should attract the provisions of section 340 Cr. P. C. If the Court is to notice every falsehood that is sworn to by the parties in courts there would be very little time for courts for any serious work other than directing prosecution for perjury. The gravity of the false statement, the circumstances under which such statement is made, the object of making false statement and its tendency to impede and impair the normal flow of the course of Justice are matters for consideration. Considering the circumstances under which the wife made an affidavit the High Court held that it seems that the object of filing the application was not so much to vindicate the purity of the administration of justice but to punish husband. Once it is held that the motivation behind the application was to gratify his feelings of revenge, then automatically a finding on the issue of expediency must be recorded against the CA NO. 194/2023 M/s Champa Impex Pvt. Ltd. And Ors. Vs. Karur Vysya Bank Ltd. And Anr. Digitally signed by Page no. 11 of 16 PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2024.04.04 16:39:56 +0530 husband. Judicial process should not be allowed to be used as an instrument of oppression and harassment".
24. In the case of AIR 2005 SUPREME COURT 2119 "Iqbal Singh Marwah V. Meenakshi Marwah" = 2005 AIR SCW 1929, a constitution bench of hon'ble SC observed as follows;
" 18. In view of the language used in Section 340, Cr.P.C. the Court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the Section is conditioned by the words "Court is of opinion that it is expedient in the interest of justice". This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the Court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(i)
(b). This expediency will normally be judged by the Court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in Court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the Court may not consider it expedient in the interest of justice to make a complaint. The broad view of clause (b)
(ii), as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged document remedy less.
Any interpretation which leads to a situation where a victim of a crime is rendered remedy less, has to be discarded."
"19. There is another consideration which has to be kept in mind. Subsection (1) of Section 340, Cr.P.C. contemplates holding of a preliminary enquiry. Normally, a direction for filing of a complaint is not made during the pendency of the proceeding before the Court and this is done at the stage when the proceeding is concluded and the final judgment is rendered. Section 341 provides for an appeal against an order directing filing of the complaint. The hearing and ultimate decision of the appeal is bound to take time. Section 343(2) confers a discretion upon a Court trying the complaint to adjourn the hearing of the case if it is brought to its notice that an appeal is pending against the decision arrived at in the judicial proceeding CA NO. 194/2023 Digitally signed M/s Champa Impex Pvt. Ltd. And Ors. Vs. Karur Vysya Bank Ltd. And Anr. by PURSHOTTAM Page no. 12 of 16 PURSHOTTAM PATHAK PATHAK Date:
2024.04.04 16:40:01 +0530 out of which the matter has arisen. In view of these provisions, the complaint case may not proceed at all for decades specially in matters arising out of civil suits where decisions are challenged in successive appellate fora which are time consuming. It is also to be noticed that there is no provision of appeal against an order passed under Section 343(2), whereby hearing of the case is adjourned until the decision of the appeal. These provisions show that, in reality, the procedure prescribed for filing a complaint by the Court is such that it may not fructify in the actual trial of the offender for an unusually long period. Delay in prosecution of a guilty person comes to his advantage as witnesses become reluctant to give evidence and the evidence gets lost. This important consideration dissuades us from accepting the broad interpretation sought to be placed upon clause
(b)(ii)."
"20. An enlarged interpretation to Section 195(1)(b)(ii), whereby the bar created by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in Court, is capable of great misuse. As pointed out in Sachida Nand Singh, after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution, either at the instance of a private party or the police until the Court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would be highly detrimental to the interest of society at large. AIR 1998 SC 1121 : 1998 AIR SCW 932 : 1998 Cri LJ 1565."
25. In 1995 CRI. L. J. 1751 "Kuriakose V. State of Kerala" it is held that, It is not in all cases when witnesses speak falsehood that action shall be initiated against him for perjury by invoking S. 340 of Criminal P.C. There must me prima facie satisfaction on the part of the Court that such a proceeding should be initiated "for the interests of justice" and that there is prima facie evidence to come to the conclusion that false evidence has been tendered. In the absence of those conditions, the Court will not be justified in proceeding with the matter. Also, the gravity of the false statement, the circumstance under which such statement is made, the object of making such statement and its tendency to impede and impair normal flow of the course of justice are matters for consideration when the Court decides on the propriety of instituting a complaint for perjury. Thus, the power under S. 340 of the Code should be used with care and due consideration. If the court is to notice every falsehood that is sworn to by parties in Courts, there would be very little for Courts for any serious work other than directing prosecution for perjury. (Paras 4, 9) In 1997 CRI. L. J. 816 CA NO. 194/2023 Digitally signed M/s Champa Impex Pvt. Ltd. And Ors. Vs. Karur Vysya Bank Ltd. And Anr. by Page no. 13 of 16 PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date: 2024.04.04 16:40:11 +0530 "Jose Kuruvinakunnel V. A. T. Jose" it is observed that, Therefore, it is clear that prosecution can be initiated by resorting to Section 340 of Cr. P. C. only in cases where it is expedient in the interests of justice to prosecute the party and prima facie evidence is adduced in that behalf and the provisions of Section 340 of Cr. P. C. cannot be resorted to lightly on the mere allegations, or to vindicate personal vendetta. (Para 30) In AIR 1971 SUPREME COURT 1935 "Patel Laljibhai Somabhai V. State of Gujarat" it is held, "The underlying purpose of enacting S. 195 (1) (b) and (c) and S. 476 seems to be to control the temptation on the part of the private parties considering themselves aggrieved by the offences mentioned in those sections to start criminal prosecutions on frivolous, vexatious or insufficient grounds inspired by a revengeful desire to harass or spite their opponents. These offences have been selected for the court's control because of their direct impact on the judicial process. It is the judicial process, in other words the administration of public justice, which is the direct and immediate object or victim of those offences and it is only by misleading the courts and thereby perverting the due course of law and justice that the ultimate object of harming the private party is designed to be realized.
26. As the purity of the proceedings of the court is directly sullied by the crime, the Court is considered to be the only party entitled to consider the desirability of complaining against the guilty party. The private party designed ultimately to be injured through the offence against the administration of public justice is undoubtedly entitled to move the court for persuading it to file the complaint. But such party is deprived of the general right recognized by S. 190 Cr. P. C. of the aggrieved parties directly initiating the criminal proceedings. The offences about which the court alone, to the exclusion of the aggrieved private parties, is clothed with the right to complain may, therefore, be appropriately considered to be only those offences committed by a party to a proceeding in that court, the commission of which has a reasonably close nexus with the proceedings in that Court so that it can, without embarking upon a completely independent and fresh inquiry, satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party. It, therefore, appears to us to be more appropriate to adopt the strict construction of confining the prohibition contained in Section 195 (1) (c) only to those cases in which the offences specified therein were committed by a party to the proceeding in the character as such party."
27. AIR 1973 SUPREME COURT 2190 " Santosh Singh V. Izhar Hussain" it is held , " Every incorrect or false statement does not make it incumbent on the court to order prosecution. The court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency. The court orders prosecution CA NO. 194/2023 M/s Champa Impex Pvt. Ltd. And Ors. Vs. Karur Vysya Bank Ltd. And Anr. Digitally signed Page no. 14 of 16 by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2024.04.04 16:40:23 +0530 in the larger interest of the administration of justice and not to gratify feelings of personal revenge or vindictiveness or to serve the ends of a private party. Two frequent prosecutions for such offences tend to defeat its very object. It is only in glaring cases of deliberate falsehood where conviction is highly likely, that the court should direct prosecution." (Para 11) 1994 CRI.L.J 48 " Thomman V. Iind Addl.. Sessions Judge,Ernakulam" also it is held , "It is not any and every statement made by a witness that the court would wish to examine. If the court is to notice every falsehood that is sworn to by parties in courts there could be very little time for courts for any serious work other than directing prosecution for perjury. Again the edge of such weapon would become blunted by indiscriminate use. The gravity of the false statement, the circumstances under which such statement is made, the object of making such statement and its tendency to impede and impair the normal flow of the course of justice are matters for consideration when the court decides on the propriety of instituting a complaint for perjury (vide Muraleekrishna Das v. I.G. of Police, 1978 Ker LT 292)".
28. Ld. magistrate has given sufficient reasons to decline the prayer of appellant. Ld. Magistrate was not bound to initiate action u/s 340 CrPC as the said provision clearly gives a discretionery power and unless judicial system is disturbed by the Act of any person, power under section 340 CrPC should not be invoked.
29. In view of aforesaid discussion, I am of the opinion that it cannot be said that the petition U/s 14 of the SARFAESI Act was filed malafidely without any cause of action and in disregard to the provision of statute or on the basis of suppressing material facts. Appeal filed by appellant appears to be without merits and is accordingly dismissed.
30. TCR be sent back to Ld Trial Court along with copy of this judgment.
31. A copy of this judgment be supplied to Ld. Counsels forthwith. Digitally signed by PURSHOTTAM CA NO. 194/2023 PURSHOTTAM PATHAK PATHAK M/s Champa Impex Pvt. Ltd. And Ors. Vs. Karur Vysya Bank Ltd. And Anr. Date:
2024.04.04 Page no. 15 of 16 16:40:29 +0530
32. Appeal file be consigned to record room after due compliance.
Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date: 2024.04.04 16:41:48 +0530 ANNOUNCED IN THE OPEN COURT (PURSHOTAM PATHAK) TODAY ON THIS ASJ-05(SOUTH) 04th DAY OF APRIL, 2024 SAKET COURTS: N.D
(This judgment contains total 16 signed pages) CA NO. 194/2023 M/s Champa Impex Pvt. Ltd. And Ors. Vs. Karur Vysya Bank Ltd. And Anr. Page no. 16 of 16