Delhi District Court
M/S Icici Bank Ltd vs State on 23 October, 2010
1
IN THE COURT OF SH. GURDEEP SINGH:ASJ04
NORTHEAST DISTRICT:KARKARDOOMA COURTS:DELHI
IN THE MATTER OF:
M/s ICICI Bank Ltd.
Having its registered office at
Land Mark, Race Course Circle, Vadodra390007
and also having Branch at
EBlock, Videocon Tower, Jhandewalan Extention
New Delhi110055, Through its AR: Sh. Mohit Grover.
.....Revisionist
Versus
1. State
2. Sh. Pulastya Pramachala, CCJ/ARC(E)/MM
Karkardooma Courts, Delhi.
.....Respondents
Criminal Revision No. : 14/10
23.10.2010
O R D E R
1. Vide this order, I shall decide the issuance of notice of the revision petition to the other party i.e. State or otherwise.
2. The relevant facts as per the revision petition are that revisionist which is an Incorporated Company, had filed a Civil Suit through its authorized representative, on the basis of information received through record which was inadvertently not updated. The revisionist had granted loan to one Mohd. Cr. R.No. 14/10 Page 1 of 15 2 Irfan for purchase of motorcycle who was granted the loan but defaulted to pay the installments, as per the agreement and according to the terms and conditions of the agreement. The Civil Suit for recovery was filed through authorized representative. The A/R filed an application under Order 40 Rule 1 CPC seeking seizure of said motorcycle. The court on the application passed exparte order and appointed Sh. Rajeev Sharma as receiver to take the possession of the said vehicle. Vide order dated 07.01.2008, the receiver was directed to file the report as to condition and custody of the vehicle on 07.02.2008. However, it was brought to the notice of the court by the defendant that A/R of the revisionist had prosecuted this application falsely and the vehicle was already taken in possession on 29.12.2007 and sold on 07.02.2008. The A/R was directed to file the affidavit mentioning the date on which the vehicle was taken over. Receiver filed his report on 28.03.2008. Later on, Sh. Rajeev Sharma as well as A/R filed their affidavits before the court apologizing the same. Considering the plea, the court came to a finding that the revisionist had falsely prosecuted the application in order to get a favourable order against Mohd. Irfan and on the basis of the same directed to file the complaint u/s 182, 209 and 212 IPC. Cr. R.No. 14/10 Page 2 of 15 3 The complaint was filed in the court of Ld. ACMM who took cognizance and issue summon to the company. Hence, the present revision petition.
3. I have heard Sh. S.S. Tomar, Advocate on behalf of the revisionist. Trial court record was called. I have perused the same.
4. Alongwith this revision petition, an application U/s 5 of Limitation Act for seeking condonation of delay was also filed by the revisionist.
5. Firstly, whether the notice can be issued on this revision petition to the other party is dependent on the limitation. The summoning order was admittedly passed on 30.01.2010 and this revision petition was filed on 25.05.2010. The period of limitation providing for filing the revision petition is 90 days from the date of order and admittedly, this revision petition is beyond the period of limitation.
6. Now, coming to the ground of condonation of delay. It is mentioned in the application To Quote: "2. That there is a delay in filing of the present revision petition as the revisionist had been seeking legal opinion from different counsels against the impugned orders. Further drafting of the revision petition took considerable time and thereby causing a delay of _____ days in filing of the revision petition. 3........, 4........ It is, therefore, prayed that the delay of ____ days in filing of Cr. R.No. 14/10 Page 3 of 15 4 the revision petition may kindly be condoned in the interest of justice and the revision petition may kindly be disposed off on merits."
7. Ld. Counsel on behalf of the revisionist has not taken care even to calculate the days for which the delay has occurred and the ground that legal opinion has been sought from different counsels cannot be a ground of condonation of delay, the present revision petition is liable to be dismissed on this ground alone.
8. Even on merit, the revision petition deserves to be dismissed as per the discussion which follows. To clear the cobweb of submission of Ld. Counsel which will follow, it is necessary to have the overview of the legal provisions.
9. The Hon'ble Supreme Court in "Iqbal Singh Marwah & Anr.
Vs. Meenakshi Marwah & Anr", 2005 (2) RCR (Criminal) 178 has succinctly observed the law on the subject.
To quote: "17.. Section 190 Cr.P.C provides that a Magistrate may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence, (b) upon a police report of such facts, and (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. Section 195 Cr. R.No. 14/10 Page 4 of 15 5 Cr.P.C is a sort of exception to this general provision and creates an embargo upon the power of the Court to take cognizance of certain types of offences enumerated therein. The procedure for filing a complaint by the court as contemplated by Section 195 (1) Cr.P.C is given in Section 340 Cr.P.C and sub section (1) and (2) thereof are being reproduced below:
"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 interest of justice that an inquiry should be made into any offence referred to in clause
(b) of subsection (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 Cr. R.No. 14/10 Page 5 of 15 6 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 subsection (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 subsection (4) of Section 195."
Section 341 Cr.P.C provides for an appeal to the Court to which such former court is subordinate within the meaning of sub section (4) of Section 195, against the order refusing to make a complaint or against an order directing filing of a complaint and in such appeal the superior Court may direct withdrawal of the complaint or making of the complaint. Sub section (2) of Section 343 lays down that when it is brought to the notice of a Magistrate to whom a complaint has been made under section 340 or 341 that an appeal is pending against the decision arrived at in the judicial proceeding out of which, the matter has arisen, he may, if he thinks fit, at any stage, adjourn the hearing Cr. R.No. 14/10 Page 6 of 15 7 of the case until such appeal is decided.
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 interest 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 Cr. R.No. 14/10 Page 7 of 15 8 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 remedyless. Any interpretation which leads to a situation where a victim of a crime is rendered remedyless, has to be discarded.
10. In the present case, the offences for which the complaint was made are U/s 182 IPC, 200 IPC, 209 IPC and 212 IPC. Section 212 IPC does not require the complaint to be filed in writing and does not provide for bar U/s 195 Cr.P.C. However, as regards section 182 IPC, 200 IPC and 209 IPC, the complaint in writing is required.
11. In the present case, there was an application moved U/s 340 Cr.P.C by defendant for the offences committed in relation to the proceedings before the court. The court decided to conduct the preliminary inquiry. The inquiry was conducted whereby, plaintiff was directed to file affidavit by which date, the vehicle was taken over and thereafter while disposing off the application, recorded the finding to that effect and thereafter, made a complaint in writing and was sent to the magistrate having jurisdiction. The said complaint was sent to ACMM who was having jurisdiction in the case to take the cognizance. Cr. R.No. 14/10 Page 8 of 15 9 Ld. ACMM takes the cognizance of the offence u/s 190 Cr.P.C. As per section 346 (2) Cr.P.C., the magistrate shall deal with the complaint U/s 346 (2) Cr.P.C. as if the same has been instituted upon police report, therefore, magistrate need not record the presummoning evidence and could issue the summons to the accused persons directly and therefore, Ld. ACMM, after taking the cognizance issued summons.
12. Ld. Counsel on behalf of the revisionist had filed various judgments in the form of book. He was directed to file the synopsis of the same and he had filed the same and urge that they be considered as his written submissions.
13. Ld. Counsel has cited the judgment of Hon'ble Supreme court in case titled as "G. Sagar Suri Vs. State of U.P", 2000 (2) SCC 636" wherein, it was held that before issuing process, a criminal court has to exercise a great deal of caution. It is submitted that revisionist had not indulged in malicious prosecution and also there is no presence of mens rea on its part and the Hon'ble Allahabad High Court in "Umrao Lal Vs. State", Crl.L.J 860 similarly held that presence of mens rea is necessary .
14. Ld. Counsel for the revisionist has also cited "Bibuti Bhushan Basu Vs. Corporation of Calcutta and others", 1982 Crl. L. J Cr. R.No. 14/10 Page 9 of 15 10 909 and submitted that no inquiry or investigation was conducted by Ld. ACMM U/s 203 Cr.P.C. He further cited BSES Rajdhani Power Ltd. Vs. Shiv Lal & Ors., 2009 (158) DLT 510, wherein, complaint was filed against respondent on the basis of inspection entry made on the record and affidavits filed. Respondent was already dead. At the time of filing of affidavits appellants did not have knowledge of death of registered consumer. Appellants had no intention to file false affidavit. Therefore, necessary ingredients of Section 191, 192 not satisfied. Ld. Counsel further cited "Krishan Dev Vs. Lal Chand", 1969 (1) ILR (Delhi) 78, wherein, it was held that prosecution of party to a proceeding before the court,order should not be passed in routine manner and court must see whether it is expedient in the interest of justice or not.
15. He further cited "Iqbal Singh Marwah Vs. Meenakshi Marwah" 2005 (AIR) (SC) 2119, wherein, Hon'ble Supreme Court held that 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.
16. Ld. Counsel has also cited "B.K Gupta Vs. Damodar H.Bajaj, 2001 (9) SCC 742, wherein, it was held that false statement made before the court, on oath, alone is not sufficient to initiate Cr. R.No. 14/10 Page 10 of 15 11 criminal proceedings.
17. He also cited Rajiv Kumar Sadh Vs. Govt. of NCT of Delhi, 2001 (89) DLT 419, wherein, it was held that while acting and before taking the cognizance has to satisfy himself whether there is sufficient ground for proceeding in the matter or not. For this purpose the court is entitled to consider the evidence taken by him or recorded in the enquiry or the statements made during the investigation while deciding whether the process should be issued or not.
18. Ld. Counsel for the revisionist has submitted that the essential ingredients to constitute offence U/s 193 IPC and 211 IPC are not attracted in the present matter. He further stated that prosecution was not proper as the suit was filed on account of error only and cited "Daljeet Singh Chandok Vs. State and Anr" (citation not given). He also cited "Kalu Ram Vs. Sita Ram', 1980 Rajdhani Law Reporter (Note) 44. This is only notes of the case and does not laid down any law.
19. He further cited "R. Vadivelu Vs. M/s Sakthi Asphaets and Pelts", 2003 (1) JCC (NI) 105. In the said case, the accused had asked for representing the cheques after a certain date, which means that, accused had no intention that his cheque be not honoured and to return the goods as they were sub Cr. R.No. 14/10 Page 11 of 15 12 standard. Had he intention of returning the goods? He would not have asked the complainant to represent the cheques in the bank. Further, the accused had not replied to the notice issued U/s 138 of N.I Act. Therefore, there was nothing for the accused to dispute the same. This case has no application to the facts of the of the present case.
20. Ld. Counsel has further cited "Sunder Singh Vs. State", 1996 JCC 681. In the said case, it was held that before initiating proceedings for prosecution U/s 340 Cr.P.C, the court is to give a finding as to which of the statement given by the witness was false. In the present fact of the case, the submission is without any merit as Ld. Court has disposed off the application vide detailed order, clearly giving the evidence that false affidavit was filed on behalf of the complainant.
21. Ld. Counsel has also cited "Bahadurmal Vs. the State, AIR 1965 Rajasthan 224 (V 52 C 68), wherein it was held that no finding given by the court that plaintiff had intentionally given false evidence for purpose of judicial proceeding. This judgment was on its peculiar facts and has no application to the facts of the present case.
22. Ld. Counsel has also cited Varghese @ Sibi Vs. State of Kerala (citation not given), wherein, it appears to be held that Cr. R.No. 14/10 Page 12 of 15 13 initiation of proceeding is that witness has deliberately given the false evidence as sine qua non of initiation proceedings.
23. Ld. Counsel also cited "Mohd. Ibrahim Vs. B.Rama Rao", 1976 (2) SCC 33, wherein, it is held that mere falsity of statements is not enough. An Official in the department swearing on the instruction of his superior, held, cannot be said to have been made the statements intentionally.
24. Ld. Counsel has further cited 1971 Crl. L.J 1096 (V 77 C 317), wherein, it was held by Hon'ble Allahabad High Court that the prosecution for perjury should be sanctioned by Courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely.
25. Ld. Counsel has also cited "Jagjit Kaur Vs. Lt. Col. Harjeet Singh & Anr.", 2000 (1) JCC (Delhi) 28. The law laid down in the said case is not applicable to the facts of the present case as in that case, the wife filed false affidavit U/s 24 of H.M.Act for maintenance.
26. The abovesaid judgments cited by Ld. Counsel for the revisionist are all on merit. Revisionist would get the opportunity during the trial to prove that there is no deliberate or intentional perjury committed by them in the course of the proceedings. Although, on the facts the same appears to be Cr. R.No. 14/10 Page 13 of 15 14 deliberate as the vehicle was already seized on the day when the application for repossessing the same was filed before the court. Even when the date was fixed by the court, the vehicle was intentionally disposed off in order to cause loss to the applicant. Further, at the stage of taking the cognizance, the court is required to see whether there are sufficient grounds to proceed against the accused or not and is not required to conduct roving and fishing enquiry. The accused will get the ample opportunity to argue on the essential ingredients, at the time of framing of charge.
27. Needless to say that the Financial Institutions are indulging in illegal activity of forcibly repossessing the vehicle finance by them without following any procedure. They are indulging in armtwisting activity by engaging muscleman who act as their agent and to legalize their illegal act, they file suit and obtain order to hide their misdeeds, which cannot be approved. This appears to a case where court chose to file complaint to check such malpractices which undermine the judicial system and is against the administration of justice.
28. In the present case, Ld. ACMM has taken cognizance after going through the record. Therefore, there is no illegality or impropriety committed in the impugned order by Ld. ACMM. Cr. R.No. 14/10 Page 14 of 15 15 Further, the revision petition is also barred by limitation. Therefore, the notice is not issued to the State. The revision petition is accordingly dismissed. Trial Court alongwith copy of the order be sent back. Criminal Revision file be consigned to record room.
Announced in the open Court today i.e on 23.10.2010 GURDEEP SINGH ASJ04/NE/KKD/23.10.2010 Cr. R.No. 14/10 Page 15 of 15