Delhi District Court
Gulvinder Khatri vs Pooja Adhikari @ Khop Kumari Adhikari on 17 November, 2022
IN THE COURT OF MS. VRINDA KUMARI,
ADDITIONAL SESSIONS JUDGE-02, SOUTH
DISTRICT, SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 37 of 2022
CNR NO. DLST01-000772-2022
IN THE MATTER OF
Gulvinder Khatri
S/o Sh. Om Prakash Khatri,
R/o E-25, Second Floor,
Paryavaran Complex,
IGNOU Road, Opp. Saket,
New Delhi-110030. ........ Appellant.
Versus
Pooja Adhikari @ Khop Kumari Adhikari
D/o Sh. Govind Prasad Adhikari,
R/o E-25, Third Floor,
Paryavaran Complex,
IGNOU Road, Opp. Saket,
New Delhi-110030. ........ Respondent.
DATE OF INSTITUTION : 02.02.2022
DATE OF RESERVING ORDER : 17.11.2022
DATE OF PRONOUNCEMENT : 17.11.2022
JUDGMENT
1. Vide this Judgment, I shall disposed of the present Appeal u/s 341 Cr.P.C. against the Impugned Order dated 09.12.2021 of Ld. MM-03/Mahila Court/South District/Saket in Complaint Case No. 1647/2017 titled as P. A. Vs R. B. vide which CA No. 37/2022 Gulvinder Khatri Vs Pooja Adhikari @ Khop Kumari Adhikari 17.11.2022 Pg No. 1 of 8 the application of the appellant u/s 340 Cr.P.C. was dismissed by Ld. Trial Court.
2. The respondent had filed the above-mentioned complaint case under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the DV Act) against her husband. During the pendency of the said DV Act case, income affidavits were filed by the respondent as well as her husband. In the her income affidavit, the respondent stated that she was living in a rented accommodation. She gave her residential address as E-51, Flat No. 8, 3rd Floor, Nag Complex, Paryavaran Complex, Neb Sarai, Saket, New Delhi. She mentioned her rent as Rs 15,000/- per month. The DV Act matter was, however, settled between the respondent and her husband. Vide Order dated 28.08.2021, it was submitted by Ld. Counsel for the husband that matter had been settled between the parties but the aggrieved was not coming forward to withdraw the complaint case. Notice was issued to the respondent (aggrieved in the DV Act case) for withdrawal of the matter for 08.11.2021. On 28.08.2021, the appellant appeared before Ld. Trial Court and submitted that his application u/s 340 Cr.P.C. against the aggrieved (respondent herein) was pending. Appellant was not party to the above-said DV Act litigation.
3. In the application u/s 340 Cr.P.C., filed before Ld. Trial Court, it was averred by the appellant that in her income affidavit, CA No. 37/2022 Gulvinder Khatri Vs Pooja Adhikari @ Khop Kumari Adhikari 17.11.2022 Pg No. 2 of 8 the aggrieved had stated that her Nepali name was Khup Kumari Adhikari and was a Matriculate whereas in the complaint case in para 1.23 of the DV Act petition, she had mentioned that she was uneducated and did not know how to write and read in English. In the income affidavit, she also claimed that she was a housewife with no monthly income and was dependent upon her parents. Yet she claimed monthly expenditure of Rs 48,782/- with monthly rent of Rs 15,000/- per month. She also mentioned in her income affidavit that she did not hold any real estate assets and had no immovable properties in her own name or even in joint names. She also claimed that she had no financial asset in the form of bank accounts. It was submitted in the application that the averments in the income affidavit were in complete contradiction to her written statement filed in capacity of defendant no. 4 in Civil Suit No. CS SCJ 325/2017 titled as Savita Khatri Vs Rahul Chopra & Ors. pending in the Court of Ld. SCJ-cum-RC (South), Saket Courts in which she had claimed that she had purchased a three bedroom Flat no. 8, 3rd Floor, measuring 150 sq. yds. in E-25, Paryavaran Complex, Nag Complex, IGNOU Road, New Delhi on 20.08.2016 on payment of consideration amount of Rs 15 Lacs paid by four cheques dated 25.07.2016 and 20.08.2016 drawn from her HDFC Bank Account. It was also submitted in the application u/s 340 Cr.P.C. that the address provided by the respondent in her DV Act case i.e. Flat No. 8, E-51, 3rd Floor, Nag Complex, Paryavaran Complex, Nag Complex, Neb Sarai, Saket, New Delhi was a fictitious address. The appellant also provided a list of ten matters involving the aggrieved.
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4. Arguments on the application u/s 340 Cr.P.C. of the appellant were heard on 09.12.2021. Vide the Impugned Order pronounced on the same day, Ld. Trial Court held as follows :
"It is the case of the applicant that while the aggrieved, in her income affidavit filed in the present case stated that she did not have any immovable property and that she was residing on rent but in the written statement filed by her in the civil suit as mentioned above, she has claimed herself to be the owner of one property in Paryawaran Complex.
As regards the civil suit bearing CS(SCJ) 325/17, the entire file of the same is not before the court. Thus, at this stage, it cannot be concluded as to whether the averments made in income affidavit filed in the present case is false or the statement made in civil suit bearing CS(SCJ) 325/17 is false. Be that as it may, it can also not be ignored that the proceeding u/s 340 CrPC must be initiated only when it is considered to be in the expediency of interest of justice to make the inquiry into the alleged offense. It may be noted that in a case under PWDV Act, income affidavits are required for deciding the quantum of interim maintenance, if any. However, in the present case, till date no interim maintenance has been awarded in favour of the aggrieved. Even otherwise the CA No. 37/2022 Gulvinder Khatri Vs Pooja Adhikari @ Khop Kumari Adhikari 17.11.2022 Pg No. 4 of 8 matter has been settled between the parties who are husband and wife. Thus, in the facts of the present case, I am not satisfied that an inquiry into the alleged offense is in the interest of justice, to be made, accordingly, application u/s 340 CrPC filed by the applicant stands dismissed."
5. Aggrieved with the said Order, present Appeal has been filed u/s 341 Cr.P.C. on various grounds. It is submitted that the Impugned Order was not passed by Ld. Trial Court on 09.12.2021 at 04:00 PM. It was not pronounced in the entire month of December 2021. The e-Courts Services App showed that the next date of hearing was fixed in the said matter for recording statement of the aggrieved only on 03.01.2022. It is submitted that the Order in question was back dated. It is submitted that on 09.12.2021, Ld. MM allowed him to address brief preliminary arguments on his locus but proper opportunity for addressing arguments on merits was not provided. It is further submitted that the certified copy of the written statement of the present respondent in Civil Suit No. 325 of 2017 titled as Savita Khatri Vs Rahul Chopra & Ors. was on record which would show that respondent claimed to have purchased property no. E-25, Paryavaran Complex, Nag Complex, IGNOU Road, New Delhi and had started living there. It is submitted that even though the certified copy of the written statement was placed on record, it was not appreciated by Ld. Trial Court. It is submitted that before Ld. Trial Court, the aggrieved CA No. 37/2022 Gulvinder Khatri Vs Pooja Adhikari @ Khop Kumari Adhikari 17.11.2022 Pg No. 5 of 8 stated by way of affidavit of income that she was dependent upon her parents and held no real estate asset or even a bank account whereas before Ld. SCJ (South) she claimed herself to be the owner of one immovable property in Paryavaran Complex. It is submitted that respondent had already been booked for giving false evidence before the Courts and criminal proceedings were pending against her. A list of eleven matters involving the respondent has also been provided in the appeal which are sub-judice.
6. I have heard detailed arguments on the present revision petition and have perused the records carefully including the Trial Court Record.
7. Ld. Counsel for the respondent argued that the appellant was a stranger to the litigation between respondent (aggrieved in the DV Act case) and her husband and that he was deliberately pressing the application u/s 340 Cr.P.C. to pressurize the respondent as he himself was personally involved in the eleven cases mentioned in the present Appeal.
8. Reliance has been placed by the appellant upon Judgment dated 03.12.2002 of Hon'ble Supreme Court of India in Appeal (Crl.) 556 of 1995 titled as N. Natarajan Vs B. K. Subba Rao, wherein it has been held that in ordinary crimes not adverted to under Section 195 Cr.P.C., if in respect of any offence, law can be set into motion by any citizen of this country, we fail to see how any CA No. 37/2022 Gulvinder Khatri Vs Pooja Adhikari @ Khop Kumari Adhikari 17.11.2022 Pg No. 6 of 8 citizen of this country cannot approach even under Section 340 Cr.P.C.
9. The affidavit of evidence of the respondent (aggrieved in the DV Act case) is dated 27.02.2017. The written statement of the respondent in Civil Suit No. 325/2017 is dated 04.09.2017. In her written statement, she claimed to have purchased the property no. E-25, 3rd Floor from defendant no. 1 Kapil Dev and two others vide GPA dated 20.08.2016 and she also claimed that she started to live in the said property immediately. Veracity of the averments of respondent as defendant no. 4 in her written statement is subject matter of trial in the said civil suit. So far as the DV Act case is concerned, it never came to the stage of trial and it has already got settled. Ld. Trial Court has aptly observed that at this stage, it cannot be concluded as to whether the averment made in income affidavit filed in the DV Act case was false or the statement made in Civil Suit bearing no. CS (SCJ) No. 325/2017 was false.
10. For the purpose of application u/s 340 Cr.P.C., the Court must consider whether it was expedient in the interests of justice that an inquiry should be made into any offence referred to in Clause (b) of sub-section (1) of Section 195, which appeared 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.
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11. Since the DV Act matter did not come to trial and the income affidavit of the respondent has also not even been considered for deciding the prayer of interim maintenance owing to settlement between the parties, a prima facie view that the assertions in the income affidavit are false cannot be taken. Besides, in view of the settlement between the aggrieved and her husband in the DV Act case, the Court does not find it expedient in the interests of justice to proceed u/s 340 Cr.P.C.
12. The impugned Order shows that contents of the written statement in CS No. 325/2017 and all the assertions of the appellant were considered by Ld. Trial Court after hearing him. The Court does not find any merit in the argument that he was not given an opportunity to be heard or that the impugned Order was back dated.
13. In view of above discussion, the Court does not find any ground to interfere with the impugned Order dated 09.12.2021. The present Appeal u/s 341 Cr.P.C. is dismissed.
PRONOUNCED IN OPEN COURT ON THIS 17th DAY OF NOVEMBER 2022 Digitally signed by VRINDA VRINDA KUMARI Date:
KUMARI 2022.11.19 13:57:13 +0000 (Vrinda Kumari) ASJ-02, South District Saket Courts, New Delhi.
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