Delhi District Court
3(Ne) vs The State Of Delhi on 4 May, 2019
IN THE COURT OF ADDITIONAL SESSIONS JUDGE
03(NE), KARKARDOOMA COURTS, DELHI.
PRESIDED BY: LALIT KUMAR
CA No. 12/18
1 Shailendra Saxena
s/o late Sh.S.T.B.Saxena
r/o 1024/2, Shastri Nagar,
Meerut.
2 Meena Saxena
w/o Sh.Shailendra Saxena
r/o 1024/2, Shastri Nagar,
Meerut. Appellants
Versus
1 The State of Delhi.
2 Vinod Sharma
s/o Late Sh.Jai Narayan Sharma
r/o C8/284, Yamuna Vihar,
PS Bhajanpura, Delhi53 Respondents
Date of assignment : 28.04.2018 Date of Arguments : 16.04.2019 Date of Pronouncement : 04.05.2019 CA no.12/18 Shailendra Saxena and anr.Vs State 1/16 Order 1 By the present appeal, the appellants/accused challenge
the impugned judgment and order dt. 05.09.2017 passed in case No.CIS no.216/14, PS Bhajanpura by Ld.CMM on the application u/s 340 Cr.PC moved against appellant no.1/accused by the respondent no.2/complainant Vinod Sharma.
2 The brief facts, which are relevant for deciding the present appeal are that the respondent no.2/complainant Vinod Sharma had filed a complaint u/s 138 N.I.Act against appellant no.1/accused with regard to dishonour of cheque of Rs.9,40,000/. The Ld.Trial Court has completely been erroneous on the facts that selling of a house was the sole consideration of modifying the sentence. The amount of Rs.12,91,213/ was paid immediately at the beginning of appeal itself. The appellant before the appellate court had not given any undertaking to the Court that from the sale proceeds of the house at Rishikesh, Uttrakhand, Rs.12,91,213/ will be paid during the appeal stage. That neither any statement during the hearing of appeal was made or filed nor was recorded by the appellate court to the effect that by selling his house of Rishikesh, Uttrakhand, the appellant no.1/accused will pay the said amount to the respondent no2/complainant. That it is a fair and mandatory requirement in section 340 Cr.PC that a CA no.12/18 Shailendra Saxena and anr.Vs State 2/16 preliminary enquiry ought to be conducted as regards the documents filed or statements alleged made before the Court. That only after holding a proper inquiry, the trial court should have given a proper finding that the statement was a deliberate and false. No proper inquiry is made even no service has been effected on the appellant to make his stand clear that the statement, if any, made before the Appellate Court was 'false'. The stand of the appellant was that no statement was made which invites perjury or could be called as 'false statement' and further the Ld.Trial Court failed to hold or give any finding that it was expedient in the interest of justice to order prosecution of the appellant and his wife u/s 206 and 207 IPC that it is the trite law that every incorrect or false statement does not make it incumbent upon the court to order prosecution, but required the Court to exercise judicial discretion to order prosecution only in the larger interest of the administration. It is patently perversity in the impugned order as there is no clear finding by the Ld.ASJ that appellant has sold his house. The Trial Court has also failed to weigh the magnitude of the injury suffered by the respondent no.2/complainant. The complaint bearing CC no.1596/03 was decided by the Court of Sh.Amit Kumar, the then Ld.MM and the appeal was decided by Sh.R.K.Yadav, the then Ld.ASJ on 11.03.2008, wherein the sentence awarded to appellant no.1 was modified and besides the amount of cheque, appellant no.1 was ordered to pay compensation of Rs.8 lacs. That the appellant CA no.12/18 Shailendra Saxena and anr.Vs State 3/16 no.1/accused and respondent no.2/complainant filed criminal miscellaneous petition u/s 482 Cr.PC in the Hon'ble High Court of Delhi and same was dismissed and the sentence awarded by Ld.Sessions Judge was maintained. That for recovery of compensation awarded, respondent no.2/complainant had seen moving miscellaneous applications for harassing the appellant no.1/accused and application u/s 340 Cr.PC moved against the appellant no.1/accused was one of the sequels of harassment. Thereafter, the appellant came to know about the impugned order on 05.09.2017 which has been passed by the Ld.Court without into the controversy and ignoring the provisions of section 340 Cr.PC and hence the present appeal has been filed.
3 The appellant no.1/accused aggrieved with the judgment/order dt.05.09.2017 of the Ld.Trial Court has preferred the present appeal on following grounds:
(a) The impugned order dt.05.09.2017 has been passed on extraneous facts without going into the allegations preferred by respondent no.2/complainant.
(b) The appellant no.1/accused has made a statement about sale of his house before the Court which is referred to within the order dt.11.03.2008 in criminal appeal no.33/07, but the Ld.Trial Court has referred to no objection by appellant no.1/accused to application of appellant no.2 in mutation proceeding, but this had never been a ground in application u/s CA no.12/18 Shailendra Saxena and anr.Vs State 4/16 340 Cr.PC.
(c) The Ld.Trial Court overlooked the fact that admittedly the house belongs to the mother of appellant who had died and appellant no.1 was not the sole owner of the house and could not have sold the same and thus the question of giving alleged statement to court about sale of house does not arise.
(d) The Ld.Trial Court got misled as no statement of appellant was recorded in Court about sale of house nor appellant gave any application or affidavit to that effect.
(e) There are no allegations against appellant no.2 in application u/s 340 Cr.PC and even she was not accused in case u/s 138 N.I.Act.
(f) There is nothing on record which could be presumed as a statement in writing of accused or any affidavit wherein any such false statement was made or any document of any sort which could be termed as a false statement.
(g) The Ld.Trial Court overlooked the fact that alleged house no.43 was sealed by the police and could not have been sold by appellants unless released from attachment.
(h) The Ld.Trial Court overlooked the fact that appellant no.2 Meena Saxena had moved application about release of home from attachment claiming herself to be the sole owner of the house, which application is still pending.
(I) The direction by the Ld.Trial Court in impugned CA no.12/18 Shailendra Saxena and anr.Vs State 5/16 order for proceeding u/s 421 Cr.PC is illegal without deciding claim of appellant no.2 Meena Saxena about House no.43. The house belonging to wife/appellant no.2 can not be sold for debts or liability of appellant no.1/accused.
(j) Respondent no.2 has got sent all the summons and notice to appellants on their Rishikesh House No.43 knowing well that the said house was sealed by police on 11.06.2008 and since then the appellants are residing in Meerut and no notice or summons were sent to appellants on their Meerut address.
(k) The Ld.Trial Court ignored the provisions of section 340 Cr.PC and misinterpreted the provisions of section 206 IPC and section 207 IPC as property being in police custody there was no question of making any false claim.
4 Alongwith the appeal, appellant has also filed an application under Section 5 of the Limitation Act, 1963 seeking condonation of delay. Notice of the appeal as well as of the application seeking condonation of delay was issued to respondents. Reply has been filed by the respondents and and the Trial Court Record was called for.
5 I have heard the submissions made by Sh.C.S.S.Tomar, Ld.Counsel for appellants/accused and Sh.Zenul Abedeen, Ld.Addl.PP for the State/respondent no.1 and Sh.Satish Verma, Ld.Counsel for respondent no.2. I have also perused the record CA no.12/18 Shailendra Saxena and anr.Vs State 6/16 carefully. Ld.Counsel for appellants has relied upon judgment titled as (1) Alok Ranjan vs CBI and Anr. (2) SB Yadav vs State. On the other hand, Ld.Counsel for respondents has relied upon judgments titled as (1) Chandra Shashi vs Anil Kumar Sharma 1995 (1) SCC 421 (2) Suo motu proceedings against R.Karuppan 2001 (5) SCC 289 (3) Chandrashekhar Kargeti vs State of Uttrakhand 2018 SCC.
6 It is the settled proposition of law that ordinarily, sitting in appeal does not reappreciate the evidence that already appreciated in detail by the Ld.Trial Court for the reason that Trial Court has also an opportunity of observing the conduct and demeanor of the witness. Of course, the same is provided the Trial Court has not committed an error of such an impact that the same was resulted in miscarriage of justice. Reference may be held in judgment of Apex Court in Hussain and Another Vs Union of India and Ashu Vs State of Rajasthan which is dated 19.03.2017 passed in Crl.App. no.509/17.
7 The Ld.Trial Court vide its order dt.05.09.2017, was of the opinion that the appellant no.1/convict had misrepresented before the Ld.Appellate Court that he had to sell his house in order to arrange money for payment of the cheque amount and the said representation is punishable u/s 209 IPC, which CA no.12/18 Shailendra Saxena and anr.Vs State 7/16 provides that whoever fraudulently or dishonestly makes in a court of justice any claim which he knows to be false. The Ld.Trial Court was also of the opinion that the convict made a false claim before the Ld.Appellate Court that he had sold his house in order to arrange money for the payment of cheque amount dishonestly and fraudulently in order to obtain relief from the Ld.Appellate Court and accordingly, application u/s 340 Cr.PC was allowed as the appellant no.1/convict has made a false claim before the Ld.Appellate Court knowing well that he was making a false statement before the Ld.Appellate Court.
8 The application u/s 340 Cr.PC was filed by the respondent no.2/complainant on the ground that the appellant no.1/accused has falsely stated before the Ld.Sessions Judge that in order to arrange the payment of the cheque amount, he had to dispose of his only house in Uttrakhand.
9 It is relevant to mention here that the application u/s 340 Cr.PC has been moved before the Ld.Trial Court and cognizance has also been taken there, whereas the same should have been moved before the Ld.Appellate Court, where a false claim has been made that he had sold his house in order to arrange money for the payment of the cheque amount dishonestly and fraudulently in order to obtain relief from the Ld.Appellate Court. Therefore, the application u/s 340 Cr.PC CA no.12/18 Shailendra Saxena and anr.Vs State 8/16 moved before the Ld.Trial Court is not maintainable being beyond jurisdiction. Thus, the order dt.05.09.2017 with respect to allowing the application u/s 340 Cr.PC of the respondent no.2/complainant , is set aside.
10 So far as second part of the order dt.05.09.2017 with regard to offence u/s 206 IPC against the appellant no.1/accused and u/s 207 IPC against his wife Meena Saxena and signing of the affidavit by the appellant no.1/accused is concerned, it is evident from the record that vide order dt.16.02.2013 when a report from SDM and Executive Officer, Municipal Committee Dehradun regarding ownership of property no.43, Advaitanand Marg, Rishikesh was called, an affidavit dt.22.02.2005 was filed wherein the appellant no.1/convict Shailender Saxena and his brothers and sisters deposed that the aforesaid property was owned by their mother Pushplata Saxena who expired and that they are her only legal heirs and they want to transfer the said property in name of Meena Saxena w/o Shailender Saxena.
11 It may be seen that the appellant no.1/convict has preferred an appeal to the order of the conviction on 29.10.07 and affidavit of the appellant no.1/convict Shailender Saxena and his brothers and sisters were dated 22.02.2005, which has been filed much prior to 11.03.2008, on which date order of the Ld.Sessions Court was passed. Therefore, it is not believable CA no.12/18 Shailendra Saxena and anr.Vs State 9/16 that firstly the appellant no.1/convict has made a false claim before the Ld.Appellate court that he had sold his house in order to arrange money for the payment of cheque amount dishonestly and fraudulently in order to obtain relief from Ld.Appellate Court and thereafter, the affidavit of the appellant no.1/convict was filed on 22.02.2005 which is prior to order of Ld.Sessions Court dt.11.03.2008. Thus, it can not be said that prior to making any statement, appellant no.1/convict has given no objection by way of affidavit with an intention to prevent the said property from attachment u/s 421 Cr.PC.
12 Furthermore, the mother of the appellant no.1/accused was the sole owner of the house no.43 , Rishikesh and after the death of mother of appellant no.1/accused, appellant no.2 Meena Saxena got her name mutated in municipal record as owner, to which the other legal heirs of mother gave consent through affidavit. It is evident in the letter dt.08.04.2005 that ownership of this house is mutated in the name of appellant no.2 Meena Saxena and the mutation has been effected on the basis of Will. So far as ownership of house in question is concerned, neither there was any paper before the appellate court at the time of judgment regarding ownership of house nor any claim was made by the respondent no.2/complainant that house no.43 belongs to the appellant no.1/accused nor there was any document of title regarding this house and, therefore, the question about false CA no.12/18 Shailendra Saxena and anr.Vs State 10/16 claim or false statement by appellant no.1/accused regarding selling house no.43 does not arise.
13 Moreover, the respondent no.2/complainant in his application u/s 340 Cr.PC has submitted that the appellant no.1/convict has fraudulently concealed, removed the property to avoid forfeiture in order to avoid the sentence of compensation of Rs.8 lacs, which is an offence u/s 191/192/196/199/200/206/207/207/209/120B/34 IPC.
14 Now the question arises as to whether the statement of appellant no.1/convict given before the Ld.Appellate court comes within definition of "false evidence"? Answer to the said question can be found in section 191 IPC which provides as follows:
Section "191 IPC.
"Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence"
Section 192 reads as under:
Fabricating false evidenceWhoever causes any circumstance to exist or (makes any false entry in any book or record, or electronic record or makes any document or electronic record containing a CA no.12/18 Shailendra Saxena and anr.Vs State 11/16 false statement), intending that such circumstances, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said " to fabricate false evidence".
15 In the present case, there is no whisper in the application u/s 340 Cr.PC about the fact that appellant no.1/accused has fabricated any false evidence at any point of time.
16 Furthermore, it is the settled law that 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.
17 In the case of K.K.Khanna vs M/s Expo Enterprises India, New Delhi reported in 1984 Crl.L.J 1723, it has been held that ' the requirement of law was of fundamental importance and the omission in that regard vitiates the impugned order. Even though prosecution for perjury may be possible but a section 340 of the Code does not permit CA no.12/18 Shailendra Saxena and anr.Vs State 12/16 complaint to be lodged in all those cases and lodging the complaint is permissible only when the court making the complaint is of the positive view that the lodging of the complaint would be expedient in the interest of justice'.
18 Thus, upon a plain reading of sub section (1) of section 340 of the present Code of Criminal Procedure, it is found that the law is well settled on the point that an order for lodging a complaint under section 340 without expressly recording any finding to the effect that it is expedient in the interest of justice that an inquiry should be made into the offence concerned is vitiated and illegal being in breach of the express provisions of section 340 (1) and is liable to be set aside.
19 Furthermore, it is a well settled proposition of law that an offence of conspiracy can not be deemed to have been established on mere suspicion, surmises or inferences which are not supported by cogent or acceptable evidence. Reference is made to the judgment of the Hon'ble Supreme Court in P.Sugathan & Anr (2000) 8 SCC 203. In this case, there is no cogent evidence has been brought on record by the respondent no.2/complainant which can show that appellant no.1/accused in conspiracy with his wife Meena Saxena have intentionally and in a well planned manner gave a false affidavit.
CA no.12/18 Shailendra Saxena and anr.Vs State 13/16 20 So far as the ground taken by the respondent no.2/complainant on the aspect that the appellant no.1/accused had given no objection for mutation of the property in question in favour of his wife with an intention to prevent the said property from attachment u/s 421 Cr.PC is concerned, since appellant no.2/wife of accused Shailendra Saxena being lawful owner in possession of H.No.43 moved an application for releasing her house from attachment, the question to cause wrongful loss to the respondent no.2/complainant by appellant no.1/accused, to cheat and defraud him does not arise and even appellant no.2 Meena Saxena got her name mutated in Municipal record as owner to which the other heirs of mother gave consent through affidavit. Further, the no objection was given by appellant no.1/accused alongwith other legal heirs, there is no question of the accused being dishonest. Therefore, there can not be any question about false claim or false statement by appellant no.1/accused in this regard.
21 It is further the settled law that provisions of section 340 Cr.PC are intended to provide safeguard against criminal prosecution on insufficient grounds filed against party by his opponent motivated by revengeful desire to harass the opponent. It is not the law that every false statement should attract provisions of section 340 Cr.PC. The power u/s 340 Cr.PC should be used with care and due consideration. As a general CA no.12/18 Shailendra Saxena and anr.Vs State 14/16 rule, the courts consider it expedient in the interest of justice to initiate prosecutions as contemplated by section 340 Cr.PC only if there is a reasonable foundation for the charge and there is a reasonable likelihood of conviction.
22 Further, in case titled as Santokh Singh Vs Izhar 1973 Cri.L.J 1176, it has been observed that :
"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".
23 From the plain reading of sub section (1) of section 340 Cr.PC , it is found that the law is well settled on the point that an order for loding a complaint u/s 340 Cr.PC without expressly recording any finding to the effect that it is expedient in the interest of justice that an Inquiry should be made into the offence concerned is vitiated and illegal being in breach of express provisions of section 340(1) and is liable to be set aside.
24 Further in Pritish V State of Maharashtra, AIR 2002 SC 236, it has been held that preliminary inquiry under section 340 Cr.PC of the Court is not peremptory. Court is not required to afford any opportunity of hearing to the person against whom CA no.12/18 Shailendra Saxena and anr.Vs State 15/16 it might filed a complaint before Magistrate for initiating prosecution proceedings".
25 So far as the judgment as relied upon by the respondents is concerned, the aforesaid case laws hold the correct proposition of law , but distinguished from the facts and circumstances of the case and, therefore these judgments do not help the respondents.
26 Keeping in view the facts and circumstances of the case, court is of the considered opinion that there was no material against the appellant and, therefore, appeal of the appellants is allowed and order of the Ld.Trial Court dt.05.09.2017 on the application u/s 340 Cr.PC is set aside. Trial Court Record is sent back alongwith copy of judgment.
File be consigned to Record Room.
Digitally
signed by
LALIT
LALIT KUMAR
KUMAR Date:
2019.05.04
16:41:02
+0530
ANNOUNCED IN OPEN (LALIT KUMAR)
COURT ON ON 04.05.2019 ASJ03/NE/KKD/DELHI CA no.12/18 Shailendra Saxena and anr.Vs State 16/16 CA no.12/18 Shailendra Saxena and anr.Vs State 17/16