Delhi District Court
Vide This Order I Shall Decide ... vs Indrani Sharma Page 1 Of 9 on 21 November, 2014
IN THE COURT OF SH. LALIT KUMAR:
ADDITIONAL DISTRICT JUDGE 01 SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CS 189/2013
Priyanka
Versus
Indrani Sharma
ORDER:
21.11.2014
1. Vide this Order I shall decide application under Section 340 Cr.P.C. Moved on behalf of the plaintiff. It is stated that on 14.08.2013, the Counsel for the defendant issued a communication to the Counsel of plaintiff. The alleged communication dated 14.08.2013 is issued by Shri Mandeep Singh Vinaik. Adv. who is not the counsel for defendant at all, the Vakaltnama on record is of Sh. Dinesh Monga, Adv. for defendant and Mr. Vinaik has not even signed on that. Further this communication was issued to Sh. Amit Anand Adv. at Chamber no. 601, Tis hazari Court, whereas the Counsel for plaintiff is Sh. Vipin Verma, Chamber no. K131, Tis hazari. The defendant is trying to play fraud upon the Court by misrepresenting and fabricating documents such as said letter dated 14.08.2013. That defendant is liable to be prosecuted for deliberately misguiding the Court and the plaintif. Sh. Dinesh Monga, Adv. who himself placed on record the said fabricated and CS - 189/2013 Priyanka Vs. Indrani Sharma Page 1 of 9 manipulated communication dated 14.08.2013 as an evidence to procure an Order of extension of time for filing written staement. In the circumstances, the acts of Sh. Dinesh Monga, Adv and the defendant herself are covered under the provision of Section 340 Cr.P.C. The appropriate legal proceedings may be initiated against Sh. Dinesh Monga, Adv. for the criminal offense of Perjury. It is further submitted that as per the admission of defendant, after service of summons, they issued communication on 14.08.2013. The application under reply was admittedly prepared and filed on 16.11.2013. In case the date of service of summons is reckoned even from 14.08.2013 and till date the Written Statement has not been filed, hence the maximum period provided by CPC for filing a Written Statement has already been expired and now the defendant is debarred as per provisions of CPC from filing written statement which in effect is as if the defense has already been struck off. It is further submitted that the alleged medical prescription appears to be false and fabricated as in absence of an "X ray" it cannot be established even by a medical doctor that the defendant suffered a hairline fracture as alleged and that the medical documents were not issued by an Orthopedic doctor as required in case of fracture even hairline. The defendant has also not given the details that what kind of accident she met with, no MLC has not been filed on record. The place and kind of accident is also not mentioned. The alleged medical advice dated 16.10.2013 shows a rest of 2 days only. Further the advice dated 24.10.2013 refers to only a crape bandage and balm and also report active for movement. All this point towards the fact that the defendant has created a false story of fracture to misguide the Hon'ble Court. The alleged medical documents are not in proper CS - 189/2013 Priyanka Vs. Indrani Sharma Page 2 of 9 shape and do not have any seal of the doctor. It is further stated in para 3 of the application that even on 16.11.2013 the treatment of defendant's fracture was still going on, whereas the last alleged medical advice is dated 24.10.2013, which does not refer or sugget any review period. The application further failed to show if the defendant was in such an indisposed condition that she even could not finalize the written statement already prepared by her counsel then how the defendant could deliver the alleged medical to her counsel if she could have deliver the medical document then certainly the defendant could have finalize and signed the written statement. In fact, the story adopted by the defendant is concocted story far from the truth and that the defendant is trying to colour to her illegal acts. It is therefore prayed that strict action / proceedings may be initiated against the defendant for committing perjury.
2. In reply to the said application, the defendant has stated that the defendant had availed her remedy which is available in law, and shown sufficient cause for not filing the written statement within time. However, such objection of the plaintiff is nothing but just being hypertechnical in nature. It is admitted to the extent that the communication dated 14.08.2013 was issued by Sh. Mandeep Singh, Vinaik, Adv. however it is emphatically denied that Sh. Mandeep Singh Vinaik is not the counsel for defendant at all. It is further submitted that Sh. Dinesh Monga, Adv. and Sh. Mandeep Singh Vinaik, Adv. are fellow associates and are operating together and the said fact is also within the knowledge of the Counsel of the plaintiff, as the present suit is the creation and brain child of the husband of the defendant and his counsel Sh. Sanjay CS - 189/2013 Priyanka Vs. Indrani Sharma Page 3 of 9 Aggarwal, Adv. It is further submitted that there was no occasion for the Counsel of the defendant to supply advance copy of the written statement to the plaintiff as the same was never finalized by the defendant due to her accident. The said averment was also mentioned in the application, however the Counsel of the plaintiff in his haste to file an application u/S. 340 Cr.P.C. against the Counsel for the defendant had lost sight of the said averment. The presence of mind of the plaintiff's Counsel is clearly reflected from the fact that the medical prescriptions of a reputed hospital is appearing to be false and fabricated to him. The defendant reserves her right to produce the "X ray" before this Court at appropriate stage. The plaintiff is trying to assume the role of medical professional by making vague and blurred averments on hypothetical and imaginary assumptions. It is emphatically denied that the defendant has not filed her written statement to cause inordinate delay to the trial of the present case. Therefore, it is prayed that the application of the plaintiff may be dismissed with exemplary costs against the plaintiff in favour of the defendant.
3. I have gone through the records and the argument raised before me. The main contention of the applicant/ plaintiff is that the communication dated 14.08.2013 was not written by the present Counsel and it was issued by one Sh. Mandeep Singh Vinaik, Adv. who is not the Counsel for the defendant. It is further argued by the applicant / plaintiff that communication was issued to Sh. Amit Anand, Adv. however, Counsel for defendant is Sh. Vipin Verma. It is alleged that plaintiff has filed false and frivolous document to play fraud upon the Court and the Act of Sh. Dinesh CS - 189/2013 Priyanka Vs. Indrani Sharma Page 4 of 9 Monga, Adv. and the defendant herself are covered under the provisions of 340 Cr.P.C. The second contention of the plaintiff is that the medical prescription placed on the record by the defendant is a false and frivolous document as in absence of an x ray, doctor cannot establish that there is a hairline fracture. The medical prescription has not been issued by a Orthopedic doctor. If defendant met with an accident, no MLC has been filed on record. Defendant argued that Sh. Mandeep Singh Vinaik, Adv. was her Counsel at the time of issuing the communication dated 14.08.2013 . The said communication was issued by Sh. Mandeep Singh Vinaik, Adv. on her instructions only. It is further argued that Sh. Mandeep Singh Vinaik, Adv. and Sh. Dinesh Monga, Adv. are fellow associates and are operating together and it is well within the knowledge of the Counsel. It is argued that the present suit is creation and brain child of the husband of the defendant with whom matrimonial litigation of the defendant is going on. It is argued that the communication sent to Sh. Amit Anand, Adv. under the bonafide belief that he is representing the plaintiff as the legal notice was issued by him before filing the present suit. It is argued that the medical prescription attached with application is from a very reputed hospital i.e. Fortis Hospital. It is argued that xray is with the defendant and she has not filed on record as the prescription was in itself sufficient to prove that there was a hairline fracture as per report of the doctor and she was under
treatment of the hospital.
4. The bare perusal of Section 340 Cr.P.C. shows that "when upon an application made to it in that behalf or otherwise, any Court is of opinion that it is expedient in the interest of justice that an inquiry CS - 189/2013 Priyanka Vs. Indrani Sharma Page 5 of 9 should be made into any offence referred to in clause (b) of sub section (1) of Section 195 of Cr.P.C. 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, record a finding to that effect, made a complaint thereof in writing, send it to a Magistrate of the First Class having jurisdiction. Thus the power under Section 340 Cr.P.C. r/w Section 195 IPC can be exercised only where someone fabricates false evidence or gives false evidence.
The core of the section is 'inquiry should be made into any offence', 'appears to have been committed in or relation to a proceeding in the Court' and ' in respect of a document produced or given in evidence in proceeding in that Court'. In any of the case, the Court may conduct a preliminary inquiry."
5. In Iqbal Singh Marwah Vs. Meenakshi Marwah, 2005(4) SCC 370 it is held by the Hon'ble Supreme Court that "33. ............Section 195(1)(b)(II) Cr.P.c. would be attracted only when the offences enumerated in the said provision, have been committed with respect to the document, after it has been produced or given in evidence in a proceeding in any court i.e. during the time when the document was in custodia legis."
6. In Punjab Tractors Limited Vs. Unternational Tractors Ltd. & Ors. 167 (2010) DLT 490 it is held that "The sole purpose of this litigation is on the personal grudge between the plaintiff and defendant. The applicant has adopted this process of Court through this vexatious and CS - 189/2013 Priyanka Vs. Indrani Sharma Page 6 of 9 frivolous application on failing other alternative remedies. The Hon'ble High Court of Delhi taken the following view as under :
"18. In my opinion, an application u/S. 340 of Cr.P.C. Ought to be normally considered at the time of final decision of the case only and not at the interim stage as the defendants / applicant have pressed in the present case. It is the settled legal position that the said provision cannot be resorted to, to satisfy a private grudge of the litigant. In fact the very genesis of this provision is to prevent complaints being filed of offences having being committed in relation to the Court proceedings; it was felt that if such complaints are permitted to be filed, the same may be used to force the other party into giving up its claim / defence or to dissuade witnesses from appearing before the Courts under threat of criminal prosecution. It was held as far back in Rewashanker Moolchand v. Empror, AIR 1940 Nagpur 72 that proceedings u/S. 340 Cr.P.C. should not be resorted to when the criminal case is calculated to hamper fair trial of issue in the civil Court before which the matter would probably go on for longer. This Court also in M/s. Jindal Ployester Ltd. V. Rahul Jaura, 124 (2005) DLT 613 and in Kuldeep Kapoor V. Susanta Sengupta, 126 (2006) DLT 149 has held that applications u/S 340 of the Cr.P.C. Should be dealt with at the final stage only and not at the interim stage. I also find a consistency of view in this regard in the other High Courts. The law is that a prosecution for perjury should not be ordered by the Court before the close of the proceedings in the case in which false evidence is given. It is highly wrong for a Court to take action under the said provision against a witness or a party for giving false evidence when trial is underway."CS - 189/2013 Priyanka Vs. Indrani Sharma Page 7 of 9
7. From the above, it follows that there are two conditions on fulfilment of which a complaint can be filed against a person who has given a false affidavit or evidence in a proceeding before a Court. The first condition being that a person has given a false affidavit in a proceeding before the Court and, secondly, in he opinion of the Court it is expedient in the interest of justice to make a enquiry against such a person in relation to the offence committed by him.
8. In the present suit also, the documents are allegedly forged before filing them in the Court. Perusal of the file reveals that Sh. Mandeep Singh Vinaik, Adv. was her Counsel at the time of issuing the communication dated 14.08.2013 . The said communication was issued by Sh. Mandeep Singh Vinaik, Adv. on her instructions only. The alleged forged communication written by the Counsel Sh. Mandeep Singh Vinaik cannot construe an offence in absence of any averments on behalf of the said Sh. Mandeep Singh Vinaik. Defendant has a right to question about the factum of the alleged fabricated notice at the time of evidence also. Further, the communication sent to Sh. Amit Anand, Adv. was under the bonafide belief that he is representing the plaintiff as the legal notice was issued by him before filing the present suit. It is a settled legal position that a person can change lawyer before filing of the suit or during the pendency of the suit also. Further, the medical prescription placed on the record is from a reputed hospital in the medical field. The prescription was in itself sufficient to prove that there was a hairline fracture and it also established that she was under the treatment of the hospital. The alleged fabricated prescription cannot be said a forged one in CS - 189/2013 Priyanka Vs. Indrani Sharma Page 8 of 9 absence of the creator of the same. It cannot be only loss sight of that in criminal prosecution there is waste of public funds and time of Courts. Since it is a settled preposition of law that in every case of perjury the Court would not mechanically take cognizance or direct prosecution. Prosecution should be ordered only when it is considered expedient and in the interest of justice to punish the delinquent. Every incorrect or false statement does not make it incumbent on the Court to order prosecution.
9. Therefore, in view of the aforesaid discussion and the facts and circumstances of the present case, no action u/S. 340 Cr.P.C. warranted in the present case. Consequently, the application u/S. 340 Cr.P.C. filed by the plaintiff is dismissed and accordingly disposed off.
Announced in the open (LALIT KUMAR)
on 21.11.2014 Additional District Judge 01(SE)
Saket Courts, New Delhi.
CS - 189/2013 Priyanka Vs. Indrani Sharma Page 9 of 9
CS - 189/2013
Priyanka Vs. Indrani Sharma
21.11.2014
Present : None
Vide separate Order, the application u/S. 340 Cr.P.C. filed by the plaintiff is dismissed and accordingly disposed off.
Put up for framing of issues on 23.12.2014.
( LALIT KUMAR ) ADJ1(South East) Saket Courts New Delhi/21.11.2014 CS - 189/2013 Priyanka Vs. Indrani Sharma Page 10 of 9