Delhi District Court
Samrat Singh Nirula vs Gaurav Kalra on 28 April, 2016
IN THE COURT OF SHRI RAJ KUMAR TRIPATHI
ADDL. SESSIONS JUDGE02 : SOUTH EAST
SAKET COURT : NEW DELHI
IN RE: Criminal Appeal No.54/15
ID No. 02406R0298342015
1. Samrat Singh Nirula
S/o Late Satinder Singh Nirula
A258, New Friends Colony,
New Delhi65
2. Manrich Singh Narang
S/o Late Manrich Singh Narang,
B60, Friends Colony West,
New Delhi65
. . . . Appellant No.1 and 2
Through: Shri Vikas Pahwa,
Senior Advocate with
Shri Abhishek Dhingra,
Advocate.
versus
Gaurav Kalra
S/o Late Subhash Kalra
R/o D302, Nagarjuna Apartments,
Mayur Kunj,
New Delhi 96 . . . . Respondent
Through:
Shri Manohar Malik,
Advocate
__________________________________________________________
Date of Institution : 17.09.2015
Date when arguments were heard : 04.04.2016
Date of Judgment : 28.04.2016
CA No.54/15 Page 1 of 11
JUDGMENT :
1. Challenge in the present Criminal Appeal filed by appellants under Section 341 read with Section 340 of The Code of Criminal Procedure, 1973 (in short "Cr.P.C.") is to the order dated 16.04.15 passed by learned Additional Chief Metropolitan Magistrate (in short "ACMM"), South East District, Saket Courts, New Delhi in the matter of Gaurav Kalra Vs. Samrat Sigh Nirula and Others.
2. Application filed by appellants under Section 340 Cr.P.C. read with section 195 Cr.P.C. for seeking preliminary inquiry and registration of complaint against respondent was dismissed by learned ACMM on 16.04.15.
3. Brief facts as mentioned by appellants in their application under section 340 Cr.P.C. are that respondent Gaurav Kalra and his wife made false complaint under Section 200 Cr.P.C. before the court of learned ACMM on the basis of forged documents against appellants and their family members. They alleged that respondent Gaurav Kalra succeeded in misrepresenting the facts before learned trial court in getting the case FIR No.12/15 registered against them at Police Station - New Friends Colony. They further alleged that respondent fraudulently induced the appellants and their family members to invest in two plots of land CA No.54/15 Page 2 of 11 situated at village Karanki and village Tolni, both in Tehsil Sohana, District Gurgaon, Haryana. Respondent is alleged to have produced a lady who impersonated as Smt. Raj Bala, Director of M/s Golden Kist Developers Private Limited and owner of the said plots. They further alleged that respondent forged the Agreement to Sell dated 06.05.13 between Raj Bala and applicant, an Undertaking dated 06.05.13 executed by Raj Bala, MOU dated 24.05.13 between the applicants and complainant Priya Kalra, MOU dated 03.06.14 between Smt. Surender Kaur, Smt. Jitender Kaur Narang and respondent Gaurav Kalra. Appellants stated that believing the respondent and his wife, they invested Rs.1.20 Crores in the said land. Thereafter, they waited for a year and when nothing happened, they suspected authenticity of the transactions. On inquiry, they found that the land was owned by Smt. Raj Bala, who was an NRI and residing in Singapore. Appellants prayed to take cognizance of the offence under Section 193/195/196/199/200/209/211 of The Indian Penal Code (in short "IPC") against respondent and his wife.
4. Feeling aggrieved by the impugned order dated 16.04.15 passed by learned ACMM, appellants have preferred the present appeal.
5. On notice, respondent appeared through his counsel to CA No.54/15 Page 3 of 11 contest the appeal. Respondent also filed written reply to the appeal of appellants.
6. I have heard the submissions advanced by Shri Vikas Pahwa, learned senior counsel for appellants and Shri Manohar Malik, learned counsel for respondent.
7. It was submitted by learned senior counsel for appellants that the impugned order passed by learned ACMM is perverse and illegal. He submitted that learned ACMM has not appreciated and rather overlooked the fact that a complaint under section 200 Cr.P.C. read with section 156 (3) Cr.P.C. has no bearing on the application under section 340 Cr.P.C. as the offences mentioned in Section 195 (1) (b) Cr.P.C. stand independently and can only be prosecuted by the procedure laid down in Section 340 Cr.P.C. He further argued that learned Magistrate did not appreciate that respondent has not committed just one set of offences under section 384, 385, 387, 389, 406, 419, 420, 467, 468, 471, 474, 504, 506 and 120B IPC but also committed another set of offences as mentioned in section 195 (1) (b) Cr.P.C. which are against the administration of public justice and defrauded the court of learned ACMM by leading false averments and forged documents. He further submitted that learned ACMM failed to appreciate the scope of section 340 Cr.P.C. which lays down a CA No.54/15 Page 4 of 11 separate procedure for the offences mentioned under section 195 (1) (b) Cr.P.C. by conflating it with the previous complaint filed by appellants under section 200 Cr.P.C. He further argued that impugned order reeks of nonapplication of mind and even contrary to interest of justice. He submitted that despite being a strong prima facie case against the respondent disclosing commission of offences referred to in section section 195 (1) (b) Cr.P.C., learned ACMM did not even take cognizance of the same and simply dismissed the application of appellants on erroneous ground. He further submitted that learned ACMM failed to appreciate that upon examination of the documents by a Forensic and Handwriting Expert, the report submitted by him clearly opines that signatures of appellants and their mothers on those documents have not been authored by them. He further submitted that respondent is a salaried person and upon inquiry, appellants have found that he had disclosed his total income to be Rs.46 Lacs approximately during the Assessment Year 201314 and Rs. 45 Lacs income during the Assessment Year 201415. The respondent has not disclosed the cash amount of Rs.10 Crores in his books of account. He further submitted that learned ACMM failed to appreciate that MOU dated 03.06.14 is a fabricated document as Smt. Jatinder Kaur Narang was consulting doctors CA No.54/15 Page 5 of 11 during May, 2014 and was hospitalized for severe pneumonia from 28.05.14 to 06.06.14 and thus, she could not have executed the purported MOU. He submitted that learned ACMM erred in considering that the grounds raised by the appellants in their application under section 340 read with section 195 Cr.P.C. against the respondent are similar grounds raised by them in their complaint under Section 200 Cr.P.C. He submitted that the order passed by learned ACMM is not sustainable in the eyes of law. It was prayed by learned senior counsel for appellants to set aside the order dated 16.04.15 passed by learned ACMM to meet the ends of justice. In support of his submissions, learned senior counsel relied upon the judgments titled as R.K. Kapoor Vs. Pratap Singh Kairon, AIR 1966 ALL 66 and Pritish Vs. State of Maharashtra, (2002) 1 SCC 253.
8. Per contra, it was submitted by learned counsel for respondent that the appellants have filed the present appeal with ulterior motives of harassing the respondent and his family members and to put pressure on them with an intention of forcing the respondent to stop pursuing their claim and case against them. He submitted that appellants and their family members have been successful in conspiring and cheating the respondent in illegally extracting a huge sum of Rs.10 Crores by forging and fabricating CA No.54/15 Page 6 of 11 several documents. They used the forged and fabricated documents to cheat the respondent. He further submitted that appellants have filed the present appeal to create a false evidence by making a false and concocted story through fabricated documents. Respondent denied the allegations as levelled by appellants in their application. He submitted that learned ACMM has rightly dismissed the application of appellants by passing reasoned order. He submitted that there is no infirmity or illegality in the order passed by learned ACMM and the said order does not call for any interference by the court.
9. I have considered the rival submissions of both the parties and perused the material on record.
10. Relevant portion of the impugned order is reproduced hereunder for ready reference: "According to the applicants, the complainants have filed the false complaint on the basis of forged documents and have succeeded in getting the order u/s 156 (3) Cr.P.C for registration of FIR against the applicants.
Counsel for applicants submitted during arguments that applicants have also filed a criminal complaint u/s 200 Cr.PC against the CA No.54/15 Page 7 of 11 complainant and this court has called an Action Taken Report from SHO concerned.
Considering the averments made in the application I am of the considered view that when the applicants have already filed a criminal complaint u/s 200 Cr.P.C against the complainants raising similar grounds therefore it is not expedient in the interest of justice to make a complaint u/s 340 Cr.P.C at this stage.
It will only be clear on the completion of the investigation in FIR No. 12/15, PS NFC or at the time of the final disposal of the matter whether the complainants have filed a false complaint on the basis of forged documents in the court. The rulings relied upon by the Ld. Counsel for applicants are not applicable to the facts of the present case particularly when the applicants have already filed a criminal complaint. Hence application u/s 340 Cr.P.C is dismissed."
11. In the case of Punjab Tractors Ltd vs. International Tractors Ltd. and Others 167 (2010) DLT (490) it was held by CA No.54/15 Page 8 of 11 Hon'ble High Court of Delhi that 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. It is well 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 been 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 observed that in criminal prosecution there is wastage of public funds and time of courts. 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.
12. Admittedly, respondent filed complaint under section 200 Cr.P.C. alongwith an application u/s 156 (3) Cr.P.C. against the appellants and their family members. On the application of respondent, learned ACMM directed the police to register the FIR and investigate the matter. Pursuant to the directions of the court, FIR No.12/15 has already been registered against appellants. In CA No.54/15 Page 9 of 11 the complaint filed under section 200 Cr.P.C. by respondent, appellants filed an application under section 340 Cr.P.C. and prayed for taking cognizance of offence as the respondent had filed the complaint on the basis of forged and fabricated documents. Appellants are also reported to have filed complaint under section 200 Cr.P.C. against the respondent and his family members. The said complaint is reported to be pending before the court of learned ACMM in which appellants have been given liberty to lead presummoning evidence.
13. On the complaint of respondent, FIR is already registered. Matter is being investigated by the police. Respondent and appellants both are levelling allegations against each other. In the complaint filed by appellants under section 200 Cr.P.C., it is alleged that the respondent and his family members have cheated them on the basis of forged and fabricated documents.
14. It is not mandatory for the Magistrate to take cognizance of the offence in each and every matter whenever commission of offence during the court proceedings is alleged by any party. The Magistrate is to enquire and take cognizance of the offence when the offence is against the public justice. In the case in hand, both the parties are litigating against each other at different forums. They have levelled allegations and counter allegations against CA No.54/15 Page 10 of 11 each other. Whether the documents of respondent are forged and fabricated is a matter of investigation in case FIR No. 12/15 Police Station New Friends Colony. The appellants can give their version to the police which is investigating the case. Moreover, the appellants have already filed complaint before the court of learned ACMM which is pending disposal. The powers and procedure as prescribed under section 340 Cr.P.C. cannot be exercised to satisfy the private grudge of the litigants.
15. For the reasons discussed above, this court is of the considered view that learned ACMM has rightly dismissed the application of appellants under section 340 Cr.P.C. I do not find any apparent error or illegality in the impugned order passed by learned ACMM. The appeal preferred by appellant deserves to be dismissed. It is ordered accordingly.
16. A true copy of judgment along with TCR be sent back to learned trial court concerned. Appeal file be consigned to record room.
Announced in the open (RAJ KUMAR TRIPATHI)
court today i.e. 28.04.2016 Addl. Sessions Judge02
SouthEast, Saket Courts, New Delhi
CA No.54/15 Page 11 of 11