Delhi District Court
Amit Kumar Verma vs Pawan Kumar on 8 January, 2024
Sh. Amit Kumar Verma Vs. Sh. Pawan Kumar
IN THE COURT OF SH. ALOK SHUKLA,
ADDL. DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
(since transferred vide Order no. 50/D3/Gaz.IA/DHC/2023 dt. 14.12.2023)
CNR No.:- DLCT01-012169-2022
MCA DJ No.:- 36/2022
MCA No. :- 05/2022
IN THE MATTER OF :-
SH. AMIT KUMAR VERMA,
S/O PRABHU NATH VERMA
R/O 871, 4 TH FLOOR, B-BLOCK,
STREET NO. 16, PARVATIYA ANCHAL,
NEAR CABLE GODAM, SANT NAGAR,
BURARI, DELHI -110084 ....
Appellant
Versus
SH. PAWAN KUMAR
S/O SH. SUNDER SINGH,
R/O 871, UPPER GROUND FLOOR,
B-BLOCK, STREET NO. 16, PARVATIYA ANCHAL,
NEAR CABLE GODAM, SANT NAGAR,
BURARI, DELHI- 110084
....Respondent
APPEAL UNDER SECTION 341 OF THE CODE OF CRIMINAL PROCEDURE AGAINST THE ORDER DATED 04.06.2022 PASSED BY MS. KIRANDEEP KAUR, CIVIL JUDGE -05, CENTRAL DISTRICT, TIS HAZARI COURTS, NEW DELHI IN MISC. SCJ NO.
100/2020 Date of institution of the Appeal : 26.08.2022 Date on which Judgment was reserved : 18.11.2023 Date of Judgment : 08.01.2024 MCA DJ No.:- 36/2022 Page 1 of 16 Sh. Amit Kumar Verma Vs. Sh. Pawan Kumar ::- J U D G M E N T -::
1. The appellant filed an application under section 340 Cr.P.C against the Respondent before the Ld. trial Court. Respondent who plaintiff before the Ld. Trial Court filed a suit for permanent injunction against the Defendants, which was later on dismissed as withdrawn. Appellants and respondents are respectively referred in this order according to the original status before the Ld. Trial Court. Defendant/Appellant filed the application under Section 340 Cr.P.C. against the plaintiff/Respondent, which was dismissed by the Ld. Trial Court vide order dated 04.06.2022, against which the Appellant has preferred the present Appeal.
2. Succinctly, the case of the Appellant as per the Application filed under section 340 Cr.P.C. before the Ld. Trial Court was that the plaintiff/respondent has filed the suit for permanent injunction against defendants by concealing the truth and misleading the Court to solve his ulterior motive and the Respondent is responsible for the losses given to the defendants and the Court. It was urged in the application that the plaintiff/respondent concealed the material facts and information from the Court which, was in the actual and constructive knowledge of the plaintiff. As summarized by the Ld. Trial Court in the impugned order, the Appellant contended that the plaintiff has concealed the following material facts:-
(i) The plaintiff is alleging that he is not being allowed to visit the roof for inspection of water tanks and dish antenna for the last two years but the answering defendant has annexed the recent MCA DJ No.:- 36/2022 Page 2 of 16 Sh. Amit Kumar Verma Vs. Sh. Pawan Kumar photograph of the visit of plaintiff and his wife on the roof top on 22.09.2019.
(ii) The plaintiff is alleging that he is not being allowed to park his vehicle in the common parking at the ground floor but the answering defendant has annexed the recent photograph of the car parking in which three cars are seen parked by the plaintiff on 22.09.2019. Moreover, the plaintiff is the owner of only one car.
(iii) The plaintiff is alleging that the A.C. installed by answering defendant to be removed but this Hon'ble Court can ask the defendant no. 1, the builder about the place of A.C. to be installed, moreover, the power points are given in the shaft itself and the water tank installed by the plaintiff is against the bye-laws. The photograph of the said shaft is annexed with the written statement. It is, therefore, most respectfully prayed that the criminal proceedings be initiated against the plaintiff and the application u\s 340 CrPC read with Section 195 CrPC be taken into consideration and an FIR be ordered to be registered against the plaintiff for not disclosing the true facts and coming to this Hon'ble Court with unclean hands.
3. Respondent/Plaintiff filed reply to the Application filed by the Appellant/Defendant under Section 340 Cr.P.C. stating as follows:
MCA DJ No.:- 36/2022 Page 3 of 16Sh. Amit Kumar Verma Vs. Sh. Pawan Kumar a. By way of filing this application, defendant no. 2 is trying to take benefit of his own wrong as he has caused many obstructions in living by the plaintiff in his home and later taking photographs wrongly is misusing the same to mislead this Hon'ble Court.
b. Plaintiff has not made any statement on oath which is false and therefore plaintiff in no way committed an offence punishable u/s 340 read with 195 Cr.PC.
c. Since the defendant no. 2 himself has mislead this Hon'ble Court by making misleading statements on oath, plaintiff reserves his right to file u/s 340 CrPC.
d. In response to the contents of para no. 3a of the application it is submitted that as a matter of fact plaintiff was not allowed to check his water tank as the same was not cleaned by the plaintiff for last two years. Due to this the water of the tank is contaminated mentioned as in para np. 8 of the plaint as previously defendants did not allow to visit the tanki because construction was still going on when plaintiff shifted there and later defendant no. 2 did not allow the plaintiff from visiting upto tanki saying that only he has the roof right and he will not allow the plaintiff there. Later on, on 22.09.2019 the defendant no. 2 strategically himself called the plaintiff at the roof and when MCA DJ No.:- 36/2022 Page 4 of 16 Sh. Amit Kumar Verma Vs. Sh. Pawan Kumar plaintiff and his wife reached there, be intentionally clicked their picture at roof secretly and thereafter defendant no. 2 started abusing the plaintiff and stopped the plaintiff from approaching his water tank installed on the roof top. And later, said defendant no. 2 malafidely misused the said photographs to mislead the Hon'ble Court concealing the actual facts from this Court. Thus, plaintiff has never made any false statements before this Court. Defendant no. 2 has not filed any photograph of a date after 22.09.2019 which shows his malafide.
e. In response to the contents of para no. 3b of the application it is submitted that plaintiff and his brother are occupying the two floors and accordingly, they have been given right to park their own vehicles each which is normal order of the day. But once when the brother-in-law of the plaintiff while visiting the plaintiff's home in urgency and parked his own car for some time, defendant no. 2 clicked the photograph and misused the same for misleading the Court. It is true that defendant no. 2 often did not allow plaintiff to park his car in parking taking one plea or the other.
f. In response to the contents of para no. 3c of the application it is submitted that plaintiff has asked for removal of the AC of the defendant no. 2 from MCA DJ No.:- 36/2022 Page 5 of 16 Sh. Amit Kumar Verma Vs. Sh. Pawan Kumar the shaft as due to water oozing\seeping from AC of the defendant no. 2, wall of the plaintiff is often wet and drenched and is slowly destroying the wall of the plaintiff and in spite of requests by the plaintiff, defendant no. 2 is not stopping water from his AC installed in shaft. Even if defendant no. 2 has installed his AC in shaft, he has no right to destroy others property and thus he is liable to stop water from his AC anyway. Moreover, water tank was additionally installed at the plaintiff's floor by him at his floor as same was not allowed by the defendant no. 2 to be installed at the rooftop. Therefore, in view of aforesaid facts, the application is liable to be dismissed.
4. The applicant/defendant no. 2 has filed the rejoinder wherein it is stated that the plaintiff\non-applicant has approached the court with unclean hands and has deliberately concealed the material facts. Further it is stated that there are contradictions in the plaint, rejoinder to the written statement and reply to the application u/s 340 Cr.PC which are evident in itself and sufficiently establishes that the plaintiff is trying to mislead and cheat the Court by filing a false tale. The applicant has stated that the contradictions in a tabular form:-
Plaint Replication to Reply to appl.
ws\reply to U/s 340
counter claim
That in para 4 That in replication in That thereafter and 5 response to para 4 and in of the plaint 5 of the written contradiction MCA DJ No.:- 36/2022 Page 6 of 16 Sh. Amit Kumar Verma Vs. Sh. Pawan Kumar the plaintiff statement of to the versions states that he defendant no. 1, the put before by was never plaintiff stand taken the plaintiff, he allowed by in para 4 and 5 of the stated in para defendant no. plaint and further 3a of reply to 2 to visit the denied the application terrace and he photographs filed by 340 CrPC that is also not defendant no. 2 as defendant no. allowed to false and fabricated. 2 strategically park his car in The plaintiff further called the the parking. goes to state in para plaintiff on iii of reply to counter 22.09.2019 at claim that he has the roof and never allowed any the clicked the other vehicle to be photograph, parked in the parking which makes it and it is defendant no. clear that the 2 tactic that he parked plaintiff has his friends car in the been placing parking and took the incorrect facts photgraph to portray a before this false story. Court at the first place.
Again in contradiction to his earlier stands, the plaintiff stated in para 3b of the reply wherein he admitted that the car parked in the parking belonged to his brother-in- law which he earlier stated to be belonging to the friend of defendant no. MCA DJ No.:- 36/2022 Page 7 of 16 Sh. Amit Kumar Verma Vs. Sh. Pawan Kumar 2.
5. Ld. Civil Judge dismissed the application filed by the appellant/defendant vide order dated 04.06.2022 observing that there is no impact or effect of the statement of non- applicant/plaintiff upon administration of justice.
6. Being aggrieved by the same, the present appeal has been filed raising the following points for determination:
(i) Ld. Trial Court has failed to compare the cause of action of the present suit and the previous suit filed by the appellant?
(ii) Whether the cause of action of the present suit and the previous suit filed by the appellant were different?
7. Arguments were advanced on behalf of the parties.
GROUNDS URGED IN THE PRESENT APPEAL
8. Being aggrieved by the order dated 04.06.2022, the appellants have filed the present appeal arguing that the Ld. Trial Court has completely ignored the pleas of deliberate, false, dishonest & fraudulent claims & statements, concealment of actual facts, Cheating & Inducement, etc. made by the respondent, which violates the Fundamental Right of Right of Equality before law which states that "The State shall not deny to any person equality before the law or the equal protection of the laws with the territory of India". It is contended that the Ld. Trial Court erred in holding that there is no effect or impact of the MCA DJ No.:- 36/2022 Page 8 of 16 Sh. Amit Kumar Verma Vs. Sh. Pawan Kumar statements made by the Respondent on the administration of justice. The Respondent by deliberate false statements, claims, cheating, misleading tales, concealment of material facts was able to get the order of interim injunction dated 26.07.2021 and as such the administration of justice was effected and impacted. The impugned judgment is passed in ignorance of the observations of the Apex Court in various Judgements wherein it has been held that the filing of false statement, claims, affidavit in a court of law has the tendency of causing obstruction in the due course of justice. It undermines and obstructs free flow of the unsoiled stream of justice and aims at striking a blow at the rule of law. The stream of justice has to be kept clear and pure, and no one can be permitted to take liberties with it by soiling its purity. It has been argued that the appellant was dragged by the respondent in a deliberate false case which consumed his hard earned money as litigation fee, his & his family's valuable time (approx. 3 years of life), affected his & his family's mental peace, affected his and his family's reputation in the society. It is stated that holistic reading of the complete pleadings filed by the Respondent would establish that the Respondent has been lying from the first instance and has been caught in his own lies
9. It has been argued that the Respondent has made false statements in the Plaint and in the Replication/Reply to Counter Claim he had stated that he was never allowed to go to the terrace and had denied the pictures whereas in Reply to 340 CrPC Application he says that the pictures are true but it was wrongly taken by the Defendant. Moreover, the Photograph is showing the date of 22-09-2019 and the false civil suit was filed by the MCA DJ No.:- 36/2022 Page 9 of 16 Sh. Amit Kumar Verma Vs. Sh. Pawan Kumar Respondent in November 2019. The Respondent is making a false statement by stating that he has not visited the Roof top as he has installed the alarm system in this tank and has also changed the overhead water tanks of 750 Ltrs to 1000 ltrs. The Respondent has been caught in his own lies as he has been making contradictory statements. Firstly in Plaint the Respondent stated that he is not allowed to park his car, thereafter in Replication/Reply to Counter-Claim he stated that he has never allowed any other vehicle to be parked in the parking and it is Appellant's tactic that he parked his friends car in the parking and took the photograph to portray a false story, and thereafter he is saying that the car belongs to his brother-in-law. It is as such evident and proved beyond doubt that the Respondent has been consistently making false statements on oath before the Court. It is submitted that the Respondent has been falsely claiming more than 1 parking rights as he has got his rights with respect to only one flat and it is also pertinent to note that there are no points related with the Car Parking mentioned in any of the attached false intentional counter police complaints which were filed by the Respondent but the complaint which was filed against the Respondent on dated 01st July 2019 to the DCP North has mentioned that the Respondent has been engaged in allowing parking of extra cars in the residential parking. The numbers mentioned were: Maruti Swift DL6CK 4500, Maruti Wagon R DL6CN 5083, Hyundai 110 DL4CND 6227. However, Another car known to the Respondent (Santro HR02 Y5972) was left unreported. The Respondent himself dismantled the pipe in which the water from the AC used to go and the shaft area is MCA DJ No.:- 36/2022 Page 10 of 16 Sh. Amit Kumar Verma Vs. Sh. Pawan Kumar meant for the installation of the AC. It is submitted that on 30 th March 2019, 31st March 2019 and then on 01 st April 2019, the Respondent intentionally damaged the drainage system of the Window AC installed in the Flat of the Defendant No. 2, forcefully grabbed the common bathroom of the Parking and declared himself as the owner of the property. This intentional act of damaging the drainage system with the other criminal acts of the Respondent was brought to the notice of the concerned DCP directly on 01st July 2019 by way of a complaint. For making himself safe from legal action, the Respondent has created this false story with a motive to get the AC of the Defendant No. 2 removed from the shaft and save his installation of an extra unauthorised Water Tank in the Shaft. It is also pertinent to note that the Respondent has installed an additional water Tank in this Shaft which is illegal as this shaft is not meant for Installing water tanks. Reliance is placed on the judgment passed by the Hon'ble Supreme Court in S.P .Chengalvaraya Naidu (dead) by LR's Vs. Jagannath (dead) by LR's & Ors. JT 1993 (6) SC 331 case has categorically laid down that a party who suppresses or conceals material facts, with a view to obtain advantage over the opposite side in effect plays a fraud on Court and makes it to pass any order, can be thrown out from the Court at any stage of the proceeding. The judgment of the Apex Court with regard to the throwing away of the case on account of having played the fraud is the law of the land which is followed in subsequent judgments also. Reliance is also placed on the judgment passed by the Hon'ble Supreme Court of India, in M/s Sciemed Overseas Inc vs Boc India Limited & Ors on 11 MCA DJ No.:- 36/2022 Page 11 of 16 Sh. Amit Kumar Verma Vs. Sh. Pawan Kumar January, 2016, upheld the decision made by the High Court imposing cost of Rs. 10 Lakhs on account of false statements made in the Affidavit.
FINDINGS AND CONCLUSION OF THE COURT
10. The Civil suit bearing CS No.3608/2019 filed by the plaintiff/respondent was dismissed as withdrawn. The main point which the Court has to consider in initiating proceedings under Sections 340, 341 and 343 of Cr.P.C is, whether it is expedient in the interests of justice that an inquiry should be made and a complaint filed. The mere fact that there is reason to believe that an offence has been committed is not sufficient to justify a prosecution. In Amarsang Nathaji v. Hardik Harshadbhai Patel , (2017) 1 SCC 113, the Hon'ble Supreme Court observed as under:
5. There are two preconditions for initiating proceedings under Section 340 CrPC:
(i) materials produced before the court must make out a prima facie case for a complaint for the purpose of inquiry into an offence referred to in clause ( b)(i) of sub-section (1) of Section 195 CrPC, and
(ii) it is expedient in the interests of justice that an inquiry should be made into the alleged offence.
11. The object of preliminary inquiry stipulated under Section 340 CrPC is only to determine whether it is expedient, in the interest of justice, to inquire into the offence based on the materials available before the court. In Iqbal Singh Marwah v. Meenakshi Marwah , 2005(2) SCC 549, the Supreme Court observed that in view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission MCA DJ No.:- 36/2022 Page 12 of 16 Sh. Amit Kumar Verma Vs. Sh. Pawan Kumar 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 interests of justice", which also goes on to show the intention of the legislature while framing the section. 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.
12. The Hon'ble Supreme Court in Pritish v. State of Maharashtra, (2002) 1 SCC 253 has held that the procedure of preliminary inquiry envisaged under Section 340 CrPC is not meant to decide the guilt or innocence of the party against whom proceedings are to be taken before the magistrate. The Court held that the scope of such proceeding is confined to see whether, based on the material available, it is expedient in the interest of justice that an inquiry be made.
13. In Sh. Narendra Kumar Srivastava Vs. State of Bihar and Others 2019 AIR (SC) 2675 dealing with this aspect it is held therein that requirement of formation of opinion of Court that it is expedient in the interest of justice that an inquiry should be made, is with an objective that prosecution should be ordered if it is in the larger interest of administration of justice and not to gratify feelings of personal revenge or vindictiveness or to serve the ends of a private party. Court referred to an earlier decision in Santokh Singh vs. Izhar Hussain and Another (1973) 2 SCC 406 MCA DJ No.:- 36/2022 Page 13 of 16 Sh. Amit Kumar Verma Vs. Sh. Pawan Kumar and observed that too frequent prosecutions for such offences tend to defeat its very object. It is only in glaring cases of deliberate falsehood where conviction is highly likely that Court should direct prosecution.
14. In view of the above discussion, it can be inferred that the court may order prosecution in terms of Section 340 CrPC only in the larger interest of the administration of justice and not to gratify the feelings of personal revenge or vindictiveness or to serve the ends of a private party. Keeping in view the language used in Section 340 CrPC, the court is not bound to make a complaint regarding the commission of an offence as the section is conditioned by the words " court is of opinion that it is expedient in the interests of justice" which clearly shows that the legislature has intentionally granted a discretion to the courts while ordering a preliminary inquiry under Section 340 CrPC. Proceedings under Section 340 Cr.PC can be initiated in rarest of rare case and that too when the court consider it in expedient in the interest of justice. In the application filed by the applicant under 340 Cr.P.C., the applicant has stated that the plaintiff has concealed the material facts and information from the Trial Court which was in the actual and constructive knowledge of the plaintiff and plaintiff did not disclose the same. It is stated that plaintiff/Repondent visited the roof top and also parked his vehicles on 22.09.2019 for which the defendant has annexed the photographs along with the written statement. The defendant/Appellant is trying to establish that the plaintiff/Respondent has suppressed the facts that he was visiting MCA DJ No.:- 36/2022 Page 14 of 16 Sh. Amit Kumar Verma Vs. Sh. Pawan Kumar the roof top as well as parking his vehicle as well as vehicle of third parties in the parking area. The plaintiff in his plaint has alleged that the photographs are false. To the contrary, in the reply to the application under Section 340 Cr.PC alleges that the photographs were taken by defendant no. 2 as he has strategically called the plaintiff on 22.09.2019 at the roof and the clicked the photograph. So the applicant states that the plaintiff/non- applicant has taken contradictory pleas.
15. The plaintiff/non-applicant has withdrawn the suit filed by him and the Court has also been informed that the plaintiff/respondent has also left the suit property, which fact has not been disputed by the Ld. Counsel for appellant. The ground pleaded by the applicant for inquiry under Section 340 Cr.PC is the suppression and concealment of material facts before the Trial Court Court. Ld. Trial Court has rightly observed that there is as such no effect or impact of the statement made by the non- applicant/plaintiff upon administration of justice. The grounds urged by the Appellant in the present appeal are more in the form of personal grievances, whereas the court dealing with an application under Section 340 CrPC may order prosecution only in the larger interest of the administration of justice and not to gratify the feelings of personal revenge or vindictiveness or to serve the ends of a private party. The judgments relied upon by the Appellant are not applicable to the facts of the present matter. In these circumstances, I agree with the conclusion arrived at by the Ld. Trial Court that it is not in the expedient in interest of justice to entertain the application under 340 CrPC filed by the MCA DJ No.:- 36/2022 Page 15 of 16 Sh. Amit Kumar Verma Vs. Sh. Pawan Kumar appellant. Accordingly, I do not find any infirmity in the impugned order dated 04.06.2022 passed by the Ld. trial Court. The appeal is accordingly dismissed.
16. In view of the discussions, as adumbrated above, I hereby pass the following:
:: - FINAL ORDER - ::
A. The Miscellaneous Regular Civil Appeal of the appellant is hereby dismissed.
B. No order as to the cost.
17. The copy of this Judgment may kindly be sent forthwith to the Ld. Trial Court alongwith the record of Trial Court.
Appeal file be consigned to record room after due compliance.
Announced in the open court on this 8 th Day of January, 2024.
(ALOK SHUKLA) ADJ-07 (Central), Tis Hazari Courts, Delhi transferred vide order dated 14.12.2023 Presently posted as ASJ-2/Special Judge (NDPS) East District, Karkardooma Court, Delhi/08.01.2024 (This judgment was reserved by the undersigned while posted as ADJ-07, Central District, Tis Hazari Court Delhi and the same has now been pronounced by the undersigned as per directions contained in the Order No. 50/D3/Gaz.IA/DHC/2023 dated 14.12.23) MCA DJ No.:- 36/2022 Page 16 of 16