Delhi District Court
Bhinder Rani vs Smt. Veena Bhatia & Others on 10 November, 2010
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IN THE COURT OF SHRI BRIJESH KUMAR GARG
ADDL. DISTRICT JUDGE, CENTRAL15, DELHI
M29/09
BHINDER RANI APPLICANT
VS.
SMT. VEENA BHATIA & OTHERS
RESPONDENTS
10.11.2010
O R D E R
This order shall dispose off the present application under section 340/344 Cr.P.C. , filed by the applicant / defendant No.1. 2 In the application, it has been stated that the plaintiff filed a suit for recovery bearing suit No. CS230/09, against the applicant and other defendants, as legal heirs of late Sh.Prem Bhatia and, she willfully and deliberately lied before this Court and made false submissions and averments and has categorically stated that late Sh. Prem Bhatia had visited her house, in order to take a loan and she was well acquainted M29/09 page 1 of 11 2 and friendly with late Sh. Prem Bhatia,but, still she failed to recognise late Sh. Prem Bhatia, when his photograph was shown to the plaintiff during her cross examination in the Court.
3 It is further stated that the deposition of the plaintiff was a blatant lie and the plaintiff has concocted a false story and has filed a false affidavit to mislead the Court, only to extort money from the defendant and has committed forgery and, therefore, criminal proceedings be initiated against her under the provisions of Section 340 and 344 Cr.P.C. read with relevant provisions of the I.P.C. 4 Reply to this application has been filed by the plaintiff, wherein, it has been stated that the contents of the application are wrong and the plaintiff is undergoing the treatment of depression and at times she forgets the things and, non identification of deceased late Sh. Prem Bhatia does not mean that the plaintiff had not advanced a loan to him. 5 It is further stated that mere non recognition of the deceased by the plaintiff, in his photograph, does not mean that no money was paid by the plaintiff to the deceased and it does not amount to say that any forgery has been committed by the plaintiff and, therefore, the application be dismissed with heavy costs.
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6 Sh. Vivek Gupta, Adv. for the applicant and sh. Nawal
Singh, Adv. for the respondents have addressed their arguments on the present application. I have carefully gone through the case file and I have given my considered thoughts to the arguments addressed by the ld. Counsels for the parties and before analysing the material on record in the present case, for the purposes of initiating proceedings under Section 340 Cr.P.C. read with Section 195 Cr.P.C., it would be appropriate if the various pronouncements of the Hon'ble Apex Court & the Hon'ble High Courts, on the subject, are discussed first.
7 It has been held by the HON'BLE SUPREME COURT in case titled as CHAJOO RAM VS. RADHEY SHYAMS & ANR, as reported in AIR 1971 SUPREME COURT 1367 as under :
7. The prosecution for perjury should be sanctioned by Courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively M29/09 page 3 of 11 4 curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose.
Prosecution should be ordered when it is considered expedient in the interest of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the Court should be satisfied that there is reasonable foundation for the charge.
8 It has been held by the Hon'ble High Court of Delhi in case titled as JAGJIT KAUR VS. HARJEET SINGH (LT.COL) reported as 2000(1) RCR (Criminal) 747 as under:
4" A bare reading of Section 340 Cr.P.C. would make it clear that power thereunder can be exercised by the Court either suo moto or upon the application made to it in that behalf. Before invoking the provisions of Section 340 of the Code , the Court has to form an opinion that it is expedient in the interest of justice that an enquiry be made into any offence referred to in clause (b) of sub section (1) of Section 195, In Patel Laljibhai Somabhai M29/09 page 4 of 11 5 v. The State of |Gujarat , AIR 1971 SC 1935 , the Apex Court has analysed the purpose of enacting Section 195 (1) (b) and ( c ) and Section 476 of the Code of Criminal Procedure , as under:
"The underlying purpose of enacting Section 195(1)(b) and ( c ) and Selection 476 seems to be to control the temptation on the part of the private parties considering themselves aggrieved by the offences mentioned in those sections to start criminal prosecutions on frivolous , vexatious or insufficient grounds inspired by a revengeful desire to harass or spite their opponents. These offences have been selected for the court's control because of their direct impact on the judicial process. It is the judicial process, in other words, the administration of public justice, which is the direct and immediate object or victim of those offences and it is only by misleading the ultimate object of harming the private party is designed to be realized . As the purity of the proceedings of court is directly sullied by the crime , the Court is considered to be the only partly entitled to consider the desirability of complaining against the guilty party . The private party designed ultimately to be injured through the offence against the administration of public justice is undoubtedly M29/09 page 5 of 11 6 entitled to move the court for persuading it to file the complaint. But such party is deprived of the general right recognized by Section 190 Cr.P.C. Of the aggrieved parties, directly initiating the criminal proceedings. The offences about which the court alone , to the exclusion of the aggrieved private parties is clothed with the right to complain may, therefore, be appropriately considered to be only those offences committed by a party to a proceeding in that Court, the commission of which has reasonably close nexus with the proceedings in that court so that it can, without embarking upon a completely independent and fresh inquiry , satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party"
5. The aforesaid observations of their Lordships will show that the provisions of Section 340 of the Code are intended to provide safeguard against criminal prosecution on insufficient grounds filed against a party by his opponent motivated by a revengeful desire to harass or spite the opponent . It is not the law that every false statement should attract the provisions of Section 340 of the Code. In THOMMAN V. IIND ADDL.SESSIONS JUDGE, M29/09 page 6 of 11 7 ERNAKULAM AND OTHERS, 1994 CRL. L.J. 48 it was observed by Hon'ble Thomas, J. that "
If the Court is to notice every falsehood that is sworn to by parties in Courts there would be very little time for Courts for any serious work other than directing prosecution for perjury . Again, the edge of such weapon would become blunted by indiscriminate use. The gravity of the false statement, the circumstances under which such statement is made , the object of making such statement and its tendency to impede and impair the normal flow of the course of justice are matters for consideration when the court decides on the propriety of instituting a complaint for perjury." In the context reference may also be made t to the following observations of the Supreme Court in Santokh Singh v. Izhar hussain and another, AIR 1973 SC 2190 :
" ... 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 . The court orders prosecution in the larger interest of the administration of justice and not to gravity feelings of personal revenge or M29/09 page 7 of 11 8 vindictiveness or to serve the ends of a private party. Too frequent prosecution for such offences tend to defeat its very object. It is only in glaring cases of deliberate falsehood where conviction is highly likely, that the court should direct prosecution."
9 It is also held by the HON'BLE HIGHT COURT OF DELHI in case titled as PUNJAB TRACTORS LIMITED VS. M/S INTERNATIONAL TRACTORS LTD & ORS as reported in 2009 VIII AD (DELHI) 655 as under :
21 Formation of prima facie opinion that a person charge has intentionally given false evidence is a condition precedent for directing lodging of a complaint. The existence of mens rea or criminal intention behind act complained of will have to be looked into and considered before any action under Section 340 of the Cr.P.C. is recommended . Before setting the criminal law into motion, the court should exercise great care and caution and it must be satisfied that there is reasonable foundation for the charge in respect of which prosecution is directed. No prosecution ought to be ordered unless reasonable probability of conviction is found.
25 . This court in Rawal Singh Vs. Quality Sores AIR 1986 (Delhi)236 in spite of finding a document having been fabricated, yet dismissed the application under M29/09 page 8 of 11 9 Section 340 of the Cr.P.C. Finding it not to be a fit case for recourse to any such action. In my view , the application under Section 340 of the Cr.P.C. At this stage if allowed would give a handle to the defendants against the plaintiff and would give unfair advantage to the defendants over plaintiff in the suit proceedings.
10 It has also been observed by the HON'BLE SUPREME COURT in the case titled as THOMMAN V. IIND ADDL.SESSIONS JUDGE, ERNAKULAM AND OTHERS, reported as 1994 CRL. L.J. 48, as under:
2 "If the Court is to notice every falsehood that is sworn to by parties in Courts there would be very little time for Courts for any serious work other than directing prosecution for perjury . Again, the edge of such weapon would become blunted by indiscriminate use. The gravity of the false statement, the circumstances under which such statement is made , the object of making such statement and its tendency to impede and impair the normal flow of the course of justice are matters for consideration when the court decides on the propriety of instituting a complaint for perjury."
11 It has been observed by the HON'BLE SUPREME COURT in case titled as "JASWINDER SINGH V/S SMT.
M29/09 page 9 of 11 10 PARAMJIT KAUR, as reported in 1986 Crl. L.J. 1398 as under:
"It is a settled principle of law that courts never become tools at the hands of the parties to satisfy private vendetta or to take up cudgels on behalf of one party and punish the other. The primary object to take proceedings under Section 340 of the Code of Criminal Procedure in instituting a complaint for giving false evidence is to curb the evil of perjury and to keep the flow of proceedings in courts unsullied and pure. It is only in a rare case, when the Court comes to the conclusion that if the complaint is filed, conviction is more or less a certainty, that it chooses to become a complainant. In such like contentious issues, When the wife can again indulge in proving that the husband was wrong and she was right, it is not expedient for this Court to enter into the fact and become a complainant at the behest of the husband - petitioner. Thus I am of the considered view that it is not expedient to pursue the matter any further at the instance of the parties."
12 When the facts of the present case and the contents of the application are examined in the light of the above pronouncements, it is observed that the present application has been filed by the applicant only M29/09 page 10 of 11 11 on the grievance that the plaintiff, during his crossexamination before the Court as PW1 in Suit CS No. 230/09, failed to identify the deceased late Prem Bhatia from his photograph and, therefore, had lied before the Court and has concocted a false story.
13 Perusal of the record further shows that the plaintiff had deposed in her examination that deceased late Sh. Prem Bhatia visited her residence only on one occasion for taking a friendly loan. She had further deposed in the court that she came to know about late Sh. Prem Bhatia through her husband, who used to frequently meet each other and had friendly relations. It is further stated by her that she will not be able to identify deceased Late Sh. Prem Bhatia in the photograph, as he had visited her residence only on 6.6.2002 . Perusal of the record shows that the plaintiff was examined before the Court on 14.12.2007 and it has been admitted by this witness that late Sh. Prem Bhatia had visited his house only once on 6.6.2002. During the course of arguments it was also admitted by the counsel for the applicant that the photograph, which was shown to the plaintiff for identification of late Sh. Prem Bhatia during her crossexamination was taken long time ago and, therefore, in the considered opinion of this Court it cannot be said with M29/09 page 11 of 11 12 certainty that the plaintiff had deliberately and willfully concocted a false story. From her deposition, it cannot be said that the plaintiff had deliberately and willfully lied before the Court. From the record it is clear that the present application has been filed by the applicant only to gratify her feeling of revenge and to use the present proceeding as an instrument of oppression and harassment to the plaintiff. 14 In these circumstances and the settled legal position, as observed above, I do not find any merit in the present application for proceeding further against the respondent under the provisions of Section 340 Cr.P.C. read with Section 195 Cr.P.C. Therefore, the present application is,hereby, dismissed. It is ordered accordingly. File be consigned to record room.
ANNOUNCED IN OPEN COURT BRIJESH KUMAR GARG
10.11.2010 ADDL.DISTRICT JUDGE
CENTRAL 15 , DELHI
b
M29/09 page 12 of 11
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M29/09
10.11.2010
Present: None for the parties.
Separate order on the application under Section 340/344 Cr.P.C. has been passed, whereby, the said application has been dismissed. File be consigned to record room.
BRIJESH KUMAR GARG
ADDL.DISTRICT JUDGE
M29/09 page 13 of 11
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CENTRAL15, DELHI
M29/09 page 14 of 11