CRLMC No.722/2007 Page 1 of 4 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.M.C. No.722/2007 % Date of Decision : 17.07.2008 Shri B.N.Gupta ….… Petitioner Through: Mr.B.N. Gupta, petitioner in person. Versus Smt. Kamlesh Gupta ......... Respondent Through : Mr.Subodh K. Pathak, Advocate for the respondent. CORAM :- * HON’BLE MR. JUSTICE ANIL KUMAR 1. Whether reporters of Local papers may YES be allowed to see the judgment? 2. To be referred to the reporter or not? NO 3. Whether the judgment should be reported NO in the Digest? ANIL KUMAR, J. * The petitioner impugns the order dated 18th August, 2006 by Additional District & Sessions Judge dismissing the appeal filed by the petitioner against the order dated 4th August, 2005 wherein the application of the petitioner under Section 340 of Criminal Procedure Code was dismissed. A suit for specific performance was filed by respondent No.1 against the father of the petitioner which was dismissed by judgment CRLMC No.722/2007 Page 2 of 4 dated 4th August, 2005. The application filed by the petitioner under Section 340 of the Criminal Procedure Code was also dismissed holding that there were only minor variations between the pleadings and the evidence, which could not be the ground for initiating action under Section 340 of the Criminal Procedure Code. The Civil Judge also noticed that the petitioner had filed a complaint against respondent No.2 which was dismissed in default and the FIR which was registered against him was also disposed off as Shri Ram Karan Gupta, respondent No.2, was untraceable. In cross-examination, the petitioner also admitted that his complaint was dismissed by Shri Rakesh Garg, Metropolitan Magistrate, by order dated 26th March, 1990 being groundless. Taking into consideration the above-said facts and circumstances, the application under Section 340 of the Criminal Procedure Code was dismissed by order dated 4th August, 2005. The appeal filed by the petitioner being RCA No.56/2005 against the order dated 4th August, 2005 was also dismissed, holding that there are only minor variations between the pleadings and the evidence on behalf of respondent No.1 and, therefore, no action should be taken under Section 340 of Criminal Procedure Code. CRLMC No.722/2007 Page 3 of 4 I have heard the petitioner, who appears in person. The petitioner greatly emphasized on the fact that in the pleadings, respondent No.1 had contended that she had entered into an agreement, however, respondent No.2, when he appeared in the witness box contended that the agreement was entered by him. Respondent No.1 had not appeared as a witness in the suit for specific performance filed by her. The petitioner, in the circumstances, contended that the verification in the suit being incorrect, action should be initiated against respondent No.1 under Section 340 of the Criminal Procedure Code. The petitioner also emphasized that respondent No.2 in his deposition deposed that the payment was made to the father of the petitioner through Shri Jai Singh. Shri Jai Singh who also appeared as a witness, PW2, however, in his testimony deposed that the amount was paid by respondent No.2 and not through him. This is not disputed that on similar allegations, the petitioner had filed a criminal complaint, dismissal of which has been admitted by him in his cross-examination. From the evidence and the pleadings, it cannot be conclusively inferred as to which statement made by which of the witnesses or parties is false so as to initiate proceedings under section 340 of Criminal Procedure Code. There are no such variations between the pleadings and the deposition so as to entail action under Section 340 of Criminal Procedure Code. CRLMC No.722/2007 Page 4 of 4 There is no manifest error or an error causing injustice to the petitioner in the facts and circumstances so as to entail interference by this court under Section 482 of Criminal Procedure Code. Consequently, the petition is without any merit and is, therefore, dismissed. July 17, 2008 ANIL KUMAR, J. ‘Dev’