2 HIGH COURT OF UTTARANCHAL AT NAINITAL Criminal Misc. Application No.207 of 2003 Vikram Verma S/o late Shri N.L. Verma ……Applicant Versus State of Uttarakhand & another ….Respondents Dated :- 12th December, 2008 Hon’ble J. C. S. Rawat, J. Mr. Lokendra Dobhal, Advocate for the applicant. Mr. Amit Bhatt, Addl. G.A. for the State. The petition under section 482 Cr.P.C. has been filed for setting aside the judgment & order dated 08.08.2003 passed by Addl. Sessions Judge / F.T.C. Ist, Dehradun in Criminal Appeal No.23/2002 and order dated 31.07.2002 passed by Addl. Sessions Judge / Civil Judge (S.D.), Dehradun in Misc. Case No.237 of 1992 titled as Vikram Verma Vs. Raju Balmiki and to direct the court below to proceed with the application filed by applicant under section 340 Cr.P.C. in accordance with law. 2. Brief facts of the case are that a civil suit bearing No.284 of 1991 titled as “Pratap Verma & another Vs. Jeet Singh & others was filed before the Civil Judge (S.D.), Dehradun under Section 6 of Specific Relief Act. In the said suit, respondent no.2-Raju Balmiki, who was one of the defendants in the aforesaid suit filed an affidavit alongwith the written statement on 01.07.1991. The respondent no.2 has stated in his affidavit dated 01.07.1991 that his father late Kabool Chandra Balmiki was tenant of the applicant and after death of his father the respondent no.2 had been in possession over the plot No.100A on behalf of the applicant. On 13.01.1991 other defendants in the original suit forcibly evicted him 3 from the premises. Subsequently, the respondent no.2 also filed his second affidavit on 21.10.1992 alleging therein that he had not filed any affidavit and he was never the tenant of the applicant over the disputed accommodation. The affidavit dated 21.10.1992 was filed by respondent no.2 in connivance with Jeet Singh and Tej Praksh (defendant nos.1 & 2 of the original suit). Thereafter, the suit was decided and it was found that two affidavits filed by respondent no.2 are contradictory with each other. According to the learned counsel for the petitioner, during the pendency of the suit an application under section 340 Cr.P.C. was filed by the applicant before the court below alleging therein that respondent no.2 had filed false affidavits. After hearing the parties, the Civil Judge vide its order dated 31.07.2002 rejected the application filed under section 340 Cr.P.C. Thereafter, an appeal was preferred before the Addl. Sessions Judge which was also dismissed vide order dated 08.08.2003. 3. I have heard learned counsel for the parties and perused the record. 4. Learned counsel for the petitioner contended that the respondent no.2 has filed a false affidavit before the court below and the contents of both affidavits were contradictory with each other. It is apparent from the record that the two affidavits filed by respondent no.2 were absolutely false. Learned Addl. G.A. for the State contended that till the conclusion of hearing of the civil suit and a finding to that effect would not come that the false affidavit was given it cannot be held that the proceedings under section 340 Cr.P.C. can be initiated. Learned counsel for the petitioner also contended that there must be a finding to the effect that the person has given a false affidavit in a proceeding before the court 4 and secondly in the opinion of the court it is expedient in the interest of justice to make an enquiry in that regard. It is true that there are two conditions on fulfillment 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 the opinion of the court it is expedient in the interest of justice to make an enquiry against such a person in relation to the offence committed by him. Learned trial court has not given any finding to the effect that the second ingredient of Section 340 Cr.PC. has been fulfilled. Learned counsel for the applicant could not demonstrate before this Court that the applicant has pleaded anywhere which reveals that in the interest of justice it is expedient to proceed against the respondent no.2 under section 340 Cr.P.c. in relation to the offence of perjury under Section 193 IPC. In the case of B. K. Gupta Vs. Damodar H. Bajaj & others 2002 SCC (Cri) 1103, the Hon’ble Supreme Court has held as follows:- “2. Learned counsel appearing for the appellant urged that there is nothing on record to show that the High Court while making an enquiry under Section 340 CrPC applied its mind whether it was expedient in the interest of justice that a complaint be filed against the appellant. Under Section 340 CrPC, if the court is of the opinion that it is expedient in the interest of justice that an enquiry should be made into an offence referred to in clause (b) of sub-section (1) of Section 195 CrPC in relation to any proceeding in that court, the court after such preliminary enquiry may direct for filing a complaint before the appropriate court against such person. 3. From the above, it follows that there are two conditions on fulfillment 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 the opinion of the court it is expedient in the interest of justice to make an enquiry against such a person in relation to the offence committed by him. It is no doubt true that the High Court has recorded a 5 finding that the appellant has made a false statement on oath and has also used evidence known to be false and fabricated. On a perusal of the record we do not find any material on record to show that there was any application of mind by the Court that it was expedient in the interest of justice to make an enquiry and file a complaint against the appellant. We have also perused the judgment in Writ Petition No. 1442 of 1983 and the judgment does not show that the Court applied its mind regarding the second condition as to whether it is expedient in the interest of justice to make an enquiry into the false evidence given by the appellant and a complaint is to be filed. In the absence of application of mind in regard to expediency for filing complaint against the appellant, the order passed by the High Court directing the Prothonotary and Senior Master of the High Court to file a complaint against the appellant was vitiated.” 5. The trial court has held that the affidavit which was filed alongwith the written statement was never warranted to be filed alongwith the written statement under the provisions of law. The suit was filed on 29.04.1991 and the affidavit which is alleged to have been filed on 29.04.1991 and the affidavit which is alleged to have been filed by the respondent no.2 is of 01.04.1991. It was also submitted that it was a clerical error by which the date has been wrongly mentioned. According to learned counsel for the applicant, the same finding has been confirmed by the appellate court while dismissing the appeal. After going through the entire record, I am of the view that the suit is still pending. The court has not given any finding to the effect that the affidavit was false. The applicant should have waited till the conclusion of hearing of the suit. Thereafter, the applicant should have moved an application before the court for seeking the prosecution according to law. Secondly, the respondent no.2 has specifically taken a case that the signatures were obtained by the defendants of the suit and his signature was taken without his knowledge. This fact was to be adjudicated by the court below. The applicant has not waited till the 6 adjudication of the suit. Learned counsel for the applicant could not demonstrate the Court that prior to filing the application the suit was already decided by the trial court. The trial court has already rejected the applicant filed under section 340 Cr.P.C. and the trial court has not found any ground that he was not of the opinion that in the interest of justice it is expedient to proceed under section 340 Cr.P.C. As such, no interference is required in this matter at this stage. Therefore, the petition is devoid of merits and is dismissed accordingly. (J. C. S. Rawat, J.) Dated 12th December, 2008 LSR 7 8 HIGH COURT OF UTTARANCHAL AT NAINITAL Criminal Misc. Application No.829 of 2008 Nimesh Shah, Partner NISCHMEM International 3-Botawala Building Ground Floor Nyaya Murti G.N. Vaidya Marg Behind State Bank of India Fort Mumbai Police Station – Cuffee Prade, Mumbai – 400 023 ……Applicant Versus State of Uttarakhand & Others ….Respondents Dated :- 26th December, 2008 Hon’ble J. C. S. Rawat, J. Mr. Manish Arora, Advocate for the applicant. Mr. B. S. Parihar, Brief Holder for the State. 2. This petition under section 482 Cr.P.C. has been filed by the applicant for quashing the order dated 09.09.2008 passed by the Judicial Magistrate, Roorkee in Case No.1249 of 2008 titled as ‘Umesh Sanghi Vs. Devang Parikh & others’ under Section 420 IPC, P.S. Bhagwanpur, District Haridwar and the order dated 06.08.2008 passed by Sessions Judge, Haridwar in Criminal Revision No.199 of 2008. 3. It is transpired from the record that on 25.01.2008 respondent has filed a complaint against the applicant before the court of Judicial Magistrate, Roorkee. After recording the statements under sections 200 & 202 Cr.P.C., the learned Magistrate dismissed the complaint under section 203 Cr.P.C. vide order dated 26.03.2008. Feeling aggrieved by the order of the learned Magistrate, a revision petition was preferred by the respondent before the Sessions Judge. It was argued before the Sessions Judge that the complainant is not competent to file the complaint as no authority has been 9 filed alongwith the complaint and the same has not been proved in the statement. 4. After hearing the parties, the learned Sessions Judge vide order dated 06.08.2008 while holding that the dispute between the parties is a matter of evidence remitted back the matter to the learned trial court and directed the learned Magistrate to record the evidence in view of the observations made in the judgment. It was further directed by the Sessions Judge that the learned Magistrate would pass the appropriate order for taking cognizance. 5. Thereafter, the parties were given opportunity of hearing before the learned Magistrate. The complainant has filed an affidavit alongwith an authority letter without being it proved by any evidence. After considering the said affidavit, the learned Magistrate summoned the applicant and co-accused vide order dated 09.09.2008. 6. Feeling aggrieved by this, the applicant has preferred the present petition. 7. With the consent of the learned counsel for the parties, this petition is being disposed of finally today at the motion hearing stage without admitting it for hearing. 8. Learned counsel for the applicant contended that the order by which the learned Magistrate has considered the affidavit filed by the complainant is patently illegal and against the provisions of law. It was further contended that the authority letter, by which the complainant has been authorized to file the complaint, has not been proved by any evidence. After hearing at length, learned counsel for the respective parties agreed that in the interest of justice the following consent order may be passed. 10 9. The petition is disposed of finally. The summoning order dated 09.09.2008 passed by the Judicial Magistrate, Roorkee in case No.1249 of 2008 under section 420 IPC is quashed. The case is remitted back to the learned Magistrate with the direction to decide the same afresh in the light of the observations made above. The complainant is given liberty to adduce evidence whatsoever he likes to adduce under section 202 Cr.P.C. The learned Magistrate after recording such evidence would dispose of the complaint expeditiously either taking cognizance or rejecting it without considering the affidavit which has been filed earlier. (J. C. S. Rawat, J.) Dated 26.12.2008 LSR 11 HIGH COURT OF UTTARANCHAL AT NAINITAL Criminal Misc. Application No.207 of 2003 Vikram Verma S/o late Shri N.L. Verma ……Applicant Versus State of Uttarakhand & another ….Respondents Dated :- 12th December, 2008 Hon’ble J. C. S. Rawat, J. Mr. Lokendra Dobhal, Advocate for the applicant. Mr. Amit Bhatt, Addl. G.A. for the State. The petition under section 482 Cr.P.C. has been filed for setting aside the judgment & order dated 08.08.2003 passed by Addl. Sessions Judge / F.T.C. Ist, Dehradun in Criminal Appeal No.23/2002 and order dated 31.07.2002 passed by Addl. Sessions Judge / Civil Judge (S.D.), Dehradun in Misc. Case No.237 of 1992 titled as Vikram Verma Vs. Raju Balmiki and to direct the court below to proceed with the application filed by applicant under section 340 Cr.P.C. in accordance with law. 2. Brief facts of the case are that a civil suit bearing No.284 of 1991 titled as “Pratap Verma & another Vs. Jeet Singh & others was filed before the Civil Judge (S.D.), Dehradun under Section 6 of Specific Relief Act. In the said suit, respondent no.2-Raju Balmiki, who was one of the defendants in the aforesaid suit filed an affidavit alongwith the written statement on 01.07.1991. The respondent no.2 has stated in his affidavit dated 01.07.1991 that his father late Kabool Chandra Balmiki was tenant of the applicant and after death of his father the respondent no.2 had been in possession over the plot No.100A on behalf of the applicant. On 13.01.1991 other defendants in the original suit forcibly evicted him 12 from the premises. Subsequently, the respondent no.2 also filed his second affidavit on 21.10.1992 alleging therein that he had not filed any affidavit and he was never the tenant of the applicant over the disputed accommodation. The affidavit dated 21.10.1992 was filed by respondent no.2 in connivance with Jeet Singh and Tej Praksh (defendant nos.1 & 2 of the original suit). Thereafter, the suit was decided and it was found that two affidavits filed by respondent no.2 are contradictory with each other. According to the learned counsel for the petitioner, during the pendency of the suit an application under section 340 Cr.P.C. was filed by the applicant before the court below alleging therein that respondent no.2 had filed false affidavits. After hearing the parties, the Civil Judge vide its order dated 31.07.2002 rejected the application filed under section 340 Cr.P.C. Thereafter, an appeal was preferred before the Addl. Sessions Judge which was also dismissed vide order dated 08.08.2003. 3. I have heard learned counsel for the parties and perused the record. 4. Learned counsel for the petitioner contended that the respondent no.2 has filed a false affidavit before the court below and the contents of both affidavits were contradictory with each other. It is apparent from the record that the two affidavits filed by respondent no.2 were absolutely false. Learned Addl. G.A. for the State contended that till the conclusion of hearing of the civil suit and a finding to that effect would not come that the false affidavit was given it cannot be held that the proceedings under section 340 Cr.P.C. can be initiated. Learned counsel for the petitioner also contended that there must be a finding to the effect that the person has given a false affidavit in a proceeding before the court 13 and secondly in the opinion of the court it is expedient in the interest of justice to make an enquiry in that regard. It is true that there are two conditions on fulfillment 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 the opinion of the court it is expedient in the interest of justice to make an enquiry against such a person in relation to the offence committed by him. Learned trial court has not given any finding to the effect that the second ingredient of Section 340 Cr.PC. has been fulfilled. Learned counsel for the applicant could not demonstrate before this Court that the applicant has pleaded anywhere which reveals that in the interest of justice it is expedient to proceed against the respondent no.2 under section 340 Cr.P.c. in relation to the offence of perjury under Section 193 IPC. In the case of B. K. Gupta Vs. Damodar H. Bajaj & others 2002 SCC (Cri) 1103, the Hon’ble Supreme Court has held as follows:- “2. Learned counsel appearing for the appellant urged that there is nothing on record to show that the High Court while making an enquiry under Section 340 CrPC applied its mind whether it was expedient in the interest of justice that a complaint be filed against the appellant. Under Section 340 CrPC, if the court is of the opinion that it is expedient in the interest of justice that an enquiry should be made into an offence referred to in clause (b) of sub-section (1) of Section 195 CrPC in relation to any proceeding in that court, the court after such preliminary enquiry may direct for filing a complaint before the appropriate court against such person. 3. From the above, it follows that there are two conditions on fulfillment 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 the opinion of the court it is expedient in the interest of justice to make an enquiry against such a person in relation to the offence committed by him. It is no doubt true that the High Court has recorded a 14 finding that the appellant has made a false statement on oath and has also used evidence known to be false and fabricated. On a perusal of the record we do not find any material on record to show that there was any application of mind by the Court that it was expedient in the interest of justice to make an enquiry and file a complaint against the appellant. We have also perused the judgment in Writ Petition No. 1442 of 1983 and the judgment does not show that the Court applied its mind regarding the second condition as to whether it is expedient in the interest of justice to make an enquiry into the false evidence given by the appellant and a complaint is to be filed. In the absence of application of mind in regard to expediency for filing complaint against the appellant, the order passed by the High Court directing the Prothonotary and Senior Master of the High Court to file a complaint against the appellant was vitiated.” 5. The trial court has held that the affidavit which was filed alongwith the written statement was never warranted to be filed alongwith the written statement under the provisions of law. The suit was filed on 29.04.1991 and the affidavit which is alleged to have been filed on 29.04.1991 and the affidavit which is alleged to have been filed by the respondent no.2 is of 01.04.1991. It was also submitted that it was a clerical error by which the date has been wrongly mentioned. According to learned counsel for the applicant, the same finding has been confirmed by the appellate court while dismissing the appeal. After going through the entire record, I am of the view that the suit is still pending. The court has not given any finding to the effect that the affidavit was false. The applicant should have waited till the conclusion of hearing of the suit. Thereafter, the applicant should have moved an application before the court for seeking the prosecution according to law. Secondly, the respondent no.2 has specifically taken a case that the signatures were obtained by the defendants of the suit and his signature was taken without his knowledge. This fact was to be adjudicated by the court below. The applicant has not waited till the 15 adjudication of the suit. Learned counsel for the applicant could not demonstrate the Court that prior to filing the application the suit was already decided by the trial court. The trial court has already rejected the applicant filed under section 340 Cr.P.C. and the trial court has not found any ground that he was not of the opinion that in the interest of justice it is expedient to proceed under section 340 Cr.P.C. As such, no interference is required in this matter at this stage. Therefore, the petition is devoid of merits and is dismissed accordingly. (J. C. S. Rawat, J.) Dated 12th December, 2008 LSR