CRL.REV.P./842/2015 of PAWAN KUMAR AGGARWAL Vs SMT USHA RANI & ANR

*IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on : November 10, 2016

+CRL.REV.P. 842/2015 & Crl.M.A. Nos.18845-18846/2015PAWAN KUMAR AGGARWAL

..... PetitionerThrough:Mr.N.K. Aggarwal, Advocate.

versus

SMT USHA RANI & ANR

Through:Nemo.

..... Respondent

CORAM:HON'BLE MR. JUSTICE P.S.TEJI

P.S.TEJI, J.

JUDGMENT

1.By this revision petition filed under Section 397 read withSection 482 of Cr. P.C., the petitioner seeks an order therebyquashing/setting aside the order dated 13.11.2014 passed by thelearned Additional Sessions Judge, Dwarka, Delhi, thereby dismissingthe appeal against the order dated 09.07.2014 passed by the learnedMetropolitan Magistrate Dwarka in his application under Section 340Cr.P.C. moved in complaint case filed by respondent No.1 underSection 138 of Negotiable Instruments Act, 1881.

2.In nutshell, the admitted facts of the case are that the petitionerneeded to show some amount in his bank so as to obtain the loan tocarry out the business of stone crusher in Rajasthan and the respondentNo. 2 had issued two cheques from the account of respondent No. 1 of

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Rs.5 lacs each. The petitioner had issued post dated chequeNo.979178 dated 31.03.2010, on the basis of dishonor of the same, thecomplaint under Section 138 of Negotiable Instruments Act, 1881 wasfiled by Usha Rani, wife of respondent No. 2 herein. Ultimately,respondent No. 1 did not prove her case and the petitioner wasacquitted by giving benefit of doubt.

3.The petitioner filed an application under Section 340 Cr.P.C.against the respondents/complainant urging that respondents havecommitted the offence of perjury by filing false complaint alongwithfalse affidavit. The learned Metropolitan Magistrate vide order dated09.07.2014 dismissed the said application by holding that no primafacie case in terms of provisions of Section 340 Cr.P.C. against UshaRani and Sushil Arora are found to be made out.

4.Against the aforesaid order of learned Metropolitan Magistrate,the petitioner had preferred an appeal being C.A. No.38/14 before thelearned Additional Sessions Judge, Dwarka. Vide order dated13.11.2014, the learned Additional Sessions Judge has dismissed theappeal. That’s why the petitioner is before this court by way of thepresent revision petition.

5.Learned counsel for the petitioner contended that the respondentNo. 1 had admitter her guilt qua filing of false complaint case andoutrightly, admitted that her husband is the person, who has acted infabrication of document filed in the complaint case against thepetitioner. It is further submitted that respondent No. has admitted theaforesaid facts in her affidavit Ex. CW-1/1 before court. Therefore,

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this act of perjury is self sufficient to hold the respondents liable to bepunished under Section 340 Cr.P.C. However, the learned Appellatecourt has reached to the wrong conclusion that “no offence of perjuryhas been committed by the respondents”. While urging the legalprinciples regarding placing wrong facts and filing false affidavitbefore the court, the petitioner has placed reliance on variousdecisions such as; Chandra Shahi vs. Anil Kumar Verma, 1995 SCC(1) 421; Muthu Kuruppan vs. Parithi Ilamvazhuthi & Anr. (Crl.Appeal No.1376 of 2004); Dhaanjay Sharma vs. State of Haryana,(1995) 3 SCC 757; and Sanjeev Kumar Mittal vs. The State, 2010(174) DLT 214.

6.Learned Additional Public Prosecutor appears on behalf of theState and submits that there is no illegality or infirmity in the orderpassed by learned Metropolitan Magistrate as well as learnedAdditional Sessions Judge and the order/judgment passed by learnedAdditional Sessions Judge does not call for any interference from thisCourt.

7.I have heard learned counsel for the parties and have also gonethrough the impugned judgments and orders passed by learnedMetropolitan Magistrate as well as learned Additional Sessions Judge.8.It is an undisputed fact that there was money transactionbetween the petitioner as well as respondents. The transactions werethrough cheques. Cheque was issued by respondents in favour of thepetitioner. Petitioner has also issued post dated cheque. Though,respondent No. 1 had filed complaint under Section 138 of

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Negotiable Instruments Act, 1881 against the petitioner, but the samewas dismissed and the benefit of doubt was given to the petitioner.

9.This court notes that despite there being money transactionsbetween the parties and the petitioner had also admitted its liability byissuing post dated cheque and the fact that the complaint underSection 138 of Negotiable Instruments Act, 1881 has been dismissedby the learned Metropolitan Magistrate, the petitioner preferred anapplication under Section 340 of Cr.P.C. and raised certain legalissues.

10.This court has also gone through the impugned orders passed bylearned Metropolitan Magistrate as well as learned AdditionalSessions Judge on the issue of taking cognizance under Section 340Cr.P.C. against the respondents. Both the aforesaid courts havedismissed the contentions raised by the petitioner and now thepetitioner is before this court for invoking the powers under Section482 of Cr.P.C.

11.The parameters for exercising the power under Section 482 ofCr.P.C. have been laid down in State of Haryana and Ors. Vs. Ch.Bhajan Lal and Ors., 1992 SCC Supl. (1) 335, which have beenreiterated in recent judgment of the Supreme Court in CriminalAppeal No. 773 of 2003, titled as Sundar Babu & Ors. vs. State ofTamil Nadu decided on 19.02.2009, the extracts of which arereproduced hereunder:

“The parameters for exercise of power under Sec.482

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have been laid down by this Court in several cases. TheSection does not confer any new power on the HighCourt. It only saves the inherent power which the Courtpossessed before the enactment of the Code. It envisagesthreecircumstances,underwhichtheinherentjurisdiction may be exercised, namely, (i) to give effect toan order under the Code, (ii) to prevent abuse of theprocess of court, and (iii) to otherwise secure the ends ofjustice.

…… All courts, whether civil or criminal possess, in theabsence of any express provision, as inherent in theirconstitution, all such powers as are necessary to do theright and to undo wrong in course of administration ofjustice on the principle "quando lex aliquid alicuiconcedit, concedere videtur et id sine quo res ipsae essenon potest" (when the law gives person anything itgives him that without which it cannot exist). Whileexercising powers under the section, the court does notfunction as court of appeal or revision. Inherentjurisdiction under the section though wide has to beexercised sparingly, carefully and with caution and onlywhen such exercise is justified by the tests specificallylaid down in the section itself. It is to be exercised exdebito justitiae to do real and substantial justice for theadministration of which alone courts exist. Authority ofthe court exists for advancement of justice and if anyattempt is made to abuse that authority so as to produceinjustice, the court has power to prevent abuse. It wouldbe an abuse of process of the court to allow any action,which would result in injustice and prevent promotion ofjustice.”12.Adverting back to the facts of the present case, this court findsthat the learned Additional Sessions Judge by taking note of the factthat in the criminal complaint in which the application under Section

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340 Cr.P.C. was filed by the petitioner herein, respondent No. 1 hadsubmitted that loan was taken by the petitioner for commencing hisbusiness from her husband and she has given cheque only. Theadmission of respondent No. 1 in her pleadings including theaffidavits regarding the date, time and execution of all the affidavitsand contents thereof cannot tantamount to commission of offence ofperjury.Findingthecontentsofthecomplaintfiledby thecomplainant/respondent No. 1 being neither false nor contradictory tothestoryofadvancingloantothepetitionerthroughherhusband/respondent No. 2, the learned Additional Sessions Judgeagreed with the reasoning of the learned Metropolitan Magistratetaking view that no offence of perjury has been committed by therespondents.13.Regarding conducting of preliminary inquiry by the courtunder Section 340 Cr.P.C., it is held that it is only the formation of anopinion by the court before which proceedings were to be held, that:-

“it is expedient in the interest of justice that an inquiryshould be made into offence which appears to have beencommitted. Therefore, in order to form such an opinionthe court is empowered to hold preliminary inquiry buteven without such preliminary inquiry the court can formsuch an opinion when it appears to the court that anoffence has been committed in relation to proceedings inthat court. Therefore, absence of any such preliminaryinquiry would not vitiate finding reached by the court

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regarding its opinion. The purpose of inquiry is not tofind whether any particular person is guilty or not.Otherwise, its purpose is to, even if court opts to conductit, is only to decide whether it is expedient in the interestof justice to inquire into the offences which appears tohave been committed. The preliminary inquiry is notmandatory. It may be because situation can be suchwhere there is strong suspicion, but there is not sufficientevidence to return finding that it appears to have beencommitted. There can be case where there is sufficientmaterial to return such finding. In former case,preliminary inquiry is necessary in the later case, it is not.As such there is no mandatory requirement to conduct apreliminary inquiry. In this regard reliance is placed uponDalip Singh vs. State, 2013 Cri.LJ 2481.”

14.Upon careful scrutiny of the facts and circumstances of the case,this court finds no illegality or infirmity in the findings returned bylearned Metropolitan Magistrate as well as learned AdditionalSessions Judge.

15.In the light of the facts of the present case, this court does notfind any irregularity or infirmity in the impugned orders. In addition,in view of the foregoing discussions on the principles relating toexercise of inherent powers under Section 482 of Cr.P.C., this Courtdoes not find the present case being fit for exercising the inherent

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powers under Section 482 of Cr.P.C. in the present case.

16.Resultantly, the present petition filed by the petitioner isdismissed.

NOVEMBER 10, 2016pkb

(P.S.TEJI)JUDGE

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