SANJEEV GUPTA vs RITU GUPTA
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on:14.08.2024
+ CRL.M.C. 2505/2018 and CRL.M.A. 8921/2018, 9845/2018, 6387/2019, 21999/2022, 12269/2024, 2630/2024
SANJEEV GUPTA ….. Petitioner
versus
RITU GUPTA ….. Respondent
Advocates who appeared in this case:
For the Petitioner : Petitioner in person.
For the Respondent : None.
CORAM
HONBLE MR JUSTICE AMIT MAHAJAN
JUDGMENT
1. The present petition is filed under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (CrPC) challenging the order dated 28.02.2018 (hereafter impugned order dated 28.02.2018), passed by the learned Additional Sessions Judge (ASJ), West District, Tis Hazari Courts, Delhi, in Criminal Appeal No. 58/2017.
2. The petitioner has also challenged the order dated 25.08.2017 (hereafter impugned order dated 25.08.2017), in Case No. 4756/2017, whereby the learned Metropolitan Magistrate (MM), West District, Tis Hazari Courts, Delhi dismissed the petitioners application under Section 340 of the CrPC read with Section 195 of the CrPC.
3. The brief facts of the case are that the respondent and the petitioner were married in the year 2012, whereafter, as per the petitioner, the respondent left the matrimonial home in less than two weeks after the marriage. In the year 2013, the respondent had instituted a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (DV Act) against the petitioner. The application filed by the respondent under Section 23 of the DV Act for interim relief was dismissed on 11.03.2016. The petition under Section 12 of the DV Act was also dismissed for non-prosecution and non-appearance at the stage of evidence on 24.06.2017.
4. Thereafter, in the year 2017 itself, the petitioner filed an application under Section 340 of the CrPC against the respondent. The relevant excerpt of the said application is reproduced hereunder:
DETAILS OF OFFENCES
That the Petitioner wife failed to comply the direction of the Honble Court regarding submission of the affidavit of income and assets as per the following :
* The affidavit submitted of assets and income dated 13/10/2014 which are prerequisite as per the Delhi High Court Order submitted with false and fabricated, incomplete without supporting essential documents
* The crucial details having bearing on the facts concealed/ falsely stated under oath intentionally before the Court as per following details:
1) As per head income para 2.2 iv) income from other sources in a) part the petitioner wife stated that she is getting an amount of Rs. 23,000/-p m as rental income from immovable property owned as per para 2.3 i) a) worth Rs. 25 lacs whereas per the letter enclosed from the sub-registrar the registered value of the property itself stands for more than Rs. 46.00 lacs.
2) Where as per the para 24 of the petition she has stated that she has no source of income and she is living in rented house the rent of which is being paid by the father. In fact she is having other source of income which is declared under the other head as salary in the affidavit.
3) Point 2.6 (xxv) of the affidavit wherein petitioner wife was supposed to furnish the details of all the pending/closed cases, in that she has concealed the details as per below:
> That the husband has filed a petition for Restitution of Conjugal Right u/s 9 of HMA wherein respondent wife has put her appearance and she is contesting the same
> That she has deliberately concealed the fact as to who has filed the divorce petition at Ghaziabad. In fact it was filed by her. She has deliberately concealed the above fact to support her wrong version in point 20 of the Petition where she has claimed that she wanted reconciliation with the respondent.
> She has concealed that husband had filed a complaint against her and her father, brother and mama u/s 323,420 etc as they had looted away the entire valuable articles, cash and jewellery from the husband apart from other offences where in summoning order has been issued
4) The complete bank accounts details and balances and bank statements are not provided in the affidavit which is the essence of the earning and expenditure and deliberately closed the accounts after filing and converted her position to gain relief
5) The details of interest income are wrongly shown as nil and also other income is not shown properly from FDR and loan to friends. Because she has concealed her income and assets details from various sources. The details of expenses on marriage not furnished
6) The details of income tax, wealth tax and properly tax are responded in affirmative whereas per the petition col 24 She has no source of income. The petitioner wife has been income tax payee during the relevant years
7) The details of lockers in bank concealed from the Honble court
8) The details of Passport is concealed from the Honble Court
9) The details of Mobile phone numbers intentionally not furnished as the petitioner wife is showing different numbers to suit the occasion and operating in highly suspicious manner sometime mother, father’s phone is shown as her mobile numbers to suit the occasion
10) The petitioner wife is having investment in the form of number of LIC policies, Postal Life Insurance (PLI), Fixed Deposit Receipts (FDR) more recently she has invested in Life Insurance policy with premium exceeding Rs. 23,000/- p.a taken in Financial Year 2015-16 , whereas she is not in a position to pay Rs 1639 house tax amount as per her own version
11) The details shown in the affidavit under column Rent paid. Expenses on Travel, Vehicle , Mode of Travel , Frequency of Travel all are wrong. It is pertinent to mention that the petitioner wife is driving and travelling in number of cars having driving license
5. The learned MM, by the impugned order dated 25.08.2017, noted that the facts as stated by the petitioner were not such that would affect the administration of justice. It was observed that the DIR was filed by the Protection Officer and the affidavits filed by the respondent were not subjected to cross-examination could not be said to be hampering the administration of justice. The learned MM while dismissing the petitioners application also recorded the explicit satisfaction that it did not consider expedient in the interest of justice to refer the complaint under Section 195 of the CrPC read with Section 340 of the CrPC.
6. The learned ASJ, by the impugned order dated 28.02.2018, had dismissed the petitioners appeal and upheld the impugned order dated 25.08.2017. The learned ASJ had noted that the grievance of the petitioner was regarding the false affidavit of income and assets filed by the respondent in the proceedings under DV Act. It was noted that no adverse order had been passed against the petitioner and the petition under Section 12 of the DV Act was dismissed at the initial stage of PE due to non-appearance of the respondent. Taking into account the various litigations between the parties, the learned ASJ noted that the facts of the case were not such that warrant an exercise of judicial discretion to initiate the proceedings under Section 340 of the CrPC.
7. The petitioner had thereafter also filed an application for recall of impugned order dated 28.02.2018. The same was dismissed by the learned ASJ by order dated 26.04.2018 by noting that the petitioner was seeking recall in the form of review and the same was impermissible in view of Section 362 of the CrPC.
8. The petitioner argued the present petition in person. It is noted that he had indicated to this Court on 21.05.2018 itself that he is not assisted by any counsel and he is not in need of any such assistance either.
9. It is relevant to note that after hearing the petitioner, the matter was reserved for orders on 06.05.2024. The petitioner thereafter moved an application seeking one more opportunity to address arguments. It was stated that he had been unable to address the complete set of arguments when the matter was reserved. Noting that the petitioner was arguing in person, the said application was allowed by this Court on 22.05.2024 and the matter was once again heard and was reserved for order.
10. It is the case of the petitioner that the respondent had submitted a false affidavit of income and assets before the Trial Court concealing material facts and she ought to have been prosecuted for perjury.
11. The petitioner submitted that the Courts below erroneously relied upon the judgments in the cases of Iqbal Singh Marwah v. Meenakshi Marwah : (2005) 4 SCC 370 and Santokh Singh v. Izhar Hussain : AIR 1973 SC 2190 to note that it is not necessary to initiate a complaint in every case and contended that the facts of the said cases were not applicable to the facts of the present matter.
12. He submitted that the respondent had submitted a false income of affidavit concealing material information on 13.10.2014. He submitted that the respondent had falsely asserted that she had no source of income in the affidavit even though she had stated in another portion of the affidavit that she had rental income of ?23,000/- per month.
13. He submitted that the respondent had filed another affidavit on 21.11.2015 and played fraud upon the Court by closing her bank accounts and creating false liabilities.
14. He submitted that the learned MM erroneously observed that the administration of justice was not hampered as the respondent had never led evidence or examined herself on oath. He submitted that any false statement in the affidavit is enough to constitute an offence under Section 195 of the CrPC.
15. He submitted that the respondent had stayed with him in the matrimonial home for merely a few days and she had instituted a number of proceedings against him for which he had to go to jail four times.
16. He further submitted that the impugned orders were passed without properly affording him an opportunity of being heard.
17. He submitted that he had spent about 532 days in custody and suffered irreparable loss on account of the same. He further submitted that he was also unable to perform the last rites of his mother due to the same.
Analysis
18. The limited question before this Court is whether the learned MM and the learned ASJ erred by not initiating the proceedings against the respondent under Section 340 of the CrPC.
19. Section 340 of the CrPC provides for an inquiry and filing of a complaint in case the party is found to have committed offences referred in Section 195(1)(b) of the CrPC, which relates to filing of false evidence in any judicial proceedings. Section 340 of the CrPC reads as under:
340. Procedure in cases mentioned in section 195.(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of Justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence 152 in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195.
(3) A complaint made under this section shall be signed
(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
(b) in any other case, by the presiding officer of the Court or by such officer of the Court as the Court may authorise in writing in this behalf.
(4) In this section, Court has the same meaning as in section 195.
20. It is not in doubt that in case the wife is found to have committed an offence as defined under Section 195 of the IPC, an appropriate inquiry can be ordered under Section 340 of the CrPC. However, it is not necessary that in every case the Court has to order an inquiry under Section 340 of the CrPC. It is a settled law that the Court may refrain from passing any order in regard to filing of false evidence if it is not expedient in the interest of justice.
21. It is pertinent to note that the learned ASJ and the learned MM have explicitly recorded their satisfaction that they do not deem it appropriate in the interest of justice to initiate prosecution under Section 340 of the CrPC. It was specifically noted by the learned ASJ that the administration of justice was not hampered in the present case.
22. It is argued that the learned MM erroneously noted that merely because the affidavits filed by the respondent were not subjected to examination/cross-examination before the Court, the same could not be said to be documents that hampered the administration of justice. In the opinion of this Court, the said observation was made to emphasise that the proceedings had not proceeded beyond the stage of examination of respondent as she had not appeared for the same. It was after observing the same that the learned MM opined that it was not expedient in the interest of justice to inquire into the offence.
23. The petitioner has essentially alleged certain falsities in the income affidavit filed by the respondent. It is also alleged that the respondent did not file the supporting documents with the income affidavit. It is relevant to note that apart from some bald assertions of the respondent having concealed her income, no material was placed before the learned Trial Court to substantiate the allegations. The only falsity pointed out was in regards to the respondents income from the immovable property.
24. It is relevant to note that the affidavits filed by the respondent had not been adjudicated upon at any stage. The order, in any application filed by a party under Section 340 of the CrPC, is passed after the facts pointing out towards the falsity of the evidence / affidavit filed by one of the parties, have been adjudicated.
25. Admittedly, no benefit has been derived by the respondent by any order that was passed by the Court pursuant to the false affidavit/evidence produced.
26. One of the principle factors to be considered whether it is expedient in the interest of justice to initiate the proceedings is the impact caused by the falsehood and the intent behind the same.
27. The petitioner has extensively argued that he had suffered at the hands of the respondent in a number of cases instituted by her and he had to even suffer in incarceration due to the respondent. A bare perusal of the record shows that the petitioner was sent to jail as he was convicted in the FIR lodged by the respondent for the offences under Sections 498A/323/377 of the Indian Penal Code, 1860. Thus, admittedly, the petitioner was not sent to judicial custody in the DV Act proceedings and he suffered no adverse orders in the present proceedings as well.
28. The learned ASJ and the learned MM had placed reliance on the judgments passed by the Honble Apex Court in the case of Iqbal Singh Marwah v. Meenakshi Marwah (supra), where it was held that the Court is not bound to make a complaint in every unless the same is expedient in the interest of justice. It was also noted in the said case that the question as to whether it is expedient in the interest of justice to make a complaint is to be tested by the concerned Court by not only weighing the magnitude of impact of injury suffered by the person who would have been made to suffer by such a document, but also by seeing the impact the same had on the administration of justice.
29. Further, the learned ASJ also placed reliance on the judgment of the Honble Apex Court in the case of Santokh Singh v. Izhar Hussain (supra) where it was held that the Court should exercise judicial discretion only in cases where there was evident deliberate falsehood and order prosecution in the larger interest of justice rather than to gratify the feeling of vindictiveness between the parties.
30. The reliance on the said cases cannot be termed to be erroneous. While the facts in the said cases are different, however, the Courts below had only referred to the same to expound upon the principle of law.
31. It is also relevant to note that while the affidavit in question was filed by the respondent way back in the year 2014, the application for prosecution for perjury was filed by the petitioner belatedly in the year 2017 after the proceedings under the DV Act were dismissed for non-prosecution.
32. The learned ASJ has also rightly appreciated that the prosecution should be initiated only in glaring cases of falsehood and the same cannot be abused as an instrument to satisfy the feeling of personal revenge.
33. Routine abuse of power under Section 340 of the CrPC to harass the other side and settle scores cannot be allowed. Litigants cannot be allowed to make a mockery of the judicial process to gratify their feelings of animosity by exacting revenge against the other side. The propensity of parties embroiled in matrimonial disputes seeking proceedings under Section 340 of the CrPC on mere surmises and suspicion with a revengeful desire to harass the other side needs to be discouraged.
34. In view of the aforesaid discussion, this Court is of the opinion that the learned ASJ rightly took into account the pendency of various litigations between the parties and noted that the facts of the case are not such that warrant exercise of judicial discretion for initiation of proceedings.
35. In view of the aforesaid discussion, this Court does not find any infirmity in the impugned orders to warrant interference in the same.
36. The present petition is therefore dismissed.
AMIT MAHAJAN, J
AUGUST 14, 2024
CRL.M.C. 2505/2018 Page 1 of 1