Delhi High Court
Shri B.N.Gupta vs Smt. Kamlesh Gupta on 17 July, 2008
Author: Anil Kumar
* 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
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.
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.
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'
