K. Balasaraswathi vs State
2010 Latest Caselaw 4711 Del

32.
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CRL.M.C. 3219/2010

       K.BALASARASWATHI                                         ..... Petitioner

                              Through Petitioner in person.

                     versus

       STATE                                                  ..... Respondent

                              Through Ms. Fizani Husain, APP for the
                              State.

       CORAM:
       HON'BLE MR. JUSTICE SANJIV KHANNA

                                  ORDER

06.10.2010

CRL.M.A. No. 16125/2010 Exemption application is allowed, subject to all just exceptions. CRL.M.C. No. 3219/2010

1. I have heard the petitioner, who appears in person, at some length.

2. The petitioner had filed a complaint under Section 12 of the Consumer Protection Act before the District Forum on 6th July, 2006 against the respondent No. 3 herein. The complaint was disposed of vide order dated 3rd April, 2008 holding, inter alia, that the Consumer Forum did not have jurisdiction to adjudicate the grievance of the petitioner and the petitioner should approach criminal/civil court for redressal of her grievance.

3. The petitioner thereafter filed a criminal case before the Metropolitan Magistrate titled K. Balasaraswathi versus Prem Prakash under Sections 409/201 of the Indian Penal Code, 1860. The said criminal case is still pending and the accused in the said case have been

CRL.M.C. 3219/2010 Page 1 granted bail.

4. As per the averments in the petition, on 5th August, 2008 the respondent No. 3 had filed an application under Section 340 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Code, for short). In this application, the allegation made was that the written statement filed by the respondent No. 3 before the Consumer Forum consisting of 22 pages had been replaced by a written statement consisting of 6 pages. It is also alleged that an application by the respondent No. 3 dated 15th April, 2008 was filed before the Consumer Forum after disposal of the case on 3rd April, 2008, inter alia, stating as under:-

"Our previous counsel Shri Subhash Suri is no longer associated with us and ceased to be our counsel owing to certain personal reason. He has parted ways with us and we apprehend that he might tampered with our case file to settle scores with us".

It is stated that this application is forged and fabricated and respondent No. 3 had not filed any such application before the Consumer Forum.

5. Vide order dated 7th August, 2008, the District Consumer Forum allowed the application under Section 340 of the Code after recording that some fraud had been played. It was directed that the case file should be kept in safe custody. On the said direction, FIR No. 334/2008 was registered in Police Station Haus Khas for tampering of the judicial record. The petitioner was arrested in the said FIR and was granted bail. The petitioner now states that she has learnt that a closure report has been filed by the police in the said FIR. This fact is, however, not stated in the petition and copy of the closure report is also not filed.

6. The petitioner has made allegations that after the registration of the FIR, she tried to obtain certified copy of the documents from the District Forum, Consumer Protection Act but the same were not given to her. Thereafter, she approached the President of the State Commission under the Consumer Protection Act and directions were issued to supply

CRL.M.C. 3219/2010 Page 2 certified copies. The petitioner filed an appeal against the order dated 7 th August, 2008 passed by the District Consumer Forum before the State Consumer Forum. The appeal was allowed vide order dated 22nd October, 2008, inter alia, holding that the petitioner should have been heard and the direction that the police should register an FIR on a complaint of the respondent No. 3 was unjustified. It was observed that the District Consumer Forum, should have decided the application under Section 340 of the Code after adopting the procedure prescribed and should have satisfied themselves about the veracity of the allegations. It was directed that the police shall not take any action on the FIR registered and the District Consumer Forum shall decide the application under Section 340 of the Code, afresh on merits.

7. The petitioner herein filed an application under Section 340 of the Code making allegations against the respondent No. 3. By the impugned order dated 26th May, 2010, the District Consumer Forum has come to the conclusion that there was clear tampering of the court records. District Consumer Forum has relied upon the affidavit filed by Mr. Subhash Suri, Advocate that he had prepared written statement dated 3 rd October, 2006 running into 22 pages. Mr. Subhash Suri, Advocate has further stated that he had applied for certified copy of the entire case file on 28th July, 2008. He has stated that he has always remained the counsel for the respondent No. 3 and there was no distrust between him and the respondent No. 3. In the affidavit, it is averred that Mr. Subhash Suri, Advocate continues to be the counsel for the respondent No. 3, who have full faith in him. With regard to the application, which was filed on 15th April, 2008, it is submitted that the said application did not bear the signature of the respondent No. 3 and was filed dishonestly with the purpose of ulterior gains. The District Consumer Forum has noticed that the written statement of 6 pages is not signed by Mr. Subhash Suri, Advocate. It has been also recorded that the contentions of respondent

CRL.M.C. 3219/2010 Page 3 no.3 mentioned in the decision of the Forum are not mentioned in the written statement of 6 pages, but find mention in the written statement consisting of 22 pages. Application of the petitioner was dismissed and application of the respondent no. 3 under Section 340 of the Code has been allowed.

8. The petitioner, who appears in person, states that the observations made in this order foreclose her rights.

9. An order under Section 340 of the Code is appealable under Section 341 of the Code before the appellate court/forum to which the former court/forum is subordinate within the meaning of Sub-section 4 of Section 195 of the Code. In case the petitioner is aggrieved by the order dated 26th May, 2010, she should file an appeal before the State Commission. The petitioner is aware of the said procedure as she herself had filed an appeal against the earlier order dated 7th August, 2008, which was allowed by the State Commission vide order dated 22 nd October, 2008. In view of the alternative remedy it will not be appropriate to invoke/exercise discretionary jurisdiction.

10. The petitioner has made two other grievances. She has submitted that two FIRs on the same cause or allegations are pending. It is stated that the first FIR No. 334/2008, Police Station Haus Khas was registered and now pursuant to the order passed by the District Consumer Forum and the Additional Chief Metropolitan Magistrate (ACMM for short), a second FIR No. 276/2010, Police Station Vasant Kunj has been registered. This contention of the petitioner has no merit as in terms of order dated 22nd October, 2008, passed by the District Consumer Forum directing registration of the FIR is to be set aside and quashed. The said FIR was registered only on the basis of directions given by the District Consumer Forum in the order dated 7th August, 2008. Once the said order dated 7th August, 2008 itself is set aside/quashed, the FIR does not survive. As noticed above, the petitioner has stated that a closure report

CRL.M.C. 3219/2010 Page 4 has been filed in FIR No. 334/2008.

11. The second contention raised by the petitioner is in respect of the direction in the order dated 4th August, 2010 passed by the learned ACMM after she had received the complaint under Section 340 of the Code on the basis of order dated 26th May, 2010. Learned ACMM has observed that she had heard the submissions made by the complainant, i.e., respondent No. 3 and had gone through the entire material available on record carefully. She has further stated that the perusal of the complaint reveals that a cognizable offence was made out, but feels investigation was required. Accordingly, she has directed the SHO, Police Station Vasant Kunj to register an FIR and file a compliance report.

12. The petitioner, who appears in person, relies upon Pritish versus State of Maharashtra and Others, 2002 CRL.L.J. 548 and P.N. Sagar versus State of Kerala and Another, 2006 CRL.L.J. 1104. It is submitted that once prosecution is filed on the basis of an order passed by the court or tribunal under Section 340 of the Code it is to be treated as police report and thereafter the Magistrate receiving the complaint has to proceed under Section 238 to 243 of the Code. It has been also observed that second inquiry or investigation is not required or necessary.

13. It was put to the complainant that an inquiry/investigation may be in her own interest. However, she feels that in view of the case law, she is entitled to question and challenge the order dated 4th August, 2010.

14. Issue notice limited to challenge to the order dated 4th August, 2010, returnable on 20th December, 2010. Initially notice will be issued to the respondent Nos. 1 and 3.

I am not, however, inclined to stay the police investigation at this stage. Observation made in this order will not be binding on the trial court or other forum in case the petitioner files an appeal under section

CRL.M.C. 3219/2010 Page 5 341 of the Code. Trial court/police/appellate forum will independently examine merits/contentions without being influenced by the observations made above.

SANJIV KHANNA, J.

       OCTOBER 06, 2010
       VKR




CRL.M.C. 3219/2010                                                Page 6