Mr. Vishal Kapoor vs Mrs. Sonal Kapoor
2014 Latest Caselaw 4088 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI
%                           Date of decision: 2nd September, 2014
+                                LPA No.322/2014
       MR. VISHAL KAPOOR                                      ..... Appellant
                    Through:            Mr. Prabhjit Jauhar, Adv.

                                     versus

       MRS. SONAL KAPOOR                                   ..... Respondent

                    Through:            Mr. Muneesh Malhotra, Mr. Achin
                                        Mittal & Mr. Vikram Minhas, Advs.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J

1. This intra court appeal impugns the order dated 29 th January, 2014 of

the learned Single Judge of this Court (exercising ordinary original civil

jurisdiction in CS(OS) No.605/2013 filed by the respondent) directing that

the application filed by the appellant / defendant under Section 340 of the

Code of Criminal Procedure, 1973 (Cr.PC) being Crl.M.A. No.14712/2013

shall be taken up at the time of final disposal.

2. Without going into the aspect of maintainability of an LPA against

such an order (because this appeal was originally filed as FAO(OS)

No.183/2014 but was converted into an LPA vide order dated 21st April,

2014), we have heard the counsels.

3. The counsel for the appellant has contended that the learned Single

Judge erred in deferring dealing with the application till the stage of final

disposal when a case of the respondent / plaintiff having made false

verification of pleadings and having lied on oath was clearly made out.

Attention in this regard is invited to para 6 of the application filed by the

respondent / plaintiff under Order XXXIII Rule 1 of the CPC, to sue as an

indigent person and wherein the respondent had stated that she had no

movable or immovable property in her name. Attention is also invited to the

statement on oath in examination-in-chief recorded on 3rd January, 2013 of

the respondent in support of her application to sue as an indigent person to

the effect that she did not hold any bank account. Attention is lastly invited

to the cross examination by the counsel for the appellant recorded on 22 nd

February, 2013 of the respondent wherein the respondent admitted that at the

time of filing the suit / application to sue as an indigent person, she was

holding a bank account in Axis Bank. On the basis thereof it is contended

that in the face of unequivocal contradiction by the respondent, the order on

the application under Section 340 Cr.P.C. ought not to have been deferred.

Reliance is placed on para 21 of K. Karunakaran Vs. T.V. Eachara Warrier

(1978) 1 SCC 18.

4. We may notice that the respondent is the wife of the appellant and has

instituted the suit from the order wherein this appeal arises seeking the relief

of recovery of maintenance from the appellant.

5. The only argument of the counsel for the respondent is that the

appellant has not even paid the maintenance which he has been ordered to

pay.

6. It is unfortunate that neither counsel drew attention to the law on the

matter. One of us (Rajiv Sahai Endlaw, J.) had occasion in Punjab Tractors

Ltd. Vs. M/s International Tractors Ltd. 167 (2010) DLT 490 to deal with

the said aspect and on a conspectus of the case law on the subject, held as

under:-

"18. In my opinion, an application under Section 340 of the Cr.PC ought to be normally considered at the time of final decision of the case only and not at the interim stage as the defendants/applicant have pressed in the present case. It is the settled legal position that the said provision cannot be resorted to, to satisfy a private grudge of the litigant. In fact the very genesis of this provision is to prevent complaints being filed of offences having being committed in relation to the court proceedings; it was felt that if such complaints are permitted to be filed, the same may be used to force the other party into giving up its claim/defence or to dissuade witnesses from appearing before the courts under threat of criminal prosecution. It was held as far back as in

Rewashankar Moolchand Vs. Emperor AIR 1940 Nagpur 72 that proceedings under Section 340 Cr.PC should not be resorted to when the criminal case is calculated to hamper fair trial of issue in the civil court before which the matter would probably go on for longer. This court also in M/s Jindal Polyster Ltd. Vs. Rahul Jaura 124 (2005) DLT 613 and in Kuldeep Kapoor Vs. Susanta Sengupta 126 (2006) DLT 149 has held that applications under Section 340 of the Cr.PC should be dealt with at the final stage only and not at the interim stage. I also find a consistency of view in this regard in the other High Courts. The law is that a prosecution for perjury should not be ordered by the court before the close of the proceedings in the case in which false evidence is given. It is highly wrong for a court to take action under the said provision against a witness or a party for giving false evidence when trial is underway.

21. Formation of prima facie opinion that a person charged has intentionally given false evidence is a condition precedent for directing lodging of a complaint. The existence of mens rea or criminal intention behind act complained of will have to be looked into and considered before any action under Section 340 of the Cr.PC is recommended. Before setting the criminal law into motion, the court should exercise great care and caution and it must be satisfied that there is reasonable foundation for the charge in respect of which prosecution is directed. No prosecution ought to be ordered unless reasonable probability of conviction is found. Considering the nature of the documents and evidence in relation whereto offences are alleged to have been committed, I find the said ingredients to be lacking in the present case.

23. It cannot also be lost sight of that in criminal prosecution there is waste of public funds and time of courts. For this reason also in every case of perjury the court would not mechanically take cognizance or direct prosecution. Prosecution should be ordered only when it is considered expedient and in the interest of justice to punish the delinquent. Every incorrect or false statement does not make it incumbent on the court to order prosecution.

24. There is yet another principle of law though relating to witnesses. A witness is entitled to an opportunity to correct himself. In the present case, Mr. Rihal during the cross examination admitted two mistakes in the drawings alleged to be fabricated. Mr. Rihal having corrected himself, ought not to be prosecuted.

25. This court in Rawal Singh Vs. Quality Stores AIR 1986 (Delhi) 236 in spite of finding a document having been fabricated, yet dismissed the application under Section 340 of the Cr.PC finding it not to be a fit case for recourse to any such action. In my view, the application under Section 340 of the Cr.PC at this stage if allowed would give a handle to the defendants against the plaintiff and would give unfair advantage to the defendants over plaintiff in the suit proceedings. It is still to be investigated and found out by this court as to whether the plaintiff had devised improvements/modifications over and above the drawings of CMERI and if so whether the defendants have copied/infringed the said drawings of the plaintiff. Allowing the application at this stage would tantamount to this court returning finding that the drawings of the plaintiff are the same as that of the CMERI. While the proposition in R. Karuppan (Supra) & Mahila Vinod Kumari (Supra) cannot be disputed, it cannot also be lost sight of that too

frequent prosecutions for such offences tend to defeat its very object. It is only in glaring cases of falsity where conviction is highly likely that the court should direct prosecution."

7. As far as the reliance by the counsel for the appellant on K.

Karunakaran (supra) is concerned, it is not as if the same was not noticed in

Punjab Tractors Ltd. Moreover, K. Karunakaran was not concerned with

the question whether the application under Section 340 Cr.P.C. is to be taken

up at the time of final disposal of the matter or whenever it is filed. It may

also be recorded that the application under Section 340 Cr.P.C. in that case

was in a habeas corpus petition and was filed after the petition had been

disposed of. Thus the observation in para 21 of the judgment that the enquiry

under Section 340(1) Cr.P.C. is irrespective of the result of the main case,

cannot be read as laying down that the hearing of the application under

Section 340 Cr.P.C. is not to be deferred till the final decision in the

proceeding. This becomes clear from para 24 of the judgment where it is

held that when the trial commences (in that case of offence under Section

193 IPC), the reasons given in the judgment in the habeas corpus petition or

in the order under Section 340(1) Cr.P.C. should not weigh with the

Criminal Court in coming to its independent conclusion whether offence has

been established.

8. The matter is however put beyond any pale of controversy in Rugmini

Ammal by LR's Vs. V. Narayana Reddiar (2007) 12 SCC 611, which

remained to be noticed in Punjab Tractors Ltd. (supra). The Supreme Court

in the said judgment held, "normally, a direction for filing of a complaint is

not made during the pendency of the proceeding before the Court and this is

done at the stage when the proceeding is concluded and the final judgment is

rendered". It was also held that as per language of Section 340 of the

Cr.P.C., the Court is not bound to make a complaint as the Section is

conditioned by the words "Court is of the opinion that it is expedient in the

interests of justice". The said words were held to show that such a course

would be adopted only if the interest of justice requires and not in every

case. It was further held that this expediency would normally be judged by

the Court by weighing not the magnitude of injury suffered by the person

affected by such forgery or forged document, but having regard to the effect

or impact such commission of offence has upon administration of justice. It

was further held that even where the forged document or forgery may cause

a very serious or substantial injury to a person but where such document is

just a piece of evidence, where voluminous evidence may have been

adduced and the effect of such piece of evidence on the broad concept of

administration of justice is minimal, the Court may not consider it expedient

in the interest of justice to make a complaint.

9. Reference may also be made to the judgment of the Division Bench of

this Court in Deepak Khosla Vs. Anand Mohan Mishra

MANU/DE/1447/2010 which also though not directly concerned with the

said issue, otherwise suggests that the application under Section 340 of the

Cr. P.C. will be disposed of along with main proceedings. Similarly a

learned Single Judge of this Court in Dheeraj Singh Rana Vs. State (NCT

of Delhi) MANU/DE/0400/2013 also held that the application under Section

340 of the Cr.P.C. is to be decided at the final stage of the proceeding in

which it is made. Similarly in Subhash Chandra Vs. State of U.P. (2000) 5

SCC 356 where offence within the meaning of Section 340 of the Cr. P.C.

was stated to have been committed in the matter of filing of an application

under Section 156(3) Cr.P.C. in the Court of the Sessions Judge and the

High Court had ordered prosecution, the Supreme Court held the High Court

to have acted in haste and held that since the application under Section

156(3) Cr.P.C. was still to be investigated, the direction for prosecution at

that stage was premature.

10. The counsel for the appellant at this stage contends that the learned

Single Judge has not given any reason for deferring the consideration of the

application under Section 340 Cr.P.C. till the final disposal of the suit.

11. Undoubtedly so. However a perusal of the order shows that the

learned Single Judge on that date was seized of the entire controversy, as the

issues in the suit were also framed on the same date. Moreover the learned

Single Judge has observed that he was of the "considered view" that the

application be taken up at the time of final disposal. On the facts disclosed

before us, we are satisfied that there were sufficient reasons viz. of

relationship of the parties, nature of the proceedings, nature of the lie alleged

and explanations given by the respondent in her cross examination in which

she admitted existence of the bank account, for deferring the decision of the

application under Section 340 Cr.P.C.

12. The appeal is thoroughly misconceived and is dismissed with costs of

Rs.15,000/- to the respondent.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE SEPTEMBER 2, 2014 pp..