Delhi High Court
Dr. S.P. Kaushal vs Anil Kumar Misra & Anr on 21 February, 2019
$~6
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 21st February, 2019
+ CRL.M.C. 1482/2018
Dr. S.P. KAUSHAL ..... Petitioner
Through: Mr. Rajesh Gogna and Mr.
Upendra Sai, Advocates
versus
ANIL KUMAR MISRA & ANR ..... Respondents
Through: Mr. Kunal Kalra, Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The petitioner has been a tenant in the premises described as
bearing no.B-1/502, Janak Puri, New Delhi, statedly since 1984 at the
initial rent of Rs.1,200/- p.m., which he admits was increased to
Rs.1,500/- p.m., the late father of the respondents herein being the
person who had so inducted him being the landlord. The respondents,
having stepped into the shoes of their father after his death, instituted a
suit for possession and recovery of arrears of rent / damages with
interest, pendente lite and future, against the petitioner, inter alia,
pleading the rent to have been subsequently increased to Rs.4,000/-
p.m. The suit (no.838/2011) was contested. It was eventually
dismissed by the Civil Judge, by judgment dated 22.09.2014, rejecting
the plea of the respondents about the rate of rent having been
increased to Rs.4,000/- p.m., also declining to accept the evidence to
that effect sought to be adduced by two documents, Ex. PW1/8 and
PW1/9.
2. The petitioner had presented an application under Section 340
of the Code of Criminal Procedure, 1973 (Cr. PC) seeking criminal
action against the respondents, alleging that by claim to above effect,
sought to be supported by affidavit tendered in evidence and the
documents referred to earlier, they had committed offences punishable
under Sections 193, 195, 196, 202, 209 and 211 of Indian Penal code,
1860 (IPC). The Civil Judge having considered the said application
(Misc. case 40/2014 - new No.59824/2016) by order dated 21.12.2016
declined to initiate any such action or make any such complaint as is
envisaged under Section 195 Cr. PC. referring inter alia to the ruling
of the Supreme Court in Iqbal Singh Marwah and Anr. vs. Meenakshi
Marwah and Anr., AIR 2005 SC 2119.
3. The petitioner challenged the above-said decision by appeal
(RCA 04/2017 - new No.73/2017) in the court of the Additional
District Judge, the appeal being under Section 341 Cr. PC. The
appellate court affirmed the view taken by the Civil Judge, and thus,
dismissed the appeal by judgment dated 03.11.2017.
4. The petition at hand invokes the jurisdiction of this court under
Article 227 of the Constitution of India read with Section 482 Cr. PC
to bring yet another challenge to the said two consistent orders of the
courts below, reliance being placed on R.S. Sujatha vs. State of
Karnataka, 2011 (5) SCC 689 and Sciemed overseas Inc. vs. BOC
India Ltd. and others, 2016 (3) SCC 70 as also a decision rendered on
12.02.2018 by a division bench of this court in Ashwini Shourie vs.
Directorate of Estates and Anr., 2018 SCC Online Del 7105.
5. Having heard the learned counsel on both sides and having gone
through the record, this court finds no substance in the petition. The
pleadings of the parties before the civil judge had given rise to issues
of facts which were adjudicated upon on the basis of evidence led by
both sides, the test essentially being of "pre-ponderence of
probabilities." It appears there were certain receipts relied upon by
the petitioner which showed acceptance of rent at the rate of
Rs.1,500/- p.m. which did not seem to gel with the claim about the
rent having been increased to Rs.4,000/- p.m. The defendants came
up with some explanation about acceptance of rent at the previous rate
notwithstanding their claim about increase in the rent for the later
period. Their explanation was not found to be satisfactory and on
overall scrutiny of the evidence tendered, the Civil Judge found it
difficult to grant any relief vis-à-vis the claim based on increased rate
of rent. The two receipts on which the respondents (as plaintiffs in the
civil suit) had relied upon (i.e. Ex. PW1/8 and PW1/9) did not bear the
signatures of the tenant (the petitioner herein). They apparently were
documents unilaterally executed by the first respondent purporting to
be copies which had been retained at the time of acknowledgement of
the rent received from the tenant. The failure to satisfy the Civil Judge
on the basis of such material does not necessarily mean that the said
result of the civil case must invariably and mandatorily be followed by
a criminal action to be initiated by the court under Section 195 read
with Section 340 Cr. PC.
6. It has to be borne in mind that initiation of criminal action by
the court under such jurisdiction as above is one of great
responsibility. The presiding judge of the civil court must be fully
satisfied that a clear case is made out to bring home the charge of
criminal offences, beyond all manner of doubts against the party in
whose respect such criminal action is sought. Both the courts below
have consistently been of the view that, in the given facts and
circumstances, it is not expedient in the interest of justice that such
complaint be initiated by the court. This court finds no good reason to
interfere with the said conclusion arrived at properly in exercise of
judicial discretion vested in the said fora.
7. The petition is dismissed.
R.K.GAUBA, J.
FEBRUARY 21, 2019
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