Order 1

Order Details: Notice of Motion
Pdf Text: NM In SS 7926/98 Oral Order 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1811 OF 2018
(CNR NO.MHCC010058852018)
IN
SUMMARY SUIT NO.7926 OF 1998
(HIGH COURT SUMMARY SUIT NO.2028 OF 1998)
Bhabha Financial Consultant,
Through Proprietor Mr.Tilak Dedhia ...Plaintiff
V/s
Ripan Desai & others ...Defendants
Coram : His Honour Judge Shri M.M.Umar
(C.R. No.28)
Dated : 11/02/2019
Adv. Mr.Jayraj S. for plaintiff.
Adv. Mr.Shukla for defendant no.1.
Adv. Mr.Agarwal for defendant nos.2 to 5.
ORDER BELOW NOTICE OF MOTION NO.1811/18
1. This Notice of Motion is taken out by the plaintiff for
initiating action Under Section 340 of the Code of Criminal Procedure
for Contempt of Court for committing the offence under Section
191,192, 193, 196, 199, 200, 201, 217, 218, 219, 465, 466, 471,474
r/w.120B of IPC.
2. The defendants have resisted to the said Notice of Motion by
filing reply on record. Read the application and reply.
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3. Heard to both the sides at length.
4. It appears that the plaintiff has alleged that the defendant
has suppressed the selling with forged signature, giving false statement
and fraudulent evidences knowing that they sold the plaintiffs share
behind his back. Therefore, according to the plaintiff it is just and
necessary to initiate the action against 340 of Cr.P.C. against the
defendants. Whereas the defendants have come with a case that during
the pendency of this proceedings they have not committed any act or
prior to that as alleged by the plaintiff. Therefore, it is contended that
Section 340 of Cr.P.C. is not attracted and the plaintiff has filed the
present application to harass them and nothing else. Therefore, it is
requested to dismiss the Notice of Motion.
5. I have duly considered the above submissions of both the
sides so also, I have gone carefully through the case record. Before
dealing with the matter it is necessary to mention Section 340 of
Cr.P.C. which 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 interest of justice that an inquiry should
be made into any offence referred to in clause (b) of subsection (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 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;
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(d) take sufficient security for the appearance of the accused before such
Magistrate, or if the alleged offence is nonbailable 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 subsection (1) in respect of an
offence may, in any case where that Court has neither made a complaint
under subsection (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 subsection (4) of
section 195.
(3) A complaint made under this section shall be signed
(a) where the Court making the complaint is 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.”
6. The plaintiff has filed the present suit for recovery of
Rs.1,41,965/ alongwith interest.
7. Unconditional leave is granted to the defendants to defend
themselves and accordingly they have filed Written Statement on
record. It appears that the issues are already framed on 21/1/2017 at
Exhibit 9. Thereafter, the case was posted for evidence of the plaintiff.
Thereafter, the plaintiff moved an application for recasting of issues
and the matter was adjourned from time to time. Plaintiff has filed the
present application on 2/5/2018.
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8. It appears that till date the plaintiff has not led any evidence.
It is pertinent to mention here that there are two conditions which are
required to be fulfilled on which basis a complaint can be filed against a
person who has given a false affidavit or evidence in a proceedings
before the Court. The first condition being that a person has given a
false affidavit in a proceeding before the Court and secondly in the
opinion of the Court, it is expedient in the interest of justice to make an
inquiry against such a person in relation to the offence committed by
him.
9. Considering the language used in Section 340 of Cr.P.C. the
Court is not bound to make a complaint regarding the commission of
an offence referred to in Section 195(1)(b) as the Section is a
conditioned by words “Court is of the opinion that it is expedient in the
interest of justice.” This shows that such a course would be adopted
only if the interest of justice requires inquiry and record a finding to the
effect that it is expedient in the interest of justice that inquiry should be
made into any of the offences referred to Section 195 (1)(b). The
purpose of such inquiry even if the Court opts to conduct it only to
decide whether it is expedient in the interest of justice to inquire into
the offences which appears to have committed.
10. As such in the matter the plaintiff has not pointed out what
perjury is committed by the defendants during the pendency of this
suit. The plaintiff has not pointed out that the defendants have
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intentionally given a false statement in the evidence in any stage of the
proceedings or fabricated the false evidence for the purpose of being
used in any stage of the judicial proceedings. At this stage there is no
prima facie proof of alleged fraudulent, dishonest act as alleged in the
Notice of Motion. Therefore, in my considered opinion it is not
justifiable to hold the inquiry under Section 340 of Cr.P.C. In my
opinion, this is not a fit case in which the complaint can be made
against the defendants and the proceedings under Section 340 Cr.P.C.
can be initiated. In the result, the Notice of Motion appears devoid of
substance and needs to be dismissed. Hence, following order:
: ORDER :
1. Notice of Motion no.1811/18 is dismissed.
2. No order as to costs.
(M.M.UMAR)
Judge,
11/2/2019 City Civil Court, Gr. Mumbai
Date of Dictation : 11/2/19.
Date of Transcription : 11/2/19.
Date of signature : 14/2/19
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
14/2/19 1.30p.m. Mrs.Jyoti R.Mane
Name of the Judge HHJ Shri M.M.Umar(CR No.28)
Date of Pronouncement of
Judgment/Order.
11/2/19
Judgment/order signed by P.O on 14/2/19
Judgment/order uploaded on 14/2/19
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