Bhupinder Kumar Sahni vs Mukesh Kumar Aggarwal and Another

G.S. Sistani, J.

CRL. M.A. No. 17180/2013.

Exemption allowed subject to all just exceptions.

Application stands disposed of.

CRL. A. 1455/2013

Challenge in this appeal is to the order dated 6.8.2013 on an application filed by the appellant u/s 340 Cr.P.C.

The facts of the case, as mentioned in this appeal, are that respondent no. 2, company, had filed a suit under Order XXXVII of the CPC for

recovery of Rs. 5,68,750/- through respondent no. 1 against M/s. Byford Leasing Limited, of which the appellant herein is one of the Directors.

According to appellant, false averments were made in the plaint, including that defendant no. 3, Smt. Krishnawanti Sahni, in the suit was a Director

of Byford Leasing Limited and was actively participating in day-to-day affairs and activities of the company. On the basis of this averment, the

learned trial court issued summons for judgments for appearance against the defendants. This averment, according to the appellant, is a false

averment for the reason that the said Smt. Krishnawanti Sahni died on 20.10.2001 and, thus, respondent no. 1 has committed perjury. Another

application filed by the appellant herein with the same relief was on account of another false averments made with regard to sale of a tractor was

also dismissed by an order dated 6.8.2013, which has led to the filing of the present appeal.

The appellant, who appears in person, submits that the order of the learned Additional District Judge is illegal, arbitrary and perverse, and the

same has led to the gross miscarriage of justice. The documentary evidence was not considered i.e. the certificate dated 29.7.2002, which was

filed by the appellant to establish that the respondents had made a false averment before the learned Additional District Judge, which would

establish that a tractor was handed over to the respondents and sold by them as a distress sale. The certificate would also establish that the said

tractor belongs to Byford Leasing Limited.

Arguments have been addressed by the appellant. In the judgment dated 6.8.2010 while dismissing both the applications the Additional District

Judge has noticed that prior to the filing of the suit the respondents had issued a legal notice dated 13.8.2004, which was sent on behalf of the

plaintiff (respondent no. 1 herein) to all the defendants including Smt. Krishnawanti Sahni, who is the mother of the appellant herein. This notice

was returned with a remark that ''the addressee has refused''. Moreover, in the reply filed, the defendants in the suit which includes the appellant

herein, neither disputed the status of defendant no. 3 (Smt. Krishnawanti Sahni) as a Director nor informed about her demise. On the other had as

soon as the factum of her death became known in Court the plaintiff got her name deleted from the array of parties by filing an application. The trial

court also noticed that the plaintiffs in the suit had apparently arrayed Smt. Krishnawanti Sahni as a defendant on the basis of their personal

dealings without actually verifying the existence of all the defendants on the date of the filing of the suit. While considering these factors, the trial

court dismissed the application u/s 340 Cr.P.C.

I find no infirmity in the judgment of the trial court. The trial court has rightly dismissed the application u/s 340 Cr.P.C. filed by the appellant

herein. The legal notice which was issued prior to the institution of the suit would have been sent at the address of the company and the company,

being a legal entity, instead of refusing the notice should have made an endorsement that Smt. Krishnawanti Sahni has expired. There is no

explanation by the appellant as to how and why such an endorsement was made on the envelope. It is also contended that the respondents

stopped appearing in the suit before the learned trial court and the said suit was dismissed vide order dated 25.8.2010. Although this was not

denied by the respondents in a statement made in Court when Mr. Mukesh Aggarwal appeared as a witness, he had admitted having sold a tractor

as scrap, which initially belongs to defendant no. 1. Thus, it cannot be said that the respondents herein initially filed a false affidavit, as there must

be a prima facie case of deliberate falsehood on a matter of substance.

In my view this is not a case where the respondents intentionally or to gain any unfair advantage impleaded deceased, Smt. Krishnawanti Sahni,

as a party to the suit. Thus, the application filed was misconceived and rightly dismissed. The second application filed by the appellant was also

dismissed on 6.8.2013 on the ground that false affidavit was filed by Mr. Mukesh Aggarwal that a tractor was not delivered to them but admittedly

having sold the same, when he appeared as a witness on 24.10.2009. The trial court has noticed that during his testimony, Mr. Mukesh Aggarwal

had denied that the tractor was delivered towards full and final satisfaction of their claim and according to him it related to other claims of the

company. In the absence of the appellant herein having been able to link the transaction, which is subject matter of the suit, with the delivery of the

tractor, the trial court has rightly dismissed the second application as well. It may also be noticed that the trial court took a prima facie view in the

matter and granted conditional leave to defend the appellant herein since the appellant herein was able to raise the triable issue with regard to the

tractor. Accordingly, no grounds are made out to entertain the present appeal and the same is dismissed.