Judgment apeal383.24 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY : NAGPUR BENCH : NAGPUR. CRIMINAL APPEAL NO. 383/2024. Rajnesh Naidu, Resident of 1, Mekosabagh, Opposite Radha Krishna Mandir, Nagpur 440014. ... APPELLANT. VERSUS Neha w/o Ranjesh Naidu (Joshi), Aged about 41 years, Occupation Nil, resident of 201, Prashant Sahniwas, Prashant Nagar, Ajni, Nagpur 440015. ... RESPONDENT. --------------------------------- Appellant Rajnesh Naidu – In-person. Mr. A.V. Pande, Advocate for the Respondent. --------------------------------- CORAM : NITIN B. SURYAWANSHI AND PRAVIN S. PATIL , JJ. Closed for Judgment on : 17.02.2025. Judgment Pronounced on : 21.03.2025. Rgd. 2025:BHC-NAG:2870-DB Judgment apeal383.24 2 JUDGMENT (PER Nitin B. Suryawanshi, J.) : By this appeal filed under Section 341 read with Section 482 of the Criminal Procedure Code, appellant party – in-person challenges the order passed by the learned Family Judge (Court No.3, Nagpur) below Exh.1 in Criminal M.A.No.17/2023. 2. The appellant has filed an application under Section 340 of the Criminal Procedure Code for taking action against the respondent, contending that the respondent has filed a petition No. E-443/2013 for grant of maintenance under Section 125 of the Criminal Procedure Code. In said application, she filed false affidavit of assets and liabilities, and also deposed falsely before the Court. He therefore requested the Court to take action against the respondent under Section 340 of the Criminal Procedure Code. The trial Court after hearing the parties dismissed the said application by order dated 08.07.2024. Said order is impugned in the present appeal. Rgd. Judgment apeal383.24 3 3. Heard the appellant party in-person and learned Counsel for the respondent. 4. The bone of contention of the appellant is that since the trial Court has failed to conduct preliminary enquiry as contemplated under Section 340 of the Criminal Procedure Code, the impugned order is liable to be quashed and set aside, and the matter be remanded back to the trial Court for conducting said enquiry. The appellant also submitted that the trial Court has not made any observations about the arguments advanced by him and therefore, the impugned order is vitiated for non-application of mind on the part of the trial Court. It is further submitted that though the Court directed Central Bank of India to file account details of appellant and his father, misusing the position of her mother, the respondent saw to it that account details of other persons whose names were similar to the names of appellant and his father were also forwarded to the trial Court along with account details of appellant and his father. The respondent has filed her IT returns of only one financial year and concealed other IT returns. According to him these facts clearly Rgd. Judgment apeal383.24 4 demonstrates that false and incorrect statements are made by the respondent in the maintenance proceeding before the Court and she has concealed material facts, therefore, there is sufficient material on record to initiate proceedings against her under Section 340 of the Criminal Procedure Code. 5. In support of his submissions, he has relied on the following judgments : (1) Order of Delhi High Court in Criminal Revision Petition No.944/2019 dated 15.10.2019 (Abhishek Dubey .vrs. Archana Tiwari). (2) Judgment of this Court (Bombay) in Criminal Application No.728/2017 dated 07.03.2018 (Fareed Ahmed Qureshi .vrs. The State of Maharashtra and another) (3) Judgment of Apex Court in Contempt Petition (Civil) No.378/1998 dated 25.01.2000 (Murray and Co. .vrs. Ashok Kr. Newatia and another) (4) Order of Kerala High Court in Criminal M.C.No.3275/2016 dated 25.11.2022 (Sajeevan Balakrishnan Pillai .vrs. State of Kerala) (5) Judgment of Apex Court in SLP (Criminal) No.8408/2008 dated 17.03.2010 (Sharad Pawar .vrs. Jagmohan Dalmiya and others) Rgd. Judgment apeal383.24 5 (6) Orders passed by Allahabad High Court in Writ Petition No.56(M/S)/2003 dated 09.01.2003 (Syed Nazim Husain .vrs. The Additional Principal Judge and another) (7) Order passed by this Court (Bombay) in Civil Application No.2939/2017 in Writ Petition No.14039/2017 dated 26.04.2018 (Union of India .vrs. Haresh V. Milani and another) (8) Judgment of Apex Court reported at [2002] 1 SCC 253 (Pritish .vrs. State of Maharashtra and others) (9) Judgment of Apex Court reported at 2022 SCC Online SC 1240 (State of Punjab .vrs. Jasbir Singh) (10) Judgment of Apex Court reported at [2005] 4 SCC 370 (Iqbal Singh Marwah and another .vrs. Meenakshi Marwah and another) 6. Learned Counsel for the respondent on the other hand supported the impugned order, he submitted that the trial Court is justified in rejecting the application filed by the appellant. By relying on the order of the Apex Court in case of The State of Punjab.vrs. Jasbir Singh (supra), he submitted that holding of enquiry under Section 340 is not mandatory. It is submitted that trial Court has recorded satisfaction that it is not expedient to hold enquiry in the present Rgd. Judgment apeal383.24 6 matter. He further points out that the appellant is in arrears of maintenance, and therefore, his defence was struck off. He further submitted that taking into consideration the voluminous documents placed on record by both parties, there may be some mistakes committed by the respondent while submitting the documents and filing affidavits, but, those cannot be termed as deliberate mistake or that respondent has concealed material facts from the Court or has deliberately made incorrect statements, and for that purpose she is not liable to be punished. At the end he submitted that the trial Court has passed a well reasoned order which is not liable to be interfered with, hence, the appeal filed by the appellant may be dismissed. 7. With the assistance of the appellant, and learned Counsel appearing for the respondent-wife, we have perused the appeal memo, documents filed on record and citations relied by both the parties. 8. While assailing the impugned order, appellant has raised various grounds including that no opportunity was given to him to call witness under Section 311 of the Criminal Procedure Code, in terms Rgd. Judgment apeal383.24 7 of the observations of this Court in Criminal Writ Petition No.670/2022, preliminary enquiry contemplated under Section 340 of the Criminal Procedure Code was not conducted by the trial Court, trial Court has not discussed about the contentions raised by him in the application etc. 9. Before considering the rival submissions it is necessary to take note of relevant facts and the litigation between the parties. Marriage of the appellant with respondent was solemnized on 18.12.2011. A boy was born out of the said wedlock on 10.01.2013. In 2013, the respondent wife alleged mental and physical harassment at the instance of appellant/husband, and thereafter they both separated. In September, 2013 the respondent filed a petition under Section 125 of the Criminal Procedure Code for grant of maintenance @ Rs.35,000/- for herself and Rs.15,000/- for the minor son in Family Court, Nagpur. The appellant contested this application by filing reply. Family Court directed the appellant to pay interim maintenance @ Rs.25,000/-. The same is confirmed till the Apex Court. Rgd. Judgment apeal383.24 8 Since the appellant could not clear that the arrears of interim maintenance, his defence was struck off under the orders of this Court in Criminal Writ Petition No.694/2021, therefore, the Family Court closed the evidence of respondent/wife. The appellant challenged the said order by filing Criminal Writ Petition No.89/2022, which was allowed, and appellant was permitted to cross-examine respondent wife. Various documents including I.T. returns of appellant were placed on record by the respondent, so also various communications made by her to the Bank seeking appellant’s bank statements. 10. According to the appellant, since wife is not the author of the documents filed on record by her, it was necessary for her to examine concerned witness to prove those documents. Appellant therefore, filed an application for grant of permission to examine the witnesses. The said application was rejected by the Family Court. The appellant challenged the said order before this Court in Criminal Writ Petition No.670/2022. The learned Single Judge of this Court by order dated 21.12.2022 dismissed the criminal writ petition by Rgd. Judgment apeal383.24 9 observing that “So far as the falsity in the documents or in the affidavit placed on record by the Petitioner – wife is concerned, the petitioner herein is at liberty to adopt appropriate proceedings.” 11. After passing of this order, the appellant filed application Exh.469 for taking action against the respondent under Section 191 to 199, 209 and 415 of the Indian Penal Code, as per the provisions of Section 340 of the Criminal Procedure Code. The trial Court disposed of this application with a direction that the appellant shall file separate proceedings under Section 340 of the Criminal Procedure Code. This order was challenged by the appellant by filing Criminal Writ Petition No.44/2023, which was dismissed by the learned Single Judge of this Court vide order dated 25.01.2023. Thereafter on 02.03.2023, present application under Section 340 read with Sections 195 of the Criminal Procedure Code and Sections 191, 192, 193, 195, 196, 197, 199, 209 and 415 of the Indian Penal Code is filed by the appellant, praying to take action against the respondent under Section 340 and for summoning the witnesses to obtain details, to examine the documents exhibited and for conducting an enquiry Rgd. Judgment apeal383.24 10 against the respondent for making false irresponsible pleadings, false submissions on sworn affidavit, concealment of material facts, fabrication of evidence, making submissions known to be false, while intentionally misleading the Court with malafide intention for unlawful gains and to file a complaint against the respondent under Section 340 of the Criminal Procedure Code read with Section 195 of the Criminal Procedure Code. 12. Appellant thereafter filed application in the trial Court requesting to call the record of Petition No.E-443/2013 to decide C.M.A.No.17/2023. The said application was rejected by the trial Court. By filing Criminal Application (APL) No.1058/2023, appellant challenged the said order before this Court. Learned Single Judge by order dated 25.08.2023 partly allowed the application and directed the Family Court to favourably consider the request made by the appellant to call record of Petition No.E-443/2013, to decide CMA No.17/2023 if there is no other legal impediment. Thereafter in support of his application, the appellant filed Synopsis at Exh.13 in the trial Court. Trial Court after hearing the parties has passed the Rgd. Judgment apeal383.24 11 impugned order, which is challenged in the present appeal. 13. Before entering into the merits of the matter, it is necessary to consider the relevant provision of Section 340 of the Criminal Procedure Code, which is as follows : “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 sub-section (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 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; (d)take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable 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. Rgd. Judgment apeal383.24 12 (2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub- section (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 sub-section (4) of Section 195. (3) …. (4) .… ” In view of the language used in Section 340 of the Criminal Procedure Code, it is not mandatory for the trial Court to hold an enquiry, unless it forms an opinion that it is expedient in the interest of justice that an enquiry should be made in offence referred to in Clause [b] of sub- section [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 that Court. Since discretion is vested in the Court to conduct or not to conduct enquiry, we are unable to agree with the submissions of the appellant that under Section 340 of the Criminal Procedure Code, the Court is duty bound to hold an enquiry. Rgd. Judgment apeal383.24 13 14. The Apex Court in State of Punjab .vrs. Jasbir Singh (supra), has held that Section 340 of the Criminal Procedure Code does not mandate preliminary enquiry and an opportunity of hearing to the would be accused before a complaint is made under Section 195 of the Criminal Procedure Code. 15. Constitution Bench in Iqbal Singh Marwah and another .vrs. Meekanshi Marwah and another (supra), held :- “23. In view of the language used in Section 340 Cr.P.C. the Court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the Section is conditioned by the words "Court is of opinion that it is expedient in the interest of justice." This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the Court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the Court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged Rgd. Judgment apeal383.24 14 document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in Court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the Court may not consider it expedient in the interest of justice to make a complaint. The broad view of clause (b)(ii), as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged document remediless. Any interpretation which leads to a situation where a victim of a crime is rendered remediless, has to be discarded.” 16. In Pritish .vrs. State of Maharashtra and others (supra), it is held as under : “9. Reading of the sub-section makes it clear that the hub of this provision is formation of an opinion by the court (before which proceedings were to be held) that it is expedient in the interest of justice that an inquiry should be made into an offence which appears to have been committed. In order to form such opinion the Rgd. Judgment apeal383.24 15 court is empowered to hold a preliminary inquiry. It is not peremptory that such preliminary inquiry should be held. Even without such preliminary inquiry the court can form such an opinion when it appears to the court that an offence has been committed in relation to a proceeding in that court. It is important to notice that even when the court forms such an opinion it is not mandatory that the court should make a complaint. This sub- section has conferred a power on the court to do so. It does not mean that the court should, as a matter of course, make a complaint. But once the court decides to do so, then the court should make a finding to the effect that on the fact situation it is expedient in the interest of justice that the offence should further be probed into. If the court finds it necessary to conduct a preliminary inquiry to reach such a finding it is always open to the court to do so, though absence of any such preliminary inquiry would not vitiate a finding reached by the court regarding its opinion. It should again be remembered that the preliminary inquiry contemplated in the sub- section is not for finding whether any particular person is guilty or not. Far from that, the purpose of preliminary inquiry, even if the court opts to conduct it, is only to decide whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed. Rgd. Judgment apeal383.24 16 17. In the light of above ratio, it is clear that the question of holding preliminary enquiry would arise only if the trial Court is of the opinion that it is expedient in the interest of justice that enquiry should be made into any of the offences referred to in Section 195[1] [b] and this expediency will have to be judged by the trial Court by weighing not the magnitude of the injury suffered by the person affected by such forgery or forged document, but, having regard to the fact of impact of such commission of offence has upon administration of justice. And that it is not mandatory that the Court should make a complaint. In this view of the matter, there is no substance in the arguments of the appellant that the trial Court was duty bound to hold preliminary enquiry and the said argument is therefore, liable to be rejected at the threshold. 18. Perusal of the affidavit filed by the respondent in which the appellant alleges that she has made incorrect statements and concealed the material facts and documents filed by her on record, we find no merit in the contention of the appellant that by making said statement and concealing material facts from the Court and or by Rgd. Judgment apeal383.24 17 filing irrelevant documents and suppressing material documents from the Court, the respondent has committed an offence of perjury and therefore, it is necessary to initiate proceedings against her under Section 340 of the Criminal Procedure Code. 19. In the facts of present case we are of the opinion that it is not expedient in the interest of justice that an enquiry should be made into the offences, which according to the appellant are committed by the respondent. The present case is squarely covered by the ratio in Iqbal Singh (supra) and Pritish’s case (supra). As held in Iqbal Singh’s case, here also voluminous evidence has been produced and we do not find any material to initiate action for perjury against the respondent, and therefore, we do not find it expedient in the interest of justice to make a preliminary enquiry or to make a complaint. It appears that since the appellant was in arrears of maintenance, his defence was struck off. Under orders of this Court he was permitted to cross examine the respondent. Instead of paying arrears of maintenance to respondent, the appellant has left no stone unturned to harass her by filing various proceedings before the trial Rgd. Judgment apeal383.24 18 Court, as well as before this Court. Present application also appears to be filed by the appellant to harass the respondent. Therefore, no case is made out by the appellant for initiating action against the respondent under Section 340 of the Criminal Procedure Code. 20. We do not find any merit in the contention of the appellant that the trial Court has failed to consider his submissions and arguments, in the light of following observations made by the Trial Court in the impugned - “it has gone through the application and synopsis Exh.14. Filed in the matter. Perusal of the application and synopsis shows that applicant wants the Court to take action under Section 340 of the Criminal Procedure Code against respondent considering some admission, omissions, contradictions, change of narration, non-filing of different documents, exaggeration of some facts, her inability to answer some questions etc., in her evidence and with regard to the details given in affidavit of assets and liabilities.” The trial Court after going through the evidence of the appellant and the documents filed on record observed that “some Rgd. Judgment apeal383.24 19 admissions, omissions, contradictions, change of narration, non-filing of different documents, exaggeration of some facts by the present respondent [wife], her inability to answer some questions etc., are not sufficient to initiate proceeding under Section 340 of the Criminal Procedure Code against the respondent. The evidence of respondent and her contentions in the affidavit of assets and liabilities filed in Petition No.E-443/2013 has not in any way affected the judgment or the interim orders.” Therefore, the trial Court was of the view that the appellant has not made out any case to show that it is expedient in the interest of justice to proceed against the respondent under Section 340 of the Criminal Procedure Code. The trial Court has also noted the conduct of the appellant in not paying the maintenance amount and that his defence was struck off due to non-compliance of the order of interim maintenance. It is also observed that the appellant is harassing the respondent and he is leaving no stone unturned to harass her, and the present application is also an example of the same. The trial Court has also observed that even the appellant has filed his affidavit of assets Rgd. Judgment apeal383.24 20 and liabilities at Exh.314, in it he has no where contended that he is earning Rs.15000/- per month, as stated by him in written statement. Infact in Exh.314 in column no. I[1], he has mentioned ‘N.A’ i.e. not applicable. The trial Court therefore observed that if this contention of the appellant is considered on the line of his contentions in the present application, then even action can be taken against him under Section 340 of the Criminal Procedure Code. But, the trial Court was of the opinion that it is not expedient and in the interest of justice to do so. The above observations of the trial Court reveal that the trial Court has considered all the contentions of the appellant in proper perspective and has dismissed the application filed by the appellant by giving cogent reasons. Trial Court has not committed any illegality or jurisdictional error while passing the impugned order. 21. For the aforestated reasons, we find no merit in the appeal filed by the appellant, therefore, the same is therefore, dismissed. There shall be no order as to costs. JUDGE JUDGE Rgd.