O R D E R (ORAL)

% 01.06.2022 CM APPL. 26958/2022 in CM(M) 160/2022

1. By this application, preferred in CM(M) 160/2022, the petitioners seek initiation of proceedings, against the respondent, under Section 340 of the Code of Criminal Procedure, 1973 (Cr PC).

2. Section 340 Cr PC reads thus:

“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 interests 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 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;

(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.

(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) A complaint made under this section shall be signed,-

(a) where the Court making the complaint is a 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.

(4) In this section," Court" has the same meaning as in section 195.”

3. Clearly, Section 340 Cr PC relates back to Section 195 (1)(b) of the Cr PC.

4. On a query from the Court as to the provision of the IPC, amongst the several provisions envisaged by Section 195 (1) (b) of Cr.PC, that the petitioners seek to invoke against the respondent, learned Counsel for the petitioners submits that he is invoking Section

209 of the IPC, which reads as under:

“209. Dishonestly making false claim in Court.—

Whoever fraudulently or dishonestly, or with intent to injure or annoy any person, makes in a Court of Justice any claim which he knows to be false, shall be punished with imprisonment of either descrip tion for a term which may extend to two years, and shall also be liable to fine.

5. Plainly read, Section 209 IPC applies only where a person fraudulently or dishonestly makes a claim, in a Court, which he knows to be false, with intent to injure or annoy any person. There are, therefore, three ingredients in Section 209, viz. (i) the making, by the accused, of a claim which he knows to be false, (ii) fraud or dishonesty in making of the said claim and (iii) intent, while making the said claim, to injure or annoy any person.

6. These three ingredients, plainly, have to be read cumulatively and, in the absence of any one of the ingredients, even a prima facie case for initiating proceedings under Section 340 Cr PC read with Section 209 of the IPC cannot be said to be made out.

7. Learned Counsel for the petitioners attributes the commission of offence, under Section 209 of the IPC, to the respondent, on the basis of para 20 and 50 in the reply filed by the respondent on 14th March, 2022, in response to CM(M) 160/2022.

8. These two paragraphs may be reproduced thus:

“20. That the Respondent company during the year 2016-17 had submitted export bills to the tune of Rs. 40 crores approx on collection for payment through Jammu & Kashmir Bank & others which are pending with the Jammu & Kashmir Bank for remittance/settlement. The Export bills are admittedly not been paid