9911796707
TMI Blog2005 (12) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... pt by erasing typed word `cash' and written the same in hand but also the typed figure of ₹ 30,000/- and added in hand a figure of ₹ 2 lacs. Thus according to the applicant, Kuldeep Kapoor, Girdhari Lal and Ashok Kapoor have fabricated, tampered and forged the document with an intention to use the same in Court as evidence or otherwise. It is also stated that the plaintiff and his witness Girdhari Lal have intentionally given their incorrect addresses before the Court on affidavit and have therefore made false statement before the Court during judicial proceedings. The agreement and receipt were in possession of the plaintiff and his accomplices, as such they are liable to be prosecuted under Sections 191, 192 of the Indian Penal Code and punishable under Sections 193, 196 and 200 of the Code for forgery of documents and the offences under Sections 463, 464 of the Indian Penal Code punishable under Section 465 of the Code and for the offences under Sections 469 and 470 of the Code punishable under Section 471 of the Code. On this premise, it is prayed that the Court may direct initiation of appropriate proceedings under Section 340 Cr.P.C. against the plaintiff and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... davit in Court and it would be immaterial that the documents were forged prior or during the course of judicial proceedings before the Court. In alternative, it is contended that the documents in the present case might have been forged or tampered with after institution of the suit and this itself being a matter of controversy, can only be examined by the Court of competent jurisdiction with the permission or under the directions of this Court. In support of this argument, he relied upon Section 195 of the Code read with Section 340 Cr.P.C and the very two judgments of the Supreme Court relied upon by the plaintiff in the case of Iqbal Singh Marwah v. Meenakshi Marwah (supra) and Sachidanand Singh v. State of Bihar and Anr (supra). 4. At this stage, it may be noticed that in the suit, the plaintiff had also filed an application under Order 39 Rules 1 and 2 read with Section 151 CPC for grant of ad-interim injunction Along with the suit. This application was contested by the defendant. The factual controversy raised in the present application was also raised in that application. The facts giving rise to the suit and that application were decided by the Court vide its order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for purchase of entire second floor and the terrace thereupon of property situated at D-632, Chitranjan Park, New Delhi, for a sum of ₹ 10 lacs. The defendant received part payment of ₹ 4 lacs from the plaintiff towards the sale of the said property and acknowledged the receipt thereof in clause 1 of the agreement. The defendant also received a sum of ₹ 2,00,000/- from the plaintiff towards sale consideration. For this, the defendant executed a separate receipt on 20th October, 2004 In terms of clause 7 of the agreement to sell, the defendant was required to get the property in question converted into freehold from leasehold. On the property being converted, it was agreed between the parties that a sale deed would be executed. The plaintiff claims to have visited the defendant on number of occasions and requested him to execute the sale deeds in terms of the agreement to sell dated 8th October, 2004, but the request fell on deaf ears. Perturbed by the attitude of the defendant, the plaintiff claimed to have served a notice through counsel on 15th March, 2005 requesting the defendant to execute sale deed or in alternative, the plaintiff would proceed to recover the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stances and facts of the case. In the written statement filed on behalf of the defendant preliminary objection with regard to maintainability of the suit was taken that plaintiff has not come to the court with clean hands as plaintiff has forged and tempered with the documents on the basis of which the suit has been filed. While denying the averments made in the plaint, it was stated that the plaintiff had entered into agreement dated 8th October, 2004 in regard to sale of second floor of the property at D-632, Chitranjan Park, New Delhi, but copy of the agreement annexed to the plaint is forged and tempered document and the veracity of the document has been denied.It has been averred that there has been insertions. It is stated that Ashok Kapoor was instrumental and he Along with the plaintiff has played a fraud upon the defendant. It is stated that defendant was suffering from severe financial problems and was also having ill health and had to undergo an open heart surgery on 26th August, 2004 During this time, he met Ashok Kapoor, who offered to help him financially by giving him loan of ₹ 1 lac. He came with a draft agreement to sell and instead of Ashok Kapoor, the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame date. This was in terms of clause 4 of the agreement between the parties. The plaintiff though accepted the cash amount of ₹ 50,000/-, however, did not accept the demand draft dated 14th February, 2005 and instead asked for payment in cash. As such another sum of ₹ 50,000/- was given by way of cash to Kuldeep Kapur and on asking for receipt of these payments, the plaintiff said that the matter having been settled, there was no need of issuing receipts for ₹ 1 lac and original agreement would be destroyed. Later on Ashok Kapoor informed that the original documents had been destroyed and that as an abundant caution, the defendant vide his letter dated 4th April, 2005 informed the plaintiff that he had paid the full loan amount back. This was sent by registered post but was received back with the comments that the addressee had refused to receive the same. Notice dated 4th May, 2005 is admitted to have been received by the defendant which was replied and on 8th May, 2005 Kuldeep Kapur came Along with his brother Ashok Kapoor and his wife Mrs.Priya Kapoor. They issued a receipt acknowledging the receipt of full amount of the loan Along with interest from the defen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intiff in his statement under Order 10 CPC even denied that he knows any Mr.Ashok Kapoor who was the attesting witness to the document. The conduct of the parties before the Court compelled the Court even to call the attesting witness for recording statement, who intentionally avoided to answer the questions and patently told lies and later on apologise to the Court with clear undertaking that they would answer the question of the Court truthfully, correctly and without any demur. The documents were kept in a sealed cover. The plaintiff as well as the attesting witness have not only failed to comply with their assurances given to the Court, but even refused to answer the questions in relation to the receipt which according to the defendant had been tampered with by the plaintiff. A typed print which has been rubbed off of ₹ 30,000/- in cash was clearly visible to naked eye but was subsequently hand-written below as ₹ 2 lacs. But on these, plaintiff and the attesting witness refused to answer and even refused to read which could be seen by a naked eye in open Court. Vide order dated 10th September, 2005 keeping in view the blanks in the documents, over writing and rubbin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and orders were reserved on 7th October, 2005. The plaintiff probably with an intention to further delay the proceeding in the suit also filed an application under Order 6 Rule 17 of the CPC, for amendment of the plaint, being IA 7988/2005 which was got dismissed as withdrawn on 21st October, 2005. The arguments on the application under consideration were heard and judgment reserved on the same date. Before I proceed to discuss the merits of the contentions raised, in view of the above narrated factual matrix, as it appears from the pleadings of the parties and the Court record, it will be most appropriate to notice that Dr.S.R.Singh, Director, Central Forensic Science Laboratory, Kendriya Karyalaya Parisar, Block No. 4, Lodhi Road, New Delhi had indicted the plaintiff. This report was submitted in furtherance to the order of the Court. The relevant conclusion of the report reads as under :- II. The computer printout of photocopied document i.e. agreement to Sell (C-1) running into pages 7 to 10 tally with the original Agreement to Sell `X-1' running into pages 2 to 5 at their corresponding pages 2 to 5 at their corresponding pages (parawise) on superimposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Forensic Experts. Clause 4 of the said agreement in the photo copy filed by the defendant is not scored out while in the original agreement clause 4 is scored by drawing horizontal lines. Both photo copy and the original even at clause 4 bear signatures of the defendant in addition to the page having been signed at 3 different places. According to the plaintiff, it was after scoring the said clause that defendant had put his signatures in his writing and with his pen at the same time. While according to the defendant, he had only added the word `d' to make correction in the word `mature' to `matured'. In view of the report of the forensic expert, the version put forward by the defendant appears to be correct. The ink used in scoring out clause 4 of the original agreement is a different ink than the ink used for correction of the word `d' and signatures of the defendant. The ink of `d' and signatures of the defendant are in the same ink. In relation to the receipt for a sum of ₹ 2 lacs dated 20th October, 2004, which was marked X, there is obvious variation in the stand taken by the plaintiff. In the plaint a different version has been stated to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inciples of law enunciated by the Supreme Court in various cases relating to this aspect. In the case of K. Karunakaran v. T.V. Eachara Warrier and Anr. , the Supreme Court held that the Court on an application under Section 340 of the Code of Criminal Procedure is primarily concerned with the question whether a prima facie case is made out which if un-rebutted may have a reasonable likelihood to establish a specific offence and whether it is also expedient in the interest of justice to take such action. The Court is really not concerned with the result of the main case. Once false statements are made in the proceedings of a suit, this would have a great bearing in forming of the opinion by the Court. The Supreme Court in the above case, where the complainant before the High Court under Section 340(1) of the Code of Criminal Procedure stated that action should be taken against Shri Karunakaran for making false averments in the affidavit filed in a writ petition before the High Court, held as under :- 26. It is well-settled that this Court under Article 136 of the Constitution would come to the aid of a party when any gross injustice is manifestly committed by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 340 of the Code. Wherever, the Court is of the opinion that it is expedient in the interest of justice that an enquiry should be made to any of the offences referred to in Section 196(1)(b), which appears to have been committed in or in relation to proceedings in that Court, such Court may after such enquiry, if any, as it thinks necessary record a finding to that effect, or even could make a complaint thereof in writing and send it to the Magistrate of the First Class having jurisdiction. That Court would then deal with the matter in accordance with law. 8. Thus, there would be matters where a person fabricates documents and then produces the same in evidence knowing it fully well that the Court is going to rely upon or form its opinion on the basis of such document. Still in other cases, the affidavit or statement made by a person in evidence or otherwise and where the person was under an obligation to speak truth, files false affidavit to his knowledge, in both these events he renders himself liable to be proceeded against in accordance with law in terms of the afore-referred provisions. In the case of Sachida Nand Singh and Anr. v. State of Bihar and Anr. (supra), the Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, the Court may held that a person is liable to be prosecuted and grant the sanction, if necessary. If in the opinion of the Court, the bar under Section 195(1)(b) is not attracted, then the offender would be liable to be prosecuted in any event as the conditions imposed under Section 195(1)(b) would not be attracted or applied to the facts of the case. 11. The plaintiff/non-applicant has filed two replies, one on 19th September, 2005 and the other on 21st September, 2005. In the earlier reply filed it was stated that the non-applicants have no concern with the forgery and fabrication of the document as alleged, and the application was entirely malafide and intended to harass the non-applicant. The averments made in the application were denied and a definite stand was taken that the plaintiff had put a signature only to cover the alphabet 'd' in the word 'mature' and it was stated that this was put to confirm the fact that clause 4 has been struck off the agreement. It was denied that the plaintiff was in possession of the agreement to sell and has fabricated the said document. According to them the defendant had forged the said document and was liable to be pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e pendency of the application, a complaint was filed by the respondents under different Sections of the Indian Penal Code on the ground that the will of Mukhtar Singh Marwah set up by the appellants was forged and fictitious document. The complaint was dismissed by the Metropolitan Magistrate keeping in view the bar contained in Section 195(1)(b)(i). This order was set aside and the matter was remanded by the Sessions Judge to the Trial Court. This order was challenged before the High Court which was dismissed on 15th September, 2000 following the principle laid down in Sachida Nand Singh's case. The order of the High Court was challenged before the Supreme Court which appeals were dismissed. In these circumstances, their Lordships of the Supreme Court held as under:- 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 fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal against an order passed under Section 343(2), whereby hearing of the case is adjourned until the decision of the appeal. These provisions show that, in reality, the procedure prescribed for filing a complaint by the Court is such that it may not fructify in the actual trial of the offender for an unusually long period. Delay in prosecution of a guilty person comes to his advantage as witnesses become reluctant to give evidence and the evidence gets lost. This important consideration dissuades us from accepting the broad interpretation sought to be placed upon clause (b)(ii). 20. An enlarged interpretation to Section 195(1)(b)(ii) whereby the bar created by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in Court, is capable of great misuse. As pointed out in Sachida Nand Singh, after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution, either at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cases have to be decided on the basis of the evidence adduced therein. The standard of proof required in two proceedings are entirely different. 16. The object of a penal provision is always and must be construed so as to suppress the mischief and advance the object which the Legislature had in view for the administration of justice. 17. The arguments raised on behalf of the non-applicants are without merits as the judgment on facts would not help the non-applicants. It is pertinent to notice here that there is a controversy as to when the documents were tampered or forged. As already indicated the original documents were not filed with the plaint but were produced in the court in furtherance to order of the court dated 2nd September, 2005. According to the applicant he had signed the receipt with typed figures of 'cash' and ₹ 30,000/-, but when the original was produced in Court, this was scored out and substituted by handwritten word 'cash' and ₹ 2 lacs. Similar is the plea taken by the applicant in relation to the agreement executed between the parties. As far as Mr. Kuldeep Kapoor is concerned, he has filed affidavits which to his knowledg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were produced, the tampering was visible, even to a naked eye. 19. Applying the principles enunciated in the case of Iqbal Singh Marwah (supra), it is apparent that it is expedient in the interest of justice to direct prosecution of the three persons namely Mr. Kuldeep Kapoor, Mr. Ashok Kapoor and Mr. Girdhari Lal in accordance with law. Though, in the application name of Mrs. Priya Kapoor has been mentioned, but no specific averments have been made, nor her role in relation to any forged document has been stated in the application. Consequently, no prosecution can be directed against her. 20. There is more than one aspect to this application. It does not only relate to fabrication or forgery of documents, but also of filing false affidavits before the court. 21. The purpose of enquiry under Section 340 of the Cr.P.C. is a very limited one. Once the ingredients of this Section are satisfied, the court has to conduct a very limited enquiry. As a result of that enquiry the court may record a finding to that effect, or even on the basis of preliminary enquiry make a complaint or send it to a magistrate of the First Class having jurisdiction, for the offender to be tried in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiff in his statement before the Court has categorically admitted that he had given incorrect addresses in his affidavit, which were not his residential addresses. Not only this, he has even failed to give any explanation in that regard. The attempt of doing all this obviously is to mislead the court and interfere in the administration of justice. Such an attempt on the part of a party cannot be ignored by the court. The law enunciated in the above judgments and the facts and circumstances of the case kept in mind, would apparently show that it is expedient in the interest of justice that an enquiry should be made. Even if the bar under Section 195(1)(b) does not come into play, as alleged by the non-applicants, as the documents were tampered or forged prior to the institution of the suit, even then the remaining part of making false statement on affidavit before the court, would still require the permission of the court and as such this objection, even if taken to be correct on its face value, would hardly be of any consequence. One of the arguments raised on behalf of the applicant was that the documents have been tampered with during and after the institution of the suit, in as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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