1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD 50. WP/1619/2010 (MIR JABBAR ALI MIR AHMED ALI V/S KHANDKESHWAR MANDIR SANSTHA TRUST AURANGABAD ) -------------------------------------------------- Office notes, office Memoranda of Court’s or Coram,appearances, Court’s orders Judge’s or directions and Registrar’s orders Orders Mr.S.P.Deshmukh, Adv.,h/f for Mr.M.G.Deokate, Adv., for petitioner. Mr.B.A.Darak, Adv., for R.1. Mr.K.S.Patil, AGP for respondent State. ... CORAM: K.U.CHANDIWAL, J. DATE:22/10/2010 1. Heard. In RCS No.757/1989 below Exh.442 an application was moved by the plaintiff for inquiry in terms of Section 340 of Cr.P.C. since a Munthakhab, was, allegedly, a fabricated document tendered in evidence. The learned Judge, by his order dt.26.11.2009 rejected the same, plaintiff has questioned its legality. 2. The learned Judge, in paragraph 5 of his order, illustrated that the document was tendered on 11.7.2005 and it was 2 exhibited. Thereafter, for a long drawn period of four years, the plaintiff allowed and acted based on production of such document. He did not challenge the status of the said document anywhere. It was at the stage of argument, the plaintiff moved application, informing the Court that the document was prepared by the Tehsildar and that too in the year 1957. The Court also recorded that witnesses were cross examined on this document also. He did not find any just reason to hold inquiry under Section 340 of Cr.P.C. 3. The Constitution Bench of the Apex Court in the matter of Iqbal Singh Vs.Meenakshi ( 2005(3) Mh.L.J. 540) dealt with this eventuality and in paragraph nos. 18 and 19, illustrated, as under: "18. 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 3 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(i)(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 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 remedyless. Any interpretation which leads to a situation where a victim of a crime is rendered remedyless, has to be discarded. 19. There is another consideration which has to be kept in mind. Sub- section (1) of Section 340 Cr.P.C. 4 contemplates holding of a preliminary enquiry. Normally, a direction for filing of a complaint is not made during the pendency of the proceeding before the Court and this is done at the stage when the proceeding is concluded and the final judgment is rendered. Section 341 provides for an appeal against an order directing filing of the complaint. The hearing and ultimate decision of the appeal is bound to take time. Section 343(2) confers a discretion upon a Court trying the complaint to adjourn the hearing of the case if it is brought to its notice that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen. In view of these provisions, the complaint case may not proceed at all for decades specially in matters arising out of civil suits where decisions are challenged in successive appellate fora which are time consuming. It is also to be noticed that there is no provision of 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)." 5 4. In the context of what is demonstrated in the judgment of the Apex Court, being the law of the land and, having traveled to the submissions advanced before the learned Judge of the lower Court, reflected in paragraph no.5 of his order, I do not find any error or perversity, requiring interference in terms of Article 227 of the Constitution of India. Writ Petition lacks merit, dismissed. No costs. Ad interim reliefs are vacated. (K.U.CHANDIWAL) JUDGE ... AGP/1619-10wp