IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No 2628 of 2003 with CRIMINAL MISC.APPLICATION No 2629 of 2003 For Approval and Signature: HON'BLE MR.JUSTICE D.P.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- SHRI RAM DEVELOPERS , THO' ITS ADMINISTRATOR Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Misc.Application No. 2628 of 2003 MR PJ KANABAR for Petitioner No. 1 Mr.S.S.Patel, A.P.P. for Respondent No. 1 MR HARSHIT S TOLIA for Respondent No. 2 2. Criminal Misc.Application No. 2629 of 2003 MR YOGESH S LAKHANI for Petitioner No. 1 Mr.S.S.Patel,A.P.P. for Respondent No. 1 MR.HARSHIT S TOLIA for Respondent no.2 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE D.P.BUCH Date of decision: 27/08/2003 JUDGEMENT These two petitions have been filed by two different sets of parties contesting a civil litigation before the learned concerned Joint Civil Judge, Senior Division, at Amreli, in Special Civil Suit no.55 of 1991. It seems that in the aforesaid Civil Suit, defendant no.8 Amarsshi Virjibhai Dhanani submitted an application at Exh.313 at page 46 at Annexure "D" to the petition stating that the plaintiff and defendants nos.1/1 to 1/4 have forged a power of attorney, and therefore, they may be dealt with in accordance with law. 2. The said application was supported by affidavits in the said Civil Suit. 3. On receiving the said application, it was fixed for hearing and reply. Accordingly, original plaintiff submitted written objections at Exh.315 whereas the legal representatives of defendant no.1. i.e. defendants nos.1/1 to 1/4 did not submit written objections or counter affidavit opposing the said application of original defendant no.8-Amarshi Virjibhai Dhanani. 4. During the course of arguments, it was added that certain other documents were also there in respect of which the offence of forgery was committed. 5. The learned Judge in charge of the said proceedings, heard the parties and came to the conclusion that there was a prima facie case against those persons, and therefore, the said application was allowed, and the learned trial Judge directed that a complaint be filed against the plaintiffs and defendants nos.1/1 to 1/4 for offences punishable under Sections 464, 465, 467, 471 and other offences under the Indian Penal Code ("IPC" for short) read with Secs. 34 and 120B of the IPC read with Sec.511 of the IPC before the Chief Judicial Magistrate at Amreli. 6. Feeling aggrieved by the said order of the learned Civil Judge dated 9-4-2003, the petitioners have preferred these petitions before this Court with a prayer to quash the said order of the learned Judge. On receiving the applications, notices were issued and in response to the service of notices, learned A.P.P. has appeared for the State whereas Mr. N.D. Nanavaty, learned Senior Advocate has appeared on behalf of original defendant no.8 who has supported the order impugned in these two petitions. I have, therefore, heard, the learned Advocates for the parties and the learned A.P.P. and they have taken me through the relevant records of the aforesaid matter, copies whereof have been produced on record of these two petitions alongwith affidavits of the concerned parties. 7. Mr. P.J. Kanabar, learned Advocate appearing for the petitioner in Misc. Criminal Application no.2628/2003, has argued the matter extensively, mainly attacking the order impugned in these petition on the ground that the trial Court did not apply its mind to the facts and circumstances, and that the provisions made in Secs. 195, 197 and340 were not properly considered and the trial Court should not have passed the order in question without entering into enquiry, and that the order should not have been passed at the stage when the original suit is pending at the stage of recording of evidence. 8. Mr. Y.S.Lakhani arguing the matter on behalf of the petitioners in Misc.Criminal Application no.2629/2003 has supported the argument of Mr. Kanabar and has further argued that his clients were not involved in the offences and they were not concerned, connected, related or interested in the outcome of the alleged offences, and therefore, no offence is made out against his clients, and that the complaint may be quashed qua his client. 9. Mr. P.J. Kanabar, learned Advocate appearing on behalf of the petitioners in the first petition i.e. Misc.Criminal Application no.2628/2003 has, however, argued that the provisions contained in Section 195 of the Code of Criminal Procedure, 1973 ( for short "the Code") have not been followed, and therefore, the order impugned in this petition is required to be quashed and set aside. 10. Now, if we consider the provisions made in Section 195 of the Code, it would be worthwhile to refer to the said provisions made in Section 195 of the said Code hereinbelow for ready reference: "195. Prosecution for contempt of lawful authority of public servants for offences against public justice and for offences relating to documents given in evidence._ (1) No Court shall take cognizance- (a) (i) of any offence punishable under Sections 172 to 188(both inclusive) of the Indian Penal Code (45 of 1860), or (ii) of any abetment of, or attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; (b) (i) of any offence punishable under any of the following sections of the Indian Penal Code(45 of 1860), namely, Section 193 to 196 (both inclusive), 199,200, 205 to 211 (both inclusive) and 228, when such an office is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate. (2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint; Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded' (3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act, if declared by that Act to be a Court for the purposes of this section. (4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate: Provided that_ (a) where appeals like to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; (b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed." 11. Section 340(1) of the said code reads 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 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. 12. On reading the said provisions, an argument has been advanced to the effect that under the aforesaid provisions, a complaint is required to be filed by the Court and the filing of complaint could not have been entrusted to the officer of the Court. 13. On going through the impugned order, it is very clear that the learned trial Judge has directed that the Registrar of the Court should file a complaint before the said Court. 14. On going through the provisions made in Section 340(3) of the said Code, it is very clear that the complaint was required to be filed by the Court itself and the said work could not be entrusted to the officer of the Court. Subsection (3) of Section 340 makes it clear that the complaint is required to be filed by the Court. It does not say that the complaint could be filed by the officer of the Court, under the order of the Court. 15. This point was not seriously disputed even by the respondent, and therefore, without going into detailed discussion on the subject it has to be accepted that the complaint ought to have been filed by the Court concerned and not by the officer of the Court. To that extent, the order cannot be treated to be legal, and therefore, it is required to be modified accordingly. 16. Then, it has been argued by Mr. Kanabar for the petitioners that the Civil Suit is pending, and the order impugned in this petition has been passed during the pendency of the suit and the trial has yet not commenced. It has also been argued that now affidavits are permitted in lieu of oral evidence, and therefore, the trial will commence very soon and the parties will be at liberty to file affidavits and opposite parties may cross-examine the witnesses on the strength of the affidavits, and therefore, the trial will be over very soon. Now, Section 195 and 340 of the said Code have been referred hereinabove and it nowhere says that an order for filing complaint can be passed by the Court concerned only at the stage of conclusion of trial, and that no such order can be passed during the pendency of a suit. 17. It appears that there are some decisions saying that it would be desirable to pass such orders at the close of the trial, nevertheless, it has nowhere been laid down that it would be obligatory on the part of the trial Court to wait till the end of the trial for passing an order like the one impugned in the present petition. Therefore, simply because the suit is pending, it would be no ground for allowing the petition and quashing the impugned order. 18. It has then been argued by Mr. Kanabar that according to the allegations made at page 51, only the power of attorney submitted at mark 233/1 in the aforesaid Civil Suit on 23rd April, 2000, is allelged to have been forged. Now, if we go through the order as a whole, it becomes clear that during the course of arguments, allegations have been made with respect to other documents referred in the order. 19. It is required to be considered that while passing the said order, the learned Judge had with him the affidavits of concerned parties. This can be gathered from the order of the trial Court. In paragraph 2 of the said order at page 54, the learned trial Judge has clearly observed that in support of the application at Exh.313 filed by original defendant no.8, Manubhai Nanjibhai Antani and Shantaben Virjibhai have submitted their affidavits at Exh.318 and 319. This shows that the contentions of defendant no.8 in the application Exh.313 with respect to power of attorney mark 233/1 have been supported by affidavits Exhs.318 and 319 before the trial Court. 20. Paragraph 3 of the said order at page 54 further shows that the original plaintiff Jaisukhbhai Bhagwanjibhai had filed written objections at Exh.315. This shows that the plaintiff had submitted his objections but the objections were not supported by his affidavit. 21. Paragraph 4 of the said order at page 54 also shows that the legal representative of defendant no.1 i.e. defendants 1/1 to 1/4 did not submit written objections or affidavits in reply to the affidavit of the said two persons. 22. The above facts make it clear that the contentions raised in application Exh.313 by defendant no.8 in Special Civil Suit no.55/91 with respect to the forgery of power of attorney mark 233/1 have been supported by affidavits of Manubhai Nanjibhai Antani and Shantaben at Exhs.318 and 319. It has also been borne out from the impugned order that these averments have not been controverted by way of counter-affidavit either by plaintiff Jaisukhbhai or by defendants 1/1 to 1/4. On one hand the plaintiff did not submit affidavit in support of his written objection Exh.315 and on the other hand defendants 1/1 to 1/4 did not submit their objections in writing or affidavits. This clearly means that the averments made on oath by Manubhai and Shantaben in Exhs.318 and 319 before the trial Court in support of the impugned application Exh.313 with respect to the forgery of power of attorney mark 233/1 submitted by defendant no.8 have remained uncontroverted on record before the trial Court. It is well settled that when a matter is being disposed of on affidavits and if there is affidavit of one party, and if the allegations and averments of the affidavits have not been controverted by counter affidavit by the opposite parties, then, in that event, the averements and allegations in the affidavit not controverted by affidavit by the opposite side may be accepted to be true. 23. Therefore, prima facie, the trial Court was justified in accepting the truthfulness of the averments and allegations made in the affidavits Exhs.318 and 319 in support of impugned application Exh.313 in the said Special Civil Suit with regard to the alleged forgery of power of attorney mark 233/1. 24. The learned advocate for the petitioner has drawn my attention to his argument before the trial Court referred to in paragraph 16 at page 62. It seems that Mr. Kanabar had argued before the trial Court that order under Section 195 can be passed only by a Court and a party has no right to file application for such an order under Section 195 of the said Code. The provisions contained in Section 195 have been reproduced hereinabove. On a bare look at the said provision, it is not possible to hold that the Court has to act only suo moto and it cannot act on an application of a party. Therefore, this contention cannot be accepted. 25. Arguments were advanced at length by Mr. Kanabar regarding the grounds enumerated in impugned order of the trial Court for coming to a decision for filing complaint which can be gathered at page 65 onwards. It may be stated here that this Court cannot go into the sufficiency of materials before the trial Court for arriving at a decision to file a complaint, as has been done by the trial Court. The above reasons go to show that the trial Court has assigned reasons for coming to a decision of filing complaint. Therefore, it cannot be said that the trial Court has not assigned reasons for allowing the above application and for coming to a decision for filing complaint against the original plaintiff and defendants 1/1 to 1/4. 26. At page 69, the trial Court has observed that it cannot be presumed that the documents and affidavits are false. At the same time, the trial Court has also given reasons for coming to a decision for filing a complaint. Now, simply because the trial Court has observed that it is not possible to presume something in favour of defendant no.8, it cannot be said that the trial Court has committed an error in the eye of law, in coming to a decision for filing complaint against the persons named in the said order. 27. The trial Court was required to come to a prima facie decision and it was not necessary for it to finally conclude this way or that way. 28. Even at page 69 and onwards, the trial Court has given reasons as to why it was coming to a decision of filing a complaint. 29. It has also been argued by Mr. Kanabar that a wrong order has been passed against the plaintiff for filing complaint after a long time. The trial Court has considered the averments made in the application supported by affidavits. The trial Court has also considered the objections filed on record. The trial Court has further considered the arguments advanced by the learned Advocates for the contesting parties. Therefore, it cannot be said, at this stage, that the order is wrong or illegal. Again, with respect to the delay in submitting the application, the said issue can be dealt with and decided as and when the trial proceeds ahead. Mere delay in filing of a complaint would not be a justification for quashing the order. 30. It has also been argued by Mr. Kanabar that deceased Vaghjibhai had not made any allegations with respect to documents in question. This would not debar defendant no.8 from placing his case before the trial Court. It is more so, when the case has been supported by affidavits of two persons referred to hereinabove. It is more so when the plaintiff and defendants 1/1 to 1/4 have not submitted their affidavits in order to oppose the application of defendant no.8 at Exh.313 before the trial Court. 31. With respect to paragraph 4 at page 72, Mr. Kanabar has argued that the plaintiff had no knowledge about the contents of paragraph 4. This would again be a subject matter of dispute which can be considered by an appropriate Court. 32. The trial Court has observed in paragraph 20 at page 77 that signatures on different documents and pleadings are different from one another and there is some change therein. This is an observation made by the trial Court on looking at the documents produced before it. This would again be subject matter of consideration before the trial Court as and when the trial proceeds on the strength of the impugned order. 33. It has also been argued that the present petitioner being the plaintiff in the aforesaid Civil Suit has been wrongly involved in the matter. This would also be subject matter of decision at the trial. The trial Court has found that there is a prima facie case against the present petitioner, and therefore, the plaintiff -petitioner will have to wait till the trial is over. This Court will not be able to decide as to whether the plaintiff has been wrongly involved because the factual aspects are not required to be dealt with and decided by this Court, since this Court is dealing with the matter only on the strength of the impugned order passed by the trial Court which is based on appreciation of material produced before the Court concerned. Factual aspects cannot be gone into by this Court in this petition. 34. On referring to page 80 to 81, learned Advocate for the petitioner has drawn my attention to the observations made in paragraph 24 and 25 of the order impugned in this petition. It relates to the observations made by the Orissa High Court to the effect that there should be a prima facie material before the Court to indicate that the offences complained of are likely to have been committed. The trial Court has given reasons for filing the complaint after holding that a prima facie case has been made out. Therefore, it can be said that the principle of this decision has been complied with, in substance. 35. In paragraph 25 at page 81 a decision of the Honourable Supreme Court reported in AIR 1981 SC 174 was referred to by the trial Court. There, the matter was of delay. In the present case, we find that the suit is still pending and it is not borne out that there was any delay in filing the application for prosecuting the persons concerned. The question of delay is again a question of fact which can be agitated at the trial Court at the stage of trial and the trial Court will be at liberty to consider the question of delay. Order for filing complaint cannot be quashed on the ground of delay at this stage. It may be open to these petitioners to plead before the Trial Court that prejudice has been caused to their defence on account of delay. 36. It has also been argued by Mr. Kanabar that the trial Court should have found a prima facie case for filing complaint and should have also satisfied itself that it would be expedient to file complaint. On going through the impugned order, it is found that the trial Court has assigned reasons for coming to a prima facie decision that there is a prima facie case for filing complaint. The trial Court has also observed that having regard to the facts and circumstances of the case, it is expedient to file complaint against the petitioner. Therefore, these two requirements, in my opinion, stand satisfied. 37. It has also been argued that as per the allegation in application Exh.313, defendant no.8 has alleged that there is an offence of criminal conspiracy but details have not been stated in the application. The application for filing complaint is not required to indicate detailed discussion and evidence. A simple averment that there is a criminal conspiracy would be enough. It would be required to be proved, at the stage of trial, that there was criminal conspiracy. 38. On the other hand, Mr. Y.S.Lakhani has also opposed the above order, mainly on the ground that these two petitioners were not at all beneficiaries to the proceedings in question. Whether or not the petitioners in Misc.Criminal Application no.2629/2003 were beneficiaries would be a subject matter of dispute at the trial. This is not a stage at which the said dispute can be settled by this Court. 39. Even otherwise, the said petitioners might not get benefit out of the document in question. However, there are allegations that the petitioners of these two petitions were guilty of criminal conspiracy. This can be dealt with and decided only on appreciation of materials which may be produced before the Court at the Trial. 40. It has also been argued by Mr. Lakhani that when the written statement was filed in the