1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION NO. 138 OF 2011 (Parisnath Gopal Ramteke and another .v. Satish Madhukar Hamjade) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri V.D. Dongre, Advocate for the applicants. Shri N.C. Phadnis, Advocate for the respondent. CORAM : PRASANNA B. VARALE, J. 30TH AUGUST, 2011. Heard the learned Counsel appearing on behalf of the respective parties. By the present application, the applicants are seeking the prayers as follows:- (i) send complaint to the Magistrate of the first class having jurisdiction; (ii) to please frame a complaint u/Sec. 465, 468 & 471 of I.P.C.; (iii) 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; (iv) bind over any person to appear and give evidence before such Magistrate; (v) to please pass the order to appoint officer as mentioned in 3(a) of Section 340 of Cr.P.C. It is the submission of the learned Counsel for the applicants that the respondent has filed a document at pages 101 and 102 respectively R-7 and R-8. The said document is styled as “Jawab” by the respondent. The grievance of the applicants is that the respondent has forged the signature of the applicant No.1 and as such the respondent has committed an offence under Sections 463, 465, 468 and 471 of the Indian Penal Code and, therefore, he 2 is liable for the punishment. On the premise of the aforesaid sum and substance of the applicants, espoused through the learned Counsel, the above mentioned prayers are sought in the present application. Heard Shri V.D. Dongre, the learned Counsel for the applicants extensively and Shri N.C. Phadnis, the learned Counsel for the respondent. The learned Counsel for the respondent invites my attention to the orders passed by this Court in the earlier round of litigation i.e. in Writ Petition Nos. 5286/2010 and 2846/2010. It is not in dispute that both these petitions were sought to be withdrawn by the applicants. The orders passed on those petitions by this Court are as under :- In Writ Petition No. 5286 of 2010 “Heard. Perused the petition. The learned Assistant Government Pleader appearing for the respondents submits that “C” copy of the measurement of City Survey, with necessary endorsement, would be given to the petitioners within fifteen days from today. In that view of the matter, the learned Counsel for the petitioner seeks leave to withdraw this petition. The petition is disposed of withdrawn with no order as to costs.” In Writ Petition No. 2846 of 2010 “After arguing the matter for some time, the learned Counsel for the petitioners seeks leave to withdraw the petition. Leave granted. The writ petition stands disposed of as withdrawn.” The learned Counsel for the applicants, in support of his submission so as to seeking an action against the respondent for the alleged offence under Sections 463, 465, 468 and 471 of the Indian Penal Code, places heavy reliance on the provisions of 3 Section 340 of the Code of Criminal Procedure. The relevant provision of the said Section reads as under :- “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 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 (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 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 theby 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; 4 [(b) in any other case, by the presiding officer of the Court or by such officer of the Court as the Court may authorise in writing in this behalf.] (4) In this section, “Court” has the same meaning as in section 195.” It will also be necessary to refer to the provisions of Section 195 of the Code of Criminal Procedure, which reads as under:- “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 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, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence 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) of sub-clause (ii), [except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.] 5 (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 or 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 appelable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate : Provided that - (a) where appeals lie 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.” On giving anxious hearing to the submissions of the learned Counsel appearing on behalf of the respective parties and perusal of the orders passed by this Court in Writ Petition Nos. 5286/2010 and 2846/2010, I am of the opinion that the instant application is wholly misconceived. The applicants are seeking an action alleging that the forged document was prepared and placed in the proceeding before this Court. The record reveals that the so called document is an annexure to the reply filed in Writ Petition No. 5286/2010. The record further reveals that the reply affidavit was filed on behalf of the respondent No.1 i.e. Taluka Inspector of 6 Land Records, Umred, District Nagpur. The documents which were annexure of the reply at page Nos.101 and 102 are neither filed by the respondent nor they were annexure of the reply filed by the respondent. These documents, namely, at page No.101 is the map mentioning the persons present while conducting the measurement; whereas page No.102 is the statement recorded by the Taluka Inspector of Land Records, Umred, District Nagpur. It is also not in dispute that the petitions themselves were withdrawn by the present applicants who had filed those writ petitions. In view of the fact that the documents alleged to be fabricated documents are not at all filed by the respondent but they were part of the reply filed through the Taluka Inspector of Land Records, Umred, District Nagpur by the learned AGP appearing in the matters, I am of the opinion that the present application is wholly misconceived and devoid of merits. In the result, the application is dismissed. JUDGE *rrg.