Research › Search › Judgment

Chhattisgarh High Court · body

2007 DIGILAW 658 (CHH)

Lakhan Lal Saraf v. Moti Lal

2007-12-13

DHIRENDRA MISHRA

body2007
ORDER Dhirendra Mishra, J. 1. By this petition the petitioner has impugned the order dated 4-2-2005 passed in M.J.C. No. 17/04 whereby the District Judge, Bilaspur on a petition under Section 340 of the Code of Criminal Procedure, 1979 (for short "Code") filed by the defendant/respondent Motilal has commenced the enquiry and directed the respondent to keep his witnesses present on the next date of hearing. 2. Brief facts necessary for deciding this petition are that the defendant/respondent filed an application under Section 340 of the Code with an allegation that the plaintiff/petitioner herein obtained a decree dated 12-5-2000 in Civil Suit No. 10-A/99 on the basis of forged agreement exhibited as Ex. P-4 in the said civil suit, as the petitioner has forged the signature of the respondent in the document of Ex. P-4. A specific objection was taken by the respondent/defendant that the signature was forged, however, the said issue was decided against the respondent/ defendant on the ground that the defendant could not prove that the document did not bear his signature by examining the handwriting expert. The petitioner was bound to rely upon the true documents. It was further averred that subsequently the respondent obtained the certified copy of document of Ex. P-4 and sent the some along with his specimen signatures to the handwriting expert for examination and Dr. (Miss) Sunanda Ohenge, after comparing the signature in dispute with the specimen signatures, has reached to the conclusion that the disputed and comparative signatures are not similar and she has formed an opinion of different authorship of disputed and comparative document. 3. The petitioner herein in reply to the petition averred that the respondent has preferred a first appeal bearing No. 488/2000 against the judgment and decree passed by the Court below and the same is pending before the High Court. The trial Court on the basis of evidence available on record decreed the suit with an observation that the signature of respondent-Motilal in the document of Ex. P-4 completely matches with his admitted signature of Ex. D-1 and the lacuna of defendant in the civil suit cannot be filled up by way of a petition under Section 340 of the Code. 4. Learned District Judge after hearing learned Counsel for respective parties directed the respondent to produce his witness in support of his application under Section 340 of the Code. 5. D-1 and the lacuna of defendant in the civil suit cannot be filled up by way of a petition under Section 340 of the Code. 4. Learned District Judge after hearing learned Counsel for respective parties directed the respondent to produce his witness in support of his application under Section 340 of the Code. 5. Learned Counsel for the petitioner argued that specific objection was taken by the respondent/defendant before the District Judge that document of Ex. P. 4 does not bear his signature. However, learned District Judge after considering the overall documentary evidence available on record and after comparing the signature of the defendant in the admitted document of Ex. D-1 and document of Ex. P-4 recorded a finding that both the signatures completely match with each other. There was no admissible evidence before the District Judge on the basis of which the Court can record a finding that the document tendered by the petitioner herein in the above civil suit was forged. The first appeal preferred by the respondent/defendant is pending in the High Court and the document has been held to be genuine document by a competent Court and unless it is reversed by the appellate Court in the appeal preferred by the respondent/defendant, the genuineness of the document cannot be questioned in a proceeding under Section 340 of the Code. 6. On the other hand, learned Sr. Advocate for the respondent relying upon the judgment in the matter of Bhagwandas Narandas v. D.D. Patel & Co. 6. On the other hand, learned Sr. Advocate for the respondent relying upon the judgment in the matter of Bhagwandas Narandas v. D.D. Patel & Co. reported in AIR 1940 Bom 131 submitted that it is not necessary that the application under Section 340 of the Code should be made during the course of proceedings out of which the application arises, or immediately thereafter and whether the Court would accede to an application made long after the termination of the proceedings out of which it arises is a matter which would arise upon the merits and would no doubt depend upon all the circumstances, It was further argued that an offence may be committed in the course of a trial before a Judge, and no one may know anything about it and it may be discovered long after the trial has ended and when such evidence is brought before the Court then it is in the interest of justice that an enquiry should be made and the Court is not confined to the record of proceedings, but is entitled to take into account and consider information otherwise acquired. 7. I have heard learned Counsel for the parties. Section 340(1) of the Code is reproduced 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 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.... 8. It is not in dispute that first appeal at the instance of the respondent/defendant was pending in the High Court when the petition under Section 340 of the Code was filed before the District Judge. 8. It is not in dispute that first appeal at the instance of the respondent/defendant was pending in the High Court when the petition under Section 340 of the Code was filed before the District Judge. Since the proceedings in the first appeal is continuation of the original civil suit and the document in question has also been tendered in evidence in the proceeding before the High Court, the application under Section 340 of the Code in relation to a pending proceeding before the High Court could only be made before the High Court and not before the trial Court, as the genuineness or otherwise of the document of Ex. P-4 is pending consideration in the first appeal. 9. In the matter of Bhagwandas AIR 1940 Bombay 131 (supra) the questions before the Court was (1) whether the application under Section 340 of the Code can be filed only during the pendency of the proceedings out of which it arises or immediately thereafter; (2) whether the applicant is entitled to adduce evidence outside the record of the proceedings out of which the application arises to show that evidence given in those proceedings was false. It was not a case where the proceedings out of which the application was made to show that the evidence given in those proceedings was false and the same was already under consideration in an appeal before the higher forum. If the arguments of learned Senior Advocate for the respondent/defendant is accepted and it is held that the learned District Judge is competent to entertain the petition and conduct enquiry to ascertain whether the document filed by the petitioner/plaintiff in the said civil suit was forged document and finding in this regard is recorded by the learned District Judge, then the proceedings in the higher forum in an appeal would become redundant and meaningless and therefore, I am of the considered opinion that due to pendency of the first appeal before the High Court, the learned District Judge could not have entertained and commenced the enquiry on a petition under Section 340 of the Code by the respondent/defendant. 10. In the result, the petition is allowed and the enquiry commenced by the learned District Judge on the application of respondent/defendant filed under Section 340 of the Code is hereby quashed. No order as to costs.