Delhi District Court
Sh. Shyam Lal vs . Sh. Tara Chand on 19 August, 2013
IN THE COURT OF MS. ANJANI MAHAJAN, CIVIL JUDGE17
(CENTRAL), TIS HAZARI COURTS, DELHI
SUIT NO. M23/13
Sh. Shyam Lal Vs. Sh. Tara Chand
ORDER
1. This order shall decide the application of the plaintiff/applicant U/s 340 Cr.P.C.
2. It is submitted in this application that the defendant had filed forged and fabricated documents i.e. agreement to sell and receipt which was apparent from the perusal of the document and statement on oath of the defendant. It is stated that the said document i.e. agreement to sell Ex. DW1/1 had been purchased on 09.01.1995 however the date of execution and attestation was 04.01.1995. Further, it is averred that in crossexamination defendant admitted that the father of the defendant Late Sh. Birke Ram was illiterate and had only put his thumb impression on the documents however the alleged forged documents bear the signatures of the deceased Late Sh. Birke Ram. It is averred that even in the written statement, the defendant had stated that he had right in the property because of the Will executed by his father on 04.01.1995 however he had not filed any Will on record and rather changed his stand and relied on a forged agreement to sell and receipt. Sh. Birke Ram had expired on 05.01.1995. It is stated that the defendant had filed forged and Suit No. M23/13 Sh. Shyam Lal Vs. Sh. Tara Chand 1/5 fabricated documents to procure false evidence as defined U/s 191 I.P.C and 196 I.P.C. It is claimed that the defendants had committed the offence of perjury U/s 420/468/471 I.P.C. The defendant had not filed the original documents and the plaintiff avers that a direction be given to the defendant to produce and file the original documents. It is prayed that the order may be passed for initiation of inquiry U/s 340 Cr.P.C.
3. In reply, preliminary objections have been taken. It is submitted that the plaintiff had miserably failed to prove his case and was now intending to misuse the provisions of law to harass the defendants by making a false allegation of forgery against the defendant on the ground that the agreement to sell and receipt both were dated 04.01.1995 and were attested on 01.01.1995 but the plaintiff had misread the same as 09.01.1995 while it is actually 04.01.1995. It is denied that the defendant has filed forged and fabricated documents and as regards the deposition of DW1 that Late Sh. Birke Ram was illiterate and used to put his thumb impression it is contended that Late Sh. Birke Ram affixed his thumb impression and below the thumb impression his name was written for the sake of identification of his thumb impression which were not the signatures of the father of the defendants. It is submitted that the defendants belonged to a rural back ground and not being well conversant in English were under a wrong impression that the Will had Suit No. M23/13 Sh. Shyam Lal Vs. Sh. Tara Chand 2/5 been executed by their father but the same was not found by the defendants however they had executed the documents Ex. DW1/1 and Ex. DW1/2. It is prayed that the application of the plaintiff be dismissed.
4. Heard the arguments. Perused the record.
5. Vide separate judgment of even date, though the suit of the plaintiff had been dismissed however, in any case, I have observed that an adverse inference is to be drawn against the defendants for not producing the alleged Will of their father and further the agreement to sell and receipt are not title documents. The plaintiff and defendant would be cosharers in the suit property. The plaintiff's suit has been dismissed not because any favourable finding has been returned by the court on the basis of alleged documents Ex. DW1/1 and Ex.DW1/2 but because of the inherent defect in the case of the plaintiff as the suit of the plaintiff for permanent injunction simplicitor was not the most efficacious remedy available for the plaintiff thus through these documents Ex. DW1/1 and Ex. DW1/2 no benefit has accrued to the defendants. As regards the date of agreement to sell Ex.DW1/1, being 09.01.1995 or 04.01.1995, the same is debatable and from a bare perusal of the date a positive finding cannot be given that the date is 09.01.1995 and the defendants' argument that the plaintiff has misread the same is quite plausible. Section 340 Cr.P.C. is a provision which is penal in nature and Suit No. M23/13 Sh. Shyam Lal Vs. Sh. Tara Chand 3/5 therefore the applicant is required to establish beyond reasonable doubt that any false statement has been deliberately made by the non applicant or fabricated document has been deliberately produced, for initiating proceeding U/s 340 Cr.P.C. Further, it is to be seen whether it is expedient in the interest of justice if an inquiry should be made. For proving that the deposition of the defendant regarding the father Late Sh. Birke Ram not being able to sign and his signatures appearing on the receipt Ex. DW1/2 which as per the defendants' contention, are not the signatures but just mentioning of the name, the plaintiff could have, during the course of evidence confronted the defendant's witness with any document showing the signatures of the father of the parties and it could have been confirmed from the same as to whether on Ex. DW1/2 and Ex. DW1/1, it was the signatures or the name of the father of the parties that appeared. The applicant U/s 340 Cr.P.C. is required to make out a very strong prima facie case and cannot expect the court to act on mere conjectures and surmises.
6. In any case, it has been clearly held by the Hon'ble Apex Court in Santokh Singh versus Izhar Hussain And Anr. (1973 AIR 2190) as follows "Every incorrect or false statement does not make it incumbent on the court to order prosecution. The court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of Suit No. M23/13 Sh. Shyam Lal Vs. Sh. Tara Chand 4/5 expediency. The court orders prosecution in the larger interest of the administration of justice and not to gratify feelings of personal revenge, or vindictiveness or to serve the ends of a private party. Too frequent prosecutions for such offences tend to defeat its every object. It is only in glaring cases of deliberate falsehood where conviction is highly likely, that the court should direct prosecution."
7. The parties to the suit are real brother whose real grievance is regarding their share in the suit property. The provision of section 340 Cr.P.C. can not be used, as held by the Hon'ble Supreme Court in the case cited above, as a tool for ventilating the personal vendetta and must be used only in those cases where there has been a blatant perjury by a party and where it is expedient in the interest of justice to punish such a party for abusing the process of law. The applicant has failed to make out a sure and strong case requiring initiation of action U/o 340 Cr.P.C.
8. In view of the aforesaid discussion, the application of the plaintiff U/s 340 Cr.P.C. is hereby dismissed.
Announced in the open court ANJANI MAHAJAN
On 19.08.2013 Civil Judge - 17 (Central)
19.08.2013
Suit No. M23/13 Sh. Shyam Lal Vs. Sh. Tara Chand 5/5