Madras High Court
Tara Gulechha vs M/S.Idea Housing Corporation on 19 June, 2014
Crl.O.P.Nos.11729 & 11842 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 27.10.2021
DELIVERED ON : 5.08.2022
CORAM:
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
CRL.O.P.Nos.11729 and 11842 of 2021
and
Crl.M.P.Nos.6717 & 6718 of 2021 and 6728 & 6729 of 2021
Tara Gulechha, ... Petitioner
in Crl.O.P.No.11729/2021/A2
Alok Kumar Gulechha, ... Petitioner
in Crl.O.P.No.11842/2021/A1
vs.
M/s.Idea Housing Corporation,
Rep. by its Partner, Mr.Shankar Babu,
6/16, 1st Floor, Bhagavandas Street,
West Tambaram,
Chennai – 600 045. ... Respondent / Complainant
in both the Petitions
Prayer in both the Crl.O.Ps.: Criminal Original Petitions filed under
Section 482 of the Code of Criminal Procedure, to call for records in
C.C.No.831 of 2021, pending on the file of VII Metropolitan Magistrate,
George Town, Chennai, and quash the same.
1/38
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.11729 & 11842 of 2021
For Petitioner : Mr.C.Manishankar
in Crl.O.P.No.11729/2021 Senior Counsel
for Mr.Rahul M.Shankar
For Petitioner : Mr.B.Kumar
in Crl.O.P.No.11842/2021 Senior Counsel
for Mr.S.Ramachandran
For Respondent : Mr.S.Kathiravan
in both the Crl.O.Ps.
*****
COMMON ORDER
The petitioners, who are accused in C.C.No.831 of 2021 for offences under Sections 120-B and 193 I.P.C., have filed the Quash Petitions.
2.The gist of the case is that the petitioner in Crl.O.P.No.11729 of 2021/second accused and four others are owners of the property measuring a total extent of 44,381 sq.ft. situated in Survey Nos.714/4, 714/5, 714/6 and 714/7, at Seshadripuram, 1st Main Road, Ambedkar Nagar, Velachery. Chennai. They appointed the petitioner in Crl.O.P.No.11842 of 2021/A1, who is the husband of the petitioner in Crl.O.P.No.11729 of 2021/A2, and one Jaikumar, son of the representative of the respondent Corporation as Power Agents inter alia to develop the property by a registered Power of Attorney, dated 19.06.2014. In the meanwhile, one M/s.Anmol Housing Corporation, who owned the adjacent 2/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021 land, represented by the first accused, developed the property, partly sold few flats in the said property. They could not make further constructions, sell the remaining undivided share in the land. Thus, they had left with undivided share of 31163 sq.ft. to be developed.
3. For the sake of convenience and brevity, the parties are referred to as in the complaint.
4.The said M/s.Anmol Housing Corporation, represented by A1, earlier developed the property belonging to it by entering into a Project Management Consultant Agreement with one M/s.CICC (Chennai Integrated Construction Company Pvt. Ltd.), managed by its Managing Director, one Rajendran and with one of its Directors Jaikumar, son of the complainant, on 04.03.2011. The second accused along with co-owners, entered into a separate development agreement with CICC on 04.03.2011. Both the Project Management Consultant Agreement and the Joint Development Agreement were cancelled on 24.01.2016 by way of a Cancellation Deed. As per the Cancellation Deed, the second accused and co-owners were to pay Rs.2,00,00,000/- to CICC. The said amount was not paid to CICC on date of cancellation and it was mutually agreed between the parties that Rs.2 Crores shall be transferred to said S.Jaikumar. Thus, the second accused along with four other owners and M/s.Anmol Housing 3/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021 Corporation, represented by A1, its Managing Director, entered into a Memorandum of Understanding [MoU] on 06.02.2016 with the complainant Firm for development of the aforesaid two properties i.e., the property belonging to the second accused and four others and the undivided share of M/s.Anmol Housing Corporation of A1, which is the neighboring property.
5.The complainant had to pay advance to the accused as per MoU. Out of the advance amount payable by the complainant, a sum of Rs.2,00,00,000/- by way of credit adjustment, from the amount payable by the second accused and co-owners to Jaikumar. The first accused issued a receipt dated 10.02.2016, acknowledging the receipt of the advance payment. While so, the first accused, on behalf of his Principals (A2) and M/s.Anmol Housing Corporation, unilaterally cancelled the MoU without any justifiable reasons, by letter dated 27.10.2016. The second accused and co-owners also followed it up by revoking the Power of Attorney, dated 19.06.2014, in favour of first accused and Jaikumar, by Deed of Revocation, dated 12.12.2016.
6. Aggrieved over the same, the complainant filed applications in O.A.Nos.1030 and 1031 of 2016 before this Court for injunction, restraining the second accused, co-owners and M/s.Anmol Housing 4/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021 Corporation from disturbing their peaceful possession. This Court, by order dated 27.03.2017, granted an order of injunction. The complainant also filed O.P.No.605 of 2017 for appointment of Arbitrator in terms of MoU, dated 06.02.2016. The second accused and co-owners and M/s.Anmol Housing Corporation (A1) raised untenable grounds and made false claims opposing the appointment of Arbitrator. However, this Court, by order dated 14.02.2018, appointed an Arbitrator. The appeal by the accused dismissed, the Division Bench of this Court confirmed appointment of Arbitrator. The Hon'ble Arbitrator after adjudication, awarded a portion of the claim made by the complainant i.e., Rs.6,49,57,000/- along with interest at 12% per annum and cost of Rs.10,00,000/-. The primary allegation is that accused conspired together gave false evidence on oath and in the pleadings before the Hon'ble Arbitrator and thereby, committed the offence under Sections 120-B and 193 I.P.C. Hence, the complainant filed a private complaint against the accused in C.C.No.831 of 2021 before the learned VII Metropolitan Magistrate, George Town, Chennai. The petitioners are A1 and A2 in the private Criminal Complaint.
7.Seeking to quash the aforesaid proceedings, the petitioners are before this Court with these Criminal Original Petitions. 5/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021
8.The contention of the learned Senior Counsels appearing for the petitioners is that the private complaint filed against the petitioners in C.C.No.831 of 2021 is not maintainable, bereft of tenable facts and is a clear abuse of process of law. The arbitration proceedings and the award passed is under challenge and sub judice before this Court. Hence, the complaint is premature and if the award is set aside by this Court, nothing survives in the complaint. The dispute between the parties is purely civil in nature pertaining to sale and construction of apartment complex. The respondent/complainant has deliberately filed the complaint in order to give a criminal colour to a commercial transaction, which is purely civil in nature. The Hon'ble Apex Court as well as this Court in umpteen number of cases, consistently deprecated the practice of converting a civil commercial dispute by giving criminal colour.
9.The complainant cleverly misled the learned Magistrate by stating that the allegations in the complaint pertain to false statements made in the arbitration proceedings, however, a perusal of complaint would show the allegations pertains on the basis of cross-examination, the alleged misstatements made in the proceedings are with respect to affidavit filed before this Court in connected proceedings, namely, O.A.No.1030 and 1031 of 2016 and O.P.No..605 of 2017 and not with respect to the 6/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021 Arbitration proceedings and therefore, the alleged offence viz., Section 193 IPC will have to be dealt with in accordance with Section 195(1)(b)(i) read with Section 340 Cr.P.C. Hence, the learned Magistrate will have no jurisdiction to entertain the complaint under Section 200 Cr.P.C., which goes to the root of the matter, and therefore, the entire proceedings is liable to be quashed.
10.Further, the learned Magistrate completely overlooked the proceedings prescribed under Sections 195 and 340 Cr.P.C. with respect to the proceedings, concerning false evidence. In this case, the complainant projected as though the petitioners made a false statement under oath in the Arbitration proceedings. Referring to affidavit filed by the petitioners, the Hon'ble High Court, making a comparison with the affidavit filed and the contradictions elicited during cross examination in the Arbitration proceedings before this Court, the complainant makes an assertion that the petitioners deposed falsely under oath before the learned Arbitrator. Under Section 195 Cr.P.C., proceedings concerning false statements made before a Court ought to be brought to the notice of the Court and only the concerned judicial officer or officer appointed by them, may initiate criminal proceedings against the perpetrator. As far as the present case is concerned, the complainant taking advantage of the alleged contradictions in the statements made in the affidavit filed before this Court and to the 7/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021 answers given during cross examination before the learned Arbitrator, is projecting a case of false evidence given before the Arbitrator, which is not proper, admittedly affidavits filed by this Court, a subject matter before this Court.
11.The learned Magistrate has been misled by the complainant in their reliance on the judgment of the Hon'ble Apex Court in Manoharlal vs. Vinesh Anand [2001 (5) SCC 407], wherein it is held that an arbitral Tribunal is not a Court for the purposes of Section 195 Cr.P.C. and hence, procedure thereunder need not be followed. The complainant failed to follow the prescribed procedure under Section 195 Cr.P.C. with the sole intention to avoid the preliminary reports and investigations that ought to be made by the concerned Officer under Section 340 Cr.P.C., which may or may not end up as a criminal complaint. To bypass such procedure and safeguards, the present private complaint filed against the petitioners.
12.The importance of following procedure under Sections 195 and 340 Cr.P.C. for prosecuting the offence of alleged false evidence is enumerated by the Hon'ble Apex Court in M.S.Ahlawat vs. State of Haryana and another [2000 (1) SCC 278]. The respondent/complainant attempted to bypass established principles, 8/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021 which, if not quashed, grave prejudice would be caused to the petitioners. Considering the fact that the present complaint is based on the allegations of false evidence made in the affidavit before this Court, an affidavit is not considered as evidence under Section 1 of the Indian Evidence Act. Therefore, prima facie, no criminal case is made out under Sections 191 and 193 of I.P.C. That apart, statements made before the learned Arbitrator cannot be made the subject matter of prosecution as perjury since they were clarificatory in nature in response to the clarifications sought by the learned counsel for the respondent/complainant. Furthermore, applying the principle that not all statements made are to be considered false statements/evidence under Section 193 of I.P.C., the complaint lacks merit and hence, on this ground also, the same is liable to be quashed.
13.In support of his submissions, the learned Senior Counsel for the petitioner relied on Judgment of the Apex Court in Santokh Singh vs. Izhar Hussain and another reported in [1973 (2) SCC 406] for the proposition that “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 expediency. The court orders prosecution in the larger interest of the administration of justice and not to gratify feelings of 9/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021 personal revenge or vindictiveness or to serve the ends of a private party. Too frequent prosecutions for such offences tend to defeat its very object. It is only in glaring cases of deliberate falsehood where conviction is highly likely, that the court should direct prosecution”.
14. Further, the learned counsel relied on the Judgment in M.S.Ahlawat vs. State of Haryana and another reported in [2000 (1) SCC 278], wherein it is held as follows:-
“Provisions of Section 195 Cr.P.C., are mandatory and no court has jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing as required under that section. It is settled law that every incorrect or false statement does not make it incumbent upon the court to order prosecution, but requires the court to exercise judicial discretion to order prosecution only in the larger interest of the administration of justice. Section 340 Cr.PC., prescribes the procedure as to how a complaint may be preferred under Section 195 Cr.PC. A complaint outside the provisions of Section 340 CrPC., cannot be filed by any civil, revenue or criminal court under its inherent jurisdiction.”
15. Further, the learned counsel relied on the Judgment in Kailash Mangal vs. Ramesh Chand reported in [2015 (15) SCC 729], wherein it is held that “In the instant case, the false affidavit alleged to have been filed by the appellant was in a proceeding pending before the civil court and the offence falls under Section 193 IPC and the proceeding ought to 10/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021 have been initiated on the complaint in writing by that court under Section 195(1)(b)(i)IPC. Since the offence is said to have been committed in relation to or in a proceeding in a civil court, the case of Iqbal Singh Marwah is not applicable to the instant case. Further, in the Judgment in T.Dhinakaran (Minor), Son of Thilak Kumar @ Pandian, Rep. by next friend and Grandmother, Vijaya and another vs. V.Ranganathan and others reported in [2017 (8) MLJ 606] wherein in para 15, it is held as follows:
“So, under the above discussions, it is very clear that the Court in which certain forged documents produced or given in evidence or false evidence is adduced, the said Court is the competent authority to direct the officer concerned of the said Court to initiate legal action as contemplated under section 340 of the Code. The said Court cannot simply direct the parties concerned to approach the concerned Judicial Magistrate for the registration of the case and for legal action. The reason behind this task is that no person is authorized to touch or play with the true spirit of administration of justice that is "Fiat Justicia Route Column".
16. Further, in the Apex Court in the Judgment in Narendra Kumar 11/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021 Srivastava vs. State of Bihar and others reported in [2019 (3) SCC 318], it is held as follows:-
13. It is clear from subsection (1)(b) of Section 195 of the Cr.P.C. that the section deals with two separate set of offences:
(i) of any offence punishable under Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228 of IPC, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court; [Section 195(1)(b)(i)]
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of IPC, 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. [Section 195(1)(b)(ii)].
14. On the reading of these sections, it can be easily seen that the offences under Section 195(1)(b)(i) and Section 195(1)(b)(ii) are clearly distinct. The first category of offences refers to offences of false evidence and offences against public justice, whereas, the second category of offences relates to offences in respect of a document produced or given in evidence in a proceeding in any court.
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15. Section 195 of the Cr.P.C. lays down a rule to be followed by the court which is to take cognizance of an offence specified therein but contains no direction for the guidance of the court which desires to initiate prosecution in respect of an offence alleged to have been committed in or in relation to a proceeding in the latter court. For that purpose, one must turn to Section 340 which requires the court desiring to put the law in motion to prefer a complaint either suo motu or an application made to it in that behalf.”
17. Further, in the Apex Court in the Judgment in Bandekar Brothers Pvt. Ltd. and another vs. Prasad Vassudev Keni, etc. reported in [2020 SCC Online SC 707], wherein in para 19, 25 and 30, it is held as follows:-
“19. At this stage, it is important to understand the difference between the offences mentioned in Section 195(1)(b)(i) and Section 195(1)(b)(ii) of the CrPC. Where the facts mentioned in a complaint attracts the provisions of Section 191 to 193 of the IPC, Section 195(1)(b)(i) of the CrPC applies. What is important is that once these sections of the IPC are attracted, the offence should be alleged to have been committed in, or in relation to, any proceeding in any Court. Thus, what is clear is that the offence punishable under these sections does not 13/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021 have to be committed only in any proceeding in any Court but can also be an offence alleged to have been committed in relation to any proceeding in any Court.
25. The Chapter heading of Chapter XXVI of the CrPC, which contains Sections 340 and 341 was then referred to – the heading reading “Provisions as to Offences Affecting the Administration of Justice”, which according to the Court also indicated that the offences mentioned in Section 195(1)(b)(ii) are offences which directly affect the administration of justice. After referring to various judgments, the Court then explained the difference between Section 195(1)(c) of the Code of Criminal Procedure, 1898 and Section 195(1)(b)(ii) of the CrPC, 1973 as follows:
“19. As mentioned earlier, the words “by a party to any proceeding in any court” occurring in Section 195(1)(c) of the old Code have been omitted in Section 195(1)(b)(ii) CrPC. Why these words were deleted in the corresponding provision of the Code of Criminal Procedure, 1973 will be apparent from the 41st Report of the Law Commission which said as under in para 15.39:
“15.39. The purpose of the section is to bar private prosecutions where the course of justice is sought to be perverted leaving to the court itself to uphold its dignity and prestige. On principle there is no reason why the safeguard in clause (c) should not apply to offences committed by witnesses also. Witnesses need as much protection against vexatious prosecutions as parties and the court should have as much control over the acts of witnesses that enter as a component of a judicial 14/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021 proceeding, as over the acts of parties. If, therefore, the provisions of clause (c) are extended to witnesses, the extension would be in conformity with the broad principle which forms the basis of Section
195.”
20. Since the object of deletion of the words “by a party to any proceeding in any court” occurring in Section 195(1)(c) of the old Code is to afford protection to witnesses also, the interpretation placed on the said provision in the earlier decisions would still hold good.”
30. However, Shri Mishra, undaunted by the fact that Iqbal Singh Marwah (supra) and its progeny are all cases relatable to Section 195(1)(b)(ii) of the CrPC, has argued that the same reasoning ought to apply to cases falling under Section 195(1)(b)(i) of the CrPC. First and foremost, as has been pointed out hereinabove, every judgment that follows Iqbal Singh Marwah (supra) is in the context of offences mentioned in Section 195(1)(b)(ii) of the CrPC. Secondly, there is direct authority for the proposition that the ratio in Iqbal Singh Marwah (supra) cannot be extended to cases governed by Section 195(1)(b)(i) of the CrPC.
18. Further, this Court in the Judgment in V.Baby vs. Sekar and another reported in [2014 (5) LW 822], it is held that “The affidavit filed in support of the application is only a statement of fact which itself is not an evidence. The applicant, if he chooses, has to prove such statement of fact by letting in evidence and such evidence may be by proof affidavit, 15/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021 as contemplated under Order 19 Rules 1 and 2 CPC. Only when such proof affidavit is filed, the other side can seek for cross-examination of the deponent of such proof affidavit. Otherwise, it cannot be done.”
19.The learned counsel further elied on the following judgment of the Supreme Court in N.S.Nandiesha Reddy vs. Kavitha Mahesh [2021 SCC Online SC 538], wherein it is held in para 18 that “As noted from the decision in the case of Amarsang Nathaji (supra) and the position of law which is well established is that even in a case where the Court comes to the conclusion on the aspect of intentional false evidence, still the Court has to form an opinion whether it is expedient in the interest of justice to initiate an inquiry into the offences of false evidence, having regard to the overall factual matrix as well as the probable consequences of such prosecution. Further, the learned counsel relied on the Judgment in K.T.M.S. Mohd. and another vs. Union of India [1992 (3) SCC 178], wherein it is held that “ The mere fact that a deponent has made contradictory statements at two different stages in a judicial proceeding is not by itself always sufficient to justify a prosecution for perjury under Section 193 IPC but it must be established that the deponent has intentionally given a false statement in any stage of the 'judicial proceeding' or fabricated false evidence for the purpose of being used in any stage of the judicial proceeding. Further, such a prosecution for perjury should be taken only if it is expedient in the interest of justice.” 16/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021
20.Per contra, the learned counsel for the respondent / complainant submits that perjury is an obstruction of justice. Deliberately making false statements, which are material to the case, and that too under oath, amounts to crime of perjury. Thus, perjury has always to be seen as a cause of concern in the judicial system. It strikes at the root of the system itself and disturbs the accuracy of the findings recorded by the Court. Therefore, any person found guilty of causing perjury, has to be dealt with seriously as it is necessary for the working of the Court as well as the for the benefit of the public at large. The learned counsel further submitted that Courts are entrusted with the powers of dispensation and adjudication of justice for the rival claims of the parties besides determining the criminal liability of the offenders for offences committed against the Society. Justice dispensation system would be wrecked if statutory restrictions are not imposed upon the litigants, who attempt to mislead the Court by filing and relying upon false evidence, particularly in these cases, the adjudication of which is dependent upon the statement of facts. The purity of proceedings of the Court cannot be permitted to be damaged by a party on frivolous, vexatious or insufficient grounds or relying upon false evidence inspired by extraneous considerations or revengeful desire to harass or spite his opponent. Sanctity of the affidavits has to be preserved and protected discouraging the filing of 17/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021 irresponsible statements, without any regard to accuracy.
21.The learned counsel for the respondent further submits that the main purpose of administering of oath is to render persons, who give false evidence, liable to prosecution and further to bring home to the witness the solemnity of the occasion and to impress upon him the duty of speaking the truth, further, such matters only touch credibility and not admissibility. The learned counsel further submits that to pursue an offender in the event of commission of an offence is to sub-serve a social need. The Society cannot afford to have a criminal escape his liability, since that would bring about a state of social pollution, which is neither desired nor warranted and this is irrespective of the concept of locus.
22.The learned counsel for the respondent further submits that Section 193 of I.P.C. consists two parts. The second part deals with cases where false evidence has been intentionally given in any other case, and it prescribes the maximum sentence of three years as well as fine. If false evidence has been intentionally given in any judicial proceeding, the sentence awardable is higher than that where false evidence is intentionally given in proceedings, which are not judicial and therefore, the learned counsel prayed for dismissal of both the Criminal Original Petitions.
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23.In support of his submissions, the learned counsel for the respondent relied on the judgment of Supreme Court in Kishorbhai Gandubhai Pethani vs. State of Gujarat and another reported in [2014 (13) SCC 539], wherein it is held that, “ Perjury is an obstruction of justice. Deliberately making false statements which are material to the case, and that too under oath, amounts to crime of perjury. Thus, perjury has always to be seen as a cause of concern for the judicial system. It strikes at the root of the system itself and disturbs the accuracy of the findings recorded by the court. Therefore, any person found guilty of causing perjury, has to be dealt with seriously as it is necessary for the working of the court as well as for the benefit of the public at large.” Further, in the Judgment in Re suo motu proceedings against R.Karuppan, Advocate [2001 (5) SCC 289] it is held that, “ The purity of proceedings of the court cannot be permitted to be sullied by a party on frivolous, vexatious or insufficient grounds or relying upon false evidence inspired by extraneous considerations or revengeful desire to harass or spite his opponent. Sanctity of the affidavits has to be preserved and protected discouraging the filing of irresponsible statements, without any regard to accuracy.” Further, held that, “ The mere existence of the penal provisions to deal with perjury would be a cruel joke with the society unless the courts stop to take an evasive recourse despite proof of the 19/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021 commission of the offence under Chapter XI of the Indian Penal Code. If the system is to survive, effective action is the need of the time. The present case is no exception to the general practice being followed by many of the litigants in the country.
24. Further, the learned counsel relied on the Judgment of the Apex Court in State of Rajasthan vs. Darshan Singh Alias Darshan Lal reported in [2012 (5) SCC 789], wherein in para 24, it is held that, “ This Court in Rameshwar v. State of Rajasthan has categorically held that the main purpose of administering of oath is to render persons who give false evidence liable to prosecution and further to bring home to the witness the solemnity of the occasion and to impress upon him the duty of speaking the truth, further such matters only touch credibility and not admissibility. However, in view of the provisions of Section 7 of the Oaths Act, 1969, the omission of administration of oath or affirmation does not invalidate any evidence.” Further, in the Judgment in Manohar Lal vs. Vinesh Anand and others reported in [2001 (5) SCC 407] it is held that, “In the wake of the aforesaid, we are unable to record our concurrence with the submissions made in support of the appeal that the Arbitrator can be termed to be a court within the meaning of Section 195 of the Criminal Procedure Code, as such question of applicability of Section 340 CrPC in a proceeding before the Arbitrator does not and cannot arise. The issue thus 20/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021 is answered in the negative. The appeal therefore, fails and is dismissed.“
25. Further, the learned counsel relied on the Judgment of the Apex Court in Virindar Kumar Satyawadi vs. State of Punjab reported in [AIR 1956 SC 153] wherein it is held that, “ Section 193 makes it an offence to give false evidence whether it be in a judicial proceeding or not, and it likewise makes it an offence to fabricate false evidence for use in a judicial proceeding or elsewhere. If the offence is not committed in a judicial proceeding, then it will fall outside Section 195(1)(b), which applies only when it is committed in or in relation to a proceeding in Court, and there is in consequence no bar to a complaint being made in respect thereof unaffected by the restrictions contained in Section 195(1)(b).” Further, in the Judgment in Laji Haridas vs. State of Maharashtra and another reported in [AIR 1964 SC 1154] it is held that, “ It is somewhat remarkable that though Section 193 IPC, refers to a judicial proceeding, Section 195 Cr.P.C., refers to a proceeding in any court; it does not say a judicial proceeding in any Court. Further, in the Judgment in Dr.Baliram Waman Hiray vs. Justice B.Lentin and others reported in [1988 (4) SCC 419], wherein it is held that “Section 3 of the Evidence Act defines a "Court" as including all judges and magistrates and all persons except the arbitrators legally authorised to take evidence. Prima facie, there is some force in the contention that it would not be reasonable to predicate about every judicial proceeding that it is a 21/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021 proceeding before a court, and so, it is open to the appellant to urge that though the proceeding before an Income Tax Officer may be a judicial proceeding under Section 193 IPC, it would not follow that the said judicial proceeding is a proceeding in a court as required by Section 195(1)(b), CrPC.”
26. Further, the learned counsel relied on the Judgment of the Apex Court in Iqbal Singh Marwah and another vs. Meenakshi Marwah and another reported in [2005 (4) SCC 370], wherein it is held that, “findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. Further, in the Judgment in Koppala Venkataswami vs. Satrasala Lakshminarayana Chetti and another [1956 SCC Online AP 228 :
AIR 1959 AP 204], the Hon'ble Apex Court held that, “ Section 476 of the Cr.PC., is conceived in the interests of the public and unless complaints are made against parties or witnesses who are proved to be 22/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021 forgers or perjurers in time, the growing evil of the impunity with which documents are got up and false evidence secured to support false and frivolous claims or to defeat genuine ones, cannot be controlled or eradicated.
27. Considering the submissions and perusal of the materials it is seen that the private complaint filed by the petitioner primarily proceeds fact(i) whether payments where made by the complainant to the accused and (ii) whether second accused and co-owners authorised the first accused to enter into MOU dated 06.02.2016 (marked as Ex.C.3 before learned Arbitrator). Further first accused on oath before Arbitrator stated he was not liable to make payments to CICC, he had stated he did not sign MOU dated 06.02.2016 on behalf of second accused and others, further first accused stated he signed MOU Ex.C3 under threat and coercion, contradicting to his pleadings. As regards second accused the allegation is that, she feigns ignorance about the agreement entered by A1 with CICC on behalf of her, and entering into MOU dated 06.02.2016(Ex.C3). The answers given during the proceedings before the Arbitrator in evidence found to be contradictory, prevaricating statements. Hence, referring to certain portion of the evidence, the entire case is projected and proceeded against the petitioners/accused A1 and A2, referring to exhibits filed in Arbitration proceedings. In fact, these 23/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021 documents were documents filed in previously before High Court ie., Common Counter Affidavit of A1 in O.A.Nos.1030 and 1031 of 2016, (Ex.C58), the rejoinder dated 18.07.2018 filed by first accused, common counter, filed by A2 in O.A No.1030 and 1031 of 2016, (Ex.C.54), counter of A2 in O.P.No.605 of 2017(Ex.C.56), Agreement dated 04.03.2011 between A2 and others with CICC (Ex.C47), cancellation of agreement dated 24.01.2016 by A2 and others, M/s. Anmol Housing Corporation(A1) with CICC (Ex.C2), receipt signed by A1 Ex.C4A and partnership registration slip with authorization letter, these documents, confronted with A1 and A2, when they were cross-examined during arbitration proceeding, at that time, contradictions elicited from A1 in questions 44,45,46,49 to 52 and in questions 122,123,124. Likewise, when A2 was confronted with the above exhibits to questions 40,43,48,49,89,122,128 and 129, contradicting answers given, which is observed by Arbitrator, as prevaricating statement of A1 and A2, who were examined as RW2 and RW1, in the Arbitration proceedings, on perusal it is seen. Primarily contradiction elicited from A1 & A2 as to the documents filed before the proceedings in High Court in O.A.No.1030 and 1031 of 2016 and in O.P.No.605 of 2017
28. In the Arbitration proceedings, the petitioner herein said to have given contradictory statement to the affidavit filed primarily on the MoU, 24/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021 dated 06.02.2016, which is marked as Exs.C3. As regards A1, he gives answers that he signed Ex.C3 only as partner of M/s.Anmol Housing Corporation and with regard to the reference to A1 and other owners, he states that he was not given sufficient time to read through the documents. Likewise, with regard to owing of money to CICC a contradiction elucidated with regard to his statement and document Ex.C.58. Likewise, with regard to A2, contradictions have been elucidated with regard to Ex.C47, about knowledge of other co-owners of the property and it was suggested that A2 feigns ignorance with regard to Ex.C3, which amounts to uttering falsehood.
29. The private complaint primarily proceeds that before the High Court in sworn counter affidavit filed by A1 and A2 in O.A.No.1030 and 1031 of 2016 marked as Ex.C.58 and Ex.C.54 and in O.P. No.605/2017, Ex.C56 contradicted by the witnesses during their cross examination before the Arbitrator. Thus, the primary contention is that the petitioner/accused filed false affidavit before the High Court in O.A.Nos.1030 and 1031 of 2016 and O.P.No.605/2017 Proceedings. In view of the specific case of the complainant that a false sworn affidavit filed before the High Court, it would be appropriate for the respondent to have approached the concerned Court, file appropriate petition. On the other hand, finding contradictions in the answers given during cross- 25/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021 examination before the Arbitrator elucidating the contradictions, projecting as false statements and giving false evidence before the Arbitration and filing the above private complaint would not arise. Further, in the Evidence Act, Section 145 provides cross-examination as to previous statements in writing and Section 157 provides former statement of witness may be proved to corroborate latter testimony as to same fact. These provisions are enabling provisions, during trial of cases and proceedings, to enable the concern forum to come at a just decision.
30. In adjudication proceedings the cross-examination of the witnesses, as per the provisions of Evidence Act, is that the answers given to be considered analysed with the previous statements, documents with the attendant circumstances therein, which cannot be automatically termed as false statement. In this case, admittedly, the Arbitration proceedings is under challenge before this Court and finality is yet to be arrived. Apart from it, contradictory evidence of the petitioner has to be considered on whole, not by pick and choose, picking question and answers here and there, terming it as false evidence, would not be proper. As regards first petitioner question and answers to question Nos. 44, 45, 46, and Question No.122, 123 and 124, likewise, as regards second petitioner / A2 Question and Answer Nos.40, 43, 48, 49, and 89 and Question and Answer Nos.122, 128 and 129, which are extracted in the 26/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021 complaint would show that the complainant picked and chose few questions and answers and projected as false evidence would not be proper.
31. It is not in dispute that Arbitrator is not a Court. The issues to be decided by the Arbitrator is that, Whether the payment made by the complainant to the accused and Whether the second accused and co- owners authorized A1 to enter MOU, dated 06.02.2016. A1 on oath stated that he has not liable to pay CICC; further states he has not signed MOU, dated 06.02.2016, on behalf of A2 and A1 signed MOU, dated 06.02.2016, under coercion. To attract Section 193 of IPC, the parameters required is that there must be glaring case of deliberate falsehood, which may lead to conclusion, expedient to the interest of justice. Further, the specific case of the respondent is that falsity is before the High Court and for which, a complaint from the concerned Court is necessary. Further it is seen that in Ex.C3, the signature of A2 is not found. The complainant admit false evidence given before the High Court by way of affidavit.
32. Admittedly, there is a civil commercial dispute between the petitioner and the respondent with regard to payments and joint 27/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021 development of the projects, which lead to Arbitration confirming that it is a commercial transaction dispute between them. Further, during the sworn statement, the respondent produced only photostat copy of the documents for the reason that all the original are retained by the Arbitrator and Arbitrator normally shall produce the same only if the Court requires him to do so. Further, it is stated that the Arbitrator normally do not furnish certified copy of the documents, which is not proper. The proceedings of Arbitrator, is otherwise, which is extracted here under:-
“PROCEEDING OF THE SOLE ARBITRATOR DATED 13.11.2019 Please find enclosed herewith the Award in the above arbitral proceeding dated 13.11.2019. As there are many individual parties, the Award is sent to the Learned counsel representing the parties and the respective parties may be duly informed. No original of any of the documents have been filed with the Arbitrator” The lower Court on the affidavit of the petitioner accepting all the photostat documents without verification is not proper.
33. Thus, giving contradictory statement by a witnesses during trial is an accepted norm, for that purpose only Sections 145 and 157 of 28/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021 Evidence Act exists. Giving contradictory answers in the evidence here and there would not amount to giving false statement. The entire evidence as a whole, ought to be scrutinized. It is only in glaring cases of deliberate falsehood, where conviction is highly likely that the court should direct prosecution. Admittedly, in the complaint specifically 5 or 6 question and answers, projected as contradictory statement to the counter affidavit filed before the High Court in O.A.Nos. 1030 and 1031 of 2016 and O.P.No.605 of 2017. Only in case of prevaricating committed by filing false evidence, in such case, Sections 195 and 340 Cr.P.C., come into play and not by way of filing a private complaint by the petitioner for the offence under Section 120-B r/w 193 IPC. The decisions relied on by the learned counsel for the respondents are not applicable to the case on hand. It would be appropriate to refer and extract the Judgment of the Hon'ble Apex Court in Chajoo Ram Vs Radhey Shyam case reported in (1971 SCC Cri 331) wherein it is held as follows;-
'The prosecution for perjury should be sanctioned by courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavit is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful 29/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021 material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial.
There must be prima-facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the change'.
34.The Hon'ble Apex Court in the judgment in Narendra Kumar Srivastava Vs State of Bihar reported in (2019) 3 SCC 318, referring to the case in Santokh Singh Vs Izhar Hussain reported in 1973 SCC in Cri 828 in which it is held that 'This court has held that very 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 expediency. The court orders prosecution in the larger interest of the administration of justice and not to gratify the feelings of personal revenge or vindictiveness or to serve the ends of the private party. Too frequent prosecutions for such offences tend to defeat its very object. It is only in glaring cases of deliberate falsehood where conviction is highly likely that the court should direct prosecution'. Further, referring to the case of M.S Ahlawat Vs State of Haryana case wherein the Apex Court held in para 20, held as 30/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021 follows:-
20. That private complaints are absolutely barred in relation to an offence said to have been Section 193 committed under IPC and that the procedure prescribed under Section 195 of the Cr.P.C. are mandatory. It is held that:-
"5. Chapter XI IPC deals with “false evidence and offences against public justice” and Section 193 occurring therein provides for punishment for giving or fabricating false evidence in a judicial proceeding. Section 195 of the Criminal Procedure Code (CrPC) provides that where an act amounts to an offence of contempt of the lawful authority of public servants or to an offence against public justice such as giving false evidence under Section 193 IPC etc. or to an offence relating to documents actually used in a court, private prosecutions are barred absolutely and only the court in relation to which the offence was committed may initiate proceedings. Provisions of Section 195 CrPC are mandatory and no court has jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing as required under that section. It is settled law that every incorrect or false statement does not make it incumbent upon the court to order prosecution, but (sic) to exercise judicial discretion to order prosecution only in the larger interest of the administration of justice.
6. Section 340 CrPC prescribes the procedure as to how a complaint may be 31/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021 preferred under Section 195 CrPC.
While under Section 195 CrPC it is open to the court before which the offence was committed to prefer a complaint for the prosecution of the offender, Section 340 CrPC prescribes the procedure as to how that complaint may be preferred.
Provisions under Section 195 CrPC are mandatory and no court can take cognizance of offences referred to therein (sic). It is in respect of such offences the court has jurisdiction to proceed under Section 340 CrPC and a complaint outside the provisions of Section 340 CrPC cannot be filed by any civil, revenue or criminal court under its inherent jurisdiction."
21. As already mentioned, clauses under Section 195(1)(b) of the Cr.P.C. i.e. subsection 195(1)(b)(i) and subsection 195(1)(b)(ii) cater to separate offences. Though Section 340 of the Cr.P.C. is a generic section for offences committed under Section 195(1)(b), the same has different and exclusive application to clauses (i) and (ii) of Section 195(1)(b) of the Cr.P.C.
24. Further, the Supreme Court referring to Sachida Nand Singh's case, held that “the case in hand squarely falls within the category of cases falling under Section 195(1)(b)(i) of the Cr.P.C. as the offence is punishable under Section 193 of the IPC. Therefore, the Magistrate has erred in taking cognizance of the offence on the basis of a private complaint. The High Court, in our view, has rightly set aside the order of the Magistrate. However, having regard to the facts and circumstances of the case, we deem it proper to set aside the costs imposed by the High Court”.
which is identical to the case on hand.
32/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021
35. Further, the Supreme Court in the Judgment in Bandekar Brothers Pvt.Ltd and Anothers Vs. Prasad Vassudev Keni etc., etc. , reported in 2020 SCC online SC 707 in paragraph 44, observed and held as follows:-
“Equally important to remember is that if in the course of the same transaction two separate offences are made out, for one of which Section 195 of the CrPC is not attracted, and it is not possible to split them up, the drill of Section 195(1)(b) of the CrPC must be followed. Thus, in State of Karnataka v. Hemareddy (1981) 2 SCC 185, this Court referred to a judgment of the Madras High Court (Re V.V.L. Narasimhamurthy AIR 1955 Mad 237) and approved its ratio as follows:
“7…In the third case, Somasundaram, J., has observed:
“The main point on which Mr Jayarama Aiyar appearing for the petitioner seeks to quash this committal is that on the facts an offence under Section 193 IPC is disclosed for which the court cannot take cognizance without a complaint by the court as provided under Section 195(1)(b) of the Criminal Procedure Code. The first question which arises for consideration is whether on the facts mentioned in the complaint, an offence under 33/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021 Section 193, IPC is revealed. Section 193 reads as follows:
Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to 7 years, and shall also be liable to fine.
‘Fabrication of false evidence’ is defined in Section 192. The relevant portion of it is:
Whoever causes any circumstance to exist intending that such circumstance may appear in evidence in a judicial proceeding and that such circumstance may cause any person who in such proceeding is to form an opinion upon the evidence to entertain an erroneous opinion touching any point material to the result of such proceeding is said ‘to fabricate false evidence’.
The effect of the allegations in the complaint preferred by the complainant is that the petitioner has caused this will to come into existence intending that such will may cause the judge before whom the suit is filed to form an opinion that the will is a genuine one and, therefore, his minor daughter is entitled to the property. The allegation, therefore, in the complaint will undoubtedly fall under Section 34/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021 192 IPC. It will, therefore, amount to an offence under Section 193 IPC, i.e. fabricating false evidence for the purpose of being used in the judicial proceeding. There is no doubt that the facts disclosed will also amount to an offence under Sections 467 and 471, IPC. For prosecuting this petitioner for an offence under Sections 467 and 471, a complaint by the court may not be necessary as under Section 195(1)(b), Criminal PC a complaint may be made only when it is committed by a party to any proceeding in any court.
Mr Jayarama Aiyar does not give up his contention that the petitioner, though he appears only a guardian of the minor girl, is still a party to the proceeding. But it is unnecessary to go into the question at the present moment and I reserve my opinion on the question whether the guardian can be a party to a proceeding or not, as this case can be disposed of on the other point viz. that when the allegations amount to an offence under Section 193 IPC, a complaint of court is necessary under Section 195(1)(a), of the Criminal PC and this cannot be evaded by prosecuting the accused for an offence for which a complaint of court is not necessary.”
8.We agree with the view expressed by the learned Judge and hold that in cases where in the course of the same transaction an offence for which no complaint by a court is necessary under Section 35/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021 195(1)(b) of the Code of Criminal Procedure and an offence for which a complaint of a court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in Section 195(1)(b) of the Code of Criminal Procedure should be upheld”.
36. Thus, the consistent view of the Apex Court is that it must be shown that intentionally false statement given at any stage of judicial proceedings or fabricated false evidence for the purpose of using the same at any stage of judicial proceedings and it is the court which has to take appropriate action following the procedure, only in case, if it is expedient in the interest of justice. In this case absolutely sworn counter affidavit filed by A1 and A2 in a proceeding before High Court in O.A.No.1030 and 1031 of 2016 and O.P.No.605 of 2017. The contradictory answers elicited referring to documents filed in earlier proceedings during cross- examination, in the arbitration proceedings will not amount to perjury, giving any right to the petitioner/complainant to file the above complainant. Added to it is admitted by both, arbitration award is under challenge pending before this court. In view of the above, the complaint filed by the respondent is neither maintainable in law nor on facts. Hence, continuation of the proceedings before the trial Court would amount to abuse of process of law.
36/38 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.11729 & 11842 of 2021
37. In the result, the Criminal Original Petitions are allowed and the proceedings in C.C.No.831 of 2021, pending on the file of VII Metropolitan Magistrate, George Town, Chennai., are hereby quashed. Consequently, the connected miscellaneous petitions are closed.
5.08.2022
Index : Yes/No
Internet : Yes /No
MPK / smn2
To
1 The VII Metropolitan Magistrate,
George Town,
Chennai.
2. The Public Prosecutor,
Madras High Court,
Chennai.
37/38
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.11729 & 11842 of 2021
M.NIRMAL KUMAR, J.
MPK
Pre-delivery common order in
CRL.O.P.Nos.11729 & 11842 of 2021
5.08.2022
38/38
https://www.mhc.tn.gov.in/judis