Gujarat High Court
Dhirubhai Mohanbhai Bhanderi vs State Of Gujarat on 27 February, 2023
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/18498/2018 JUDGMENT DATED: 27/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 18498 of 2018
With
CRIMINAL MISC. APPLICATION (DIRECTION) NO. 1 of 2020
In
R/CRIMINAL MISC. APPLICATION NO. 18498 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
=======================================
Whether Reporters of Local Papers may be
1 NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? YES
Whether their Lordships wish to see the fair copy
3 NO
of the judgment ?
Whether this case involves a substantial question
4 of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
=======================================
DHIRUBHAI MOHANBHAI BHANDERI
Versus
STATE OF GUJARAT
=======================================
Appearance:
MR PRATIK Y JASANI(5325) for the Applicant(s) No. 1
MR ND NANAVATI, SR ADVOCATE with MR VIRAT G POPAT(3710)
for the Applicant(s) No. 1
PETITION/APPEAL WITHDRAWN/DISMISSED for the Applicant(s)
No. 2
MR. RAJ A TRIVEDI(7024) for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
=======================================
Page 1 of 22
Downloaded on : Thu Mar 02 20:36:06 IST 2023
R/CR.MA/18498/2018 JUDGMENT DATED: 27/02/2023
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 27/02/2023
ORAL JUDGMENT
A] Rule, returnable forthwith. Learned advocates for the respective parties waive service. With the consent of the learned advocates for the parties present, the matter was taken up for final hearing.
B] Heard, the learned advocates for the respective parties. C] Order in Criminal Misc. Application No. 1 of 2020:
1. Prayer in this petition is to direct inquiry, investigation and to file or direct to file a criminal complaint, which is to the facts alleging forgery and fabricating the signature of the present petitioner - Ashwinbhai Bhikhabhai Sardhara in petition of Criminal Misc. Application No. 18498 of 2018 and in the Vakalatnama appended therewith before this Court.
Alternatively, it is prayed to permit the petitioner to file appropriate complaint before appropriate authority in accordance with law.
Page 2 of 22 Downloaded on : Thu Mar 02 20:36:06 IST 2023
R/CR.MA/18498/2018 JUDGMENT DATED: 27/02/2023
2. It is stated by the petitioner that he was shown as petitioner No. 2 in Criminal Misc. Application No. 18498 of 2018, which is filed along with petitioner No. 1 therein - Dhirubhai Mohanbhai Bhanderi under Section 482 of the Criminal Procedure Code, 1973 (CrPC) with a prayer to quash and set aside FIR being C. R. No. I- 178 of 2018, registered with Nikol Police Station, Ahmedabad for the offence punishable under Sections 384, 387, 507, 114 and 506(2) of the Indian Penal Code, 1860 (IPC) and other provisions of the Money Lending Act, 1946.
2.1 The petitioner contends that he had not signed the Vakalatnama nor had approached this Court by filing Criminal Misc. Application No. 18498 of 2018 and he came to know that the said petition had been sworn by impersonating him and had learnt that his signature was forged in the petition as well as in the Vakalatnama.
2.2 It is further stated that while filing the quashing petition being Criminal Misc. Application No. 14576 of 2020 before this Court by the present petitioner, attention was drawn by the Registry of this Court about one matter, in his name, already shown pending before this Court. The petitioner states that he was shocked as he had never authorised any person nor had put Page 3 of 22 Downloaded on : Thu Mar 02 20:36:06 IST 2023 R/CR.MA/18498/2018 JUDGMENT DATED: 27/02/2023 his signature on any document to be filed in a quashing petition i.e. Criminal Misc. Application No. 18498 of 2018. Therefore, the petitioner applied for certified copy of entire set of Criminal Misc. Application No. 18498 of 2018 and found that on each page of the petition as well as upon affidavit, his forged signature was put. The petitioner contends that he had never remained present before this Court nor had remained present on the date when it was stated to be sworn and Vakalatnama too, bears forged and fabricated signature.
3. Ms. Kruti M. Shah, learned advocate for the petitioner, would submit that it is a clear case of forging the signature of the petitioner and to the best of information to the petitioner, son of Dhirubhai Mohanbhai Bhanderi has committed the said act as he being the partner of the petitioner, misused his position and thus, learned advocate Ms. Shah would submit that a criminal complaint is required to be filed and the provisions of Section 340 read with Section 195 CrPC are required to be invoked alleging that the offence punishable under Section 463, 471, 475 or 476 IPC has been committed in respect of a document produced or given in evidence in a proceeding of the Court. Learned advocate Ms. Shah would further submit that in case no complaint can be filed except on complaint in writing by the Court or by such Page 4 of 22 Downloaded on : Thu Mar 02 20:36:06 IST 2023 R/CR.MA/18498/2018 JUDGMENT DATED: 27/02/2023 officer authorised by the Court in accordance with the provision of law then, alternatively, the complainant be permitted to file a complaint.
3.1 Learned advocate Ms. Shah further submitted that, even in case, a document is stated to have been signed outside the precinct of the High Court and is produced in the proceedings by any person, then too, the Court can take cognizance and proceed against the alleged under Section 340 couple with Section 195 CrPC. Further more, she submitted that the signature, if it is admitted by the person concerned against whom allegation of forgery is made, then there would be no other reason to deny invocation of the provisions as stated under CrPC.
4. Dhirubhai Mohanbhai Bhanderi, the respondent No. 3 herein has filed the affidavit-in-reply denying all the contentions raised in the petition stating that allegations levelled in the petition are patently false, mala fide and are made with a view to harass the opponents. The petition is maliciously instituted and that, there is suspicious delay of two years in filing the present petition and that it is only after an FIR being filed by his daughter-in-law against the present petitioner, thus to settle the score, this Court has been moved to invoke the provisions of Section 195 read Page 5 of 22 Downloaded on : Thu Mar 02 20:36:06 IST 2023 R/CR.MA/18498/2018 JUDGMENT DATED: 27/02/2023 with Section 340 CrPC, which, the opponent states, cannot be used as leverage where the clear motive attributable is mala fides and thus, contended that the petition lacks bona fide. 4.1 Learned senior advocate Mr. N. D. Nanavati appearing with learned advocate Mr. Virat Popat for the opponent has taken this Court to the sequence of events which has emerged from the record, to state that on 28.09.2018, quashing petition being Criminal Misc. Application No. 18498 of 2018 was filed, while the applicant had moved the Sessions Court for Anticipatory Bail on 16.10.2018 by way Criminal Misc. Application No. 2623 of 2018, which came to be rejected on 30.10.2018. It has been brought to the notice of this Court that on 29.10.2018, the complainant therein had filed objections stating about filing of the quashing petition being Criminal Misc. Application No. 18498 of 2018. 4.2 Learned senior advocate Mr. Nanavati further submitted that on 02.11.2018, the petitioner moved the Court of learned Judicial Magistrate First Class for regular bail, which was granted on the very same day, wherein too, reference was made about filing of the quashing petition.
4.3 It is further submitted by learned senior advocate Page 6 of 22 Downloaded on : Thu Mar 02 20:36:06 IST 2023 R/CR.MA/18498/2018 JUDGMENT DATED: 27/02/2023 Mr. Nanavati that it was only when on 18.07.2020, the daughter- in-law of Dhirubhai Mohanbhai Bhanderi filed an FIR against the petitioner, the dispute arose and by making a ground, wrongly and maliciously has stated that he had not put the signature on quashing petition and on the Vakalatnama.
4.4 Learned senior advocate Mr. Nanavati further submitted that the petitioner had an ulterior motive to allege fallacy since had moved another quashing petition being Criminal Misc. Application No. 14576 of 2020, which was affirmed on 16.09.2020 and as per computer status, it was presented on 29.09.2020 and quashing petition, by consent, was allowed on 22.12.2020. It has been submitted that the petitioner had not even cared to withdraw the earlier alleged quashing petition and it was only by an order of this Court dated 27.10.2020, on submission made by the Advocate on Record about filing of another separate substantive petition, the application qua the present petitioner being petitioner No. 2 in that petition, a permission was granted for withdrawal and the application qua the present petitioner came to be withdrawn. Learned senior advocate Mr. Nanavati submitted that act of non-disclousure of earlier petition for quashing of FIR is hit by the High Court Rules.
Page 7 of 22 Downloaded on : Thu Mar 02 20:36:06 IST 2023
R/CR.MA/18498/2018 JUDGMENT DATED: 27/02/2023 4.5 Moreover, learned senior advocate Mr. Nanavati submitted that as such, withdrawal of the application was made since Advocate on Record came to know about filing of another quashing petition which was on consent terms, while no such exercise was undertaken by the petitioner himself and had not taken any initiative to let his name withdrawn from cause-title alleging any such malpractice or any forgery or a case of any impersonation at the relevant time, and thus stated that the petition is invoked only out of vengeance and private grudge.
5. This petition for direction (Criminal Misc. Application No. 1 of 2020) is moved in this quashing petition which was registered on 01.10.2018. Cause-title reflects that petition qua petitioner was disposed of as withdrawn as per order dated 27.10.2020, as reflected in the petition which was drafted on 27.09.2018, affirmed on 28.09.2018 and filed on the very same day. The petition was affirmed before Notary and it is alleged by the petitioner that the signature on each page of the petition is forged, while the said fact clarifies that the petition was executed before a Notary and not before the registry of this Court. The learned advocate for the petitioner would have received the affirmed petition for filing it before the Court. The objection, which has been raised, is signature placed by the Page 8 of 22 Downloaded on : Thu Mar 02 20:36:06 IST 2023 R/CR.MA/18498/2018 JUDGMENT DATED: 27/02/2023 learned advocate of the petitioner below the endorsement of "Explained and interpreted in Gujarati to the Deponent by me & identified by me". The said endorsement of identification or explaining the contents of the petition would not have been before the Notary as the affirmation and execution would have been at the office of the Notary.
5.1 Thus, the learned advocate on record would not have observed the execution of the document before the Notary to attribute any case of forgery or fabrication against the Advocate on Record. At the same time, nothing can be attributed to the alleged person, the son of applicant No. 1 - Dhirubhai Mohanbhai Bhanderi, as identification of the deponent would be before the Notary concerned and verification of identification would have been undertaken by the Notary. However, fact remains that the petitioner, though accuses that he had not signed as deponent in the petition, thereafter, had moved a Criminal Misc. Application being No. 14576 of 2020 for quashing of the same FIR by consent, had never informed the Court in the proceedings in Criminal Misc. Application No. 18498 of 2018 of any forgery or a case of impersonation. The Gujarat High Court Rules, 1993 (the High Court Rules), under Chapter XXVI, Rule 333 provides that, "all criminal matters shall be presented in the office of the Page 9 of 22 Downloaded on : Thu Mar 02 20:36:06 IST 2023 R/CR.MA/18498/2018 JUDGMENT DATED: 27/02/2023 Registrar to such person as the Registrar may be special or general order authorise". Further under provisions of Rule 334 of the High Court Rules, "Every appeal or application shall contain a statement that no appeal or application in the same matter has previously been filed. If the appellant or applicant states that an appeal or application has previously been filed, he shall also state how such appeal or application has been disposed of and how the present appeal or application is competent". Here, in the instant case, the petitioner was having the knowledge of his earlier petition, despite that, he had not disclosed the said fact in the later petition filed for quashing of the same FIR which was under mutual consent. His name came to be withdrawn from the captioned petition (Criminal Misc. Application No. 18498 of 2018) under order of the Court, but he, on his own volition, had not preferred to get his name withdrawn. Under the High Court Rules, it is incumbent upon the petitioner to inform about pendency of earlier petition. Further, a perusal of copy of petition memo of Criminal Misc. Application No. 14576 of 2020, where the present petitioner was petitioner No. 2 - original accused No. 9 along with one Ashaben Pankajbhai Patel - petitioner No. 1 - original accused No. 6, reveals that in paragraph 6 thereof, it is mentioned as under:
Page 10 of 22 Downloaded on : Thu Mar 02 20:36:06 IST 2023
R/CR.MA/18498/2018 JUDGMENT DATED: 27/02/2023 "The petitioners submit that save as stated herein above the petitioners have not filed any other petition before any other court including this Hon'ble Court on the subject matter of this petition."
5.2 The said petition was executed and affirmed by Ashaben Pankajbhai Patel before Notary on 16.09.2020 and according to the petitioner, registry had informed him about the pendency of the earlier matter, despite that, filed a petition without clarifying about the earlier petition, which is to be inferred as, it was by suppression and deliberate attempt to hide the facts in spite of having knowledge of earlier petition. Subsequent petition for quashing of FIR was moved and registered, which was on the basis of the consent terms and the FIR qua the present petitioner and Ashaben Pankajbhai Patel came to be quashed by virtue of an order dated 22.12.2020. The order on record reflects that there was a common order passed along with Criminal Misc.
Application Nos. 15817 of 2020, 15819 of 2020 and 18549 of 2020. It further appears that out of 10 accused, 8 accused, who were accused Nos. 1, 2, 4, 5, 6, 7, 9 and 10 had preferred quashing of FIR alleged against all of them on the basis of consent stating that they have amicably resolved the dispute and in support, affidavit of settlement of dispute duly signed by the complainant as also the victim was placed on record. The facts, thus, suggest that except the petitioner No. 1 of Criminal Misc. Page 11 of 22 Downloaded on : Thu Mar 02 20:36:06 IST 2023 R/CR.MA/18498/2018 JUDGMENT DATED: 27/02/2023 Application No. 18498 of 2018, the complainant had settled with all the accused. The petitioner was having knowledge of the earlier petition, though he states that it was not under his knowledge. The facts suggest that even during the pendency of proceedings of anticipatory bail, it was brought to the notice of the Court and informed to the petitioner about the pendency of the quashing petition; thereafter too, during regular bail proceedings, the petitioner was having the knowledge of the earlier quashing petition, but no steps had been taken to inform the Court about any such forgery or any case of impersonation as alleged.
5.3 Learned advocate Ms. Shah stated that it is a case which affects the administration of justice and to hold the majesty of the Court, order of inquiry is required to be passed. As against this, a decision of the Apex Court in Sasikala Pushpa and Ors. v. State of Tamilnadu, (2019) 6 SCC 477 has been referred by learned senior advocate Mr. Nanavati to submit that there is no prima facie case of any forgery or of impersonation. It is further submitted that for the prosecution under Section 195 r/w. Section 340 CrPC, forgery must be established. In Sasikala Pushpa and Ors. (supra), it is observed as under: Page 12 of 22 Downloaded on : Thu Mar 02 20:36:06 IST 2023
R/CR.MA/18498/2018 JUDGMENT DATED: 27/02/2023 "11. Before proceeding to make a complaint regarding commission of an offence referred to in Section 195(1)
(b) CrPC, the court must satisfy itself that "it is expedient in the interest of justice". The language in Section 340 CrPC shows that such a course will be adopted only if the interest of justice requires and not in every case. It has to be seen in the facts and circumstances of the present case whether any prima facie case is made out for forgery or making a forged document warranting issuance of directions for lodging the complaint under Section 193, 467, 468 and 471 IPC.
5.3.1 The Apex Court in K.T.M.S. Mohd. and Anr. v. Union of India, with Amanulla Quareshi v. Union of India, AIR 1992 SC 1831, has made observations in context of Section 340 CrPC. Relevant paragraphs 34 and 35 are reproduced hereunder:
"34. In this context, reference may be made to Section 340 of the Code of Criminal Procedure under Chapter X X VI under the heading "Provisions as to certain offences affecting the administration of justice". This section confers an inherent power on a Court to make a complaint in respect of an offence 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, if that Court is of opinion that it is expedient in the interest of justice that an enquiry should be made into an offence referred to in clause (b) of sub-section (1) of Section 195 and authorises such Court to hold preliminary enquiry as it thinks necessary and then make a complaint thereof in writing after recording a finding to that effect as comtemplated under sub-
section (1) of Section 340. The words "in or in relation to a proceeding in that Court" show that the Court which can take action under this section is only the Court operating within the definition of Section 195(3) before which or in relation to whose proceeding the Page 13 of 22 Downloaded on : Thu Mar 02 20:36:06 IST 2023 R/CR.MA/18498/2018 JUDGMENT DATED: 27/02/2023 offence has been committed. There is a word of caution inbuilt in that provision itself that the action to be taken should be expedient in the interest of justice. Therefore, it is incumbent that the power given by this Section 340 of the Code should be used with utmost care and after due consideration. The scope of Section 340(1) which corresponds to Section 476(1) of the old Code was examined by this Court in K. Kanunakaran v. T.V. Eachara Warrier, (1978) 1 SCC 18 : (AIR 1978 SC
290) and in that decision, it has observed (paras 21 and 26 of AIR):
"At an enquiry held by the Court under Section 340(1), Cr.P.C., irrespective of the result of the main case, the only question is whether a prima facie case is made out which, if unrebutted, may have a reasonable likelihood to establish the specified offence and whether it is also expedient in the interest of justice to take such action.
................................................. ....................The two pre-conditions are that the materials produced before the High Court make out a prima facie case for a complaint and secondly that it is expedient in the interest of justice to permit the prosecution under Section 193 IPC."
35. The above provisions of Section 340 of the Code of Criminal procedure are alluded only for the purpose of showing that necessary care and caution are to be taken before initiating a criminal proceeding for perjury against the deponent of contradictory statement in a judicial proceeding."
5.4 In Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370, the Apex Court, while considering the language of Section 340 CrPC, for taking cognizance or for ordering an inquiry under Section 195 CrPC, has referred to the importance of the Page 14 of 22 Downloaded on : Thu Mar 02 20:36:06 IST 2023 R/CR.MA/18498/2018 JUDGMENT DATED: 27/02/2023 words, "Court is of opinion that it is expedient in the interests of justice". Necessary observations are as under:
"23. In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section is conditioned by the words "court is of opinion that it is expedient in the interests of justice". This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the court may not consider it expedient in the interest of justice to make a complaint. ......"
5.5 Section 340 CrPC deals with procedure in cases mentioned in Section 195 CrPC. The provisions of section thus make it necessary for the Court to come to an opinion for initiating any inquiry and that could be only on the basis of not the magnitude of injury suffered by the person as alleged of any forgery or Page 15 of 22 Downloaded on : Thu Mar 02 20:36:06 IST 2023 R/CR.MA/18498/2018 JUDGMENT DATED: 27/02/2023 forged document, but the opinion would be after having regard to the effect or impact of such alleged commission of offence upon administration of justice. Thus, before filing a complaint, the Court must come to a finding that prosecution is necessary in the interests of justice.
5.6 The petition being Criminal Misc. Application No. 18498 of 2018 has been filed for quashing of FIR which was pending against both the applicants. There would not be a case of commission of any fraud since the petition was filed for the benefit of both the applicants. It appears that subsequently, as stated, because of inter se disputes, the present petitioner had preferred to part his ways from petitioner No. 1 i.e. Dhirubhai Mohanbhai Bhanderi (in Criminal Misc. Application No. 18498 of 2018) and with other co-accused had got the FIR quashed on consent terms. The inter se grudge between the accused and the complainant appears to be large. The proceedings of the Court cannot be made an instrument, by any of the parties, to satisfy their vendetta.
5.7 In Bibhuti Bhusan Basu v. Corporation of Calcutta and Others, 1982 Cri.L.J. 909, it has been laid down that the recommendation for action under Section 340 CrPC should be at Page 16 of 22 Downloaded on : Thu Mar 02 20:36:06 IST 2023 R/CR.MA/18498/2018 JUDGMENT DATED: 27/02/2023 the satisfaction of the Court making recommendation as to mens rea of the party sought to be proceeded against, is a condition precedent. Here, in this case, the petitioner has failed to demonstrate as to how Criminal Misc. Application No. 18498 of 2018 for quashing of FIR was moved with any intention to do wrong to him, if at all this Court has to consider the case of impersonation or of forged signature. In Bibhuti Bhusan Basu (supra), the Court has observed as under:
"27. The provisions of Section 340. are more or less procedural and indicates how a complaint in respect of offence referred to in Section 195(1)(b) is to be made. The Court, in a proceeding Under Section 340 or before directing a complaint to be lodged must in my view, form the opinion on being satisfied or come to the conclusion on such satisfaction that the person charged, has intentionally given false evidence and that, for the eradication of the evils of per-, jury and in the interest of justice, it is expedient that he should be prosecuted for the offence and furthermore the Court, at the time of or before delivering the judgment, must, as mentioned above, duly form the opinion that the person charged, gave false evidence and such formation of opinion, must be on consideration of materials duly placed. These apart, the Court should, before directing a complaint to be filed, also consider, if the evidence as led, was intentionally done and knowing the same to be false or the same was intended to have some unlawful gain over the adversary and was aimed at having some advantage irregularly. Thus, like all other Criminal trials or proceedings, the existence of mens rea or the criminal intention behind the act as complained of. will also have to be looked into and considered, before any action Under Section 340 is recommended. Mere sufferance of the petitioner, because of the inaction or Page 17 of 22 Downloaded on : Thu Mar 02 20:36:06 IST 2023 R/CR.MA/18498/2018 JUDGMENT DATED: 27/02/2023 irregular or improper or wrong action of his adversary, would not be enough. If there is any doubt or any semblance such doubt in the mind of the Court, in respect of the bona fides of the defence of the person charged of the action, the Court, in my view, will not be justified in exercising the power to direct the lodging of a complaint Under Section 340 simply because such action has been filed. The purpose of making a complaint against a person, would be for intentionally giving false evidence or for intentionally fabricating such evidence and that too with the aim and object as mentioned herein before, at any stage of the proceeding.
28. I further observe that if a person affirms a false affidavit in a proceeding in a Court, his case would also come under the provisions of the Code as referred to herein before and the principles, similar to those as mentioned above, if he is nought to be proceeded with Under Section 340, would apply statements as claimed to be violative or infringing the rights, must in my view, be found to be touching the point, material to the object.
In the instant case, there cannot be any doubt that a huge organisation like the said Corporation. would receive many such letters and correspondence as in the present case and if they are not duly placed in the relevant files, the person, who would make and file an affidavit, on the basis of such records, would certainly be misled or there would be such a chance and such unfortunate affidavits as in this case, may be the result. The defence to the above effect, when taken, which in fact was the case of the answering respondents, would have to be considered even though, such defence, as mentioned hereinbefore, from an organisation like the said Corporation, was not expected. But, this unfortunate circumstance could have certainly been avoided, if the petitioner had disclosed his application for leave and Annexures J, Ji and J2 as mentioned above in time or at the appropriate stage. Perhaps, because of such inaction on his part. The Respondents have been emboldened or had the occasion to take the defence as mentioned Page 18 of 22 Downloaded on : Thu Mar 02 20:36:06 IST 2023 R/CR.MA/18498/2018 JUDGMENT DATED: 27/02/2023 hereinbefore. But, since such contingencies have not been proved or established by any legal evidence, in my view, it would not be safe to rely on the same and to hold that the defence as taken, was improper or such defence as taken, was resorted to intentionally and with the ultimate end or aim as mentioned above, knowing the same to be false."
5.8 The object of Section 340 CrPC makes it clear that before lodging a complaint, it is necessary that the Court must be satisfied that it was expedient in the interests of justice to lodge the complaint. Mere fact that a person has made contradictory statements in a judicial proceeding or a contradictory stand has been taken during the proceedings, by itself, always would not be sufficient to justify the prosecution. Even if it appears that the proceedings has been initiated on behalf of a person who alleges that it was not instructed by him, but, if it has been without any criminal intent or when nothing has been brought on record to show that any harm has been caused to him, this Court, mere on allegation or only, as observed earlier, to vindicate the personal vendetta, would not initiate any inquiry unless the Court comes to the conclusion that it is expedient in the interests of justice. As observed herein above, unless it is clearly brought on record that the prosecution is in the interests of justice, Court cannot contemplate to move the machinery against any private individual as here, in this case, the foundations of facts are not, Page 19 of 22 Downloaded on : Thu Mar 02 20:36:06 IST 2023 R/CR.MA/18498/2018 JUDGMENT DATED: 27/02/2023 prima facie, made clear as the very intention of the petitioner becomes doubtful. Further, facts on record also suggest that the signature, as alleged to have been fabricated or forged, was before a Notary and not before the registry of this Court. 5.9 The Apex Court, in Amarsang Nathaji v. Hardik Harshadbhai Patel, AIR 2016 SC 5384 = 2017 Cr.L.J. 758 (2017) 1 SCC 117, has held that, "there are two pre-conditions for initiating proceedings under Section 340 CrPC - (i) materials produced before the court must make out a prima facie case for a complaint for the purpose of inquiry into an offence referred to in clause (b)(i) of sub-Section (1) of Section 195 of the CrPC and
(ii) it is expedient in the interests of justice that an inquiry should be made into the alleged offence". The Court must be satisfied that such inquiry is required in the interests of justice and appropriate in the facts of the case and during the process of formation of opinion by the Court, that it is expedient in the interests of justice that inquiry should be made in, requirement should only be prima facie satisfaction of the offence which appears to have been committed. The prayer is made for the invocation of Section 463 IPC and other allied sections. Section 463, as referred in Clause (b)(ii) of Section 195 CrPC, refers to forgery. The said section reproduced herein below: Page 20 of 22 Downloaded on : Thu Mar 02 20:36:06 IST 2023
R/CR.MA/18498/2018 JUDGMENT DATED: 27/02/2023 "463. Forgery.-- Whoever makes any false document or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."
5.10 The ingredients of Section 463 IPC require the making of forged document with intent to cause damage or injury to a person with an intent to commit fraud. Here, in this case, the petition filed, if at all be considered on behalf of the petitioner, the intention of causing any damage or injury, does not get reflected on record. The very filing of quashing petition would be in the interest of the petitioner himself, who subsequently had also moved the Court for the quashing of FIR on consent terms.
5.11 This Court does not find any reason to hold any preliminary inquiry as, any forgery with mala fide intention to cause damage or injury could not be shown to the Court. While the High Court Rules had made it obligatory on the petitioner himself to disclose the pendency of the earlier petition which he has failed to do so.
6. For the reasons stated herein above, the petition fails and is rejected accordingly. Rule is discharged.Page 21 of 22 Downloaded on : Thu Mar 02 20:36:06 IST 2023
R/CR.MA/18498/2018 JUDGMENT DATED: 27/02/2023 D] Order in Criminal Misc. Application No. 18498 of 2018:
1. Learned advocate Mr. Virat Popat, under instructions, seeks permission to withdraw the same with a liberty to move appropriate application before appropriate forum.
1.1 Without entering into the merits of the case, the petition is disposed of as withdrawn with aforesaid liberty. Rule is discharged. Interim relief, if any, shall stand vacated forthwith.
[ Gita Gopi, J. ] hiren Page 22 of 22 Downloaded on : Thu Mar 02 20:36:06 IST 2023