Telangana High Court
M.K.Laxman Rao, Secunderabad vs M/S S.R. Constructions, Secunderabad ... on 8 June, 2023
THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY
CIVIL REVISION PETITION NO.2568 OF 2016
ORDER:
This Civil Revision Petition is directed under Article 227 of the Constitution of India to set aside the order and decree dated 14.09.2015 in I.A.No.4961 of 2014 in CMA No.38 of 2010 by the learned I Additional Chief Judge, City Civil Court, Secunderabad.
2. Heard learned counsel for petitioner and learned counsel for respondents. Perused the record.
3. Briefly the facts of the case are that respondent No.1 herein - plaintiff filed a suit for perpetual injunction against the revision petitioner herein - defendant in O.S.No.428 of 2009 on the file of III Senior Civil Judge, Secunderabad. In the said suit, respondent No.1 has also filed I.A.No.1258 of 2009 for ad-interim injunction against the revision petitioner from interfering with the plaintiff's property. In the above suit, the revision petitioner herein being a defendant has filed I.A.No.1534 of 2010 seeking amendment of his written statement in O.S.No.428 of 2009 making counter claim for perpetual injunction and the said IA ASR,J CRP No.2568_2016 2 was allowed by the III Senior Civil Judge, Secunderabad vide its order dated 25.10.2010 and has also filed I.A.No.1575 of 2010 under Order XXXIX Rule 1 (a) of the Code of Civil Procedure, 1908 (for short "CPC") seeking ad-interim injunction against respondent No.1 from interfering with the revision petitioner's piece of land admeasuring about 5 Square Yards. The trial Court after hearing both I.As i.e., I.A.No.1258 of 2009 filed by respondent No.1 herein and I.A.No.1575 of 2010 filed by revision petitioner together, vide its common order dated 25.09.2010 allowed I.A.No.1258 of 2009 and dismissed I.A.No.1575 of 2010. Aggrieved by the said common order and decree dated 25.10.2010 passed in I.A.Nos.1258 of 2009 and 1575 of 2010 in O.S.No.428 of 2009, the revision petitioner filed two CMAs i.e., CMA Nos.37 of 2010 and 38 of 2010. CMA No.37 of 2010 was filed to set aside the order and decree dated 25.10.2010 in I.A.No.1258 of 2009. CMA No.38 of 2010 was filed to set aside the order and decree dated 25.10.2010 in I.A.No.1572 of 2009.
4. On a consideration of the material on record, the Court below allowed both the CMAs by a common judgment dated 14.09.2015. CMA No.37 of 2010 was allowed and I.A.No.1258 of 2009 filed by respondent No.1 was allowed in favour of ASR,J CRP No.2568_2016 3 respondent No.1 and against the revision petitioner restraining him from interfering with the peaceful possession and enjoyment of respondent No.1 over the petition schedule property including the activities of demolition and construction being carried on in the suit schedule property, subject to the condition that respondent No.1 shall not demolish the portion of the southern side compound wall of the said property, wherein the two rooms of the revision petitioner side property is resting and that he could not interfere with the possession and enjoyment of 5 square yards of the property referred in the schedule of I.A.No.1575 of 2010. CMA No.38 of 2010 was allowed in favour of the revision petitioner and against respondent No.1 restraining him from interfering with the possession and enjoyment of the revision petitioner over the petition schedule property mentioned in I.A.No.1575 of 2010.
5. In CMA No.38 of 2010 the revision petitioner filed I.A.No.3240 of 2010, I.A.No.2447 of 2012 and I.A.No.4022 of 2014. In all the I.As, respondent No.1 through their counsel by name D.Srinivas Prasad, Advocate (respondent No.2 herein) has filed counter affidavits. In the counter affidavits, respondent No.1 has knowingly, intentionally, deliberately and with dishonest intention ASR,J CRP No.2568_2016 4 and oblique motive has denied the true and material facts having a bearing on the case and made false statements and false allegations. Then, the revision petitioner filed I.A.No.4961 of 2014 in CMA No.38 of 2010 under Section 340 of the Code of Criminal Procedure (for short "Cr.P.C.") praying the Court to conduct an inquiry into the offences committed by the respondents under Sections 191, 192, 193, 196, 199, 200, 209, 109, 120B and 420 of the Indian Penal Code (for short "IPC") and also under the Contempt of Courts Act. Respondent Nos.1 and 2 filed their separate counter affidavits denying the allegations in the application. Respondent No.2 is the counsel for respondent No.1 and alleged that the petition itself is vexatious and also contains imputations which are per se highly defamatory in nature and has damaged his reputation and he sustained irreparable loss. Respondent No.2 further stated that he has done his duty towards his client diligently to the best of his ability and put up the twenty eight (28) years of his practice in the trial Court as well as in the High Court and deliberately, malafidely, with dishonest intention made false and misleading statements by the petitioner. Therefore, respondents prayed to dismiss the application.
ASR,J CRP No.2568_2016 5
6. On a consideration of the material on record, the Court below vide its order dated 14.09.2015 dismissed I.A.No.4961 of 2014 filed under Section 340 of Cr.P.C. stating that none of the documents are directly filed before the appellate Court. The allegation is that those documents are fabricated. Therefore, there is no prima facie case established by the revision petitioner in his presence and if any offence has made out by the revision petitioner, it was only in the presence of a Judge of the trial Court and the petitioner may take appropriate steps before the trial Court in respect of the allegations made against him. Aggrieved by the same, the present revision is filed.
7. Learned counsel for the revision petitioner submits that the Court below committed error in dismissing the application and that the petitioner has made out prima facie case to proceed against the respondents under Section 340 of Cr.P.C. because the alleged offences of filing affidavits with false allegations, fabricated false evidence and knowingly, deliberately, malafidely and dishonestly making false statements before the court and also committed conspiracy with common intention in furtherance of their common intention. Learned counsel further submits that the Court below has failed to consider, Section 340 ASR,J CRP No.2568_2016 6 of Cr.P.C. can be invoked in civil cases whoever files false evidence, makes false claims and statements in relation to any proceedings before the Court and can make a complaint to the concerned Magistrate once the alleged offences are made out. Therefore, he prayed to allow the revision.
8. Per contra, Sri G.Vidya Sagar, learned senior counsel for respondents submits that no offence is made out to take cognizance against the alleged offence under Section 340 Cr.P.C. and the Court below has rightly dismissed the application and refused to forward the complaint to the concerned magistrate. Learned senior counsel further submits that respondent No.2 is having more than thirty years of practice in the trial Court, as well as, he is appearing before the High Court and it is very unfortunate that the counsel is being implicated in these proceedings alleging the commission of offence in the civil proceedings, herein the counters have been filed denying the allegations and for such denial in the counter affidavits an application like the impugned application under Section 340 Cr.P.C. is being filed attributing malafides against counsel which has to be deprecated and the individuals, who are trying to malign the reputation of the counsel intentionally should be ASR,J CRP No.2568_2016 7 warned and stringent action to be initiated against them. Therefore, he prayed to dismiss the revision.
9. On hearing the submissions of both the learned counsel and on a perusal of the material on record, the only question that arise for consideration is, whether the impugned order is sustainable in law?
10. Now at the threshold, it is necessary to refer to the provisions of Section 340 of the Code of Criminal Procedure (for short "Cr.P.C.") which reads as under:
"340. Procedure in cases mentioned in section 195.
(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub- section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,-
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non- bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by sub- section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub- section (1) in ASR,J CRP No.2568_2016 8 respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub- section (4) of section 195.
(3) A complaint made under this section shall be signed,-
(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
(b) in any other case, by the presiding officer of the Court. (4) In this section," Court" has the same meaning as in section 195."
11. From bare perusal of this provision in the Code, it is abundantly clear that if an offence mentioned in Section 195 IPC appears to have been committed in relation to proceedings in a Court that Court has the power under Section 340 Cr.P.C. to hold an enquiry and after enquiry (a) record a finding to that effect
(b) make a complaint thereof in writing and (c) send it to Magistrate of First Class having Jurisdiction. The word "Court" used in the provision is important and it is not important whether the matter, with regard to which there is a complaint of commission of an offence mentioned under Section 195, was of civil nature or criminal nature.
12. In the instant case, the Court below has observed at Para No.14 that "... but from the facts of the present case, none of the documents directly filed before this Court or with an allegation that those documents are fabricated by the respondents to the ASR,J CRP No.2568_2016 9 petition for the purpose of filing them before this Court, as such, there is no prima facie case established by the petitioner herein for committing offence alleged by him against the 2nd respondent within the premises of Court hall of this Court. What all the petitioner has stated is that, the document filed before the trial Court are forged document in such case, the offence if any has to be made out by him in the presence of a Judge of the trial court and the petition if any filed U/sec.340 Cr.P.C. alleging the offences against the respondent should have been filed by the petitioner herein before the trial court itself but not before this court...". Further, the Court below dismissed the said petition giving liberty to the petitioner to take appropriate steps before the trial Court itself in respect of the allegations made against the petitioner.
13. It is to be noted that the ingredients of Section 340 Cr.P.C. apply to all proceedings in all Courts de hors whether the matter in a civil Court in which the purported offence mentioned in Section 195 IPC was committed, was a criminal case or a civil case. The purpose of Section 340 of Cr.P.C. is to provide a safeguard against vexatious or frivolous prosecution. In fact, Section 340 of Cr.P.C. and Section 195 of IPC are closely inter-
ASR,J CRP No.2568_2016 10 linked and have healthy construction. They should be read together.
14. It cannot be gain said that before initiating an action under Section 340 of Cr.P.C. a Court of Law satisfied that the litigation sought to be proceeded against deliberately, intentionally committed offence. No wonder, Section 340 of Cr.P.C. is intended to be complimentary to Section 195 of IPC in the considered opinion of this Court. The power as per Section 340 of Cr.P.C. is to be exercised with care and caution that too, where it is considered necessary in the 'interests of justice'. Every false statement averred in a plaint filed or in a written statement may not invite a prosecution as per decision in Vimala v. Ranjini Murugan1.
15. The Hon'ble Supreme Court in Santokh Singh v. Izhar Hussain2 observed 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 1 1988 (2) Crimes 124, 131 (Mad) 2 Dated 24.04.1973 ASR,J CRP No.2568_2016 11 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 very object. It is only in glaring cases of deliberate falsehood where conviction is highly likely that, the court should direct prosecution.
16. A careful perusal of the impugned order clearly discloses that the appellate Court has observed that the documents produced by the respondent are not for consideration by the said Court, but only to see whether those documents are forged or the material evidence is produced for committing fraud or misleading the Court. Therefore, the appellate Court has rightly refused to entertain the application and has directed the petitioner to take appropriate steps, if necessary, before the trial Court in respect of the allegations made against the petitioner.
17. In the light of the above decisions, I am of the view that the findings of the appellate Court do not suffer from any illegality, impropriety and infirmity warranting interference by this Court, as the application is made under Section 340 of Cr.P.C. cannot be allowed as a matter of course, and in considering the ASR,J CRP No.2568_2016 12 expediency of the matter, the Court must consider whether there is any ulterior object which the party seeking to invoke the power under Section 340 of Cr.P.C. wants to achieve indirectly by using the Court as an instrument for its own case. It is further clarified that if the trial Court entertains any application by the revision petitioner pursuant to the impugned order, the trial Court is requested to take into consideration of the observations made by the Hon'ble Apex Court and the Madras High Court stated above.
18. In the result, the civil revision petition is dismissed. There shall be no order as to costs.
Pending miscellaneous petitions, if any, stand closed.
___________________________ JUSTICE A.SANTHOSH REDDY Date: 08.06.2023 ns