Gujarat High Court
Bhupendra S Patel vs Nitaben J Patel & ... on 5 May, 2014
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
R/CR.A/897/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 897 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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BHUPENDRA S PATEL....Appellant(s)
Versus
NITABEN J PATEL & 1....Opponent(s)/Respondent(s)
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Appearance:
PARTY-IN-PERSON, PERSONAL CAPACITY for the Appellant(s) No. 1
PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 5/05/2014
ORAL JUDGMENT
1. The present Criminal Appeal is filed by the Appellant / Original Applicant - Party-in-person being with the order passed by the City Civil and Sessions Court, Bhadra, Ahmedabad in Civil Suit Page 1 of 11 R/CR.A/897/2013 JUDGMENT No. 4391 of 1998 below Exhibit 33 - 34 (chamber summons) dated 22.4.2013 rejecting the said chamber summons on the grounds stated in the appeal. It is prayed in the present Appeal:
"Your Lordship be pleased to call for the record & proceedings of civil suit no.4391/98 from the City Civil Court, Bhadra, at a'bad & be pleased to quash & set aside the impugned judgment order dtd. 22.04.2013 passed by City Civil Court a'bad over application vid. Exh.34 & allow chamber summons at exh.33 & the lower court may be directed to file said complaint as per para 14(A&B) or otherwise a complaint may be filed by this Hon'ble. Court as also having jurisdiction to do so against proposed accuses of application vid. Exh.34 in said civil suit."
2. Heard Shri Bhupendra Patel who appears as party-in-person at length. Shri Bhupendra Patel, party-in-person has referred to the background of the facts, which can be briefly summarized that the Civil Suit No. 4391 of 1998 was filed by the deceased brother Jayendra Patel for recovery of the amount of Rs.263.05 lacs against the defendant with C.M.A. No. 693 of 1996 to permit him to file as a indigent person. The Respondent herein is the widow of the deceased brother Jayendra Patel as narrated in detail in the application given by the present Appellant Shri Bhupendra Patel, party-in-person under Section 340 read with Section 195 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.PC") for the appropriate reliefs. The main contention which has been raised by Shri Page 2 of 11 R/CR.A/897/2013 JUDGMENT Bhupendra Patel, party-in-person that the false affidavit has been filed and mis-statements have been made in the affidavit filed by the widow Smt. Nitaben. It was stated that filing of a false affidavit concealing the real material facts would attract the provisions of Section 340 read with Section 195 of Cr.PC. For that purpose he referred to the papers including the affidavit exh.21 which is produced at D-1 in this proceeding. This application Exh.21 is the application for condonation of delay in filing the application for joining as teh heir and legal representative of the deceased. The order came to be passed below chamber summons exh.20 and 21 dated 23.4.2008 granting such application. Shri Bhupendra Patel, party-in- person has strenuously submitted that it is the false averments and the false statement is made on oath as such application is with affirmation and the statements are made falsely. Therefore Shri Bhupendra Patel, party-in-person has stated that as stated in detail and submitted the contentions in that application for condonation of delay (chambers summons) exh.20-21 are false. Shri Bhupendra Patel, party-in-person submitted that since number of years she was not at all staying with her husband (brother) and was staying at mother's house and there was no relationship between them of husband and wife. He pointedly referred to the details to suggest that she was staying at mother's place and the address is also shown in the relevant document like election card etc. He therefore tried Page 3 of 11 R/CR.A/897/2013 JUDGMENT to submit that it is a false affidavit inviting the prosecution under Section 340 read with Section 195 of Cr.PC. Similarly, he referred to the application exh.83 in Civil Appeal No.51 of 2004. It is stated in that application that when the widow of the deceased brother refused to sign the Power of Attorney, a bogus Power of Attorney is got up by Shri Bhupendra Patel, party-in-person to cause prejudice to the rights of the legal heirs of the deceased Jayendra Patel. Shri Bhupendra Patel, party-in-person has referred to a will which is produced at Annexure-BB in the present proceedings and tried to submit that though the respondent widow is aware about this fact that she had left the matrimonial house and has been staying separately at her parental house, she has tried to join as the heir of the deceased brother Jayendra Patel. Further, she has not conveniently mentioned about the will executed by the deceased. Shri Bhupendra Patel, party-in-person has referred to the will and submitted that this is not challenged and therefore the genuineness of the will cannot be doubted as it has not been challenged. He has therefore strenuously submitted that on the basis of the will he is making the claim and therefore the Respondent has conveniently made a false statement suppressing this aspect about the will and therefore he has stated that the present appeal directing the exercise of power under Section 340 read with Section 195 Cr.PC may be allowed. It appear that the Civil Appeal No.51 of 2004 was also Page 4 of 11 R/CR.A/897/2013 JUDGMENT filed by Shri Bhupendra Patel, party-in-person who claims to be a Power of Attorney of the deceased brother and the order came to be passed by the learned Principal Judge, City Civil and Sessions Court dated 11.2.2007. The contentions are made with reference to the provisions of the Indian Succession Act 1925 and the aspect of probate referring to the judgment of the Hon'ble Apex Court reported in AIR 2001 SC 1151 as well as the order of this Court in Special Civil Application No. 1930 of 2005. Though Shri Bhupendra Patel, party-in-person has made the submission referring to the papers extensively, his main thrust of the argument is that the City Civil and Sessions Court ought to have exercised the powers under Section 340 read with Section 195 Cr.PC. He pointedly referred to the provisions of Section 340 of Cr.PC. The provisions of Section 340 of Cr.PC referred to, "Provisions as to offences affecting the administration of Justice" - "Procedure in cases mentioned in Section 195". Shri Bhupendra Patel, party-in-person therefore submitted that the finding has to be recorded. He has also referred to the provisions of Section 195 of Cr.PC, which provide for "Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence".
3. Shri Bhupendra Patel, party-in-person has referred to the judgment of the Hon'ble Apex Court reported in (2005) 4 SCC 370 - Iqbal Singh Marwah and Anr. v. Meenakshi Marwah Page 5 of 11 R/CR.A/897/2013 JUDGMENT And Anr. and also the judgment of the Hon'ble Apex Court reported in AIR 1998 SC 1121 - Sachida Nand Singh v. State of Bihar.
4. Therefore, after making the submissions at length and also submitting the written submissions, which are also on record, Shri Bhupendra Patel, party-in-person has stated that the present appeal may be allowed.
5. Alternatively it was submitted that the impugned order by which the application Exh.33 - 34 (chamber summons) dated 22.4.2013 was rejected may be quashed and set aside and the matter may be remanded back.
6. Learned APP Ms. Monali Bhatt has assisted the court and has made a reference to the papers and background of the facts as well as the provisions of Section 340 read with Section 195 of Cr.PC. Learned APP Ms. Bhatt has submitted that as could be seen from the background of the facts that even the widow had to file a complaint with regard to the forge Power of Attorney created by the present appellant. The issue is separate and individual. She therefore submitted that such a application could have been made by the present appellant to pressurize which cannot be ruled out. She therefore submitted that the court below has considered all the relevant aspects at length and has come to the conclusion which cannot be said to be erroneous. Learned APP Ms. Bhatt has also submitted that the provisions of Section 340 referred to the procedure which is Page 6 of 11 R/CR.A/897/2013 JUDGMENT required to be followed for the purpose of the complaint under Section 195 Cr.PC and it gives a discretion to the court on prima facie examination of the material to proceed further in a given case. She therefore submitted that as could be seen from the language employed in Section 195 of Cr.PC, before the cognizance could be taken, certain aspects are required to be examined. Therefore, it was submitted that merely because some complaint or somebody make a complaint by itself would not be sufficient. She submitted that as the original document / will could be considered as and when produced, the provisions of Section 195 would not be attracted and therefore the order passed by the City Civil and Sessions Court below exh.33 - 34 (chamber summons) rejecting the chamber summons is just and proper.
7. In view of the submissions and having regard to the background of the facts which have been referred to by Shri Bhupendra Patel, party-in-person at length as stated above, require a close scrutiny of papers in context of provisions of Section 340 read with Section 195 Cr.PC.
8. As could be seen from the language employed in provisions of Section 340 Cr.PC it refers to the procedure which is required to be adopted for the purpose of Section 195 Cr.PC. It provides that if the application is made and if the court is of the opinion that it is expedient in the interest of justice that an inquiry should be made it may make an inquiry in respect of a Page 7 of 11 R/CR.A/897/2013 JUDGMENT document or the evidence and it is only if the court comes to the conclusion as narrated therein, take the appropriate course as provided under Section 340 read with Section 195 of Cr.PC. In the facts of the present case therefore as rightly submitted it is a enabling provision and the court before exercising such discretion has to reach such satisfaction that it is expedient or desirable in the interest of justice to exercise such power. The word "expedient" has been considered in a judgment reported in 1988 (3) Crimes 330 - Syed Asadullah Kazmi v. Additional Magistrate and Anr. where it has discussed with regard to the provisions and the scope of exercise of such discretion. As it is evident before such discretion could be exercised the court has to satisfy itself that it is expedient or desirable in the interest of justice that an inquiry could be made. Again when a complaint is filed the court is not required to straightway make a order of inquiry but has to reach the satisfaction as required under law. It is only if the court is satisfied it may proceed to make an inquiry in only glaring cases of deliberate falsehood. It is therefore clear that these provisions are not intended or meant for satisfying the personal feelings or vindictiveness or fulfilling the personal vendetta in a family dispute. Again, the Hon'ble Apex Court has time and again expressed a word of caution making it clear that the mandatory procedure is required to be followed as a safeguard before such power could be exercised. In other words the word Page 8 of 11 R/CR.A/897/2013 JUDGMENT of caution has been expressed that the court on receiving an application under Section 340 Cr.PC is not required to proceed to issue a notice straightway. In other words the court will have to act in the interest of justice when the complaint is received. A useful reference can be made to the judgment of the Hon'ble Apex Court reported in AIR 2003 SC 541 - N.Natarajan v. B.K.Subba Rao. Again the provisions of Section 195 Cr.PC starts with negative language that "no court shall take cognizance" and then it proceeds to lay down the condition which are held to be mandatory as observed by the Hon'ble Apex Court in a judgment reported in AIR 2010 SC 3718 = (2010) 9 SCC 567 - C.Muniappan and Ors. v. State of Tamil Nadu. It has been observed:
"The object of this provision is to provide for a particular procedure in a case of contempt of the lawful authority of the public servant...........................The legislative intent behind such a provision has been that an individual should not face criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill will or frivolity of disposition and to save the time of the criminal courts being wasted by endless prosecutions. This provision has been carved out as an exception to the general rule contained under Section 190 CrPC that any person can set the law in motion by making a complaint, as it prohibits the court from taking cognizance of certain offences until and unless a complaint has been made by some particular authority or person."
9. Thus, the word of caution has been expressed again. It therefore refers to the satisfaction by the court based on some Page 9 of 11 R/CR.A/897/2013 JUDGMENT preliminary inquiry or a prima facie examination of the material that any such language as provided under Section 195 Cr.PC is for further steps in the matter as discussed and as it is revealed from the background and genesis of the entire case, it is a family dispute resulting in a different litigation and the present appeal seeking prayer for exercise or the direction for exercise of powers under Section 340 read with Section 195 of Cr.PC cannot be readily accepted.
10. Though the submissions have been made by Shri Bupendra Patel, Party-in-person at length referring to the background regarding the execution of the will contending that the genuineness of the will is not challenged before any competent court and therefore the claim made on the basis of the will by the present Appellant - party-in-person cannot be brushed aside is required to be considered in background of the material evidence by the trial court. It cannot be either way considered in the present proceeding at this stage nor any kind of observations be made regarding the genuineness of the will. Therefore, the moot question is that the claim made by Shri Bupendra Patel, Party-in-person on the basis of the will which is resisted by the Respondent as stated in detail in her before the trial court and also coupled with the fact that there is a criminal complaint lodged by her contending that the forged will has been created which has to be decided on its own merits in the appropriate manner by the competent court. Therefore at this Page 10 of 11 R/CR.A/897/2013 JUDGMENT stage this submission that the genuineness of will is not disputed cannot be readily accepted.
11. A useful reference can be made to the observations of made to the judgment of the High Court of Gujarat reported in 2009 Cr.LJ 163. Though Shri Bupendra Patel, Party-in-person has referred to the judgment of the Hon'ble Apex Court reported in AIR 2010 SC 812 - Mahesh Chand Sharma v. State of U.P. and Ors. would on the contrary suggest the limit with regard to jurisdiction and the caution which is required to be exercised before resorting to provisions of Section 340 read with Section 195 of Cr.PC. Therefore, the present appeal deserves to be dismissed.
12. A useful reference can also be made to the judgment of the Hon'ble Apex Court reported in AIR 2008 SC 2965 - Mahila Vinod Kumar v. State of M.P. The facts were totally different in the aforesaid case before the Hon'ble Apex Court which will not have any application.
13. Therefore in view of the observations made above, the present appeal deserves to be dismissed and accordingly stands dismissed.
AJESH H.SHUKLA, J.) JNW Page 11 of 11