Dhan Singh Dalal vs Smt. Kamlesh and Others

Sarojnei Saksena, J.—Petitioner has filed this revision against the trial Court''s order dated 10.11.1995, whereby his petition filed u/s 340, Code of Criminal Procedure has been dismissed.

Brief facts of the case are that respondent Smt. Kamlesh filed the civil suit No. 106 of 1994 against the petitioner and three other persons in the Court of Sub Judge I Class, Bahadurgarh on 1.3.1994 for permanent injunction. In this suit Smt. Kamlesh plaintiff-respondent alleged that she is in possession of the disputed land mentioned therein. She also averred that she has purchased this suit land from Mohinder Singh and Maha Singh vide sale deed dated 9.1.1990. Photo-state Copy of the sale deed was produced along with plaint. She alleged that she has started construction on this plot, but defendants are interfering in her construction work. Hence, she filed suit for permanent injunction restraining the defendants from interfering in her construction work. On 1.3.1994 itself the learned Sub Judge passed the injunction order restraining them from interfering in peaceful possession of the plaintiff over the disputed plot and issued ''show cause notice to the defendants for 3.3.1994. Compliance of the Order 39 Rule 3, Civil Procedure Code, was also ordered. Thereafter, after hearing both the parties, this ex parte injunction order was confirmed.

Defendants filed written statement, issues were framed. Defendants filed an application that the sale deed on the basis of which plaintiff has filed suit, is a forged document. It was prayed that an additional issue to that effect be also framed. Petition filed Under Order 14 Rule 5 read with Section 151, Civil Procedure Core, was allowed by the order dated 9.3.1995. Defendants also filed the petition u/s 195, Code of Criminal Procedure, making a prayer that since the plaintiff has produced the sale deed dated 9.1.1990 with plaint which has been tampered with, this alleged act of the plaintiff is unlawful and deserves prosecution. Plaintiff Smt. Kamlesh filed reply to that petition and denied the allegations.

After hearing both the parties, the trial Court vide his order dated 19.9.1995 dismissed this petition holding that "at this stage when either of the parties has not produced any evidence on record and without evidence, the court cannot reach any conclusion as regard the forgery is concerned and hence, the provisions in this civil suit as enumerated in u/s 195, Code of Criminal Procedure, are not attracted at this stage. If any forgery is proved in this case by evidence of the defendant, then the prosecution of the plaintiff can be ordered at the time of passing the final judgment."

On 27.5.1995 defendants filed another application Under Order 7 Rule 14 and Order 14 Rule 8, read with Section 151, CPC and made a prayer that plaintiff be ordered to produce original sale deed and if she fails to produce it, the suit be dismissed Under Order 9 Rule 8, Civil Procedure Code. It was also alleged that the plaintiff should not be allowed to retain benefits availed by her by way of adopting illegal and wrong method. The case was posted for reply to this petition, but on 19.10.1995 in the presence of defendants'' counsel, the plaintiffs counsel made a statement that the plaintiff wants to withdraw the suit. In view of this statement made by the plaintiffs counsel, plaintiffs suit was dismissed as withdrawn. Thereafter, on 10.11.1995 defendants filed a petition Under Sections 144/151, Code of Civil Procedure, praying that whatever the benefits plaintiff has obtained after getting injunction order passed in her favour by the civil court, they should be restored to the defendants. This petition was also dismissed by the trial Court vide his order dated 10.11.1995. The trial Court held that the suit was already been dismissed as withdrawn and in that petition, defendants have not set out the alleged benefits obtained by the plaintiff, which can be restituted now to these applicant-defendants.

On 28.10.1995 applicant Dhan Singh filed the petition u/s 340, Code of Criminal Procedure, wherein he alleged that plaintiff Smt. Kamlesh in her above referred to suit, filed copy of the sale deed dated 10.1.1990 and used fake and fabricated site plan which were supported by her affidavit. Relying on these documents, the trial Court passed the injunction order in her favour on 1.3.1994. These documents are forged ones and the trial Court also framed issue of forgery, but to escape from legal action for committing forgery, she got her suit dismissed as withdrawn on 19.10.1995. Thus, it as prayed that on the basis of the aforesaid forged sale deed, a complaint should be filed against her for committing offences punishable Under Sections 463/471 u/s 195(i)(b)(ii) of the Code of Criminal Procedure. Even this petition was dismissed by the lower Court vide impugned order dated 10.11.1995.

Petitioner''s learned counsel relying on M.L. Sethi v. R.P. Kapur and Anr. AIR 1967 Supreme Court 528, vehemently argued that from the very beginning this defendant petitioner was craving indulgence of the civil Court to lodge the complaint against plaintiff-respondent Smt. Kamlesh on the ground that she has based her suit on a forged sale deed. Defendant-petitioner is not competent to file a criminal complaint against plaintiff Smt. Kamlesh because the document was produced in the Court, in relation to a proceeding pending before the civil Court, therefore, such a complaint can be filed by that Court only u/s 195(1)(b)(ii) of the Code.

Respondent-plaintiff learned counsel submitted that there is no material on record to prove that the said sale deed is a forged document. Till the petitioner proves that the sale deed is a forged document, plaintiff-respondent Smt. Kamlesh cannot be prosecuted for the alleged offence.

So far as the facts of M.L. Sethi''s case (supra) are concerned, they are distinguishable. In that case provisions of Sections 190, 195(1)(b) and 4 and offence u/s 211, Indian Penal Code were considered. It was held that contention that offences mentioned in Section 195 did not come into existence unless complaint under that section was made, was not correct as offence was constituted as soon as acts which constitute that offence have been found to have been committed by person accused of offences and same remained offence whether triable by Court or not.

In this case it is pertinent to note that the original sale deed was never filed before the civil court. Copy of the plaint is placed on the paper-book for perusal, which reveals that plaintiff-respondent Smt. Kamlesh filed photostat copy of the sale deed dated 9.1.1990 along with plaint therefore, this petitioner-defendant filed the petition Under Order 7 Rule 14, Civil Procedure Code, for getting the original sale deed produced, but without producing the original sale deed, plaintiff-respondent Smt. Kamlesh got her suit dismissed on 19.10.1995.

Section 195 of the Code reads as under:-

"Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence - (I) No Court shall take cognizance:-

(a)(i) xx xx xx xx (ii) xx xx xx xx (iii) xx xx xx xx (b) (i) xx xx xx xx (ii) of any offence described in Section 463 or punishable u/s 471, Section 475 or Section 476 of the Said Code, 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, or

(iii) xx xx xx xx except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate."

Admittedly, in the said civil Suit, the said sale deed was never tendered in evidence; Another pertinent point to note is that only photostat copy of the said sale deed was produced by the plaintiff-respondent Smt. Kamlesh in that civil suit. The moot point for consideration is whether production of such a copy of such a sale deed will create a bar for prosecuting her for the alleged offence u/s 195(1)(b)(ii) of the Code. Privy Council has considered this aspect in Sanmukhsingh and Anr. v. The King AIR (37) 1950 PC 31. In that case, copy of the alleged forged document was produced. It was held "Section 195(1)(c) ( of old Code 1985) only refers to a document alleged to be forged and not to a copy of it. The reason is that the Court before which a copy of a document is produced is not really in a position to express any opinion upon the genuineness of the original. Though by production of a copy secondary evidence of the contents of a document might be said to be given, the forged document itself cannot be said to be given in evidence. It is further observed that "where the document in respect of which a charge of forgery had been laid against the accused had not itself been produced or given in evidence in certain proceeding but on the contrary a copy of it had been produced the absence of complaint u/s 195(1)(c) cannot operate as a bar to the trial of the accused.

In this judgment, the Privy Council has approved in Girdhari Lal v. Emperor, 1925 Criminal Law Journal (26) 929. In Rudrappa v. Gowda Chigaterappa Judge of Mysore High Court again considered this point and held that ''Section Criminal Procedure, contemplates the production of the document alleged to be forged and not a copy of it. Hence, where only a copy of the alleged forged document is produced in Court and a decree is passed by consent with the result that the court was not in a position to give any decision thereon, a prosecution u/s 471, Penal Code, in respect of the document would not be bad for want of sanction u/s 195(1)(c)."

In State of Karnataka v. Hemareddy and Anr., AIR 1981 Supreme Court 1417, it is held that "if the forged document is not put in evidence against defendant in redemption suit against him, Section 193 is not attracted and complaint by the Court u/s 195(1)(b), Code of Criminal Procedure, is not necessary.......... S. 114, Indian Penal Code."

Thus, in my considered view, the trial Court has not fallen into any error in dismissing the said petition of the petitioner as original sale deed dated 9.1.1990, which is alleged to be a forged document by the petitioner, was not produced in the court of Sub Judge I Class, Bahadurgarh, during the pendency of the civil suit No.106 of 1994 titling Smt. Kamlesh v. Chander Mohan and Ors.. The civil Court had no occasion to determine the alleged forgery of the said sale deed as it was never tendered in evidence. No doubt, issue was framed with regard to that alleged forgery, but before the parties could adduce any evidence, plaintiff got her suit dismissed as withdrawn. Hence, considering the above facts and circumstances of the'' case, in my considered view the trial court has rightly dismissed the petitioner''s petition and declined to lodge any complaint against Smt. Kamlesh respondent/plaintiff for the alleged offences Under Sections 463/471, Indian Penal Code, by invoking jurisdiction u/s 195(1)(b)(ii) of the Code.

Accordingly, as the impugned order does hot suffer from any illegality, infirmity or impropriety, finding the revision meritfess, it is hereby dismissed.