In the High Court of Judicature at Madras
Dated: 12-11-2008
Coram:
The Honourable Mr.Justice S.J.Mukhopadhaya
and
The Honourable Mr.Justice V.Dhanapalan
Original Side Appeal No.12 of 2006
& C.M.P.No.1883 of 2006
M.P.Ranjit,
S/o Pratap,
14, Ranjit Road,
Kotturpuram, Chennai-600 085. .. Appellant
vs.
S.Harshavardhan,
S/o M.R.Sarangapani,
Chairman, EIKON Academy,
132, Ranjith Road,
Kotturpuram, Chennai-600 085. .. Respondent
Original Side Appeal against the order dated 9.11.2005 passed by the single Judge of this Court in Application No.4023 of 2004 in Civil Suit No.396 of 2004.
For appellant : Mr.R.Parthasarathy for M/s.Sathish Parasaran
For respondent: Mr.S.Y.Masood
Judgment
S.J.Mukhopadhaya,J
The appellant-M.P.Ranjit filed Application No.4023 of 2004 (in Civil Suit No.396 of 2004) before the Original Side of this Court, to initiate action against the respondent-S.Harshavardhan, Chairman, EIKON Academy, under Sections 191, 192, 193, 196, 197, 199 and 200 Indian Penal Code (for short, 'IPC') read with Sections 195 and 340 of the Code of Criminal Procedure (for short, 'Cr.P.C').
2. Learned single Judge, by the impugned order dated 9.11.2005 (in the said Application No.4023 of 2004), while closing the said Application, noticed the order as was passed on 1.7.2004 (in C.S.No.396 of 2004), whereby and whereunder, the Court gave a full and complete liberty to the applicant (appellant in this OSA/defendant), to take suitable and proper action against the respondent (respondent in this OSA/plaintiff), either in civil or criminal, also observed that in view of the liberty given as above, it is always open to the applicant (appellant herein) to take appropriate criminal action, if it is so advised and establish the same before the appropriate forum.
3. This Original Side Appeal, having been preferred, one of the questions as was raised is as to whether this Court is bound to take cognisance of all the matters, if any application is filed under Section 195 read with 340 Cr.P.C., or has jurisdiction to refuse the cognisance in appropriate cases, giving liberty to avail of the statutory remedy.
4. According to the appellant (applicant/defendant), he owns about 49 grounds and 1107 Sq.Ft. (approximately) in T.S.No.11/2, Block No.14, Ranjit Road, Kotturpupram, which he received as a 'gift' from his mother in the year 1972; the said land(s) were transferred by him as his share of capital into the partnership firm of M/s.Ranjit Enterprises, with effect from 2.8.1974 and since then, the land(s) are treated as the asset of the firm; there are various other parcels of land(s) around his land, which belonged to his mother, some of which were 'gifted' or 'sold' to his sisters by his mother in 1972; an extent of about 43 grounds were sold by the appellant's mother to his sister Sujatha Ramakrishna Naidu in 1972; further extent of about 17 grounds were gifted by his mother to yet another sister Sunitha Venkataraman in 1972; immediately after sale of 43 grounds by the appellant's mother in favour of his sister Sujatha Ramakrishna Naidu, the said property was immediately given on long lease by her to the appellant; the said lease was given in terms of the broad family understanding that the said property would always remain in the possession and control of the appellant and his father, since they all have a vital interest on the property; all such actions were taken in order to get over the rigour of the then impending Tamil Nadu Urban Land Ceiling Act.
The further case of the appellant/applicant is that by virtue of the above agreement entered into between the appellant, his mother, his two sisters and his father, the total extent of lands ad-measuring 139 grounds belonging to the appellant's mother was equitably distributed among the family members; but however, it was always the intention of the family members that the entire extent of the property(ies) which are agricultural land(s), will be held by each of the members in posterity for the benefit of the family as a whole, more particularly, the appellant herein and his father, and would not be alienated.
It was submitted on behalf of the appellant-applicant that one of the sisters of the appellant, namely Sujatha Ramakrishna Naidu, proceeded to institute two suits on the file of this Court in Civil Suit Nos.289 and 290 of 1996.
In Civil Suit No.289 of 1996, prayer was that the said Sujatha Ramakrishna Naidu should have access to her lands of about 43 grounds situate in T.S.Nos.8 and 11 through the lands gifted to the appellant herein by his mother and situate in T.S.No.11/2.
In Civil Suit No.290 of 1996, prayer was made for a declaration that the alleged renewal of lease executed by Sujatha Ramakrishna Naidu in favour of the appellant herein, is null and void and for consequential reliefs.
The appellant herein further contends that the respondent herein entered the scene sometime towards the end of the year 2003 just before the trial in the said two Civil Suits began. The respondent herein was accompanied by the appellant's sister Sujatha and it is alleged that only on the instructions from the respondent herein, his sister has fraudulently given up the other defendant(s) in the suits, except the appellant herein.
The appellant herein further states that insofar as 49 grounds and 1107 Sq.Ft. of land(s) situated in T.S.No.11/2, Block No.14, presently bearing New Door No.3 and Old No.14, Ranjit Road, are concerned, the said area was given to M/s.Oriental Hotels Limited, an enterprise of Taj Group for the purpose of developing the same as a 'Motel-cum-Club' in 1994. Subsequently, since there arose some disputes between the parties, the matter was referred to 'Arbitration'.
It is further alleged that on 26.5.2004, the appellant was shocked and surprised to received 'suit summons' from this Court in C.S.No.396 of 2004, along with a copy of the plaint in the same; upon perusal of the averments made in the plaint, it came as a shock to the appellant herein that the respondent herein was claiming possession of the entire extent of the property(ies) in question, pursuant to an alleged agreement of lease, dated 26.12.2003, underwhich, it was shown that the appellant has let out the entire extent of land(s) to the respondent for a period of 25 years commencing from 26.12.2003, subsequent to payment of advance of Rs.15 lakhs by the respondent herein, fixing the annual rent of Rs.70,000/-; it is alleged in paragraph 5 of the plaint that the lease was also duly registered at the Office of the Sub-Registrar, Adyar, as Document No.3924 of 2004, and a further allegation was made in the said paragraph of the plaint that the respondent has taken possession of the property(ies) and improved the property(ies) by investing huge sum of money.
It is the further case of the appellant herein that the cause of action for the said suit in C.S.No.396 of 2004 was alleged to be so-called attempt made by the appellant to sell away the property(ies) to one Madhusudhan Reddy and the so-called attempt of the appellant to forcibly dispossess the respondent otherwise than by due process of law, by using the appellant's henchmen, on the basis of which, the respondent herein (plaintiff), sought for the following relief in C.S.No.396 of 2004, against the appellant herein (defendant):
(a) for a declaration that the respondent herein has a right of possession of the suit property by virtue of a lease deed executed by the appellant on 26.12.2003 and
(b) consequently for a permanent injunction restraining the appellant herein, his men, agents, workers, servants, from in any manner interfering with the peaceful possession and enjoyment of the respondent in the suit property.
The appellant herein further submits that after receiving the suit summons and upon enquiry being made by him, it came to his notice on 14.6.2004 that along with C.S.No.396 of 2004, the respondent herein also filed Original Application No.410 of 2004, praying for an order of interim injunction restraining the appellant herein, his men, agents, representatives and servants from in any manner interfering with the peaceful possession and enjoyment of the suit property(ies) by the respondent herein; this Court, on 29.4.2004, granted an order of ex-parte injunction as prayed for, based on the averments made in the plaint and the averments made in the said O.A.
Thereafter, the appellant herein applied for all the documents filed in the said suit (C.S.No.396 of 2004) and subsequent to the issuance of notice by the respondent's counsel to the appellant's counsel herein, the following documents filed by the respondent herein along with the plaint in C.S.No.396 of 2004 were verified:
Sl.
No.
Date
Particulars
1
26.12.2003
Copy of Registered Lease Deed allegedly executed by the petitioner (i.e. appellant herein) in favour of the respondent herein
2
23.4.2004
Original Encumbrance Certificate for the property allegedly issued by the SRO, Adyar
3
Xerox copy of the permanent land extract
After going through the aforesaid document No.1, dated 26.12.2003, the appellant herein was shocked to learn that his signature had been forged on the same; even the appellant's left hand thumb impression had been forged/fabricated on the reverse of page 1 of the said document No.1.
On a perusal of the aforesaid document No.2, prima-facie it was found that it had been forged; thereafter, the appellant rushed to the Office of the Sub-Registrar, Adyar to enquire about the registration of the said document, and he came to know that there was no such document dated 26.12.2003 registered in the Sub-Registrar Office, Adyar and the document number given for the said document was 3624 of 2003 (mentioned as 3624 of 2004 in the plaint), which never existed in the books of the Sub-Registrar Office, Adyar; the Sub-Registrar confirmed that the seal of the 'SRO' found on the reverse side of page 1 of the document, seemed to be fabricated and also confirmed that no person by name M.P.Ranjit presented himself before him for the purpose of admitting execution of any such document; the Sub-Registrar also confirmed that the Encumbrance Certificate filed by the respondent herein before this Court, also appeared to be fabricated.
Thereafter, it is alleged that the appellant proceeded to file Application No.2351 of 2004 in Original Application No.410 of 2004 in Civil Suit No.396 of 2004, for interim suspension of the order of interim injunction, dated 29.4.2004 passed in O.A.No.410 of 2004; when the matter was brought to the notice of the Court, it was contended that the documents filed by the respondent herein before this Court in the said C.S.No.396 of 2004, which led to passing of the order of interim injunction by this Court, are foraged/fabricated and it was further alleged that there is violation of Order 39 Rule 3 of the Code of Civil Procedure (for short, 'the CPC'), inasmuch as no copy of the plaint, affidavit and Judge's Summons, documents, etc., filed by the respondent herein in the said C.S.No.396 of 2004, were served upon the appellant herein within the time as stipulated in the CPC, inspite of repeated notices given to the counsel.
The appellant further states that after the said application for suspension of interim order was listed before Court, the respondent herein sought permission to withdraw the suit; thereafter, the appellant herein filed a Memo before this Court on 1.7.2004 to the effect that the appellant does not have any objection to the respondent withdrawing the suit, if the appellant is given liberty to initiate appropriate action, both civil and criminal, against the respondent herein, for all acts, which would constitute forgery, impersonation, filing of false documents and misleading this Court wilfully and knowingly; pursuant to the said Memo, this Court dismissed C.S.No.396 of 2004 as withdrawn and closed the application in O.A.No.410 of 2004 as well as Application No.2351 of 2004.
5. Learned counsel appearing on behalf of the appellant (defendant in C.S.No.396 of 2004) submitted that the appellant preferred a complaint/FIR before Kotturpuram J.4 Police Station against the respondent herein, under Sections 471 read with Sections 466, 468 and 472 IPC and the said FIR had been registered as Cr.No.440 of 2004. It is further submitted that the respondent herein was arrested by J.4 Police, on 9.7.2004 and subsequently, he has also been enlarged on bail, by order dated 14.7.2004 passed by IX Metropolitan Magistrate, Saidapet.
6. It was further contended by learned counsel appearing for the appellant that the action on the part of the respondent (plaintiff in C.S.No.396 of 2004) constitutes 'criminal contempt' under Section 2(c)(i) and (ii) of the Contempt of Courts Act and the appellant herein had been taking steps for initiating action against the respondent herein for criminal contempt.
7. Learned counsel appearing for the appellant further submitted that the respondent will have to be proceeded against, under Section 340 Cr.P.C. for commission of various serious offence(s) under Sections 190, 191, 192, 193, 196, 197, 198, 199 and 200 IPC, for:
(i) fabricating a false document purporting to be a lease deed dated 23.12.2003 allegedly executed by the appellant in favour of the respondent, for a tenure of 25 years;
(ii) forging the signature(s) of the appellant herein in the said document(s);
(iii) fabricating and forging the seal and signature of the Sub-Registrar of Assurances, Adyar, on the said document(s);
(iv) fabricating and forging the thumb impression of the appellant herein on the said document(s);
(v) fabricating and forging the false Encumbrance Certificate with regard to the property in T.S.No.11/2, Block No.14, Ranjit Road, Kotturpuram;
(vi) filing a false affidavit and making an oath upon declaration knowing it to be false before this Court, swearing to the truth and genuineness of the said documents and
(vii) making false averments on the plaint filed before this Court making false allegations knowing it to be false, etc.
8. It appears that when this O.S.A. was earlier taken up by a Division Bench of this Court, vide order dated 26.9.2006, 'Suo Motu Contempt Proceedings' were initiated against the respondent-S.Harshavardhan, who was directed to submit his reply in writing on or before 18.10.2006, and the said order dated 26.9.2006 was challenged by the respondent herein (Harshavardhan) before the Supreme Court and by order dated 19.3.2007, after hearing the learned counsel appearing for the parties at length, the Apex Court granted leave in Special Leave Petition (Civil) No.17007 of 2006 and allowed Civil Appeal No.1485 of 2007, setting aside the initiation of 'suo motu contempt proceedings' by a Division Bench of this Court under the provisions of the Contempt of Courts Act, and the proceedings under Section 340 Cr.P.C., vide detailed order dated 19.3.2007 passed in the said Civil Appeal No.1485 of 2007 and allowed the parties to raise all the contentions, including the maintainability of the Letters Patent Appeal (i.e. O.S.A.), which have been raised before the Apex Court. The Supreme Court accordingly remitted the matter to this Court for consideration of the matter afresh.
9. The O.S.A. is taken up for fresh hearing, subsequent to the said order of the Supreme Court, dated 19.3.2007 in Civil Appeal No.1485 of 2007.
10. Learned counsel appearing for the appellant referred to a decision of a Full Bench of this Court in the case of "Kumaravel vs. Shanmuga" reported in AIR 1940 Madras 465 (FB), in support of the question relating to the maintainability of the OSA/LPA. It was further submitted that the petition for initiation of proceedings under Section 340 Cr.P.C., having been filed in a Civil case, the LPA/OSA against the order passed by the learned single Judge, is maintainable.
11. We have heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents. We have noticed the rival contentions and perused the records.
12. Apart from the question of maintainability of LPA/OSA, in the present case, it is to be determined as to whether the learned single Judge was bound to make an enquiry into the offence(s) affecting the 'administration of justice'.
13. In the case of "Pritish vs. State of Maharashtra", reported in 2002 (1) SCC 253, the Supreme Court observed that at the stage envisaged in Section 340 Cr.P.C., it is not to decide the guilt or innocence of the party against whom proceedings are to be taken before the Magistrate. At that stage, the Court only considers whether it is expedient in the interest of justice that an inquiry should be made into any offence affecting administration of justice. No expression on the guilt or innocence of the persons should be made by the Court while passing an order under Section 340 Cr.P.C. The scope is confined to see whether the Court could then decide on the materials available that the matter requires inquiry by a criminal Court and that it is expedient in the interest of justice to have it inquired into.
14. In the case of "Iqbal Singh Marwah vs. Meenakshi Marwah", reported in 2005 (4) SCC 370, the Supreme Court, having noticed the scheme/scope of Sections 195 and 340 Cr.P.C., observed as follows:
"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. The broad view of clause (b)(ii), as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged document remediless. Any interpretation which leads to a situation where a victim of a crime is rendered remediless, has to be discarded."
15. Therefore, it will be evident that this Court is not bound to make a complaint regarding the commission of the offence(s) referred to in Section 195(1)(b) Cr.P.C.
16. In the present case, the title suit in Civil Suit No.396 of 2004 at the initial stage, on the objection of the appellant-defendant, was dismissed as withdrawn. No evidence was let in at that stage. While C.S.No.396 of 2004 was dismissed as withdrawn, on 1.7.2004, learned single Judge observed as follows:
"An endorsement has been made by learned counsel appearing for the plaintiff to withdraw the suit.
2. The defendant who is present in Court filed a memo submitting that the plaintiff has forged the signature and thumb impression of the defendant and also has impersonated the defendant before the Sub Registrar, Adyar and he has no objection for the said withdrawal provided the defendant is at liberty to initiate civil and criminal proceedings against the plaintiff.
3. If really any forgery has been committed by the plaintiff, it is always open to the defendant to take suitable and proper action against the plaintiff either in civil or criminal.
4. With this observation, the civil suit is dismissed as withdrawn. Consequently, connected Application No.410 of 2004 and A.No.2351 of 2004 are closed."
17. From the aforesaid judgment dated 1.7.2004 passed in Civil Suit No.396 of 2004, it would be evident that in the initial stage, when the appellant-defendant objected and the respondent-plaintiff wanted to withdraw the suit, the appellant-defendant-M.P.Ranjit, clearly stated that he had no objection for withdrawal of the suit, but he should be given liberty to initiate civil and criminal proceedings against the respondent-plaintiff-S.Harshavardhan. Such liberty having been given by the Court on 1.7.2004 to take suitable and proper action against the plaintiff, either civil or criminal proceedings, and for the said reason, the learned single Judge, by the impugned order dated 9.11.2005 in Application No.4023 of 2004 (in C.S.No.396 of 2004), if reiterated such observations as was made in the said suit by judgment, dated 1.7.2004, no interference is called for on the impugned order dated 9.11.2005.
18. In view of our findings recorded above, it is not necessary to decide the question of maintainability of the LPA/OSA in the present case.
19. With the aforesaid observations, the OSA is dismissed, but there shall be no order as to costs. C.M.P. is closed.
(S.J.M.J) (V.D.P.J)
12-11-2008
Index: Yes
Internet: Yes
cs
To
Sub-Assistant Registrar,
Original Side,
High Court,
Madras.
