Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 860/2020 in S.C.Suit No. 3792/08. 1 Order.
MHCC010023992020
Presented on : 24-02-2020
Registered on : 24-02-2020
Decided on : 04-10-2022
Duration : 2 years, 7 months, 9 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 860 OF 2020
IN
S. C. SUIT NO. 3792 OF 2008
(Old High Court Suit No. 1323 Of 2008)
Smt. Charulata H. Lulla )...Plaintiff
Versus
Hiroo T. Shahani and others )...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.66).
DATE : 4th OCTOBER, 2022.
Shri Sushil K. Chaurasia alongwith Shri Dinesh Qureshi, Advocate for
the plaintiff.
Shri Bal R. Patil, Advocate for defendants no.1 to 3.
ORDER
1. The plaintiff has taken out the notice of motion for holding
an enquiry under Section 340 of the Code of Criminal Procedure (for
short, 'the Code') against defendants no.1 to 3 for committing forgery,
giving false evidence and fabrication of documents. Perused notice of
motion and affidavit in reply. I have also gone through the suit
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proceedings. Heard learned counsel Shri Sushil Chaurasia for the
plaintiff and learned counsel Shri Bal Patil for defendants no.1 to 3.
2. On perusal of the record, it appears that the defendants
have filed copy of the notice dated 04/11/1999 with written statement
(Exh.10) and it is unsigned notice having no received signature of the
plaintiff. Another copy of the notice dated 04/11/1999 is placed on
record and it is marked as Exh.73. It is written on the top of the notice
(Exh.73) “BY HAND DELIVERY” and there is alleged signature of the
plaintiff. By pointing out these variations in the notice dated
04/11/1999 annexed with written statement and with list of
documents, learned counsel Sushil Chaurasia further pointed out
notices dated 30/11/1999 annexed with written statement and copy of
the said notice (Exh.76). He pointed out that the word “the” is used in
third line of last para in the copy of notice dated 30/11/1999 annexed
with written statement and there is overwriting in the notice (Exh.76)
and the word “the” is converted into “this” in third line of last para of
Exh.76. These changes are matter of grievance for the plaintiff. He
further pointed out crossexamination of defendant no.2 in which he
has admitted contents in last para of Exh.76.
3. On the contrary, learned counsel Shri Bal Patil for
defendants no.1 to 3 submitted that draft notices came to be annexed
with written statement. He further submitted that word “the” is
corrected into “this” in the original copy of the letter dated 30/11/1999
and it has remained to be corrected in the draft copy of the said letter.
4. Considering nature of controversy, it is explicit that there
are two copies of notices/replies dated 04/11/1999 and 30/11/1999. It
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is probable that the defendants might have annexed draft copies with
written statement and subsequently, original notices or office copies
might have been placed on record. Both sides are at liberty to adhere to
their respective stands. Evidential value of notices (Exh.73 and 76) can
be appreciated while deciding the matter on merit. Trial of the suit is
not concluded. There is lack of sufficient material to draw conclusion
that the defendants have committed forgery or fabrication of false
documents. Section 340 of the Cr.P.C. confers power upon the Court to
take cognizance of offences prescribed under Section 195 of the Cr.P.C.
committed in the court proceeding. It is necessary that such offence
should have been committed in respect of a document produced in
evidence in a proceeding in the Court. It has to be shown that
alterations, additions and signatures on disputed documents were made
in the documents which are produced in the evidence in the Court. If
these additions and alterations are made prior to production of
documents in the Court, there is no scope for resorting to Section 340 of
the Cr.P.C.
5. Learned counsel Shri Bal Patil for defendants no.1 to 3 has
rightly relied upon citation of Santosh Chandrashekar Shetty V/s.
Ameeta Santosh Shetty 2019(1)CPMH98 in which Para 23 in the case
of Iqbal Singh Marwah V/s. Meenakshi Marwah 2004(7)CPSC656
dated 22/07/2004 is relied and reproduced in para 22 and it reads 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
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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 justices 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.”
6. In the light of all above discussion, there is no scope to
exercise powers under Section 340 of the Cr.P.C. in the case in hand.
Such directions can be given when trial is concluded depending upon
available material on record. Hence, I pass the following order :
ORDER
1. Notice of Motion No. 860/2020 is dismissed.
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N/m No. 860/2020 in S.C.Suit No. 3792/08. 5 Order.
2. Proceeding of N/m No. 860/2020 is closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.66)
Date : 04/10/2022. Mumbai.
1. Dictated on : 04/10/2022.
2. Transcribed on : 04/10/2022.
3. Signed on : 04/10/2022.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
04/10/2022. 5.37 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 04/10/2022.
Judgment/Order signed by P.O. on 04/10/2022.
Judgment/Order uploaded on 04/10/2022.
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