AI Structured Summary
Not yet generated for this judgment
Judgment
B.S. Patil, J.—In this writ petition, petitioners are challenging the order dated 07.11.2009 passed by the Trial Court rejecting the application filed by the petitioners - defendants in the Trial Court invoking Section 195(1)(b) read with Section 340 of the Code of Criminal Procedure.
The suit in O.S.No. 21/03 is filed by the 1st respondent herein for recovery of money based on a pro-note. An ex-parte order of attachment before judgment came to be passed on 05.03.2003 by the Trial Court. However the property, subject matter of attachment was sold by the 1st petitioner on 26.03.2003.
Petitioners have filed written statement on 22.09.2003 contending inter alia in paragraph Nos. 4 and 5 that the suit summons and the order of attachment was served on them on 28.03.2003 and that they have received the summons by putting the date of receipt as 28.03.2003. They have however contended in the written statement that the said date found on the suit summons was deliberately tampered to show the service as having been effected on 24.03.2003 to make unlawful gain. Thereafter, when the evidence was in progress, on 10.12.2008 the present application came to be filed seeking initiation of criminal proceedings against the respondent - plaintiff and also the Court bailiff, who has arrayed as 2nd respondent in this writ petition. The Trial court has rejected the application finding no substance in the allegations made and holding that it was intended only to protract the proceedings.
Several contentions are urged on merits by the learned Counsel for the petitioners. Having regard to the nature of the controversy raised, I do not find it appropriate to enter into the merits of the contentions. The application filed before the Court below was itself totally misconceived. The defendants having taken a specific defence stating that the 1st defendant had sold the properly on 26.03.3003 and that the suit summons was served on them only on 28.03.2003, it was for them to establish by adducing cogent evidence of the said fact. The question whether there is interpolation or not is a matter of evidence and the Court below was right and justified in rejecting the application. The trial of the suit cannot be delayed on that ground by filing an application invoking the provision of Section 195(1)(b) read with Section 340 of the Code of Criminal Procedure. Hence, I do not find any good ground to interfere.
It is also well established that if the Court finds that there is any such interpolation and tampering of the records of the Court, then the Court will certainly exercise its powers and initiate criminal action against the persons who are responsible for the same and that stage will come only after evidence is recorded and the Court has all relevant materials before it.
Therefore, I do not find any illegality in the order passed. Hence, the writ petition is dismissed making it clear that it will be open to the petitioners to lead evidence even with regard to the assertions made by them in the written statement that the suit summons was served on them on 28.03.2003 and that the date mentioned in the summons under the signature of 1st defendant has been tampered.