Narayansamy Murali vs R.Raghu @ R.Raghu

Sabyasachi Bhattacharyya, J

This matter is an unfortunate instance of allegations and counter allegations, virtually between counsel appearing for the parties against each other.

The application has been filed under Section 340, read with Section 195, of the Code of Criminal Procedure for an inquiry into alleged offences committed in respect of Court's documents in the proceedings of S. A. No. 002 and 003 of 2018.

It is alleged by learned counsel for the applicant, who appeared for the unsuccessful respondents in the said second appeals, alleges that there was interpolation in the paper book submitted before the Court, on the part of the appellant in the said appeal, who is the present opposite party. It is argued that the present opposite party, who was the defendant in the suit, from which the second appeal arose, applied successfully for an amendment of the written statement, which was directed to be carried out by the Trial Court. However, subsequently the said order was set aside in revision, thereby refusing such amendment. Despite such developments, it is argued that the said refused amendment was incorporated in the copy of the written statement which was made a part of the paper book, both in the Court's copy and in the copy of the appellant, but was deleted from the copy of paper book supplied to the respondent/present petitioner by the use of whitener.

By pointing out to the last sentence of paragraph No. 3 of the said written statement from page-12 of the Court's copy of the paper book, learned counsel for the applicant argues that the expression "land bearing Sy. No. 127/2/1 & 127/3/1" was introduced by interpolation in handwriting.

Learned counsel for the applicant further submits that the result of the second appeals hinged on such interpolation, which is reflected from paragraph No. 10 of the judgment passed in the second appeals by this Court, wherein the said interpolation was also set out from the written statement and formed the basis of the subsequent analysis of the matter in the judgment of this Court, leading to the appeals being allowed against the present applicant.

Learned counsel hands up the copy of the paper book served on him, from which it appears that the said handwritten insertion was sought to be smudged by the use of ink whitener, however, leaving it sufficiently legible to see the survey numbers.

Learned counsel argues from schedule B of the plaint filed by the applicant in the Court below, that the said property, comprised of the allegedly interpolated plots, was claimed by the plaintiff/applicant to be his own and as such could not have found place in paragraph No. 3 of the written statement within the compass of the "suit land".

It is further pointed out by learned counsel for the applicant that the records would show that this Court, while hearing the matter, had marked the relevant paragraphs of the written statement in the paper book and not in the original written statement, which was a part of the lower court records. The deliberate use of whitener to suppress the insertion of such survey numbers in the respondent's copy, which remained untouched in the Court's and the appellants copies, was a deliberate attempt, as per learned counsel for the applicant, to mislead the Court and keep the present applicant in the dark as to such interpolation.

In this context, learned counsel cited a judgment reported at (1994) 1 SCC 1 (S.P. Chengalvaraya Naidu (dead) by Lrs vs. Jagannath (Dead) by Lrs and Others) for the proposition that the issue of fraud can be taken at any point of time before any forum and the principle of "finality of litigation" cannot be pressed to such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants, since fraud vitiates all and can be questioned even in a collateral proceeding.

It has been stated in the present application that the applicant has filed a suit challenging the decree of this Court on the ground of fraud.

It has also been disclosed that a Special Leave Petition was preferred against the judgment of this Court, which met with summary dismissal.

Learned counsel for the applicant cites another judgment dated August 18, 2006 passed by the Hon'ble Supreme Court in Appeal (Civil) No. 3535 of 2006 (Hamza Haji vs. State of Kerela and Anr.), wherein it was held that fraud is an intrinsic, collateral act, which vitiates the most solemn proceedings of Courts of justice and that, even if two applications for review were dismissed in that case, the Court could consider the question of fraud afresh and upset the judgment under review.

It is argued that interpolation itself is fraud, irrespective of whether any benefit was derived by the person practicing fraud in obtaining a judgment from Court, since the same had the effect of misleading the Court, which itself comes within the purview of Section 340 of the Code of Criminal Procedure.

Countering such arguments, learned counsel for the opposite party submits that, admittedly, the alleged 'interpolation' was inscribed in the paper book in the handwriting of counsel for the present opposite party herself in the respondent's copy as well as in the Court's copy. It is submitted that no whitener was used by the opposite party (the appellant in the second appeals) at all even in the copy of the paper book supplied to the respondent, being the present applicant. It is argued that such whitener was used subsequently by the applicant, or on his behalf, deliberately to project a case of fraud being perpetrated upon this Court, after losing the matter before this Court.

In fact, by handing up a copy of the Special Leave Petition filed by the present applicant against the judgment passed by this Court in the second appeals, it is pointed out by learned counsel for the opposite party that such fraud was taken as a ground in the SLP, which ultimately met with dismissal.

It is further argued, by showing a copy of the SLP that whiteners were used in the said copy as well, by the present applicant himself or on his behalf, which does not even tally with the copy of the applicant's paper book of the second appeals. Learned counsel for the opposite party meticulously points out several portions of the SLP and compares the same with the copy of paper book of the second appeal, supplied to the applicant, to show that using a whitener has been a regular practice of the applicant and it is seen from the SLP itself that other portions than that alleged to have been deleted by whitener by the present opposite party, were also smudged by whitener in the SLP, which could only be done by the present applicant or his agents.

It is next argued on behalf of the opposite party that, even in the copy of the paper book served upon the present applicant, there was several other portions where whitener was apparently used, regarding which the applicant does not raise any objection. Rather, the applicant chose only the portion containing the survey plot numbers in the handwriting of the counsel for the present opposite party, to allege fraud, while omitting the other portions, also faded out by whitener, obviously by the applicant. As such, the entire drama of whitener being used was enacted by the applicant and/or his advocates to justify, post-facto, the allegation of fraud, after losing on merits before this Court in the second appeals.

Learned counsel for the opposite party submits that it was an obvious but bona fide mistake in including the handwritten portion, which occurred since the same was taken from a rough copy of the written statement available with counsel for the opposite party at the relevant juncture when the paper book was prepared, which copy of the written statement was prepared at a point of time when the amendment had been allowed by the Trial Court, which was later on reversed in revision. The mistake was an entirely bona fide one and was not intended to deceive the Court or the present applicant at all.

On the contrary, the appellant has resorted to deception by using the whitener himself or through his advocate, to establish fraud having been practiced by the opposite party both in the SLP and in the suit filed against the second appellate decree, filed by the applicant on the ground of fraud.

It would be evident from the judgment itself, passed in the second appeals, that this Court took into consideration the factum of the amendment being refused, and relied on the original written statement to arrive at its findings and conclusion. Hence, it is palpable that the opposite party had pointed out the mistake. Moreover, the applicant did not raise the issue at all at the time of hearing of the second appeals but the allegation of fraud dawned upon the applicant as an afterthought, after taking a chance unsuccessfully in the second appeals.

Learned counsel for the opposite party, in obvious indignation on the allegation levelled in the present application, virtually challenging her own integrity, also places an order passed in a separate review application wherein the present counsel for the applicant, who also appeared for the losing respondent in the second appeals, had appeared and levelled allegations against the same counsel who is now appearing for the opposite party, on the ground of fraud, which was deprecated by this Court and turned down with caustic remarks.

In this context, learned counsel for the opposite party hands over a photocopy of the certified copy of an order dated June 29, 2017 passed by a Division Bench of this Court, sitting in Port Blair Circuit in RVW. No. 004 of 2007, where the same set of counsel were appearing for the respective contesting parties. The grievance raised by the counsel for the present applicant there was that a vakalatnama had been placed by the client of the present counsel for the opposite party purported to have been signed by the plaintiff but which was, in fact, not signed by the plaintiff. The local police station was also approached for registering a complaint in that regard. It was observed therein that, by filing the said application for review, the writ petitioner had virtually gambled with litigation at the cost of the respondent by trying his luck in different Benches and accordingly, the application was dismissed with costs assessed at 60 GMs.

It thus argued that the entire ploy of the applicant and his counsel is to malign the present opposite party and the counsel for the opposite party, thereby reaping undue advantage of their own wrong.

In reply, learned counsel for the applicant submits that he has mentioned about the SLP as well as the suit, filed on the ground of fraud, in the present application and has not suppressed anything.

As regards the additional use of whitener in the SLP and the copy of the paper book of the applicant than the portion alleged to be tampered with, it is submitted that before any document is placed before the Hon'ble Supreme Court, the handwritten interpolations are to be obliterated, for which the additional use of whitener had to be resorted to by the applicant while preparing the documents for SLP. However, it is submitted that the interpolation-in-question was done by the present opposite party deliberately and was whitened out in the copy of the paper book served upon the present applicant.

Upon hearing both sides, at the outset it is noted this Court would not look into the previous review application, where caustic remark was made against the present applicant, since the basis of such remark was forum-shopping and not the adoption of unfair means. Moreover, the findings rendered in an unconnected proceeding cannot have any direct bearing upon the issue at hand.

Looking into the scope of Section 340 of the Code of Civil Procedure, one essential ingredient therein is that the inquiry directed by the Court has to be, in the opinion of the Court, expedient in the interest of justice. Section 340 of the Code of Criminal Procedure refers to Section 195 which, in turn, provides for the offences being punishable under several sections of the Indian Penal Code, including Section 471, which could be the only Section which can be invoked in the present proceeding.

Section 471 reads as follows : -

"471. Using as genuine a forged document (or electronic record). - Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record."

Section 471 thus provides the second essential ingredient which has to be established in the present matter, being that the person using as genuine any document fraudulently or dishonestly must know or has reason to believe the document to be a forged one, for the said section to be attracted.

As such, it is to be seen as to whether the two ingredients for invocation of Section 340, Criminal Procedure Code, read with Section 471, Indian Penal Code, being that the Court is of the opinion that it is expedient in the interest of justice and that the person using the document knew or had reason to believe a document to be forged one, have to be established first.

Looking into the rival contentions of the parties and the materials in this regards, it is an admitted position that the handwritten insertion in the paper book was of counsel for the present opposite party. However, there is sufficient doubt as to who used the whitener on the said insertion in the copy of the paper book supplied to the respondent in the appeal, who is the present applicant.

It is all the more suspicious since, although the applicant is so meticulous as to go into every detail of the markings made by this Court in the paper book on record and as to this Court having not marked the original written statement, which is a part of the lower court records, the applicant was negligent enough to omit this vital objection at the time when the second appeals were heard.

Such a diligent litigant and/or counsel for the litigant ought to have been cautious enough, as per prudence befitting a reasonable man, to point out such fraud at the time of hearing of the second appeals itself. The fact that the applicant did not do so, creates a touch of incredulity as regards the post-facto levelling of such allegation of fraud.

Secondly, learned counsel for the opposite party rightly points out that the applicant is in the habit of using whitener and whiteners have been used profusely at various places of the paper book supplied to the applicant in connection with the second appeals, which is evident from such paper book itself, which is handed up by learned counsel for the applicant.

Such profuse use of whitener creates a doubt in the mind of the Court as to whether the use of such whitener was done by counsel for the opposite party or the applicant or his counsel subsequent to losing the Second Appeals.

At least to the bare eye, no distinction can be drawn between the age of the whitener used on the other parts of the paper book and that of the relevant portion. If at all, it seems that the whitener used on the relevant portion was newer on point of time than the other portions.

Strangely enough, although whitener was used on the initial part of the relevant handwriting thickly, the whitener was lightly used on the survey numbers of the plots, as if to glaringly point out to the Court that the said plots were sought to be indicated to be a part of the written statement.

Apart from the above, the timing of the present application under Section 340 of the Code of Criminal Procedure is also strangely co-incidental with rejection of the S.L.P and the filing of a suit challenging the decree passed in second appeal on a similar ground of forgery.

Moreover, there could be no reason whatsoever for the opposite party making such interpolation deliberately in the copies of the Court and of the opposite party, while obliterating the same in the copy of the paper book supplied to the applicant, which obvious error could easily have been detected at any point of time during or before hearing of the second appeals. However, the said objection as to forgery, if any, was chosen by the applicant to be raised after losing upto the Hon'ble Supreme Court, although the applicant kept silent at the relevant junction when the second appeals were being heard.

Contrary to the argument advanced by the applicant, that an inquiry under Section 340 of the Code of Criminal Procedure could be directed irrespective of whether any benefit was gained by the accused, it is obvious that, for a forgery to be called so, there ought to be a motive behind it. The concept of mens rea is a cardinal principle in criminal cases and, in the present case, there could be no motive for perpetrating forgery, which is a pre-requisite, as per the nature of the present allegation, for Section 340 to be attracted.

That no benefit could be drawn by the opposite party is also clear from the fact that the entire relevant facts were pointed out before this Court at the time of hearing of the appeals and this Court took into consideration the entire facts, as they stood, while passing judgment in the second appeals. Although, as rightly pointed out by the applicant, paragraph 10 of the judgment dated October 1, 2018, passed in the second appeal, records the relevant paragraph of the written statement, being paragraph no.3, along with the handwritten part objected to by the applicant, it is evident in paragraph no.11 of the second appellate judgment that this Court took into consideration that if the averments of the written statement, "as is stood originally" , are taken into consideration, it would be evident that the first defendant meant to say that he had purchased the schedule-C property comprised of survey Nos. 127/2 and 127/3 with his own money, whereas schedule-B property comprised of survey Nos.127/2/1 and 127/3/1 (which were inserted by hand) were purchased with the money provided by the plaintiff. Accordingly, this Court proceeded on the premise that the hand written survey plots were purchased with the money provided by the plaintiff.

As such, the handwritten insertion, which would have meant that the plaintiff proposed to purchase the landed properties and allowed the defendant No.1 to develop and construct the resort on the suit land, being land bearing survey Nos. 127/2/1 and 127/3/1, could not have any bearing on the result of the second appeals. At best, the insertion of the handwritten portion would have meant that the defendant/appellant/present opposite party had pleaded that the plaintiff had allowed the defendant No.1 to develop and construct the resort on the suit land, including survey Nos. 127/2/1/ and 127/3/1, which, in any event, could not establish the ownership of the defendant in respect of the suit property.

The most clinching evidence against the contention of forgery made by the present applicant is borne out by paragraph Nos. 40 and 41 of the judgment passed in the second appeals. The said paragraphs are quoted below:-

"40. As regards substantial question of law no. (ii), it is seen from the records that the defendant No. 1/appellant attempted to amend the original written statement, thereby seeking to explain the purported admission made therein. Initially such amendment application was allowed by the trial court, but subsequently set aside in revision. Thereafter the appeal attempted to take refuge under Order VIII Rule 9 of the Code of Civil Procedure and filed an additional written statement incorporating similar explanation as the amendment. Such attempt was curbed by the trial court and affirmed in revision by a Coordinate Bench of this Court, sitting in Circuit. However, subsequently another Coordinate Bench directed deletion of the finding of the previous Coordinate Bench as to the appellant having admitted something in the written statement.

Even irrespective of such developments, the position of the appellant has to be confined to the original written statement. A perusal of paragraph Nos. 3, 4 and 18 of the written statement, in their proper prospective and attributing a meaningful reading to the averments made therein, would indicate that the purported admission therein was not unqualified. The averments in the written statement, preceding and succeeding the expressions "suit land" and "suit properties", clearly indicate that the said expressions could not be construed to be an admission that the entire Schedule-A property was purchased with the money of respondent No. 1. The defendant No. 1/appellant, in fact, claimed to be a recorded tenant (equivalent to owner in the Islands) in respect of the Schedule-C property and also stated that, since the A-Schedule property was purchased partially with the money sent by the plaintiff, a gift deed was executed on March 20, 2004 by the Appellant in favour of the Respondent No. 1. Moreover, the surrounding circumstances also indicate that the property was purchased partially with the money of the plaintiff only."

It is crystal-clear from the aforesaid paragraphs that this Court elaborately took into consideration that the repeated attempts of the present opposite party to amend the written statement, first under Order VI Rule 17 and then under Order VIII Rule 9 of the Code of Civil Procedure, failed.

Thereafter, this Court categorically took into the consideration the fact that, even irrespective of such developments (the failure of the opposite party to carry out the amendment), the position of the appellant had to be confined to the original written statement. Only upon a perusal of paragraph Nos.3, 4 and 18 of such original written statement, in their proper perspective, did this Court come to the subsequent findings, leading to the appeal being allowed.

As such, there is no scope of any inference that any forgery was committed on the Court by the appellant therein (the present opposite party).

The facts were clear before this Court and were never suppressed by the present opposite party, as found from the observations made in paragraph nos. 40 and 41 of the second appellate judgment. Only upon taking into consideration such factual scenario and looking into the original written statement, without the handwritten insertion, did this Court render its judgment. Hence, there is no ingredient of forgery whatsoever involved in the matter.

Thus, reverting back to the cardinal tests in directing an inquiry under Section of 340 of the Code of Criminal Procedure in the case of forgery of a document, this Court is of the categorical opinion that it would not be expedient in the interest of justice that such an inquiry should be made. Secondly, there is no proof, even prima facie, to show that the present opposite knew or had reason to believe, that the relevant documents were forged ones.

The question of forgery does not even arise, since it is doubtful as to who was responsible for applying the whitener, the applicant and/or his counsel or the opposite party and the counsel for the opposite party.

In view of such doubt having been created in the mind of the Court, the rule of "beyond reasonable doubt", applicable to criminal matters, as opposed to "preponderance of probabilities" for civil matters, is not satisfied.

Accordingly, there is no merit in the application under Section 340 of the Code of Criminal Procedure and the same appears to be an afterthought and harassive, calculated to malign the opposite party and counsel appearing for the opposite party and to influence the Trial Court taking up the suit filed by the applicant subsequently, challenging the second appellate decree on the ground of fraud and to collect evidence for such suit.

Such attempt is categorically deprecated by this Court.

Hence, CAN 136 of 2019 is dismissed with costs assessed at Rs.20,000/- payable by the applicant to the opposite party within a fortnight from date. Such costs have been awarded for the unnecessary harassment caused to the opposite party and the apparent mala fides involved behind the filing of the present application.

Urgent certified copy of this order, if applied for, be supplied to the parties upon compliance of usual formalities.

( Sabyasachi Bhattacharyya, J. )

Later

At this juncture, learned counsel for the petitioner prays for stay of this order. However, since no substantial question of law, but merely factual aspects are involved in the matter, in the opinion of this Court, the petitioner is not entitled to such stay. Accordingly, the oral prayer for stay is refused. Let this order be deemed to be a part of the order passed previously in the same matter.