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Judgment
Abdul Hadi, J.—This Application in C.S. No. 626 of 1986 is under S. 340. Criminal Procedure Code for enquiring into certain offences said to have been committed by the respondent "in the matter of filing" O.S. No. 3400 of 1988 on the file of the 7th Assistant Judge, City Civil Court, Madras, since transferred to this Court and renumbered as the above referred to C.S. No. 626 of 1986, and for setting the criminal law in motion against the respondent. The allegation is that the respondent has committed offences under Ss. 191, 193, 199 and 205 of Indian Penal Code.
S. 191 of Indian Penal Code defines "giving false evidence". S. 193, Indian Penal Code provides for punishment for intentional giving false evidence. According to S. 199 of the Indian Penal Code, false statement made in any declaration, which is by law receivable as evidence, shall be punished in the same manner as giving false evidence. S. 205 of the Indian Penal Code provides punishment for false personation for purposes of act or proceeding in suit. S. 340, Criminal Procedure Code provides that when any Court is of the opinion that it is expedient in the interest of justice that an enquiry should be made into any of the above said offences and certain other offences, which appear to have been committed in or in relation to a proceeding in that Court, such Court may, after such preliminary enquiry, if any, as it thinks necessary, record finding to that effect, make a complaint thereof in writing and send it to a Magistrate for prosecution.
This application is filed by the defendants against the plaintiff Sugesan Finance Investment represented by its Partner Manoj K. Sheth, The said offences are said to have been committed in the following manner:-.The present suit C.S. No. 626 of 1986 was originally C.S. 3400 of 1986 on the file of the 7th Assistant Judge, City Civil Court, Madras. The said suit was transferred to this Court along with the suit O.S. 3149 of 1986 on the file of the 5th Assistant Judge City Civil Court, Madras, which was renumbered here as C.S. No. 627 of 1986. The suit O.S. No. 3149 of 1986 was also filed by the same plaintiff, who is at Madras against the same defendants who are at Bombay. Each of the said suits seeks to recover Rs. 26,968 75. According to the applicants, as mentioned in paragraph 6 of the affidavit, the subject matter in both the suits, is same. The respondent originally baldly denied the said allegation as "incorrect" in paragraph 4 of its original counter affidavit dated 30th January, 1989, sworn to by the partner of the plaintiff-firm Bepin K. Sheth. But in paragraph 7 of the later additional counter affidavit dated 30th January, 1989 of another partner of the said firm the above said Manoj K. Sheth, it is stated that the latter suit related to another promissory note other than the promissory note involved in the first suit.
However, admittedly both the suits were filed on 2-5-1986 itself, one after another and applications for attachment before judgment were also moved on the same dare, one after another, but before different Judges of the same City Civil Court, the first one before the 5th Assistant Judge and the second one before the 7th Assistant Judge. In the earlier suit, the address of the plaintiff was stated to be 38, Rajaji Salai (Ground Floor), Madras 600001, while in the later suit it was stated to be "Park Town, Madras-3 with the Corporation Division No. 62'''', without even specifying the street name or Door Number in the said Park Town, but specifying the Corporation Division Number. (The earlier address at No. 38, Rajaji Salai did not specify the Corporation Division Number),
Of the three charges levelled against the respondent for sanctioning prosecution as stated above, the first or the main charge, as stated in paragraph 9 of the applicant''s affidavit, is that since in the first suit, ex parte attachment before judgment was not ordered by the above said 5th Assistant Judge, the second suit (which is the present C.S. No. 626 of 1986) was then filed on the same day and in order "to avoid this suit also coming up before the said 5th Assistant Judge, City Civil Court, Madras and to bring the same within the jurisdiction of their choice, made a false statement in the affidavit in regard to the address of the plaintiff therein and declared the address as ''Park Town, Madras-3 within the Corporation Division No. 62, thereby bringing the matter within the jurisdiction of the 7th Assistant Judge, City Civil Court, Madras." The affidavit wherein the above referred to false statement is made is the affidavit of the above said Manoj K. Sheth filed in I.A. 9337 of 1987 in O.S. 3400 of 1986, City Civil Court, Madras, corresponding to Application No. 6098 of 1988 in C.S. No. 626 of 1988 on the file of this Court. In the plaint therein also, the same alleged address of the plaintiff was given.
The learned 7th Assistant Judge passed, on the same day, the order giving conditional attachment by precept. While admitting the said passing of the order of conditional attachment by the 7th Judge, the respondent denied, in paragraph 8 of his original counter affidavit, making a false statement as stated above and observed as follows:
The Counsel, while preparing the suit, by oversight and due to confusion, would have stated so in the plaint and this was followed by the clerk of our Counsel Merely because it so happened it does not mean that it was made with some ulterior motive to get an ex parte order of attachment.
(Emphasis is mine.)
The above said additional counter affidavit further stated in paragraph 9 thereof that the suits were posted in the City Civil Court on the basis of the Corporation Division, in which defendants were residing and carrying on business and that there was no necessity for them (respondents) to make a false statement with regard to their address. The learned Counsel for the plaintiff in the above said both the suits, Mr. D. A also filed affidavit dated 8-1-1989 stating that
the change in plaintiff''s address must have been due to typographical mistake committed by typist due to oversight and over work must have been due to mixing up of the papers given for typing in different cases.
(Emphasis is mine).
This explanation by the learned Counsel is prima facie, not convincing to me. It is not clear as to how a typographical mistake could have been committed in the circumstances of the case. Even the above said address given is bald without street name or Door number. Further, the learned Counsel only says that the mistake ''must have been'' committed by the typist. The typist concerned has not filed any affidavit. So, I find that there is at least a prima facie case of giving false evidence with the requisite menses spoken to under S. 193 or 199 of the Indian Penal Code. Further, the learned Counsel for the applicants stated that where the defendants are outside the jurisdiction of the City Civil Court, Madras (as in the present case, since they are in Bombay), the practice in the said City Civil Court is that the Corporation Division of the plaintiff''s address is taken into account to fix up the learned Judge before whom the matter has to be posted.
In the circumstances, though I do not express any conclusive opinion as to whether a false statement with the requisite, menses has been nude so as to bring it within the relevant Sections of the Indian Penal Code which conclusive opinion I should not come to in this proceeding under S. 340, Criminal Procedure Code, I am however of opinion that it is expedient in the interests of justice to set the criminal law in motion as prayed for by the applicants in regard to the above said first charge of giving fictitious address of plaintiff.
As decided in K. Karunakaran Vs. T.V. Eachara Warrier and Another, (relied on by the learned Counsel for the defendants), in a proceeding under S. 340, Criminal Procedure Code, the only question is, "whether a prima facie case is made out, which, if unrequited, may have a reasonable likelihood to establish the specified offence and whether it is also expedient in the interest of justice to take such action." The Supreme Court also observed in the said decision that the party might choose to place all his materials before the Court at the stage of the proceedings under S. 340, Criminal Procedure Code. But if it did not it would not be estopped from doing so later at the trial in case the prosecution was sanctioned by Court and that if at that stage, the Court chose to take action, it did not mean that he would not have full and adequate opportunity in due course of the process of justice to establish his innocence.
No doubt, the learned counsel for the plaintiff brought to my notice the following observation of the Supreme Court in Santokh Singh Vs. Izhar Hussain and Another, -
Every incorrect or false statement does not make it incumbent on the court to order prosecution. The Court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency. The court orders prosecution in the larger interest of the administration of justice and not to gratify feelings of personal revenge or vindictiveness or to serve the ends of a private party.
I take note of this observation and yet feel that the required expediency is there to sanction prosecution in the present case. It must also be noted here that in the above said lengthy counter affidavits of both Bepin K. Sheth and Manoj K. Sheth, there was no single averment to the effect that this application was taken out because of personal revenge or vindictiveness of the defendants against the plaintiff. Larger interest of administration of Justice also demands that a fuller probe is made by the Criminal Court in this matter as to whether the alleged offences have been committed by the respondent, so that such alleged bad practice to get the desired result is not resorted to by other litigants. It may also be pointed out that it has been held by the Division Bench of this Court that prejudice to the respondent need not be proved for invoking S. 340. Cr.P.C. (Vide Harikrishna Jhavar v. Ram Narain.) 100 L.W. 738
It may also be noted that under Order 6, Rule 15, C.P.C., every pleading shall be verified and that the object of such verification is to fix responsibility for the allegations made on the person who verifies, ensuring that false allegations are not made freely and recklessly (Vide Rajkumur v. H. Stuaria AIR 1936 Mad 350. it is also settled law that false verification is an offence punishable under Ss. 191 and 193 of the Indian Penal Code (Vide Venkatrama Reddi v. Srinivasa Reddi AIR 1936 Mad 350 It is more so, if a false statement is made in any affidavit. Further, S. 199, IPX. read with Ss. 191 and 193 thereof make the making of false declarations an offence. Under S. 191, the declaration is one which a person is bound by law to make. But S. 199 will apply even where the declaration was not one which he was bound under law to make. It is enough if it is capable of being used as evidence and the Court is bound to receive or authorised by law to receive it as evidence (Vide M.S. Sheriff Vs. The State of Madras and Others,
The learned Counsel for the plaintiff argued that only at the time of rendering judgment at the trial of the suit, sanction, if at all, can be granted under S. 340, Cr.P.C. and not earlier. But S. 340, Cr.P.C. does not contemplate or provide any particular stage at which alone the proceeding could be resorted to. Offences alleged, being those against administration of justice, prompt action is desirable. In fact, it is so in almost all criminal cases. The following words of Supreme Court in M.S. Sheriff v. State of Madras Supreme Court may be cited in this connection:
The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial.
Further it must also be noted that with reference to the above referred to statement regarding the plaintiff''s address, no further finding is warranted or can be expected in judgment that will be delivered in the main suit. So, the above said argument of the learned Counsel for the plaintiff hits no merit.
The second charge levelled against the respondent is that this suit has been filed by Sugesan Finance Investment, a registered firm, represented by one Manoj K Sheth, calling himself falsely a partner, though in fact he was not shown as a partner in the Register of firms, and thereby violating S. 69 (2) of the Partnership Act. But the Counsel for the respondent argued that the said Manoj K. Sheth had already become a partner from 20-11-1980 by deed of partnership dated 20-11-1980 and the same fact is also supported by entries in certain income tax accounts. The copies of the said deed and the entries were shown to me. The learned counsel also showed me the copy of a letter dated 18-10-1988 written by the plaintiff-firm to the Registrar of Firms staling that the respondents had intimated to the said Registrar about the admission of Manoj K. Sheth into the partnership, that by oversight his name might have been left out in the Register and that hence fresh form No. 5, in lieu of one already submitted was sent, requesting to incorporate his name with retrospective effect.
S. 69 (2) of the Partnership Act runs as follows:
No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons sued are or have been shown in the Register of firms as partners in the firm.
Thus, the two requirements, which must be fulfilled before a suit can be instituted to enforce a contractual right by the firm are (1) that the firm is a registered one and (2) that the persons suing are or have been shown in the Register of Firms as partners. The said second condition really consists of two alternatives and it is enough if one of them is fulfilled. Those alternatives are (1) that the persons suing must establish that they are partners or (2) that they are persons, whose names, are shown in the Register of Firms as partners. Vide H.A. Hussain v. P.V.G K & Bros AIR 1970 Mys 299. In the present case, in view of the above said partnership deed dated 20-11-1980 and entries in the income tax accounts, it is shown that the said Manoj K. Sheth was a partner right from 20-1-1980. So, there can be no offence under S.205 of the Indian Penal Code as contended by the applicants since there is no false personation as spoken to therein. So, the above said second ground for sanctioning prosecution has no merit.
The third charge levelled against the respondent, as contained in the affidavit in support of the application, is as follows:
The Applicants also understand that apart from the above offences committed by the Respondents they have apprehensions that the respondents have also tampered with the warrant of Attachment, the details of which can be explained only when the relevant papers are put up before this Hon''ble Court.
Thus, here, no particulars of alleged tampering were given at all by the applicants. Further, the applicants have averred that they only ''''understand" and that they have only ''''apprehensions'''' that the respondents have also tampered with the warrant. The respondents denied this non-assertive and bald allegation at the end of paragraph 11 of their counter affidavit thus: "It is again incorrect and false to state that we have tampered with the warrant of attachment". (Also see paragraph 15 of additional counter affidavit). Even in the reply affidavit of the applicants, no further particulars of this alleged tampering have been given.
Further the applicants or their Counsel having not shown under what particular Section of the Indian Penal Code this charge would come in, as per S. 340, Cr.P.C, only with reference to the offences referred to in S. 195 (1) (b), Cr.P.C, that is, S. 193 to 196 (both inclusive). 199, 200, 205 to 211 (both inclusive) and 228, Indian Penal Code, prosecution can be if, at all, sanctioned, I do not consider that the alleged tampering would fall under any of the said sections of Indian Penal Code. Further, the prayer in the application restricts relief only "in the matter of filing" O.S. No. 3400 of 1988 and not with reference to the alleged tampering of the warrant of attachment subsequently. The result is, I sanction prosecution only with reference to the first of the above said charges (dealt with in paragraph 6 to 12 above) and direct the Registrar of this Court to prefer a complaint against the respondents under the punishing Ss. 193 and 199 of the Indian Penal Code read with S. 191 thereof before the Chief Metropolitan Magistrate, Madras.