V.AMUTHA vs S.SWAMIKANNU

THIS is an application filed by the petitioner/complainant/4th respondent praying the Hon''ble Commission to issue direction to initiate investigation under Section 340 of the Criminal Procedure Code (for short "Cr. P.C.") and to make suitable complaint under Section 340 of the Cr. P.C.

THIS application is opposed by the opposite party. The complaint has been filed for compensation on the ground of deficiency in rendering a medical service. The lower Forum accepted the complaint and directed the opposite party to pay a sum of Rs. 15,000 towards expenses of the second operation, Rs. 15,000 for the expected third operation and Rs. 45,000 for deficiency in service and Rs. 1,000 towards cost. Aggrieved by the same, the opposite party has preferred the appeal.

The petitioner''s case is that the 1st opposite party/appellant has exhibited a document which is marked as Ex. B1 which contains the signature alleged to be that of the complainant and that the complainant has not seen any such document and that the said statement which contains the signature of the complainant giving consent for the administration of anaesthesia is a fabricated one and the said document had been tampered with and dates have been altered and fabricated for the purpose of the case and, therefore, action should be initiated under Section 340 of the Cr. P.C.

THE disputed document is marked as Ex. B1 series. It was produced into Court on 15.4.1999. THE judgment was delivered on 20.6.2000. THE complainant disputes the signature in the first page of this document at the bottom of the page. THEre, in english it is written as ''consent for Anaesthesia and operation.'' It reads as follows: "(Regional matter omitted)" Sd/- "(Regional matter omitted)" Over the page, we find number of correction in the date. It appears that originally it was written as ''4'' i.e., to say ''month of April'' and corrected to read as ''9th month''. According to the complainant, these corrections and the endorsements in the first page containing the signature are fabricated and the complainant came to know of it only now. It is stated in the affidavit that the complainant came to know of it only in the first week of May, 2004 when it was filed into Court whereas we find from the records that this document has been produced into lower Forum on 21.10.1999 and was marked as Exhibit on the same date. The lower Forum has also referred to this document in its order. The order of the lower Forum is dated 20.6.2000. Therefore, the allegation made in the affidavit that for the first time the complainant perused Ex. B1 in the first week of May 2004 when her Counsel gave a copy of the typed set is but an allegation made for the purpose of this application.

NOW, let us see whether there is any basis made out to resort to Section 340 of the Cr. P.C. The Supreme Court has held in the decision reported in III (1998) SLT 90=I (1998) CCR 297 (SC)=(1998) 2 SCC 493, that it must be held that "the bar contained in Section 195(1)(b)(ii) of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a Court". It also held that "the offence should have been committed during the time when the document was in custodia legis." But, here there is nothing on record to suggest nor any materials to hold that assuming there are corrections and those corrections are fabrications, they were done while the documents were in the custody of the Court. On the other hand, even in the affidavit filed by the complainant, it is not stated that the document was tampered with and fabricated while it was in the custody of the Court or after it was produced into Court. It is simply stated that the document was fabricated after institution of the complaint. Therefore, in all probabilities, it could have been done before the documents were produced into Court. Therefore, in such circumstances, we cannot now presume in the absence of any prima facie materials that the so called corrections or fabrications and forgery were committed when they were in the custody of the Court. In fact, that is also not the case of the complainant. Assuming for the purpose of the case that the corrections were made by the opposite party with a view to fabricate the evidence, even then, it must be held that it was done long before the documents were produced into Court. It is to be pointed out that the complaint was filed in the year 1998 whereas the treatment was in the month of September, 1994. The document was produced in the year 1999 and the award was passed by the lower Forum in the year 2000. Therefore, in such circumstances, we are of the view that there is no ground made out to resort to Section 340 of the Cr. P.C. Section 340 of the Cr. P.C. reads as follows: "340. When an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in Clause (b) of Sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary: (a) record a finding to that effect; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the First Class having jurisdiction; (d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and (e) bind over any person to appear and give evidence before such Magistrate."

Therefore, any inquiry as envisaged in Section 340 is to ascertain whether any offence affecting a document produced into Court has been committed. Therefore, it pre-supposes as held by the Supreme Court that the offence should have been committed during the time when the document was in the custodia legis. Therefore, assuming for the purpose of the case that the case sheet have been fabricated and the signature of the complainant has been forged in the case sheet or discharge summary as the case may be, then Section 340 of the Cr. P.C. cannot be invoked since the offence relating to the document has been committed outside the premises of the Court and long before its production.

THEREFORE, in the above circumstances, we are of the view that the present application is misconceived and will not lie.

IN the result, this application is dismissed but in the circumstances there is no order as to costs. The appeal stands adjourned to 2.6.2005 for inquiry. Appeal dismissed.