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2015 (2) TMI 1045
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....n in evidence in any court during the time the same was in custodial legis. The Company Law Board further relied on the judgment of the Supreme Court in case of SACHIDA NAND SINGH & ANR. VS. STATE OF BIHAR & ANR., 1998 (2) SCC 493 and held that it would be strained thinking that any offence involving forgery of a document if committed far outside the precincts of the Court and long before its production in the Court, could also be treated as one affecting administration of justice merely because that document later reaches the court. 2. The application filed by the Appellant for prosecuting the Respondent (Petitioner before the CLB) for perjury was premised not only on the facts that the document was forged and fabricated but that the Respondent by filing and relying on the said forged and fabricated document induced the Court to believe that the Respondent was having a higher shareholding. 3. It is an admitted position of the parties that the said document is forged and fabricated. The Respondent contends that the document was handed over to the Respondent by the Appellant himself and believing the document to be correct, the document was relied upon and filed by the Respondent ....
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....dge of the Respondent and was based on a forged and a fabricated document which was supported by an affidavit of the Respondent. 11. Further, the Appellant has contended that this fact was even reiterated and reaffirmed by the Respondent despite the fact that the Appellant had specifically stated in the reply that the documents were forged and fabricated. 12. It is contended that the Respondent in the rejoinder had not taken any plea that the Resolution was handed over by the Appellant but on the contrary he contended that the contents of the reply of the Appellant was false, fake, bogus and mischievous and, therefore, denied it in full. It was contended in the rejoinder that the Board Resolution dated 16.08.2010 was passed and the same was recorded in the own handwriting of the Appellant in the Minute Book. As per the Appellant, the Respondent never took the plea that the Resolution was handed over by the Appellant. 13. As per the Appellant, since the petition filed by the Respondent contained a false averment and further relied on a forged and fabricated document, the application filed by the Appellant under section 340 CrPC for initiating perjury proceedings against the Respo....
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....cord 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 for 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. (2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195. (3) A complaint made under this section shall be signed,- (a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint; (b) in any other case, by the presiding officer of the Court. (4) In this section, "Court" has the same meaning as in section 195. 21. Section 340 CrPC lays down the procedure to be followed by a court or a cou....
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....e complaint in writing of that Court or of a Court to which that that Court is subordinate. 25. Sections 195(1)(b)(i) & (ii) CrPC do not deal with the power of the Court before whom the proceedings are already pending. The bar from taking cognizance is on the other Court before which the complaint is sought to be made in respect of the proceedings pending in another Court. 26. Sections 195(1)(b)(i) & (ii) CrPC thus contemplate two proceedings: (i) which is originally pending between the parties in a Court (hereinafter referred to as the 'First Court') and (ii) the other being the proceedings initiated or sought to be initiated by a party before the other Court (hereinafter referred to the 'Second Court'). 27. The bar contained in Section 195(1)(b) applies to the proceedings sought to be initiated before the Second Court with regard to the offences committed by a party in relation to proceedings pending before the First Court. 28. Sections 195(1)(b)(i) & (ii) CrPC lay down that the Second Court shall not take cognizance of the offences specified therein committed by a party in respect of the proceedings pending or in respect of a document produced or given in evidence before the....
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....der section 340 CrPC in respect of the second and third situation. The first situation being not applicable to the First Court as the document is neither filed nor relied on in the Court. 34. The Company Law Board has misapplied the ratio of the judgment of the Supreme Court in the case of IQBAL SINGH MARWAH (SUPRA) to the facts of the present case. 35. The Constitution Bench of the Supreme Court in the case of IQBAL SINGH MARWAH V. MEENAKSHI MARWAH (SUPRA) was dealing with a case where the complaint was filed by a party before the Court of Chief Metropolitan Magistrate for prosecution of the other party on the ground that proceedings for probate had been filed by the other party before the court of the District Judge for probate of a Will which was forged and fabricated. Application filed under section 340 CrPC before the District Judge was still pending. 36. The Court of the Metropolitan Magistrate held that there was a bar under Section 195 CrPC on it from taking cognizance as the issue of genuineness of Will was pending before the District Judge. In a Revision filed against the said order, the Sessions Judge, held that the bar of Section 195 CrPC would not apply where forger....
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....n to take cognizance in respect of such offences with regard to documents that are custodia legis or proceedings pending before the First Court except on a complaint by the First Court. It does not lay down the converse that the First Court can only take action if documents are forged custodia legis and not otherwise. 41. The Company Law Board has also misapplied the ratio of the judgment of the Supreme Court in SACHIDA NAND SINGH (SUPRA). 42. In SACHIDA NAND SINGH (SUPRA) a complaint was filed by second Respondent in the Court of the Chief Judicial Magistrate, alleging that the Appellants had forged a document and produced it in the Court of the Executive Magistrate. The Chief Judicial Magistrate forwarded the complaint to the police as provided in Section 156(3) of the Code. Police registered an FIR on the basis of the said complaint and after investigation laid a charge-sheet against Appellants for those offences. The Chief Judicial Magistrate took cognizance of those offences and issued process to the accused. The Appellants then moved the Patna High Court under Section 482 of the Code for quashing the prosecution on the main ground that the Magistrate could not have taken co....
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.... Court will have no jurisdiction to entertain an application under Section 340 of the Code is entirely misconceived and is without merit. The document has been produced in Court proceedings. A document, which is tampered or forged and is produced during the Court proceedings, the Court would have jurisdiction to conduct an inquiry under Section 340 of the Code and decide whether the bar contained under Section 195 partially or in its entirety is attracted in the facts and circumstances of the case or not. An offender cannot take advantage of its own offence and wrongs committed, and give an interpretation of the provisions of law, which is destructive of the legislative intent and spirit of the statute. While conducting an inquiry, the Court may hold that a person is liable to be prosecuted and grant the sanction, if necessary. If in the opinion of the Court, the bar under Section 195(1)(b) is not attracted, then the offender would be liable to be prosecuted in any event as the conditions imposed under Section 195(1)(b) would not be attracted or applied to the facts of the case. 47. Further, this Court in the case of SANJEEV KUMAR MITTAL V. THE STATE, (2010) 174 DLT 214 held as un....
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....hich were also filed) was filed, a second offence stood committed. That second offence was of: (1) making a false averment in the petition duly verified and filing the same in Court; and (2) asking the Court for a judgment on the basis of false averments and forged documents. 9.4. The learned amicus curiae submits that if a person prepares a petition containing false averments, relying on forged documents, and signs and verifies it, and then comes to the Court, but on seeing the building, develops cold feet and returns home, the second offence would not have been committed. But when he presents these papers at the filing counter, it is filing in Court. The moment they cross the window at the filing counter is precisely the point of time when the second offence stands committed. 9.5. In Iqbal Singh Marwah v. Meenakshi Marwah, 118 (2005) DLT 329 (SC)=III (2005) SLT 154=II (2005) CCR 16 (SC)=(2005) 4 SCC 370, the question before the Supreme Court was when would the bar of Section 195(1)(b)(ii), Cr.P.C. be attracted. Their Lordships held that the bar would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has be....