Urmila Agarwal vs Pawan Properties & Ors
2024 Latest Caselaw 2895 Cal/2

Calcutta High Court

Urmila Agarwal vs Pawan Properties & Ors on 11 September, 2024

                 IN THE HIGH COURT AT CALCUTTA
                 (Ordinary Original Civil Jurisdiction)
                               ORIGINAL SIDE


Present:

The Hon'ble Justice Krishna Rao



                          IA No. GA 5 of 2024

                                     In

                           CS No. 84 of 2023


                               Urmila Agarwal

                                  Versus

                        Pawan Properties & Ors.



           Mr. Rajarshi Dutta
           Mr. V.V.V. Sastry
           Mr. Debargha Basu
                                                ... for the plaintiff.


           Mr. Jishnu Saha, Sr. Adv.
           Mr. Soumya Roy Chowdhury
           Mr. Manoj Kumar Tiwari
           Ms. Susrea Mitra
           Mr. Bhavesh Garodia
           Mr. Satwik Buiwala
                                                ... for the defendants.


Hearing Concluded On : 18.07.2024

Judgment on           : 11.09.2024
                                          2


Krishna Rao, J.:

1. The plaintiff has filed the present application being GA No. 5 of 2024 in

CS No. 84 of 2023 under Section 340 of the Code of Criminal

Procedure, 1973 for initiation of inquiry against the defendants for

producing or giving false evidence.

2. The plaintiff has filed the suit praying for the following reliefs:

"a. A decree of declaration be passed declaring that the sanction plan dated July 23, 2022 in respect of the said property is in violation of and contrary to the agreed terms recorded in the agreement dated October 13, 1982 read with the decree dated March 23, 2011 passed on the basis of the Terms of settlement dated March 18, 2011 entered into by and between the plaintiff and the defendant no.1 in respect of the said property more particularly described in Schedule I hereto;

b. A decree for perpetual injunction restraining the defendant no.1 and/or its men, agents, servants and/or assigns from acting or taking any step or further steps pursuant to the sanction plan dated 23 July, 2022 and from constructing a primarily residential building at the said property more particularly described in Schedule I hereto;

c. A decree of mandatory injunction directing the defendant no.1 and/or its men, agents, servants, and/or assigns to forthwith withdraw and/or revoke the said sanction plan dated July 23, 2022 in respect of the said property more particularly described in Schedule I hereto;

d. A decree of mandatory injunction directing the defendant no.1 and/or its men, agents, servants and/or assigns to forthwith apply for fresh sanction for a commercial building to be built at the said property after identifying and indicating the allotment of 1050 square feet of commercial space with one car parking space in the commercial complex to be made in favour of the plaintiff as per the agreed terms recorded in the agreement dated

October 13, 1982 read with the decree dated March 23, 2011 passed on the basis of the Terms of settlement dated 18 March, 2011 entered into by and between the plaintiff and the defendant no.1 in respect of the said property more particularly described in Schedule I hereto;

e. A decree of perpetual injunction restraining the defendant no.1 and/or its men, agents, servants and/or assigns from selling and/or transferring and/or alienating and/or encumbering and/or dealing with and/or disposing of and/or creating third party rights in the said property and/or any portion of the building to be constructed at the said property at premises No.46, Shakespeare Sarani (previously Municipal Premises Nos.46A and 46G, Theatre Road), Kolkata

- 700017, within Police Station - Shakespeare Sarani, more particularly described in Schedule I hereto;

f. A decree for declaration be passed declaring that the plaintiff is entitled to allotment and conveyance of a distinct and independent area of 1050 square feet commercial space with car parking space in the commercial complex as per the agreed terms recorded in the agreement dated October 13, 1982 read with the decree dated March 23, 2011 passed on the basis of the Terms of settlement dated March 18, 2011 entered into by and between the plaintiff and the defendant no.1 in respect of the said property more particularly described in Schedule I hereto;

g. A decree of mandatory injunction directing the defendant no.1 and/or its men, agents, servants and/or assigns to transfer and convey 1050 square feet of commercial space with one car parking space in the commercial complex to be constructed at the said property in favour of the plaintiff and to pay the cost towards registration and stamp duty;

h. A decree for Rs.1,57,00,000/-be passed against the defendant no.1 as pleaded in paragraph 54 hereinabove or alternatively an enquiry be directed to ascertain the quantum of damages suffered by the plaintiff as a result of the wrongful actions of the defendant no.1 and a

decree be passed for such sum as may be found upon enquiry;"

3. The plaintiff has also filed an application being GA No. 1 of 2023

praying for the following reliefs :

"a) An order of injunction be passed restraining the respondent no. 1 and/or its men, agents, servants and/or assigns from acting or taking any step or further steps pursuant to the sanction plan dated July 23, 2022 and from constructing a primarily residential building at the said property more particularly described in Schedule I hereto;

b) An order of injunction be passed directing the respondent no. 1 and/or its men, agents, servants and/or assigns to forthwith withdraw and/or revoke the said sanction plan dated July 23, 2022 in respect of the said property more particularly described in Schedule I hereto;

c) An order of injunction be passed restraining the respondent no. 1 and/or its men, agents, servants and/or assigns from proceeding with the project or taking any further steps before identifying and indicating the allotment of 1050 square feet of commercial space with one car parking space in the commercial complex to be made in favour of the plaintiff as per the agreed terms recorded in the agreement dated October 13, 1982 read with the decree dated March 23, 2011 passed on the basis of the Terms of settlement dated 18 March 2011 entered into by and between the plaintiff and the defendant no. 1 in respect of the said property more particularly described in Schedule I hereto;

d) An order of injunction be passed restraining the respondent no. 1 and/or its men, agents, servants and/or assigns from selling and/or transferring and/or alienating and/or encumbering and/or dealing with and/or disposing of and/or creating third party rights in the said property and/or any portion of the building to be constructed at the said property at premises No. 46, Shakespeare Sarani (previously Municipal

Premises Nos. 46A and 46B, Theatre Road), Kolkata-700017, within Police Station -

Shakespeare Sarani, more particularly described in Schedule I hereto;

e) Ad-interim order in terms of prayers above;

f) Costs of and incidental to this application be borne by the respondents;

g) Such further and/or other order or orders be passed and/or direction or directions be given, as to this Hon'ble Court may deem fit and proper;"

4. The application filed by the plaintiff was heard by this Court from time

to time and finally the same was heard on 18th September, 2023 and

passed an order of injunction directing the defendant no. 1, its men,

agents, servants and assigns from alienating, encumbering, dealing

with or disposing of or creating any third-party interest in respect of an

office space measuring about 1050 sq.ft. super built up area and a car

parking space at the ground floor of the proposed building at 46,

Shakespeare Sarani, Kolkata - 700 017. This Court further directed

that once the construction of the commercial portion commences, the

defendant no. 1 shall also in writing indicate to the plaintiff, the exact

location of 1050 sq.ft. super built-up area and the car parking space to

be allotted to the plaintiff and shall before handing over the possession

of any portion in the commercial portion shall handover the plaintiff's

allocation with the car parking space.

5. Learned Counsel for the plaintiff submits that the Advocate

representing the defendant no. 1 in the course of hearing of the

application on 18th September, 2023, for the first time, relied upon an

alleged Agreement dated 28th March, 2011, alleged to have been

executed between the defendant no. 1 and Youdhistir Dhanania, Vidya

Devi Chamaria and the plaintiff. He submits that a copy of the alleged

agreement was placed before this Court and also handed over to the

Learned Advocates of the plaintiff and relying upon such agreement,

the defendant no. 1 contended that the plaintiff in the year 2011 had

agreed to sell her share of 1050 sq.ft of commercial space in the

building to be constructed by the defendant no. 1 and one car parking

space thereat to the defendant no. 1 for a consideration of Rs.

1,08,00,000/- along with Youdhistir Dhanania and Vidya Devi

Chamaria.

6. Learned Counsel for the plaintiff submits that after receipt of the copy

of the alleged agreement, the Counsel for the plaintiff by a letter dated

25th September, 2023, called upon the Advocate for the defendant no. 1

to offer inspection of the original of the alleged Agreement dated 28th

March, 2011. On receipt of the said communication, the Counsel for

the defendant no. 1 had offered inspection of the original alleged

agreement. He submits that upon inspection, the Counsel for the

plaintiff discovered that there is an interpolation in the alleged

agreement with regard to the date of execution of the said agreement,

which was clear on the face of the original document which was offered

for inspection.

7. Being aggrieved by the order dated 18th September, 2023, the petitioner

has preferred an appeal being APOT No. 361 of 2023. In the said

appeal, the plaintiff had also filed an application for seeking an

appropriate order but the Hon'ble Appellate Court has not passed any

order in favour of the plaintiff and being aggrieved with the order dated

20th December, 2023 passed by the Appellate Court, the plaintiff has

preferred an SLP before the Hon'ble Supreme Court but the same was

also dismissed with the observation that "however, we clarify that the

dismissal of the special leave petition will have no bearing on the civil

suit and proceedings pending before the Division Bench of the High

Court".

8. The Counsel for the plaintiff submits that the defendant no. 1 has field

written statement and after going through the written statement, it was

found that the contention of the defendant no. 1 is based on the alleged

Agreement dated 28th March, 2011. He submits the defendant no. 1 is

heavily relying upon the alleged Agreement dated 28th March, 2011. He

submits that while opposing the prayer for grant of interim order, the

defendant no. 1 had given an impression before this Court that the

plaintiff, on 28th March, 2011 had agreed to sell her share of 1050 sq.ft.

of commercial space in the building to be constructed by the defendant

no. 1 and one car parking space thereat to the defendant no. 1 for a

consideration amount of Rs. 1,08,00,000/- along with the defendant

no. 2 with Vidya Devi Chamaria.

9. Learned Counsel for the plaintiff submits that a bare perusal of the

alleged agreement, it is evident that there is clear interpolation made in

the alleged agreement. He submits that the alleged agreement more

particularly the date has been interpolated and tampered to give an

impression that the alleged agreement was executed on 28th March,

2011. He submits that from the records of proceedings, it is clearly

established that there was already a decree in favour of the plaintiff

based on the terms of settlement, passed by this Court dated 23rd

March, 2011 and thus there was no occasion or reason for the plaintiff

to surrender her rights and interest under such decree and agreeing to

sell the said 1050 sq.ft in the commercial building together with car

parking.

10. Learned Counsel for the plaintiff submits that the recording in the

alleged agreement that on passing of the decree the owners will become

entitled to super built up area is also contradictory and fraudulent

inasmuch as by 28th March, 2011, being the alleged date of execution

of the alleged agreement, a decree had already been passed by this

Court on the basis of the trems of settlement in favour of the plaintiff.

He submits that the defendant no. 1 and its partners are guilty of

fabricating false evidence. He submits that the defendant no. 1 has

produced the alleged agreement dated 28th March, 2011 to mislead this

Court and to get favourable order. He submits that the defendant no. 1

and its partners had the knowledge that the alleged agreement is false

and fabricated but knowing that the same has been used in the

proceeding before this Court as true and genuine evidence, to persuade

this Court to form an erroneous opinion while passing the order dated

18th September, 2023.

11. Learned Counsel for the plaintiff submits that the act of filing

fabricated and forged documents and placing them as part of the record

of the Court tantamount to prevention of administration of justice.

12. Learned Counsel for the plaintiff has relied upon the judgment in the

case of Pritish -vs- State of Maharashtra & Ors. reported in (2002)

1 SCC 253 and submitted that the person against whom the complaint

is made has a legal right to be heard whether he should be tried for the

offence or not but such legal right is envisaged only when the

Magistrate calls the accused to appear before him. He submits that the

scheme delineated clearly shows that there is no statutory requirement

to afford an opportunity of hearing to the person against whom that

court might file a complaint before the Magistrate for initiating

prosecution proceeding.

13. Counsel for the plaintiff also relied upon an unreported judgment

passed by the Coordinate Bench of this Court in the case of Al Amin

Garments Haat Pvt. Ltd. -vs- Jitendra Jain and Anr. being SCO No.

1 of 2023 dated 5th January, 2024 and submitted that the proposed

accused do not have a right of hearing at the stage of inquiry i.e. under

Section 340 (1) of the Code of Criminal Procedure, 1973.

14. Though this Court has not heard the defendants in the present

application on merit but the Learned Counsel for the defendants had

only argued on the point of maintainability of the present application

and has relied upon the following judgments:

i. 2019 SCC OnLine Del 11519 (Dharampal Satyapal Sons Pvt. Ltd. & Anr. -vs- IFB Agro Industries Ltd.).

ii. 2024 SCC OnLine Cal 1525 (Brand Street -vs-

West Bengal State Electricity Distribution Company Limited & Ors.).

iii. MANU/WB/0830/2023 (Subham Roy Choudhury & Ors. -vs- Sreejoyee Chakraborty & Ors.).

iv. 2013 SCC OnLine Del 1862 (Dheeraj Singh Rana -vs- State (NCT of Delhi) & Anr.).

v. (2005) 4 SCC 370 (Iqbal Singh Marwah & Anr.

-vs- Meenakshi Marwah & Anr.).

vi. 2014 SCC OnLine Del 4484 (Mr. Vishal Kapoor v. Mrs. Sonal Kapoor).

15. The plaintiff has filed the present application under Section 340 of the

Code of Criminal Procedure, 1973 on the ground that at the time of

hearing of the application filed by the plaintiff for grant of interim order

on 18th September, 2023, the defendant no.1 in the course of hearing

for the first time relied upon the an agreement dated 28th March, 2011

alleged to have been executed between defendant no.1 and Youdhistir

Dhanania, Vidya Devi Chamaria and the plaintiff. The plaintiff has also

cause inspection of the alleged original agreement dated 28th March,

2011 and the plaintiff came to know that there is interpolation in the

said agreement. The defendant no.1 has filed written statement to the

plaint and relied upon the agreement dated 28th March, 2011. The

defendant no.1 by relying upon the alleged agreement had given an

impression upon this Court that the plaintiff had agreed to sell her

share of 1050 Sq.ft. of commercial area in the building to be

constructed by the defendant no.1 and one car parking space thereat to

the defendant no.1 for the consideration amount of Rs. 1,08,00,000/-

along with defendant no.2 and Vidya Devi Chamaria.

16. This Court by an order dated 18th September, 2023, has passed the

following order:

"In the aforesaid facts and circumstances, without going into the issue at this stage as to whether the promise made by the defendant no.1 was to allow 1050 sq.ft. super built up area approximately with a car parking space in a fully commercial building or in a building having partly commercial and partly residential use, I injunct the defendant no.1, its men, servants, agents and/or assigns from alienating, encumbering, dealing with or disposing of or create any third party interest in respect of an office space measuring about 1050 sq.ft. super built up area and a car parking space at the ground floor of the proposed building at 46, Shakespeare Sarani, Kolkata - 700 017. Once the construction of the commercial portion commences, the defendant no.1 shall also in writing indicate to the plaintiff the exact location of 1050 sq.ft. super built up area and the car parking space to be allotted to the plaintiff and shall before handing over possession of any portion in the commercial portion shall hand over the plaintiff's allocation with the car parking space .

The matter requires further scrutiny. Let affidavits be filed.

Let affidavit in opposition be filed by 4th October, 2023. Affidavit in Reply thereto, if any, be filed by 18th October, 2023."

17. The plaintiff has preferred an appeal against the order dated 18th

September, 2023 and has moved an application for grant of injunction

but the Hon'ble Division Bench has not granted any interim order and

granted leave to the plaintiff to file supplementary affidavit. Being

aggrieved with the order passed by the appellate Court dated 19th

December, 2023, the plaintiff has preferred Special Leave Petition

before the Hon'ble Supreme Court but the Hon'ble Supreme Court has

not interfered with the order dated 19th December, 2023, passed by the

appellate Court and passed the following order:

"We are not inclined to interfere with the impugned judgment and hence, the special leave petition is dismissed.

However, we clarify that the dismissal of the special leave petition will have no bearing on the civil suit and proceedings pending before the Division Bench of the High Court.

Pending application(s), if any, shall stand disposed of."

18. Now the appeal is pending before the Appellate Court. The main

contention of the plaintiff is that the defendant no.1 has relied upon the

alleged agreement dated 28th March, 2011, wherein the date of the

agreement is interpolated and the said agreement is forged and

fabricated documents. The defendant by relying upon the said

document had succeeded in defeating the plaintiff for getting

appropriate interim order.

19. Section 340 of the Code of Criminal Procedure, 1973, reads as follows:

"340. Procedure in cases mentioned in section 195.--(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests 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 152 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. (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; 1

[(b) in any other case, by the presiding officer of the Court or by such officer of the Court as the Court may authorise in writing in this behalf.]

(4) In this section, "Court" has the same meaning as in section 195."

20. In the case of Iqbal Singh Marwah and Another Vs. Meenakshi

Marwah and Another reported in (2005) 4 SCC 370, the Hon'ble

Supreme Court held that:

"11. Section 195(1) mandates a complaint in writing to the court for taking cognizance of the offences enumerated in clauses (b)(i) and (b)(ii) thereof. Sections 340 and 341 CrPC which occur in Chapter XXVI give the procedure for filing of the complaint and other matters connected therewith. The heading of this Chapter is -- "Provisions as to Offences Affecting the Administration of Justice".

Though, as a general rule, the language employed in a heading cannot be used to give a different effect to clear words of the section where there cannot be any doubt as to their ordinary meaning, but they are not to be treated as if they were marginal notes or were introduced into the Act merely for the purpose of classifying the enactments. They constitute an important part of the Act itself, and may be read not only as explaining the sections which immediately follow them, as a preamble to a statute may be looked to explain its enactments, but as affording a better key to the constructions of the sections which follow them than might be afforded by a mere preamble. (See Craies on Statute Law, 7th Edn., pp. 207, 209.) The fact that the procedure for filing a complaint by court has been provided in Chapter XXVI dealing with offences affecting administration of justice, is a clear pointer to the legislative intent that the offence committed should be of such type which directly affects the administration of justice viz. which is committed after the document is produced or given in evidence in court. Any offence committed with respect to a document at a time prior to its production or giving in evidence in court cannot, strictly speaking, be said to be an offence affecting the administration of justice.

23. In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section is conditioned by the words "court is of opinion that it is expedient in the interests of justice". This shows

that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the court may not consider it expedient in the interest of justice to make a complaint. The broad view of clause (b)(ii), as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged document remediless. Any interpretation which leads to a situation where a victim of a crime is rendered remediless, has to be discarded."

21. In the case of Amarsang Nathaji vs. Hardik Harshadbhai Patel &

Ors. reported in (2017) 1 SCC 113, the Hon'ble Supreme Court held

that:

"6. The mere fact that a person has made a contradictory statement in a judicial proceeding is not by itself always sufficient to justify a prosecution under Sections 199 and 200 of the Penal Code, 1860 (45 of 1860) (hereinafter referred to as "IPC"); but it must be shown that the defendant has intentionally given a false statement at any stage of the judicial proceedings or fabricated false evidence for the purpose of using

the same at any stage of the judicial proceedings. Even after the above position has emerged also, still the court has to form an opinion that it is expedient in the interests of justice to initiate an inquiry into the offences of false evidence and offences against public justice and more specifically referred to in Section 340(1) CrPC, having regard to the overall factual matrix as well as the probable consequences of such a prosecution. (See K.T.M.S. Mohd. v. Union of India [K.T.M.S. Mohd. v. Union of India, (1992) 3 SCC 178 : 1992 SCC (Cri) 572] ). The court must be satisfied that such an inquiry is required in the interests of justice and appropriate in the facts of the case.

7. In the process of formation of opinion by the court that it is expedient in the interests of justice that an inquiry should be made into, the requirement should only be to have a prima facie satisfaction of the offence which appears to have been committed. It is open to the court to hold a preliminary inquiry though it is not mandatory. In case, the court is otherwise in a position to form such an opinion, that it appears to the court that an offence as referred to under Section 340 CrPC has been committed, the court may dispense with the preliminary inquiry. Even after forming an opinion as to the offence which appears to have been committed also, it is not mandatory that a complaint should be filed as a matter of course.

(See Pritish v. State of Maharashtra [Pritish v. State of Maharashtra, (2002) 1 SCC 253 : 2002 SCC (Cri) 140] ."

22. The Supreme Court in the case of K.T.M.S. Mohd. Vs. Union of India

reported in (1992) 3 SCC 178 has held as under:-

''35. In this context, reference may be made to Section 340 of the Code of Criminal Procedure under Chapter XXVI under the heading "Provisions as to Offences Affecting the Administration of Justice". This section confers an inherent power on a court to make a complaint in respect of an offence 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, if that court is of opinion that it is expedient in the interest of justice that an enquiry should be made into an offence referred to in clause (b) of subsection (1) of Section 195 and authorises such court to hold preliminary enquiry as it thinks necessary and then make a complaint thereof in writing after recording a finding to that effect as contemplated under sub-section (1) of Section 340. The words "in or in relation to a proceeding in that court" show that the court which can take action under this section is only the court operating within the definition of Section 195(3) before which or in relation to whose proceeding the offence has been committed. There is a word of caution inbuilt in that provision itself that the action to be taken should be expedient in the interest of justice. Therefore, it is incumbent that the power given by Section 340 of the Code should be used with utmost care and after due consideration. The scope of Section 340(1) which corresponds to Section 476(1) of the old Code was examined by this Court in K. Karunakaran v. T.V.

Eachara Warrier and in that decision, it has observed:

"At an enquiry held by the Court under Section 340(1), Cr.P.C., irrespective of the result of the main case, the only question is whether a prima facie case is made out which, if unrebutted, 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 two per-conditions are that the materials produced before the High Court make out a prima facie case for a complaint and secondly that it is expedient in the interest of justice to permit the prosecution under Section 193 IPC."

36. The above provisions of Section 340 of the Code of Criminal Procedure are alluded only for the purpose of showing that necessary care and caution are to be taken before initiating a criminal proceeding for perjury against the deponent of contradictory statements in a judicial proceeding.''

23. The Supreme Court in the case of Pankaj Chaudhary reported in

(2019) 11 SCC 575 has held as under:-

''49. There are two preconditions for initiating proceedings under Section 340 Cr.P.C.:

(i) materials produced before the court must make out a prima facie case for a complaint for the purpose of inquiry into an offence referred to in clause (b)(i) of sub-section (1) of Section 195 Cr.P.C., and

(ii) it is expedient in the interests of justice that an inquiry should be made into the alleged offence."

24. The mere fact that a person has made a contradictory statement in a

judicial proceeding is not by itself always sufficient to justify a

prosecution under Sections 199 and 200 of the Indian Penal Code, but

it must be shown that the defendant has intentionally given a false

statement at any stage of the judicial proceedings or fabricated false

evidence for the purpose of using the same at any stage of the judicial

proceedings. Even after the above position has emerged also, still the

Court has to form an opinion that it is expedient in the interests of

justice to initiate an inquiry into the offences of false evidence and

offences against public justice and more specifically referred to in

Section 340(1) Cr.P.C., having regard to

the overall factual matrix as well as the probable consequences of such

a prosecution. The Court must be satisfied that such an inquiry is

required in the interests of justice and appropriate in the facts of the

case.

25. In the process of formation of opinion by the Court that it is

expedient in the interests of justice that an inquiry should be made

into, the requirement should only be to have a prima facie satisfaction

of the offence which appears to have been committed. It is open to the

Court to hold a preliminary inquiry though it is not mandatory. In case,

the Court is otherwise in a position to form such an opinion, that it

appears to the Court that an offence as referred to under Section 340

of Cr.P.C has been committed, the Court may dispense with the

preliminary inquiry. Even after forming an opinion as to the offence

which appears to have been committed also, it is not mandatory that a

complaint should be filed as a matter of course.

26. It has been consistently held by the Court that prosecution for perjury

be sanctioned by the courts only in those cases where perjury appears

to be deliberate and that prosecution ought to be ordered where it

would be expedient in the interest of justice to punish the delinquent

and not merely because there is some inaccuracy in the statement. In

Chajoo Ram v. Radhey Shyam, the Hon'ble Apex Court held as under:

"The prosecution for perjury should be sanctioned by courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which

may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge. In the present case we do not think the material brought to our notice was sufficiently adequate to justify the conclusion that it is expedient in the interests of justice to file a complaint. The approach of the High Court seems somewhat mechanical and superficial:

it does not reflect the requisite judicial deliberation...."

27. In the present case, the case of the plaintiff is that the defendant no.1

has relied upon a forged agreement dated 28th March, 2011 wherein

specifically the date of the agreement is manipulated and due to the

said alleged forged agreement, the plaintiff could not get the interim

order which the plaintiff has prayed for. It is also the case of the

plaintiff that the there was a decree in favour of the plaintiff based on

Terms of Settlement passed by this Court dated 23rd March, 2011 and

thus there is no occasion or any reason for the plaintiff to enter into

any agreement to surrender her right and interest in terms of the forged

agreement.

In the order dated 18th September, 2023, this Court has recorded

that this Court find that there is an agreement between the plaintiff

and the defendant no.1, that the defendant no.1 will provide a

commercial space measuring about 1050 sq.ft super built up area and

a car parking space to the plaintiff, but simultaneously this Court also

recorded that without going into the issue at this stage as to whether

the promise made by the defendant no.1 was to allot 1050 sq.ft super

built up area with car parking space in a fully commercial building

having partly commercial and partly residential use, this Court pass an

interim order against the defendant.

28. This Court had given liberty to the parties to exchange affidavits. The

defendants have to prove the Agreement dated 28th March, 2011 at the

appropriate stage as the plaintiff has denied execution of the said

agreement. It is settled law that mere a person making contradictory

statement in a judicial proceedings is not by itself sufficient to justify

the prosecution under Section 199 and Section 200 of the Indian Penal

Code, 1960 but it must be shown that the defendants have

intentionally given a false statement in any stage of judicial

proceedings. Even after the above position has emerged, still the Court

has to form an opinion that it is expedient in the interest of justice to

initiate an inquiry into the offences of false evidence and offences

against the public justice as referred in Section 340(1) of the Code of

Criminal Procedure, 1973, having regard to the overall factual matrix

as well as probable consequences of such prosecution. The Court must

be satisfied that such an inquiry is required in the interest of justice

and appropriate in the facts of the case.

29. In the present case, the allegation is that the defendants have relied

upon the agreement in which the date has been interpolated. The

defendants have filed his written statement on the basis of the said

agreement. In the suit, mere disclosure of document it cannot be said

that the document is proved. The party who relied upon the document

is required to prove in accordance with law unless the same is not

admitted. The document is to be proved by way of evidence. The suit

has not reached at the sage of evidence and the plaintiff will get an

opportunity to cross-examine the witness who will produce the

document.

30. Considering the above, this Court at this stage did not find any prima

facie case for the purpose of inquiry into an offence and also at this

stage it is not expedient in the interest of justice that an inquiry should

be made into the alleged offence.

31. In view of the above, G.A. No. 5 of 2024 is dismissed.

(Krishna Rao, J.)