Smt. Sarita Lamba vs Shri Satish Jassal And Anr.
2005 Latest Caselaw 473 Del

JUDGMENT

T.S. Thakur, J.

1. OMP 112/2000 was a petition under Section 9 of the Arbitration and Conciliation Act, 1996 filed by Smt. Sarita Lamba against Shri Satish Jassal and another seeking among other reliefs an ad interim injunction restraining the respondents from alienating, transferring or parting with the possession of the disputed premises or any portion thereof. The petition was opposed by the respondents and was eventually dismissed by Justice Mukul Mudgal by order dated 11.09.2000. An appeal filed against the said order registered as FAO (OS)279/2000, was decided on 6th August, 2003 with the direction that the interim application made by the appellant be considered by the arbitrator as the disputes between the parties had, in the meantime, been referred to Justice S.S Chadha as sole arbitrator in terms of an order dated 18th March, 2003 passed under Section 11 of the Act afore-mentioned. The arbitrator appears to have accordingly heard the interim application and by order dated October 13, 2003 recorded the statement of respondent No. 1 that the properties in question were owned by him and were unencumbered and that he would not sell, assign, charge, mortgage or transfer the same in any manner except lease out the same after obtaining permission of the arbitrator.

2. It was during the pendency of the above arbitration proceedings that Cr. M. No. 2622/2004 was filed by the petitioner Smt. Sarita Lamba in which it was inter alia alleged that respondent No. 1 Satish Jassal had on 1st March, 2003 tendered a receipt dated 1st February, 1996 by which he claimed to have paid a sum of Rs. Five lakhs to Smt. Saroj Devi in respect of plot No. 700-A, Village Lado Sarai, Tehsil Mehrauli, New Delhi which constitutes one of the items of property in dispute between the parties. The petitioner's case in the application is that the said receipt is a forged and fabricated document that was filed and relied upon before this court as also before the arbitrator. It is alleged that the receipt in question was forged, fabricated and Manipulated by respondents No. 1 and 2 with a view to hoodwinking this court as also the arbitrator and to pervert the course of justice. The respondent had, according to the petitioner, thereby committed offences punishable under Sections 193, 196, 209, 463 and 471 of the IPC read with Section 195(1) and (2) and 340 of the Cr.P.C. The application prays for an inquiry into the alleged forgery, fabrication and falsification of the documents and for prosecution of the respondents by filing a complaint before the Magistrate competent to try them.

3. The respondents have filed their objections and stoutly denied the allegations made in the application. It is alleged that the receipt in question is a genuine and bona fide document having been executed on 1st February, 1996 by Smt. Saroj Devi under her own signatures. Smt. Saroj Devi is said to have acknowledged the correctness of the receipt and asserted that she has received a sum of Rs. Five lakhs from the respondent Satish Jassal and not from Smt. Sarita Lamba whom she did not know. The objections also refute the allegations made in para 13 (A) to (F) of the application and assert that the document in question is genuine and that there was no room for holding the same to be fabricated so as to call for any inquiry and consequent direction for prosecution of the respondents.

4. There is a similar request made for an inquiry under Section 340 Cr.P.C. even by Shri Satish Jassal in Crl.M. No. 2469/2005. The case of the applicant in the said application is that the documents which Smt. Sarita Lamba had filed along with her rejoinder were forged and fabricated. These documents have been identified by the applicant to be the delivery challans and bills issued by M/s. Durga Building Material Supplier. The applicant has inter alia asserted that the vouchers and all other documents suggesting payment of money to Mr. Mahesh Rai or to the building contractor by Smt. Sarita Lamba are false and fabricated. An inquiry into the genuineness of these documents under Section 340 Cr.P.C. has, therefore, been demanded by the applicant with a prayer that Smt. Sarita Lamba be prosecuted for offences committed under Section 193, 196, 209, 463 and 471 of the IPC read with Section 195(1)b of the Cr.P.C.

5. I have heard learned counsel for the parties and perused the record. Both the parties in OMP 112/2000 appear to have supported their respective versions by filing documents upon which they place reliance. Both of them accuse each other of having fabricated the said documents. Both demand an inquiry into the genuineness of the documents and prosecution of the party responsible for forgery and fabrication of the same. This court while disposing of the OMP or the appeal preferred against the order of the learned Single Judge, did not scrutinize the documents in question nor has it expressed any opinion regarding the genuineness thereof. Even before the arbitrator, the documents in question do not appear to have been examined from that angle. Whether or not any of the documents which the parties have pressed into service are fabricated and if so, who has forged or fabricated the same is, therefore, a matter which remains open before this court as also before the arbitrator. It is not clear whether the arbitrator has finally concluded the proceedings and made his award. Even if, the award has been made and the same has been challenged by the aggrieved party before this court, the question whether and if so, which of the documents relied upon by the parties is forged and fabricated may fall for consideration of the court in the proceedings under Section 34 of the Arbitration and Conciliation Act, 1996. The prayer for holding an inquiry into the genuineness of the documents, proceedings in relation to which documents are still pending appears to be premature. The proper course for the parties is to urge the question regarding fabrication of the documents either before the arbitrator if he is still seized of the matter or in the proceedings under Section 34 where the award made by him may be under challenge. There is no gainsaying that if any such plea is raised by the parties, the court may, if necessary, have to go into the genuineness of the documents unless it considers it wholly irrelevant for purposes of deciding the controversy before it. Depending upon the finding which the court may record on any such issue raised before it, a suitable direction regarding prosecution of the party responsible for forging the documents can follow. A parellel inquiry into the genuineness of the documents which the arbitrator or the court may be examining in the process of adjudicating upon the disputes between the parties, appears to me to be unnecessary. Besides an inquiry under Section 340 Cr.P.C. is necessary only if the same is in the opinion of the court expedient in the interests of justice. An inquiry cannot be launched merely because a party wishes to vindicate his or her personal vendetta against the opposite party. It is also evident from the scheme of Section 340 and the language employed therein that the court will not embark upon an inquiry only to act as an investigating agency. It would indeed be impracticable for the court to enquire into every allegation of fabrication or perjury made in the course of judicial proceedings. The court must also be reasonably satisfied about the probability of establishing the charge sought to be leveled against the opposite party before it can direct such prosecution to be launched.

6. Suffice it to say that an inquiry into the allegations of perjury does not follow as a matter of course and just for the asking. It is only when the court is satisfied about the expediency of an inquiry or where the court in the course of proceedings before it prima case comes to the conclusion that it was expedient in the interests of justice to sanction that such an inquiry or investigation may be sanctioned. The present is not, in my opinion, a fit case in which this court ought to direct an inquiry at this stage for two reasons namely (i) because the court has not, in the proceedings so far heard and disposed of, recorded any finding or expressed any doubt about the genuineness of the documents placed before it and (ii) because the question whether anyone of the documents relied upon by the parties is or is not forged, has yet to be examined by the court while examining the rival versions and claims of the parties in proceedings under Section 34 of the Arbitration and Conciliation Act, 1996. It shall be, as observed above, open to both the parties to urge before this court as also before the arbitrator whether or not any of the documents is forged who may then examine the said contention and record a finding. Should the court, in the context of the material on record and the nature of the allegations of forgery, consider it to be expedient in the interests of justice to direct prosecution, the needful can be ordered while disposing of the proceedings finally under Section 34 or in a separate application that the parties shall be free to move after the proceedings are finally settled.

7. With the above observation, both these applications fail and are hereby dismissed.