Madhya Pradesh High Court

Pradeep Kumar Arya vs The State Of Madhya Pradesh on 8 October, 2021

Author: Rajeev Kumar Shrivastava

                                 1
                                   M.Cr.C. No. 47977/2021
             (Pradeep Kumar Arya Vs. State of M.P. & others)

          HIGH COURT OF MADHYA PRADESH
                BENCH AT GWALIOR

                          SINGLE BENCH:


             Misc. Criminal Case No. 47977/2021
                         Pradeep Kumar Arya
                                Vs.
                      State of M.P. & others
                    ********************
CORAM

         Hon. Shri Justice Rajeev Kumar Shrivastava

                    ********************
Appearance

      Shri Atul Gupta, learned counsel for the petitioner.
      Shri Nirmal Sharma, learned Public Prosecutor for
respondent No.1/State.
      Shri Sameer Kumar Shrivastava, learned counsel for
respondents No.2 & 3.
                    ********************
Whether approved for reporting : Yes.

                    ********************
Reserved on : 05/10/2021


                           ORDER

(Passed on 08/10/2021)

This petition under Section 482 of the Code of Criminal

Procedure read with Section 340 of Cr.P.C. has been preferred by

the petitioner for conducting enquiry in respect to forged

M.Cr.C. No. 47977/2021 (Pradeep Kumar Arya Vs. State of M.P. & others)

documents filed in M.Cr.C. No.28033/2021 (Keshav Singh

Chauhan Vs. State of M.P.) in connection with Crime

No.163/2020 registered at Police Station Hazira, District Gwalior,

which was withdrawn on 27/07/2021.

2. It is undisputed fact that aforementioned M.Cr.C.

No.28033/2021 was dismissed as withdrawn on 27/07/2021.

3. Petitioner has preferred this petition seeking invocation of

inquiry against respondents No.2 & 3, namely, Keshav Singh

Chauhan & Nitin Chauhan, under Section 340 r/w Section 195(1)

(b) of Cr.P.C., as they had committed the act of perjury by

intentionally disclosing false information and attaching forged

documents knowing that the same records are being submitted in

relation to Court proceedings before this Court. The act

tantamount to giving false information and committing an act of

forgery so as to hamper the course of public justice and therefore,

falls within the purview of offence mentioned under Section

195(1)(b) of Cr.P.C.

4. The facts of this case in short are that the petitioner, who is

the complainant for the purpose of FIR bearing crime

No.163/2020 registered at police station Hazira, Distt. Gwalior,

has levied charges under Sections 420, 467, 468, 471, 120-B of

IPC and Section 6 of Chit Fund Act, against respondents No.2 -

Keshav Singh Chauhan and two others. Respondent No.2- Keshav

M.Cr.C. No. 47977/2021 (Pradeep Kumar Arya Vs. State of M.P. & others)

Singh Chauhan after registration of FIR was taken into custody

and had applied for bail before the Court below which was

dismissed on 21/05/2021. Against that order, the bail application

bearing M.Cr.C. No.28033/2021 was preferred by respondent

No.2 before this Court on 07/06/2021. Subsequently, respondent

No.2 filed an application bearing I.A. No.18782/2021 in the

aforesaid M.Cr.C. for taking additional documents on record along

with affidavit of respondent No.3- Nitin Chauhan. Respondent

No.3 has annexed Annexure-N which states that as per the Shop

and Establishment Act, Umeed Co-operation Producer Company

Limited has been registered in the name of Devarshi Sharma S/o

Shri Pradeep Sharma, and description of same document has also

been provided by the respondents in internal paragraph-6 of page

No. 10 of Annexure-P/3 of this petition. Copy of Annexure-N is

annexed herewith this petition and marked as Annexure-P/4. It is

the contention of the petitioner that the respondents have produced

the forged documents, rather on the contrary Umeed Co-operation

Producer Company was registered in the name of Kiran Chauhan

W/o Keshav Singh Chauhan. The respondents had filed forged

documents before this Court which they knew was false with an

intention to deceive this Court. The sole intention of producing the

false information was to mislead and to deceive the Court

proceedings and to obtain a relief which the respondents otherwise

M.Cr.C. No. 47977/2021 (Pradeep Kumar Arya Vs. State of M.P. & others)

would not have been entitled for.

5. Devarshi Sharma, who is the son of present petitioner, had

received information through RTI that the said shop has been

registered in the name of Kiran Chauhan, who is the wife of

respondent No.2 and mother of respondent No.3. Copy of

information received through RTI is annexed as Annexure-P/5.

Therefore, the respondents have committed the offence under

Sections 193 & 196 of Indian Penal Code. Respondent No.2 -

Keshav Singh Chauhan, is a person having criminal antecedents,

therefore petitioner prayed to initiate enquiry against respondents

No.2 & 3, namely Keshav Singh Chauhan & Nitin Chauhan under

Section 340 r/w Section 195(1)(b) of Cr.P.C.

6. Learned counsel for respondents No. 2 & 3 by filing reply

which is duly supported by affidavit, has objected the submissions

made by learned counsel for the petitioner and has submitted that

the instant petition filed by the petitioner - Pradeep Kumar Arya,

is not maintainable, as the petitioner himself is absconding in

Crime No. 234/2020 which was registered by victim Dr. Brajesh

Kumar Gaud at Police Station Padav, Distt Gwalior. In that case,

the FIR was registered on 15/06/2020 but even after lapse of more

than one year & three months, present petitioner is still

absconding. Therefore, petition under Section 482 of Cr.P.C. at the

instance of absconding person cannot be entertained. The present

M.Cr.C. No. 47977/2021 (Pradeep Kumar Arya Vs. State of M.P. & others)

petition filed by the petitioner is not supported by affidavit.

7. Learned counsel for respondents No.2 & 3 has further

submitted that son of petitioner, namely Devarshi Sharma, is

accused in FIR bearing Crime No.22/2019 registered at Police

Station Hazira, Distt. Gwalior for the very same company which is

under dispute in this case and he is also absconding. The said FIR

has been registered on 25/01/2019 whereas as per Annexure-P/5

filed in this petition, information through RTI has been obtained

by Devarshi Sharma on 27/12/2019. Hence, it is clear that the

instant petition has been filed by the persons who are absconding

and have not submitted themselves to the course of justice,

therefore, this instant petition on behalf of absconding person

cannot be entertained and is liable to be dismissed with cost.

8. In parawise reply, it is submitted by learned counsel for

respondents No.2 & 3 that no enquiry under Section 340 r/w

Section 195(1)(b) of Cr.P.C. is required in the present facts and

circumstances of the case. No false information has been provided

by the answering respondents. In fact, it is the present petitioner

who has not come with clean hands and therefore this instant

petition is liable to be dismissed with heavy cost. It is also

submitted that the FIR lodged by Pradeep Kumar Arya was

nothing but an abuse of process of law and Pradeep Kumar Arya is

the main kingpin behind the entire fraud and respondents No.2 &

M.Cr.C. No. 47977/2021 (Pradeep Kumar Arya Vs. State of M.P. & others)

3 are being made escape-goat in the process. The petitioner has not

informed this court that he himself is accused in Crime No.

234/2020 registered at Police Station Padav, Distt. Gwalior on

15/06/2020. Therefore, it is clear that the petitioner is absconding

and hence no relief can be granted to a person who is absconding

from the course of justice. It is further submitted that all the

documents annexed with I.A. No.18782/2021 filed by the

respondents No.2 & 3 were correct and true to the best knowledge

of the answering respondents.

9. Respondents No. 2 & 3 had filed Annexure-N which was

registration certificate issued under M.P. Shops and Establishment

Act in which for the company, namely, Umeed Co-operation

Producer Company Limited, name of Devarshi Sharma, who is

son of the present petitioner, was mentioned. That certificate was

given by Devarshi Sharma himself to respondent No.3 and even a

certified copy of the certificate was provided by Devarshi Sharma

to respondent No.3 which is in possession of answering

respondents. The answering respondents is having certified copy

of the certificate in which name of Devarshi Sharma is reflecting.

10. Along with this reply, coloured photocopy of certificate

Annexure-N has been filed which is annexed as Annexure-R/1

wherefrom it is evident that the same is certified by the Labour

Department and a valid number has been given to the certificate. It

M.Cr.C. No. 47977/2021 (Pradeep Kumar Arya Vs. State of M.P. & others)

is further submitted on behalf of respondents No.2 & 3 that as

submitted in the original bail application as well as in I.A.

No.18782/2021, the main mastermind behind the company and

this entire case is the present petitioner, therefore he is in

possession of all the documents of the company and further he

himself has got the manipulation done in the record in order to

falsely implicate the respondents No.2 & 3. It is further submitted

that Devarshi Sharma is also absconding in FIR registered at

Crime No. 22/2019 at Police Station Hazira, Distt. Gwalior and

therefore, it is beyond understanding that an absconding person is

applying for RTI in District Gwalior but is not being arrested by

the Police which clearly shows that the petitioner and his son are

hands in gloves with the police. It is further submitted that RTI

information Annexure-P/5 which the petitioner is relying is not the

complete information. From the perusal of covering letter, it is

apparent that the information has been given on 27/12/2019.

Deliberately, no information was sought by the petitioner with

regard to the information of property in question as regards the

entry in the record maintained under M.P. Shops and

Establishment Act as on today. The reason is obvious because as

of now the records further have been changed and name of one

Praveen Kumar Rohila resident of Delhi is entered in the record.

Admittedly, the answering respondents are in custody and

M.Cr.C. No. 47977/2021 (Pradeep Kumar Arya Vs. State of M.P. & others)

therefore there is no possibility that the present applicant will get

the name changed in the record and in all likelihood it is the

present petitioner who in order to save himself has now further

changed the records. Copy of the certificate granted under Shops

and Establishment Act of Praveen Kumar Rohila is annexed

herewith and marked as Annexure-R/2. It is further submitted that

recently respondents have taken the copy of recent certificate of

Praveen Kumar Rohila. Copy of the coloured photocopy of

certified copy of Praveen Kumar Rohila is annexed herewith and

marked as Annexure-R/3.

11. It is further submitted that the present petitioner has only

given the certificate Annexure-N to the answering respondents in

order to show that the business is registered under their name. In

the FIR registered at Crime No. 234/2020, it is clearly mentioned

that the shop is registered in the name of Devarshi Sharma.

Therefore, it is clear that it was the petitioner and his son Devarshi

Sharma who were behind all these frauds and they managed to get

the certificate in the name of Kiran Chauhan who is wife of

respondent No.2. Thereafter, they got mutated their own names in

the certificate but when the FIR was registered against Devarshi

Sharma on 25/06/2019 vide Crime No. 22/2019, they again got the

name changed and now as on today as per the best information of

the answering respondents, name of Praveen Kumar Rohila is

M.Cr.C. No. 47977/2021 (Pradeep Kumar Arya Vs. State of M.P. & others)

available in the records. Therefore, it is clear that no perjury of any

kind has been done.

12. On behalf of respondents No.2 & 3, it is further submitted

that incomplete information has been submitted by the petitioner

before this Court, since as per Annexure-P/5 seven documents

were given to the son of the petitioner; however, only one

document has been annexed with Annexure-P/5, which clearly

shows that the present petitioner is concealing material facts from

this Court. Further, even the information which is at page No. 39

of petition is incomplete, since if the statutory format of certificate

is seen, it will be clear that there are some other columns after

column No.6. Therefore it appears that only incomplete

information is being given by the petitioner. Even there is no

barcode on page No. 39 which is usually present on all certificates

which are now issued and therefore this creates heavy doubts on

the certificate relied by the petitioner. It is further submitted that

prima facie no case is made out under Sections 193, 196 of IPC

against the respondents No.2 & 3. As no correct information has

been submitted by the petitioner therefore, present petition

deserves to be dismissed. Hence, prayed to dismiss this petition.

13. Heard arguments advanced by learned counsel for the rival

parties and perused the available record.

14. Section 482 of the Code of Criminal Procedure reads as

M.Cr.C. No. 47977/2021 (Pradeep Kumar Arya Vs. State of M.P. & others)

under:-

"482. Saving for inherent power of High Court - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."

15. The powers of High Court under Section 482 of CrPC are

partly administrative and partly judicial. The Hon'ble Apex Court

in State of Karnataka vs. Muniswami [AIR 1977 SC 1489] held

that the section envisages three circumstances in which the

inherent jurisdiction may be exercised, namely, "to give effect to

an order under CrPC, to prevent abuse of the process of the court,

and to secure the ends of justice."

16. The jurisdiction under Section 482 CrPC is discretionary.

The Court may depend upon the facts of a given case. Court can

always take note of any miscarriage of justice and prevent the

same by exercising its powers under Section 482 of CrPC. It is

true that their powers are neither limited nor curtailed by any other

provisions of the Code. However, such inherent powers are to be

exercised sparingly and with caution.

17. It is also settled law that the inherent power under Section

482 of CrPC has to be exercised for the ends of the justice and

should not be arbitrarily exercised to cut short the normal process

of a criminal trial.

M.Cr.C. No. 47977/2021 (Pradeep Kumar Arya Vs. State of M.P. & others)

18. It is apparent from the perusal of record available that there

is no rebuttal on record that the petitioner and his son are

absconders. Annexure-P/5 filed by the petitioner is an incomplete

document and the document filed by respondents No.2 & 3, i.e.

Annexure-R/1, is a certified copy issued by the Labour Deparment

and is having valid number over the certificate. Therefore, it

cannot be said that Annexure-R/1 was a forged document and it is

clear that no forged document was produced before this Court.

19. Furthermore, Hon'ble Apex Court in the case of Prof.

Chintamani Malviya Vs. High Court of Madhya Pradesh,

[(2018) 6 SCC 151] has observed that prosecution should be

ordered under Section 340 r/w Section 195(1)(b)(i) of Cr.P.C.

when it is considered expedient in the interest of justice to punish

the delinquent, and there must be prima facie case of deliberate

falsehood on the matter of substance and the Court should be

satisfied that there is reasonable foundation for the charge.

20. In Prof. Chintamani Malviya (supra), Hon'ble Apex

Court has observed as under:-

"9.1. It has consistently been laid down by this Court that prosecution for perjury be sanctioned by Courts only in those cases where perjury appears to be deliberate and on a matter of substance and the conviction would reasonably be probable. Further, prosecution ought to be ordered when it would expedient in the interest of justice to punish the

M.Cr.C. No. 47977/2021 (Pradeep Kumar Arya Vs. State of M.P. & others)

delinquent and not merely because there is some inaccuracy in the statement. He placed reliance on the decision of this Court in Chajoo Ram v. Radhey Shyam and Another [(1971) 1 SCC 774] wherein this Court observed:-

"7. 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...." "

21. Similarly, in the case of Iqbal Singh Marwah & Anr. Vs.

Meenakshi Marwah & Anr. [(2005) 4 SCC 370], Hon'ble the

Supreme Court has observed as under:-

"23. In view of the language used in Section 340 Cr.P.C. the Court is not bound to make a

M.Cr.C. No. 47977/2021 (Pradeep Kumar Arya Vs. State of M.P. & others)

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 interest 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(i)(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,

M.Cr.C. No. 47977/2021 (Pradeep Kumar Arya Vs. State of M.P. & others)

would render the victim of such forgery or forged document remedyless. Any interpretation which leads to a situation where a victim of a crime is rendered remedyless, has to be discarded."

22. Section 340 of Cr.P.C. runs as under:-

"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 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;

(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."

M.Cr.C. No. 47977/2021 (Pradeep Kumar Arya Vs. State of M.P. & others)

23. Under Section 340 of Cr.P.C., the discretion vests with the

Court and the discretion required to be exercised under Section

340 of Cr.P.C. should be judiciously along with the observations

made by the Apex Court in the aforesaid judgments.

24. In view of the above annunciation of law, I am of the view

that present petition under Section 482 of Cr.P.C. is devoid of

merits as the petitioner and his son are absconders and no forged

document was produced by the respondents before this Court.

Respondents had produced copy of certified copy of document

which was certified by the labour officer and was having specified

document number. Therefore, being a public document, it cannot

be said that the document produced was forged, rather the

document produced along with present petition by the petitioner is

an incomplete document, therefore no presumption could be

gathered from the incomplete document produced by the

petitioner. Furthermore, no relief was sought by respondents No.2

& 3 against the petitioner in M.Cr.C. No. 28033/2021, which was

withdrawn, therefore no prima facie case is made out against

respondents no.2 & 3 under Sections 193 & 196 of IPC.