R.Munirathinam vs M.Gajendran
2021 Latest Caselaw 14609 Mad

                                                             Criminal O.P.Sr.No.3594 of 2021(Filing Number)

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               RESERVED ON : 14.07.2021

                                             DATE OF DECISION : 22.07.2021

                                                         CORAM :

                                            The Hon'ble Mr.JUSTICE M.SUNDAR


                                              Criminal O.P.Sr.No.3594 of 2021
                                                       (Filing Number)

                     R.Munirathinam                                            .. Petitioner


                                      Vs.

                     1.M.Gajendran
                     2.M.G.Vasanthakumar                                       .. Respondents


                               Criminal Original Petition is preferred under Section 482 of

                     Criminal Procedure Code seeking to direct a preliminary enquiry as

                     contemplated under section 340 Cr.P.C to proceed against the

                     respondents under section 195(1)(b) and to pass such other further orders

                     as may be necessary and thus render justice.


                                      For Petitioner      : Mr.D.Shivakumaran

                                                           ----


https://www.mhc.tn.gov.in/judis/
                     1/19
                                                                    Criminal O.P.Sr.No.3594 of 2021(Filing Number)

                                                                  ORDER

Captioned Criminal O.P Sr.No.3594 of 2021, which has been filed

with a prayer to direct a preliminary enquiry under section 340 of 'The

Code of Criminal Procedure, 1973 (2 of 1974)' {'Cr.P.C' for the sake of

brevity} for proceeding against aforementioned two respondents for a

purported offence under section 195(1)(b) of Cr.P.C, has been listed

before this Court under the cause list caption 'FOR

MAINTAINABILITY'.

2 Short facts sans unnecessary particulars and details, i.e.,

essential facts imperative for appreciating this order are as follows:

(a) Respondents 1 and 2 in captioned 'Criminal

Original Petition' {hereinafter 'Crl.OP' for the sake of

brevity} arraying themselves as petitioners 1 and 2

respectively filed a 'Original Petition' ('OP' for the sake

of brevity) in O.P.No.79 of 2020 on the file of this court

under section 11 of 'The Arbitration and Conciliation

Act, 1996 (Act 26 of 1996)', which shall hereinafter be

referred to as 'A and C Act' for the sake of brevity with a

https://www.mhc.tn.gov.in/judis/

Criminal O.P.Sr.No.3594 of 2021(Filing Number)

prayer to appoint a sole arbitrator to adjudicate upon

disputes that had arisen between them and other

contracting parties in relation to a 'partnership deed

dated 16.07.2019' (hereinafter 'said partnership deed' for

the sake of brevity).

(b) In the aforementioned OP under section 11

of A and C Act, sole petitioner in the captioned Crl.OP

was arrayed as second respondent. Aforementioned OP

under section 11 of A and C Act was pivoted on a

covenant / clause captioned 'Dispute Resolution' in the

said partnership deed, which provides for resolution of

disputes arising out of said partnership deed by

arbitration. In other words, aforementioned OP under

section 11 of A and C Act was predicated on the plea

that the dispute resolution clause in said partnership

deed serves an arbitration agreement between parties

within the meaning of section 2(1)(b) read with section

7 of A and C Act.

(c) The arbitration OP was resisted by

respondents therein primarily on the ground that said https://www.mhc.tn.gov.in/judis/

Criminal O.P.Sr.No.3594 of 2021(Filing Number)

partnership deed is a document that has been made by

making use of signatures obtained from respondents

therein in blank stamp papers. To be noted, signatures of

second respondent (petitioner in captioned Crl. OP) in

said partnership deed were not disputed. Transaction

between parties was also not disputed, but it was only

pleaded that some blank stamp papers signed at the time

of a loan transaction were used for preparing said

partnership deed.

(d) As the scope of a OP under section 11 of A

and C Act is very narrow, this court, placing reliance on

Mayavati Trading principle being law laid down by

Hon'ble Supreme Court in Mayavati Trading Private

Limited Vs. Pradyuat Deb Burman reported in (2019)

8 SCC 714 turning on sub section (6-A) of section 11 of

A and C Act disposed of the arbitration OP (after full

contest) in and by an order dated 18.02.2020. To be

noted, by this order, a retired Judge in the district

judiciary in Tamil Nadu was appointed as sole arbitrator

and the question regarding said partnership deed being https://www.mhc.tn.gov.in/judis/

Criminal O.P.Sr.No.3594 of 2021(Filing Number)

gotten up by using stamp papers said to have been

signed blank was left open to be decided by the Arbitral

Tribunal, as that would inter-alia turn on arbitral

tribunal ruling on its own jurisdiction.

(e) Aforementioned order made by this Court

in the abovesaid arbitration OP was assailed (inter-alia

by petitioner in captioned Crl.OP) by carrying the matter

to Hon'ble Supreme Court under Article 136 of the

Constitution of India by way of a Petition for Special

Leave to Appeal (C) No.11624 of 2020, but Hon'ble

Supreme Court refused to interfere with the order of this

court. In other words, the SLP was dismissed by Hon'ble

Supreme Court vide order dated 12.01.2021 inter-alia

observing that petitioners would be at liberty to raise all

the objections including validity of the agreement and

deeds before the Arbitrator.

(f) This court is now informed that arbitral

tribunal has commenced sittings, sittings are under way

and arbitral tribunal has also made some orders inter-

alia ruling on its own jurisdiction.

https://www.mhc.tn.gov.in/judis/

Criminal O.P.Sr.No.3594 of 2021(Filing Number)

(g) In the aforesaid circumstances, captioned

Crl.OP has been filed in this court on 27.01.2021 with a

prayer to direct a preliminary enquiry under section 340

of Cr.P.C for a purported / alleged offence under section

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

3 This Court heard Mr.D.Shivakumaran, learned counsel for

petitioner elaborately on maintainability and perused the case file. The

points urged in the hearing by learned counsel, points raised in the

Crl.OP, discussion of the same and dispositive reasoning qua the same

are set out infra in this order in the paragraphs to follow.

4 It was urged that a mortgage deed dated 13.10.2018 has

been executed in a non judicial stamp paper of posterior date 16.11.2018.

A royalty agreement dated 31.03.2019 has also been executed on a non

judicial stamp paper of posterior date 01.06.2019 and all these form part

of a loan transaction between parties which is admitted is his further say.

To be noted, the petitioner in captioned Crl.OP does not dispute that he

had borrowed from respondents, but with regard to said partnership deed,

it is submitted that non judicial stamp paper dated 16.07.2019 has been https://www.mhc.tn.gov.in/judis/

Criminal O.P.Sr.No.3594 of 2021(Filing Number)

purchased from the same vendor in Dharmapuri District and the

preamble portion says the document was executed in Salem District on

16.07.2019, but the last page shows that it has been notarized in Chennai.

This argument does not impress this court as in the arbitration OP under

section 11 of A and C Act, this court was concerned only with the

partnership deed dated 16.07.2019 in which there is a arbitration clause.

As far as said partnership deed is concerned, the date of non judicial

stamp paper and date of document are same, i.e., 16.07.2019. In any

event, whether this is a gotten up document was an issue which is left

open to be decided by arbitral tribunal vide order of this Court in the OP

under section 11 of A and C Act and as alluded to supra, Hon'ble

Supreme Court has also dismissed the SLP assailing the order of this

court.

5 As mentioned supra in the narrative of facts, this court was

informed that arbitral tribunal is in seizin of this issue and some orders

inter-alia ruling on its own jurisdiction have also been made, but it is not

necessary to delve or plough further into these facts and trajectory as the

same are not germane to the instant Crl.OP on hand. Regarding other

documents, such as mortgage deed and royalty agreement, they are all https://www.mhc.tn.gov.in/judis/

Criminal O.P.Sr.No.3594 of 2021(Filing Number)

matters on merit which are in the purview of arbitral tribunal. This court

is informed that the arbitral tribunal is in seizin of the matter and has also

made some orders inter-alia ruling on its jurisdiction. Therefore, this

argument that there was a simple loan transaction between parties, blank

stamp papers signed by petitioners while borrowing have been used to

create said partnership deed and some other documents does not hold

water in instant Crl.OP.

6 As already alluded to supra, this court is not concerned with

the mortgage deed or royalty agreement as they are in the purview and

realm of disputes before the arbitral tribunal.

7 The next point is in the nature of a sequitter to the previous

point and this is more fundamental. This is more fundamental because

section 195(1)(b)(ii) of Cr.P.C would be attracted only when the offences

enumerated in the said provision are committed with respect to a

document after it has been produced or given in evidence in any

proceedings in any court, i.e., during the time when the document was

custodia legis qua Court. This position of law has been declared by a

Constitution Bench of Hon'ble Supreme Court in the oft-quoted Iqbal https://www.mhc.tn.gov.in/judis/

Criminal O.P.Sr.No.3594 of 2021(Filing Number)

Singh Marwah Vs. Meenakshi Marwah case reported in (2005) 4 SCC

370. Relevant paragraph in Iqbal Singh Marwah case is paragraph 34

and the same reads as follows:

'34. In the present case, the Will has been produced in the court subsequently. It is nobody's case that any offence as enumerated in Section 195(1)(b)(ii) was committed in respect to the said Will after it had been produced or filed in the Court of District Judge. Therefore, the bar created by Section 195(1)(b)(ii) CrPC would not come into play and there is no embargo on the power of the court to take cognizance of the offence on the basis of the complaint filed by the respondents.

The view taken by the learned Additional Sessions Judge and the High Court is perfectly correct and calls for no interference. ' 8 A perusal of the narration of facts and the basis on which

captioned Crl.OP has been filed makes it clear that this is not a case

where forgery or any other offences enumerated under section 195(1)(b)

of Cr.P.C have been committed when said partnership deed was in the

custody of this court and the allegation, at the highest is, this is a gotten

up document which has been prepared prior to filing of OP under A and

C Act. Therefore, the very foundation or fundamental principle that

section 195(1)(b) is attracted is absent in this case.

https://www.mhc.tn.gov.in/judis/

Criminal O.P.Sr.No.3594 of 2021(Filing Number)

9 This court also noticed that post Iqbal Singh Marwah case,

Hon'ble Supreme Court in State of Punjab Vs. Jasbir Singh case

reported in (2020) 12 SCC 96 had referred the question as to whether

Cr.P.C mandates a preliminary enquiry and an opportunity of hearing to

the would be accused should be given vide section 340 Cr.P.C when a

complaint is made under section 195 of Cr.P.C and the scope and ambit

of a preliminary enquiry under section 340 Cr.P.C., but, it is not

necessary to delve into this aspect as in this case it is clear that the

requirement of offences adumbrated in section 195(1)(b) being

committed when the document was custodia legis qua this court is absent

in this case.

10 This court now proceeds to deal with the case laws that were

pressed into service by learned counsel for petitioners. The case laws

pressed into service by learned counsel for petitioners are as follows:

(i)Narendra Kumar Srivastava Vs. State of Bihar [(2019)

3 SCC 318].

(ii)The Lakshmi Vilas Bank Ltd. Vs. M/s.Sun Finance

and others [1995-2-L.W.574] https://www.mhc.tn.gov.in/judis/

Criminal O.P.Sr.No.3594 of 2021(Filing Number)

(iii)R.Murugesan Vs. The Subordinate Judge, Namakkal

[2016-2-L.W. 421]

(iv)New Era Fabrics Limited Vs. Bhanumati Keshrichand

Jhaveri [(2020) 4 SCC 41].

11 In Narendra Kumar Srivastava case, the question was

whether a judicial magistrate can take cognizance of an alleged offence

under section 193 Cr.P.C on the basis of a private complaint when the

complaint /allegation is that the accused had introduced false /wrong

statement vide show cause affidavit leading to High Court dropping the

proceedings. In other words, it pertains to contempt proceedings. This

case is therefore clearly very different on facts and it does not help the

petitioner. Further more, this case makes no departure from the law laid

down by Constitution Bench in Iqbal Singh Marwah case supra.

12 Lakshmi Vilas Bank Ltd case was rendered by a Hon'ble

Division Bench of this Court. This is a judgment rendered in a regular

appeal suit wherein Hon'ble Division Bench had returned a factual

finding that defendant No.2 in that case had deposed as D.W.1 and given

false evidence with the intention of wriggling out of liability and

therefore, this case law does not apply to the case on hand. Further, https://www.mhc.tn.gov.in/judis/

Criminal O.P.Sr.No.3594 of 2021(Filing Number)

Lakshmi Vilas Bank case law was rendered on 02.02.1995 more than a

decade before declaration of law by the Constitution Bench of Hon'ble

Supreme Court in Iqbal Singh Marwah case which was rendered by

Constitution Bench on 11.03.2005.

13 This takes us to R.Murugesan's case. This is a case where

there was fabrication of agreement of sale and dispossession of the

litigant from the leasehold property by using the same. This case law

rendered by a Hon'ble Single Judge of this court has referred to

Chitlapakkam Town Panchayat case reported in 2015 (2) CTC 681 with

approval and has even extracted paragraph 58 of Chitlapakkam Town

Panchayat case, wherein paragraph 12 of Sachida Nand Singh case

[1998 SCC (Crl) 660] has been extracted and it has been held that it

would be strained thinking to say 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 an offence

affecting administration of justice merely because that document later

reached the Court records. However, it is also seen that this is a case

wherein declaration of law in Iqbal Singh Marwah case has not been

considered. No elucidation is required to say that a legal principle or

proposition laid down by a Constitution Bench is not merely a legal https://www.mhc.tn.gov.in/judis/

Criminal O.P.Sr.No.3594 of 2021(Filing Number)

precedent, but it gets elevated to the status of declaration of law.

Therefore, this court respectfully follows the law declared by a

Constitution Bench of Hon'ble Supreme Court in Iqbal Singh Marwah

case, i.e., the law that the alleged offence should have been committed

when the document is in the custody of the court, i.e., custodia legis qua

Court for section 195(1)(b) Cr.P.C to be attracted.

14 This takes us to the New Era Fabrics Limited case, which

was rendered by a two member Bench of Hon'ble Supreme Court

wherein Hon'ble Supreme Court itself found that in the SLP proceedings

before it, the words which read as 'weighted average number of equity

shares' was changed as 'number of equity shares as on 1-4-2007'. This

was noticed by Hon'ble Supreme Court by comparing the document

concerned as filed in the court below and Hon'ble Supreme Court.

Therefore, this is clearly a case where a document was tampered with

and changes were made when it was in the custody of Hon'ble Supreme

Court, i.e., custodia legis. This certainly does not help the case of

petitioners as case on hand is not one where it is nobody's case that said

partnership deed or any other document for that matter was tampered

with or blank signed papers were misused when such documents / blank https://www.mhc.tn.gov.in/judis/

Criminal O.P.Sr.No.3594 of 2021(Filing Number)

signed papers were in the custody of this court. In other words, this is not

a case of tampering / fabrication custodio legis.

15 The next point that is noticed by this court is, as alluded to

supra, this court is informed that the proceedings before the arbitral

tribunal have already been kick started and the arbitral tribunal has even

returned some findings inter-alia on the preliminary issue of ruling on its

own jurisdiction which obviously will turn on said partnership deed and

the arbitration clause therein which serves as arbitration agreement

between the parties. If the petitioner has any grievance in this regard, it is

always open to the petitioner to seek remedy under A and C Act.

16 This court notices that it is not a case where the petitioner is

not without any remedy. By this order, this court only says that Section

195(1)(b) Cr.P.C is not attracted as alleged offences have not been

committed when the document was custodia legis qua this Court. In

other words, nothing prevents the other remedies if available to the

petitioner in law. To be noted, the extracted paragraph supra in Iqbal

Singh Marwah case (paragraph 34) itself makes it clear that there is no

embargo on a criminal court to take cognizance if a complaint is filed.

Therefore, if the petitioner chooses to pursue such a course, it is made https://www.mhc.tn.gov.in/judis/

Criminal O.P.Sr.No.3594 of 2021(Filing Number)

clear that this order will neither impede nor be an impetus to any of the

parties in such proceedings. In other words, if the petitioner chooses to

pursue other avenues available, section 195 Cr.P.C will not act as a bar.

In this regard, this court deems it appropriate to record that this is evident

from 19.06.2020 order in arbitration O.P that the trigger notice qua

arbitration proceedings is dated 21.09.2019 and reply notice is dated

15.10.2019. According to the petitioner in captioned Crl.OP, in this reply

notice itself, more particularly in paragraph 5(h) of reply notice, it has

been averred that blank papers were signed, but the petitioner had not

kick started any proceedings until section 11 O.P was filed on

04.02.2020.

17 On an extreme demurrer, this court now tests the matter by

examining the position if a document fabricated before production in

court is also covered under the sweep of this matter. The petitioner will

still not clear the fence as the scope of section 11 of A and C Act is so

limited that the question of examining whether a document is forged will

not arise. Section 11 is a summary procedure and this has been greatly

narrowed down by sub section (6-A). This is the reason why this court

had left it to arbitral tribunal to decide on plea of said partnership deed https://www.mhc.tn.gov.in/judis/

Criminal O.P.Sr.No.3594 of 2021(Filing Number)

being forged as it contains the arbitration clause which serves as

arbitration agreement and therefore, would be a case of arbitral tribunal

ruling on its own jurisdiction.

18 In this regard, it is deemed appropriate to observe that on an

extreme demurrer, even if all the averments pertaining to said partnership

deed in Crl.OP are true and correct at the highest, even according to

petitioner, the alleged offences under Indian Penal Code (making a

document using blank signed stamp papers) was committed much before

the aforementioned arbitration OP was filed in this court, this stated

position of the petitioner by itself takes the matter outside the purview of

section 195(1)(b) Cr.P.C., if Iqbal Singh Marwah principle is applied.

19 The principle that criminal proceedings can go on

simultaneously is indisputable as the degree of proof required in two

proceedings are different, i.e., preponderance of probability and proof

beyond doubt respectively. There is no difficulty or quarrel regarding

this proposition. In this case, i.e., captioned Crl.OP, this court is

concerned with limited scope of whether there is anything that is prima

facie demonstrable to show that the alleged offence has been committed

within the four corners of section 195(1)(b) Cr.P.C warranting a direction https://www.mhc.tn.gov.in/judis/

Criminal O.P.Sr.No.3594 of 2021(Filing Number)

to hold preliminary enquiry under section 340 Cr.P.C. Even a perusal of

Crl.OP reveals that there is no whisper that any of the alleged offences

adumbrated in section 195(1)(b) was committed when the said

partnership deed, i.e., partnership deed dated 16.07.2019 was in the

custody of this court. That by itself draws curtains on this matter or in

other words, that is the end of the road for the petitioner in the captioned

Crl.OP.

20 In the light of the narrative, discussion and dispositive

reasoning set out supra, this court has no hesitation in coming to the

conclusion that captioned Crl.OP is not maintainable. Learned counsel

for petitioner requested that petitioner's right to file and pursue a private

criminal complaint and / or give a criminal complaint may please be

preserved if this court is not inclined to hold that captioned Crl.OP is

maintainable. Though this may tantamount to stating the obvious and

also having been alluded to supra elsewhere in this order, owing to the

specific request, it is made clear that if the petitioner files a separate

private complaint or complaint, the same will be dealt with by the court /

authorities concerned on its own merits and in accordance with law

without being impeded in any manner by this order and for this purpose, https://www.mhc.tn.gov.in/judis/

Criminal O.P.Sr.No.3594 of 2021(Filing Number)

it is further made clear that all questions, rights and contentions of

petitioner are preserved / left open. As the captioned Crl.OP is being

rejected as not maintainable, though obvious it is made clear that

anything expressed in this order is only for the limited purpose of

deciding maintainability and the sequitter is, anything contained in this

order shall not be construed as an expression on the merits of the

allegations.

21 Therefore, captioned Crl.OP is rejected as not maintainable

preserving the rights of the petitioner and giving liberty in the aforesaid

manner. Owing to the nature of submissions made before this court, there

shall be no order as to costs.

22.07.2021

Speaking Order / Non speaking order

Index : Yes

vvk

https://www.mhc.tn.gov.in/judis/

Criminal O.P.Sr.No.3594 of 2021(Filing Number)

M.Sundar, J.

vvk

order in Crl.O.P.Sr.No.3594 of 2021 (Filing Number)

22.07.2021

https://www.mhc.tn.gov.in/judis/