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TMI Blog2025 (5) TMI 1003X X X X Extracts X X X X X X X X Extracts X X X X ..... ') which came to be registered vide I-C.R. No.170 of 2005. The allegation in the FIR is to the effect that on 27th March, 2003, the petitioner herein had instituted Special Civil Suit No.79 of 2003 in the capacity of power of attorney holder of the partners of a partnership firm namely, Narmada Finvest in the Court of the Principal Senior Civil Judge, Bharuch for recovery of Rs.5,45,052/- against one Kamlesh Kantilal Patel. The said firm consisted of one Jagjivan Shantilal Dalal, Pashiben Parsottam Chaddarwala and Viren Parsottam Chaddarwala as its partners. An application came to be made in the said suit proceedings seeking an order of attachment before judgment on which notice came to be issued. During the proceedings of the said suit, an out of court settlement was arrived at between the petitioner and the defendant of the suit namely, Kamlesh Kantilal Patel on 28th March, 2003 according to which the brother of the defendant Laksheshbhai Patel had undertaken to pay Rs.2,25,000/- towards settlement of the dispute. The said Laksheshbhai Patel handed over 15 cheques of Rs. 15,000/- each to the petitioner which were payable on the first day of each month with effect from 01st May. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led Special Execution Petition No.43 of 2004 on 27th November, 2004 for recovery of the suit money. Subsequently, the details of the Execution Petition preferred by the petitioner were given to the defendant of the suit and upon verification of the record, following defects were found : - (a) The application Exh.11 (withdrawal pursis) on which the learned Presiding Officer had made an endorsement, was not in the record of the court, and that the same was allegedly replaced with a bogus and concocted settlement pursis. (b) The last page affixed to the plaint-Exh.1 on which an endorsement of unconditional withdrawal of suit was made, was removed from the record and was replaced by a bogus page. (c) Generally, decree is not drawn where the suit is withdrawn, but in the case on hand, bogus decree was prepared at Exh.12 which was bearing signature of the Clerk drawing the decree and the learned Civil Judge, Shri Khimani. (d) The entire Rojkam was prepared on a type writer subsequently. (e) The blank page no.17, attached to the plaint Exh.1, was bearing the forged rubber stamp of the Deputy Registrar and also bogus signature of the learned Civil Judge, Shri Khimani. (f) Bogus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nizance of the same could not have been taken except on a complaint in writing signed by the Learned Presiding Officer. The Ld. Counsel for the petitioner vehemently submitted that the High Court and the Courts below have committed grave error of law in not appreciating Sections 195 and 340 of the CrPC. 7.3 That it is clear that in a case where any offence has taken place which is within the purview of Section 195 (1) (b) of the CrPC, it is only the 'Court' which can hold preliminary inquiry and therefore, when such a preliminary inquiry is not held by a Court, no cognizance can be taken on the basis of any such complaint or F.I.R. 7.4 That in the present case the allegation in writing is not addressed to the learned Magistrate and, therefore, the inception of the jurisdiction itself is void ab initio. 7.5 That the inquiry conducted by the Vigilance Branch of the High Court cannot be said to be an inquiry in view of Section 195 of the CrPC as an inquiry /investigation/preliminary inquiry conducted by the Vigilance Branch cannot be termed as an inquiry/ preliminary inquiry by a Court. 7.6 That a proceeding of court does not mean only a live proceeding, even concluded pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining to the bar imposed by the provision. The Section was enacted to curtail the frivolous complaints made by the private individuals. 8.5 That the relevant provision is held to be mandatory, however, non-compliance of the provision ought not to take away the remedy against the offense committed by the Petitioner. Also, in a case wherein the Vigilance inquiry was conducted by the High Court and it was found that the offense under the relevant sections have been committed, thus, directing the District Court to file the complaint for the prosecution of the Petitioner, it becomes patently clear that the compliance of Section 340(3) of Cr. P.C. was observed while filing an FIR in the matter as the said direction were from the Constitutional Court itself. 8.6 That the offences provided under Section 195(1)(b)(i) and Section 195(1)(b)(ii) are different and therefore cannot be said to be mutually inclusive to each other. 8.7 That an act which was an offence will not be converted into innocent act because of the limitation under Section 195 Cr.P.C ANALYSIS 9. Heard Ld. Counsel for the appellant as well as Ld. Counsel for the respondent. We have also perused relevant documents on rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said provision. Proceedings of a suit would stand concluded, either by way of a judicial pronouncement or if the party withdraws or does not press the same. What would be the legal implications once a suit is withdrawn? Would the proceeding still subsist or would it cease to exist. In the opinion of this Court, once a proceeding is withdrawn, there would be no proceeding before the Court as the plaintiff has taken back the proceeding. The position would be akin to no proceeding having been filed except for the purpose of barring a subsequent suit on the same cause of action. However, the record would be required to be maintained only for the purpose of record to indicate that such proceeding had been instituted. In the circumstances, once the suit had been withdrawn, there was no proceeding in the Court. In the opinion of this Court, by merely maintaining the documents in the record room, it cannot be said that the documents are in custodia legis, as envisaged under Section 195 of the Code. Hence, tampering with the record which is kept in the record room after the suit is disposed of would not fall within the purview of the provisions of section 195 of the Code as the same cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court. Any o'fence 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. Applying the said principle to the facts of the present case, insofar as the second part of the offence is concerned, the same has been committed prior to the production of the document in the Court, in the circumstances, it would not be an offence which directly affects the administration of justice so as to fall within the ambit of section 195 of the Code. 14. In view of the above discussion, since the offence in question does not fall within the ambit of section 195 of the Code, as a natural corollary, the exception below section 195(1) as well as the provisions of section 340 of the Act would not be come into play and there is no embargo on the power of the Court to take cognizance of the offence on the charge-sheet filed by the police authorities pursuant to the first information report lodged by the respondent No.2. In the circumstances, no infirmity can be found in the impugned order dated 24th July, 2009 passed by the learned Additional Sessions Judge, Bha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid Execution Petition by the petitioner was indicative of an ill intention and the oblique motive of the petitioner. 15. On the further enquiry certain startling facts were disclosed namely: 1) the application that is withdrawn the pursis on which the endorsement was made by the Presiding Officer was missing from the record; 2) it was replaced by another bogus and concocted document as under the title as 'settlement pursis'. 3) when there is entry in the Rojkam that the decree is not drawn as the suit was withdrawn but contrary to this entry there was a bogus decree bearing signature of the clerk drawing the decree and signature of the Judicial Office that is Civil Judge Shri Khimani; 4) it was also revealed that bogus rubber stamps were used, while replacing the documents. 16. All these facts referred to above, clearly indicate that the proceedings initiated by filing of Civil Suit were concluded on submitted the withdrawal pursis. All the subsequent acts that is preparation of bogus documents and replacing these bogus documents to the court record were the acts post conclusion of the proceedings. It may not be out of place here to mention that as the suit was withdrawn on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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