CR.A/1285/2008 4/ 6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1285 of 2008 with CRIMINAL MISC. APPLICATION No.4283 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= BANKIMCHANDRA AMARCHANDRA JHAVERI & 2- Appellant(s) Versus STATE OF GUJARAT & 2 - Opponent(s) ========================================================= Appearance : MR ASIM PANDYA FOR M/S HL PATEL ADVOCATES for Appellant(s) : 1, MR KP RAVAL, APP for Opponent(s) : 1,2 None for Opponent(s) : 3 ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 03/10/2009 COMMON ORAL JUDGMENT
By
way of this appeal, the appellants challenge part of order dated
31-7-2007 passed in Civil Misc. Appeal No.96 of 2001 qua
registration of M.Case No.1 of 2007 with Raopura Police Station,
Vadodara against the appellants. Order passed by the learned
Principal District Judge, Vadodara on 31-7-2007 in Civil Misc.
Appeal No.96 of 2001 reads as under:
This
Misc.Civil Appeal No.96 of 2001 is allowed, and the impugned order
dated 10-4-2001 passed by the learned Trial Judge below application
(Exh.5) in Rent Suit No.105 of 2001 is hereby set aside.
The
respondent/defendant no.1 Bankimchandra A.Jhaveri who has obtained
possession of the rented premises more particularly described in
para:4(2) of the plaint of Rent Suit No.534/1986 I.e. Southern
Portion, under the guise of the consent decree fraudulently, is
hereby directed to hand over the possession of the said portion of
the property in question to the appellant/plaintiff Dharam No
Kanto immediately, and with a view to avoid any unnecessary
conflicts between the parties, Mr.M.I.Ghanchi, Additional Registrar
of the District Court, Vadodara is hereby appointed as Court
Commmissioner who in presence of the panch witnesses shall
complete the process for handing over peaceful possession of that
portion to the appellant/plaintiff latest by tomorrow 11.00 a.m. In
case of necessity, the Court Commissioner is at liberty to get
police protection, as and when required. The office is directed to
issue Commission Patra as well as Yadi to police station concerned
immediately.
As
the present respondents/original defendants had obtained the consent
decree in Rent Suit No.518/2000 fraudulently by making false
declaration knowing fully well it is to be false, the present
Registrar of the Small Causes Court is hereby directed to lodge a
complaint on behalf of the Court against the present
respondents (original defendants of Rent Suit No.518/2000) before
the Court having jurisdiction for the offence punishable U/Secs.199,
200, 208, 209 and 210 of the Indian Penal Code taking help of
learned Government Pleader for drafting the Complaint and to report
to this Court latest by 4th August, 2007.
The
respondents/original defendants shall pay Rs.1000/- to the
Appellant/plaintiffs towards Special Cost to this Misc.Civil
Appeal.
The
case in short is that the present respondent No.3-original plaintiff
filed Rent Suit No.105 of 2001 before the Small Causes Court,
Baroda, together with an injunction application at Ex.5. Learned
Small Causes Court however has rejected the said application. Said
order was challenged before the learned District Judge by filing
Civil Misc. Appeal No.96 of 2001. In the said appeal, learned
District Judge found that the original defendant obtained a consent
decree in Rent Suit No.18 of 2000 fraudulently by making a false
declaration knowing fully well it to be false. Hence, the Appellate
Court passed order to lodge complaint by the Registrar of Small
Causes Court against the present appellants-original defendants in
Rent Suit No.105 of 2001.
Heard
learned advocate, Mr.Asim Pandya for M/s H.L.Patel Advocates for the
appellants and learned APP, Mr.K.P.Raval for the respondents Nos.1
and 2. None appeared on behalf of the respondent No.3.
It
is vehemently argued by learned advocate, Mr.Asim Pandya, for the
appellants that Civil Misc. Appeal was preferred against the interim
order passed below injunction application and so, till the suit is
finally decided, the Appellate Court has no jurisdiction to pass
order to lodge the complaint against the present appellants. It is
further submitted that the matter is settled between the parties and
compromise pursis was also placed on record by the plaintiff’s
advocate on which the original defendants have also made endorsement
that possession of the disputed shop was handed over to the present
respondent No.3 and so also, no criminal prosecution could have been
initiated against the present appellants. It is also submitted that
first of all the Court has to be satisfied as to whether fraud was
committed for obtaining the decree, then only, the Court can pass
order to lodge complaint after following due procedure of law under
the Cr.P.C. Same is not followed by the learned Judge and while
deciding the appeal against the order passed below injunction
application, learned Appellate Judge without following due procedure
of law of holding inquiry, ordered to lodge the complaint, which is
prima facie illegal and hence also, the order is required to be
quashed and set aside.
This
Court has gone through the order passed by the learned Appellate
Judge. The Appellate Court has found that the present appellant
No.1-original defendant No.1 has obtained consent decree in Rent
Suit No.518 of 2000 fraudulently. As far as Rent Suit No.518 of 2000
is concerned, it is finally decided by the Small Causes Court.
No
doubt, Rent Suit No.105 of 2001 was pending before the Small Causes
Court. However, thereafter since a settlement took place between
the parties, the suit was disposed of as withdrawn. However, the
person, who has been alleged to have committed fraud cannot escape
from the criminal liability only on the ground that matter is
settled between the parties. In the opinion of this Court, if the
Court is satisfied that the decree was obtained by committing fraud
with the Court then, Court cannot sit as a mute spectator but has to
take appropriate steps against the persons, who committed fraud with
the Court. No doubt, this Court is in agreement with the submission
of learned advocate, Mr.Asim Pandya that first of all the Court is
to be satisfied of the fraud having committed, then only,
appropriate steps under the criminal law could be finally initiated
after following due procedure of law. In the opinion of this Court,
the Appellate Court should have ordered to hold inquiry by the
Registrar Small Causes Court and at the end of inquiry, if it is
found that decree has been obtained by committing fraud with the
Court, then only order can be passed to lodge complaint.
Straightaway, without conducting an inquiry, order cannot be passed
to lodge criminal complaint. Hence, the impugned order has to be
modified to the aforesaid extent and the appeal is to be partly
allowed.
This
appeal is allowed. Impugned order dated 31-7-2007 passed by the
learned Principal District Judge, Vadodara in Civil Misc. Appeal
No.96 of 2001 is hereby quashed and set aside. Learned Small Causes
Court is directed to hold inquiry to ascertain whether the present
appellants-original defendants have obtained consent decree in Rent
Suit No.518 of 2000 fraudulently or not and if it is found on
inquiry that the decree has been obtained fraudulently by committing
fraud with the Court, then to take legal steps against the concerned
person/s who obtained the decree fraudulently by following due
procedure of law under the Cr.P.C.
In
view of the above order passed in main appeal,
Cri.Misc.Appln.No.4283 of 2008 for stay does not survive and is
disposed of accordingly. Rule discharged.
(M.D.SHAH,J.)
radhan