KAILASH CHAND AGGARWAL Vs. AMAR NATH

JUDGEMENT

(1.) This appeal by two brothers, Kailash Chand Aggarwal and Parkash Chand Aggarwal, is directed against the order of learned Single Judge whereby he directed that a complaint be made against the appellants for their prosecution for the offences which appeared to have been committed by them. Amar Nath respondent, who is brother of the appellants, filed two suits Nos. 101 and 102 of 1959 for recovery of Rs. 25,933.50 P. and Rs. 25,248.00 respectively. The defendants in the first suit were plaintiff's four brothers, Kailash Chand Aggarwal (also described as K. C. Aggarwal), Moti Ram, Ram Nath and Parkash Chand, while in the second suit, besides the abovementioned four defendants, Wearwell Cycle Co. (India) Ltd., was also a defendant. The two suis were consolidated. Kailash Chand defendant in those suits produced letter D.A. dated March 31, 1956 and voucher D.B. dated October 30, 1957 for the purpose of being used in evidence. Parkash Chand defendant was examined on commission in those suits and gave evidence about hose two documents. The Commercial Subordinate Judge, Delhi as per judgment dated May 24, 1962, decreed both the suits. In the course of judgment the learned Commercial Subordinate Judge observed:

(2.) The Commercial Subordinate Judge also came to the conclusion that for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice it was expedient to prosecute Kailash Chand and Parkash Chand. He accordinv ordeed that a complaint be drawn up and be forward to the District Maoistrate through the District Judge for the prosecution of the two appellants for the offences which appeared to have been committed by them. The defendants in the two suits filed appeals in the Circuit Bench of the Punjab High Court at Delhi. The appeals were dismissed by a Division Beach on September 23, 1964. The learned Judges of the Division Bench agreed with the trial Court that Kailash Chand and A Parkash Chand had given false evidence and had fabricated false evidence for the purpose of being used in connection with the said suits. As the trial Court had not, before making the complaint given an opportunity to Kailash Chand and Parkash Chand of being heard, the complaint was ordered to be withdrawn and it was let to the discretion of the trial Court to make a complaint after following the procedure laid down in section 479-A of the Code of Criminal Procedure. Reliance in this connection was placed by the learned Judges on the decision in the case of Dr. B. K. Pal Chaudhry v. State of Assam, AIR 1960 SC 133(1). After the dismissal of the two appeals, Amar Nath respondent filed an application before the successor of Shri R. L. Sehgal, Commercial Subordinate Judge, for giving effect to the order of the Circuit Bench. As this Court was vested with ordinary civil original jurisdiction in suits of the value exceeding Rs. 25,000.00, the aforesaid application was transferred for disposal to this Court. The learned Single Judge after hearing the appellants directed That a complaint be made against them for their orosecution for the offences which appeared to have been committed by them. We have heard Mr. Radhey Mohan Lal on behalf of the appellants and Mr. Daijit Singh on behalf of the respondens, and are of the opinion that there is no merit in the appeal. It is urged by Mr. Radhey Mohan Lal that the complaint should have been made against the appellants at the time the judgment was pronounced in the two suits mentioned above. According to the learned counsel, after the decision of the two suits no order could be made for the prosecution of the appellants and the making of complaint against them. In this respect we find that the learned Commercial Subordinate Judge while decreeing the two suits gave a definite finding that the we appellants had given false evidence and had fabricated false evidence by forging and preparing letter dated March 31, 1956 and voucher dated October 30, 1957, for the purpose of being used as evidence in the suit. The Commercial Subordinate Judge also came to the conclusion that for the eradication of the evils of perjury and fab-ication of false evidence and in the interests of justice it was expedient to prosecute Kishan Chand and Parkash Chand. The Commercial Subord is Judge further ordered that a complaint be drawn up and forwarded to the District Magistrate. When the matter was taken up in appeal, the learned Judges were of the view that after recording the above finding the Commercial Subordinate Judge should have given an opportunity to the two appellants of being heard on the point whether a complaint should or should not be made against them. The Commercial Subordinate Judge was accordingly directed to proceed in the matter after giving an opportunity of hearing to the appellants. The appellants have thereafter been heard. In our opinion, the procedure, which has now been followed by the learned Single Judge, is in accordance with that laid down in section 479-A of the Code of Criminal Procedure. There is nothing in section 479-A which requires that an opportunity of being heard should also be afforded to the person proceeded against before the delivery of the judgment of final order in the suit. All that section 479-A requires is that when any Civil, Revenue or Criminal Court is of opinion that any person appearing before it as a witness has intentionally given false evidence in any stage of the judicial proceeding or has intentionally fabricated false evidence for the purpose of being used in any stage of the judicial proceeding, and that, for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice, it is expedient that such witness should be prosecuted for the offence which appears to have been committed by him, the Court shall, at the time of the delivery of the judgment or final order disposing of such proceeding, record a finding to that effect stating its reasons therefor and may, if it so thinks fit, after giving the witness an opportunity of being heard, make a complaint thereof in writing signed by the Presiding Officer of the Court, setting forth the evidence which, in the opinion of the Court, is false or fabricated and forward the same to a Magistrate of the first class having jurisdiction. It is also provided that where the Court making the complaint is a High Court, the complaint may be signed by such officer of the Court as the Court may appoint. The requirements of the above provision, in our opinion, are satisfied if at the time of the delivery of the judgment or final order the Court forms an opinion that a person has committed one of the categories of offences referred to in section 479-A and further comes to the conclusion that for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice it is expedient that the said person be prosecuted. The question of giving an opportunity of being heard to the said person would in the very nature of things only arise thereafter, i.e. after the delivery of the judgment or final order. The making of a complaint would be the last step in the series and an order for this purpose would be made only, if the Court so decides, after an opportunity has been afforded to the person concerned of being heard. The provisions of section 479-A of the Code of Criminal Procedure cannot, therefore, be held to have been contravened simply because an opportunity of being heard was afforded to the appellants and an order for the making of a complaint against them was made after the delivery of the judgment in the main case. Mr. Radhey Mohan Lal has referred to the case of Shubir Hussain Bholn v. State of Maharashtra, (1963) I SCR 501, (2) wherein it has been laid down that two conditions are necessary for the exercise of the powers under section 479-A : (i) the Court must form an oninion that the person has committed one of the two categories of offences referred to in section 479-A and (ii) the Court must come to the conclusion that for the eradication of the evils of perjury etc. and in the interests of justice it is expedient that the person be prosecuted. The above opinion and conclusion, according to their Lordships, must be arrived a^ the time of the delivery of the judgment or final order in the trhi. We find that in the present case both the above conditions were satisfied. Reference was also made on behalf of the appellants to the caies of A. .Maha'i'nea Bhatta v. Venkataramana Bhatta and others. AIR 1963 Kerala 215.(3) and Dhonsingh Khadaksingh Raghubansi v. Rassaran Darivaan, AIR 1961 Madhya Pradesh 305 There is nothing in the abovementioned two cases which militates against the view which we have taken in the matter. We are also of the opinion that the present appeal is not maintainable. Sub-section (3) of section 479-A of the Code of Criminal Procedure is a clear bar to the maintainability of this appeal. According to that sub-section, no appeal shall lie from any finding recorded and complaint made under sub-section (1).

(3.) The appeal consequently fails and is dismissed.