K K KHANNA Vs. EXPO ENTERPRISES

JUDGEMENT

(1.) This appeal is directed against the order of 24.12.83 of Shri K.P. Verma, Additional District Judge, whereby he directed the lodging of a criminal complaint against the appellants for the offences alleged to have been committed by them u/s 191 read with S. 193 of the IPC for their having pleaded under ground no. 4 (13) of the appeal. "That the respondent no. 2 is not party in the proceedings ....."

(2.) The appellants supported the aforesaid ground of their appeal 'even by' means of an affidavit dated 31.10.81 deposed to by the appellant K.K. Khanna on behalf of the appellants. Respondent 2 was a party in the insolvency proceedings and had subsequently on his own application, been substituted as petitioner creditor in those proceedings.

(3.) The persual of the impugned order shows that it was no-where opined or recorded as a fact that the lodging of the complaint against the appellants was expedient in the interest of justice as required u/s. 340 of the Code of Criminal Procedure, 1973 (in short the Code.). This requirement of law was of fundamental importance and the omission in that regard vitiates the impugned order. Even though prosecution for perjury may be possible but S. 340 of the Code does not permit complaints to be lodgedin all these cases and lodging the complaint is permissible only when the court making the complaint is of the positive view that the lodging of the complaint would be expedient in the interest of justice. This point has been dealt with in a number of authorities. In Santokh Singh v. Izhar Hussain Supreme Court observed :-