MAYAPUR SREE CHAITANYA MATH Vs. SACHIDANANDA BRAHMACHARI

JUDGEMENT

(1.) THE short point requiring determination in this application is whether the plea of the defendants in their written statement as also in the several affidavits filed in the interlocutory proceedings before this Court in Suit No. 939 of 1978 Mayapur Sree Chaitanya Math v. Tridandeeswami Bhakti Kusum Sraman Maharaj contending that the two deeds dated 7th July, 1976 are genuine documents and not liable to be set aside, makes the respondents or any of them liable for prosecution for perjury in an application under Section 340 of the Cr.P.C. The respondents before the Court are six in number of whom respondents 3 and 4 are admittedly not parties to the suit, and who have been charged in the petition with aiding and abetting the respondents in manufacturing false documents.

(2.) THE case of the plaintiffs -petitioners in their petition, shortly, is that the two alleged deeds of appointment dt. 7th July 1976 were not executed by Bhakti Vilas Tirtha and the said documents have been charged by the plaintiffs in Suit No. 939 of 1978 to be forged and fabricated documents, neither signed nor executed by the said executant held out and represented to be so after his death before the Registering Authority. It is contended that the documents were forged and brought into existence falsely with the fraudulent motive and intention to usurp the position of the Shebaits of the said deities with powers of management, administration, control and custody of vast and valuable debuttor properties including the temple Maths and residential houses dedicated to the deities. Reliance was placed upon a letter dt. Sept. 14, 1976 alleged to be addressed by the respondent No. 1 to the respondent No. 2 recording that no deed was executed by Bhakti Vilas Tirtha before his death. It is contended that the respondents are guilty of having committed acts which are offences under the Indian Penal Code, particulars whereof are given in paragraph 24 of the petition. Reliance is also placed on the report of Sri A.R. Samasdar, Handwriting Expert and of the Forensic Laboratory of the Government of West Bengal indicating that the signatures appearing in the impugned deeds arc not the genuine signatures of the executant, and the reports were collectively marked 'F' and annexed to the petition. It is alleged that the respondents have committed an offence inter alia under Section 471 of the Cr.P.C. read with Section 467 of the Indian Penal Code and contended that respondents, (other than respondents Nos. 3 and 4 in the Suit No. 939 of 1978) have knowingly produced the said two documents in connection with the aforesaid proceedings and as such it is expedient in the interest of justice that an enquiry should be made into the offence under Section 467 and 467/471 of the Indian Penal Code and a complaint be directed to be made accordingly.

(3.) MR . Hirak Mitra, Learned Counsel for the petitioners, contended that Section 195 of the Cr.P.C. puts a fetter on initiation of criminal proceedings in any Court other then the Court before which the alleged forged documents are produced and or given in evidence, as it is that court alone which is competent to initiate proceedings contemplated under Section 340 of the Cr.P.C. In considering an application under Section 340 of the Cr.P.C. the Court is required to be satisfied that it is both expedient and in the ends of justice, that any preliminary enquiry be held and/or before recording any findings to the effect that an offence has been committed. The words 'appears to the Court' appearing in the said Section 340 merely require prima facie material, which indicate the likelihood of the offence being committed, in support of which contention he cites: - Nagar Mahapalika, Varanasi v. Sudheswari Devi reported in : AIR1966All64 M.S. Sheriff v. State of Madras reported in : [1954]1SCR1144 and Indranarayan v. Roop Narayan reported in : AIR1971SC1962 . In the instant case there is more prima facie material before the Court to indicate and or arouse its suspicion that the document is a forged one in as much as there is no explanation as to why two separate deeds should have been executed by the executant Tirtha Bilash on the same day. nor any indication on the face of the deeds as to whether the same was drafted by any lawyer. No explanation at all is forthcoming as to by whom and or on whose instruction such deeds were drafted. A serious comment is also made of the fact that the two attesting witnesses to the deed, the respondents Nos. 3 and 4. are not connected with the Math as also the fact that the said deeds were registered on two different dates more than 2 months alter the death of the executant.