Allowed

P.Rangadasa Prabhu v. R. Venkateswara Shenoy

Kerala HC25 Oct 2019OP(C)/2147/2018

Case brief

AI extract

What is this about?

The High Court allowed an original petition challenging lower court orders initiating proceedings under Section 340 Cr.P.C. against petitioners and their attorneys. The Court held that since no allegation of forgery existed after the document (vakalath) was produced in court, Section 195(1)(b)(ii) Cr.P.C. was not attracted, rendering the lower court orders unsustainable.

What did the court decide?

Exts.P11 and P12 orders and all subsequent proceedings pursuant thereto were set aside.

P.Rangadasa Prabhu Vs R. Venkateswara Shenoy — Civil Procedure and Limitation | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

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FRIDAY, THE 25TH DAY OF OCTOBER 2019/3RD KARTHIKA, 1941

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OP(C).No.2147 OF 2018

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AGAINST THE ORDER/JUDGMENT IN OP (SOCIETY) NO.946/2016 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - VII, ERNAKULAM

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PETITIONER/S:

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1 P.RANGADASA PRABHU

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AGED 70 YEARS, S/O R.PADMANABHA PRABHU, SREE RANGA NIVAS, TD WEST ROAD,

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KOCHI, PIN - 682035

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2 P.S.JAYAPRAKASH PRABHU

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S/O.P.R.SRINIVASA PRABHU, 40/8799-C, SRINIVAS ENCLAVE, T.D.EAST ROAD,

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ERNAKULAM - 35.

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3 R.BHASKAR SHENOI AGED 53 YEARS, S/O.R.RATNAKAR SHENOI, OMKAR, SREENIVASA MALLAN ROAD, ERNAKULAM, KOCHI - 682 035.

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4 S.SAIBABA PRABHU

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AGED 66 YEARS, S/O.LATE SADANANDA PRABHU, RESIDING AT VIMAL HOUSE, T.D.ROAD, KOCHI - 682 035.

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5 V.SANTHARAM ADVOCATE, SRILAKSHMI, 40/8709, FIRST LOOR, SREENIVASA MALLAN ROAD, ERNAKULAM, KOCHI - 682 035.

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6 SISHOY P.S. ADVOCATE SRILAKSHMI, 40/8709, FIRST FLOOR, SREENIVASA MALLAN ROAD, ERNAKULAM, KOCHI - 682 035.

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BY ADVS. SRI.R.LAKSHMI NARAYAN SMT.R.RANJANIE SRI.M.ASHOK KINI

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OP(C).No.2147 OF 2018

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RESPONDENT/S:

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1 R. VENKATESWARA SHENOY AGED 60 YEARS, S/O M.RENGA SHENOY, 39/231 B, MONASTRY ROAD, KOCHI - 682011 2 R.RAMESH KUMAR AGED 52 YEARS, S/O.A.RAMACHANDRA SHENOY, RAM MANDIR, ST.BENEDICT ROAD, ERNAKULAM NORTH, KOCHI - 18. 3 SANDHYA RANI.A.R. W/O.R.RAMESH KUMAR, RAM MANDIR, ST.BENEDICT ROAD, ERNAKULAM NORTH, KOCHI - 18. 4 SREENIVASAN AGED 46 YEARS, S/O.PADMANABHAN, CHITTOOR ROAD, COCHIN - 682 011. 5 GOWDA SARASWATHA SEVA SANGHAM (REGD.) T.D.ROAD, ERNAKULAM, KOCHI - 35, REPRESENTED BY PRESIDENT SRI.N.K.PRABHAKARA NAICK. R5 BY ADV. SRI.K.R.VINOD R5 BY ADV. SMT.M.S.LETHA THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 25.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No.2147 OF 2018

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JUDGMENT

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The petitioner Nos.1 to 3 are the petitioners in O.P. (Society) No.946/2016 on the files of the Sixth Additional District Court – Ernakulam.

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The above original petition was filed by petitioner Nos. 1 to 3 herein and others under Section 25 of the Travancore Cochin Literary Scientific and Charitable Societies Registration Act, 1955 praying for removing the existing Executive Committee and appointing a fresh governing body through appropriate election and for other allied reliefs. The fourth petitioner herein is respondent No.30 in the above said original petition. The petitioner Nos.5 and 6 herein are advocates practicing in Ernakulam. They were the counsel appearing for the petitioners in the above said original petition. The petitioner Nos.72, 106, 107 and

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OP(C).No.2147 OF 2018

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130 before the court below, who are respondent Nos.1 to 4 herein, filed Exts.P3 to P6 affidavits and applications under Section 340 Cr.P.C. praying for proceeding against the petitioners herein, in accordance with law, contending that they did not sign the vakalath produced in the original petition. On receipt of the said applications, the court below passed Exts.P11 and P12 orders. The court below in Ext.P11 observed that an enquiry is inevitable. Therefore, the court below ordered to issue summons to petitioner Nos.5 and 6,

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who were Advocates who filed vakalath for respondent Nos. 1 to 4 herein. It appears fro m Ext.P12 that the court below issued notice to petitioner Nos. 5 and 6 to give evidence in the said application. Challenging Exts.

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P11 and P12, this original petition has been filed.

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Heard.

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OP(C).No.2147 OF 2018

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The learned counsel for the petitioners has submitted that this is not a case where the court is empowered to proceed under Section 340 Cr.P.C as no offence was admittedly committed in respect of any document after its production before the court. In this case, the allegation in Exts.P3 to P6 is that the respondent Nos.1 to 4 herein, who are the petitioners in Exts.P3 to P6 did not subscribe their signature in the vakalath, which means that respondent Nos.1 to 4 herein did not sign the vakalath to engage petitioner Nos.5 and 6. There is no allegation that any forgery was committed after the production of any document before the court. Section 340 Cr.P.C. provides that when upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of Sub-Section

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OP(C).No.2147 OF 2018

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(1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, proceed as provided under (a) to (e) of sub-section (1) of Section 340 Cr.P.C. The Constitution Bench of the Apex Court in Iqbal Singh Marwah v. Meenakshi Marwah [AIR 2005 SC 2119:2005 KHC 647] held that Section 195(1)(b)(ii) Cr.P.C. would

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be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e., during the time when the document was in custodia legis. Admittedly, there is no allegation that any forgery was committed in relation to the vakalath after its

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OP(C).No.2147 OF 2018

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production before the court. In the said circumstances, the court below was not justified in initiating proceedings against the petitioners under Section 340 Cr.P.C. Consequently, the proceedings initiated by the court below as per Exts.P11 and P12 orders cannot be sustained. Consequently, I set aside Exts.P11 and P12 orders and further proceedings pursuant thereto.

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In the result, this Original Petition stands allowed.

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Sd/-

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B.SUDHEENDRA KUMAR

JUDGE

Nkr/28.10.2019

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OP(C).No.2147 OF 2018

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APPENDIX

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PETITIONERS' EXHIBITS:

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EXHIBIT	P1 PHOTO COPY OF THE O.P.(SOCIETY) NO.946 OF 2016.
EXHIBIT	P2 THE PHOTO COPY OF VAKALATH FILED BY THE PETITIONERS.
EXHIBIT	P3 PHOTO COPY OF THE I.A.NO.717 OF 2017 IN OP(SOCIETY) NO.946 OF 2016.
EXHIBIT	P4 PHOTO COPY OF THE I.A.NO.803 OF 2017 IN OP (SOCIETY) NO.946 OF 2016.
EXHIBIT	P5 PHOTO COPY OF THE I.A.NO.806 OF 2017 IN OP(SOCIETY) NO.946 OF 2016.
EXHIBIT	P6 PHOTO COPY OF THE IA NO.718 OF 2017 IN OP (SOCIETY) NO.946 OF 2016.
EXHIBIT	P7 PHOTOCOPY OF JOINT COUNTER AFFIDAVIT IN IA 717 OF 2017 IN OP(SOCIETY) NO.946 OF 2016.
EXHIBIT	P8 PHOTOCOPY OF JOINT COUNTER AFFIDAVIT IN IA 803 OF 2017 IN OP(SOCIETY) NO.946 OF 2016.
EXHIBIT	P9 PHOTOCOPY OF JOINT COUNTER AFFIDAVIT IN IA 806 OF 2017 IN OP(SOCIETY) NO.946 OF 2016.
EXHIBIT	P10 PHOTOCOPY OF JOINT COUNTER AFFIDAVIT IN IA 718 OF 2017 IN OP(SOCIETY) NO.946 OF 2016.
EXHIBIT	P11 THE PHOTOCOPY OF THE ORDER DATED 09/08/2018 IN IA NO.803/2017 IN OP(SOCIETY) NO.946/2016 PASSED BY THE COURT OF ADDITIONAL DISTRICT JUDGE-VII, ERNAKULAM.
EXHIBIT	P12 THE PHOTOCOPY OF THE ORDER DATED 09/08/2018 IN OP(SOCIETY) NO.946/2016 PASSED BY THE COURT OF ADDITIONAL DISTRICT JUDGE-VII, ERNAKULAM.
RESPOND	ENTS' EXHIBITS: NIL

P.Rangadasa Prabhu v. R. Venkateswara Shenoy

Case brief

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What did the court decide?

P.Rangadasa Prabhu v. R. Venkateswara Shenoy

Case brief

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