The revision petitioner alleged plaintiffs fabricated signatures and the vakalat in a suit for declaration and partition, and sought a Section 340 CrPC enquiry. The court held a vakalat is neither a document nor evidence produced in a suit, so Section 340's twin requirement fails, confirming dismissal.
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C.R.P.(PD).No.3979 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.11.2024
CORAM:
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.(PD).No.3979 of 2016 and C.M.P.No.20161 of 2016
N.S.Ziaudeen Ahamed .. Petitioner
Vs.
1.Rabiya Basheeri
2.Mahaboob Khan
3.Rabiya Banu
4.Shaheera Banu
5.Shahin Banu
6.Mohammed Ali & 101 others
.. Respondents
(RR 6 to 101 given up)
Prayer : This Civil Revision Petition is filed under Article 227 of the Constitution of India, praying to call for the records, set aside the fair order dated 06.06.2016 made in C.M.P.No.32 of 2016 in O.S.No.292 of 2015 by the learned Sub Court at Namakkal, allow the Civil Revision Petition by
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directing the Learned Sub Court at Namakkal to hold a preliminary enquiry in respect of Offences Under Sections 191, 192, 199, 209, 416, 463 & 468 in accordance with law and to send a complaint to the Court of Magistrate having jurisdiction under Section 340 of Cr.P.C.
For Petitioner : Ms.Suriya for M/s.A.S.Kailasam Associates For R1 : No appearance
O R D E R
This civil revision petition challenges the order of the learned Subordinate Judge at Namakkal, in C.M.P.No.32 of 2016 in O.S.No.292 of 2015, dated 06.06.2016.
2.O.S.No.292 of 2015 is a suit for declaration that the decree passed in O.S.No.351 of 1980, dated 17.08.1983 is null and void, and consequently to grant a decree for partition. It also seeks an order of injunction restraining the 90th defendant / civil revision petitioner from taking possession of the properties involved in R.E.P.No.69 of 2011 and for other consequential reliefs.
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6.Pending the suit, the 90th defendant, took out an application under
Section 340 of the Code of Criminal Procedure. His plea was that the 1st and the 3rd plaintiffs in the suit had fabricated the signatures of plaintiffs 2, 4 & 5
and had presented the plaint. He alleged that the vakalat, that had been executed by the counsel for the plaintiffs in O.S.No.292 of 2015, is equally fabricated. The basis for this plea being the plaintiffs 2, 4 & 5 were not even in Namakkal on the date of the alleged execution.
7.The learned Judge received this application and numbered it as C.M.P.No.32 of 2016. After taking it up for enquiry, he proceeded to dismiss the petition, on coming to the conclusion that the civil revision petitioner had not examined the Lawyer who had filed the vakalat on behalf of the plaintiffs or the Lawyer who had attested the Vakalat presented by the counsel. Aggrieved by the same, the 90th defendant is on revision before me.
8.I heard Ms.Suriya for M/s.A.S.Kailasam Associates for the civil revision petitioner.
9.Ms.Suriya, urged that when a prima facie case has made out for
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holding an enquiry under Section 340 of the Code of Criminal Procedure, it is the duty of the Court to consider the same and order the application. He states that a preliminary enquiry had not been conducted as required under Section 340 of the Code of Criminal Procedure, as forgery, had been committed by the plaintiffs 1 & 3.
10.In terms of Section 340 of the Criminal Procedure Code, a Court may suo motu order for prosecution of a party, when it comes to the conclusion that an offence has been committed in terms of Section 195(1)(b) of the Code. The offence must relate to any document or evidence that is tendered in the Court. A vakalat cannot be treated as a document. It is at best, a power of attorney. executed by a party authorizing a counsel to represent him / her on his / her behalf before the Court.
11.A vakalat is never produced as an evidence in a suit. Therefore, since the twin requirement of Section 340, namely, that it should be a document or an evidence, are not satisfied, I am not inclined to interfere with the said order. Hence, the order passed by the learned Sub Judge, Namakkal, in C.M.P.No.32 of 2016 in O.S.No.292 of 2015 dated 06.06.2016, stands
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confirmed.
12.Accordingly, this Civil Revision Petition is dismissed. The dismissal
of this revision will not prevent the 90th defendant from bringing it to the notice of the Court that at the time of examination of the plaintiff or himself that the plaintiffs 2, 4 & 5 were not in station on the date on which the plaint was presented. Consequently, the connected Miscellaneous Petition is closed.
No costs.
20.11.2024
krk
Index : Yes / No Internet : Yes / No Neutral Citation : Yes / No
To
The Sub Court, Namakkal.
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V.LAKSHMINARAYANAN, J.
krk
C.R.P.(PD).No.3979 of 2016
20.11.2024
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2 issues framed by the court
Whether a fabricated vakalat can form the basis for an enquiry under Section 340 CrPC given its 'document or evidence' requirement.
Was the trial court's dismissal of the Section 340 application for non-examination of witnesses sustainable?
3 provisions across 2 enactments
N.S.Ziaudeen Ahamed
Rabiya Basheeri
Mahaboob Khan
Rabiya Banu
Shaheera Banu
Shahin Banu
V.Lakshminarayanan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
