This petition has been filed under Section 482 of Cr.P.C. to set aside the order dated 18.01.2017 made in CMP.No.26 of 2016 on the file of the learned Assistant Sessions Judge, Namakkal.
2.Heard Mr.N.Manokaran, learned counsel for the petitioner.
3.The grievance of petitioner is informed in order of this Court in W.P.No.4145 of 2016 dated 29.02.2016 which reads as under:
''It is the specific case of the complainant/petitioner herein that the suit in O.S.No.213 of 2014 is a collusive suit between the plaintiff and defendants therein by producing forged and fabricated documents. The said suit was allowed to be decreed exparte and on the basis of the exparte decree obtained in O.S.No.213 of 2014, the petitioner was thrown out of the property unlawfully. It is the specific allegation of the petitioner that by producing forged documents in the suit in O.S.No.213 of 2014, an exparte decree was obtained and by virtue of the exparte decree obtained in the suit, he was fraudulently thrown out of the property. It is not as if some third party, who has nothing to do with the subject matter of the suit in O.S.No.213 of 2014, has come to the Court with a complaint that by playing fraud on the Court, he was thrown out of the property. On the other hand, it is the specific complaint of the petitioner that by reason of the exparte decree, indirectly, he was thrown out of the property in question and the exparte decree passed in O.S.No.213 of 2014 has a nexus to his complaint. Therefore, what is important is whether by producing forged document, administration of justice has been thwarted or not has to be gone into by the learned Subordinate Judge. When such being the allegation, the learned Subordinate Judge ought to have gone into the question as to whether the collusive suit has resulted in the petitioner being thrown out of the property or not. In such case, whether the petitioner herein is a party to the suit or not does not assume significance. In any event, the observations made by the learned Subordinate Judge in the impugned order as though he is not empowered to deal with such a complaint is contrary to the express provisions contained in
Section 340 of Code of Criminal Procedure. Therefore, I am only inclined to set aside the order passed by the learned Subordinate Judge as being contrary to the provisions contained in
Section 340 of Code of Criminal Procedure''.
4. Taking note thereof and the position of law, this Court has further observed in paragraph No.13 of the order dated 29.02.2016, as here under:
''In the light of what is stated above, the impugned order passed by the learned Subordinate Judge, Namakkal in his proceeding D.No.998 of 2015 dated 17.12.2015 is set aside. The writ petition is allowed. No costs. The learned Subordinate Judge, Namakkal is directed to take the complaint dated 25.11.2015 of the petitioner on his file, deal with the same in accordance with the procedures mentioned in
Section 340 of Code of Criminal Procedure and to proceed further in accordance with law.''
5. Armed with such order of this Court, petitioner has moved learned Subordinate Judge, Namakkal in CMP. No.26 of 2016 seeking appropriate action against respondents 1 to 4 on the allegation that they had fabricated documents towards falsely informing court of entitlement to property and thereby obtained a fraudulent decree for specific performance had executed a sale deed through court and thereafter even without moving court in execution, forcibly taken possession of property held by petitioner causing damage to the tune of Rs.15,00,000/-. On an erroneous understanding of the law as contained in
section 340 of Cr.P.C, Court below has washed its hands off its responsibility by informing that petitioner has filed papers which had to be sent to the Judicial Magistrate, Paramathy for necessary criminal action, if a prima facie case is made out. This has been done on the erroneous precept that 'as per
section 340 Cr.P.c., when there was any misappropriation caused by anyone of the party in a case by way of producing document or producing evidence, the Court has to commence a preliminary enquiry and if it thinks fit the matter may be send to the Magistrate of First Class having jurisdiction'. It is the duty of Court below to cause enquiry towards recording a finding on whether or not there is substance in the petition seeking action under
section 340 of Cr.P.C., If the grievance of petitioner is considered true, then it becomes the duty of Court below to prefer a complaint in writing and forward it to the Magistrate having jurisdiction towards action there upon. The order under challenge is set aside. Court below is now directed to follow the order of this Court in W.P.No.4145 of 2016 dated 29.02.2016 in letter and spirit and strictly in accordance with procedure contemplated u/s. 340 Cr.P.C. This Court would record that it is taking a lenient view on the poor understanding showed by Court below.
6. The criminal original petition is accordingly ordered.
15.06.2017 Index :Yes/No dn To
1.The Assistant Sessions Judge, Namakkal.
2.The Public Prosecutor, High Court, Chennai.
C.T.SELVAM,J.
Dn/kpr CRL.O.P.No.11156 of 2017 15.06.2017