(वकालतनामा पर पक्षकार (अपीलकर्ता) ने अपना हस्ताक्षर स्वीकार किया है तो Handwriting Expert की यह राय कि उसपर किया गया हस्ताक्षर (अपीलकर्ता) का नहीं है महत्वहीन है)
The Hon’ble Supreme Court bench comprising of Justice R. Banumathi & Justice S. Abdul Nazeer in the matter of Sasikala Pushpa And Others v.State Of Tamil Nadu, Criminal Appeal No.855 OF 2019 has held that a mere incorrect statement in the vakalatnama would not amount to creating a forged document and cannot be the reason for exercising jurisdiction under Section 340 Cr. P.C.
The first appellant was the then Member of Rajya Sabha and expelled Member of AIADMK Political Party. The third appellant is the husband of the first appellant. A complaint was filed by one Banumathi who was then working as a maid in the house of the appellants in the year 2011 alleging that she was sexually harassed while she was working in the house of the appellants. Based on the said complaint, a criminal case was registered against all the appellants in Crime No.5/2016 in All Women’s Police Station under Sections 294(b), 323, 344, 354(A) and 506(i) IPC and under Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 2002. The first appellant denied all the allegations and claimed that the same as a result of political vendetta against her.
The appellants filed bail application under Section 438 Cr.P.C. in Crl.OP(MD) No.15370 of 2016 against the said offences before the Madurai Bench of Madras High Court along with vakalatnama bearing the signature of appellants No. 1 and 3 dated 18.08.2016. The first appellant left for Singapore from New Delhi on 17.08.2016. While filing bail application in Crl.OP(MD) No.15370 of 2016, the appellants filed vakalatnama wherein it was stated that the said vakalatnama was signed by the appellants before Advocate Mr Vijaykumar on 17.08.2016 at Madurai. Challenging the maintainability of the bail petition and the vakalatnama, the respondent- State filed preliminary objections and submitted that appellant No.1 had left for Singapore from New Delhi on 17.08.2016 at 23.15 hours. Similarly, appellant No.3 had left for Singapore from Bengaluru on 18.08.2016 at 09.30 AM. It was alleged that the appellants filed an anticipatory bail application on 18.08.2016 as if they were present in Madurai on 17.08.2016 and signed the affidavit and vakalatnama in the presence of an advocate at Madurai. The High Court vide order dated 23.08.2016 directed the appellants to appear before the court on 29.08.2016 and to give their explanation concerning the said preliminary objection.
Accordingly, the appellants appeared before the court on the said date and submitted their affidavit before the High Court stating that the date mentioned in the vakalatnama was an inadvertent mistake.
In the impugned judgment, the High Court held that the explanations given by the appellants are not satisfactory and the same is contradictory to the written version as contained in the vakalatnama. Referring to the affidavit filed by the appellants, the High Court pointed out that appellant No.1 has explained that she never came to Madurai for signing the vakalatnama and that she had never signed the vakalatnama in the presence of advocate Mr Vijaykumar at Madurai. The learned Single Judge, therefore, held that prima facie, it appears that the document has been forged and the same has been signed and executed outside Madurai and produced before this court as though it has been signed and executed at Madurai and the same has been utilized and filed before the High Court. On the above findings, the High Court directed the Registrar (Judicial) to lodge the complaint against the appellants with the jurisdictional police station.
Pursuant to the direction of the High Court, the Registrar (Judicial) lodged a complaint with K. Pudur Police Station, Madurai on 19.09.2016. Based on the complaint lodged by the Registrar (Judicial) of the High Court, FIR in Crime No.1331/2016 was registered with K. Pudur Police Station, Madurai on 19.09.2016 for the offences punishable under Sections 193, 466, 468 and 471 IPC.
Being aggrieved, the appellants have filed these appeals.
It was urged by the counsel appearing for the appellants that the High Court erred in not because the vakalatnama contains the signature of the appellants and that the date thereon is a purely clerical error. It was submitted that the High Court has not recorded a finding to the effect that it is ‘expedient in the interest of justice’ to lodge a complaint against the appellants and the High Court erred in issuing directions to lodge the complaint to the police for registering a criminal case against the appellants. Further, it was contended that the High Court also erred in law in treating the vakalatnama filed by the appellants as the main reason for dismissing the anticipatory bail application.
Learned counsel appearing for the State of Tamil Nadu submitted that the High Court has categorically found that the first appellant has not signed the vakalatnama in Madurai on 18.08.2016 and therefore, the appellants have committed fraud upon the court and the High Court rightly issued directions to the Registrar for lodging complaint against the appellants. The learned counsel further submitted that the first appellant being the then Member of Parliament and her husband- the third appellant being a businessman and influential person are not cooperating with the investigation and the first appellant has given an evasive reply to the questions raised by the Investigation Officer. It was submitted that no grounds are made out for setting aside the directions issued by the High Court and for quashing of the FIR No.1331/2016 registered on the directions of the High Court. The learned counsel placed reliance upon Sachida Nand Singh and another v. State of Bihar and another (1998) 2 SCC 493.
The point falling before Hon’ble Court for consideration is whether, in the facts and circumstances of the case, the court was right in issuing directions to lodge the complaint against the appellants before the concerned police station for forgery and for creation of a forged document.
Hon’ble Court observed that there could be no two views about the proposition that even if the forgery is committed outside the precincts of the court and long before its production in the court, it would also be treated as one affecting the administration of justice. But in the present case, the vakalatnama filed by the appellants in Crl. O.P.(MD)No. 15370/2016 seeking anticipatory bail in Crime No.5/2016 cannot be said to be a forged document. As pointed out earlier, the appellants have admitted their signatures in the vakalatnama. They only allege that it was mistakenly recorded that it has been signed on 18.08.2016 at Madurai in the presence of the advocate. Of course, the version in the vakalatnama is an incorrect statement. In our opinion, the High Court was not justified in terming the said mistake or error as a fraud. Fraud implies intentionally deception aimed or achieving some wrongful gain or causing wrongful loss or injury to another. Intention being the mens rea is the essential ingredient to hold that a fraud has been played upon the court. The learned counsel for the State has submitted that upon examination of the signature in the vakalatnama, the hand-writing expert has opined that it is not the signature of the appellants and therefore, the intention of the appellants to create a forged document has been clearly made out. We do not find any merit in the submission as the appellants themselves admitted their signatures in the vakalatnama. In the light of the statement of the appellants admitting their signatures in the vakalatnama, we do not think that the opinion of the hand-writing expert would stand on any higher footing. There is nothing on record to suggest that the appellants gained anything by playing fraud or practising deception. In the absence of any material to substantiate the allegations, in our view, the High Court was not justified in accusing the appellants’ fraud.
Even assuming that the version in the vakalatnama is wrong, a mere incorrect statement in the vakalatnama would not amount to create a forged document and it cannot be the reason
for exercising the jurisdiction under Section 340 Cr.P.C. for issuance of direction to lodge the criminal complaint against the appellants.
In Amarsang Nathaji v. Hardik Harshadbhai Patel (2017) 1 SCC 117, this Court held that before proceeding under Section 340 Cr.P.C., the court has to be satisfied with the deliberate falsehood on a matter of substance and there must be a reasonable foundation for the charge. Observing that some inaccuracy in the statement or mere false statement may not invite a prosecution. The same view was quoted in Chintamani Malviya v. High Court of M.P. (2018) 6 SCC 15.
Applying the ratio of the above decisions, Hon’ble Court held that there is no prima facie evidence to show that the appellants had intended to cause damage or injury or any other acts. Since the disputed version in the vakalatnama appears to be an inadvertent mistake with no intention to make a misrepresentation, in our view, the direction of the High Court to lodge a criminal complaint against the appellants cannot be sustained and the same is liable to be set aside.
Reporting by: – Amit Kashyap.