Dhan Raj - (1.) IN this case, the petitioner has filed a petition under sections 397, 398, 402 and 403 of the Companies Act, 1956, for alleged acts of oppression and mismanagement on the part of the respondents and the same is pending adjudication, in the meantime the petitioner has filed the present company application with the prayer to take cognisance of the offence committed by the respondents and direct appropriate inquiry under section 340 of the Code of Criminal Procedure, 1973. Precisely speaking, it has been stated in the company application that the petitioner has strong suspicion that it is respondent No. 1 who appears to have fabricated the false signature of respondent No. 2 on the pages of the reply. Further, the resignation letter of the petitioner and another director of the company, viz., Shri Harcharan Singh have also been fabricated and misused against the petitioner and submitted to the Registrar of Companies apart from the fabricated resolution of the company dated July 5, 2011. In addition, it has also been submitted that the respondents misutilised and misused the signature given by the petitioner on blank paper in good faith, by using the same to fabricate a board resolution dated July 5, 2011. In this regard, it has been pointed out that there is a wide gap between the line where the text of the resolution ends and where the signature is purported to have been affixed by the petitioner. Furthermore, even the official designation stamp, is tilting towards the right side edge of the page, falling outside the right margin on the contents of the resolution. Not only this, pre -signed blank papers have been misused by respondent No. 1 to fabricate the alleged affidavit signed on October 14, 2010, to suit his own needs and convenience. Though there have been various litigations and proceedings before various forums, but till date the alleged affidavit has never been produced before any authority and it has been produced for the first time by using back dated adhesive stamps. With regard to the said affidavit, the following discrepancies have also been pointed out: (a) While affidavit is purported to have been sworn and given under oath by the deponent in his individual capacity, the said affidavit has been purported to be issued on behalf of the company, i.e., M/s. Chausana Food Processings P. Ltd. Thus, such an affidavit has no standing in the eyes of law. (b) Though any affidavit is required to be duly verified by the deponent, the affidavit in question does not bear any such verification and as such not an affidavit in the eyes of law and does not carry any weight. (c) The alleged affidavit has not even been attested by the Oath Commissioner nor notarised by an authorised Notary. Therefore, the said affidavit lacks veracity and is of no consequence and effect and a non est in the eyes of law. (d) The adhesive stamps affixed on the pre -signed blank papers have been manipulated by respondent No. 1 as the same were never purchased by the petitioner, it is submitted that ante -dated stamps have been procured by respondent No. 1. The petitioner reserves its right to initiate appropriate proceedings against respondent No. 1 for playing such fraud. The present company application was filed on September 6, 2013 and respondents' advocate as well as the petitioner's advocate agreed for putting up arguments without submission of reply and rejoinder respectively. In view of this, the company application was taken up for final arguments.
(2.) THE petitioner's advocate argued that the signature of respondent No. 2 appearing in the pleadings and all affidavits as deponent, attached with the written statement reply to applications in Company Petition No. 1 (ND) of 2012 are forged and fabricated and they are different from the signature on the sale deed executed by him before the Sub -Registrar, Kairana. Further, it has been pleaded that Chapter XI of the Indian Penal Code, 1860, deals with false evidence and offences against public justice. Section 191 defines giving of false evidence as an offence while section 193 prescribes the punishment. There are also other provisions with regard to false evidence. These provisions are there to enable the court to punish those who make false averments in the pleadings or file forged documents. The procedure is given in section 340 of the Code of Criminal Procedure, 1973, which reads as under: 340. Procedure in cases mentioned in section 195. - -(1) 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 (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, - - (a) record a finding to that effect; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the first class having jurisdiction; (d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non -bailable and the court thinks it necessary so to do send the accused in custody to such Magistrate; and (e) bind over any person to appear and give evidence before such Magistrate. The petitioner's advocate has contended that false averments in pleadings and relying upon false and forged documents are sufficient to attract provisions of Chapter XI of the Indian Penal Code. From the affidavit of respondent No. 2, it has been pleaded that the identification has not been properly done. Further, though the purported Notary Public, Karnal before whom respondents Nos. 2 and 3 have sworn their affidavits is same namely, Shri Charan Singh having Registration No. 3485, the two purported signatures of Notary Shri Charan Singh are absolutely different and appear to be forged from the naked eyes. In addition, the object of verifying a pleading is to fix, on the party verifying, responsibility for the statement that it contains. In a case titled Dr. Smt. Shipra v. Shanti Lal, : AIR 1995 Raj 50, it was observed that the object of verification is to test the genuineness and authenticity of the averments made in the election petition and to fix responsibility for the allegations made on the person who verifies it and to ensure that false allegations are not made recklessly. Therefore, the false verification has been made punishable under sections 191 and 193 of the Indian Penal Code. The petitioner's advocate has cited the following judgments in his support: The Supreme Court in suo motu proceedings against R.R. Kamppan observed that: It is not disputed that an affidavit is evidence within the meaning of section 191 of the Indian Penal Code and a person swearing to a false affidavit is guilty of perjury punishable under section 193 of the IPC. The respondent herein, being legally bound by an oath to state the truth in his affidavit accompanying the petition is prima facie held to have made a false statement which constitutes an offence of giving false evidence as defined under section 191 of the IPC, punishable under section 193 of the IPC. In Pritish v. State of Maharashtra : [2002] 1 SCC 253, it was held (page 258): 9. Reading of the sub -section makes it clear that the hub of this provision is formation of an opinion by the court (before which proceedings were to be held) that it is expedient in the interest of justice that an inquiry should be made into an offence which appears to have been committed. In order to form such opinion the court is empowered to hold a preliminary inquiry. It is not peremptory that such preliminary inquiry should be held. Even without such preliminary inquiry the court can form such an opinion when it appears to the court that an offence has been committed in relation to a proceeding in that court. It is important to notice that even when the court forms such an opinion it is not mandatory that the court should make a complaint. This sub -section has conferred a power on the court to do so. It does not mean that the court should, as a matter of course, make a complaint. But once the court decides to do so, then the court should make a finding to the effect that on the fact situation it is expedient in the interest of justice that the offence should further be probed into. If the court finds it necessary to conduct a preliminary inquiry to reach such a finding it is always open to the court to do so, though absence of any such preliminary inquiry would not vitiate a finding reached by the court regarding its opinion. It should again be remembered that the preliminary inquiry contemplated in the subsection is not for finding whether any particular person is guilty or not. Far from that, the purpose of preliminary inquiry, even if the court opts to conduct it, is only to decide whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed. In S.N. Harish v. Pods Biotech P. Ltd. : [2009] 148 Comp Cas 804 (CLB), the hon'ble Company Law Board, Additional Principal Bench, Chennai, held (page 808): Sending documents to the Forensic Sciences Department is also a part of enquiry while dealing matters under section 397/398 of the Act... In the present case counsel for the applicants submits that the said documents are forged whereas counsel for the respondents denies the same. In these circumstances, it is to be ascertained by the Bench, whether such forgery has been committed or not. Further, the Forensic Sciences Department after comparing the signatures in the admitted documents with other documents will only give its report whether the signature is genuine or not. The said Department will not decide whether that signature is forged or fabricated. In view of the above, I am inclined to send the original documents, i.e., resignation letter and share transfer deed to Forensic Sciences Department for comparison with the admitted signatures of the second applicant herein for its opinion.
(3.) LASTLY , it has been stated that the signature of respondent No. 2 in the affidavits are not genuine and this hon'ble court has jurisdiction to send the disputed documents containing the admitted signatures and the forged signatures to the Forensic Sciences Department for comparison so that the truth will come out.;