Pratibha Upasani, -
(1.) THIS miscellaneous appeal is filed by the appellants/original defendants being aggrieved by the order dated 16th February, 2005 passed by the learned Presiding Officer of D.R.T. - III, Mumbai on exhibit No. 81 in Original Application No. 2165 of 2000. By the impugned order, the learned Presiding Officer rejected the application made by the appellants/defendants praying that the Tribunal under the powers and provisions of Section 195 read with Section 340 of the Criminal Procedure Code, 1973, refer a complaint in writing to the Magistrate having jurisdiction over the branch office where the applicant Bank's branch is located and examine the said complaint and issue process to the accused namely, Madam P.M. Mistry, Kaushalya Sampat and Aadivaran of the applicant Bank for committing the offence of forgery, fabrication of false documents, using documents known to be false, creating and using false evidence. It is this application, which came to be rejected by the learned Presiding Officer by his reasoned order, which is impugned in the present appeal.
(2.) I have heard Mr. Rishabha Shah for the appellants and Mr. Devendra Singh for the respondent Bank. I have also gone through the proceedings and in my view, the learned Presiding Officer has not committed any error.
It appears that the defendants have already arrived at the conclusion all by themselves that the officers of the Bank mentioned in the application had been proved to be guilty of fabricating false evidence, guilty of using evidence known to be false etc. The appellants have referred to Section 195 read with Section 340 of the Cr.P.C., 1973. Section 195 of the Cr.P.C. lays down with respect to prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.
Section 340 of the Cr.P.C. lays down procedure in cases mentioned in Section 195. Section 340 of Cr.P.C. can be reproduced below for the sake of ready reference.
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) 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 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.
(2) The power conferred on a Court by Sub-section (1) in respect to an offence may, in any case where that Court has neither made a complaint under Sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of Sub-section (4) of Section 195.
(3) A complaint made under this section shall be signed,
(a) where the Court making the complaint in a High Court, by such officer of the Court as the Court may appoint;
(b) in any other case, by the Presiding Officer of the Court.
(4) In this Section, "Court" has the same meaning as in Section 195.
The mere reading of Section 340 will make it clear that when any application under Section 195 read with Section 340 is made, if 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 proceeding in that Court. Section further states that the Court has to make preliminary inquiry, if any, as it thinks necessary and the Court will have to record a finding to that effect and then make a complaint thereof in writing and send it to a Magistrate of the first class having jurisdiction.
In the present case at hand, the Original Application is still pending. Whether the documents are false or genuine is the question, which has to be decided on merits. At this stage, the Court cannot observe about the genuineness or otherwise of the documents. It is not known what prevented the appellants to move the criminal authorities for ventilating their grievances. No doubt, Section 22(3) of the RDDBFI Act, 1993 has conferred a power on the Tribunal and the Appellate Tribunal. Section 22(3) states that;
the Tribunal or the Appellate Tribunal shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXVI of the Cr.P.C., 1973.
However, in the present case at hand, considering the chronology of events and peculiar circumstances, it appears that such an application is made only to prolong the matter. Indeed, it has to be construed that it is a misuse of the process by the defendants. The D.R.Ts. are established for the purpose of expeditious adjudication and recovery of debts due to Banks and financial institutions. If the Tribunal comes to the conclusion that any fraud has been played, the Tribunal is competent to take necessary steps against the concerned person when all the requirement of Sub-section (2) of Section 340 arc completed. I therefore, find no merit in this appeal, which has to be rejected. Accordingly, followed order is passed:
Miscellaneous appeal No. 74 of 2005 is dismissed.