ASHOK BHUSHAN,J. - (1.) This appeal has been filed questioning the judgment and order dated 06.10.2009 of the High Court of Bombay at Goa in Criminal Appeal No. 22 of 2009 by which judgment, the criminal appeal filed by the respondent Shri Narayan M. Dessai has been allowed setting aside the order of District & Sessions Judge dated 31.07.2008 directing for filing a complaint under Section Signature Not Verified
(2.) The facts which are necessary to be noted for deciding this appeal are:- A regular Civil Suit No. 4 of 1993 was filed by two plaintiffs namely Laximan Rama Gaonkar and Janu Narayan Gaonkar impleading two defendants namely Kusta Naga Gaonkar and Shri Suresh Kust Gaonkar. The appellant in this appeal is legal heir of original plaintiff No. 2, Janu Narayan Gaonkar. The Suit No. 4 of 1993 was decreed by judgment and decree dated 07.12.2001. An application for execution of decree was filed by the legal heirs of the plaintiffs on 07.12.2003. Legal heirs of the original defendants filed a Civil Appeal No. 91 of 2004 questioning the judgment and decree dated 07.12.2001. One of the appellants in Civil Appeal No. 91 of 2004 namely Shaba Manju Velip (one of the legal heirs of original defendants Kusta Naga Gaonkar) died on 02.03.2005. No application to bring his legal heirs on record was filed by the appellants. The application to withdraw execution case No. 1 of 2003 filed for execution of the decree in Civil Suit No. 4 of 1993 was filed by the plaintiff's advocate on 20.06.2006. The application for withdrawal of Civil Appeal No. 91 of 2004 was filed on 18.07.2006, which was allowed on 18.07.2006 itself. The Execution Case No. 01 of 2003 was also allowed to be withdrawn on 21.07.2006. On 29.11.2007, the appellant filed an application under Section 195(1)(b)(ii) Cr.P.C. making allegations against the respondent, who was counsel for the appellants in Civil Appeal No. 91 of 2004 that he committed offence in verifying and forging thumb impression of dead appellant namely Shaba Manju Velip. By order dated 31.07.2008, learned District and Sessions Judge found that it is a fit case for inquiry under Section 195(1)(b)(ii) and directed for inquiry and registering a complaint under Section 195(1)(b)(ii) . Respondent preferred an appeal before the High Court against the order of District and Sessions Judge dated 31.07.2008. The High Court vide its impugned judgment allowed the appeal and quashed the order of the District Judge dated 31.07.2008 as well as the complaint filed pursuant thereto. Aggrieved against the judgment of the High Court, the appellant has filed this appeal.
(3.) Learned counsel for the appellant submitted that the High Court relying on the Three Judge Bench judgment of this Court in Sachida Nand Singh & Anr. Vs. State of Bihar & Anr., (1998) 2 SCC 493, which has been approved by the Constitution Bench of this Court in Iqbal Singh Marwah & Anr. Vs. Meenakshi Marwah & Anr., (2005) 4 SCC 370, has allowed the appeal filed by the respondent whereas the above judgments of this Court, wherein reference was made to Section 195(1)(b)(ii) Cr.P.C., which were not applicable in the facts of the present case, since allegations made in the complaint filed by the appellant were referable to Section 195(1) (b)(i). It is submitted that the District & Session Judge has rightly considered all facts and circumstances and directed for filing of complaint against the respondents under Section 195(1)(b) . No one has appeared on behalf of the respondent in spite of service.;