An order for lodging a complaint under Section 340(1) CrPC without expressly recording any finding to the effect that it is expedient in the interest of justice to make a complaint under Section 340(1) is vitiated and illegal being in breach of the express provisions of Sec. 340 (1) and is liable to be set aside.

( 1 ) BY the instant application styled as one under Art. 227 of the Constitution of India, the accused of C. R. Case No. 120 of 1991 of the Court of Sub-Divisional Judicial Magistrate, Lalbag, moved this Court in its criminal revision jurisdiction praying for setting aside the order dated 19th April, 1991 passed in Misc. Appeal No. 80 of 1989 of the Fourth Court of Additional District Judge, Murshidabad, and also for quashing the criminal proceeding in C. R. Case No. 120 of 1991 of the Court of Sub-Divisional Judicial Magistrate, Lalbag.

( 2 ) THE facts and circumstances giving rise to the present application, as far as can be gathered from the materials placed before this Court, may in short, be stated as follows :on 27-2-1981, the accused petitioner instituted a suit being Title Suit No. 6 of 1981 in the Court of the Munsif, Lalbag for declaration of title and injunction in respect of certain property against the respondent No. 1 and some others, basing his right, title and interest in that property on a deed of sale deed 10-3-1938 which purports to have been executed by one Kedar Box Mondal in favour of one Ohedulla Mondal and registered in the Sub-Registry Office of Jangipur. Before the written statement was filed by the defendants including the respondent No. 1 in the suit, on a prayer made before the Court, it directed the plaintiff petitioner to file the aforesaid deed of sale dated 10-3-1938 and the petitioner filed that deed in compliance with that direction. Thereafter, the defendants on filing the written statement disputed the genuineness of the said deed of sale alleging that no such deed was ever executed or registered in the Jangipur Sub-Registry Office. Thereafter, issues were framed and the suit reached the stage of peremptory hearing but finally the suit was dismissed for default on 20-1-1988. Thereafter, the defendant respondent. No. 1 filed an application under S. 340, Cr. P. C. before the Court of Munsif, Lalbag, praying for lodging a complaint against the plaintiff petitioner alleging that the plaintiff petitioner fraudulently and dishonestly used as genuine the aforesaid deed of sale dated 10-3-1938 knowing or having reason to believe that it was a forged document and had thereby committed an offence punishable under S. 471, I. P. C. This application was registered as Misc. Case No. 34 of 1988 of the Court of Munsiff, Lalbag. The plaintiff petitioner contested the Misc. Case denying all the material allegations made in the application and contending inter alia that he claimed to have acquired his right, title and interest by virtue of a sale deed dated 25-3-1975 executed by one Sekh Maniruddin and that the impugned sale deed dated 10-3-1938 was filed by him not on his own but in pursuance of the direction of the Court. It was also alleged that it was not within his knowledge that the sale deed dated 10-3-1938 was a forged one and that he filed the said deed without any knowledge or reasons to believe that it was a forged one.

( 3 ) THE learned Munsiff held a preliminary inquiry and upon consideration of all the evidence that was led during that inquiry, he was of the view that the respondent No. 1 had not been able to make out a prima facie case against the plaintiff petitioner under S. 471 of the I. P. C. and in such view of the matter, the learned Munsiff dismissed the Misc Case on 29-4-1989 and refused to lodge a complaint as prayed for.

( 4 ) BEING aggrieved by this refusal, the respondent No. 1 preferred an appeal being Misc. Appeal No. 80 of 1989 of the Fourth Court of Additional District Judge, Murshidabad. The learned Additional District Judge was of the view that in view of specific assertion in the written statement denying the existence of the impugned deed of sale, the plaintiff petitioner should have inquired in the matter for verifying the truth or otherwise of the said assertion and if such inquiry revealed the truth of the assertion, the plaintiff petitioner