The pendency of a first appeal before the High Court affects the competence of the trial court to entertain and commence an enquiry on a petition under Section 340 of the Code.

ORDER :- By this petition the petitioner has impugned the order dated 4-2-2005 passed in M.J.C. No. 17/04 whereby the District Judge, Bilaspur on a petition under Section 340 of the Code of Criminal Procedure, 1979 (for short "Code") filed by the defendant/respondent Motilal has commenced the enquiry and directed the respondent to keep his witnesses present on the next date of hearing.

2. Brief facts necessary for deciding this petition are that the defendant/respondent filed an application under Section 340 of the Code with an allegation that the plaintiff/ petitioner herein obtained a decree dated 12-5-2000 in Civil Suit No. 10-A/99 on the basis of forged agreement exhibited as Ex. P-4 in the said civil suit, as the petitioner has forged the signature of the respondent in the document of Ex. P-4. A specific objection was taken by the respondent/defendant that the signature was forged, however, the said issue was decided against the respondent/ defendant on the ground that the defendant could not prove that the document did not bear his signature by examining the handwriting expert. The petitioner was bound to rely upon the true documents. It was further averred that subsequently the respondent obtained the certified copy of document of Ex. P-4 and sent the some along with his specimen signatures to the handwriting expert for examination and Dr. (Miss) Sunanda Dhenge, after comparing the signature in dispute with the specimen signatures, has reached to the conclusion that the disputed and comparative signatures are not similar and she has formed an opinion of different authorship of disputed and comparative document.

3. The petitioner herein in reply to the petition averred that the respondent has preferred a first appeal bearing No. 488/ 2000 against, the judgment and decree passed by the Court below and the same is pending before the High Court. The trial Court on the basis of evidence available on record decreed the suit with an observation that the signature of respondent-Motilal in the document of Ex. P-4 completely matches with his admitted signature of Ex. D-1 and the lacuna of defendant in the civil suit cannot be filled up by way of a petition under Section 340 of the Code.

4. Learned District Judge after hearing learned counsel for respective parties directed the respondent to produce his witness in support of his application under Section 340 of the Code.

5. Learned counsel for the petitioner argued that specific objection was taken by the respondent/defendant before the District Judge that document of Ex. P. 4 does not bear his signature. However, learned District Judge after considering the overall documentary evidence available on record and after comparing the signature of the defendant in the admitted document of Ex. D-1 and document of Ex. P-4 recorded a finding that both the signatures completely match with each other. There was no admissible evidence before the District Judge on the basis of which the Court can record a finding that the document tendered by the petitioner herein in the above civil suit was forged. The first appeal preferred by the respondent/defendant is pending in the High Court and the document has been held to be genuine document by a competent Court and unless it is reversed by the appellate Court in the appeal preferred by the respondent/defendant, the genuineness of the document cannot be questioned in a proceeding under Section 340 of the Code.

6. On the other hand, learned Sr. Advocate for the respondent relying upon the judgment in the matter of Bhagwandas Narandas v. D. D. Patel and Co., reported in AIR 1940 Bom 131 submitted that it is not necessary that the application under Section 340 of the Code should be made during the course of proceedings out of which the application arises, or immediately thereafter and whether the Court would accede to an application made long after the termination of the proceedings out of which it arises is a matter which would arise upon the merits and wo

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