( 1 ) THIS appeal is directed against the order of 24. 12. 83 of Shri K. P. Verma, Additional District Judge, whereby he directed the lodging of a criminal complaint against the appellants for the offences alleged to have been committed by them u/s 191 read with S. 193 of the IPC for their having pleaded under ground no. 4 (13) of the appeal. "that the respondent no. 2 is not party in the proceedings. . . . . "

( 2 ) THE appellants supported the aforesaid ground of their appeal even by means of an affidavit dated 31. 10. 81 deposed to by the appellant K. K. Khanna on behalf of the appellants. Respondent 2 was a party in the insolvency proceedings and had subsequently on his own application, been substituted as petitioner creditor in those proceedings.

( 3 ) THE persual of the impugned order shows that it was no-where opined or recorded as a fact that the lodging of the complaint against the appellants was expedient in the interest of justice as required u/s. 340 of the Code of Criminal Procedure, 1973 (in short the Code. ). This requirement of law was of fundamental importance and the omission in that regard vitiates the impugned order. Even though prosecution for perjury may be possible but S. 340 of the Code does not permit complaints to be lodgedin all these cases and lodging the complaint is permissible only when the court making the complaint is of the positive view that the lodging of the complaint would be expedient in the interest of justice. This point has been dealt with in a number of authorities. In Santokh Singh v. Izhar Hussain Supreme Court observed :-

"every incorrect or false statement does not make it incumbent on the court to order prosecution. The court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency. The court orders prosecution in the larger interest of the administration of justice and not to gratify feelings of personal revenge or vindictiveness or to serve the ends of a private party. "

( 4 ) S. 476 was the earlier corresponding section in the old Code of 1908. In Chatur Jethaji AIR 1932 Bom. 551 (DB) while dealing with that provision it was observed :

"the important words in that section which must be noted are that the court must be of opinion that it is expedient in the interests of justice that an enquiry should be made. These words, in my opinion are the key-note to the section. . . ".

( 5 ) DELHI High Court also in Shri Krishan Dev v. Lal Chand AIR (1969) D. 783 (At page 788) held that the important question which a court ordering prosecution of a party to a proceeding before it is required to keep in view is whether it is expedient in the interest of justice that such action should be taken. To the same effect is the Lala Nand Lal v. Emperer AIR 1937 Lahore 867 which has further held that it is necessary for the court to find that the conviction of the witness was practically certain before it could direct its prosecution. The persual of the impugned order shows that Mr. Verma, ADJ, was not himself quite sure whether the prosecution of the appellants would certainly and necessarily end in conviction. The following observation from the impugned order are relevant and apposite upon this point. " :-

"however it is for the criminal court to find as to whether any offence is made out against the appellants or not. This court is only to see as to whether a prima facie case is made out or not. Thus, I find that a prima facie case is made out against the appellants, for lodging a complaint. "

( 6 ) THUS, in the impugned order the learned ADJ has failed to record that the lodging of the complaint against the appellants would be expedient in the interest of justice and that he was quite certain about the conviction of the appellants therein. The absence of this plain finding vitiates the impugned order.

( 7 ) THE contention of the learned counsel representing respondent 2 is that the aforesaid plain finding ought b