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1999 DIGILAW 138 (KER)

Parvathi Amma v. Damodaran Nambiar

1999-03-10

K.A.MOHAMMED SHAFI

body1999
Judgment :- K.A. Mohamed Shafi, J. This petition is filed by the accused in Crime No. 66/97 of Peringome Police Station to quash the complaint filed by the 1st respondent and the FIR registered by the police against the petitioners under S.482 of the Crl.P.C. 2. The 1st petitioner has filed O.S. No. 151/94 before the Munsiff s Court, Payyannur against the 1 st respondent and others for a permanent prohibitory injunction restraining them from interfering with the peaceful possession and enjoyment of the plaint schedule property. In that suit a purchase certificate obtained by her from the Land Tribunal in O.A. No. 11538/76 was produced and marked as Ext. A2. The Munsiff's Court disbelieved the case of the petitioner and also Ext. A2 and dismissed the suit by decree and judgment dated 20.6.1996. It is submitted that A.S. No. 76/96 filed by the 1st petitioner against that decree and judgment is pending before the Subordinate Judge's Court, Payyannur. 3. After the disposal of the suit the 1 st respondent filed a private complaint before the Judicial First Class Magistrate's Court, Payyannur under S.191 of the Crl. P.C. alleging that during the course of the trial in O.S. No. 151/94 the petitioners in furtherance of their common intention unlawfully created some false entry regarding the extent and R.S. No. in the purchase certificate in O.A. No. 11538/76 and the same was produced before the Munsiff s Court, Payyannur in order to obtain wrongful gain and cheat the 1st respondent, praying to direct the Peringome police to investigate the case and proceed against the petitioners as perlaw. The Judicial First Class Magistrate's Court, Payyannur sent the complaint to the Peringome Police for investigation and report under S.156(3) of the Crl. P.C. Accordingly the Peringome Police registered a case in Crime No. 66/97 against the petitioners for the offences punishable under Ss.465 and 468 of IPC. Therefore, the petitioners have preferred this petition to quash the complaint as well as the F.I.R. registered against them in pursuance of the complaint filed by the 1st respondent. 4. P.C. Accordingly the Peringome Police registered a case in Crime No. 66/97 against the petitioners for the offences punishable under Ss.465 and 468 of IPC. Therefore, the petitioners have preferred this petition to quash the complaint as well as the F.I.R. registered against them in pursuance of the complaint filed by the 1st respondent. 4. The petitioners vehemently contended that the complaint filed by the 1st respondent and the subsequent F.I.R. registered by the Peringome Police in pursuance of the complaint are barred under S.195(l)(b)(ii) of the Cr.P.C. since the complaint in writing is not filed by the Munsiff s Court in the proceedings of which court the offences are alleged to have been committed. According to the petitioners, S.340 of the Crl.P.C. stipulates the procedure to be followed by the court in cases coming under S.195 of the Crl.P.C. Under S.340 of the Crl. P.C. when it appeared to have committed an offence punishable under S.195(l)(b) of Cr.P.C. in or in relation to a proceeding before the court and it is expedient in the interests of justice an enquiry should be made into the offence, the court after making such preliminary enquiries it thinks necessary has to record a finding to that effect to make a complaint thereof in writing and sent it to the Magistrate having jurisdiction. 5. The counsel for the petitioners contended that the Munsiff s Court in which the suit was tried, did not choose to make any enquiry under S.340 of the Crl.P.C. or to make any complaint against the petitioners, though it was found that the purchase certificate Ext. A2 produced by the 1 st petitioner in the suit is not reliable. Therefore, according to them, in view of the fact that the court did not choose to take any action against the petitioners under S.195 of the Cr.P.C. the private complaint filed by the 1st respondent against the petitioners is incompetent and the subsequent FIR registered by the Peringome Police against them in pursuance of that complaint is illegal and therefore, they are liable to be quashed by this Court by exercising jurisdiction under S.482 of the Crl.P.C. since they are manifest abuse of the process of law and court instituted with malafide intention to harass the petitioners. 6. 6. In support of the contention that when no complaint is filed by the court in which the forged document is produced, the prosecution is not maintainable, the counsel for the petitioners relied upon the decisions in Gopalakrishna Menon v, D. Raja Reddy (AIR 1983 SC 1053) and Ramakrishnan v. State of Kerala (1998 (1) KLT 68). In the decision reported in AIR 1983 SC 1053 the apex Court has observed as follows: "Once it is accepted that S.463 defines forgery and S.467 punishes forgery of a particular category, the provision in S.195(1)(b)(ii) of the Code would immediately be attracted and on the basis that the offence punishable under S.467 of the Penal Code is an offence described in S.463, in the absence of a complaint by the Court the prosecution would not be maintainable." In the decision reported in 1998 (1) KLT 68 a Single Judge of this Court has observed as follows: "Thus, if an offence in terms of S.463 is alleged to have been committed in course of a proceeding in court, the proper procedure is to make a preliminary enquiry as contemplated in S.340 Crl. P.C. instead of directing a police officer to investigate into it. In this case, the direction of the Magistrate to investigate an offence under S.465, therefore, is contrary to law". 7. The learned counsel for the petitioners also relied upon the decision in Punjab State Co-op. Supply & Marketing Federation. Ltd. v. B.S. Aulakh (AIR 1997 SC 2001) wherein the Supreme Court after finding that a case has been made out for initiating criminal proceedings against the plaintiff in that case who produced false and fabricated documents in court, directed the Registrar of the High Court of Punjab and Haryana to take necessary steps to file a criminal complaint in the competent court in that regard. 8. On the basis of the dicta laid down in the above decisions, the counsel for the petitioners vehemently submitted that as it is held that the offences punishable under S.465 and 468 of IPC are alleged to have been committed by the petitioners in the course of a proceeding before the civil court and the civil court has not chosen to make an enquiry under S.340 of Crl. P.C. and make a written complaint before the competent Magistrate in respect of the alleged offence, the complaint filed by the 1st respondent against the petitioners before the Magistrate's Court is illegal and the direction by the Magistrate's Court to the police to conduct investigation and file report under S.156(5) of the Crl. P.C. is also illegal. 9. The counsel for the 1st respondent argued that the forgery alleged against the petitioners is committed before the production of the document in court and there is no allegation that the petitioners have committed forgery after Ext. A2 in the suit was produced before the court and therefore, the complaint filed by the 1st respondent before the Magistrate's Court in respect of the alleged forgery against the petitioners, the direction by the Magistrate to the police to investigate and file report under S.156(3) of the Crl.P.C. and the consequent registration of Crime No. 66/97 by the Peringome Police against the petitioners, are perfectly legal and valid. In support of this contention the counsel for the 1st respondent relied upon the decision of the Supreme Court in Sachida Nand Singh & Ann v. State of Bihar & Ann (AIR 1998 SC 1121 =1998 (1) Supreme Today 419) wherein the Supreme Court has observed as follows: "These quitur of the above discussion is that the bar contained in S.195(l)(b)(ii) of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a Court." The above decision of the Supreme Court is rendered by a three Judge Bench of the Apex Court on 3.2.1998. 10. The decisions relied upon by the counsel for the petitioners reported in AIR 1983 SC 1053 and 1998 (1) KLT68 were pronounced much prior to the pronouncement of the judgment reported in AIR 1998 SC 1121 =1998 (1) Supreme Today 419. The decision rendered by the two Judges' Bench reported in AIR 1997 SC 2001 is dated 9.4.1997. Though the decision in AIR 1983 SC 1053 and AIR 1998 SC 1121=1998 (1) Supreme Today 419 are rendered by the two Judges' Bench of the Supreme Court, this Court is bound to follow the latter decision of the Supreme Court. Therefore, it is clear that in respect of the case of alleged forgery of the document committed before the same was produced in court, the provisions under S.195(l)(b) are not applicable. Therefore, it is clear that in respect of the case of alleged forgery of the document committed before the same was produced in court, the provisions under S.195(l)(b) are not applicable. Therefore the contention of the petitioners that the complaint is filed by the 1st respondent in contravention of S.195(l)(b)(ii) of the Crl. P.C. and as such the complaint as well as the F.I.R registered by the police on the basis of the directions of the Magistrate to investigate and to file report before the Court under S.156(3) of the Crl.P.C. are in contravention of S.195(l)(b)(ii) of the Crl.P.C. and as such illegal and are liable to be quashed, is not sustainable. Hence this Crl. M.C. is dismissed.