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2001 DIGILAW 53 (CAL)

Shiv Kishan Agarwal v. State of West Bengal

2001-02-05

Debiprasad Sengupta

body2001
JUDGMENT Debiprasad Sengupta, J.: The present application is for quashing of a proceeding being Case No. C-63/2000 (T.R. No. 33/2000) under section 465/467/468/471/120B of the Indian Penal Code pending in the court of learned Metropolitan Magistrate, 14th Court, Calcutta. 2. Before entering into the case of the complainant it is necessary to have a discussion regarding the background of the case. Late Ganga Bishan who was also known as Haldiram Bhujiawala, had been doing his business of manufacture and sale of salted preparations like bhujia, papad and sweets etc. since 1941 under the name and style of "Chandmal Ganga Bishan" and "Haldiram Bhujiawala" initially in Bikaneer and later on also in Calcutta. He formed a partnership firm in the year 1965 under the name and style of M/s. Chandmal Ganga Bishan with four partners namely, (1) Ganga Bishan himself, (2) Moolchand (his son), (3) Shiv Kishan (son of Moolchand) and (4) Smt. Kamala Devi, wife of Shri Rameshwarlal (his daughter-in-law). The said partnership firm was dissolved by means of a deed of dissolution dated 16.11.74 and thereby registered trade mark No. 285062 was allotted exclusively to Shri Moolchand for the whole of India except the State of West Bengal. It was agreed that in the State of West Bengal Smt. Kamala Devi or her representatives could carryon similar business. Shri Rameshwarlal, husband of Kamala Devi simultaneously by a separate writing of same date also had acknowledged, declared and recognised such right of Moolchand as the sole and exclusive user of the trade mark. 3. Ganga Bishan died in the year 1980. Moolchand also died on 30.7.85 leaving behind him his four sons (the present petitioners Nos. 1 to 4). The four sons of Moolchand had made an application before the Registrar, Trademark on 22.11.85 for renewal and transmission of the said registered trademark in their names and the said application was allowed. The said trade mark was thereafter renewed time to time in their names. 4. On 10.10.1977 Moolchand's brother Rameshwarlal, (husband of Smt. Kamala Devi and complainant/o.p. No.2) and his son Prabhu Shankar Agarwal applied for registration of this very name at Calcutta claiming to be the owners of the trade mark without disclosing the dissolution deed dated 16.11.74 and the Declaration dated 16.11.74 made by Sri Rameshwarlal Agarwal. 5. 4. On 10.10.1977 Moolchand's brother Rameshwarlal, (husband of Smt. Kamala Devi and complainant/o.p. No.2) and his son Prabhu Shankar Agarwal applied for registration of this very name at Calcutta claiming to be the owners of the trade mark without disclosing the dissolution deed dated 16.11.74 and the Declaration dated 16.11.74 made by Sri Rameshwarlal Agarwal. 5. Ashok Kumar Agarwal, son of Smt. Kamala Devi intended to start his business in Delhi in violation of the petitioners' trade mark "Haldiram Bhujiawala", although he had no right to use the said trade mark outside the State of West Bengal. The present petitioner No.1 in his individual capacity filed a suit for permanent injunction before the learned District Judge, Delhi with a prayer that Ashok Kumar Agarwal and their agents and representatives be restrained by an order of permanent injunction from using the petitioner's trade mark "Haldiram Bhujiawala". The said suit was transferred/refiled before the High Court and was registered as Suit No. 635/92 at Delhi High Court. In the written statement filed in the said suit Ashok Kumar Agarwal, son of Kamala Devi (complainant in the present proceeding) made categorical admission regarding execution, signing and existence of the deed of dissolution dated 16.11.74. The learned Single Judge of Delhi High Court by an order dated 12.5.99 dealt with the effect of the aforesaid deed of dissolution to the following effect:- "a) By means of Dissolution Deed dated 16.11.74, the trade mark was exclusively assigned to Shri Moolchand for use in Indian except the State of West Bengal. b) Smt. Kamala Devi who was a party to the Dissolution Deed as a partner is bound by the terms of this Dissolution Deed. c) Rameshwar Lal Agarwal, predecessor in interest of the defendants has also bound himself in his simultaneous declaration made on 16.11.1974 confirming/accepting the same. d) After the dissolution of the firm on 16.11.74 Shri Moolchand exclusively became entitled to the use of this trade mark in India except in the State of West Bengal." The application was accordingly allowed by the learned Single Judge of Delhi High Court on being satisfied that the plaintiff had a prima facie case in their favour. d) After the dissolution of the firm on 16.11.74 Shri Moolchand exclusively became entitled to the use of this trade mark in India except in the State of West Bengal." The application was accordingly allowed by the learned Single Judge of Delhi High Court on being satisfied that the plaintiff had a prima facie case in their favour. The defendants, their agents and representatives were restrained by an interim injunction from using the trade mark "Haldiram Bhujiawala" as registered vide registration No. 285062 or any other trade mark identical or deceptively similar thereto in India except in the State of West Bengal. 6. Being aggrieved by the aforesaid order dated 12.5.99 Ashok Kumar Agarwal preferred an appeal before the Division Bench of Delhi High Court. By an order dated 25.5.99 passed by the Division Bench of Delhi High Court the prayer for stay of operation of the order dated 12.5.99 passed by the Ld. Single Judge of the said Court, was rejected. After dismissal of the stay application Ashok Kumar Agarwal filed another application that the petitioners' suit is not maintainable under section 69 of the Indian Partnership Act. The learned Single Judge of Delhi High Court by an order dated 2.11.99 dismissed the said application preferred by Ashok Kumar Agarwal. Aggrieved by the said order he preferred an appeal before the Division Bench, which was also dismissed. Challenging the order of the Division Bench SLP was preferred in the Hon'ble Supreme Court. By an order dated 28.2.2000 the Hon'ble Supreme Court dismissed the Appeal with the following observations:- "The reference in the plaint to the Dissolution Deed dated 16.11.74 was merely a reference to a historical fact that was the source of the right of Moolchand and on his death, the said right to the trade mark devolved on his sons (petitioners herein), the petitioners were not parties to the Deed of Dissolution. The defendants too were not parties to the Dissolution Deed though their mother was (Smt. Kamala Devi)". It has been further observed: "Their mother, Smt. Kamala Devi, was no doubt a party to the contract of Dissolution". 7. The background of the case as aforesaid has been brought to the notice of this court by the learned Advocate appearing for the petitioners. Mr. It has been further observed: "Their mother, Smt. Kamala Devi, was no doubt a party to the contract of Dissolution". 7. The background of the case as aforesaid has been brought to the notice of this court by the learned Advocate appearing for the petitioners. Mr. Bose, the learned Advocate further points out that after a gap of 25 years from the date of execution of the said deed of dissolution and after 9 years of litigations in different courts, Smt. Kamala Devi filed a suit before this court being C.S. No. 386/99 in July, 1999 praying for a declaration that the deed of dissolution dated 16.11.74 is fraudulent, illegal, null and void and for other reliefs. Mr. Bose further points out that in the said suit by an order dated 16.7.99 the original deed of dissolution was directed to be produced and in compliance with the said order the original deed of dissolution was produced before this court on 30.7.99. Thereafter in August, 1999 two applications were filed by Smt. Kamala Devi in the said suit. One was for amendment of the plaint. The other one was an application under section 340 of the Code of Criminal Procedure praying for issuance of a show cause notice to the petitioners to show cause as to why the Registrar, Original Side of this Court should not be directed to file a complaint against the petitioners for having committed offences punishable under sections 464/468/471/196/193/120B of the Indian Penal Code for using a false and forged document being the deed of dissolution dated 16.11.74. The said application was numbered as G.A. No. 3398 of 1999. 8. Mr. Bose further points out that during the pendency of the said application under section 340 of the Code of Criminal Procedure said Kamala Devi suddenly mentioned the matter upon notice for withdrawal of the same and this court by an order dated 18.4.2000 dismissed the said application under section 340 Cr.P.C for non-prosecution. Mr. Bose submits that during pendency of the aforesaid application under section 340 Cr.P.C (G.A. No. 3398/99) before this court, a petition of complaint was filed by said Kamala Devi before the Ld. Chief Metropolitan Magistrate, Calcutta against the petitioners alleging commission of offences punishable under section 465/467/471/120B of the Indian Penal Code. Mr. Bose submits that during pendency of the aforesaid application under section 340 Cr.P.C (G.A. No. 3398/99) before this court, a petition of complaint was filed by said Kamala Devi before the Ld. Chief Metropolitan Magistrate, Calcutta against the petitioners alleging commission of offences punishable under section 465/467/471/120B of the Indian Penal Code. The allegations made in the petition of complaint are the same as it was in the application under section 340 Cr. P.C. 9. Learned Chief Metropolitan Magistrate by his order dated 21.1.2000 took cognizance of the offence and transferred the case to the court of learned Metropolitan Magistrate, 14th Court, Calcutta for disposal. Learned Transferee Magistrate examined the complainant and her witnesses and by an order dated 5.4.2000 issued process against the petitioners under sections 465/467/468/471/120B of the Indian Penal Code. 10. Mr. Bose, learned Advocate of the petitioners submits that in submitting her petition of complaint before the learned Magistrate, Kamala Devi, the complainant, suppressed the fact of pendency of enquiry under section 340 Cr.P.C in this court which was initiated at her instance and was pending on the date on which the petition of complaint was filed. It is no where stated in the petition of complaint that on the date of filing the complaint the proceeding under section 340 Cr.P.C was pending in this court. This fortifies the assertion that whenever required and as per the demand of the situation the complainant proceeded either to withdraw the facts from the court or falsely stating facts in order to suit her convenience. 11. Mr. Bose submits that in two judicial proceedings one in the Hon'ble High Court at Delhi and the other in the Hon'ble Supreme Court, a Deed of Dissolution of Partnership dated 16.11.74 came to be considered and in both the occasions it was held by the Hon'ble Courts that such a document existed and the contents of the documents contained the signature of the complainant. The Hon'ble Supreme Court and also Delhi High Court referred to the said document and it is noticeable that in the proceeding before the Hon'ble Supreme Court the son of the complainant Ashok Kumar Agarwal; who figured as one of the witnesses in the petition of complaint and deposed before the learned Magistrate, was a party/Appellant. Mr. Bose points out that before the Hon'ble Apex Court it was stated by the Appellant (Ashok Kr. Mr. Bose points out that before the Hon'ble Apex Court it was stated by the Appellant (Ashok Kr. Agarwal) that as per the deed of dissolution of partnership to which the complainant was one of the signatories on element of contract between the parties emerges and since the firm of the respondents of which one of the petitioners was a partner, was not a registered one, the suit filed in Delhi High Court being FAO No. 385 of 1999 is not maintainable in view of section 69(2) of the Partnership Act. So it is the son of the complainant who relied upon not merely the document (deed of dissolution) which contained the signature of the complainant, but founded their objection to the maintainability of the suit on the interpretation of the said document. 12. The Hon'ble Supreme Court and also the Delhi High Court had recorded findings about the said deed of dissolution of partnership. Such fact was also known to Ashok Kumar Agarwal who is the son of the complainant and also a witness to support the case of the complainant. According to Mr. Bose when a person is named as a witness in a complaint, it is presumed that the said witness is aware of the facts stated in the complaint and all other essential facts related thereto. But despite having knowledge about the proceedings in Delhi High Court and the Hon'ble Supreme Court, these facts have been deliberately suppressed in the petition of complaint and also by Ashok Kumar Agarwal, who is figured as a witness in the petition of complaint, in order to obtain process issued against the petitioners. 13. Mr. Bose relies on a judgement reported in 40 Cr. L.J. 658 (Sundar Das Loghani vs. Fardun Rustom Irani). In the said judgement the Division Bench of this court upheld the decision of the learned Magistrate who, after issuance of process and appearance of the accused before him reached a conclusion on perusal of the materials placed before him that the complainant deliberately suppressed "several facts in his petition of complaint and that the complaint was thoroughly dishonest one" and accordingly discharged the accused from the case. 14. Mr. Bose next relies on a judgement of this court reported in 2000 (1) CHN page 903 (Maruti Equipments (P) Ltd. & Anr. vs. State and Anr.). Referring to the said judgement Mr. 14. Mr. Bose next relies on a judgement of this court reported in 2000 (1) CHN page 903 (Maruti Equipments (P) Ltd. & Anr. vs. State and Anr.). Referring to the said judgement Mr. Bose points out that on the ground that facts were suppressed in the petition of complaint this court in exercise of its power under section 482 of the Code of Criminal Procedure quashed the criminal proceeding. Mr. Bose submits that while the High Court exercises its inherent power under section 482 Cr.P.C. it cannot be said that the court must confine itself only to the allegations made in the petition of complaint. There cannot be any regulation or restriction to such inherent power of the court when the court is satisfied on the available materials that the complainant had dubiously and with dishonest motive, abused the process of law and subjected persons to harassing criminal prosecution. 15. It is submitted by Mr. Bose that in various judicial proceedings the existence and validity of the deed of dissolution dated 16.11.74 had been considered and approved. In the said proceedings before the Hon'ble Delhi High Court and the Hon'ble Apex Court Ashok Kumar Agarwal, son of the opposite party No.2/complainant was a party. It is settled principle of law that the order of a civil court is a binding upon the criminal courts. It is an admitted fact that the various orders have been passed by the Delhi High Court and the Hon'ble Apex Court in the Civil Proceedings between the petitioners and the son of the opposite party No. 2/complainant, wherein the deed of dissolution was accepted as true and genuine. Such finding of the High Court and the Hon'ble Supreme Court is binding upon the Criminal Court in which the criminal proceeding is pending and in such circumstances the continuation of the present criminal proceeding would be an abuse of the process of the court. 16. The next point raised by Mr. Such finding of the High Court and the Hon'ble Supreme Court is binding upon the Criminal Court in which the criminal proceeding is pending and in such circumstances the continuation of the present criminal proceeding would be an abuse of the process of the court. 16. The next point raised by Mr. Bose, the learned Advocate of the petitioners that in the light of the fact that the original deed has been produced in this court in the suit being C.S. No. 386/1999 and this court is in the seisin of the same, the institution of the impugned criminal proceeding on the allegation that the said deed of dissolution is forged one is clearly in violation of the provisions of section 195 of the Code of Criminal Procedure. The gist of the allegations made in the petition of complaint is the production of a forged document (deed of dissolution) in a judicial proceeding and therefore the institution of the criminal proceeding without availing of the procedure as laid down in section 340 of the Code of Criminal Procedure is a violation of mandatory bar as laid down in section 195 of the Code. 17. In support of his contention Mr. Bose relies on a judgement of the Hon'ble Supreme Court reported in 1983 Supreme Court Cases (Criminal) 822 (Gopal Krishna Menon & Anr. vs. D. Raja Reddy & Anr.) In the said judgement it was held by the Hon'ble Apex Court as follows:- "If section 195(1)(b)(ii) is attracted to the facts of the present case, in the absence of a complaint in writing of the civil court where the alleged forged receipt has been produced, taking of cognizance of the offence would be bad in law and the prosecution being not maintainable, there would be absolutely no justification to harass the appellants by allowing prosecution to have a full dressed trial. Section 195(1)(b)(ii) uses two different expressions: in regard to section 463 of the Indian Penal Code it says, 'offence described', while in regard to sections 471 and 475 or 476 of the IPC it says, 'punishable'. The High Court has not made any reference to section 471 of IPC while rejecting the submissions of the appellants apparently because section 471 in terms has been mentioned in the provision. The High Court has not made any reference to section 471 of IPC while rejecting the submissions of the appellants apparently because section 471 in terms has been mentioned in the provision. So far as section 463 is concerned, the High Court has taken the view as we have already indicated that 'Section 463 cannot be construed to include section 467'." (Sections 463 and 467 I.P.C. quoted by the Hon'ble Court.) "The purpose of our extracting the two sections of the Penal Code is to show that the offence which is made punishable under section 467 of the Penal Code is in respect of an offence described in section 463. Once it is accepted that section 463 defines forgery and section 467 punishes forgery of a particular category, the provision in section 195(1)(b)(ii) of the Code would immediately be attracted and on the basis that the offence punishable under section 467 of the Penal Code is an offence described in section 463, in the absence of a complaint by the Court the prosecution would not be maintainable. We have no doubt in our mind that the High Court took a wrong view of the matter." "In view of what we have said above, the prosecution in the instant case on the basis of a private complaint and in the absence of a complaint from the appropriate civil court where the alleged fraudulent receipt has been produced, would not be sustainable. As we are of the view that if the prosecution is allowed to continue serious prejudice would be caused to the appellants and they would be called upon to face a trial which would not be sustainable, we allow this appeal and set aside the decision of the High Court and quash the complaint case filed against the appellants." 18. Mr. Bose next relies on a judgement of the Hon'ble Apex Court reported in 1996 Supreme Court Cases (Criminal) page 521 (Surjit Singh & Ors. vs. Balbir Singh). Mr. Bose next relies on a judgement of the Hon'ble Apex Court reported in 1996 Supreme Court Cases (Criminal) page 521 (Surjit Singh & Ors. vs. Balbir Singh). In the said judgement it was held by the Hon'ble Supreme' Court that for taking cognizance of an offence, the document, the foundation of forgery, if produced before the court or given in evidence, the bar of taking cognizance under section 195(1)(b)(ii) gets attracted and the criminal court is prohibited from taking cognizance of the offence unless a complaint in writing is filed as per the procedure prescribed under section 340 of the Code of Criminal Procedure by or on behalf of the Court. 19. The next judgement relied upon by Mr. Bose on this point is reported in 1971 Supreme Court Cases (Cri.) 548 (Patel Laljibhai Somabhai vs. The State of Gujarat). In the said judgement the accused filed a suit for recovery of money on the basis of a forged cheque and a private complaint was filed in the court of the learned Magistrate alleging offences under sections 467 and 471 of the Indian Penal Code. The appellant raised an objection that in view of the provision of section 195(1)(c) Cr.P.C cognizance of the offence could not be taken on a private complaint. The High Court upheld the order of commitment by finding that though there would be a bar for prosecution of offences punishable under sections 467 and 471 I.P.C on a private complaint, in the facts of the said case that question did not arise and as such the Hon'ble Supreme Court refused to interfere on the ground that the alleged offences had been committed at a point of time when the accused was not a party to the civil proceeding. The Hon'ble Apex Court pointed out that the words of section 195(1)(c) clearly indicates that the offence is to be alleged to have been committed by a party to the proceeding. 20. The next judgement relied upon by Mr. The Hon'ble Apex Court pointed out that the words of section 195(1)(c) clearly indicates that the offence is to be alleged to have been committed by a party to the proceeding. 20. The next judgement relied upon by Mr. Bose is reported in AIR 1972 SC 2639 (Nirmaljit Singh Roon vs. The State of W.B.) In the said judgement it was held by the Hon'ble Apex Court that when a party to a proceeding before any court produces or tenders in evidence a document in respect of which an offence under section 471 read with section 467 IPC is alleged to have been committed, it is that court before which the document is produced or tendered in evidence with can file a complaint regarding such offence and a Magistrate cannot take cognizance of offence except upon a complaint by such court or a court subordinate to it. It was further held in the said judgement that a document is said to have been produced in court when it is not only produced for the purpose of being tendered in evidence, but also for some other purpose. 21. Relying upon the aforesaid judgements Mr. Bose submits that the judgements referred to above make it abundantly clear that an enquiry under section 340 Cr.P.C. is mandatory in respect of offences falling under section 195 Cr.P.C. 22. The next argument advanced by Mr. Bose is with reference to sections 78 and 79 of the Indian Penal Code which falls in Chapter IV of the Penal Cede containing "General Exceptions". Any act or omission of a person, when it falls within any of the sections of Chapter IV of the Code, such act or omission is not treated to be an offence and the prosecution for the commission of such offence is barred. Mr. Bose relies on a judgement of the Hon'ble Apex Court reported in AIR 1980 SC 605 , (Raj Kapoor vs. Laxman). In the said judgement the Hon'ble Supreme Court held, on the basis of a certificate issued by the Central Board of Film Censors that once a certificate is granted for public exhibition of the film, the maker or producer of the film cannot be prosecuted on the charge of obscenity, because the certificate exonerates the maker on the anvil of section 79 of the Indian Penal Code. Mr. Mr. Bose relying upon the aforesaid judgement submits that the certificate granted by the Board of Censors, which is a public document was considered by the Hon'ble Supreme Court to be enough to attract the provision of section 79 of the Indian Penal Code. In the present case the public documents are the judgements–– one of the Hon'ble Supreme Court and another is of the Delhi High Court. Mr. Bose submits that these are the public documents of high order. The contents of these two documents and the statement of reasons given by the Hon'ble Courts in passing their respective orders are orders of court of justice. These orders of the Hon'ble Supreme Court and the Delhi High Court are still in force. The facts and circumstances of the case bring the act alleged against the petitioners, apart from section 79 I.P.C, within the ambit of section 78 of the Indian Penal Code, which reads as follows:- "Nothing which is done in pursuance of or which is warranted by the judgement or order of a court of justice, if done whilst such judgement or order remains in force, is an offence notwithstanding the court may have had no jurisdiction to pass such judgement or order provided the person doing the act in good faith believes that the court had such jurisdiction." 23. Referring to the aforesaid provision of section 78 of the Indian Penal Code Mr. Bose submits that both the Hon'ble Courts on a scrutiny and appraisal of the facts and documents placed before them approved the existence of the deed of dissolution of partnership and the fact that Kamala Devi was one of the signatories of such document. The judgement and order of both the Hon'ble Courts give the petitioners a bona fide right to use such document, which has been judicially accepted to be an existing one containing the signature of the complainant. So long the judgements and orders of the Hon'ble Courts hold good, anything done in pursuance thereof cannot be said to be an offence committed by the petitioners. 24. The next point raised by Mr. So long the judgements and orders of the Hon'ble Courts hold good, anything done in pursuance thereof cannot be said to be an offence committed by the petitioners. 24. The next point raised by Mr. Bose is that the alleged issue as to whether the deed of dissolution is a forged one or not is the subject matter of a suit being C.S. No. 386/1999 pending in this court and as such institution of the criminal proceeding prior to completion of adjudication in the said suit is clearly an abuse of the process of the court and the same is liable to be quashed. 25. In support of his contention Mr. Bose relies on a judgement reported in 1982 Supreme Court Cases - 459 (Smt. Manu Gupta vs. Lt. Col. M.S. Paintal), In the said judgment it was held by the Hon'ble Supreme Court that a criminal process should not be resorted to when the civil proceeding is pending and even before the issue whether the disputed receipts are forged or genuine is finally decided by the Rent Controller. Mr. Bose also relies on a judgement of the Hon'ble Apex Court reported in 1987 SCC (Cri) 672 (Sardool Singh vs. Smt. Nasib Kaur). In the said case a civil suit was pending before the learned District Judge, Rampur in a probate proceeding, wherein the validity of a will was challenged and it was held by the Hon'ble Apex Court as follows:- "The civil court is therefore seized of the question as regards the validity of the Will. The matter is subjudice in the aforesaid two cases in civil courts. At this juncture the respondent cannot therefore be permitted to institute a criminal prosecution on the allegation that the Will is a forged one. That question will have to be decided by the civil court after recording the evidence and hearing the parties in accordance with law. It would not be proper to permit the respondent to prosecute the appellants on this allegation when the validity of the Will is being tested before a civil court. We, therefore, allow the appeal, set aside the order of the High Court, and quash the criminal proceedings pending in the Court of the Judicial Magistrate, First Class, Chandigarh in the case entitled Smt. Nasib Kaur vs. Sardool Singh. We, therefore, allow the appeal, set aside the order of the High Court, and quash the criminal proceedings pending in the Court of the Judicial Magistrate, First Class, Chandigarh in the case entitled Smt. Nasib Kaur vs. Sardool Singh. This will not come in the way of instituting appropriate proceedings in future in case the civil court comes to the conclusion that the Will is a forged one. We of course refrain from expressing any opinion as regards genuineness or otherwise of the Will in question as there is no occasion to do so and the question is wide open before the lower courts." 26. Mr. Bose submits relying on the aforesaid two judgements that the said two decisions clearly indicate the view of the Hon'ble Supreme Court in a situation where the civil proceedings were pending before a Rent Controller and a learned District Judge. In the present case the civil court is this court in its ordinary original civil jurisdiction. In this context Mr. Bose also relies on a judgement of the Hon'ble Supreme Court reported in AIR 1971 SC 1244 (M/s. Karamchand Ganga Pershad & Anr. vs. Union of India & Ors.). In the said judgement the principles of law enunciated by the Hon'ble Supreme Court is to the effect that the judgement of the civil court is binding upon the criminal court and the converse is not true. 27. Mr. Balai Chandra Roy, learned Senior Advocate appearing for the complainant/opposite party No.2 submits that in exercise of power under section 482 of the Code of Criminal Procedure the High Court should not look into the documents and materials which was not before the learned Magistrate at the time of taking cognizance or issuing process. 28. Mr. Roy in support of his contention relies upon a judgement of the Hon'ble Apex Court reported in AIR 1983 SC page 67 (Municipal Corporation of Delhi vs. Ram Kishan Rohtagi). In the said judgement it was held by the Hon'ble Supreme Court as follows:- "It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In the said judgement it was held by the Hon'ble Supreme Court as follows:- "It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under section 482 of the present Code." 29. Mr. Roy next relies on a judgement of the Hon'ble Supreme Court reported in 1998 SCC (Cri) 1723 (State of M.P. vs. Harsh Gupta). In the said judgement it was held by the Hon'ble Supreme Court that in quashing a complaint at a stage, when upon cognizance only process has been issued, the only question to be considered is whether the complaint and its accompaniments discloses any or all of the offences alleged. Mr. Roy refers to another judgement of the Hon'ble Apex Court reported in 2000 Criminal Law Journal 1487 (M/s. Medehl Chemicals & Pharma Put. Ltd. vs. M/s. Biological E. Ltd. & Ors.) wherein it was held by the Hon'ble Supreme Court as follows:- "Be it noted that in the matter of exercise of High Court's inherent power, the only requirement is to see whether continuance of the proceeding would be a total abuse of the process of Court. The Criminal Procedure Code contains a detailed procedure for investigation, charge and trial, and in the event, the High Court desirous of putting a stop to the known procedure of law, the High Court must use a proper circumspection and as noticed above, very great care and caution to quash the complaint in exercise of its inherent jurisdiction." 30. On the same point Mr. Roy also relies on some other judgements of the Hon'ble Supreme Court reported in AIR 1976 SC 1947 (Nagawwa vs. Veeranna); AIR 1960 S.C. 866 (R. P. Kapoor vs. State of Punjab); AIR 1986 SC 833 (J.P. Sharma vs. Vinod Kumar Jain & Ors); AIR 1996 SC 309 (Rupan Deal Bajaj vs. K.P.S. Gill). On the same point Mr. Roy also relies on some other judgements of the Hon'ble Supreme Court reported in AIR 1976 SC 1947 (Nagawwa vs. Veeranna); AIR 1960 S.C. 866 (R. P. Kapoor vs. State of Punjab); AIR 1986 SC 833 (J.P. Sharma vs. Vinod Kumar Jain & Ors); AIR 1996 SC 309 (Rupan Deal Bajaj vs. K.P.S. Gill). The ratio of all the aforesaid judgements is that it is the settled principle of law that at the stage of quashing FIR or a complaint the High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein. At this initial stage the High Court will have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same. Mr. Roy submits that in view of the law laid down by the Hon'ble Supreme Court no document, which was not before the learned Magistrate, can be relied upon by the petitioners in the present application. 31. Regarding the application of the provision of section 195(1)(b)(ii) of the Code of Criminal Procedure it is submitted by Mr. Roy that in view of the decision of a three judge Bench of the Hon'ble Supreme Court reported in A.I.R. 1998 SC 1121 (Sachidanand Singh vs. State of Bihar), it has now been settled that the bar contained in section 195(1)(b)(ii) of the Code is not applicable to a case where forgery was committed before the document was produced in court. In other words the offence is to be committed when the document was custodia legis. It is the further submission of Mr. Roy that in the judgement of Schidanand Singh's case the Hon'ble Supreme Court disagreed with the view taken in Patel Lalji Bhai Soma Bhai's case. Mr. Roy also refers to the decision of Mahadev Bapuji Mahajan vs. The State of Maharashtra reported in AIR 1994 S.C. 1549 , wherein it was held by the Hon'ble Supreme Court that as follows:- "Regarding the offences committed before the start of the proceedings, the High Court, in our view, has rightly held that no complaint is necessary by the court concerned either in the old Code or in the new Code. Therefore, the contention that the absence of a complaint by the Revenue Court was a bar for taking cognizance by the Criminal Court in respect of these offences which were committed even before the start of the proceedings before the Revenue Court cannot be sustained. The view taken by the High Court appears to be correct." 32. Mr. Roy submits that in view of the law declared by the Hon'ble Supreme Court the decision rendered in Sachidanand Singh's case (supra) is binding as a precedent in preference to the decision of all previous judgements of the court whether rendered by a smaller Bench or a Bench of equal strength. Hence the complaint filed by Kamla Devi Agarwal of the commission of forgery long before she became a party in the civil suit pending in this court, is not barred by the provision of section 195(1)(b)(ii) of the Code of Criminal Procedure. Mr. Roy further submits that the decision in Sachidanand Singh's case will prevail because it is a judgement delivered by a larger Bench and also because it is later judgment than that in Gopal Krishna Menon's case (supra). 33. Regarding suppression of facts in the petition of complaint, as argued by the learned Advocate appearing for the petitioners, it is submitted by Mr. Roy that in a petition of complaint the complainant is required to disclose the facts constituting the offence. Mr. Roy relies on a judgement reported in AIR 1970 SC 1153 (Bhimappa Basappa Bhu Sannavar vs. Laxman Shivarayappa). Mr. Roy refers to paragraph 11 of the said judgements which is as follows:- "The word 'complaint' has a wide meaning since it includes even an oral allegation. It may, therefore, be assumed that no form is prescribed which the complaint must take. It may only be said that there must be an allegation which prima facie discloses the commission of an offence with the necessary facts for the Magistrate to take action. Section 190(1)(a) makes it necessary that the alleged facts must disclose the commission of an offence." 34. Relying on the aforesaid judgment Mr. Roy submits that apart from the facts which are necessary to be stated to constitute the offence, other statements in the complaint are not material for the purpose of ascertaining whether the allegations are patently absurd or inherently improbable. In the present petition of complaint, it is submitted by Mr. Relying on the aforesaid judgment Mr. Roy submits that apart from the facts which are necessary to be stated to constitute the offence, other statements in the complaint are not material for the purpose of ascertaining whether the allegations are patently absurd or inherently improbable. In the present petition of complaint, it is submitted by Mr. Roy, it has been categorically alleged that the accused persons entered into a criminal conspiracy and pursuant to that conspiracy forged the signature of Kamala Devi Agarwal in the deed of dissolution and that this forged document was used in various civil proceedings. Since the allegations made in the petition of complaint clearly make out an offence of forgery, there is no scope in the present case to say that the complaint is patently absurd and inherently improbable. 35. Regarding the pendency of a civil proceeding on the same issue it is submitted by Mr. Roy that except where there is a final decree of a civil court in a suit between the same parties and same cause of action, no other civil proceeding can interdict a criminal prosecution. Mr. Roy relies on a judgement reported in 2000 SCC (Cri) 47 (Trisuns Chemicals Industry vs. Rajesh Agarwal & Ors.) wherein it was held by the Hon'ble Supreme Court that "Quashing of FIR or a complaint in exercise of the inherent power of the High Court should be limited to very extreme exceptions. Merely because an act has a civil profile is not sufficient to denude it of its criminal outfit." Mr. Roy points out that same view was taken in the case of M/s. Medchel Chemical and Pharma Pvt. Ltd. (supra), wherein it was held by the Hon'ble Supreme Court that "simply because of the fact that there is a remedy provided for breach of contract, that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy available to the appellant herein. Both criminal law and civil law remedy can be pursued in diverse situations. As a matter of fact they are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence." 36. With reference to the order passed by the Delhi High Court, which is annexed to this revisional application as Annexure 'B', it is submitted by Mr. As a matter of fact they are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence." 36. With reference to the order passed by the Delhi High Court, which is annexed to this revisional application as Annexure 'B', it is submitted by Mr. Roy that in the said suit the complainant was not a party and as such it cannot have any binding effect on the complainant. Moreover this is an order passed on an interlocutory application and the same cannot stand in the way of any criminal prosecution even if the same is on identical facts. With regard to the order of the Division Bench of Delhi High Court Mr. Roy submits that the same is also an interlocutory order, which loses its force when the final order is passed. So far as the order of the Hon'ble Supreme Court is concerned Mr. Roy points out the portion where it has been specifically stated by the Supreme Court that "we should not be understood as having said anything on the merits of the case." So, according to Mr. Roy, the orders passed by Delhi High Court and the Hon'ble Supreme Court do not have any bearing so far as the prosecution of the present petitioners is concerned. 37. Regarding application of the provisions of sections 78 and 79 of the Indian Penal Code, as argued by the learned Advocate of the petitioners, it is submitted by Mr. Roy submits that section 78 IPC has no relevance as forgery was not committed while the judgement of the court was remaining in force. Similarly section 79 IPC also has no manner of application in the present case. 38. I have heard the learned Advocates of the respective parties, I have gone through the judgements referred to above and I have also perused the documents which are annexed to this revisional application. It is settled principle of law that the complainant must disclose all material and relevant facts for the Magistrate to decide whether action under the Code should be taken or not. It is also settled principle of law that in quashing a FIR or a complaint when upon cognizance only process has been issued, the High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein. It is also settled principle of law that in quashing a FIR or a complaint when upon cognizance only process has been issued, the High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein. But at the same time it must be ensured that no fraud is practised upon a court to convince it that process is to be issued and in such cases the High Court can exercise its inherent power under section 482 of the Code of Criminal Procedure. 39. It is admitted position that in two judicial proceedings––one in the Hon'ble High Court at Delhi and the other in the Hon'ble Supreme Court – the deed of dissolution of partnership dated 16.11.74 was taken into consideration and on both the occasions the Hon'ble Courts affirmatively held that such deed existed and the same includes the signature of the complainant Kamala Devi. It is also noticeable that in the proceeding before the Hon'ble Supreme Court the son of the complainant, who is also one of the witnesses in the petition of complaint and deposed before the learned Magistrate, was a party/appellant. But despite having knowledge about the proceedings in Delhi High Court and the Hon'ble Supreme Court and despite the fact that said Ashok Kumar Agarwal was one of the witnesses in support of the case of the complainant, these facts were suppressed in the petition of complaint. The provisions of Criminal Law are not to be used as weapons for causing harassment to any person who has been made accused in a complaint. The Hon'ble Supreme Court never said that a person is licensed to suppress facts or to withdraw or withhold essential facts in the petition of complaint so as to induce the court to act in the manner as the complainant wants to. From the facts and circumstances of the case I am of the view that there was deliberate suppression of facts in the petition of complaint, which the complainant should not have done. Once such suppression of facts in the complaint is adopted by the complainant, the only treatment the complainant deserves is quashing of the proceeding. Whoever moves the court for putting its machineries into operation must be totally fair to the court and should not use either the law or the court for oblique purpose. Once such suppression of facts in the complaint is adopted by the complainant, the only treatment the complainant deserves is quashing of the proceeding. Whoever moves the court for putting its machineries into operation must be totally fair to the court and should not use either the law or the court for oblique purpose. In the present case the judgement of the Hon'ble Supreme Court and that of Hon'ble Delhi High Court and citation of Ashok Kumar Agarwal as a witness in the petition of complaint make it clear that such facts were within the knowledge of the complainant and his son, but those were withheld from the court. 40. As regards the application of the provision of sections 78 and 79 of the Indian Penal Code I find sufficient merit in the submission made by Mr. Bose, learned Advocate of the petitioners. It is an admitted fact that the orders passed by Hon'ble Delhi High Court and the Hon'ble Supreme Court are still in force. The judgement and order of both the Hon'ble Courts give the petitioners a bona fide right to use such documents (Deed of Dissolution) which had been judicially accepted to be existing one containing the signature of the complainant Kamala Devi. So long these judgements and orders are in force anything done in pursuance thereof cannot be an offence in view of the provision of section 78 of the Indian Penal Code. 41. Let me now consider whether there can be any offence under section 471 of the Indian Penal Code as alleged to have been committed by the petitioners. In the present case in the suit which was instituted at the instance of the present complainant in Ordinary Original Civil Jurisdiction of this court, the learned Judge directed the defendants, i.e., the present petitioners to produce the document (Deed of Dissolution) in this court. Accordingly such deed was produced in this court. When a document is produced in court pursuant to a direction of that court, it cannot be said to be a volitional production or use of the document fraudulently and dishonestly. This view was expressed by the Hon'ble Supreme Court-in the case of Dr. S. Dutta vs. The State of U.P., reported in AIR 1966 S.C. 523 . In the said case the appellant Dr. S. Dutta was asked to produce a document in court, which he did. This view was expressed by the Hon'ble Supreme Court-in the case of Dr. S. Dutta vs. The State of U.P., reported in AIR 1966 S.C. 523 . In the said case the appellant Dr. S. Dutta was asked to produce a document in court, which he did. He did not voluntarily bring the document in court for production. The Hon'ble Supreme Court expressed the view that such a user was not contemplated by section 471 of the Code. In the said judgment it was held by the Hon'ble Apex Court as follows:- "In the light of the above discussion we shall now see how the conduct of Dr. Dutta fits in with section 471. The wards 'dishonestly' and 'fraudulently' are used there. We have shown above that Dr. Dutta did not intend to cause wrongful gain to one person or wrongfulness to another person when he brought the diploma, whether forged or not, into Court. He was ordered to do so. He may have intended to deceive the Court, even as he intended that others should be deceived, into believing that he was a forensic expert (which perhaps he was not) and that he held a diploma from a recognised institution. He did not act dishonestly. The next question is whether he acted fraudulently that is to say, with intent to defraud. His intention was not to cause any one to act to his disadvantage because he did not bring the diploma voluntarily but under orders of the Court. He did not, therefore, have the intent to cause voluntarily, a course of conduct in any person to that person's disadvantage. In other wards, though he might have intended a deception he did not intend defrauding. His conduct was perhaps corrupt in the larger sense for he intended that the Sessions Judge should form an erroneous opinion about him, and his testimony, as he continued to claim the document as genuine." 42. So far as the applicability of section 195(1)(b)(ii) of the Code of Criminal Procedure is concerned I am of the view that the said provision of the Code does not have any manner of application in the present case in view of the judgment of the Han'ble Supreme Court reported in AIR 1998 S.C. 1121 (Sachidanand Singh & Anr. vs. State of Bihar). vs. State of Bihar). It has been held in the said judgment of the Hon'ble Apex Court that the bar contained in section 195(1)(b)(ii) of the Code is not applicable to a case where forgery of the document was committed before such document was produced in court. 43. Regarding the continuation of the criminal proceeding founded an the allegation of forgery of a document, when a civil suit is pending to decide the question of validity of the document, the Hon'ble Supreme Court in the case of Manju Gupta (supra) and in the case of Sardool Singh (supra) has strongly disapproved such institution of criminal proceeding on the allegation of forgery of document when the civil court is in the sesin of the matter to decide the question of validity of a particular document. The learned Advocate appearing for the complainant/opposite party referred to a judgement of the Hon'ble Apex Court reported in 2000 S.C.C. (Cri) 47 (Trisuns Chemical Industry vs. Rajesh Agarwala & Ors.). In the said judgment it has been held by the Hon'ble Apex Court as follows:- "We are unable to appreciate the reasoning that the provision incorporated in the agreement for referring the disputes to arbitration is an effective substitute for a criminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the arbitrator cannot conduct a trial of any act which amounted to an offence albeit the same act may be connected with the discharge of any function under the agreement. Hence, those are not good reasons for the High Court to axe down the complaint at the threshold itself." Another judgement referred to by the learned Advocate of the opposite party is reported in 2000 Criminal Law Journal 1487 (M/s. Medchel Chemicals & Pharma Pvt. Ltd. vs. Biological E. Ltd.). In the said judgment it has been held by the Hon'ble Apex Court that simply because of the fact that there is a remedy provided for breach of contract, that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy available to the appellant. It was further held that both criminal law and civil law remedy can be pursued in diverse situation. 44. I have gone through the judgements referred to above. It was further held that both criminal law and civil law remedy can be pursued in diverse situation. 44. I have gone through the judgements referred to above. The facts and circumstances of the present case is quite different from those two cases decided by the Hon'ble Supreme Court. In the two cases referred to above there was no civil proceeding pending in any court. It was held by the Hon'ble Supreme Court that availability of an alternative remedy in the civil court cannot stand in the way of institution of a criminal proceeding. But in the present case a civil suit is already pending in this court in its Original Civil Jurisdiction, in which the validity and genuineness of the document in question, alleged to have been forged, has been challenged. It is not difficult to visualise the embarrassing situation that may arise, in case a criminal proceeding is allowed to continue against the petitioners before the learned Magistrate and this court in its ordinary civil jurisdiction holds the deed in question to be a valid document. Question is not whether the complainant can pursue her prosecution in the criminal court and civil cause of action in civil court. Consideration is and should be whether any criminal proceeding instituted before a court subordinate to this court should be allowed to continue when the very foundation of the criminal case, namely, forgery of document is under scrutiny by this court in a civil proceeding instituted by same person, i.e., the complainant in the criminal case. In my considered view it would not be proper to allow the criminal proceeding to continue when the validity of the document (deed of dissolution) is being tested in a civil proceeding before this court. Judicial propriety demands that the course adopted by the Hon'ble Supreme Court in the case of Manju Gupta (supra) and Sardool Singh (supra) should be followed. If such course of action is adopted by this court, that would be in consonance with the expression used in section 482 of the Code of Criminal Procedure – "or otherwise to secure the ends of justice". In both the cases referred to above Civil Suits were pending, where the validity and genuineness of a document was challenged. If such course of action is adopted by this court, that would be in consonance with the expression used in section 482 of the Code of Criminal Procedure – "or otherwise to secure the ends of justice". In both the cases referred to above Civil Suits were pending, where the validity and genuineness of a document was challenged. It was held by the Hon'ble Supreme Court that when the question regarding validity of a document is subjudice in the civil courts, criminal prosecution, on the allegation of the document being forged, cannot be instituted. 45. In view of the discussion made above I find sufficient merit in the submissions made by the learned Advocate of the petitioners. In my considered view this is a fit case for interference by this court. Accordingly I allow the revisional application. The impugned proceeding being case No. C-63 of 2000 (T.R. No. 33 of 2000) pending in the court of learned Metropolitan Magistrate, 14th Court, Calcutta is hereby quashed. However, this order shall not stand in the way of instituting any criminal proceeding in future in case the civil court comes to the conclusion that the deed in question is forged one. Revisional application allowed and impugned criminal proceeding quashed.