Research › Search › Judgment

Gauhati High Court · body

2008 DIGILAW 497 (GAU)

Kishan Singhania v. Dilip Singhania

2008-07-10

TINLIANTHANG VAIPHEI

body2008
JUDGMENT T. Vaiphei, J. 1. This revision petition is directed against the order dated 29-11-2006 passed by the Chief Judl. Magistrate, Shillong in C.R. Case No. 1123(S) of 2007 issuing process against the petitioner for the offences alleged against him under Section 468 / 420, I.P.C, which according to him, is in contravention of the provisions of Section 195(b)(1), Code of Criminal Procedure. 2. The case of the petitioner, briefly stated, is that he is the tenant of the respondent in respect of the premises situate at Thana Road, Shillong and is running a hotel known as "M/s. Rajasthan Hotel" and that after the death of the father of the respondent, the family property was divided among the respondent and his brothers. The respondent was thereupon allotted the disputed premises as his share. The petitioner claims that he has been regularly paying the monthly rent to the respondent and had also paid on one occasion on 17-9-2000 a sum of Rs. 2,80,000/- as an advance rent, the receipt whereof was issued to him. Subsequently, his relationship with the respondent turned sour over trivial family matter which prompted the latter to issue ejectment notice through his pleader accusing him as defaulter and claiming rent arrears. One thing led to another and ultimately the respondent filed ejectment suit against the petitioner, which was finally dismissed upon his production of the rent receipt and on other grounds. The respondent, however, filed another ejectment suit being Title Suit No. 17(SH) of 2005, which reached up to this Court and was remanded to the trial Court for disposal.' It is the further ease of the petitioner that when the respondent failed to evict him by lawful means, he, with an ulterior motive, filed a criminal complaint being C.R. No. 1123(S) of 2007 under Section 468 / 420, I.P.C. alleging that the said money receipt for Rs. 2,80,000/- was a forged document. At this stage, it may be noted that the said money receipt was said to have been produced before this Court in connection with C.R. (P) No. 3(SH) of 2005. The petitioner contends that the Ld. Chief Judl. Magistrate overlooking the fact that the said money receipt had been produced in a judicial proceeding thereby betraying non-application of mind, by the impugned order took cognizance of the aforesaid offences and issued process against him. The petitioner contends that the Ld. Chief Judl. Magistrate overlooking the fact that the said money receipt had been produced in a judicial proceeding thereby betraying non-application of mind, by the impugned order took cognizance of the aforesaid offences and issued process against him. Contending that the learned Chief Judicial Magistrate has no Jurisdiction to entertain the criminal complaint, the petitioner prays for quashing the impugned order and the connected proceeding. 3. Mr. A.S. Siddiqui, the learned Counsel for the petitioner, submits that on the undisputed facts on record that the money receipt was produced before this Court and nowhere else, the respondent has no locus standi to file the complaint petition in view of the bar Imposed by Section 195(1)(b)(ii) Code of Criminal Procedure. Drawing my attention to Section 195, the learned senior counsel maintains that it is the Court concerned, and not the respondent, which can file the complaint since the offence complained of is an offence punishable under Section 193. Indian Penal Code. Moreover, submits further the learned senior counsel, the question whether the money receipt in question is a forged document or not is an issue yet to be decided by the trial Court in the pending suit, and it cannot be presumed at this stage that the document in question is a forged document. The learned senior counsel, therefore, strenuously urges this Court to quash the impugned order as well as the related criminal proceeding. On the other hand, Mr. K.S. Kynjing, the learned Counsel for the respondent, Justifies the impugned, order as well as the connected proceeding and contends that the money receipt in question was undoubtedly produced before this Court but was never taken Into account by this Court for, purpose of adjudication of the revision petition in question. According to the learned senior counsel, the true test for Invoking the bar imposed by Section 195 of the Code is not whether the document in question was produced before a Court but rather whether the document was in fact taken into consideration or actually used by the concerned Court for the purpose of adjudication of the Issues or controversy involved in the case and adopting this test, it cannot even remotely be said that the document in question was used by this Court in disposing of the revision petition. So understood, contends the learned Counsel, the embargo imposed by Section 195 cannot be pressed into service for non-suiting the respondent. The learned senior counsel, therefore, submits that this revision petition is absolutely devoid of merits, and is liable to be dismissed with costs. 4. Before proceeding further, it will be relevant to refer to and reproduce hereunder the provisions of Section 195(1)(b)(i) and (11) of the Code : Section 195(1) No Court shall take cognizance * * * (b)(ii) of any offence described in Section 463, or punishable under Section471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court. * * * except on the complaint in writing of that Court or by such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate. 5. The object of the section is obviously to protect persons from being needlessly harassed by vexatious prosecutions in retaliation. It is a check to protect Innocent persons from criminal prosecution which may be actuated by malice. The section extracted above says, among others, that no Court shall take cognizance of an offence relating to forgery of a document, which such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, except on a complaint in writing of that Court, or of some other Court to which that Court is subordinate. The main question to be determined in the context of this case is thus at what stage the bar imposed by Section 195(1)(b)(ii), Cr.P.C. would operate in respect a document alleged to be forged produced or given in evidence by a party. In Sachida Nand Singh v. State of Bihar (1998) 2 SCC 493 : 1998 CriLJ 1565, the scope and ambit of Section 195(1)(b)(ii) of the Code, came up for consideration before the Apex Court. The summary of the decision is that Section 195(1)(b)(ii), Cr. P. C. reveals two main postulates for operation of the bar mentioned therein. In Sachida Nand Singh v. State of Bihar (1998) 2 SCC 493 : 1998 CriLJ 1565, the scope and ambit of Section 195(1)(b)(ii) of the Code, came up for consideration before the Apex Court. The summary of the decision is that Section 195(1)(b)(ii), Cr. P. C. reveals two main postulates for operation of the bar mentioned therein. First is, there must be allegation that an offence (it should be either an offence described in Section 463 or any other offence punishable under Sections 471 475 476 of the I.P.C.) has been committed. Second is that such offence should have been committed in respect of a document produced or given in evidence in a proceeding in any Court. It is undisputed that if forgery has been committed while the document was in the custody of a Court, then prosecution can be launched only with a complaint made by that Court. Again, if forgery was committed with a document which has not been produced in a Court, then the prosecution would lie at the instance of any person. A question arises whether in the latter situation production of such document in Court will make any difference. Now, even if the clause is capable of two interpretations, the narrower interpretation has to be chosen. Provision curbing the general jurisdiction of the Court must normally receive strict interpretation unless the statute or the context requires otherwise. That apart, it is difficult to interpret Section 195(1)(b)(ii) as containing a bar against initiation of prosecution proceedings merely because the document concerned was produced in a Court albeit the act of forgery was perpetrated prior to its production in the Court. Any such construction is likely to ensure unsavoury consequences. It is a settled proposition that if a language of legislation is capable of more than one interpretation, the one which is capable of causing mischievous consequences should be averted. 6. As Section 340(1) of the Code has an interlink with Section 195(1)(b), the Apex Court also referred to that Sub-section in the present context. According to the Apex Court, no complaint can be made by a Court regarding any offence falling within the ambit of Section 195(1)(b) of the Code without first adopting the procedural requirement of Section 340(1). 6. As Section 340(1) of the Code has an interlink with Section 195(1)(b), the Apex Court also referred to that Sub-section in the present context. According to the Apex Court, no complaint can be made by a Court regarding any offence falling within the ambit of Section 195(1)(b) of the Code without first adopting the procedural requirement of Section 340(1). The scope of preliminary enquiry envisaged in Section 340(1) is to ascertain whether any offence affecting administration of justice has been committed in respect of a document produced in Court or given in evidence in a proceeding in that Court. So the offences envisaged in Section 195(1)(b) must involve acts which would have affected the administration of justice. The offence should have been committed when the document was in custodia legis. It would be a strained thinking that any offence involving forgery of a document if committed for outside the precincts of the Court and long before its production in the Court, could also be treated as one affecting administration of justice merely because that document later reached the Court records, it must therefore be held that the bar contained in Section 195(1)(b)(ii)of the Code is not applicable to a case where the forgery of the document was committed before the document was produced in a Court. Therefore, from the aforesaid principles enunciated by the Apex Court, it is crystal clear that in order to attract the mischief of Section 195(1)(b)(ii) of the Code, the offence of forgery must be committed while or when the document in question is already in the custody of the Court, and the offence of forgery committed in respect of a document elsewhere and not within the precincts of the Court cannot attract the embargo of the section. 7. When the views taken by the Apex Court in Sachida Nand Singh case was found to be in conflict with the earlier decision of the Apex Court in Surjit Singh v. Balbil Singh 1996 CriLJ 2304, the matter was referred to the Constitution Bench in Iqbal Singh Marwah v. Meenakshi Marwah 2005 CriLJ 2161. 7. When the views taken by the Apex Court in Sachida Nand Singh case was found to be in conflict with the earlier decision of the Apex Court in Surjit Singh v. Balbil Singh 1996 CriLJ 2304, the matter was referred to the Constitution Bench in Iqbal Singh Marwah v. Meenakshi Marwah 2005 CriLJ 2161. The Constitution Bench held that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view and that Section 195(1)(b)(ii) would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court i.e. during the time when the document was in custodia legis. The observations of the Apex Court are found at paras 25, 26 and 28 of the judgment. Which are as under : 25. That apart, an enlarged interpretation to Section 195(1)(b)(ii), Cr.P.C. whereby the bar created by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in Court, is capable of great misuse. After preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue Court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution, either at the instance of a private party or the police until the Court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would be highly detrimental to the interest of the society at large. 26. Judicial notice can be taken of the fact that the Courts are normally reluctant to direct filing of a criminal complaint and such a course is rarely adopted. It will not be fair and proper to give an interpretation which leads to a situation where a person alleged to have committed an offence of the type enumerated in Clause (b)(ii) of Section 195(1), Cr.P.C. is either not placed for trial on account of non-filing of a complaint or if a complaint is filed, the same does not come to its logical end. Judging from such an angle will be in consonance with the principle that an unworkable or impracticable result should be avoided.... 28....Therefore, in order that a victim of a crime of forgery, namely, the person aggrieved is able to exercise his right conferred by law to initiate prosecution of the offender, it is necessary to place a restrictive Interpretation on Clause (b)(ii). 8. In that case, the appellants filed proceedings before the District Judge for grant of probate of a Will allegedly executed by the deceased M (brother of the appellants). The respondents filed a criminal complaint for prosecution of the appellants and their mother under Sections 192 193 463 465 467469 471 499 and 500, I. P. C. on the ground that the said Will produced by the appellants was a forged and fictitious document. In view of the bar contained in Section 195(1)(b)(ii), Cr.P.C. the Magistrate dismissed the complaint. In revision, relying upon Sachida Nand Singh case, the Sessions Judge held that the bar contained in Section 195(1)(b)(ii) would not apply where forgery of a document was committed before the said document was produced in Court. The High Court upheld the order of the Sessions Judge whereafter the Apex Court was approached by the appellants. Dismissing the appeal and after upholding the law laid down in Sachida Nand Singh (supra), it was held that since the Will had been produced in the Court subsequently, the bar created by Section 195(1)(b)(ii), Cr.P.C. would not come into play. Iqbal Singh Marwah case was followed in K. Vengadachalam v. K.C. Palaniswamy and Ors. (2005) 7 SCC 352 . In this case, the appellants filed a complaint against the respondents for the offences punishable under Sections 467 468 471 472 and 477A read with Section 34, I.P.C. The prosecution was quashed by the High Court on the ground that the complaint was barred under Section 195(1)(b)(ii), Cr.P.C. On the facts found that the forgery was said to have been committed before the document was filed, the Apex Court allowed the appeal and quashed the order of the High Court. I may even at this belated stage also briefly notice the facts of the case in Sachida Nand Singh (supra). I may even at this belated stage also briefly notice the facts of the case in Sachida Nand Singh (supra). The material facts of that case are that a complaint was filed by the second respondent in the Court of the Chief Judicial Magistrate alleging offences, inter alia, under Sections 468 469 and 471 of the Indian Penal Code on the ground that the appellants had forged a document (a certified copy of Jamabandi-Rent Roll) and produced it in the Court of the Executive Magistrate which was then dealing with the proceedings under Section 145 of the Code. The Chief Judicial Magistrate forwarded the complaint to the police as provided in Section 156(3) of the Code. The police registered an FIR on the basis of the said complaint and after Investigation laid a charge sheet against the appellants for those offences. The Chief Judicial Magistrate took cognizance of those offences and issued process to the accused. The appellant then moved the High Court under Section 482, Cr.P.C. for quashing the prosecution on the main ground that the Magistrate could not have taken cognizance of the said offences in view of the bar contained in Section 195(1)(b)(ii), Cr.P.C. The High Court dismissed the petition. As noted already, the appeal before the Apex Court was also dismissed holding that the embargo Imposed under Section 195(1)(b)(ii), Cr.P.C. was not applicable to the complaint in question. 9. In the Instant case, a perusal of the complaint petition, which is at Annexure-II, will indicate that prosecution is sought to be launched on the allegation that the respondent all of a sudden received the Xerox copy of the money receipt for Rs. 2,80,000/-. which the petitioner falsely claimed to have paid to him in advance on 17-9-2000 when, in fact, he neither received any amount from him nor did he make any money receipt in that behalf at any point of time and that the money receipt was for the first time produced by him before this Court in C.R. (P) No. 3(SH) of 2005. The respondent claimed that there was thus a prima facie case of commission of the offences punishable under Section 468 / 120, I.P.C. by the petitioner. The respondent claimed that there was thus a prima facie case of commission of the offences punishable under Section 468 / 120, I.P.C. by the petitioner. On a plain reading of the complaint petition, there can be no room for doubt that the money receipt in question was produced before this Court after commission of forgery, if there be any case of forgery and that the alleged forgery was not committed when the document in question was in custodia legis : the forgery must have taken place outside the precincts of this Court. 10. In this view of the matter, there is force in the contention of the learned senior counsel for the respondent that the Ld. Chief Judicial Magistrate did not commit any illegality or improper exercise of Jurisdiction in entertaining the complaint petition inasmuch as the bar contained in Section 1959(1)(b)(ii), Cr.P.C. is not applicable. As for the offence punishable under Section 420, I.P.C., none of the provisions of Section 195, Cr. P. C. bars the Court from taking cognizance of such offence. On the question of possible conflict between the findings of a criminal Court and Civil Court, the Apex Court in Iqbal Singh Marwah case also dealt with the same and held that civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given and that there is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. 11. The result of the foregoing discussion is that this criminal revision has no merit, and is hereby dismissed. Nevertheless, nothing stated in the foregoing shall be construed as an observation on the existence of a prima facie case of the offences punishable under Sections 468 / 420, I.P.C. against the petitioner : it shall always be open to the petitioner to move the trial Court for his discharge on the ground that there is no sufficient ground for proceeding against him. If and when such plea is raised by the petitioner, the trial Court will hear both the parties and take a decision thereon in accordance with law. If and when such plea is raised by the petitioner, the trial Court will hear both the parties and take a decision thereon in accordance with law. The trial Court shall now proceed with the case according to law. Transmit the L.C. record to the trial Court without delay. The parties are directed to bear their own costs. Petition dismissed.