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2013 DIGILAW 284 (CHH)

Shatrughan Makhija v. State of C. G.

2013-09-24

GOUTAM BHADURI

body2013
ORDER Goutam Bhaduri, J. 1. This is a petition under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') filed by the applicants, Shatrughan Makhija and Arjundas Makhija to set aside the order dated 22.06.2010 passed by the Additional Sessions Judge (F.T.C.) Bhanupratappur, Distt. U.B. Kanker in Criminal Revision No. 01/2009 the petitioners have further prayed for discharge of the applicants from the offence under Section 420, 467, 468, 471 read with Section 34 of the Indian Penal Code. The brief facts involved in this case are that one Kishanchand Makhija, through his power of attorney holder, Ramchand lodged a report of the Station Officer, Bhanupratappur, Distt. U.B. Kanker, inter-alia making a complaint that the said Kishanchand is owner of land bearing kh. No. 29 admeasuring 20 x 35 sq. ft., kh. No. 29 ad-measuring 24 x 11 = 264 sq. ft., part of kh. No. 29 ad-measuring 0.01/4 decimals, kh. No. 29 ad-measuring 12 x 46 = 552 sq. ft. and kh. No. 61/1 bearing plot No. 39 of 0.05 decimal. The complainant further reports that his nephew Shatrughan S/o. Arjundas, resident of Bhanupratappur prepared fabricated & false document and impersonated Kishanchand and filed application before the Tahsildar, Bhanupratappur and scribed false signature and thereby got the land transferred in his name by order of Tahsildar. The complainant further submits that he scribed his signature in Sindhi but on application signature were made in Hindi, He further complained that he is not able to move freely after his disability. The complainant further says that when he came to know about the falsity on 14.08.2006, he obtain the certified copy from the Tahsil Office, Bhanupratappur, wherein forgery came to tore. The complainant further says that before making such complaint, the applicants had obtained some signature in some paper on the pretext to get the agency of BSNL line and the complainant, Kishanchand believed them and signed the papers. The applicant further says that on repeated asking, no satisfactory answer was given by these applicants and ultimately it was revealed that his nephew Shatrughan by playing fraud, fabricated the document and committed forgery in the Court of Tahsildar and got the name mutated. 2. On the basis of such complaint, initially FIR was registered on 23.11.2006 and after investigation the Police had filed the charge-sheet before the Judicial Magistrate First Class, Camp Bhanupratappur. 2. On the basis of such complaint, initially FIR was registered on 23.11.2006 and after investigation the Police had filed the charge-sheet before the Judicial Magistrate First Class, Camp Bhanupratappur. During the course of trial, charges were framed against these applicants under Section 420, 467, 468, 471 read with Section 34 of the IPC. Perusal of charge-sheet filed in this case reflects that the charge-sheet was confined to playing forgery by the applicants by putting false signature by preparing false documents. The charge-sheet further purports that the applicants in furtherance of common object prayed the fraud and fabricated document before the Tahsildar and got the land mutated in their name. 3. After framing of the charges, the applicants in this case had challenged such framing of charges by way of revision before the Court of Additional Sessions Judge, Bhanupratappur, Distt. U.B. Kanker. The applicants advanced the argument that under Section 195(1)(b)(ii) of the Cr.P.C., the cognizance taken by the Court was bad. For the shake of brevity the Section 195(1)(b)(ii) is reproduced here in below. 195(1)(b)(ii)-of any offence described in section 463 or punishable under section 471, 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, or 4. The learned Sessions Court, after hearing the arguments came to a conclusion that in order to take cognizance of the offence under Section 471 of the IPC the complaint should have been forwarded by the Court, wherein forged documents have been used and since the cognizance was not taken by the Tahsildar, therefore the cognizance under Section 471 of the IPC was bad. The learned Sessions Court, after examination of the case, came to a conclusion that the cognizance taken by the Court below under Section 471 of the IPC is not legal and further observed and came to a finding that cognizance taken under Section 420, 467 & 468 of the IPC was legal and there is no bar for it under Section 195(1)(b)(ii) of the Code. 5. 5. This order of the revisional Court is assailed before this Court by invoking the Section 482 of the Cr.P.C. While developing the argument, learned counsel for the applicants submits that since the Court of Tahsildar, wherein the fraudulent document is produced has not taken the cognizance, therefore in view of Section 195(1)(b)(ii) of the Code the cognizance could not have been taken by the private individual since there is a legal bar for that under Cr.P.C. He placed his reliance initially on the opening words of Chapter XVIII (of offences relating to documents and to property marks) which starts with Section 463 of the IPC. For the shake of gravity the Section 463 of the IPC is reproduced here in below: 463. Forgery--Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. 6. The learned counsel for the applicants further placed his reliance in the case reported in between Gopalakrishna Menon and another Vs. D. Raja Reddy AIR 1983 SC 1053 . He submits that in the similar situation the Hon'ble Supreme Court has defined the applicability and taking cognizance with respect to offence under Section 463 of the IPC. Hon'ble Supreme Court while deciding the case by its judgment has held in para 5 and 7 as under:-- 5. If S. 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 S. 463 of the Indian Penal Code it says, "offence described", while in regard to Ss. 471 and 475 or 476 of the I.P.C. It says, "punishable". Section 195(1)(b)(ii) uses two different expressions: in regard to S. 463 of the Indian Penal Code it says, "offence described", while in regard to Ss. 471 and 475 or 476 of the I.P.C. It says, "punishable". The High Court has not made any reference to S. 471 of I.P.C. while rejecting the submissions of the appellants apparently because S. 471 in terms has been mentioned in the provision. So far as S. 463 is concerned, the High Court has taken the view as we have already indicated that "S. 463 cannot be construed to include S. 467". Section 463 of the I.P.C. Provides: 463. Forgery--Whoever makes any false document or part of a document, with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. It is the opening section of Chap. XVIII of the Penal Code dealing with offences relating to documents and to property marks. This opening section in a sense defines the offence of forgery. Sec. 467 of the Penal Code provides: 467. Forgery of valuable security, will etc.--Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest, or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. The purpose of our extracting the two sections of the Penal Code is to show that the offence which is made punishable under S. 467 of the Penal "Code is in respect of an offence described in S. 463. The purpose of our extracting the two sections of the Penal Code is to show that the offence which is made punishable under S. 467 of the Penal "Code is in respect of an offence described in S. 463. 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. We have no doubt in our mind that the High Court took a wrong view of the matter. 7. 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. 7. In the instant case, similar situation exists. The Court of Tahsildar where in the forged document is used has not taken any cognizance but the cognizance is taken under Section 420, 467 & 468 on the basis of private complaint. The forgery is defined under Section 463. If we refer to Section 195(1)(b)(ii) of the Cr.P.C. its purports that no Court shall take cognizance that the offence described under Section 463 of the IPC, therefore the relevant word which is material "Offence described". Reading of Section 467 & 468 of the IPC shows that offence which is made punishable is an offence described under Section 463 of IPC. Once it is accepted that Section 463 defines forgery and 467 & 468 punishes forgery of a particular category, the provisions in 195(1)(b)(ii) of the Cr.P.C. would immediately attracted and on the basis that offence punishable under Section 467 & 468 of the IPC is an offence described under Section 463. Once it is accepted that Section 463 defines forgery and 467 & 468 punishes forgery of a particular category, the provisions in 195(1)(b)(ii) of the Cr.P.C. would immediately attracted and on the basis that offence punishable under Section 467 & 468 of the IPC is an offence described under Section 463. Therefore, in absence of complaint by the Court, prosecution would not be maintainable. 8. Now coming to the cognizance taken under Section 420 of the IPC, the perusal of the charge-sheet reflects that the prosecution has sent for opinion of the forged document is the questioned document for the expert opinion. The report of the same, however is awaited. The trial is pending before the Court of Judicial Magistrate First Class, Bhanupratappur, therefore the relief under Section 482 of the Code under this circumstances cannot be given by this Court with respect to the validity of cognizance taken by learned Court below and this particular issue is still under trial. Since that issue is still within the adjudication of the trial Court and any opinion by this Court with respect to it will prejudice the rights of either the case of the applicants or that of the prosecution, I am of the view since charges under Section 420 of the IPC is still to be adjudicated the same is not quashed and it is left to the learned trial Court for adjudication. To be more specific, the bar of Cr.P.C. under Section 195(1)(b)(ii) will not apply for taking cognizance under Section 420 of the IPC. 9. The principle as laid down in Ms. Zandu Pharmaceutical Works Ltd. And others Vs. Md. Sharaful Hague and others AIR 2005 SC 9 , the Apex Court has held thus, 8. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order, under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge' of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under, the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. 10. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. 10. Applying the aforesaid principle, in order to appreciate the quashment of entire charges under Section 420, 467, 468 of the IPC, I do not find it appropriate to quash the charges framed under Section 420 of the IPC and it is left to learned trial Court to came to finding after examination of witnesses and evidence adduced. In the result, the petition is partly allowed. The charges framing under Section 467 and 468 are quashed. However, the complainant shall be at liberty to move appropriate application if so advised before the appropriate forum.