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Thursday, March 8, 2018

On 29.11.2007, the appellant filed an application under Section 195(1)(b)(ii) Cr.P.C. making allegations against the respondent, who was counsel for the appellants in Civil Appeal No. 91 of 2004 that he committed offence in verifying and forging thumb impression of dead appellant namely Shaba Manju Velip. = It is further to be noted that the execution application, which was filed by the 18 decree holder was also withdrawn. It is further relevant to notice that the appeal, which was filed by judgment debtor was withdrawn by judgment debtor, which in no manner had impaired the interest of the appellant, who was legal heir of decree holder. It is also on the record that legal heirs of the decree holders have also withdrawn their execution application, which has attained finality. None of the appellants, who had filed Appeal No.91 of 2004 before the High Court has initiated any proceeding against the present respondent N.M. Dessai, who was their advocate. It is only the appellant, who was respondent in Appeal No.91 of 2004 has filed a complaint under Section 195. The High Court having taken into consideration entire facts and circumstances have rightly come to the conclusion that present is not a case where any complaint could have been proceeded under Section 195(1)(b)(i) Cr.P.C.

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 359 OF 2018
(Arising Out of SLP (Criminal) No. 1395 of 2010)
VISHNU CHANDRU GAONKAR … APPELLANT
VERSUS
N.M. DESSAI … RESPONDENT
J U D G M E N T
ASHOK BHUSHAN, J.
This appeal has been filed questioning the
judgment and order dated 06.10.2009 of the High
Court of Bombay at Goa in Criminal Appeal No. 22
of 2009 by which judgment, the criminal appeal
filed by the respondent Shri Narayan M. Dessai
has been allowed setting aside the order of
District & Sessions Judge dated 31.07.2008
directing for filing a complaint under Section
195(1)(b)(ii) of Cr.P.C. 
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2. The facts which are necessary to be noted
for deciding this appeal are:-
A regular Civil Suit No. 4 of 1993 was filed
by two plaintiffs namely Laximan Rama
Gaonkar and Janu Narayan Gaonkar impleading
two defendants namely Kusta Naga Gaonkar and
Shri Suresh Kust Gaonkar. The appellant in
this appeal is legal heir of original
plaintiff No. 2, Janu Narayan Gaonkar. The
Suit No. 4 of 1993 was decreed by judgment
and decree dated 07.12.2001. An application
for execution of decree was filed by the
legal heirs of the plaintiffs on 07.12.2003.
Legal heirs of the original defendants filed
a Civil Appeal No. 91 of 2004 questioning
the judgment and decree dated 07.12.2001.
One of the appellants in Civil Appeal No. 91
of 2004 namely Shaba Manju Velip (one of the
legal heirs of original defendants Kusta
Naga Gaonkar) died on 02.03.2005. No
application to bring his legal heirs on
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record was filed by the appellants. The
application to withdraw execution case No. 1
of 2003 filed for execution of the decree in
Civil Suit No. 4 of 1993 was filed by the
plaintiff’s advocate on 20.06.2006. The
application for withdrawal of Civil Appeal
No. 91 of 2004 was filed on 18.07.2006,
which was allowed on 18.07.2006 itself. The
Execution Case No. 01 of 2003 was also
allowed to be withdrawn on 21.07.2006. On
29.11.2007, the appellant filed an
application under Section 195(1)(b)(ii)
Cr.P.C. making allegations against the
respondent, who was counsel for the
appellants in Civil Appeal No. 91 of 2004
that he committed offence in verifying and
forging thumb impression of dead appellant
namely Shaba Manju Velip. By order dated
31.07.2008, learned District & Sessions
Judge found that it is a fit case for
inquiry under Section 195(1)(b)(ii) and
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directed for inquiry and registering a
complaint under Section 195(1)(b)(ii).
Respondent preferred an appeal before the
High Court against the order of District &
Sessions Judge dated 31.07.2008. The High
Court vide its impugned judgment allowed the
appeal and quashed the order of the District
Judge dated 31.07.2008 as well as the
complaint filed pursuant thereto. Aggrieved
against the judgment of the High Court, the
appellant has filed this appeal.

3. Learned counsel for the appellant submitted
that the High Court relying on the Three Judge
Bench judgment of this Court in Sachida Nand
Singh & Anr. Vs. State of Bihar & Anr., (1998) 2
SCC 493, which has been approved by the
Constitution Bench of this Court in Iqbal Singh
Marwah & Anr. Vs. Meenakshi Marwah & Anr.,
(2005) 4 SCC 370, has allowed the appeal filed
by the respondent whereas the above judgments of
this Court, wherein reference was made to
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Section 195(1)(b)(ii) Cr.P.C., which were not
applicable in the facts of the present case,
since allegations made in the complaint filed by
the appellant were referable to Section 195(1)
(b)(i). It is submitted that the District &
Session Judge has rightly considered all facts
and circumstances and directed for filing of
complaint against the respondents under Section
195(1)(b). No one has appeared on behalf of the
respondent in spite of service.
4. We have considered the submissions of the
learned counsel for the parties and perused the
records.
5. It is useful to extract Section 195(1) of
Cr.P.C., which is to the following effect:-
“195. Prosecution for contempt of
lawful authority of public servants,
for offences against public justice
and for offences relating to documents
given in evidence. - (1) No
Court shall take cognizance(a)
(i) of any offence punishable under
sections 172 to 188 (both in-
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clusive) of the Indian Penal Code
(45 of 1860 ), or
(ii) of any abetment of, or attempt
to commit, such offence, or
(iii) of any criminal conspiracy
to commit such offence,
except on the complaint in writing
of the public servant concerned
or of some other public
servant to whom he is administratively
subordinate;
(b) (i) of any offence punishable under
any of the following sections
of the Indian Penal Code (45 of
1860 ), namely, sections 193 to
196 (both inclusive), 199, 200,
205 to 211 (both inclusive) and
228, when such offence is alleged
to have been committed in, or in
relation to, any proceeding in
any Court, or
(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
(iii) of any criminal conspiracy
to commit, or attempt to commit,
or the abetment of, any offence
specified in sub-clause (i) or
sub- clause (ii), 
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[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].
……………………………………………”
6. From the facts which are on the record,
there is no dispute that the Appeal No. 91 of
2004 was filed by several appellants, out of
which one of the appellants was Shaba Manju
Velip, who died on 02.03.2005. The application
for withdrawal of the appeal was filed on
18.07.2006. It is further to be noted that one
Vimal Shaba Velip, who was one of the
respondents before the High Court, took it upon
herself to say that the thumb impression, which
was put as of Shaba Manju Velip was put by her,
since her husband Shaba Manju Velip also used to
sign along with her, in good faith, she put her
thumb impression. The respondent N.M. Dessai
came with the case that he having been informed
that talks of settlement amongst the Gaonkars is
going on and they are intending to withdraw the
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execution application filed by them. He, as per
instructions of his client, drafted and handed
over the application for withdrawing the Appeal
No. 91 of 2004 to one Suresh K. Gaonkar to
obtain the signatures of the remaining
respondents. He further came with the case that
he was not aware of death of Shaba Manju Velip
or alleged forged thumb impression of Shaba
Manju Velip on the application.
7. The facts fairly indicate that the
application when it was presented in the Court
in Appeal No. 91 of 2004 for withdrawal of the
appeal, signatures/thumb impressions of the
appellants were already obtained on the said
application, which was handed over to the
respondent in this appeal for filing in the
Court. On the same date, i.e., 18.07.2006, the
Court allowed the application permitting
withdrawal of the appeal.
8. A Criminal Misc. Application No. 95 of 2007
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for initiating action under Section 195(1)(b)
(ii) of Cr.P.C. was filed by the appellant after
the said withdrawal of the appeal. Copy of the
Application No. 95 of 2007 has been filed as
Annexure P-4. It is useful to quote prayer in
the application, which is to the following
effect:-
“The applicant therefore prays that
in view of above an enquiry may be
conducted and the written complaint
be made as per the provision
contemplated under Section 195(1)(b)
(ii) of Criminal Procedure Code in
order to prosecute and take further
action against the respondents above
as per the provision of law.”
9. The application was allowed by the District
Judge vide order dated 31.07.2008 where the
District Judge had directed for inquiry to be
conducted in terms of Section 195(1)(b)(ii) of
Cr.P.C., it is useful to quote Paras 18 and 19
of the order of the District Judge, which is to
the following effect:-
“18. Though the respondent No.9 has
canvassed that he was totally
unconnected with any of such
transaction, such a plea would not
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lie in his mouth when he was
representing the said appellants and
one of whom was Shaba, since deceased
and instrumental in seeking the
withdrawal of the appeal also at his
instance as late as 18.7.2006 despite
Shaba being dead on that day.
Therefore, on the basis of the
material on record, it is apparent
that an offence of forgery under
Section 463 I.P.C. has allegedly been
committed to withdraw the appeal misrepresenting
the deceased as living
and the execution of the Sale Deeds
in respect of the very same property
on the following day and a day
thereafter. The application so filed
in Court would be “a document” in the
context of the Evidence Act and
evidence.
19. I am therefore satisfied that
this is a fit case where inquiry is
required to be conducted in terms of
Section 195(1)(b)(ii) of Cr.P.C. and
initiate complaint against the
respondents for appropriate action as
per law.”
10. The two judgments of this Court, which has
already been noticed by the High Court needs
detailed reference.
11. A Three Judge Bench of this Court in
Sachida Nand Singh & Anr. Vs. State of Bihar &
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Anr., (1998) 2 SCC 493 had occasion to consider
Section 195(1)(b)(ii) and Section 340(1) Cr.P.C.
Interpreting Section 195(1)(b)(ii), following
was laid down in Paras 8, 11 and 23:-
“8. 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 ensue unsavoury
consequences. For instance,
if rank forgery of a valuable document
is detected and the forgerer is
sure that he would imminently be embroiled
in prosecution proceedings he
can simply get that document produced
in any long-drawn litigation which
was either instituted by himself or
somebody else who can be influenced
by him and thereby pre-empt the prosecution
for the entire long period of
pendency of that litigation. It is a
settled proposition that if the language
of a legislation is capable of
more than one interpretation, the one
which is capable of causing mischievous
consequences should be
averted. Quoting from Gill v. Donald
Humberstone & Co. Ltd.5 Maxwell has
stated in his treatise (Interpretation
of Statutes, 12th Edn., p. 105)
that “if the language is capable of
more than one interpretation we ought
to discard the more natural meaning
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if it leads to unreasonable result
and adopt that interpretation which
leads to a reasonably practicable result”.
The clause which we are now
considering contains enough indication
to show that the more natural
meaning is that which leans in favour
of a strict construction, and hence
the aforesaid observation is eminently
applicable here.
11. The scope of the preliminary enquiry
envisaged in Section 340(1) of
the Code 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. In other words, the offence
should have been committed during
the time when the document was in
custodia legis.
23. The sequitur of the above discussion
is 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 the document was produced in a
court. Accordingly we dismiss this
appeal.”
12. It is also relevant to note that
observations have been made by this Court that
forgery of a document if committed far outside
the precincts of the Court and long before its
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production in the Court, the same cannot be
treated as one affecting administration of
justice. In Para 12, following has been held:-
“12. It would be a strained thinking
that any offence involving forgery of
a document if committed far 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.”
13. A contrary earlier view having expressed
by another Three Judge Bench in Surjit Singh &
Ors. Vs. Balbir Singh, (1996) 3 SCC 533, being
not in accord with the view expressed by this
Court in Sachida Nand Singh & Anr. Vs. State of
Bihar & Anr. (supra), the same was referred to a
Constitution Bench for resolving the conflict.
The Constitution Bench vide its judgment in
Iqbal Singh Marwah & Anr. Vs. Meenakshi Marwah &
Anr., (2005) 4 SCC 370 has resolved conflict and
approved three Judge Bench judgment in Sachida
Nand Singh & Anr. Vs. State of Bihar & Anr.
(supra). In Para 33, following was laid down:-
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“33. In view of the discussion made
above, we are of the opinion that
Sachida Nand Singh has been correctly
decided and the view taken therein is
the correct view. Section 195(1)(b)
(ii) CrPC 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.”
14. Learned counsel for the appellant before
us has pressed only one submission, i.e., the
judgment of Constitution Bench in Iqbal Singh
Marwah (supra) was a case, which interpreted
Section 195(1)(b)(ii), to which there cannot be
any dispute but present was a case of offence
under Section 195(1)(b)(i). Hence the
Constitution Bench judgment of this Court was
not applicable and the High Court committed
error in relying on the Constitution Bench
Judgment in Iqbal Singh Marwah (supra).
15. The submission which has been raised by
learned counsel for the appellant before us has
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to be stated to be rejected due to the reason
that before the Session Court as well as before
the High Court, the appellant has alleged an
offence under Section 195(1)(b)(ii). A copy of
the Application No. 95 of 2007 has been annexed
as Annexure P-4. The prayer made therein as
extracted above clearly prays for complaint to
be made as per the provisions contemplated under
Section 195(1)(b)(ii) of Cr.P.C. Even the order
of District Judge, which was the basis in favour
of the appellant on 31.07.2008 has also directed
for inquiry and initiating complaint in terms of
Section 195(1)(b)(ii) of Cr.P.C., which has also
been extracted above for ready reference. There
being specific case of the appellant in his
complaint as well as in order passed by the
District Judge in his favour, it is not open for
the appellant now to turn round and claim that
allegations are covered under Section 195(1)(b)
(i). There is one more reason due to which the
above submission cannot be accepted. The
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Constitution Bench elaborately noticing the
statutory scheme under Section 195 has held that
where offences has already been committed
earlier and later on the document is produced or
given in the evidence in Court, the same is
neither covered under Clauses (a), (b)(i) or (b)
(ii). In Para 10, Constitution Bench made
following observations:-
“10. The scheme of the statutory provision
may now be examined. Broadly, Section
195 CrPC deals with three distinct
categories of offences which have been
described in clauses (a), (b)(i) and
(b)(ii) and they relate to (1) contempt
of lawful authority of public servants,
(2) offences against public justice,
and (3) offences relating to documents
given in evidence. Clause (a) deals
with offences punishable under Sections
172 to 188 IPC which occur in Chapter X
IPC and the heading of the Chapter is —
“Of Contempts of the Lawful Authority
of Public Servants”. These are offences
which directly affect the functioning
of or discharge of lawful duties of a
public servant. Clause (b)(i) refers to
offences in Chapter XI IPC which is
headed as — “Of False Evidence and Offences
Against Public Justice”. The offences
mentioned in this clause clearly
relate to giving or fabricating false
evidence or making a false declaration
in any judicial proceeding or before a
court of justice or before a public
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servant who is bound or authorised by
law to receive such declaration, and
also to some other offences which have
a direct correlation with the proceedings
in a court of justice (Sections
205 and 211 IPC). This being the scheme
of two provisions or clauses of Section
195 viz. that the offence should be
such which has direct bearing or affects
the functioning or discharge of
lawful duties of a public servant or
has a direct correlation with the proceedings
in a court of justice, the expression
“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” occurring
in clause (b)(ii) should normally mean
commission of such an offence after the
document has actually been produced or
given in evidence in the court. The
situation or contingency where an offence
as enumerated in this clause has
already been committed earlier and
later on the document is produced or is
given in evidence in court, does not
appear to be in tune with clauses (a)
(i) and (b)(i) and consequently with
the scheme of Section 195 CrPC. This
indicates that clause (b)(ii) contemplates
a situation where the offences
enumerated therein are committed with
respect to a document subsequent to its
production or giving in evidence in a
proceeding in any court.”
16. It is further to be noted that the
execution application, which was filed by the
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decree holder was also withdrawn. It is further
relevant to notice that the appeal, which was
filed by judgment debtor was withdrawn by
judgment debtor, which in no manner had impaired
the interest of the appellant, who was legal
heir of decree holder. It is also on the record
that legal heirs of the decree holders have also
withdrawn their execution application, which has
attained finality. None of the appellants, who
had filed Appeal No.91 of 2004 before the High
Court has initiated any proceeding against the
present respondent N.M. Dessai, who was their
advocate. It is only the appellant, who was
respondent in Appeal No.91 of 2004 has filed a
complaint under Section 195. The High Court
having taken into consideration entire facts and
circumstances have rightly come to the
conclusion that present is not a case where any
complaint could have been proceeded under
Section 195(1)(b)(i) Cr.P.C. 
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17. We thus fully endorse the view of the High
Court that present is not a case where any
complaint could have been proceeded with under
Section 195(1)(b)(ii). We thus do not find any
merit in this appeal and the same is dismissed.
..........................J.
( A.K. SIKRI )
..........................J.
NEW DELHI, ( ASHOK BHUSHAN )
MARCH 06, 2018.

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