Sec.195 (1)(b) of Cr. P.C. - Private complaint under sec.425,468 and 471 of I.P.C.- Trial court took cognizance - High court quashed the complaint basing on legal principle upheld in Gopalakrishna Menon and Anr. V D. Raja Reddy and Anr.- Apex court held that In the case at hand, as we find, the allegation in the complaint is that the respondents had forged the signature of the complainant and submitted to the Corporation seeking extension of the period of supply. Thereafter, seeking certain relief a suit was filed and in the suit the document was filed. There is no allegation that this
the learned Single Judge has quashed
the order of cognizance dated 18.10.2000 passed by the
learned SDJM, Panposh, Rourkela in ICC Case No. 92 of
1998. =
a complaint under Section 200
of the Code of Criminal Procedure, 1973 (for short ‘the
Code’) against the accused-respondents alleging
commission of offences under Section 425, 468 and 471 of
the Indian Penal Code, 1860 ( for short ‘the IPC’)=
document was forged when the matter was subjudice before the Civil Court. Thus, the dicta of the Constitution 1954 SCR 1144 Bench is squarely applicable. The High Court has clearly erred in relying on the principle stated in Gopalakrishna Menon's case (supra) which makes the impugned order wholly indefensible. We have already taken note of the submission of Mr. Rao that the High Court has not adverted to the factual score whether a case has been made out on the basis of
the material brought on record. In the absence of any findings in that regard by the High Court, we do not intend to take up the burden on ourselves. That makes it obligatory on our part to set aside the order passed by the High Court and remand the matter to it for fresh consideration whether in the obtaining factual matrix the order of cognizance deserves to be lancinated.=
the order of cognizance dated 18.10.2000 passed by the
learned SDJM, Panposh, Rourkela in ICC Case No. 92 of
1998. =
a complaint under Section 200
of the Code of Criminal Procedure, 1973 (for short ‘the
Code’) against the accused-respondents alleging
commission of offences under Section 425, 468 and 471 of
the Indian Penal Code, 1860 ( for short ‘the IPC’)=
As the complaint would further uncurtain, in spite of
substantial amount of money being paid by way of
advance, no steps were taken by the accused persons to
ensure supply of machineries and equipments with an
ulterior motive, as a consequence of which the complainant
suffered huge loss. It is asserted in the complaint petition
that with the intention to cause wrongful loss and damage
to the complainant, accused persons procured a letter pad
of the complainant from a staff of the company and typed a
letter with the signature of George Bakhtan on that letter
so that they would get an extension from the OSFC
regarding the date of purchase. It is further alleged that
the accused persons orchestrated a conspiracy and
contrived to manipulate the transaction but eventually the
machineries were not supplied. In this backdrop, the
complaint was lodged for the offences which have been
mentioned hereinbefore. =
The
primary plank of proponement before the High Court was
that the order of cognizance was sensitively susceptible
inasmuch as the alleged forged document was produced in
the suit brought by the respondents and, therefore, the
prohibition contained in Section 195(1)(b)(ii) would get
attracted on all fours. To bolster the said submission,
reliance was placed on a two-Judge Bench decision in
substantial amount of money being paid by way of
advance, no steps were taken by the accused persons to
ensure supply of machineries and equipments with an
ulterior motive, as a consequence of which the complainant
suffered huge loss. It is asserted in the complaint petition
that with the intention to cause wrongful loss and damage
to the complainant, accused persons procured a letter pad
of the complainant from a staff of the company and typed a
letter with the signature of George Bakhtan on that letter
so that they would get an extension from the OSFC
regarding the date of purchase. It is further alleged that
the accused persons orchestrated a conspiracy and
contrived to manipulate the transaction but eventually the
machineries were not supplied. In this backdrop, the
complaint was lodged for the offences which have been
mentioned hereinbefore. =
The
primary plank of proponement before the High Court was
that the order of cognizance was sensitively susceptible
inasmuch as the alleged forged document was produced in
the suit brought by the respondents and, therefore, the
prohibition contained in Section 195(1)(b)(ii) would get
attracted on all fours. To bolster the said submission,
reliance was placed on a two-Judge Bench decision in
Gopalakrishna Menon and Anr. V D. Raja Reddy and
Anr.
1
The said submission was resisted by the counsel for
the complainant placing reliance on Smt. Nagawwa V.
Veeranna Shivalingappa Konjalgi and others2
. The
High Court, appreciating the legal submissions, came to hold
as follows:-
“8. In the case at hand, the prosecution is
on the basis of a private complaint and in the
absence of a complaint from the appropriate
civil court, where the alleged fraudulent
document has been produced, would not be
sustainable and such proposition is no longer
res integra what has been settled by the
Hon'ble supreme Court in the judgment
rendered in the case of Gopalakrishna Menon
& another (supra).
9. In view of the aforesaid conclusion,
I am of the considered view that if the
prosecution is allowed to continue, serious
prejudice would be caused to the petitioners
and they would be called upon to face the
trial which would not be sustainable. Hence,
the order of cognizance dated 18.10.2000
passed in I.C.C. case No. 92 of 1998 by the
learned S.D.J.M., Panmposh, Udit Nagar,
Rourkela is set aside and it is left open for the
opposite party-company, if so advised, to
make such complaint before the Civil Court,
Vadodara if aggrieved in any manner to the
alleged forged document produced before
the said court who would be competent to
deal with the same.”
1
(1983) 4 SCC 240
2
(1976) 3 SCC 736
5Page 6
8. As is evincible, at the said juncture, the High Court did
not think it appropriate to dwell upon the justifiability of
the order taking cognizance on facts, for it set aside the
order solely on the basis of the principle stated in
Gopalakrishna menon (supra). =
Be it stated, the Constitution Bench repelled the
argument of strict construction and distinguishing many a
decision, came to hold that Section 195 is not a penal
provision but is a part of procedural law, namely, CrPC,
which elaborately gives a procedure for trial of criminal
cases. Proceeding further, their Lordships held that the
provision only creates a bar against taking cognizance of an
offence in certain specified situations except upon
complaint by Court and a penal statute is one upon which
an action for penalties can be brought by a public officer or
by a person aggrieved and a penal act in its wider sense
includes every statute creating an offence against the
State, whatever is the character of the penalty for the
offence.
18. Dealing with the argument that there should be no
conflict in the findings recorded by the civil and criminal
court, the Constitution Bench referred to earlier
Constitution Bench decision in M.S. Sheriff V. State of
Madras12 and declined to accept the said submission.
19. Eventually, taking note of the facts in that case, the
Court held the Will in question had been produced in the
Court subsequently and there was no allegation that the
offence as enumerated in Section 195(1)(b)(ii) was
committed in respect of the said Will after it had been
produced or filed in the Court, the bar created by the said
provision would not come into play and hence, there was
no embargo on the power of the court to take cognizance
of the offence on the basis of the complaint filed by the
complainants therein.
20. In the case at hand, as we find, the allegation in the
complaint is that the respondents had forged the signature
of the complainant and submitted to the Corporation
seeking extension of the period of supply. Thereafter,
seeking certain relief a suit was filed and in the suit the
document was filed. There is no allegation that this
document was forged when the matter was subjudice
before the Civil Court. Thus, the dicta of the Constitution
12 1954 SCR 1144
14Page 15
Bench is squarely applicable. The High Court has clearly
erred in relying on the principle stated in Gopalakrishna
Menon's case (supra) which makes the impugned order
wholly indefensible.
21. We have already taken note of the submission of Mr.
Rao that the High Court has not adverted to the factual
score whether a case has been made out on the basis of
the material brought on record. In the absence of any
findings in that regard by the High Court, we do not intend
to take up the burden on ourselves. That makes it
obligatory on our part to set aside the order passed by the
High Court and remand the matter to it for fresh
consideration whether in the obtaining factual matrix the
order of cognizance deserves to be lancinated. We would
request the High Court to dispose of the petition within a
period of three months as the matter has been continuing
for long. We may hasten to clarify that we have not
expressed any opinion on the merits of the case.
22. Consequently, the appeal is allowed, the order passed
by the High Court is set aside and the matter is remanded
to the High Court for fresh disposal in accordance with law.
2014- Sept.Month - http://judis.nic.in/supremecourt/imgs1.aspx?filename=41980
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2165 OF 2014
(Arising out of S.L.P. (Crl.) No. 7521 of 2012)
George Bhaktan ...Appellant
Versus
Rabindra Lele & Ors. ...Respondents
J U D G M E N T
Delay condoned.
2. Leave granted.
3. The present appeal, by special leave, calls in question
the legal defensibility of the order dated 03.03.2012,
passed by the High Court of Orissa at Cuttack in CrMC No.
5808/2001 whereby the learned Single Judge has quashed
the order of cognizance dated 18.10.2000 passed by the
learned SDJM, Panposh, Rourkela in ICC Case No. 92 of
1998.
4. The broad essential facts which are required to be
adumbrated for the adjudication of the appeal are that the
appellant-complainant filed a complaint under Section 200
of the Code of Criminal Procedure, 1973 (for short ‘the
Code’) against the accused-respondents alleging
commission of offences under Section 425, 468 and 471 of
the Indian Penal Code, 1860 ( for short ‘the IPC’) on the
foundation that the complainant, the Managing Director of
Ores India (P) Ltd. had approached the accused persons for
supply of machines and equipments for establishing an Iron
Ore Crusher Unit at village Regalveda in the district of
Sundargarh with the financial assistance from Orissa State
Financial Corporation (OSFC). The accused persons being
desirous of supplying the machinery and equipments
persuaded the complainant to place the purchase order in
their favour and on the basis of their past performance, the
appellant placed the purchase order on 23.10.1997. As
stipulated in the said purchase order, the accused persons,
apart from other things, had agreed to provide designing
and drawing for complete plant with 15 months guarantee
from the date of dispatch. On the basis of the purchase
order, the complainant sent cheques for Rs.15 lakhs and, as
alleged, after receipt of the said money the accused
persons sent their written confirmation to OSFC
acknowledging the receipt of the money. The OSFC, in
turn, paid Rs.25 lakhs to the accused persons as an
advance keeping in view the commitment made by the
complainant.
5. As the complaint would further uncurtain, in spite of
substantial amount of money being paid by way of
advance, no steps were taken by the accused persons to
ensure supply of machineries and equipments with an
ulterior motive, as a consequence of which the complainant
suffered huge loss. It is asserted in the complaint petition
that with the intention to cause wrongful loss and damage
to the complainant, accused persons procured a letter pad
of the complainant from a staff of the company and typed a
letter with the signature of George Bakhtan on that letter
so that they would get an extension from the OSFC
regarding the date of purchase. It is further alleged that
the accused persons orchestrated a conspiracy and
contrived to manipulate the transaction but eventually the
machineries were not supplied. In this backdrop, the
complaint was lodged for the offences which have been
mentioned hereinbefore.
6. On the basis of the complaint, initial statement of the
complainant was recorded under Section 200 of the Code
and thereafter an enquiry was conducted under Section
202 of the Code and ultimately cognizance was taken. Be it
stated, for some reason, the order of cognizance initially
taken was set aside by the High Court and the matter was
remitted to the trial court to deal with the aspect of
cognizance in accordance with law. Thereafter, vide order
dated 18.10.2000, the learned Magistrate took cognizance
in respect of the offences.
7. Being grieved by the aforesaid order, the respondents
preferred a petition under Section 482 of the Code. The
primary plank of proponement before the High Court was
that the order of cognizance was sensitively susceptible
inasmuch as the alleged forged document was produced in
the suit brought by the respondents and, therefore, the
prohibition contained in Section 195(1)(b)(ii) would get
attracted on all fours. To bolster the said submission,
reliance was placed on a two-Judge Bench decision in
Gopalakrishna Menon and Anr. V D. Raja Reddy and
Anr.
1
The said submission was resisted by the counsel for
the complainant placing reliance on Smt. Nagawwa V.
Veeranna Shivalingappa Konjalgi and others2
. The
High Court, appreciating the legal submissions, came to hold
as follows:-
“8. In the case at hand, the prosecution is
on the basis of a private complaint and in the
absence of a complaint from the appropriate
civil court, where the alleged fraudulent
document has been produced, would not be
sustainable and such proposition is no longer
res integra what has been settled by the
Hon'ble supreme Court in the judgment
rendered in the case of Gopalakrishna Menon
& another (supra).
9. In view of the aforesaid conclusion,
I am of the considered view that if the
prosecution is allowed to continue, serious
prejudice would be caused to the petitioners
and they would be called upon to face the
trial which would not be sustainable. Hence,
the order of cognizance dated 18.10.2000
passed in I.C.C. case No. 92 of 1998 by the
learned S.D.J.M., Panmposh, Udit Nagar,
Rourkela is set aside and it is left open for the
opposite party-company, if so advised, to
make such complaint before the Civil Court,
Vadodara if aggrieved in any manner to the
alleged forged document produced before
the said court who would be competent to
deal with the same.”
1
(1983) 4 SCC 240
2
(1976) 3 SCC 736
5Page 6
8. As is evincible, at the said juncture, the High Court did
not think it appropriate to dwell upon the justifiability of
the order taking cognizance on facts, for it set aside the
order solely on the basis of the principle stated in
Gopalakrishna menon (supra).
9. Attacking the aforesaid order Mr. Tejaswi Kumar
Pradhan learned counsel for the appellant submitted that
the order passed by the High Court suffers from incurable
infirmity, for it has relied on a decision which has not been
accepted by the Constitution Bench in Iqbal Singh
Marwah and Another V. Meenakshi Marwah and
Another3
. It is also urged by him that it would have been
advisable on the part of the High Court to deal with the lis
on the bedrock of law as well as on the factual score and as
the same has not been done, the impugned order is wholly
unsustainable and deserves to be set aside.
10. Mr. Mohan Rao, learned counsel appearing for the
respondents, resisting the aforesaid submissions urged that
though the principle stated in Gopalakrishna Menon's
case (supra) may not be applicable in praesenti, yet had
3
(2005) 4 SCC 370
the High Court perused the documents which have been
alleged to have been forged by the complainant it would
have come to a definite conclusion that no case has been
made out in respect of the alleged offences. It is his further
submission that present case is one which falls in one of
the seven categories as enumerated in State of Haryana
and others v. Bhajan Lal and others4
. That apart, Mr.
Rao would also contend that the allegation in the complaint
petition as regards the receipt of amount by way of
cheques sent by the complainant is a false one inasmuch
as the cheques for the said amount were dishonoured and
proceedings under Section 138 of the Negotiable
Instruments Act, 1881 were instituted against the
respondents and hence, the instant criminal proceeding,
being a malafide one, deserves to be quashed.
11. On a perusal of the order passed by the High Court, it
is absolutely pellucid that it has not adverted to any aspect
pertaining to the allegations in the complaint or the
material brought on record to arrive at a conclusion
whether a prima facie case has been made out or not. It
has singularly addressed the controversy on the legal
4
1992 Supp (1) SCC 335
7Page 8
backdrop that when a document is produced in a civil
proceeding, it attracts the bar under Section 195(1)(b)(ii) of
the Code and, therefore, the complaint is not tenable in
law. In Gopalakrishna Menon's case the two-Judge
Bench referred to various provisions of the Code and
eventually ruled thus:
“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.”
12. In Sachida Nand Singh and another v. State of
Bihar and another5 a three-Judge Bench was dealing with
the question whether a prosecution can be maintained in
respect of a forged document produced in a court unless
complaint has been filed by the court concerned in that
behalf. Elaborating the posed question the Court stated
that the question involved is whether prohibition contained
in Section 195(1)(b)(ii) of the Code would apply to such
prosecution. Proceeding further the three-judge Bench
5
(1998) 2 SCC 493
8Page 9
observed that though the question was ticklish, yet it had
almost received a quietus with the pronouncement in Patel
Laljibhai Somabhai v. State of Gujarat6
, however, a
subsequent decision in Gopalakrishna Menon's case
struck a different note and thereby revived the issue that
had been put to rest. After referring to the language
employed in Sections 340 and 195 of the Code and the
decisions in Raghunath v. State of U.P.7
, Mohan Lal v.
State of Rajasthan8 and Legal Remembrancer of
Govt. of W.B. v. Haridas Mundra9
, the Court finally
opined thus:-
“Of course in the end of that decision it was
mentioned that prosecution on the basis of a
private complaint, in the absence of a
complaint from appropriate civil court, is not
sustainable. Learned Judges made reference
to the decisions in Patel Laljibhai Somabhai
and S.L. Goswami (Dr) v. High Court of M.P.10
,
and observed that the ratio in those decisions
support the view taken by them. The forgery
alleged in Goswami case took place during
the period when the document in question
was in the custody of the Court and in such a
case the bar under Section 195(1)(b)(ii)
would certainly apply. But, with great
respect, we are unable to agree that the ratio
in Laljibhai Somabhai would support the
6
(1971) 2 SCC 376
7
(1973) 1 SCC 564
8
(1974) 3 SCC 628
9
(1976) 1 SCC 555
10
(1979) 1 SCC 373
conclusion reached in Gopalakrishna Menon
case.
13. From the aforesaid it is limpid that the principle stated
in Gopalkrishna Menon (supra) has specifically been
overruled in Sachida Nand Singh’s case.Despite the
three-Judge Bench decision in Sachida Nand Singh
(supra) the controversy was not allowed to rest.
Thereafter
the conflict was seen in the principle stated in Surjit
Singh v. Balbir Singh11 a decision rendered by a three Judge Bench and Sachida Nand Singh (supra) and both
pertained to interpretation of Section 195 (1)(b)(ii) of the
Code and, therefore, the controversy travelled to the
Constitution Bench in Iqbal Singh Marawah's case.
14. The Constitution Bench after analyzing in detail the
contours of provisions contained in Section 340, 195(1)(b)
and after referring to the decisions in Patel Laljibhai
(supra), Raghunath (supra) and taking note of deletion of
certain words occurring in Section 195(1) of the old Code,
and the 41st report of the Law Commission, came to hold as
follows:
“ In view of language used in Section 340
CrPC the Court is not bound to make a
11 (1996) 3 SCC 533
complaint regarding commission of an
offence referred to in Section 195(1)(b), as
the section is conditioned by the words “court
is of opinion that it is expedient in the
interests of justice”. This shows that such a
course will be adopted only if the interest of
justice requires and not in every case. Before
filing of the complaint, the court may hold a
preliminary enquiry and record a finding to
the effect that it is expedient in the interest
of justice that enquiry should be made into
any of the offences referred to in Section
195(1) (b). This expediency will normally be
judged by the court by weighing not the
magnitude of injury suffered by the person
affected by such forgery or forged document,
but having regard to the effect or impact,
such commission of offence has upon
administration of justice. It is possible that
such forged document or forgery may cause
a very serious or substantial injury to a
person in the sense that it may deprive him
of a very valuable property or status or the
like, but such document may be just a piece
of evidence produced or given in evidence in
court, where voluminous evidence may have
been adduced and the effect of such piece of
evidence on the broad concept of
administration of justice may be minimal. In
such circumstances, the court may not
consider it expedient in the interest of justice
to make a complaint. The broad view of
clause (b) (ii), as canvassed by learned
counsel for the appellants, would render the
victim of such forgery or forged document
remediless. Any interpretation which leads to
a situation where a victim of a crime is
rendered remediless, has to be discouraged.”
15. Thereafter, the larger Bench proceeded to observe
thus:
“An enlarged interpretation to Section 195(1)
(b)(ii), 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. As pointed out in
Sachida Nand Singh 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.”
16. On the base of aforesaid ratiocination, the Constitution
Bench approved the principle laid down in Sachidanand
Singh (supra) by stating thus:
“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 ”
In view of the aforesaid the law laid down in
Gopalkrishna Menon (supra) is no more good law.
17. Be it stated, the Constitution Bench repelled the
argument of strict construction and distinguishing many a
decision, came to hold that Section 195 is not a penal
provision but is a part of procedural law, namely, CrPC,
which elaborately gives a procedure for trial of criminal
cases. Proceeding further, their Lordships held that the
provision only creates a bar against taking cognizance of an
offence in certain specified situations except upon
complaint by Court and a penal statute is one upon which
an action for penalties can be brought by a public officer or
by a person aggrieved and a penal act in its wider sense
includes every statute creating an offence against the
State, whatever is the character of the penalty for the
offence.
18. Dealing with the argument that there should be no
conflict in the findings recorded by the civil and criminal
court, the Constitution Bench referred to earlier
Constitution Bench decision in M.S. Sheriff V. State of
Madras12 and declined to accept the said submission.
19. Eventually, taking note of the facts in that case, the
Court held the Will in question had been produced in the
Court subsequently and there was no allegation that the
offence as enumerated in Section 195(1)(b)(ii) was
committed in respect of the said Will after it had been
produced or filed in the Court, the bar created by the said
provision would not come into play and hence, there was
no embargo on the power of the court to take cognizance
of the offence on the basis of the complaint filed by the
complainants therein.
20. In the case at hand, as we find, the allegation in the
complaint is that the respondents had forged the signature
of the complainant and submitted to the Corporation
seeking extension of the period of supply. Thereafter,
seeking certain relief a suit was filed and in the suit the
document was filed. There is no allegation that this
document was forged when the matter was subjudice
before the Civil Court. Thus, the dicta of the Constitution
12 1954 SCR 1144
14Page 15
Bench is squarely applicable. The High Court has clearly
erred in relying on the principle stated in Gopalakrishna
Menon's case (supra) which makes the impugned order
wholly indefensible.
21. We have already taken note of the submission of Mr.
Rao that the High Court has not adverted to the factual
score whether a case has been made out on the basis of
the material brought on record. In the absence of any
findings in that regard by the High Court, we do not intend
to take up the burden on ourselves. That makes it
obligatory on our part to set aside the order passed by the
High Court and remand the matter to it for fresh
consideration whether in the obtaining factual matrix the
order of cognizance deserves to be lancinated. We would
request the High Court to dispose of the petition within a
period of three months as the matter has been continuing
for long. We may hasten to clarify that we have not
expressed any opinion on the merits of the case.
22. Consequently, the appeal is allowed, the order passed
by the High Court is set aside and the matter is remanded
to the High Court for fresh disposal in accordance with law.
15Page 16
...................................J.
[Dipak Misra]
...................................J.
[Vikramajit Sen]
New Delhi;
September 24, 2014
,
