Ajai Bansal and Others vs Virendra Kumar and Another

U.S. Tripathi, J.—This application u/s 482, Cr. P.C. has been moved for quashing the complaint in Case Crime No. 283 of 1991, under Sections 420, 467, 468, 472 and 120B, I.P.C. Virendra Kumar v.X Ith Additional Chief Judicial Magistrate, Agra.

It appears that Virendra Kumar opposite party No. 1 filed a complaint against the applicants and one Prabhat Kumar Sharma, Sub-Registrar, Agra under Sections 420, 467, 468, 471 and 120B, I.P.C. with the allegation that he and his brothers Surendra Kumar, Mahendra Kumar and Rajendra Kumar were co-sharer of 1/4th share each of plot No. 602/2. Applicant No. 1 entered into an agreement to purchase above plot and issued two cheques of Rs. 50,000 and sale deed was to be executed. Subsequently, signatures of Surendra Kumar and Mahendra Kumar were obtained by applicant No. 1 on two blank stamp papers of 25 paise each. Subsequently, it transpired that applicant No. 1 in connivance with other applicants and the Sub-Registrar prepared a forged sale deed in the name of Mahendra Kumar and Surendra Kumar for entire plot fraudulently and got it registered at the office of Sub-Registrar.

The opposite party No. 1 Virendra Kumar examined himself u/s 200 and his witnesses u/s 202, Cr. P.C. The learned Magistrate on considering the evidence u/s 200 and 202, Cr. P.C. summoned the applicants for trial under Sections 420, 467, 468, 471 and 120B, I.P.C. vide order dated 14.10.1991. The applicants challenged the above summoning order in criminal revision before the Sessions Judge. The learned Sessions Judge rejected the revision, vide order dated 6.1.1993.

Heard Sri K. K. Dwivedi, learned Counsel for the applicants and the learned A.G.A. and perused the record.

The learned Counsel for the applicants raised two grounds for quashing the proceeding (1) the opposite party No. 1, who filed complaint was not competent to file the complaint (2) the cognizance of case on complaint by private person was barred u/s 195(1), Cr. P.C.

It was pointed out that impugned sale deed regarding which alleged offence is said to have been committed was on behalf of Mahendra Kumar and Surendra Kumar and not on behalf of applicants and therefore, applicants have no right to file the complaint.

The "complaint" as defined u/s 2(d), Cr. P.C means any allegation made orally or in writing to a Magistrate with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but does not include a police report.

The above definition of complaint does not indicate competency of a person, who may file a complaint. Except the cases covered by provisions under Sections 195, 196, 197, 198, 198A and 199, Cr. P.C., there is no provision in the Cr. P.C. barring a third person from making a complaint. Any person having knowledge of commission of an offence may file complaint even though he is not personally injured or affected by an offence except the offences covered by above noted Sections. Thus, unless, where a special or local law specifies the person by whom prosecution under these laws should be instituted, there is no bar for filing a complaint by a person not directly affected by the offence. Moreover, in this case Surendra Kumar and Mahendra Kumar are real brothers of complainant opposite party No. 2 and the complainant opposite party No. 2 had also his 1/4th share in the plot regarding which alleged fraudulent sale deed was obtained. Therefore, he being a co-sharer of the undivided share of plot in question may also be said to be affected person and was competent to file the complaint. Therefore, the complaint cannot be said to be legally bad on this ground.

The next ground taken by the learned Counsel for the applicant was that the impugned sale deed regarding which offence was allegedly committed was produced before the Tahsildar in mutation proceeding and, therefore, complaint can be filed by the Court of Tahsildar and cognizance on complaint by private persons is barred u/s 195(1), Cr. P.C. The learned Counsel for the applicants also placed reliance in this regard on case law Ram Pal Singh v. State of U. P. XIX 1982 ACC 34 and Surjit Singh and Ors. v. Balbir Singh 1996 JIC 709 (SC).

The allegation of the complaint shows that the sale deed was fraudulently and forgerly prepared prior to its production in the Court of Tahsildar in mutation proceeding. The bar created by Section 195(1)(b)(ii) is confined by words "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." The Full Bench of this Court in the case of Ram Khelawan and Ors. v. State of U. P. XXXVI 1998 ACC 571, held that Section 195(1)(ii) of the Code of Criminal Procedure, 1973, is limited in its operation only to the offence mentioned in this Section if such offence is with regard to document produced or given in evidence in such proceedings and when that document is still in custody of the Court. It has no application to a case in which such a document is fabricated long before its production or its being tendered in evidence. In the said case, the alleged forged sale deed was not on the record of any Court, hence the question of bar u/s 195(1)(b)(ii) of the new Code was held not applicable. The observation of Division Bench case in Ram Pal Singh''s case (supra) was also challenged in the said Full Bench case.

It was also held by Apex Court in the case of Sachidanand Singh and Ors. v. State of Bihar and others XXXVI 1998 ACC 466 (SC), 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. In the case of Surjit Singh (supra), the Apex Court held that "the bar of Section 195 is to take cognizance of the offences covered thereunder. It is seen that in this case, cognizance was taken by the criminal court on September 27, 1983 and the original agreement appears to have been filed in the civil court on February 9, 1984-long after cognizance was taken by the Magistrate. It is settled law that once cognizance is taken, two courses are open to the Magistrate, namely, either to discharge the accused if the evidence does not disclose the offence or to acquit the accused after the full trial. Unless either of the two courses is taken and orders passed, the cognizance was already taken before filing of the document in the civil court and the original has not been filed before cognizance was taken, the High Court was right in directing that the Magistrate is at liberty to proceed with the trial of the criminal case." Therefore, this case law also does not help the applicants.

As per allegation of the complaint, the alleged forgery and fraud in or in connection with the document have been committed prior to its production before the mutation court and therefore, the bar created by Section 199(1)(b)(ii), Cr. P.C., are not applicable to the present complaint and complaint is not liable to be quashed on the said ground also.

In view of the above discussions, the application is devoid of force and is liable to be rejected.

The application is accordingly rejected. Stay order dated 28.10.1993 is vacated.

The copy of this order be sent to C.J.M.