Devaramane Sringeshwaraiah and Another vs M.R. Narasimha Pandith and Another

M.P. Chinnappa, J.—Heard C.H. Jadhav the learned Counsel for the petitioners; Sri S. Krishnaiah and Smt. Sheela Krishna in Cri. P. No. 1236 of 1999 and Sri T.K. Vishwajith in Cri. P. No. 1476 of 1999.

The brief facts of the case in PCR No. 18 of 1999 are that the respondent filed a complaint alleging that she had filed a suit O.S. No. 61 of 1990 on the file of the learned Civil Judge (Senior Division), Chickmagalur, against the petitioners for recovery of Rs. 60,000/- on the basis of the on-demand pronote executed by the accused persons When the suit was pending, the accused persons produced the documents purported to have been executed by the complainant in O.S. No. 61 of 1990 marked as Exs. D. 3, D. 27 and D. 33. The complainant stated that the above said documents were not genuine and signatures found therein were forged signatures of the complainant, so also the signatures of late T.N. Krishna Bhat and K.V. Ramappaiah who are highly regarded and respected persons of Sringeri Taluk and these documents are got up documents. On the basis of this complaint, the Court has taken cognizance and directed issue of notice to the accused persons therein. These accused persons filed Cri. P. No. 1236 of 1999 before this Court to quash the proceedings pending before the Court.

One Nagaraj filed a suit in O.S. No. 26 of 1990 on the file of the learned Civil Judge, Chickmagalur, to recover a sum of Rs. 40,000/-along with interest against the petitioners. The petitioners7de fend ants filed their written statement on the ground that they had not taken any loan from the said Nagaraj and the respondent who is a close associate of the said Nagaraj had advanced a sum of Rs. 40,000/- on a condition that the petitioner should deliver areca crop grown in the garden land of the petitioners. The respondent got executed a money bond for Rs. 40,000/- in the name of Nagaraj. In pursuance of the terms of the money bond, the petitioners handed over the areca crop grown in their land to the respondent and have thus repaid the loan. It is further averred that having received the loan amount, the respondent in order to wreck vengeance has got filed a suit for recovery of Rs. 40,000/- from Nagaraj. The petitioner 2 in the course of evidence as defendant has produced the receipts issued by the respondent herein stating that the loan is repaid. This being the true state of affairs, the respondent who is not concerned whatsoever with the said suit is also not a party has filed a private complaint in PCR No. 23 of 1999 on the file of the Judicial Magistrate First Class, Sringeri, alleging that the documents produced by the petitioner 2 in the Court were forged documents for the purpose of cheating the complainant, etc. The learned Magistrate has referred the matter to the police for investigation by order dated 27-3-1999. Being aggrieved by that order of the Judicial Magistrate First Class dated 27-3-1999 in PCR No. 23 of 1999 the petitioner filed petition Cri. P. No. 1476 of 1999.

The learned Counsel for the petitioners has vehemently argued that the order passed by the Court is contrary to law and facts of the case. It is contrary to the mandate of Section 195 of the Cr. P.C. The production of forged documents in the Court attracts bar u/s 195 of the Code of Criminal Procedure. The Magistrate cannot proceed on the basis of the private complaint presented by either of the parties. The, entire procedure followed by the learned Magistrate is illegal. The Court should have rejected the complaint without referring to the police. Therefore, he contended that the order is liable to be set aside.

The learned Counsel while emphasising this argument has placed reliance on a judgment of the Supreme Court in the case of State of Uttar Pradesh v. Mata Bhikh and Ors. (1991)4 SCC 95 , wherein their Lordships have discussed the scope and purport of Section 195(1)(a) and held that the provisions of Section 195 no doubt are mandatory and the Court has no jurisdiction to take cognizance of the offence mentioned therein unless there is a complaint in writing of the public servant concerned as required by the section without which the trial u/s 188 of the IPC becomes void ab initio. A written complaint by a public servant concerned is sine qua non to initiate a criminal proceeding u/s 188 of the IPC. No private complaint can be allowed to initiate any criminal proceeding in his individual capacity. In that case, the offences alleged against the accused therein were under Sections 465, 468 and 471 of the IPC.

He also further relied on a decision of the Supreme Court in Surjit Singh and others Vs. Balbir Singh, wherein their Lordships have held:

"The object of Section195 is to protect persons from needless harassment by prosecution for private vendetta; to preserve purity of the judicial process and unsullied administration of justice; to prevent the parties of the temptation to pre-empt the proceedings pending in a Court and to pressurise and desist parties from proceeding with the case. Equally when the act complained of relates to an offence, i.e., contempt of lawful authority of public servant, or against public justice or for offences relating to documents produced or given in evidence, public justice demands absolute bar of private prosecution and that power be given to the Court to lay complaint u/s 340 of the Code as per the procedure prescribed therein.

After taking cognizance of an offence, the document, the foundation for forgery, if produced before the Court or given in evidence, the bar of taking cognizance u/s 195(1)(b)(ii) gets attracted and the Criminal Court is prohibited from taking cognizance of offence unless a complaint in writing is filed as per the procedure prescribed u/s 340 of the Code by or on behalf of the Court. The object thereby is to preserve purity of the administration of justice and to allow the parties to adduce evidence in proof of certain documents without being compelled or intimidated to proceed with the judicial process. The bar of Section 195 is to take cognizance of the offences covered thereunder.

From this decision it is clear that the bar is only in regard to taking cognizance of the offence and not referring the case to the police for investigation as provided u/s 195 and also ruled by the Supreme Court".

In the case on hand admittedly the Court has not taken cognizance, On the other hand, the Court has referred the case to the police for investigation u/s 156(3) of the Cr. P.C. and it is also settled law that when the matter is referred to the police, it is deemed that the Court has not taken cognizance of the offence. Therefore, at this stage, the question of taking cognizance does not arise.

In similar circumstances in Sachida Nand Singh and Another Vs. State of Bihar and Another, the Supreme Court has held that the complaint was filed in the Court of the Chief Judicial Magistrate alleging offences, inter alia, under Sections 468, 469 and 471 of the IPC. On the facts that the appellant had forged the document and produced it in Court of the executing Magistrate which was then dealing with the proceedings u/s 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 appellants then moved the Patna High Court u/s 482 of the 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) of the Code. Before the High Court the appellants cited the decisions of the Supreme Court in Gopalakrishna Menon and Another Vs. D. Raja Reddy and Another, but the High Court relying on the Supreme Court decision in Patel Laljibhai Somabhai Vs. The State of Gujarat, dismissed the petition of the appellant. Therefore, the appellant approached the Supreme Court. Therefore, their Lordships while considering the scope and purport of Section 195 have held that Section 195(1(b)(ii) of the Cr. P.C. reveals two main postulates for operation of the bar mentioned there. First is, there must be an allegation that an offence (it should be either an offence described in Section 463 or any other offence punishable under Sections 471, 475 and 476 of the IPC) 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 the Court, then the prosecution would lie at the instance of any person. The question arises whether in the latter situation production of such document 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.

In this case also, it is clear that the document was not forged while it was in the custody of the Court. On the other hand, according to the allegation in the complaint, these documents were forged and thereafter filed before Court in pending suits. Therefore, the question of following the procedure u/s 340 does not arise at this stage and there is no prohibition by the Court to take cognizance u/s 195.

The learned Counsel for the petitioners also placed reliance on a judgment in the case of M.S. Ahlawat Vs. State of Haryana and Another, wherein their Lordships have held that where the petitioners filed affidavits with forged signatures and made false statements at different stages before it, infliction of punishment u/s 193 of the IPC on the writ petitioner by the Supreme Court after a show-cause notice held that the Supreme Court ought to have rather followed the procedure under Sections 195 and 340 of the Cr. P.C. That was a proceeding regarding contempt of Court and under the circumstances, on facts, the case is not applicable to the case on hand.

However, the stage is not reached to take cognizance of the offence as indicated above. Therefore, these decisions also are not helpful to the petitioners'' case.

The learned Counsel for the respondents also cited a decision rendered by the Supreme Court in Kamaladevi Agarwal Vs. State of West Bengal and Others, wherein the Supreme Court has held that the inherent power u/s 482 should be exercised sparingly. When the Trial Court found that the complainant had made out a prima facie case against the accused persons, of forgery of a document (a deed of dissolution of partnership firm), held, High Court was not justified in quashing the criminal proceedings merely on the ground that the same document was under scrutiny by it in a civil proceeding initiated by the same complainant under Sections 465, 467, 468, 471 and 120-B.

From these decisions also it is abundantly clear that it is not a stage at which this Court can interfere with the order passed by the Court below directing the police to investigate into the matter. Therefore, viewed from any angle, these petitions do not have any merit.

Accordingly, the petitions stand dismissed.