Mahabir Singh and ors. vs State of Haryana

B.S. Yadav, J.

The facts leading to this petition are that Laxmi Narain alongwith some other trustees had filed an ejectment application on 26th September, 1978 against the present petitioners Mahabir Singh and Ram Bilas on the ground of nonpayment of rent. According to the rent note dated 24th March 1975, rent was stated to be Rs. 575/ P.M. The petitioners in those proceedings pleaded that Laxmi Narian had executed a writing on 24th March, 1975, which is the date of the rent note, agreeing to receive rent at the rate of Rs. 150/ P. M. During the trial of that case before the Rent Controller, Bhiwani, present petitioner Nos. 1 and 2 appeared as witnesses and also examined petitioner Nos. 3 to 7 as their witnesses. The alleged writing dated 24th March, 1975 was also produced in evidence as Exhibit R 1. This writing is said to have been scribed by Bishan Kumar petitioner No. 5 and attested by Shoan Singh and Burjit Singh petitioners No. 3 and 4 respectively. Petitioner No. 7 Mangli Ram is said to have called the scribe and attesting witnesses for executing R. 1. Petitioner No. 6 Khulu Ram is said to have stated in those proceedings that on 18th March, 1983 Laxmi Narain bad agreed to receive rent at the rate of Rs. 150/ P. M. from the tenants. The Rent Controller held that the receipt was a forged and fabricated document and Laxmi Narain had not entered into any agreement with the tenants agreeing to receive rent at the rate of Rs. 150/ P.M. The said ejectment petition was decided against the tenants on 7th August, 1981.

On the basis of the observations made and findings given in the order of the Rent Controller, Laxmi Narain filed an application before him under section 340 Criminal Procedure Code for making a preliminary enquiry and to make a complaint in writing to the Magistrate having jurisdiction. In that petition it was alleged that the petitioner Nos. 1 to 5 had dishonestly and fraudulently prepared a false, fabricated and forged document by forging his signature on Exhibit R.I. with intent to cause harm and loss to him and to cause wrongful gain to themselves knowingfully well that the said document was a false and fabricated one. He further pleaded that petitioner No. 7 had abetted the commission of offence of forgery by giving intentional aid to the respondents. It was also pleaded that the said writing was forged in order to produce the same in judicial proceedings and it was actually produced in evidence and the petitioners had given false evidence regarding due execution of that document by him and other trustees. Thus they had committed offences punishable under sections 456, 466, 467, 471 and 120B of the Indian Penal Code. Notice of this application was issued to the present petitioners. After bearing the parties and taking evidence, the learned Rent Controller held that the petitioners had conspired to enter in to a criminal conspiracy to forge the document Exhibit R. 1 dishonestly and fraudulently by forging signature of Laxmi Narain with intent to cause harm and loss to him and to cause wrongful gain to themselves knowing fully well that the said document was false and fabricated one. About petitioner No. 6 Khulu Ram, it was remarked that he had abetted the commission of the offence of forgery by giving intentional aid to the other petitioners. He also held that the petitioners had committed offences punishable under sections 193/465/466/471/109/120B, Indian Penal Code and that it was expedient in the interest of justice that an enquiry should be made into the commission of the offences by an appropriate Court. He further ordered that the order be treated as a complaint as envisaged under section 340, Criminal Procedure Code and be sent to the Chief Judicial Magistrate, Bhiwani for taking appropriate action against the petitioners.

Feeling aggrieved, the petitioners filed an appeal which was heard by Sessions Judge, Bhiwani. He did not find any merit in the appeal and dismissed the same. The petitioners have now invoked the revisional jurisdiction of this Court.

The learned counsel for the petitioners placed reliance upon section 195 (1)(b)(ii) of the Code to urge his point that the Court does not come into picture for filing the complaint. That provision read as follows :

"195 (1). No Court shall take cognizance

(a). xx xx xx

(b)(i) xx xx xx

(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) xx xx xx

except on the complaint in writing of that Court or of some other Court to which that Court is subordinate."

Before I take up the arguments of the learned counsel for the petitioners, I have not been able to understand that under which provision a Court is precluded from lodging a complaint if an offence under section 471, Indian Penal Code, is committed in respect of a document produced or given in evidence in a proceeding in that Court. Section 471 of the Indian Penal Code reads as follows :

"Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document."

Thus the offence under section 471 of the Indian Penal Code will be completed only when a forged document is fraudulently or dishonestly used as a genuine one and if the offence is completed in a Court during proceedings pending in it then it is not understood why that Court is debarred from filing the complaint before the Ilaqa Magistrate against the offender.

Prior to the enactment of the Criminal Procedure Code, 1973, the corresponding provision in the old Criminal Procedure was section 195 (1) (c). The only material difference is that the words "by a party to any. proceeding in any Court" have been omitted in the new Code. Section 195 (1) (b) and (c) of the old Code come up for interpretation in Patel Laljibhai Somabhai v. The State of Gujarat, A.I.R. 1971 Supreme Court 1935. In that case the plaintiff had produced in evidence one cheque which was found to be forged After the conclusion of the case, the defendant filed a complaint in the Court of Judicial Magistrate under sections 467 and 471 of the Indian Penal Code against the plaintiff and one other person. The Magistrate found prima facie evidence that the cheque had been forged and had been fraudulently used in the civil suit He further held that the forgery of the cheque and the use of the forged cheque formed part of the same transaction and the two charges could, therefore be tried together. The question of necessity of a complaint by the Civil Court under section 195 (1) (c), Criminal Procedure Code (old) was also raised before him but he held it to be inapplicable. He committed the accused for trial. On behalf of the accused an application was made in the Court of Assistant Sessions Judge, in which the trial was to be held, praying for quashing the commitment proceedings in view of the bar of section 195 (1) (c) of the old Code. As the Assistant Sessions Judge could not make any reference to the High Court, the case was withdrawn by the Sessions Judge to his own Court and after bearing the application referred the case to the High Court with a recommendation that the commitment order be quashed. The High Court declined the recommendation. The accused filed an appeal in the Supreme Court. Their Lordships remarked :

"Broadly speaking we are inclined to agree with the reasoning of the Allahabad Full Bench in Kushal Pal Singh''s. case, ILR 53 All 804(AIR 1931 All 443) (FB) This in our opinion reflects the better view. The purpose and object of the Legislature in creating the bar against cognizance of private complaints in regard to the offences mentioned in Section 195 (1) (b) and (c) is both to save the accused person from vexatious or baseless prosecutions inspired by feelings of vindictiveness on the part of the private complainants to harass their opponents and also to avoid confusion which is likely to arise on account of conflicts between findings of the Courts in which forged documents are produced or false evidence is led and the'' conclusions of the Criminal Courts dealing with the private complaint. ''It is for this reason as suggested earlier, that the Legislature has entrusted the Court, whose proceedings had been the target of the offence of perjury, to consider the expediency in the larger public interest of a criminal trial of the guilty party.

In this case the offence under Section 471, I.P.C. is clearly covered by the prohibition contained in Section 195 (1)(c) but the offence under section 467, I.P.C. can in our view be tried in the absence of a complaint by the Court unless it is shown by the evidence that the documents in question were forged by a party to the earlier proceeding in his character as such party, in other words, after the suit had been instituted."

From the above observations it is clear that with respect to the offence under section 471 of the Indian Penal Code, if the offence is committed in the proceedings pending in a Court then only the Court is competent to file the complaint.

The learned counsel for the petitioner has also cited Raghunath and others v. State of U.P. and others, A.I.R. 1973 Supreme Court 1100, Mohan Lal and others v. The State of Rajasthan and another, A.I.R. 1974 Supreme Court 299 and Legal Remembrancer of Govt. of West Bengal v. Haridas Mundra, A.I.R. 1976 Supreme Court 2225. In those cases offences covered by section 195 of the Old Code were committed by a person before he became party to the proceedings. Naturally as that offender was concerned. section 195 of the old Code did not come into play. He has also cited Dr. B.L. Goswami v. The High Court of Madhya Pradesh. A.I.R. 1979 Supreme Court 437. It is not necessary to discuss that ruling in detail because on facts of the case their Lordships held that'' it had not been established that the document in question was produced or given in evidence in a proceeding before Court and, therefore, the complaint by the court in writing was not necessary.

As far as the question of forgery aloneis concerned, of course it must have been committed before the document in question was produced before the Rent Controller. The learned counsel for the petitioner has also cited Karnail Singh and another v. The State of Punjab, 1983 (1) C.L.R 199. I have not been able to understand how that case is applicable to the facts of the present case. In that case it was held that as car as the question of forgery is concerned, section 195 (1)(b)(ii) of the New Code would come into play if it is committed in respect of a document during its custody by the Court or its fabrication in the course of the proceedings itself. Of course, a forged document is usually prepared before it is produced in the Court Therefore, if a complaint is to be filed with respect to forgery a line then it is not necessary that the complaint should be filed by the Court and the bar imposed by section 195 about taking cognizance of such an offence, is also not applicable in such a case. As discussed above, the complaint against the petitioners is, that a forged document has been used by them as a genuine one Therefore, while lodging complaint with respect to the commission of an offence under section 471 of the Indian Penal Code, the Rent Controller in my opinion, would be competent to include the offence about the forgery also in that complaint because the various offences are part of the same transaction. I think such a complaint by a court would be in the interest of the offender also. Otherwise in respect of offences committed in the Court they will have to face prosecution on the basis of the complaint filed by the Court and they will have to face separate prosecution for the offence of forgery on a complaint filed by a private person.

I may also quote here Gopalakrishna Menon and another v. Dr. Raja Reddy and another, 1983 (1) Recent Criminal Reports 354 : 1984 (1) C.L.R. 91 . In that case during the pendency of the suit the defendant had produced a receipt. Thereupon the plaintiff filed a complaint against the defendants alleging forgery of his signature on the receipt and there by commission of the offence punishable under sections, 467 and 471 of the Indian Penal Code. On receiving summons from the Court the accused objected to the maintainability of the criminal action and later on moved the High Court for quashing the said proceedings by contending that in the absence of a complaint from the Court the prosecution was barred in view of section 195 (b) (ii) of the Code (new). In support of that contention reliance was also placed on section 340 of the Code. The High Court repelled those contentions. The accused filed an appeal in the Supreme Court. Their Lordships remarked :

"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 private 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."

For the foregoing reasons I am of the opinion that the complaint filed by the Rent Controller is maintainable. Consequently, the present petition fails and the same is hereby dismissed.