S. Rajesh vs State and Krishna Tiles and Potteries (Madras) Pvt. Ltd.

K. Chandru, J.—Heard the arguments of Mr. R.Shanmugasundaram, learned Senior Counsel leading Mr. R.Mukesh Kumar for the

petitioner, Mr. Balasubramanian, learned Additional Public Prosecutor for the first respondent and Mr. A.R.L.Sundaresan, learned Senior Counsel

leading Mr. B.Natarajan for the second respondent and perused the records.

The criminal original petition was filed u/s 482 Cr.P.C., challenging the proceedings pending before the Additional Chief Metropolitan

Magistrate, Egmore, Chennai in C.C. No. 2878 of 2006 in Crime No. 657 of 2002 filed by the Inspector of Police, Central Crime Branch,

Chennai -8. The matter came up on 01.03.2007 and subsequently admitted on 16.03.2007. Thereafter, under the orders of the Hon''ble Chief

Justice, it came to be posted before this Court. Pending the criminal original petition, an interim stay was granted. Subsequently, on 13.09.2007,

the stay was modified and was made applicable only to the petitioner alone and not to the other accused. Pending the criminal original petition, the

second respondent got themselves impleaded vide order dated 28.03.2007.

The learned Senior Counsel for the petitioner submitted after referring to the final report that it was filed against A1 to A4 along with 20 others

who are all not apprehended. He also referred to the agreement of sale dated 10.04.2002 and stated that the bonafide of the same was not in

dispute. He further submitted a perusal of the First Information Report shows the pendency of the suit before the II Assistant City Civil Court,

Chennai in O.S. No. 3778 of 2002 and therefore it cannot be said that any crime has been committed without adjudication of the suit. If any

forgery is committed within the precincts of the Court, then in view of the bar u/s 195(1)(b)(ii), no Court can take cognizance of such an offence

except on a complaint in writing by the Court concerned.

Per Contra, the learned Additional Public Prosecutor referred to the counter affidavit dated 09.10.2007 and stated that the petition u/s 482 is

not maintainable. Since the petitioner was using forged documents before the City Civil Court, they can be proceeded with a criminal action. In any

event, it is stated that all these issues will have to be gone into in the trial and the proceedings cannot be thwarted at the threshold.

The learned Senior Counsel for the respondents placed reliance upon a judgment of this Court in Peter Vs. S. Yesudhas, . Reference was made

to the following passage found in paragraph 6, which reads as follows:

...But, on the same set of facts, an action in a civil court as well criminal prosecution are available in some cases. One does not preclude the

other. Both are co-extensive. So, simply because a suit has been filed in which the question is as to who failed to perform the contract is a relevant

issue, a criminal prosecution on specific allegations making out an offence u/s 420, I.P.C. Cannot be quashed.

A further reference was also made to the judgment of the Supreme Court reported in Iqbal Singh Marwah and Another Vs. Meenakshi

Marwah and Another, . The Supreme Court in that decision has clearly held in paragraphs 25, 31, 33 and 34 as follows:

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 Singh2 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.

That apart, the section which we are required to interpret is not a penal provision but is part of a procedural law, namely, the Code of Criminal

Procedure which elaborately gives the procedure for trial of criminal cases. The provision only creates a bar against taking cognizance of an

offence in certain specified situations except upon complaint by court. 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. The principle that a penal statute should be strictly construed, as projected by the learned Counsel for

the appellants can, therefore, have no application here.

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 the present case, the Will has been produced in the court subsequently. It is nobody''s case that any offence as enumerated in Section

195(1)(b)(ii) was committed in respect to the said Will after it had been produced or filed in the Court of District Judge. Therefore, the bar created

by Section 195(1)(b)(ii) CrPC would not come into play and there is no embargo on the power of the court to take cognizance of the offence on

the basis of the complaint filed by the respondents. The view taken by the learned Additional Sessions Judge and the High Court is perfectly

correct and calls for no interference.

A careful perusal of the rival contentions as well as the authorities produced before this Court clearly shows that stalling of the criminal

prosecution by the petitioner is totally misconceived. This Court u/s 482 cannot stall the prosecution at the threshold. This Court is not inclined to

go into the merits of the defence taken by the petitioner as it will prejudice the case in the regular trial. Suffice it to say that the contention raised by

the petitioner in maintaining the petition u/s 482 to quash the complaint pending before the Trial Court is unwarranted.

In the above circumstances, the criminal original petition stands dismissed. Consequently, connected miscellaneous petitions are closed.