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Judgment
D.N. Baruah, J.—Petitioner have filed this petition for quashing the criminal proceedings (CR No. 283/87) pending in the court of Judicial Magistrate 1st class, Gauhati. Their case is that the opposite party, an Executive Director of Associated Brokers Pvt. Ltd., Ulubari, Guwahati (hereinafter referred to as "Company") instituted a complaint case in the court of Chief Judicial Magistrate, Kamrup against them. In his complaint, the opposite party stated, inter-alia, that the 1st Petitioner is a partnership firm and 2nd and 3rd Petitioners are its partners. The 1st Petitioner used to maintain a Cash Credit Running Accounts with the Company through its partners. The firm through the 2nd and 3rd Petitioners used to draw finance form the company. Besides, finance was also received from the sister concerns of the Company, namely, Peoji Tea Company and Durga Tea Company. The 3rd Petitioner by his letter dated 26.5.81 acknowledgment that an amount of Rs. 1,45,642.21 paise remained outstanding to the company. Along with the said letter, two statements of accounts were also forwarded to the company in confirmation of the aforesaid dues. The 3rd Petitioner also executed a promisory note on 26.5.81 promising to pay the said sum of Rs. 1,45,642.21 paise together with interest @ 12% per annum to the company on demand. However, the Petitioner No. 3 inspite of demand, failed to pay the amount as promised. Therefore, the company instituted a Money Suit (MS No. 135/84) in the court of Assistant District Judge, Gauhati. Court issued summons to the Petitioners as Defendants. Petitioners on service of summons entered appearance in the suit and filed written statement. The Petitioners also filed a photocopy of a certificate dated 4.11.81 alleged to have been issued by the opposite party in a letter head of the company in the court on 17.2.87. A copy of the said certificate was also supplied to the Lawyer of the company on the same day. As per the said certificate, the opposite party confirmed that there was no outstanding balance payable by the firm. Petitioners, however, did not file the original of of the said certificate in the court. They retained the same with them. According to the opposite party, the said certificate dated 4.11.87 was a false document made by the Petitioners with a view to make wrongful gain. The opposite party also stated that the Petitioners had also forged the signature and counterfeited the office seal. This was done in furtherance of their common intention to defraud the company. The aforesaid certificate was made, signed and sealed by the Petitioners on 4th November, 1981 at Gauhati and thereby committed the offence of forgery with intention to make a wrongful gain end therefore, punishable under Sections 467, 468, 469, 472 and 474 read with Section 34 IPC.
The court after taking cognizance of the offence issued process under the aforesaid sections fixing 30.4.84 for hearing. Petitioners, in due course, entered appearance and filed a petition dated 2.4.87 contending, inter-alia that the Court had no jurisdiction to take cognizance of the offence in view of Section 195(1)(b)(ii) of Code of Criminal Procedure as the Money Suit No. 135/84 was pending before the Assistant District Judge Gauhati and the complaint case was brought out on the allegation that the forged document was filed by the Petitioners in the aforesaid Money Suit and therefore, the Court cannot take cognizance under the aforesaid section in view of the provisions contained in Section 195(1)(b)(ii) of the Code of Criminal Procedure. The Assistant District Judge after hearing the patties, by his order dated 15.6.87 rejected the prayer of the Petitioners holding that the provisions u/s 195(b)(ii) is not attracted in the present case. Hence, the present petition.
I have beard both sides.
Mr. Kamar, learned Counsel for the Petitioners submitted that as per the case of the opposite party, the document was a forged one which was filed with the intention to cheat the person and in this type of case, it is the court in which the document had been filed can make a complaint in writing or by any other court subordinate to that court. Mr. Kamar further, submitted that admittedly the alleged forged document had been filed in the court of the Assistant District Judge, No. 1 and, therefore, u/s 195(1)(b)(ii) the Asstt. District Judge was the competent authority to institute the criminal case under the aforesaid sections and opposite party had no power or authority to institute the case in the present facts and circumstances. Hence, taking cognizance of the above offence by the Magistrate was without jurisdiction and further proceedings of the said criminal case would be an abuse of the process of the court and therefore, this Court in exercise of the inherent power may quash the criminal proceedings.
Mr. Bhattacharjee, learned Counsel for the opposite party, on the other hand, submitted that under the facts and circumstances of the case, the provisions u/s 195(1)(b)(ii) are not attracted, opposite party can make the complaint. The Magistrate had definitely jurisdiction to take cognizance of the offence and this cannot be said to be an abuse to the process of the Court.
On the rival contentions of the parties, it is to be seen whether in the present case, the provisions of Section 195(1)(b)(ii) is attracted.
Section 195(1)(b)(ii) deals with the matters relating to contempt of lawful authority of public servant, for offences against public justice and for offences relating to documents given in evidence.
I quote Section 195(1)(b)(ii): (1) No count shall take cognizance-
(ii) of any offence described in Section 463, or punishable u/s 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have computed in respect of a document produced or given in evidence in a proceeding in any court...except on the complaint in writing of that court, or of some other court to which that court is subordinate....
In a criminal case ordinarily any one may lodge a complaint to set the criminal case into motion. However, Sections 195 to 199 are the exception to the general rules. This is because of the nature and character of certain offence affecting the lawful authority of the public servant or public justice. Right under the aforesaid sections have been restricted and courts are debarred from taking cognizance of the offence mentioned in the aforesaid sections unless and until the public servant or a court directly concerned, themselves make the complaint. The principle underlying Section 195 is that in regard to offences of contempt of lawful authority of public servants or to offences against public justice such as giving false evidence or producing forged document etc. in Court, private prosecutions are absolutely barred and only the public servants or the Courts concerned can make complaints. Therefore, Section 195 prohibits the Court from taking cognizance of such offence. The purpose and object of the bar against cognizance of private complaints in regard to the offences mentioned in Section 195(1)(b) is for public purpose. In Patel Laljibhai Somabhai v. The State of Gujarat reported in 1971 SC 1935, Supreme Court observed that the purpose and object of the bar against cognizance of private complaints in regard to the offences mentioned in Section 195(1)(b) is both to save the accused from vexatious or baseless prosecutions spited by feelings of vindictiveness on the part of the private complaints and also to avoid confusion likely to arise on account of conflicts between findings of 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 that the legislature has entrusted the Courts, whose proceedings had been the target of the offence of purjury to consider the expediency in the larger public interest of a criminal trial of the guilty party. This section relates to the offence specified in chapter 18 of the Penal Code. The word forgery is used as a general term in Section 468 IPC and that section is referred to here in a comprehensive sense as to include cognate sections and to embrace all species of forgery. In Section 195(1)(b)(ii) though the ingredients of the offence in Section 463, IPC have got to be satisfied in establishing a charge u/s 466 and 467 IPC cash and every offence under Sections 466 and 467 IPC are by themselves distinct offences because some more ingredients other than those in Section 463 IPC are involved.
Coming to the present case it is to be seen whether the ingredients of Section 195(1)(b)(ii) have been complied with. The Petitioners case is that the complaint was lodged on the allegation that the Petitioners have filed a photo copy of the certificate which according to the opposite party was false and the signature was forged. Section 195(1)(b)(ii) only requires the production of a forged document or its being given in evidence. The section refers to a document alleged to be forged and not a copy of it and so where the document in respect of which charge was laid had not itself been produced but a copy of it. In that event, the said section cannot operate as a bar to prosecution. In Sushil Kumar and Others Vs. State of Haryana and Others, the Supreme Court held thus:
...Sub-section (1)(b)(ii) of Section 195 of the Code lays down that no court shall take cognizance of any offence described in the sections mentioned therein 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". Interpreting the similar language of the corresponding provision in the earlier Code of Criminal Procedure of 1898, the Privy Council in Sanmukhsingh v. The King (1949) LR 77 Ind App 7 : AIR 1950 PC 31 , observed that by production of a copy of the allegedly forged document it cannot be said that the document itself was given in evidence. This view, as pointed out, accords with the plain grammatical meaning of the words and is also supported by the practical common sense. The judgment of the Judicial Committee was followed in Budhu Ram Vs. State of Rajasthan, Accordingly, we hold that since the document alleged to have been forged was not in the present case produced in the court, the provisions of Section 195(1)(b)(ii) of the Code have no application. We, therefore, confirm the High Court''s direction, but on a different ground as indicated. The appeal is dismissed.
In the instant case only the photo copy of the document alleged to be forged was filed. Therefore, I am of the opinion that Section 195 is not attracted in the present case. Accordingly, I do not find any merit in the petition and the petition is dismissed.