GEORGE BHAKTANversusRABINDRA LELE & ORS.

A
                        (2014] 11 S.C.R. 520


                        GEORGE BHAKTAN
                                                                     •
                                 v.
                     RABINDRA LELE & ORS.
                (Criminal Appeal No. 2165 of 2014)
                      SEPTEMBER 24, 2014
B
           [DIPAK MISRA AND VIKRAMAJIT SEN, JJ.]

         Code of Criminal Procedure, 1973 - ss.195(1)(b)(ii) and
    482 - Prohibition in s. 195(1)(b)(ii) - Applicability of -
c   Appellant filed complaint u/s.200 CrPC against respondents
    alleging commission of offences u/ss. 425, 468 and 471 /PC
    - Magistrate took cognizance - Order of cognizance
    challenged on ground that the alleged forged document was
    produced in a suit brought by the respondents, therefore,
D   prohibition contained in s. 195(1)(b)(ii) was attracted - High
    Court quashed order of cognizance passed by the Magistrate
    - Propriety - Held: High Court did not advert to any aspect
    pertaining to allegations in the complaint or the material
    brought on record to arrive at a conclusion whether a prima
E   facie case was made out or not - It singularly addressed the
    controversy on the legal backdrop that when a document is
    produced in a civil proceeding, it attracts the bar ul
    s.195(1)(b)(ii) CrPC and, therefore, the complaint is not
    tenable in law - On facts, there was no a/legation that the
F   document was forged when the matter was sflbjudice before
    the Civil Court - High Court erred in relying on the principle
    stated in Gopalakrishna Menon case - Dicta of the
    Constitution Bench in Iqbal Singh Marwah case squarely
    applicable - Order passed by the High Court accordingly set
G   aside - Matter remanded to High Court for fresh
    consideration.

        Allowing the appeal, the Court

         HELD: The High Court has not adverted to any aspect
H                             520
•          GEORGE BHAKTAN v. RABINDRA LELE                    521


    pertaining to the allegations in the complaint or the material   A
    brought on record to arrive at a conclusion whether a
    prima facie case has been made out or not. It has
    singularly addressed the controversy on the legal
    backdrop that when a document is produced in a civil
    proceeding, it attracts the bar under Section 195(1)(b)(ii)      B
    of the Code of Criminal Procedure and, therefore, the
    complaint is not tenable in law. In the case at hand, there
    is no allegation that document was forged when the matter
    was subjudice before the Civil Court. The dicta of the
    Constitution Bench in Iqbal Singh Marwah case is                 c
    squarely applicable. The High Court clearly erred in relying
    on the principle stated in Gopalakrishna Menon's case.
    The matter is remanded to the High Court for fresh
    disposal. [Paras 11, 20, 22] [526-F-G; 527-A; 531-F-G; 532-0]

        Gopalakrishna Menon and Anr. v. D. Raja Reddy and            D
    Anr. (1983) 4 sec 240: 1983 (3) SCR 836 - held
    overruled.                                       '

        Iqbal Singh Marwah and Another v. Meenakshi Marwah
    and Another (2005) 4 SCC 370 - followed.                         E

        Sachida Nand Singh and another v. State of Bihar and
    another (1998) 2 sec 493 - relied on.

         Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and
    others (1976) 3 SCC 736: 1976 (0) Suppl. SCR 123; State          F
    of Haryana and others v. Bhajan Lal and others 1992 Supp
    (1) SCC 335; Patel Laljibhai Somabhai v. State of Gujarat
    (1971) 2 SCC 376; Raghunath v. State of U.P. (1973) 1 SCC
    564; Mohan Lal v. State of Rajasthan (1974) 3 SCC 628;
    Legal Remembrancer of Govt. of W.B. v. Haridas Mundra            G
    (1976) 1 SCC 555; Surjit Singh v. Balbir Singh (1996) 3 SCC
    533 and M.S. Sheriff v. State of Madras 1954 SCR 1144 -
    referred to.

                                                                     H
A
    522      SUPREME COURT REPORTS


                          Case Law Reference:
                                                   [2014] 11 S.C.R.
                                                                       •
      1983 (3) SCR 836                 held overruled Para 7
      1976 (0) Suppl. SCR 123          referred to       Para 7
     (2005) 4 sec 370                  followed          Para 9
B
      1992 supp (1) sec 335            referred to       Para 10
      (1998) 2 sec 493                 relied on         Para 12
      (1971) 2 sec 376                 referred to       Para 12
c     (1973) 1 sec 564                 referred to       Para 12
      (1974) 3 sec 628                 referred to       Para 12
      (1976) 1 sec 555                 referred to       Para 12
      (1996) 3 sec 533                 referred to       Para 13
D
      1954 SCR 1144                    referred to       Para 18
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 2165 of 2014.

E        From the Judgment and Order dated 07.01.2011 in MC
    No. 1 of 2010, in CRLMC No. 5808 of 2001 and 03.03.2012
    in CRLMC No. 5808 of 2001 of the High Court of Orissa at
    Cuttack.
          Tejaswi Kumar Pradhan for the Appellant.
F
          C.S.N. Mohan Rao, R. Santhan Krishnan, Aditya Kumar
    for the Respondents.
          The Judgment of the Court was delivered

G                              JUDGMENT

          1. Delay condoned.
          2. Leave granted.
          3. The present appeal, by special leave, calls in question
H
•     GEORGE BHAKTAN v. RABINDRA LELE

the legal defensibility of the order dated 03.03.2012, passed
                                                             523


                                                                    A
by the High Court of Orissa at Cuttack in CrMC No. 5808/2001
whereby the learned Single Judge has quashed the order of
cognizance dated 18.10.2000 passed by the learned SDJM,
Panposh, Rourkela in ICC Case No. 92 of 1998.
     4. The broad essential facts which are required to be          8
adumbrated for the adjudication of the appeal are that the
appellant-complainant filed a complaint under Section 200 of
the Code of Criminal Procedure, 1973 (for short 'the Code')
against the accused-respondents alleging commission of
offences under Section 425, 468 and 471 of the Indian Penal         C
Code, 1860 ( for short 'the IPC') on the foundation that the
complainant, the Managing Director of Ores India (P) Ltd. had
approached the accused persons for supply of machines and
equipments for establishing an Iron Ore Crusher Unit at village
Regalveda in the district of Sundargarh with the financial          D
assistance from Orissa State Financial Corporation (OSFC).
The accused persons being desirous of supplying the
machinery and equipments persuaded the complainant to place
the purchase order in their favour and on the basis of their past
performance, the appellant placed the purchase order on             E
23.10.1997. As stipulated in the said purchase order, the
accused persons, apart from other things, had agreed to
provide designing and drawing for complete plant with 15
months guarantee from the date of dispatch. On the basis of
the purchase order, the complainant sent cheques for Rs.15          F
lakhs and, as alleged, after receipt of the said money the
accused persons sent their written confirmation to OSFC
acknowledging the receipt of the money. The OSFC, in turn,
paid Rs.25 lakhs to the accused persons as an advance
keeping in view the commitment made by the complainant.             G
     5. As the complaint would further uncurtain, in spite of
substantial amount of money being paid by way of advance,
no steps were taken by the accused persons to ensure supply
of machineries and equipments with an ulterior motive, as a
                                                                    H
                                                             ,

    524       SUPREME COURT REPORTS              [2014] 11 S.C.R..


A consequence of which the complainant suffered huge loss. It
  is asserted in the complaint petition that with the intention to
  cause wrongful loss and damage to the complainant, accused
  persons procured a letter pad of the complainant from a staff
  of the company and typed a letter with the signature of George
B Bakhtan on that letter so that they would get an extension from
  the OSFC regarding the date of purchase. It is further alleged
  that the accused persons orchestrated a conspiracy and
  contrived to manipulate the transaction but eventually the
  machineries were not supplied. In this backdrop, the complaint
c was lodged for the offences which have been mentioned
  hereinbefore.
       6. On the basis of the complaint, initial statement of the
  complainant was recorded under Section 200 of the Code and
  thereafter an enquiry was conducted under Section 202 of the
D Code and ultimately cognizance was taken. Be it stated, for
  some reason, the order of cognizance initially taken was set
  aside by the High Court and the matter was remitted to the trial
  court to deal with the aspect of cognizance in accordance with
  law. Thereafter, vide order dated 18.10.2000, the learned
E Magistrate took cognizance in respect of the offences.
       7. Being grieved by the aforesaid order, the respondents
  preferred a petition under Section 482 of the Code. The primary
  plank of proponement before the High Court was that the order
F of cognizance was sensitively susceptible inasmuch as the
  alleged forged document was produced in the suit brought by
  the respondents and, therefore, the prohibition contained in
  Section 195(1}(b)(ii) would get attracted on all fours. To bolster
  the said submission, reliance was placed on a two-Judge Bench
G decision in Gopalakrishna Menon and Anr. VD. Raja Reddy
  and Anr'. The said submission was resisted by the counsel
  for the complainant placing reliance on Smt. Nagawwa V.
  Veeranna Shivalingappa Konjalgi and others2. The High
    1.   (1983) 4 sec 240.
H 2. (1976) 3 sec 736.
•      GEORGE BHAKTAN v. RABINDRA LELE


Court, appreciating the legal submissions, came to hold as
follows:-
                                                                 525

                                                                         A


     "8. In the case at hand, the prosecution is on the basis of
     a private complaint and in the absence of a complaint from
     the appropriate civil court, where the alleged fraudulent
                                                                         8
     document has been produced, would not be sustainable
     and such proposition is no longer res integra what has
     been settled by the Hon'ble supreme Court in the judgment
     rendered in the case of Gopa/akrishna Menon & another
     (supra).
                                                                         c
     9. In view of the aforesaid conclusion, I am of the
     considered view that if the prosecution is allowed to
     continue, serious prejudice would be caused to the
     petitioners and they would be called upon to face the trial
     which would not be sustainable. Hence, the order of                 D
     cognizance dated 18.10.2000 passed in LC.C. case No.
     92 of 1998 by the learned S.D.J.M., Panmposh, Udit
     Nagar, Rourkela is set aside and it is left open for the
     opposite party-company, if so advised, to make such
     complaint before the Civil Court, Vadodara if aggrieved             E
     in any manner to the alleged forged document produced
     before the said court who would be competent to deal with
     the same."

     8. As is evincible, at the said juncture, the High Court did        F
not think it appropriate to dwell upon the justifiability of the order
taking cognizance on facts, for it set aside the order solely on
the basis of the principle stated in Gopalakrishna menon
(supra).

       9. Attacking the aforesaid order Mr. Tejaswi Kumar G
Pradhan learned counsel for the appellant submitted that the
order passed by the High Court suffers from incurable infirmity,
for it has relied on a decision which has not been accepted by
the Constitution Bench in Iqbal Singh Marwah and Another
                                                                 H
    526       SUPREME COURT REPORTS             [2014) 11 S.C.R. •


A V. Meenakshi Marwah and Anothef'. It is also urged by him
  that it would have been advisable on the part of the High Court
  to deal with the lis on the bedrock of law as well as on the
  factual score and as the same has not been done, the
  impugned order is wholly unsustainable and deserves to be set
B aside.

       10. Mr. Mohan Rao, learned counsel appearing for the
  respondents, resisting the aforesaid submissions urged that
  though the principle stated in Gopalakrishna Menon's case
C (supra) may not be applicable in praesenti, yet had the High
  Court perused the documents which have been alleged to have
  been forged by the complainant it would have come to a definite
  conclusion that no case has been made out in respect of the
  alleged offences. It is his further submission that present case
  is one which falls in one of the seven categories as enumerated
0
  in State of Haryana and others v. Bhajan Lal and others".
  That apart, Mr. Rao would also contend that the allegation in
  the complaint petition as regards the receipt of amount by way
  of cheques sent by the complainant is a false one inasmuch
E as the cheques for the said amount were dishonoured and
  proceedings under Section 138 of the Negotiable Instruments
  Act, 1881 were instituted against the respondents and hence,
  the instant criminal proceeding, being a malafide one, deserve~
  to be quashed.

F      11. On a perusal of the order passed by the High Court, it
  is absolutely pellucid that it has not adverted to any aspect
  pertaining to the allegations in the complaint or the material
  brought on record to arrive at a conclusion whether a prima
  facie case has been made out or not. It has singularly
G addressed the controversy on the legal backdrop that when a
  document is produced in a civil proceeding, it attracts the bar
  under Section 195(1 )(b)(ii) of the Code and, therefore, the

    3.   (2005) 4 sec 310.
H   4.   1992 Supp (1) sec 335.
•       GEORGE BHAKTAN v. RABINDRA LELE


complaint is not tenable in law. In Gopalakrishna Menon's
case the two-Judge Bench referred to various provisions of the
                                                               527

                                                                       A

Code and eventually ruled thus:

      "If S. 195 (1)(b)(ii) is attracted to the facts of the present
      case, in the absence of a complaint in writing of the Civil      B
      Court where the alleged forged receipt has been
      produced, taking of cognizance of the offence would be
      bad in law and the prosecution being not maintainable,
      there would be absolutely no justification to harass the
      appellants by allowing prosecution to have a full dressed        C
      trial."

      12. In Sachida Nand Singh and another v. State of
Bihar and another a three-Judge Bench was dealing with the
question whether a prosecution can be maintained in respect
of a forged document produced in a court unless complaint has D
been filed by the court concerned in that behalf. Elaborating the
posed question the Court stated that the question involved is
whether prohibition contained in Section 195(1)(b)(ii) of the
Code would apply to such prosecution. Proceeding further the
three-judge Bench observed that though the question was E
ticklish, yet it had almost received a quietus with the
pronouncement in Patel Laljibhai Somabhai v. State of
Gujarat', however, a subsequent decision in Gopalakrishna
Menon's case struck a different note and thereby revived the
issue that had been put to rest. After referring to the language F
employed in Sections 340 and 195 of the Code and the
decisions in Raghunath v. State of U.P.7, Mohan Lal v.
State of Rajasthan• and Legal Remembrancer of Govt. of
W.B. v. Haridas Mundra9, the Court finally opined thus:-
                                                                  G
5.   (1998) 2 sec 493.
6.   (1971) 2 sec 376.
7.   (1973) 1 sec 564.
8.   (1974) 3 sec 628.
9.   (1976) 1 sec 555.                                                 H
                                                                          •
    528      SUPREME COURT REPORTS                  [2014] 11 S.C.R .


A         "Of course in the end of that decision it was mentioned that
          prosecution on the basis of a private complaint, in the
          absence of a complaint from appropriate civil court, is not
          sustainable. Learned Judges made reference to the
          decisions in Patel Laljibhai Somabhai and S.L. Goswami
B         (Dr) v. High Court of M.P. 10 , and observed that the ratio
          in those decisions support the view taken by them. The
          forgery alleged in Goswami case took place during the
          period when the document in question was in the custody
          of the Court and in such a case the bar under Section
c         195(1)(b)(ii) would certainly apply. But, with great respect,
          we are unable to agree that the ratio in Laljibhai
          Somabhai would support the conclusion reached in
          Gopalakrishna Menon case.

       13. From the aforesaid it is limpid that the principle stated
D in Gopalkrishna Menon (supra) has specifically been
  overruled in Sachida Nand Singh's case. Despite the three-
  Judge Bench decision in Sachida Nand Singh (supra) the
  controversy was not allowed to rest. Thereafter the conflict was
  seen in the principle stated in Surjit Singh v. Balbir Singh11 ,
E a decision rendered by a three-Judge Bench and Sachida
  Nand Singh (supra) and both pertained to interpretation of
  Section 195 (1)(b)(ii) of the Code and, therefore, the
  controversy travelled to the Constitution Bench in Iqbal Singh
    Marawah's case.
F
       14. The Constitution Bench after analyzing in detail the
  contours of provisions contained in Section 340, 195(1)(b) and
  after referring to the decisions in Patel Laljibhai (supra),
  Raghunath (supra) and taking note of deletion of certain words
G occurring in Section 195(1) of the old Code, and the 41st report
  of the Law Commission, came to hold as follows:

          • In view of language used in Section 340 CrPC the Court
    10. (1979) 1 sec 373.
H 11. (1996) 3 sec 533.
•
         GEORGE BHAKTAN v. RABINDRA LELE                     529


    is not bound to make a complaint regarding commission            A
    of an offence referred to in Section 195(1)(b), as the
    section is conditioned by the words "court is of opinion that
    it is expedient in the interests of justice". This shows that
    such a course will be adopted only if the interest of justice
    requires and not in every case. Before filing of the             B
    complaint, the court may hold a preliminary enquiry and
    record a finding to the effect that it is expedient in the
    interest of justice that enquiry should be made into any of
    the offences referred to in Section 195(1) (b). This
    expediency will normally be judged by the court by               c
    weighing not the magnitude of injury suffered by the person
    affected by such forgery or forged document, but having
    regard to the effect or impact, such commission of offence
    has upon administration of justice. It is possible that such
    forged document or forgery may cause a very serious or           0
    substantial injury to a person in the sense that it may
    deprive him of a very valuable property or status or the like,
    but such document may be just a piece of evidence
    produced or given in evidence in court, where voluminous
    evidence may have been adduced and the effect of such
                                                                     E
    piece of evidence on the broad concept of administration
    of justice may be minimal. In such circumstances, the court
    may not consider it expedient in the interest of justice to
    make a complaint. The broad view of clause (b) (ii), as
     canvassed by learned counsel for the appellants, would
     render the victim of such· forgery or forged document           F
     remediless. Any interpretation which leads to a situation
    where a victim of a crime is rendered remediless, has to
     be discouraged."

        15. Thereafter, the larger Bench proceeded to observe        G
thus:

        "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
                                                                     H
                                                                           ..
    530      SUPREME COURT REPORTS                 [2014] 11 S.C.R. •


A        document is subsequently produced in court, is capable
         of great misuse. As pointed out in Sachida Nand Singh
         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
B        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.
c        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."

       16. On the base of aforesaid ratiocination, the Constitution
D Bench approved the principle laid down in Sachidanand Singh
  (supra) by stating thus:
                                                              .      ;,,
          "In view of the di~cussion made above, we are of the.
          opinion that Sachida Nand Singh has been correctly
E         decided and the view taken therein is the correct view.
          Section 19591)(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
F         i.e. during the time when the document was in custodia
          legis "

       In view of the aforesaid the law laid down in Gopalkrishna
    Menon (supra) is no more good law.

G       17. Be it stated, the Constitution Bench repelled the
  argument of strict construction and distinguishing many a
  decision, came to hold that Section 195 is not a penal provision
  but is a part of procedural law, namely, CrPC, which elaborately
  gives a procedure for trial of criminal cases. Proceeding
H further, their Lordships held that the provision only creates a bar
•        : GEORGE BHAKTAN v. RABINDRA LELE


against taking cognizance of an offence in certain specified
situations except upon complaint by Court and a penal statute
                                                                  531


                                                                         A

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             B
offence.

     18. Dealing with the argument that there should be no
conflict in the findings recorded by the civil and criminal court,
the Constitution Bench referred to earlier Constitution Bench            C
decision in M.S. Sheriff V. State of Madras 12 and declined
to accept the said submission.

          19. Eventually, taking note of the facts in that case, the
    Court held the Will in question had been produced in the Court
    subsequently and there was no allegation that the offence as         D
    enumerated in Section 195(1)(b){ii) was committed in respect
    of the said Will after it had been produced or filed in the Court,
    the bar created by the said provision would not come into play
    and hence, there was no embargo on the power of the court to
    take cognizance of the offence on the basis of the complaint         E
    filed by the complainants therein.

         20. In the case at hand, as we find, the allegation in the
    complaint is that the respondents had forged the signature of
    the complainant and submitted to the Corporation seeking             F
    extension of the period of supply. Thereafter, seeking certain
    relief a suit was filed and in the suit the document was filed.
    There is no allegation that this document was forged when the
    matter was subjudice before the Civil Court. Thus, the dicta of
    the Constitution Bench is squarely applicable. The High Court        G
    has clearly erred in relying on the principle stated in
    Gopalakrishna Menon's case (supra) which makes the
    impugned order wholly indefensible.

    12. 1954 SCR 1144..                                                  H
A
    532     SUPREME COURT REPORTS                [2014] 11 S.C.R

        21. We have already taken note of the submission of Mr.
  Rao that the High Court has not adverted to the factual score
                                                                       •
  whether a case has been made out on the basis of the material
  brought on record. In the absence of any findings in that regard
  by the High Court, we do not intend to take up the burden on
B ourselves. That makes it obligatory on our part to set aside the
  order passed by the High Court and remand the matter to it
  for fresh consideration whether in the obtaining factual matrix
  the order of cognizance deserves to be lancinated. We would
  request the High Court to dispose of the petition within a period
c of three months as the matter has been continuing for long. We
  may hasten to clarify that we have not expressed any opinion
  on the merits of the case.

         22. Consequently, the appeal is allowed, the order passed
    by the High Court is set aside and the matter is remanded to
0
    the High Court for fresh disposal in accordance with law.

    Bibhuti Bhushan Bose                             Appeal allowed.