Supreme Court of India
M/S BANDEKAR BROTHERS PVT. LTD. & ANRversusPRASAD VASSUDEV KENI, ETC. ETC
- Citation
- 2020 INSC 531
- Decided
- 2 September 2020
- Disposal
- Disposed off
- Bench
- R F NARIMAN
Holding
The complaints correctly invoked Section 195 read with Section 340, fall under Section 195(1)(b)(i), the Iqbal Singh Marwah ratio does not apply, the debit notes are not false documents, and the complaints must be reinstated in their original form.
Summary
The appellants, M/s Bande\u200bkar Brothers Pvt. Ltd., were in a business dispute with the respondents and filed civil suits, after which they lodged criminal complaints alleging false evidence and forged debit notes under IPC sections 191, 192 and 193. The magistrate converted these complaints into private complaints and issued process, but the respondents challenged this conversion, invoking Section 195(1)(b)(i) of the CrPC and the mandatory procedure under Section 340. The appellants later added forgery offences under Sections 463, 464, etc., seeking to sustain the private complaint route. The Supreme Court held that the offences fall under Section 195(1)(b)(i), the ratio of Iqbal Singh Marwah (which applies only to Section 195(1)(b)(ii)) does not apply, and the debit notes are not "false documents" within the meaning of Section 464, so forgery provisions are not attracted. Consequently, the original complaints filed under Section 195 read with Section 340 are valid and must be reinstated. The appeals were disposed of with the complaints restored to their original form.
Issues considered
- The applicability of Section 195(1)(b)(i) versus Section 195(1)(b)(ii) of the CrPC to the alleged offences.
- Whether the magistrate could lawfully convert the complaints into private complaints.
- Whether the alleged forged debit notes attract the forgery provisions of the IPC (Sections 463, 464, etc.).
- The relevance of the Iqbal Singh Marwah ratio to offences under Section 195(1)(b)(i).
- Whether the original complaints under Section 195 read with Section 340 should be reinstated.
Legislation cited
- Code of Criminal Procedure, 1973s. 190, s. 195(1)(b)(i), s. 195(1)(b)(ii), s. 340, s. 341, s. 343, s. 460(e)
- Indian Penal Code, 1860s. 191, s. 192, s. 193, s. 196, s. 463, s. 464, s. 465, s. 467, s. 468, s. 469, s. 471, s. 474, s. 475, s. 477-A
Subjects
false evidenceforgerySection 195 CrPCprivate complaintSection 340 CrPCIPC sections 191-193custodia legisIqbal Singh Marwahconversion of complaintjudicial process
Judgment
[2020] 10 S.C.R. 1075 1075
M/S BANDEKAR BROTHERS PVT. LTD. & ANR A
v.
PRASAD VASSUDEV KENI, ETC. ETC.
(Criminal Appeal Nos. 546-550 of 2017)
SEPTEMBER 02, 2020 B
[R. F. NARIMAN AND NAVIN SINHA, JJ.]
Code of Criminal Procedure, 1973 – s.340 – Penal Code,
1860 – ss.191 and 192 – Respondent/accused-proprietory concern
had shared a business relationship with the appellants – Dispute
C
arose between the parties, as a result of which various suits were
filed by the appellants – The respondents filed their written statements
and counter-claims in the said suits filed by the appellants – The
appellants filed criminal complaints and contended that respondent/
accused had given false evidence and had forged debit notes and
made false entries in books of accounts – The Magistrate converted D
the said complaints into private complaints and issued process u/
ss.191, 192 and 193 IPC – The respondent filed revision applications
against the said orders, in which it was stated that the bar contained
in s.195(1)(b)(i) of Cr.PC and the procedure u/s.340 Cr.PC being
mandatory could not be circumvented – In a counter-affidavit to
E
the revision application, the appellants for the first time took the
plea that offences u/ss.463, 464, 465, 467, 468, 469, 471, 474,
475 and 477-A of the IPC were also made out against the
respondents, as a result of which a private complaint would be
maintainable – The Additional Sessions Judge allowed the revision
and quashed the complaints – Writ petitions filed by the appellants F
were dismissed by the High Court – On appeal, held: Iqbal Singh
Marwah case is clear authority for the proposition that in cases
which fall u/s.195(1)(b)(ii) of the Cr.PC, the document that is said
to have been forged should be custodia legis after which the forgery
takes place – Further, various judgments of the Supreme Court also
G
lay down that when s.195(1)(b)(i) of the Cr.PC is attracted, the ratio
of Iqbal Singh Marwah case is not attracted and that therefore, if
false evidence is created outside the Court premises attracting ss.191/
192 of the IPC, the aforesaid ratio would not apply so as to validate
a private complaint filed for offences made out under these sections
– A perusal of the complaints filed in the instant case, leaves no H
1075
1076 SUPREME COURT REPORTS [2020] 10 S.C.R.
A manner of doubt that the first complaint attracts the provisions of
s.191 of the IPC and the second complaint attracts the provisions
of s.192 of the IPC – The debit notes that are said to be created by
the respondents, it is clear that the debit notes were not ‘false
documents’ u/s.464 IPC, inasmuch they had not been made with the
intention of causing it to be believed that they were made by or
B
under the authority of some other person – Since this basic ingredient
of forgery itself is not made out, none of the sections that are sought
to be relied upon in chapter XVIII of the IPC can thus said to be
even prima facie attracted in the facts of the present case – The
facts clearly show that the two complaints correctly invoked s.195
C r/w. s.340 of the Cr.PC and were then sought to be converted into
private complaints thereby attempting to fix a square peg in a round
role – This has correctly been interdicted by the Sessions Court in
revision and by the High Court under appeal – While it is correct to
say that the order of conversion and issuing of process thereafter
on a private complaint may not be correct, yet the two complaints
D
as originally filed can still be pursued – Therefore, the two
complaints reinstated in their original form so that they may be
proceeded further, following the drill of s.195 and s.340 of Cr.PC.
Disposing of the appeals, the Court
E HELD: 1. It is important to understand the difference
between the offences mentioned in Section 195(1)(b)(i) and
Section 195(1)(b)(ii) of the CrPC. Where the facts mentioned in
a complaint attracts the provisions of Section 191 to 193 of the
IPC, Section 195(1)(b)(i) of the CrPC applies. What is important
is that once these sections of the IPC are attracted, the offence
F should be alleged to have been committed in, or in relation to,
any proceeding in any Court. Thus, what is clear is that the offence
punishable under these sections does not have to be committed
only in any proceeding in any Court but can also be an offence
alleged to have been committed in relation to any proceeding in
G any Court. [Para 19][1100-C-E]
2. Contrasted with Section 195(1)(b)(i), Section 195(1)(b)(ii)
of the CrPC speaks of offences described in Section 463, and
punishable under Sections 471, 475 or 476 of the IPC, when such
offences are alleged to have been committed in respect of a
H document produced or given in evidence in a proceeding in any
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1077
PRASAD VASSUDEV KENI
Court. What is conspicuous by its absence in Section 195(1)(b)(ii) A
are the words “or in relation to”, making it clear that if the
provisions of Section 195(1)(b)(ii) are attracted, then the offence
alleged to have been committed must be committed in respect of
a document that is custodia legis, and not an offence that may
have occurred prior to the document being introduced in court
B
proceedings. Indeed, it is this distinction that is vital in
understanding the sheet anchor of the Appellant’s case namely,
this Court’s judgment in Iqbal Singh Marwah. [Para 22][1102-B-
D]
3. The Iqbal Singh Marwah is clear authority for the
proposition that in cases which fall under Section 195(1)(b)(ii) of C
the CrPC, the document that is said to have been forged should
be custodia legis after which the forgery takes place. [Para
29][1106-G]
4. The various Supreme Court judgments clearly lay down
that when Section 195(1)(b)(i) of the Cr.PC is attracted, the ratio D
of Iqbal Singh Marwah, which approved Sachida Nand Singh and
Anr. v. State of Bihar and Anr. (1998) 2 SCC 493, is not attracted,
and that therefore, if false evidence is created outside the Court
premises attracting Sections 191/192 of the IPC, the aforesaid
ratio would not apply so as to validate a private complaint filed E
for offences made out under these sections. [Para 33][1110-H;
1111-A]
5. A perusal of the complaints leaves no manner of doubt
that the first complaint attracts the provisions of Section 191 of
the IPC, and the second complaint attracts the provisions of F
Section 192 of the IPC. However, for the first time in the counter-
affidavit to the revision application that was filed by the
Respondents before the Sessions Judge, the Appellants took the
plea that offences u/ss.463, 464, 465, 467, 468, 469, 471, 474,
475 and 477-A of the IPC were also made out against the
respondents. [Para 42][1117-G-H; 1118-A-B] G
6. There is no doubt that realising the difficulties in their
way, the Appellants suddenly changed course, and applied to the
Magistrate vide application dated 09.05.2011 to convert what was
a properly drafted application under Section 195 read with section
340 of the CrPC, into a private complaint. A reading of the two H
1078 SUPREME COURT REPORTS [2020] 10 S.C.R.
A complaints leaves no manner of doubt that they have been drafted
keeping the ingredients of Sections 191 and 192 of the IPC alone
in mind – the only argument from the Appellants now being that
since certain debit notes were forged prior to their being
introduced in the court proceedings, not only would the ratio in
Iqbal Singh Marwah apply, but also that the ingredients of the
B
“forgery” sections of the IPC have now been made out. While it
is important to bear in mind that in genuine cases where the
ingredients of forgery as defined in Section 463 of the IPC have
been made out, and that therefore, a private complainant should
not be left remediless, yet it is equally important to bear in mind
C the admonition laid down in an early judgment of this Court. [Para
43][1118-D-G]
7. It is thus clear that even if all the averments made in the
two complaints (which clearly attract the provisions of Sections
191 and 192 of the Penal Code) are put aside, and were to
D concentrate only on the debit notes that are said to have been
“created” by the Respondents, it is clear that the debit notes
were not “false documents” under Section 464 of the IPC,
inasmuch they had not been made with the intention of causing it
to be believed that they were made by or under the authority of
some other person. Since this basic ingredient of forgery itself is
E not made out, none of the sections that are sought to be relied
upon in Chapter XVIII of the IPC can thus be said to be even
prima facie attracted in the facts of this case. [Para 52][1127-B-
C]
8. It now remains to deal with some of the other submissions
F of appellants. The submission of appellants challenging the finding
of the High Court that the Appellants did not file any proceedings
under Section 482 of the CrPC to make a grievance that the
complaint discloses other offences also, and that the Magistrate
ought to have issued process for the same, has no legs to stand
G on. Whether a High Court acts suo motu under Section 482 of the
CrPC is for the High Court to decide, being a discretion vested
in the High Court to be exercised on the facts of the case. As this
Court has seen, the facts of this case clearly show that the two
complaints dated 11.08.2009 correctly invoked Section 195 read
with Section 340 of the CrPC, and were then sought to be
H
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1079
PRASAD VASSUDEV KENI
converted into private complaints, thereby attempting to fit a A
square peg in a round role. This has correctly been interdicted
by the Sessions Court in revision, and by the High Court judgment
under appeal. [Para 53][1127-D-F]
9. Writ petitions that were filed against this order have
been dismissed by the impugned judgment. It seems to this Court B
that the baby and the bath-water have both been thrown out
together. While it is correct to say that the order of conversion
and issuing of process thereafter on a private complaint may not
be correct, yet the two complaints as originally filed can still be
pursued. Once the Magistrate’s order had been set aside, the
Additional Sessions Judge ought to have relegated the parties C
to the position before the original complaints had been converted
into private complaints. Since this has not been done, this Court
finds that appellants is right in stating that even though allegedly
serious offences have been made out under Sections 191 and
192 of the IPC, yet the complaints themselves have now been D
quashed. Therefore, reinstate the two complaints in their original
form so that they may be proceeded with further, following the
drill of Sections 195 and 340 of the CrPC. [Para 60][1131-B-D]
Iqbal Singh Marwah and Anr. v. Meenakshi Marwah
and Anr. (2005) 4 SCC 370 : [2005] 2 SCR 708; Babu E
Lal v. State of Uttar Pradesh [1964] 4 SCR 957 –
followed.
Patel Laljibhai Somabhai v. State of Gujarat (1971) 2
SCC 376 : [1971] Suppl. SCR 834; Daulat Ram v. State
of Punjab [1962] 2 Suppl. SCR 812; Dr. S. Dutt v. State F
of Uttar Pradesh [1966] 1 SCR 493; Baban Singh and
Anr. v. Jagdish Singh and Anr. [1966] 3 SCR 552; Kamla
Prasad Singh v. Hari Nath Singh [1967] 3 SCR 828;
Kailash Mangal v. Ramesh Chand (2015) 15 SCC 729;
Narendra Kumar Srivastava v. State of Bihar and Ors.
(2019) 3 SCC 318 : [2019] 2 SCR 643; Basir-ul-Huq G
and Ors. v. State of West Bengal [1953] SCR 836; State
of Karnataka v. Hemareddy (1981) 2 SCC 185 : [1981]
2 SCR 695; Devendra v. State of U.P. (2009) 7 SCC
495 : [2009] 7 SCR 872; Mohd. Ibrahim v. State of
H
1080 SUPREME COURT REPORTS [2020] 10 S.C.R.
A Bihar (2009) 8 SCC 751 : [2009] 13 SCR 1254; Mir
Nagvi Askari v. CBI (2009) 15 SCC 643 : [2009]
13 SCR 124 – relied on.
Surjit Singh v. Balbir Singh (1996) 3 SCC 533 : [1996]
3 SCR 70; Mansukhlal Dhanraj Jain and Ors. Etc. v.
B Eknath Vithal Ogale Etc. (1995) 2 SCC 665 : [1995] 1
SCR 996; Mahesh Chand Sharma v. State of U.P and
Ors. (2009) 15 SCC 519 : [2009] 13 SCR 922; C.P.
Subhash v. Inspector of Police, Chennai and Ors. (2013)
11 SCC 559 : [2013] 1 SCR 545; Kishorbhai
Gandubhai Pethani v. State of Gujarat and Anr.
C (2014) 13 SCC 539 : [2013] 10 SCR 208; Vishnu
ChandruGaonkar v. N.M. Dessai (2018) 5 SCC 422 :
[2018] 3 SCR 103; Sachida Nand Singh and Anr. v.
State of Bihar and Anr. (1998) 2 SCC 493 : [1998] 1
SCR 492 – referred to.
D State Wakf Board, Madras v. Abdul Azeez Sahib and
Ors. AIR 1968 Mad. 79; Re V.V.L. Narasimhamurthy
AIR 1955 Mad 237 – referred to.
Case Law Reference
E [2005] 2 SCR 708 followed Para 4
[1996] 3 SCR 70 referred to Para 7
[1971] Suppl. SCR 834 relied on Para 10
[1962] 2 Suppl. SCR 812 relied on Para 11
F [1964] 4 SCR 957 followed Para 14
[1966] 1 SCR 493 relied on Para 15
[1966] 3 SCR 552 relied on Para 16
[1967] 3 SCR 828 relied on Para 17
G AIR 1968 Mad. 79 referred to Para 20
[1995] 1 SCR 996 referred to Para 21
[2009] 13 SCR 922 referred to Para 29
[2013] 1 SCR 545 referred to Para 29
H
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1081
PRASAD VASSUDEV KENI
[2013] 10 SCR 208 referred to Para 29 A
[2018] 3 SCR 103 referred to Para 29
(2015) 15 SCC 729 relied on Para 31
[2019] 2 SCR 643 referred to Para 32
[1998] 1 SCR 492 referred to Para 33 B
[1953] SCR 836 relied on Para 43
[1981] 2 SCR 695 relied on Para 44
AIR 1955 Mad 237 referred to Para 44
C
[2009] 7 SCR 872 relied on Para 47
[2009] 13 SCR 1254 relied on Para 49
[2009] 13 SCR 124 relied on Para 50
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
546-550 of 2017. D
From the Judgment and Order dated 22.11.2013 of the High Court
of Bombay at Goa in Criminal Writ Petition Nos. 65, 66, 69, 70 and 73 of
2013.
Anil Kumar Mishra, E. Dais, Parijat Sinha, Ms. Reshmi Rea Sinha,
E
Devesh Mishra, Rudra Dutta, Yogesh Nadkarni, A. Raghunath,
Ms. Ruchira Gupta, Shishir Deshpande, Advs. for the appearing parties.
The Judgment of the Court was delivered by
R. F. NARIMAN, J.
1. The proceedings in this case arise out of two criminal complaints F
dated 11.08.2009 filed by the Appellants against the Respondents herein
before the Court of the Sessions Judge, North Goa, under Section 340
read with Section 195 of the Code of Criminal Procedure, 1973 (“CrPC”)
in respect of offences alleged under Sections 191 and 192 of the Indian
Penal Code, 1860 (“IPC”). G
2. Accused No.1 in the aforesaid complaints is a proprietary
concern of the late V.G. Quenim, based in Goa, which is engaged in the
business of producing, processing and sale of iron ore. Accused Nos.2
and 3 are his son and wife respectively, who are the co-proprietors of
M/s V.G. Quenim, the aforesaid V.G. Quenim having expired on H
1082 SUPREME COURT REPORTS [2020] 10 S.C.R.
A 20.07.2007. M/s V.G. Quenimhad shared a business relationship with
the Appellants since the year 1990. However, disputes arose between
the parties, as a result of which four suits, being Suit Nos.7, 8, 14 and 21
of 2000/A,were filed by the Appellants against M/s V. G. Quenim before
the Civil Court at Bacholim. A fifth suit, being Suit No.1/2003/A, was
filed by the late V. G. Quenim against the Appellants, which was
B
withdrawn on 01.10.2007 unconditionally.The Respondents filed their
Written Statements and Counter Claims in the said suits filed by the
Appellants.
3. After withdrawal of the fifth suit, these criminal complaints
were filed, inasmuch as the Appellants contended that in these
C proceedings, the Respondent/Accused had given false evidence, and
had forged debit notes and made false entries in books of accounts.By
two orders dated 01.10.2009, the learned Additional Sessions Judge-I in
North Goa at Panaji, returned the complaints, stating that these complaints
could only be filed in the Court before whom such proceedings were
D pending in which the alleged offences were committed.The complaints
were then filed before the learned Judicial Magistrate First Class at
Bicholim.
4. After various depositions had been made by witnesses before
the said Magistrate, an application dated 09.05.2011 was filed, in which
E the Appellants prayed, relying upon the Supreme Court judgment in Iqbal
Singh Marwah and Anr. v. Meenakshi Marwah and Anr. (2005) 4
SCC 370, that the said complaints be converted to private complaints.This
was done by two orders of the Judicial Magistrate dated 13.10.2011,
who after converting the said complaints into private complaints, issued
process under Sections 191, 192 and 193 of the IPC. It is important to
F note that the Appellants/complainants did not file any revision or other
proceedings to challenge the issue of process under the aforesaid sections
of the IPC.
5. The Respondents, however, filed revision applications against
the said orders, in which it was stated that the bar contained in Section
G 195(1)(b)(i) of the CrPC, and the procedure under Section 340 CrPC
being mandatory, could not be circumvented, and the complaints read as
a whole would clearly show that offences under Sections 191 to 193 of
the IPC alone were made out, as a result of which the drill under the
aforesaid sections of the CrPC would have to be observed. In a counter-
H affidavit dated 08.10.2012 filed to the aforesaid revision applications,
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1083
PRASAD VASSUDEV KENI [R. F. NARIMAN, J.]
the Appellants, for the first time, took the plea that offences under Sections A
463, 464, 465, 467, 468, 469, 471, 474, 475 and 477-A of the IPC were
also made out against the Respondents, as a result of which a private
complaint would be maintainable.The learned Additional Sessions Judge,
Mapusa, by his judgment dated 05.03.2013, held that the bar under Section
195(1)(b)(i) of the CrPC was attracted, and that the provisions under
B
Section 340 of the CrPC, which were mandatory, had to be followed.
Since this was not done, the revision petitions were allowed and the
complaints quashed. Iqbal Singh Marwah (supra) was distinguished,
stating that it was a judgment which concerned itself with Section
195(1)(b)(ii) and not Section 195(1)(b)(i) of the CrPC, and would,
therefore, have no application in the facts of this case. C
6. Writ petitions filed by the Appellants against the aforesaid
judgment proved unsuccessful, the High Court dismissing the aforesaid
writ petitions by the impugned judgment dated 22.11.2013.
7. Shri Anil Kumar Mishra, learned Advocate appearing on behalf
of the Appellants, took us through the complaints dated 11.08.2009. It D
was his case that debit notes had been created by the Respondents
which were totally fraudulent, in order to buttress their case that certain
amounts were owed by the Appellants to the Respondents. The learned
counsel argued with great vehemence that this is why the fifth suit, viz.,
Suit No.1/2003/A was ultimately withdrawn on 01.10.2007,the E
Respondents having realised that the evidence given would completely
belie their false case. The learned counsel then referred to the counter-
affidavit filed to the revision petition before the learned Sessions Judge
in order to buttress his plea that offences under the “forgery” sections
of the IPC had been made out, which would all be the subject matter of
a private complaint, and which do not have to follow the procedure set F
out by Section 340 CrPC. He relied very heavily upon Iqbal Singh
Marwah (supra) to argue that the documents and books of accounts
etc. that were forged, were all forged before they were taken in evidence
in the Court proceedings, as a result of which the judgment squarely
applied, and a private complaint, therefore, would be maintainable.He G
also argued that the High Court was wrong in stating that the Appellants
did not file any Section 482 petition making a grievance that the complaints
disclosed other offences also, and that the Magistrate ought to have
issued process for the same. He cited a judgment to assail this part of
the High Court judgment, stating that the High Court ought not to have
H
1084 SUPREME COURT REPORTS [2020] 10 S.C.R.
A stood upon ceremony, but if it had found injustice, ought to have suo
moto exercised powers under Section 482 of the CrPC.He further
attacked the impugned judgment, by stating that its reliance on Surjit
Singh v. Balbir Singh (1996) 3 SCC 533, a judgment that has been
expressly overruled in Iqbal Singh Marwah (supra), would also show
that the reasoning of the aforesaid judgment is completely faulty. He
B
cited a number of judgments which followed Iqbal Singh Marwah
(supra), and stated that it was wrong to say that it was confined only to
Section 195(1)(b)(ii), but that its reasoning would clearly apply to cases
which fall within both Section 195(1)(b)(i) as well as Section 195(1)(b)(ii)
of the CrPC. As an alternative argument, he went on to add that process
C may have been issued stating wrong sections, which would make no
difference,as at the stage of framing a charge under Section 211 of the
CrPC, the correct sections could then be referred to. Even thereafter,
charges as framed can always be altered under Section 216 of the CrPC.
He then went on to point out that under Section 460(e) of the CrPC,
once a Magistrate issues process under Section 190(1)(a) of the CrPC,
D
any irregularity that may be committed in the course of the proceedings
can always be condoned. According to him, therefore, the complaints
were correctly registered as private complaints and ought to continue as
such.
8. Shri Yogesh Nadkarni, learned counsel appearing on behalf of
E the Respondents, referred to the pending suits, and to the application for
conversion of the complaints, which, according to him, were correctly
filed under Section 195 read with Section 340 CrPC. He argued that the
High Court was correct in its conclusion that Iqbal Singh Marwah
(supra) was a case which arose only under Section 195(1)(b)(ii) of the
F CrPC, and that the complaints filed in the present case disclose offences
which would fall within Section 195(1)(b)(i) of the CrPC.He also
vehemently argued that the debit notes, which were the sheet-anchor of
the Appellants’ case, cannot be said to have been forged within the
meaning of Sections 463 and 464 of the IPC, as the debit notes, even if
dishonestly or fraudulently made, had to be made within the intention of
G causing it to be believed that such debit notes were made by a person
whom the person making it knows that it was not made, which is not the
case, as the debit notes were made on the sole proprietorship’s letterhead,
with the writing and signatures that were of the proprietor.He, therefore,
argued that the forgery sections under the IPC do not get attracted at all
H to the complaints, which were correctly filed under Section 195 read
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1085
PRASAD VASSUDEV KENI [R. F. NARIMAN, J.]
with Section 340 of the CrPC. He contended that the counter-affidavit A
that was relied upon by the Appellants to the Respondent’s revision
applicationswas clearly an afterthought, in order to buttress a hopeless
case. In any event, the complaints read as a whole, would make it clear
that the entirety of the complaints were in, or in relation to, offences
committed under Sections 191 and 192 of the IPC used/to be used in
B
judicial proceedings and, therefore, fell squarely within Section 195(1)(b)(i)
of the CrPC. He also argued that after conversion into a private
complaint, the Magistrate issued process only under Sections 191 to 193
of the IPC, which order remained unchallenged by the Appellants.He
also cited judgments relating to the object sought to be achieved by Section
195, as well as judgments which distinguished Iqbal Singh Marwah C
(supra) on that ground that it applied only to cases falling under Section
195(1)(b)(ii) and not to cases falling under Section 195(1)(b)(i) of the
CrPC.
9. Having heard the learned counsel appearing on behalf of the
parties, it is necessary to set out the relevant sections of the CrPC and D
the IPC.
CrPC
“190. Cognizance of offences by Magistrates.—(1) Subject
to the provisions of this Chapter, any Magistrate of the first class,
and any Magistrate of the second class specially empowered in E
this behalf under sub-section (2), may take cognizance of any
offence—
(a) upon receiving a complaint of facts which constitute such
offence;
F
(b) upon a police report of such facts;
(c) upon information received from any person other than a police
officer, or upon his own knowledge, that such offence has been
committed.
(2) The Chief Judicial Magistrate may empower any Magistrate G
of the second class to take cognizance under sub-section (1) of
such offences as are within his competence to inquire into or try.”
“195. Prosecution for contempt of lawful authority of public
servants, for offences against public justice and for offences
H
1086 SUPREME COURT REPORTS [2020] 10 S.C.R.
A relating to documents given in evidence.—(1) No Court shall
take cognizance—
(a) (i) of any offence punishable under sections 172 to 188
(both inclusive) of the Indian Penal Code, (45 of 1860), or
(ii) of any abetment of, or attempt to commit, such offence, or
B
(iii) of any criminal conspiracy to commit such offence,
except on the complaint in writing of the public servant concerned
or of some other public servant to whom he is administratively
subordinate;
C (b) (i) of any offence punishable under any of the following sections
of the Indian Penal Code (45 of 1860), namely, sections 193 to
196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228,
when such offence is alleged to have been committed in, or in
relation to, any proceeding in any Court, or
D (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
E (iii) of any criminal conspiracy to commit, or attempt to commit,
or the abetment of, any offence specified in sub-clause (i) or sub-
clause (ii),
except on the complaint in writing of that Court or by such officer
of the Court as that Court may authorise in writing in this behalf,
F or of some other Court to which that Court is subordinate.
(2) Where a complaint has been made by a public servant under
clause (a) of sub-section (1) any authority to which he is
administratively subordinate may order the withdrawal of the
complaint and send a copy of such order to the Court; and upon
G its receipt by the Court, no further proceedings shall be taken on
the complaint:
Provided that no such withdrawal shall be ordered if the trial in
the Court of first instance has been concluded.
(3) In clause (b) of sub-section (1), the term “Court” means a
H Civil, Revenue or Criminal Court, and includes a tribunal constituted
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1087
PRASAD VASSUDEV KENI [R. F. NARIMAN, J.]
by or under a Central, Provincial or State Act if declared by that A
Act to be a Court for the purposes of this section.
(4) For the purposes of clause (b) of sub-section (1), a Court shall
be deemed to be subordinate to the Court to which appeals
ordinarily lie from the appealable decrees or sentences of such
former Court, or in the case of a Civil Court from whose decrees B
no appeal ordinarily lies, to the Principal Court having ordinary
original civil jurisdiction within whose local jurisdiction such Civil
Court is situate:
Provided that—
(a) where appeals lie to more than one Court, the Appellate Court C
of inferior jurisdiction shall be the Court to which such Court shall
be deemed to be subordinate;
(b) where appeals lie to a Civil and also to a Revenue Court, such
Court shall be deemed to be subordinate to the Civil or Revenue
Court according to the nature of the case or proceeding in D
connection with which the offence is alleged to have been
committed.”
“340. Procedure in cases mentioned in section 195.—(1)
When, upon an application made to it in this behalf or otherwise,
any Court is of opinion that it is expedient in the interests of Justice E
that an inquiry should be made into any offence referred to in
clause (b) of sub-section (1) of section 195, which appears to
have been committed in or in relation to a proceeding in that Court
or, as the case may be, in respect of a document produced or
given in evidence in a proceeding in that Court, such Court may, F
after such preliminary inquiry, if any, as it thinks necessary,—
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
G
(d) take sufficient security for the appearance of the accused
before such Magistrate, or if the alleged offence is non-bailable
and the Court thinks it necessary so to do, send the accused in
custody to such Magistrate; and
H
1088 SUPREME COURT REPORTS [2020] 10 S.C.R.
A (e) bind over any person to appear and give evidence before
such Magistrate.
(2) The power conferred on a Court by sub-section (1) in respect
of an offence may, in any case where that Court has neither made
a complaint under sub-section (1) in respect of that offence nor
B rejected an application for the making of such complaint, be
exercised by the Court to which such former Court is subordinate
within the meaning of sub-section (4) of section 195.
(3) A complaint made under this section shall be signed,—
(a) where the Court making the complaint is a High Court, by
C such officer of the Court as the Court may appoint;
(b) in any other case, by the presiding officer of the Court or
by such officer of the Court as the Court may authorise in
writing in this behalf.
D (4) In this section, “Court” has the same meaning as in section
195.
341. Appeal.—(1) Any person on whose application any Court
other than a High Court has refused to make a complaint under
sub-section (1) or sub-section (2) of section 340, or against whom
such a complaint has been made by such Court, may appeal to
E
the Court to which such former Court is subordinate within the
meaning of sub-section (4) of section 195, and the superior Court
may thereupon, after notice to the parties concerned, direct the
withdrawal of the complaint, or, as the case may be, making of
the complaint which such former Court might have made under
F section 340, and, if it makes such complaint, the provisions of that
section shall apply accordingly.
(2) An order under this section, and subject to any such order, an
order under section 340, shall be final, and shall not be subject to
revision.”
G “343. Procedure of Magistrate taking cognizance.—(1) A
Magistrate to whom a complaint is made under section 340 or
section 341 shall, notwithstanding anything contained in Chapter
XV, proceed, as far as may be, to deal with the case as if it were
instituted on a police report.
H
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1089
PRASAD VASSUDEV KENI [R. F. NARIMAN, J.]
(2) Where it is brought to the notice of such Magistrate, or of any A
other Magistrate to whom the case may have been transferred,
that an appeal is pending against the decision arrived at in the
judicial proceeding out of which the matter has arisen, he may, if
he thinks fit, at any stage, adjourn the hearing of the case until
such appeal is decided.”
B
IPC
“24. “Dishonestly”.—Whoever does anything with the intention
of causing wrongful gain to one person or wrongful loss to another
person, is said to do that thing “dishonestly”.
25. “Fraudulently”.—A person is said to do a thing fraudulently C
if he does that thing with intent to defraud but not otherwise.”
“191. Giving false evidence.—Whoever, being legally bound
by an oath or by an express provision of law to state the truth, or
being bound by law to make a declaration upon any subject, makes
any statement which is false, and which he either knows or believes D
to be false or does not believe to be true, is said to give false
evidence.
Explanation 1.—A statement is within the meaning of this section,
whether it is made verbally or otherwise.
E
Explanation 2.—A false statement as to the belief of the person
attesting is within the meaning of this section, and a person may
be guilty of giving false evidence by stating that he believes a
thing which he does not believe, as well as by stating that he
knows a thing which he does not know.
F
192. Fabricating false evidence.—Whoever causes any
circumstance to exist or makes any false entry in any book or
record, or electronic record or makes any document or electronic
record containing a false statement, intending that such
circumstance, false entry or false statement may appear in evidence
in a judicial proceeding, or in a proceeding taken by law before a G
public servant as such, or before an arbitrator, and that such
circumstance, false entry or false statement, so appearing in
evidence, may cause any person who in such proceeding is to
form an opinion upon the evidence, to entertain an erroneous
opinion touching any point material to the result of such proceeding
is said “to fabricate false evidence”. H
1090 SUPREME COURT REPORTS [2020] 10 S.C.R.
A 193. Punishment for false evidence.—Whoever intentionally
gives false evidence in any of a judicial proceeding, or fabricates
false evidence for the purpose of being used in any stage of a
judicial proceeding, shall be punished with imprisonment of either
description for a term which may extend to seven years, and shall
also be liable to fine; and whoever intentionally gives or fabricates
B
false evidence in any other case, shall be punished with
imprisonment of either description for a term which may extend
to three years, and shall also be liable to fine.
Explanation 1.—A trial before a Court-martial is a judicial
proceeding.
C
Explanation 2.—An investigation directed by law preliminary to
a proceeding before a Court of Justice, is a stage of a judicial
proceeding, though that investigation may not take place before a
Court of Justice.”
“196. Using evidence known to be false.—Whoever corruptly
D
uses or attempts to use as true or genuine evidence any evidence
which he knows to be false or fabricated, shall be punished in the
same manner as if he gave or fabricated false evidence.”
“463. Forgery.—Whoever makes any false document or false
electronic record or part of a document or electronic record, with
E intent to cause damage or injury, to the public or to any person, or
to support any claim or title, or to cause any person to part with
property, or to enter into any express or implied contract, or with
intent to commit fraud or that fraud may be committed, commits
forgery.
F 464. Making a false document.—A person is said to make a
false document or false electronic record—
First.—Who dishonestly or fraudulently—
(a) makes, signs, seals or executes a document or part of a
document;
G
(b) makes or transmits any electronic record or part of any
electronic record;
(c) affixes any electronic signature on any electronic record;
(d) makes any mark denoting the execution of a document or
H the authenticity of theelectronic signature,
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1091
PRASAD VASSUDEV KENI [R. F. NARIMAN, J.]
with the intention of causing it to be believed that such document A
or part of document, electronic record orelectronic signature was
made, signed, sealed, executed, transmitted or affixed by or by
the authority of a person by whom or by whose authority he knows
that it was not made, signed, sealed, executed or affixed; or
Secondly.—Who without lawful authority, dishonestly or B
fraudulently, by cancellation or otherwise, alters a document or
an electronic record in any material part thereof, after it has been
made, executed or affixed with electronic signature either by
himself or by any other person, whether such person be living or
dead at the time of such alteration; or
C
Thirdly.—Who dishonestly or fraudulently causes any person to
sign, seal, execute or alter a document or an electronic record or
to affix his electronic signature on any electronic record knowing
that such person by reason of unsoundness of mind or intoxication
cannot, or that by reason of deception practised upon him, he
does not know the contents of the document or electronic record D
or the nature of the alteration.
Explanation 1.—A man’s signature of his own name may amount
to forgery
Explanation 2.—The making of a false document in the name of E
a fictious person, intending it to be believed that the document
was made by a real person, or in the name of a deceased person,
intending it to be believed that the document was made by the
person in his lifetime, may amount to forgery.
Explanation 3.—For the purposes of this section, the expression F
“affixing electronic signature” shall have the meaning assigned to
it in clause (d) of sub-section (1) of section 2 of the Information
Technology Act, 2000 (21 of 2000).”
10. Section 190 of the CrPC states that a Magistrate may take
cognizance of any offence in one of three situations: (a) upon receiving
G
a complaint of facts which constitute such offence; (b) upon a police
report of such facts; and (c) upon information received from any person
other than a police officer, or upon his own knowledge, that such offence
has been committed. However, Section 195 of the CrPC states that in
the offences covered by it, no Court shall take cognizance except upon
the complaint in writing of a public servant, insofar as the offences H
1092 SUPREME COURT REPORTS [2020] 10 S.C.R.
A mentioned in sub-clause (1)(a) are concerned, and by the complaint in
writing of the “Court” as defined by sub-section (3), insofar as the
offences delineated in sub-clause (1)(b) are concerned.The reason for
the enactment of Section 195 of the CrPC has been stated felicitously in
Patel Lalji bhai Somabhai v. State of Gujarat (1971) 2 SCC 376, as
follows:
B
“7. The underlying purpose of enacting Section 195(1)(b) and (c)
and Section 476, seems to be to control the temptation on the part
of the private parties considering themselves aggrieved by the
offences mentioned in those sections to start criminal prosecutions
on frivolous, vexatious or insufficient grounds inspired by a
C revengeful desire to harass or spite their opponents. These
offences have been selected for the court’s control because of
their direct impact on the judicial process. It is the judicial process,
in other words the administration of public justice, which is the
direct and immediate object or victim of those offence and it is
D only by misleading the courts and thereby perverting the due course
of law and justice that the ultimate object of harming the private
party is designed to be realised. As the purity of the proceedings
of the court is directly sullied by the crime, the Court is considered
to be the only party entitled to consider the desirability of
complaining against the guilty party. The private party designed
E ultimately to be injured through the offence against the
administration of public justice is undoubtedly entitled to move the
court for persuading it to file the complaint. But such party is
deprived of the general right recognized by Section 190 CrPC, of
the aggrieved parties directly initiating the criminal proceedings.
F The offences about which the court alone, to the exclusion of the
aggrieved private parties, is clothed with the right to complain
may, therefore, be appropriately considered to be only those
offences committed by a party to a proceeding in that court, the
commission of which has a reasonably close nexus with the
proceedings in that court so that it can, without embarking upon a
G completely independent and fresh inquiry, satisfactorily consider
by reference principally to its records the expediency of
prosecuting the delinquent party.”
11. This section has been construed to be mandatory, being an
absolute bar to the taking of cognizance under Section 190 of the CrPC,
H
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1093
PRASAD VASSUDEV KENI [R. F. NARIMAN, J.]
unless the conditions of the section are met, as held by this Court in A
Daulat Ram v. State of Punjab (1962) Supp. 2 SCR 812 as follows (at
page 815):
“The words of the section, namely, that the complaint has to be in
writing by the public servant concerned and that no court shall
take cognizance except on such a complaint clearly show that in B
every instance the court must be moved by the appropriate public
servant. We have to decide therefore whether the Tahsildar can
be said to be the public servant concerned and if he had not filed
the complaint in writing, whether the police officers in filing the
charge-sheet had satisfied the requirements of Section 195. The
words “no court shall take cognizance” have been interpreted on C
more than one occasion and they show that there is an absolute
bar against the court taking seisin of the case except in the manner
provided by the section.”
12. Under Section 340 of the CrPC, the procedure in cases
mentioned in Section 195 of the CrPC is set out. The Court may make a D
preliminary enquiry if it thinks necessary, and then record a finding to
the effect that the provisions of Section 195(1)(b) of the CrPC are
attracted, as a result of which the Court itself is then to make a complaint
in writing, and send it to a Magistrate of the first class having jurisdiction.
Where the Court declines to make any such complaint, an appeal is E
provided under Section 341 of the CrPC. The appellate power of the
Court under Section 341 can also be invoked, insofar as a complaint has
been made under Section 340, by the person so aggrieved. By Section
341(2), the appellate order shall be final and shall not be subject to
revision. Finally, a Magistrate to whom a complaint is made under these
sections shall proceed to deal with the case as if it were instituted on a F
police report – vide Section 343(1).
13. The point forcefully argued by the learned counsel on behalf
of the Appellants is that his clients, being victims of forgery, ought not to
be rendered remediless in respect of the acts of forgery which are
committed before they are used as evidence in a court proceeding, and G
that therefore, a private complaint would be maintainable in the fact
circumstance mentioned in the two criminal complaints referred to
hereinabove.The Court has thus to steer between two opposite poles of
a spectrum – the “yin” being the protection of a person from frivolous
criminal complaints, and the”yang” being the right of a victim to ventilate H
1094 SUPREME COURT REPORTS [2020] 10 S.C.R.
A his grievance and have the Court try the offence of forgery by means of
a private complaint. In order to appreciate whether this case falls within
the category of avoiding frivolous litigation, or whether it falls within the
individual’s right to pursue a private complaint,we must needs refer to
several decisions of this Court.
B 14. In Babu Lal v. State of Uttar Pradesh (1964) 4 SCR 957, a
5-Judge Bench of this Court dealt with the difference between the
ingredients of offences made out under Sections 192 and 193 of the IPC
on the one hand, and the “forgery” sections of the IPC on the other. The
Court put it thus (at pages 962-963):
C “It is true that some of the ingredients of the act of fabricating
false evidence which is penalised under Section 193 Indian Penal
Code and of making a false document and thereby committing
forgery within the meaning of Sections 463 and 464 of the Indian
Penal Code are common. A person by making a false entry in any
book or record or by making any document containing a false
D statement may, if the prescribed conditions of Section 463 are
fulfilled, commit an offence of forgery. But the important ingredient
which constitutes fabrication of false evidence within the meaning
of Section 192 Indian Penal Code beside causing a circumstance
to exist or making a false document — to use a compendious
E expression — is the intention that the circumstance so caused to
exist or the false document made may appear in evidence in a
judicial proceeding, or before a public servant or before an
arbitrator, and lead to the forming of an erroneous opinion touching
any point material to the result of the proceeding. The offences of
forgery and of fabricating false evidence for the purpose of using
F it in a judicial proceeding are therefore distinct, and within the
description of fabricating false evidence for the purpose specified
in Section 479-A Criminal Procedure Code, the offence of forgery
is not included. In any event the offence penalised under Section
471 Indian Penal Code can never be covered by sub-section (1)
G of Section 479-A. Therefore for taking proceeding against a
person who is found to have used a false document dishonestly or
fraudulently in any judicial proceeding, resort may only be made
to Section 476 Code of Criminal Procedure.”
15. In Dr. S. Dutt v. State of Uttar Pradesh (1966) 1 SCR 493,
H the question arose in the context of an expert witness (i.e. the Appellant
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1095
PRASAD VASSUDEV KENI [R. F. NARIMAN, J.]
before the Supreme Court) who produced a diploma before the Sessions A
Court from the Imperial College of Science and Technology in London,
to the effect that he had specialised in the subject of criminology. The
prosecution applied to the Sessions Judge under Section 195 of the CrPC
for prosecution of Dr.Dutt under Section 193 of the IPC. This application
was rejected. Two days after its rejection, the private complainant lodged
B
a report at a police station alleging that Dr.Dutt had committed an offence
under Section 465, 466 and 471 of the IPC, stating that the diploma
produced was forged, and that Dr. Dutt had used this “in the court with
a bad motive”, passing it off as genuine. The question which arose before
this Court was as to whether the private complaint was substantially for
offences under Sections 191 to 193 or 196 of the IPC, as against the C
“forgery”sections contained in the IPC from Section 463 onwards.After
setting out the two sets of sections contained in the IPC, the Court held:
“The broad distinction between offences under the two groups is
this. Section 465 deals with the offence of forgery by the making
of a false document and Section 471 with the offences of using D
forged documents dishonestly or fraudulently. Section 193 deals
with the giving or fabricating of false evidence and Section 196
with corruptly using evidence known to be false. The gist of the
offence in the first group is the making of a false document and
the gist of the offences in the second group is the procuring of
false circumstances or the making of a document containing a E
false statement so that a judicial officer may form a wrong opinion
in a judicial proceeding on the faith of the false evidence. Another
important difference is that whereas Section 471 requires a user
to be either fraudulent, dishonest or both, Section 196 is satisfied
if the user is corrupt. The Penal Code defines the expressions F
fraudulently and dishonestly but not the expression corrupt.
We shall now attempt to apply the two groups of offences
contained in Chapter XI and Chapter XVIII, to the proved acts of
Dr Dutt. We shall begin with Chapter XI. The definition of the
expression “fabricating false evidence” in Section 192, already G
quoted, quite clearly covers this case. If Dr Dutt fabricated the
false diploma he made a document containing a false statement
intending that it may appear in evidence and so appearing in
evidence may cause any person who is to form an opinion upon it
to entertain an erroneous opinion touching on point material to the
H
1096 SUPREME COURT REPORTS [2020] 10 S.C.R.
A result of a judicial proceedings. Dr Dutt, as alleged, was falsely
posing as an expert and was deposing about matters which were
material to the result of the trial. He had a document to support
his claim should occasion arise. He produced the document,
although asked to do so, intending that the presiding Judge may
form an erroneous opinion about Dr Dutt and the relevancy of his
B
evidence. The case was thus covered by Section 192. When Dr
Dutt deposed, let us assume falsely about his training, he committed
an offence under Section 193. Again, when Dr Dutt used the
diploma as genuine his conduct was corrupt, whether or not it
was dishonest or fraudulent.”
C (at pages 499-500)
“It would thus be seen that the action of Dr Dutt was covered by
Sections 192 and 196 of the Penal Code. If Dr Dutt gave false
evidence in court or if he fabricated false evidence the offence
under Section 193 was clearly committed. If he used fabricated
D evidence an offence under Section 196 was committed by him.
These offences would have required a complaint in writing of the
Sessions Judge before cognizance could be taken.”
(at page 501)
E “We are, therefore, satisfied that Dr Dutt’s conduct does not come
within Section 471. On the other hand, it falls within Section 196
which casts its net wider in the interest of the purity of
administration of justice. It may be noted that an offence under
Section 196 of the Penal Code is a far more serious offence than
the offence under Sections 465/471. The former is punishable
F with imprisonment upto seven years and fine while the latter is
punishable with imprisonment upto two years or with fine.
In this connection we may again recall the words of this Court
which were put in the forefront by Mr Chari that it is not permissible
for the prosecution to drop a serious charge and select one which
G does not require the procedure under Section 195 of the Code of
Criminal Procedure. If the offence was under Section 196 of the
Indian Penal Code, a complaint in writing by the court concerned
was required. Before a complaint is made the court has to consider
whether it is expedient in the interests of justice to order a
prosecution. In the lesser offence no such complaint by the court
H
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1097
PRASAD VASSUDEV KENI [R. F. NARIMAN, J.]
is necessary and it is obvious that the lesser offence was chosen A
to bypass the Sessions Judge who had earlier decided that Dr
Dutt should not be prosecuted for perjury. Such a device is not to
be commended. In our opinion, the offence in the present case
did not fall within Sections 465/471 IPC and the prosecution
launched against Dr Dutt cannot be allowed to go on.”
B
(at pages 503-504)
16. In Baban Singh and Anr. v. Jagdish Singh and Anr. (1966)
3 SCR 552, the question was whether the swearing of false affidavits
before a Court would amount to an offence under Sections 191 or 192
of the IPC, or whether Section 199 of the IPC would be attracted, in C
which case the special procedure delineated by Section 479-A of the
Code of Criminal Procedure, 1898 need not be followed. The Court
held (at pages 555-556):
“The matter has to be considered from three standpoints. Does
the swearing of the false affidavits amount to an offence under D
s.199, Indian Penal Code or under either s.191 or 192, Indian
Penal Code? If it comes under the two latter sections, the present
prosecution cannot be sustained, Section 199 deals with a
declaration and does not state that the declaration must be on
oath. The only condition necessary is that the declaration must be
capable of being used as evidence and which any court of justice E
or any public servant or other person, is bound or authorised by
law to receive as evidence. Section 191 deals with evidence on
oath and s.192 with fabricating false evidence. If we consider
this matter from the standpoint of s.191, Indian Penal Code the
offence is constituted by swearing falsely when one is bound by F
oath to state the truth because an affidavit is a declaration made
under oath. The definition of the offence of giving false evidence
thus applies to the affidavits. The offence may also fall within s.
192. It lays down inter alia that a person is said to fabricate false
evidence if he makes a document containing a false statement
intending that such false statement may appear in evidence in a G
judicial proceeding and so appearing in evidence may cause any
person who, in such proceeding is to form an opinion upon the
evidence, to entertain an erroneous opinion touching any point
material to the result of such proceeding. When Baban Singh and
DharichhanKuer made declarations in their affidavits which were H
1098 SUPREME COURT REPORTS [2020] 10 S.C.R.
A tendered in the High Court to be taken into consideration, they
intended the statements to appear in evidence in a judicial
proceeding, and so appearing, to cause the court to entertain an
erroneous opinion regarding the compromise. In this way their
offence came within the words of ss.191/192 rather than s.199 of
the Indian Penal Code. They were thus prima facie guilty of an
B
offence of giving false evidence or of fabricating false evidence
for the purpose of being used in a judicial proceeding.
Section 479-A lays down a special procedure which applies to
persons who appear as witnesses before civil, revenue or criminal
courts and do one of two things: (i) intentionally give false evidence
C in any stage of the judicial proceeding or (ii) intentionally fabricate
false evidence for the purpose of being used in any stage of the
judicial proceeding. The first refers to an offence under Section
191/193 and the second to that under 192/193 of the Indian Penal
Code. In respect of such offences when committed by a witness,
D action under s.479-A alone can be taken. The appellants were
witnesses in the inquiry in the High Court and they had fabricated
false evidence. If any prosecution was to be started against them
the High Court ought to have followed the procedure under s.
479-A of the Code of Criminal Procedure. Not having done so,
the action under S.476 of the Code of Criminal Procedure was
E not open because of sub-s. (6) of s.479-A and the order under
appeal cannot be allowed to stand.”
17. In Kamla Prasad Singh v. Hari Nath Singh (1967) 3 SCR
828, the question which arose before the Court was as to whether the
intentional making of a false entry in a document to be used in a judicial
F proceeding would make out an offence under Section 192, or whether it
would make out an offence under Section 218 of the IPC, in which case
a private complaint would have been maintainable before a Magistrate.In
dealing with the distinctive features of complaints filed under Sections
192 and 193 of the IPC, the Court held (at pages 829-830):
G “The first question is what are the distinct features of Section 193
and Section 218 of the Indian Penal Code. Section 193 states the
punishment for giving false evidence in any stage of a judicial
proceeding or fabricating false evidence for the purpose of being
used in any stage of judicial proceeding. Section 191 defines the
H offence of giving false evidence and Section 192 the offence of
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1099
PRASAD VASSUDEV KENI [R. F. NARIMAN, J.]
fabricating false evidence. We may ignore Section 191 because A
here admittedly there is no giving of false evidence as defined in
the Penal Code. The offence of fabricating false evidence comes
into existence when a person causes any circumstance to exist or
makes any false entry in any book or record or makes any
document containing a false statement intending that such
B
circumstance, false entry or false statement may appear in evidence
in a judicial proceeding etc. and so appearing cause an erroneous
opinion be formed touching a point material to the result of such
proceeding. The offence is a general one and does not specify
the person or the kind of document. It may be any person and the
fabricated evidence may be in any form. Section 218 on the other C
hand deals with the intentional preparation of a false record by a
public servant with the object of saving or injuring any person or
property. The difference between the two sections is clearly
noticeable. Section 192 deals with judicial proceeding and the false
evidence is intended to be used in a judicial proceeding. Section
D
218 deals with public servants and there the gist is the intentional
preparation of a false record with a view of saving or injuring any
person or property. This need not have relation to a judicial
proceeding as such.”
18. In holding that the alleged offence committed by one Ahlmad
would fall under Section 192 and not under Section 218 of the IPC, the E
Court then went on to observe (at pages 830-831):
“It will appear from this that the alleged offence committed by
the Ahlmad was clearly in or in relation to a proceeding in Court.
In fact he made an incorrect entry about a case actually in Court
with the intention that the date of the institution of the proceeding F
may be taken to be November 9, 1962 although the case was
alleged to be instituted after December 4, 1962. His offence (if
any be proved against him) would fall within Section 192. Section
192 deals with fabrication of false evidence to be used in a judicial
proceeding so as to cause an erroneous opinion to be formed on a G
material point. Section 192 therefore completely covers the case
against Ahlmad, and must cover the case of Hari Nath Singh the
alleged abettor. Section 218 Indian Penal Code does not apply in
this case, because the record was not made with the object of
saving or injuring any person or property. The offence of Section
H
1100 SUPREME COURT REPORTS [2020] 10 S.C.R.
A 192 of the Indian Penal Code is punishable under Section 193
Indian Penal Code and the latter section is one of the sections
mentioned in Section 195(1)(b) of the Code of Criminal Procedure,
the gist of which has been reproduced above. The decision of the
High Court was therefore right that the Court could not take
cognizance of the offence alleged against the Ahlmad and his
B
abettor, because the offence was fabricating of false evidence in
a case which was in fact pending and the false entry was made
with the object that an erroneous opinion be formed on a material
point. Such a case could only be instituted by a court in which or
in relation to which this offence was committed and a private
C complaint was therefore incompetent.”
19. At this stage, it is important to understand the difference
between the offences mentioned in Section 195(1)(b)(i) and Section
195(1)(b)(ii) of the CrPC. Where the facts mentioned in a complaint
attracts the provisions of Section 191 to 193 of the IPC, Section
D 195(1)(b)(i) of the CrPC applies. What is important is that once these
sections of the IPC are attracted, the offence should be alleged to have
been committed in, or in relation to, any proceeding in any Court. Thus,
what is clear is that the offence punishable under these sections does
not have to be committed only in any proceeding in any Court but can
also be an offence alleged to have been committed in relation to any
E proceeding in any Court.
20. The words “in relation to” have been the subject matter of
judicial discussion in many judgments.Suffice it to say that for the present,
two such judgments need to be noticed. In State Wakf Board, Madras
v. Abdul Azeez Sahib and Ors., AIR 1968 Mad. 79, the expression
F “relating to” contained in Section 57(1) of the Wakf Act, 1954 fell for
consideration before the Madras High Court. The High Court held:
“8. We have no doubt whatever that the learned Judge, (Kailasam,
J.), was correct in his view that even the second suit has to be
interpreted as within the scope of the words employed in S. 57(1)
G namely, “In every suit or proceeding relating to title to Wakf
property”. There is ample judicial authority for the view that such
words as “relating to” or “in relation to” are words of
comprehensiveness which might both have a direct significance
as well as an indirect significance, depending on the context. They
H are not words of restrictive content and ought not to be so
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1101
PRASAD VASSUDEV KENI [R. F. NARIMAN, J.]
construed. The matter has come up for judicial determination in A
more than one instance. The case in Compagnie Financiec Dae
Pacifique v. Peruvian Guano Co, is of great interest, on this
particular aspect and the judgment of Brett, L.J., expounds the
interpretation of O. 31, R. 12 of the Rules of the Supreme Court,
1875, in the context of the phrase “material to any matter in question
B
in the action”. Brett, L.J., observed that this could both be direct
as well as indirect in consequences and according to the learned
Judge the test was this (at page 63):
“…a document can properly be said to contain information which
may enable the party requiring the affidavit either to advance his
own case or to damage the case of his adversary if it is a document C
which may fairly lead him to a train of inquiry, which may have
either of these consequences.””
21. Likewise, in Mansukhlal Dhanraj Jain and Ors. Etc. v.
Eknath Vithal Ogale Etc., (1995) 2 SCC 665, the expression “Suits
and proceedings between a licensor and licensee…relating to the recovery D
of possession” under Section 41(1) of the Presidency Small Cause Courts
Act, 1882 came up for consideration before this Court. The Court held:
“14…The words ‘relating to’ are of wide import and can take in
their sweep any suit in which the grievance is made that the
defendant is threatening to illegally recover possession from the E
plaintiff-licensee. Suits for protecting such possession of immovable
property against the alleged illegal attempts on the part of the
defendant to forcibly recover such possession from the plaintiff,
can clearly get covered by the wide sweep of the words “relating
to recovery of possession” as employed by Section 41(1). F
xxx xxxxxx
16. It is, therefore, obvious that the phrase “relating to recovery
of possession” as found in Section 41(1) of the Small Cause Courts
Act is comprehensive in nature and takes in its sweep all types of
suits and proceedings which are concerned with the recovery of G
possession of suit property from the licensee and, therefore, suits
for permanent injunction restraining the defendant from effecting
forcible recovery of such possession from the licensee-plaintiff
would squarely be covered by the wide sweep of the said phrase.
Consequently in the light of the averments in the plaints under
H
1102 SUPREME COURT REPORTS [2020] 10 S.C.R.
A consideration and the prayers sought for therein, on the clear
language of Section 41(1), the conclusion is inevitable that these
suits could lie within the exclusive jurisdiction of Small Cause Court,
Bombay and the City Civil Court would have no jurisdiction to
entertain such suits.”
B 22. Contrasted with Section 195(1)(b)(i), Section 195(1)(b)(ii) of
the CrPC speaks of offences described in Section 463, and punishable
under Sections 471, 475 or 476 of the IPC, when such offences are
alleged to have been committed in respect of a document produced or
given in evidence in a proceeding in any Court. What is conspicuous by
its absence in Section 195(1)(b)(ii) are the words “or in relation to”,
C making it clear that if the provisions of Section 195(1)(b)(ii) are attracted,
then the offence alleged to have been committed must be committed in
respect of a document that is custodia legis, and not an offence that
may have occurred prior to the document being introduced in court
proceedings.Indeed, it is this distinction that is vital in understanding the
D sheet anchor of the Appellant’s case namely, this Court’s judgment in
Iqbal Singh Marwah (supra).
23. In Iqbal Singh Marwah (supra), a 5-Judge Bench was
constituted in view of a conflict between decisions of this Court as follows:
“2. In view of conflict of opinion between two decisions of this
E Court, each rendered by a Bench of three learned Judges in Surjit
Singh v. Balbir Singh [(1996) 3 SCC 533] and Sachida Nand
Singh v. State of Bihar [(1998) 2 SCC 493] regarding
interpretation of Section 195(1)(b)(ii) of the Code of Criminal
Procedure, 1973 (for short “CrPC”), this appeal has been placed
F before the present Bench.”
24. The Court first spoke of the broad scheme of Section 195 of
the CrPC, which deals with three distinct categories of offences, and
held that the category of offences contained in Section 195(1)(b)(ii) ought
to be read along with the offences contained in Section 195(1)(a) and
G 195(1)(b)(i), which are clearly offences which directly affect either the
functioning or discharge of duties of a public servant or of courts of
justice. This was stated in paragraph 10 of the judgment as follows:
“10. The scheme of the statutory provision may now be examined.
Broadly, Section 195 CrPC deals with three distinct categories of
offences which have been described in clauses (a), (b)(i) and
H
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1103
PRASAD VASSUDEV KENI [R. F. NARIMAN, J.]
(b)(ii) and they relate to (1) contempt of lawful authority of public A
servants, (2) offences against public justice, and (3) offences
relating to documents given in evidence. Clause (a) deals with
offences punishable under Sections 172 to 188 IPC which occur
in Chapter X IPC and the heading of the Chapter is — “Of
Contempts of the Lawful Authority of Public Servants”. These
B
are offences which directly affect the functioning of or discharge
of lawful duties of a public servant. Clause (b)(i) refers to offences
in Chapter XI IPC which is headed as — “Of False Evidence
and Offences Against Public Justice”. The offences mentioned
in this clause clearly relate to giving or fabricating false evidence
or making a false declaration in any judicial proceeding or before C
a court of justice or before a public servant who is bound or
authorised by law to receive such declaration, and also to some
other offences which have a direct correlation with the proceedings
in a court of justice (Sections 205 and 211 IPC). This being the
scheme of two provisions or clauses of Section 195 viz. that the
D
offence should be such which has direct bearing or affects the
functioning or discharge of lawful duties of a public servant or
has a direct correlation with the proceedings in a court of justice,
the expression “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” occurring in clause (b)(ii) should E
normally mean commission of such an offence after the document
has actually been produced or given in evidence in the court. The
situation or contingency where an offence as enumerated in this
clause has already been committed earlier and later on the
document is produced or is given in evidence in court, does not
F
appear to be in tune with clauses (a)(i) and (b)(i) and consequently
with the scheme of Section 195 CrPC. This indicates that clause
(b)(ii) contemplates a situation where the offences enumerated
therein are committed with respect to a document subsequent to
its production or giving in evidence in a proceeding in any court.”
25. The Chapter heading of Chapter XXVI of the CrPC, which G
contains Sections 340 and 341 was then referred to – the heading reading
“Provisions as to Offences Affecting the Administration of Justice”, which
according to the Court also indicated that the offences mentioned in
Section 195(1)(b)(ii) are offences which directly affect the administration
H
1104 SUPREME COURT REPORTS [2020] 10 S.C.R.
A of justice. After referring to various judgments, the Court then explained
the difference between Section 195(1)(c) of the Code of Criminal
Procedure, 1898 and Section 195(1)(b)(ii) of the CrPC, 1973 as follows:
“19. As mentioned earlier, the words “by a party to any proceeding
in any court” occurring in Section 195(1)(c) of the old Code have
B been omitted in Section 195(1)(b)(ii) CrPC. Why these words
were deleted in the corresponding provision of the Code of Criminal
Procedure, 1973 will be apparent from the 41st Report of the
Law Commission which said as under in para 15.39:
“15.39. The purpose of the section is to bar private prosecutions
C where the course of justice is sought to be perverted leaving to
the court itself to uphold its dignity and prestige. On principle there
is no reason why the safeguard in clause (c) should not apply to
offences committed by witnesses also. Witnesses need as much
protection against vexatious prosecutions as parties and the court
should have as much control over the acts of witnesses that enter
D
as a component of a judicial proceeding, as over the acts of parties.
If, therefore, the provisions of clause (c) are extended to witnesses,
the extension would be in conformity with the broad principle which
forms the basis of Section 195.”
20. Since the object of deletion of the words “by a party to any
E
proceeding in any court” occurring in Section 195(1)(c) of the old
Code is to afford protection to witnesses also, the interpretation
placed on the said provision in the earlier decisions would still hold
good.”
26. Importantly, the Court then stated that Section 195 of the CrPC
F
is an exception to the general provision contained in Section 190 thereof,
and creates an embargo upon the power of the Court to take cognizance
of certain types of offences enumerated under Section 195, which must
be necessarily follow the drill contained in Section 340 of the CrPC (see
paragraph 21). An important reason is then given by the Court, which is
G that the victim of a forged document which is forged outside the court
premises and before being introduced in a Court proceeding, would render
the victim of such forgery remediless, in that it would otherwise be left
only to the court mentioned in Section 340 of the CrPC who decides as
to whether a complaint ought or ought not to be lodged in respect of
such complaint. Paragraph 23 therefore states:
H
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1105
PRASAD VASSUDEV KENI [R. F. NARIMAN, J.]
“23. In view of the language used in Section 340 CrPC the court A
is not bound to make a complaint regarding commission 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
B
case. Before filing of the complaint, the court may hold a
preliminary enquiry and record a finding to the effect that it is
expedient in the interests 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 weighing not
the magnitude of injury suffered by the person affected by such C
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 substantial injury to a person in the sense
that it may deprive him of a very valuable property or status or
D
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 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 E
clause (b)(ii), as canvassed by learned counsel for the appellants,
would render the victim of such forgery or forged document
remediless. Any interpretation which leads to a situation where a
victim of a crime is rendered remediless, has to be discarded.”
27. Paragraph 25 of the judgment then refers to how the broader F
interpretation that was accepted in Surjit Singh (supra) would be capable
of great misuse. This was put by the Court as follows:
“25. 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 G
produced in court, is capable of great misuse. As pointed out
in SachidaNand Singh [(1998) 2 SCC 493] 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
H
1106 SUPREME COURT REPORTS [2020] 10 S.C.R.
A 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
B
detrimental to the interest of the society at large.”
28. The Court then held that where it is possible, interpretatively
speaking, an impracticable result should be avoided (see paragraphs 26
and 27). The Court, which was dealing with a forged will that had been
introduced in Court proceedings after it was forged, therefore concluded:
C
“33. In view of the discussion made above, we are of the opinion
that SachidaNand Singh [(1998) 2 SCC 493] 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
D 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.
34. In the present case, the Will has been produced in the court
subsequently. It is nobody’s case that any offence as enumerated
E 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
F 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.”
29. Thus, Iqbal Singh Marwah (supra) is clear authority for the
proposition that in cases which fall under Section 195(1)(b)(ii) of the
G CrPC, the document that is said to have been forged should be custodia
legis after which the forgery takes place. That this judgment has been
followed in several subsequent judgments is beyond cavil – see Mahesh
Chand Sharma v. State of U.P and Ors.(2009) 15 SCC 519 (at
paragraphs 21-23); C.P. Subhash v. Inspector of Police, Chennai
and Ors. (2013) 11 SCC 559 (at paragraphs 12 and 13); Kishorbhai
H
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1107
PRASAD VASSUDEV KENI [R. F. NARIMAN, J.]
Gandubhai Pethani v. State of Gujarat and Anr. (2014) 13 SCC 539 A
(at paragraphs 14 and 15) and Vishnu Chandru Gaonkar v. N.M.
Dessai (2018) 5 SCC 422 (at paragraphs 14 and 17).
30. However, Shri Mishra, undaunted by the fact that Iqbal Singh
Marwah (supra) and its progeny are all cases relatable to Section
195(1)(b)(ii) of theCrPC, has argued that the same reasoning ought to B
apply to cases falling under Section 195(1)(b)(i) of the CrPC.First and
foremost, as has been pointed out hereinabove, every judgment that
follows Iqbal Singh Marwah (supra) is in the context of offences
mentioned in Section 195(1)(b)(ii) of the CrPC. Secondly, there is direct
authority for the proposition that the ratio in Iqbal Singh Marwah (supra)
cannot be extended to cases governed by Section 195(1)(b)(i) of the C
CrPC.
31. Thus, in Kailash Mangal v. Ramesh Chand (2015) 15 SCC
729, this Court was confronted with the conviction of the appellant under
Sections 193 and 419 of the IPC in a case initiated on a private complaint.
Iqbal Singh Marwah (supra) was put in the forefront of the argument, D
stating that the offence that had been committed on the facts of this
case had been committed with respect to a document prior to its being
custodia legis. This Court distinguished Iqbal Singh Marwah (supra)
as follows:
“9. While restoring the conviction of the appellant under Section E
193 IPC, the High Court has relied upon a decision of the
Constitution Bench of this Court in Iqbal Singh Marwah
v. Meenakshi Marwah. A Constitution Bench of this Court
in Iqbal Singh Marwah case held that the protection engrafted
under Section 195(1)(b)(ii) CrPC would be attracted only when F
the offence enumerated in the said provisions has been committed
with respect to a document after it had been produced or given in
evidence in proceedings in any court i.e. during the time when the
document was in custodia legis. Where the forgery was committed
before the document was filed in the Court, the High Court was
held not justified in quashing the prosecution of the accused under G
Sections 467, 468, 471, 472 and 477-A IPC on the ground that the
complaint was barred by the provisions of Section 195(1)(b)(ii)
CrPC. Section 195(1)(b)(ii) CrPC would be attracted only when
the offences enumerated in the provision have been committed
with respect to a document after it has been produced or given in H
1108 SUPREME COURT REPORTS [2020] 10 S.C.R.
A evidence in a proceeding in any court i.e. during the time when
the document was in custodia legis.
10. In the instant case, the false affidavit alleged to have been
filed by the appellant was in a proceeding pending before the civil
court and the offence falls under Section 193 IPC and the
B proceeding ought to have been initiated on the complaint in writing
by that court under Section 195(1)(b)(i) IPC. Since the offence is
said to have been committed in relation to or in a proceeding in a
civil court, the case of Iqbal Singh Marwah is not applicable to
the instant case.”
C 32. Likewise, in a recent judgment in Narendra Kumar
Srivastava v. State of Biharand Ors. (2019) 3 SCC 318, the Court
was concerned with false affidavits that had been prepared/forged outside
the Court. This being so, the question that arose before the Court was
whether the Magistrate was justified in taking cognizance of an offence
punishable under Section 193 of the IPC on the basis of a private
D complaint.This Court held:
“13. It is clear from sub-section (1)(b) of Section 195 CrPC that
the section deals with two separate set of offences:
(i) of any offence punishable under Sections 193 to 196 (both
E inclusive), 199, 200, 205 to 211 (both inclusive) and 228 IPC, when
such offence is alleged to have been committed in, or in relation
to, any proceeding in any court; [Section 195(1)(b)(i)]
(ii) of any offence described in Section 463, or punishable under
Section 471, Section 475 or Section 476 IPC, when such offence
F is alleged to have been committed in respect of a document
produced or given in evidence in a proceeding in any court. [Section
195(1)(b)(ii)].
14. On the reading of these sections, it can be easily seen that the
offences under Section 195(1)(b)(i) and Section 195(1)(b)(ii) are
clearly distinct. The first category of offences refers to offences
G
of false evidence and offences against public justice, whereas,
the second category of offences relates to offences in respect of
a document produced or given in evidence in a proceeding in any
court.
H
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1109
PRASAD VASSUDEV KENI [R. F. NARIMAN, J.]
15. Section 195 CrPC lays down a rule to be followed by the A
court which is to take cognizance of an offence specified therein
but contains no direction for the guidance of the court which desires
to initiate prosecution in respect of an offence alleged to have
been committed in or in relation to a proceeding in the latter court.
For that purpose, one must turn to Section 340 which requires the
B
court desiring to put the law in motion to prefer a complaint either
suo motu or an application made to it in that behalf.
xxx xxxxxx
17. Section 340 CrPC makes it clear that a prosecution under
this section can be initiated only by the sanction of the court under C
whose proceedings an offence referred to in Section 195(1)(b)
has allegedly been committed. The object of this section is to
ascertain whether any offence affecting administration of justice
has been committed in relation to any document produced or given
in evidence in court during the time when the document or
evidence was in custodia legis and whether it is also expedient in D
the interest of justice to take such action. The court shall not only
consider prima facie case but also see whether it is in or against
public interest to allow a criminal proceeding to be instituted.
xxx xxxxxx
E
21. As already mentioned, clauses under Section 195(1)(b) CrPC
i.e. sub-section 195(1)(b)(i) and sub-section 195(1)(b)(ii) cater
to separate offences. Though Section 340 CrPC is a generic section
for offences committed under Section 195(1)(b), the same has
different and exclusive application to clauses (i) and (ii) of Section
195(1)(b) CrPC. F
22. In SachidaNand Singh [(1998) 2 SCC 493] relied on by the
learned counsel for the appellant, this Court was considering the
question as to whether the bar contained in Section 195(1)(b)(ii)
CrPC is applicable to a case where forgery of the document was
committed before the document was produced in a court. It was G
held: (SCC pp. 497 & 501, paras 6 & 23)
“6. A reading of the clause reveals two main postulates for
operation of the bar mentioned there. First is, there must be
allegation that an offence (it should be either an offence described
in Section 463 or any other offence punishable under Sections H
1110 SUPREME COURT REPORTS [2020] 10 S.C.R.
A 471, 475 and 476 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. There
is no dispute before us 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. There is
B
also no dispute that if forgery was committed with a document
which has not been produced in a court then the prosecution would
lie at the instance of any person. If so, will its production in a
court make all the difference?
***
C
23. The sequitur of the above discussion is that the bar contained
in Section 195(1)(b)(ii) of the Code is not applicable to a case
where forgery of the document was committed before the
document was produced in a court. Accordingly we dismiss this
appeal.”
D
23. In SachidaNand Singh, this Court had dealt with Section
195(1)(b)(ii) CrPC unlike the present case which is covered by
the preceding clause of the section. The category of offences
which fall under Section 195(1)(b)(i) CrPC refer to the offence
of giving false evidence and offences against public justice which
E is distinctly different from those offences under Section
195(1)(b)(ii) CrPC, where a dispute could arise whether the
offence of forging a document was committed outside the court
or when it was in the custody of the court. Hence, this decision
has no application to the facts of the present case.
F 24. The case in hand squarely falls within the category of cases
falling under Section 195(1)(b)(i) CrPC as the offence is punishable
under Section 193 IPC. Therefore, the Magistrate has erred in
taking cognizance of the offence on the basis of a private complaint.
The High Court, in our view, has rightly set aside the order of the
G Magistrate. However, having regard to the facts and
circumstances of the case, we deem it proper to set aside the
costs imposed by the High Court.”
33. The aforesaid judgments clearly lay down that when Section
195(1)(b)(i) of the CrPC is attracted, the ratio of Iqbal Singh Marwah
(supra), which approved Sachida Nand Singh and Anr. v. State of
H
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1111
PRASAD VASSUDEV KENI [R. F. NARIMAN, J.]
Bihar and Anr. (1998) 2 SCC 493,is not attracted, and that therefore, if A
false evidence is created outside the Court premises attracting Sections
191/192 of the IPC, the aforesaid ratio would not apply so as to validate
a private complaint filed for offences made out under these sections.
34. At this stage, it is important to examine the complaints dated
11.08.2019 filed in the present case. The first complaint, after setting out B
some facts, clearly states:
“3. This Application is made under the provisions of Section 340
r/w section 195 of the Cr.P.C, 1973, (hereinafter called for short
“the Said Code”) seeking an order of inquiry into an offence
committed by Accused under the provisions of Section 191 and C
193 of the Indian Penal Code, 1860.(hereinafter called “Penal
Code”) An offence under these provisions have been committed
by the Accused in relation to the proceedings before the Civil
Judge Senior Division at Bicholim in Spl. Civil Suits No. 7/2000/
A, 8/2000/A, 14/2000/A, 21/2000/A (first 4 suits) and 1/2003/A
(the 5th suit, which stands withdrawn after completion of D
evidence). An offence under the above said provisions is also
committed in respect of documents in the above suits for which a
separate criminal complaint is being filed. Forged/manipulated
documents have been produced and given in evidence in the above
proceedings. All the above suits/proceedings are within the E
jurisdiction of this Hon’ble Court.”
35. The complaint then refers to false statements made by the
Respondents/accused in their Written Statements and Counter Claims
in the first four suits, which are pleadings before the Court, and then
goes on to state: F
“14. The Complainants state that both the Accused No. 2 and
Accused No. 3 have made declarations on a subject which they
are bound by law and has, in fact, made Statements, which are
false and which both the Accused know or believe to be false or
does not believe it to be true, which is also applicable to the Accused G
No. 4 to 10 herein. The Accused 2 has given false evidence.
Moreover, circumstances are caused by the Accused 2 to making
false entries in any books or record intending that such
circumstance, false entry or false statements does appear in
evidence in a judicial proceedings before the Hon’ble Civil Judge
Senior Division at Bicholim and, therefore, the false entry and H
1112 SUPREME COURT REPORTS [2020] 10 S.C.R.
A false statements so appearing in evidence has caused persons in
such proceedings to form a opinion upon the evidence or entertain
an erroneous opinion touching any point material to the result of
such proceedings.”
36. Various particulars of fabricated documents are then given as
B follows:
“f) In all the 5 Suits, the Accused produced some fabricated
documents. Regarding one of such documents being a typed
statement dated 3.09.1998 confronted to the Complainants Witness
during his cross, a Xerox copy was first shown with handwritten
C remarks of page 2 thereof of an employee of the Accused. When
the said witness declined to comment on the said Xerox copy on
the next date, the original typed statement with the said handwritten
remark torn/missing therein was shown to the witness. Whereas
in the common Affidavit dated 10.02.2003 filed by late V.G. Quenim
in the first 4 suits at para 38 stated:
D
“I say that in the torn portion of page one there were only initials
of Shri Prabhu from my office. So also in the torn portion of page
2 the words written thereon were “checked with the previous
statement and found correct” bearing initials of Mr. Vikas Naik
who is working in my office as Accountant. I cannot explain how
E the said portion got torn”
In addition, there are other fabricated documents produced by the
Accused in the said suits which would be the subject matter of
complaint u/s 192 being filed by the Complainants herein separately.
F g) The Accounts were manipulated, false entries were made in
their books of Account, Profit and Loss Account, Balance Sheet
etc. The counterclaims filed in suit No.7/2000/A and 8/2000/A
against complaint No.1 and 2 despite the above pointed out
fabrication/manipulation were also written off as Bad Debts as
on 31.03.2000 in their audited books of Account.
G
h)The Accused No.1 claimed that the Mutual, Open and Current
Account was closed on 09.03.2000 whereas the Accused No.2
claimed that the SAME mutual open and current Account was
closed on 09.03.2000 and 31.03.2000 i.e. on two occasions and
finally during the cross examination of the Accused No.2 herein
H
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1113
PRASAD VASSUDEV KENI [R. F. NARIMAN, J.]
in the 5th suit he has admitted that the same were not the ledger A
Accounts.”
37. The prayer made in this complaint is then as follows:
“IT IS THEREFORE PRAYED THAT THIS HON’BLE COURT
BE PLEASED TO:
B
(a) record a finding to that effect;
(b) make a Complaint thereof in writing;
(c) send it to a Magistrate of the First Class having Jurisdiction;
(d) take sufficient Security for appearance of the Accused before
C
such Magistrate, or if the alleged offence is non- bailable and the
Court thinks it necessary so to do, send the Accused in custody to
such Magistrate; and
(e) bind over any person to appear and give evidence before such
Magistrate.”
D
38. So far as the second complaint is concerned, like the first
complaint, this was also stated to be an application under Sections 340
read with 195 of the CrPC as follows:
“3. This Application is made under the provisions of Section 340
read with section 195 of the Cr.PC, 1973, (hereinafter called for E
short the Said Code”) seeking an order of inquiry into an offence
committed by Accused under the provisions of Section 192 and
193 of the Indian Penal Code, 1860.(hereinafter called “Penal
Code”) An offence under these provisions have been committed
by the Accused in relation to the proceedings in the Court of the
Civil Judge Senior Division at Bicholim i.e. in Spl. Civil Suits No. F
7/2000/A, 8/2000/A, 14/2000/A, 21/2000/A (first 4 Suits) and Spl.
Civil Suit No. 1/2003/A (the 5th Suit, which stands withdrawn
after completion of evidence) An offence under the abovesaid
provisions is committed in respect of documents in the above suits
for which a separate criminal complaint is being filed. Forged/ G
manipulated documents have been produced and given in Evidence
in the above proceedings. All the above suits are within the
jurisdiction of this Hon’ble Court.
a) Forged a Debit Note dated 09.03.2000 for Rs.1,88,27796/-
alongwith the statements annexed thereto sent under the cover of H
1114 SUPREME COURT REPORTS [2020] 10 S.C.R.
A letter dated 09.03.2000. Hereto marked as EXHIBIT-C Colly is
copy of said documents.
b)The said Debit Note dated 09.03.2000 for Rs. 1,88,27,796/- at
(a) above is the subject matter of counterclaim filed by the Accused
against the Complainant No. 1 in Spl. Civil Suit No. 7/2000/A
B which Debit Note is reflecting in the manipulated Ledger extract
annexed to the written statement dated 10.03.2000 at Exh. A
thereto which document is produced and given in evidence in
Spl. Civil Suit No.1/2003/A which document is at EXHIBIT-F
COLLY herein.
C c) Forged Debit Note dated 31.03.2000 for Rs.76,19,869/-
alongwith the statements annexed thereto sent under the cover of
letter dated 4.07.2000. Hereto annexed and marked as EXHIBIT
- D Colly is the copy of the said documents.
d) Forged a Debit Note dated 31.03.2000 for the sum of Rs.
D 29,081/- also sent under the cover of the said letter dated
04.07.2000. Hereto marked as EXHIBIT-D Colly is the copy of
the said document.
e) The said 2 Debit Notes at (c) and (d) above for total amounting
to Rs. 76,48,950/- is subject matter of the counterclaim filed by
E the Accused against the Complainant No. 2 in Spl. Civil Suit No.
8/2000/A, which Debit Notes are reflecting in the manipulated
ledger extract annexed to the written statement and counterclaim
dated 04.07.2000 at Exh: B thereto, which document is produced
and given in evidence in Spl. Civil Suit No. 1/2003/A which
document is at EXHIBIT-J Colly herein.
F
In this Complaint, the Complainants request this Hon’ble Court to
make a preliminary enquiry it deems fit and necessary. This Hon’ble
Court will also be pleased to record (a) a record of evidence to
this effect (b) to make a complaint thereof in writing (c) and
thereafter send it to a First Class Magistrate Court, having
G jurisdiction (d) pass such orders as this Hon’ble Court may deem
fit and proper considering the facts and circumstances of the case
for punishing the Accused under the Provisions of Section 193
and 196 of the said Penal Code.”
39. Then the complaint goes on to refer to various false affidavits/
H statements made by the accused, as follows:
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1115
PRASAD VASSUDEV KENI [R. F. NARIMAN, J.]
“In such circumstances, he has declared on false affidavits/ A
statements in all 5 suits being Spl. Civil Suits No. 7/2000/A, 8/
2000/A, 14/2000/A, 21/2000/A and 1/2003/A respectively. He has
also fabricated documents, false entries in his books of account,
in order to file his counter claims in Spl. Civil Suits No. 7/2000/A
and 8/2000/A. The false entries and the fabricated documents
B
created by the Accused No. 2 are as follows:
(i) Forged a Debit Note dated 09.03.2000 with statements annexed
thereto and manipulated Ledger Account and claimed an amount
of Rs. 1,88,27,796/- from the Complainant No. 1 in their counter
claim which are at EXHIBIT-C Colly herein.
C
(ii) Manipulated ledger extract of the Account of the Complainant
No.1 appearing in the audited books of account of the Accused
No.1 on the basis of the counterclaim for Rs.1,88,27,796/- filed
by the Accused in Spl. Civil Suit No.7/2000/A annexed as Exh.
‘A’ to the Written Statement and counterclaim dated 10.03.2000
at EXHIBIT-F Colly herein. D
(iii) Forged a Debit Note dated 31 March, 2000 for an amount of
Rs.76, 19,869/- with statements annexed thereto and manipulated
Ledger Account and claimed an amount from the Complainant
No. 2 in their counter claim sent under the cover of letter dated
04.07.2000 are at EXHIBIT-D Colly herein. E
(iv) Forged a Debit Note dated 31 March, 2000 for the sum of
Rs.29,081/- purportedly for Sales Tax and manipulated Ledger
Account and claimed an amount from the Complainant No. 2 in
their counter claim sent under the cover of letter dated 04.07.2000
is at EXHIBIT-D Colly herein. F
(v) Manipulated Ledger extract of the Account of Complainant
No.2 purportedly appearing in the audited books of account of the
Accused No.1 on the basis of the counterclaim for a sum of
Rs.76,48,950/- filed by the Accused in Spl. Civil Suit No.8/2000/A
annexed at Exh. ‘B’ to the Written Statement and counterclaim G
dated 04.07.2000 at EXHIBIT-J Colly herein.
Apart from the above mentioned debit notes, many manipulations,
false entries were made by the Accused in their books of Account,
Profit and loss Account, Balance sheet etc. In the 5th Suit being
Spl. Civil Suit No.1/2003/A, Accused No. 2 produced copy of the H
1116 SUPREME COURT REPORTS [2020] 10 S.C.R.
A audited Profit and Loss Account and Balance Sheet as on 31/03/
2000 with annexures, Tax Audit Reports issued by their Auditors
and some supporting Ledger Accounts, Journal Vouchers et., in
respect of all the transactions of Ore claimed by late V. G. Quenim
the then Proprietor of the Accused No.1. The suit claim in the 5th
suit being Spl. Civil Suit No. 1/2003/A as also the counter claims
B
filed in Spl. Civil Suits No.7/2000/A and 8/2000/A against
Complainant No. 1 and 2 were neither standing to the debit of to
the Current Account of the respective Complainants herein nor
the same were credited to the sale of ore account in the books of
account of the Accused No.1 but instead, they have been written
C off as Bad Debts as on 31.03.2000 in their audited books of
account.”
40. Importantly, the averment made in paragraph 11 of the
complaint reads as follows:
“11.The Complainants crave leave to refer to and rely uponthe
D certified copies of the Cross-examination and the variousbooks
of account which has been manipulated, forged by making false
entry by the Accused. The purpose of theAccused is to influence
the Hon’ble Court to form an opinion upon such evidence.”
41. As a result, the second complaint ends stating:
E
“15. The Complainants state that both the Accused No. 2 and
Accused No. 3 have made a declarations on a subject which they
are bound by law and has, in fact, made Statements, which are
false and which both the Accused know or believe to be false or
does not believe it to be true, which is also applicable to the Accused
F No.4 to 10 herein. The Accused No. 2 has given false evidence.
Moreover, circumstances are caused by the Accused 2 and 3 to
making false entries in any books or record intending that such
circumstance, false entry or false statements does appear in
evidence in a judicial proceedings before the Hon’ble Civil Judge
G Senior Division at Bicholim and, therefore, the false entry and
false statements so appearing in evidence has caused persons in
such proceedings to form a opinion upon the evidence or entertain
an erroneous opinion touching any point material to the result of
such proceedings.
H
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1117
PRASAD VASSUDEV KENI [R. F. NARIMAN, J.]
16. The Accused No.2 and 4 to 10 herein respectively joined as A
LR’s upon the death of Mr.V.G. Quenim the then Proprietor of
the Accused No.1 on 20.07.2007, in first 4 suits. Similarly, in the 5
suit the Accused Nos.2 to 10 herein respectively joined as LR’s
therein.
17. After the Accused No.2 to 10 abovenamed were brought on B
record in the said 5 suits in Aug./Sept. 2007, the said Accused
have not even made any attempt to correct the false statements
in the pleadings in all the respective suits which continues till date
with the falsehood. Besides, the Accused No.2 and 3 are directly
involved. Thus the Accused No.2 to 10 herein have become the
co-proprietors of M/s. V.G. Quenim upon the death of late V.G. C
Quenim the original Proprietor of the Accused No.1 herein.
18. It is submitted that the Accused herein have therefore.
committed an offence w/s. 192 of the Indian Penal Code and the
Accused herein are, punishable under the provisions of Section
193 of the Indian Penal Code. D
IT IS THEREFORE PRAYED THAT THIS HON’BLE
COURT BE PLEASED TO:
(a) record a finding to that effect;
(b) make a Complaint thereof in writing: E
(c) send it to a Magistrate of the First Class having Jurisdiction;
(d) take sufficient Security for appearance of the Accused before
such Magistrate, or if the alleged offence is non- bailable and the
Court thinks it necessary so to do, send the Accused in custody to
F
such Magistrate; and
(e) bind over any person to appear and give evidence before such
Magistrate.”
42. A perusal of the aforesaid complaints leaves no manner of
doubt that the first complaint attracts the provisions of Section 191 of G
the IPC, and the second complaint attracts the provisions of Section 192
of the IPC. However, for the first time in the counter-affidavit to the
revision applicationthat was filed by the Respondents before the learned
Sessions Judge, the Appellants stated:
H
1118 SUPREME COURT REPORTS [2020] 10 S.C.R.
A “II. The said application is liable/ought to be dismissed in as much
as a perusal of the complaint and its accompaniments not only
make out a case under section 192/193 IPC but the same also
leads to a conclusion that the offences under sections 463, 464,
465, 467, 468, 469, 471, 474, 475 & 477-A of IPC have also been
made out and as such, the accused persons be proceeded
B
accordingly.
xxx xxxxxx
V.The said application deserves to be dismissed because the law
relating to the bar engrafted in section 195(1)(b)(ii) of the Code
C of Criminal Procedure is not applicable to a case where forgery
of the document was committed before the document was
produced in the court. As such, the documents forgery of which
have been committed were not the custodia legis.”
43. There is no doubt that realising the difficulties in their way, the
D Appellants suddenly changed course, and applied to the Magistrate vide
application dated 09.05.2011 to convert what was a properly drafted
application under Section 195 read with section 340 of the CrPC, into a
private complaint. A reading of the two complaints leaves no manner of
doubt that they have been drafted keeping the ingredients of Sections
191 and 192 of the IPC alone in mind – the only argument from the
E Appellants now being that since certain debit notes were forged prior to
their being introduced in the court proceedings, not only would the ratio
in Iqbal Singh Marwah (supra) apply, but also that the ingredients of
the “forgery” sections of the IPC have now been made out. While it is
important to bear in mind that in genuine cases where the ingredients of
F forgery as defined in Section 463 of the IPC have been made out, and
that therefore, a private complainant should not be left remediless, yet it
is equally important to bear in mind the admonition laid down in an early
judgment of this Court. Thus, in Basir-ul-Huq and Ors. v. State of
West Bengal (1953) SCR 836, this Court cautioned (at page 846):
G “Though, in our judgment, Section 195 does not bar the trial of an
accused person for a distinct offence disclosed by the same facts
and which is not included within the ambit of that section, it has
also to be borne in mind that the provisions of that section cannot
be evaded by resorting to devices or camouflages. The test
whether there is evasion of the section or not is whether the facts
H disclose primarily and essentially an offence for which a complaint
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1119
PRASAD VASSUDEV KENI [R. F. NARIMAN, J.]
of the court or of the public servant is required. In other words, A
the provisions of the section cannot be evaded by the device of
charging a person with an offence to which that section does not
apply and then convicting him of an offence to which it does,
upon the ground that such latter offence is a minor offence of the
same character, or by describing the offence as being one
B
punishable under some other section of the Indian Penal Code,
though in truth and substance the offence falls in the category of
sections mentioned in Section 195 of the Criminal Procedure Code.
Merely by changing the garb or label of an offence which is
essentially an offence covered by the provisions of Section 195
prosecution for such an offence cannot be taken cognizance of C
by misdescribing it or by putting a wrong label on it.”
44. Equally important to remember is that if in the course of the
same transaction two separate offences are made out, for one of which
Section 195 of the CrPCis not attracted, and it is not possible to split
them up, the drill of Section 195(1)(b) of the CrPC must be followed. D
Thus, in State of Karnataka v. Hemareddy (1981) 2 SCC 185, this
Court referred to a judgment of the Madras High Court (Re V.V.L.
Narasimhamurthy AIR 1955 Mad 237) and approved its ratio as follows:
“7…In the third case, Somasundaram, J., has observed:
“The main point on which Mr Jayarama Aiyar appearing for the E
petitioner seeks to quash this committal is that on the facts an
offence under Section 193 IPC is disclosed for which the court
cannot take cognizance without a complaint by the court as
provided under Section 195(1)(b) of the Criminal Procedure Code.
The first question which arises for consideration is whether on F
the facts mentioned in the complaint, an offence under Section
193, IPC is revealed. Section 193 reads as follows:
Whoever intentionally gives false evidence in any stage of a
judicial proceeding, or fabricates false evidence for the
purpose of being used in any stage of a judicial proceeding, G
shall be punished with imprisonment of either description for
a term which may extend to 7 years, and shall also be liable
to fine.
‘Fabrication of false evidence’ is defined in Section 192. The
relevant portion of it is:
H
1120 SUPREME COURT REPORTS [2020] 10 S.C.R.
A Whoever causes any circumstance to exist intending that such
circumstance may appear in evidence in a judicial proceeding
and that such circumstance may cause any person who in
such proceeding is to form an opinion upon the evidence to
entertain an erroneous opinion touching any point material
to the result of such proceeding is said ‘to fabricate false
B
evidence’.
The effect of the allegations in the complaint preferred by the
complainant is that the petitioner has caused this will to come into
existence intending that such will may cause the judge before
whom the suit is filed to form an opinion that the will is a genuine
C one and, therefore, his minor daughter is entitled to the property.
The allegation, therefore, in the complaint will undoubtedly fall
under Section 192 IPC. It will, therefore, amount to an offence
under Section 193 IPC, i.e. fabricating false evidence for the
purpose of being used in the judicial proceeding. There is no doubt
D that the facts disclosed will also amount to an offence under
Sections 467 and 471, IPC. For prosecuting this petitioner for an
offence under Sections 467 and 471, a complaint by the court
may not be necessary as under Section 195(1)(b), Criminal PC a
complaint may be made only when it is committed by a party to
any proceeding in any court.
E
Mr Jayarama Aiyar does not give up his contention that the
petitioner, though he appears only a guardian of the minor girl, is
still a party to the proceeding. But it is unnecessary to go into the
question at the present moment and I reserve my opinion on the
question whether the guardian can be a party to a proceeding or
F not, as this case can be disposed of on the other point viz. that
when the allegations amount to an offence under Section 193
IPC, a complaint of court is necessary under Section 195(1)(a),
of theCriminal PC and this cannot be evaded by prosecuting the
accused for an offence for which a complaint of court is not
G necessary.”
8. We agree with the view expressed by the learned Judge and
hold that in cases where in the course of the same transaction an
offence for which no complaint by a court is necessary under
Section 195(1)(b) of the Code of Criminal Procedure and an
H offence for which a complaint of a court is necessary under that
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1121
PRASAD VASSUDEV KENI [R. F. NARIMAN, J.]
sub-section, are committed, it is not possible to split up and hold A
that the prosecution of the accused for the offences not mentioned
in Section 195(1)(b) of the Code of Criminal Procedure should be
upheld.”
45. Bearing these admonitions in mind, let us now see as to whether
the “forging” of the debit notes, so strongly relied upon by Shri Mishra B
as being offences under Sections 463 and 464 of the IPC, can at all be
said to attract the provisions of these Sections.
46. Section 463 of the IPC speaks of “forgery” as being the making
of a “false document” or “false electronic record”, or a part thereof, to
do the various things that are stated in thatsection. Unless a person is C
said to make a false document or electronic record, Section 463 does
not get attracted at all.The making of a “false document” is then dealt
with in Section 464 of the IPC.On the facts of the present case, we are
not concerned with thecategories of false documents identified under
the heads “Secondly” and “Thirdly” of Section 464. Shri Mishra states
that the making of the debit notes by the Respondents in order to falsely D
claim amounts owing to them would fall within the “First” category under
Section 464.
47. The “First” category of Section 464 makes it clear that anyone
who dishonestly or fraudulently makes or executes a document with the
intention of causing it to be believed that such document was made or E
executed by or by the authority of a person by whom or by whose authority
he knows that it was not made, can be said to make a false
document.Several judgments of this Court have held that assuming
dishonesty or fraud, the second ingredient of the “First” category of
Section 464 is that the document itself must be made by or by the authority F
of a person by whom or by whose authority the person who creates the
forgery knows that it was not made.If the second ingredient is found
missing, the offence of forgery is not made out at all. Thus, in Devendra
v. State of U.P. (2009) 7 SCC 495, this Court set out the following
facts:
G
“5. On or about 22-8-1997, a sale deed was executed by Appellants
1 and 2 in favour of Appellants 3 and 4. On 24-8-2005, a suit was
filed by Respondent 2 and others for cancelling the aforesaid deed
of sale dated 22-8-1997, which was registered as Civil Suit No.
382 of 2005. The said suit is still pending in the Court of the learned
H
1122 SUPREME COURT REPORTS [2020] 10 S.C.R.
A Civil Judge (Junior Division), Ghaziabad. In the said suit, however,
it was averred that Solhu had four sons whereas in Suit No. 135
of 1982, it was stated that Solhu had five sons. The appellants
filed an application under Order 9 Rule 13 read with Section 151
of the Code of Civil Procedure before the Court of the Deputy
District Magistrate (First Class), Ghaziabad praying for dismissal
B
of Suit No. 135 of 1982. An application for impleadment was also
filed by the appellants in Civil Miscellaneous Writ Petition No.
17667 of 1985.
6. On or about 21-9-2005, Respondent 2 filed an application in
Police Station Kavinagar, Ghaziabad wherein the City Magistrate
C by an order dated 17-9-2005 passed an order to hear the
complainant and register a first information report. Thereafter,
Respondent 2 filed a first information report in Police Station Sahni
Gate on 21-9-2005. The appellants filed an application for quashing
the said first information report before the High Court. It was
D marked as Criminal Miscellaneous Writ Petition No. 10568 of
2005.”
48. This Court held that the sale deed executed did not constitute
a “false document” under Section 464 of the IPC as follows:
“18. Section 463 of the Penal Code reads as under:
E
“463. Forgery.—Whoever makes any false documents or false
electronic record or part of a document or electronic record,
with intent to cause damage or injury, to the public or to any
person, or to support any claim or title, or to cause any person
to part with property, or to enter into any express or implied
F contract, or with intent to commit fraud or that fraud may be
committed, commits forgery.”
According to Mr Das, making of a false document so as to support
any claim over title would constitute forgery within the meaning
of the said provision and as a document was created for the purpose
G of showing one-third share in the joint property by the appellants
although they were not entitled to therefor, they must be held to
have committed an offence.
19. Making of any false document, in view of the definition of
“forgery” is the sine qua non therefor. What would amount to
H making of a false document is specified in Section 464 thereof.
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1123
PRASAD VASSUDEV KENI [R. F. NARIMAN, J.]
What is, therefore, necessary is to execute a document with the A
intention of causing it to be believed that such document inter alia
was made by the authority of a person by whom or by whose
authority he knows that it was not made.
20. The appellants are the owners of the property. They have
executed a sale deed. Execution of the deed of sale is not denied. B
If somebody is aggrieved by the false assertions made in the said
sale deed, it would be the vendees and not the co-sharers. The
appellants have not been alleged to be guilty of creating any false
document.”
49. In Mohd. Ibrahim v. State of Bihar (2009) 8 SCC 751, it C
was held that the execution of a sale deed by somebody in his own name
qua property which is not his does not constitute making a “false
document” under Section 464 of the IPC, because he does not
impersonate the owner or falsely claim to be authorised or empowered
by the owner to execute the deed on the owner’s behalf. The Court
held: D
“13. The condition precedent for an offence under Sections 467
and 471 is forgery. The condition precedent for forgery is making
a false document (or false electronic record or part thereof). This
case does not relate to any false electronic record. Therefore, the
question is whether the first accused, in executing and registering E
the two sale deeds purporting to sell a property (even if it is
assumed that it did not belong to him), can be said to have made
and executed false documents, in collusion with the other accused.
14. An analysis of Section 464 of the Penal Code shows that it
divides false documents into three categories: F
1. The first is where a person dishonestly or fraudulently makes
or executes a document with the intention of causing it to be
believed that such document was made or executed by some other
person, or by the authority of some other person, by whom or by
whose authority he knows it was not made or executed. G
2. The second is where a person dishonestly or fraudulently, by
cancellation or otherwise, alters a document in any material part,
without lawful authority, after it has been made or executed by
either himself or any other person.
H
1124 SUPREME COURT REPORTS [2020] 10 S.C.R.
A 3. The third is where a person dishonestly or fraudulently causes
any person to sign, execute or alter a document knowing that
such person could not by reason of (a) unsoundness of mind; or
(b) intoxication; or (c) deception practised upon him, know the
contents of the document or the nature of the alteration.
B In short, a person is said to have made a “false document”, if (i)
he made or executed a document claiming to be someone else or
authorised by someone else; or (ii) he altered or tampered a
document; or (iii) he obtained a document by practising deception,
or from a person not in control of his senses.
C 15. The sale deeds executed by the first appellant, clearly and
obviously do not fall under the second and third categories of
“false documents”. It therefore remains to be seen whether the
claim of the complainant that the execution of sale deeds by the
first accused, who was in no way connected with the land,
amounted to committing forgery of the documents with the
D intention of taking possession of the complainant’s land (and that
Accused 2 to 5 as the purchaser, witness, scribe and stamp vendor,
colluded with the first accused in execution and registration of the
said sale deeds) would bring the case under the first category.
16. There is a fundamental difference between a person executing
E a sale deed claiming that the property conveyed is his property,
and a person executing a sale deed by impersonating the owner
or falsely claiming to be authorised or empowered by the owner,
to execute the deed on owner’s behalf. When a person executes
a document conveying a property describing it as his, there are
F two possibilities. The first is that he bona fide believes that the
property actually belongs to him. The second is that he may be
dishonestly or fraudulently claiming it to be his even though he
knows that it is not his property. But to fall under first category of
“false documents”, it is not sufficient that a document has been
made or executed dishonestly or fraudulently. There is a further
G requirement that it should have been made with the intention of
causing it to be believed that such document was made or executed
by, or by the authority of a person, by whom or by whose authority
he knows that it was not made or executed.
17. When a document is executed by a person claiming a property
H which is not his, he is not claiming that he is someone else nor is
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1125
PRASAD VASSUDEV KENI [R. F. NARIMAN, J.]
he claiming that he is authorised by someone else. Therefore, A
execution of such document (purporting to convey some property
of which he is not the owner) is not execution of a false document
as defined under Section 464 of the Code. If what is executed is
not a false document, there is no forgery. If there is no forgery,
then neither Section 467 nor Section 471 of the Code are
B
attracted.”
50. In Mir Nagvi Askari v. CBI (2009) 15 SCC 643, vouchers
that were made dishonestly by employees of a bank to profit a co-accused
were held not to be “false documents” within the meaning of Section
464 of the IPC, as they were not made with the intention of causing it to
be believed that the vouchers were made by or under the authority of C
somebody else.The facts necessary to attract Sections 463 and 464 of
the IPC were set out by this Court in paragraph 3 as follows:
“3. Accused 1, 2, 4 and 5 in their capacity as public servants,
were working in Fort Branch of Andhra Bank. They were charged
with abuse of their position and acting dishonestly and fraudulently, D
as a result whereof undue pecuniary advantage is said to have
been procured by Accused 3 by way of crediting banker’s cheques
without them having been presented or sent for clearance and,
thus, cheating Andhra Bank and dishonestly permitting substantial
withdrawals from his current account by Accused 3. They are E
said to have prepared false documents and used them as genuine
ones, with the intention to defraud and falsify entries in the books
of accounts of the Bank. They are also charged with entering into
the criminal conspiracy, as they, having been entrusted with the
property of Andhra Bank, prepared credit and debit vouchers in
favour of Accused 3, authorising credit of amounts of various F
cheques to the account of Accused 3 without having actually
received any banker’s cheques.”
51. This Court, however, held that Section 464 of the IPC was not
attracted, as follows:
G
“164. A person is said to make a false document or record if he
satisfies one of the three conditions as noticed hereinbefore and
provided for under the said section. The first condition being that
the document has been falsified with the intention of causing it to
be believed that such document has been made by a person, by
whom the person falsifying the document knows that it was not H
1126 SUPREME COURT REPORTS [2020] 10 S.C.R.
A made. Clearly the documents in question in the present case, even
if it be assumed to have been made dishonestly or fraudulently,
had not been made with the intention of causing it to be believed
that they were made by or under the authority of someone else.
The second criterion of the section deals with a case where a
person without lawful authority alters a document after it has been
B
made. There has been no allegation of alteration of the voucher in
question after they have been made. Therefore, in our opinion the
second criterion of the said section is also not applicable to the
present case. The third and final condition of Section 464 deals
with a document, signed by a person who due to his mental capacity
C does not know the contents of the documents which were made
i.e. because of intoxication or unsoundness of mind, etc. Such is
also not the case before us. Indisputably therefore the accused
before us could not have been convicted with the making of a
false document.
D 165. The learned Special Judge, therefore, in our opinion, erred
in holding that the accused had prepared a false document, which
clearly, having regard to the provisions of the law, could not have
been done.
166. Further, the offence of forgery deals with making of a false
E document with the specific intentions enumerated therein. The
said section has been reproduced below.
“463. Forgery.—Whoever makes any false documents or false
electronic record or part of a document or electronic record, with
intent to cause damage or injury, to the public or to any person, or
F to support any claim or title, or to cause any person to part with
property, or to enter into any express or implied contract, or with
intent to commit fraud or that fraud may be committed, commits
forgery.”
However, since we have already held that the commission of the
G said offence has not been convincingly established, the accused
could not have been convicted for the offence of forgery. The
definition of “false document” is a part of the definition of “forgery”.
Both must be read together. [Vimla (Dr.) v. Delhi Admn. [AIR
1963 SC 1572] Accordingly, the accused could not have been
tried for offence under Section 467 which deals with forgery of
H
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1127
PRASAD VASSUDEV KENI [R. F. NARIMAN, J.]
valuable securities, will, etc. or Section 471 i.e. using as genuine a A
forged document or Section 477-A i.e. falsification of accounts.
The conviction of the accused for the said offences is accordingly
set aside.”
52. It is thus clear that even if we are to put aside all the averments
made in the two complaints (which clearly attract the provisions of B
Sections 191 and 192 of the Penal Code), and were to concentrate only
on the debit notes that are said to have been “created” by the
Respondents, it is clear that the debit notes were not “false documents”
under Section 464 of the IPC, inasmuch they had not been made with
the intention of causing it to be believed that they were made by or
under the authority of some other person.Since this basic ingredient of C
forgery itself is not made out, none of the sections that are sought to be
relied upon in Chapter XVIII of the IPC can thus be said to be even
prima facie attracted in the facts of this case.
53. It now remains to deal with some of the other submissions of
Shri Mishra. The submission of Shri Mishra challenging the finding of D
the High Court that the Appellants did not file any proceedings under
Section 482 of the CrPC to make a grievance that the complaint discloses
other offences also, and that the Magistrate ought to have issued process
for the same, has no legs to stand on. Whether a High Court acts suo
motu under Section 482 of the CrPC is for the High Court to decide, E
being a discretion vested in the High Court to be exercised on the facts
of the case. As we have seen, the facts of this case clearly show that
the two complaints dated 11.08.2009 correctly invoked Section 195 read
with Section 340 of the CrPC, and were thensought to be converted into
private complaints, thereby attempting to fit a square peg in a round role.
This has correctly been interdicted by the Sessions Court in revision, F
and by the High Court judgment under appeal.
54. Shri Mishra then argued that Surjit Singh (supra) had been
relied upon by the High Court, which judgment was overruled in Iqbal
Singh Marwah (supra).Though this is correct, the reasoning that Iqbal
Singh Marwah (supra) is not applicable to the facts of the present G
case, to which the provisions of Section 195(1)(b)(ii) of the CrPC do not
apply, is a finding made by the High Court in the impugned judgment
which is unexceptional. For this reason also, incorrect reliance based on
Surjit Singh (supra) would not avail the Appellants in the present case.
H
1128 SUPREME COURT REPORTS [2020] 10 S.C.R.
A 55. Shri Mishra then relied upon Ram Dhan v. State of U.P. &
Anr. (2012) 5 SCC 536.In this case, the real ratio of the case can be
found in paragraphs 6 to 8, in which this Court held:
“6. We find no merit in the petition. After investigation, charge-
sheet has been filed against the petitioner and others under Sections
B 177, 181, 182 and 195 IPC. The petitioner has suppressed the
material fact and has not disclosed anywhere in this petition that
he had approached the High Court under Section 482 CrPC for
quashing of the charge-sheet, which stood rejected vide order
dated 3-2-2010 [Ram Dhan v. State of U.P., Application under
Section 482 No. 3310 of 2010, order dated 3-2-2010 (All)] and
C the said order attained finality as has not been challenged any
further. Thus, he is guilty of suppressing the material fact which
makes the petition liable to be dismissed only on this sole ground.
7. We are of the view that it was necessary for the petitioner to
disclose such a relevant fact. The learned Chief Judicial Magistrate
D while deciding the application under Section 239 CrPC has made
reference to the said order of the High Court dated 3-2-2010. We
had been deprived of the opportunity to scrutinise the charge-
sheet as well as the order of the High Court dated 3-2-2010 and
to ascertain as to whether the grievance of the petitioner in respect
E of the application of the provisions of Section 195 read with Section
340 CrPC had been raised in that petition and as to whether even
if such plea has not been taken whether the petitioner can be
permitted to raise such a plea subsequently.
8. In such a fact situation, the courts below may be right to the
extent that the question of discharge under Section 239 CrPC
F
was totally unwarranted in view of the order passed by the High
Court on 3-2-2010. For the reasons best known to the petitioner,
neither the copy of the charge-sheet nor of the order dated 3-2-
2010 passed by the High Court have been placed on record.”
56. However, the Court goes on to state:
G
“9. Be that as it may, the charge-sheet has been filed under
Sections 177, 181, 182, 195 and 420 IPC. Section 177 IPC deals
with an offence furnishing false information. Section 181 IPC
deals with false statement on oath. Section 182 IPC deals with
false information with intent to cause public servant to use his
H
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1129
PRASAD VASSUDEV KENI [R. F. NARIMAN, J.]
lawful power to the injury of another person. Section 195 IPC A
deals with giving or fabricating false evidence with intent to
procure conviction of offence punishable with imprisonment for
life or imprisonment.
10. At least the provisions of Sections 177 and 182 deal with the
cases totally outside the court. Therefore, the question of attracting B
the provisions of Sections 195 and 340 CrPC does not arise. Section
195 IPC makes the fabrication of false evidence punishable. It is
not necessary that the fabrication of false evidence takes place
only inside the court as it can also be fabricated outside the court
though has been used in the court. Therefore, it may also not
attract the provisions of Section 195 CrPC. (See SachidaNand C
Singh v. State of Bihar [(1998) 2 SCC 493])
11. Mr Ashok Kumar Sharma, learned counsel appearing for the
petitioner, has placed a very heavy reliance on the judgment of
this Court in Abdul Rehman v. K.M. Anees-Ul-Haq [(2011) 10
SCC 696]. However, it is evident from the judgment relied upon D
that the judgment in SachidaNand Singh, which is of a larger
Bench, has not been brought to the notice of the Court. (See
also Balasubramaniam v. State [(2002) 7 SCC 649])
12. The petitioner is guilty of suppressing the material fact.
Admittedly, filing of successive petitions before the court amounts E
to abuse of the process of the court. Thus, we are not inclined to
examine the issue any further.
13. Considering the composite nature of the offences, we do not
see any cogent reason to interfere with the impugned order. The
petition lacks merit and is, accordingly, dismissed.” F
57. From this case it is impossible to cull out a ratio that insofar as
an offence under Section 195 IPC is concerned, the provisions of Section
195 CrPC would not be attracted. The Court’s mind was on suppression
of material facts, as a result of which, after making the statement made
in paragraph 10, the Court then went on to state in paragraph 12 that G
they were not inclined to examine the issue any further in view of
suppression of material facts, and the filing of successive petitions before
the Court which amounts to abuse of process of the Court. One sentence
torn out of context cannot possibly avail the Appellant, given the detailed
discussion in today’s judgment, after considering all relevant authorities.
This judgment also, therefore, does not carry the matter any further. H
1130 SUPREME COURT REPORTS [2020] 10 S.C.R.
A 58. Shri Mishra, as an alternative argument,then stated that it was
always open for the Magistrate or Court to waive an irregularity once a
Magistrate assumes jurisdiction under Section 190(1)(a) of the CrPC
even wrongly, and for this purpose, he referred to Section 460(e) of the
CrPC. This provision is only attracted if a Magistrate,”not empowered”
by law to take cognizance of an offence under clause (a) of Section
B
190(1) of the CrPC, takes such cognizance erroneously, but in good
faith. The “empowerment” spoke of is the jurisdiction of the Magistrate
to proceed with the complaint. Section 460 of the CrPC cannot, and
does not, apply to cases in which Section 195 of the CrPC is involved
inasmuchas Section 195 of the CrPC is an exception to Section 190 of
C the CrPC, and is an absolute bar to taking cognizance of the offences
mentioned therein, unless the drill followed in Section 340 of the CrPC is
observed. “Empowerment” obviously does not refer to a mandatory
provision in the nature of a statutory bar to taking cognizance.This
argument also has no legs to stand on, and is therefore rejected.So also
the further argument that proceedings may be allowed to continue before
D
the Magistrate, who can then frame charges based on the “forgery”
sections of the IPC – we have held that the complaints read as a whole
do not make out a case under Section 463 and 464 of the IPC, but
instead clearly attract the provisions of 191 and 192 of the IPC.For
these reasons also, this submission must needs be rejected.
E 59. As has been mentioned hereinabove, the concerned Judicial
Magistrate by his order dated 13.10.2011 converted the two complaints
into private complaints and then issued process under sections 191, 192
and 193 of the IPC. This judgment has been set aside in revision by the
learned Additional Sessions Judge in his judgment dated 05.03.2013, in
F which the learned Judge held:
“ORDER
The revision petitions are allowed. The impugned orders of
issuing process against the petitioners/original accused are
quashed and setaside.
G
The petitioners/accused in Criminal Revision Application No.
17/2012, 18/2012 and 20/2012 stand discharged, of offence
punishable under section 193 read with 191 of Indian Penal
Code and the petitioners/accused in Criminal Revision
Application No. 16/2012 A. and 19/2012 stand discharged of
H
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1131
PRASAD VASSUDEV KENI [R. F. NARIMAN, J.]
an offence punishable under sections 193 read with 192 of A
Indian Penal Code and are hereby set at liberty. Both the
complaint 81/P/09 and 82/P/09 stand dismissed.”
60. Writ petitions that were filed against this order have been
dismissed by the impugned judgment. It seems to us that the baby and
the bath-water have both been thrown out together. While it is correct to B
say that the order of conversion and issuing of process thereafter on a
private complaint may not be correct, yet the two complaints as originally
filed can still be pursued. Once the Magistrate’s order had been set
aside, the learned Additional Sessions Judge ought to have relegated the
parties to the position before the original complaints had been converted
into private complaints. Since this has not been done, we find that Shri C
Mishra is right in stating that even though allegedly serious offences
have been made out under Sections 191 and 192 of the IPC, yet the
complaints themselves have now been quashed. We, therefore, reinstate
the two complaints in their original form so that they may be proceeded
with further, following the drill of Sections 195 and 340 of theCrPC. D
61. The appeals filed are disposed of accordingly.
Ankit Gyan Appeals disposed of.
E
F
G
H
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