Jagdish Chand Sharma vs State And Anr.
1991 Latest Caselaw 507 Del

JUDGMENT

S.C. Jain, J.

(1) The facts giving rise to this petition are that on the basis of a pronote and a receipt dated 11.10.1984, alleged to have been executed by one Shri Jage Ram in favor of Shri B.R. Sharma, Shri B.R. Sharma obtained ex parte decree under Order 37 Civil Procedure Code from the Court of Shri G.S. Dhakha, Addl. District Judge, Delhi on 5.9.1988 against the legal heirs of Jage Ram deceased. Shri B.R. Sharma, decree holder, sought execution of the decree and when the warrant of attachment reached the legal heirs of Jage Ram deceased, they immediately moved the Court of the Addl. District Judge by filing an application for setting aside the decree and for recalling the order passed against them. That application is pending before the Addl. District Judge. Besides taking several grounds challenging that order, it has also been alleged that the pronote and the receipt forming the basis of the suit are forged ones. Shri Balraj Arya, son of Jage Ram also filed a criminal complaint in the Court of Addl. Chief Metropolitan Magistrate against Jagdish Chander Sharma, hereinafter referred to as the petitioner, and three others for prosecuting them for the alleged forgery of the pronote and the receipt as genuine knowing fully well that these are forged documents forming the basis of the suit for recovery. That complaint was assigned to Shri Brajesh Kumar, Metropolitan Magistrate who under Section 156(3) Cr.P.C. ordered the investigation of the case and to register the case against those who were found involved in the case. On the basis of the investigation made and after obtaining the report from C.F.S.L. regarding the authenticity of the signatures on the pronote and the receipt, a case Fir 134/91 under Section 420/468/471 was registered at Police Station Malviya Nagar, which is still under investigation.

(2) Aggrieved, Jagdish Chander Sharma the present petitioner has filed this petition for quashing the Fir 134/91. Pt. R.K. Nasim, Counsel for the petitioner submitted that it is admitted case that the pronote was filed in the civil Court. The complaint of respondent No. 2 is that the said pronote is forged document which was prepared after the death of Jage Ram and after forging the same, used it before the Court of law as the genuine document to defraud and commit cheating to deprive the respondent of his money by illegal means. The proceedings in which the pronote was filed are still pending before the Addl District Judge.

(3) According to the learned Counsel, under Section 195, Cr.P.C. only that Court or its superior Court can file any complaint in this regard. Respondent No. 2 has no locus standi to file the said criminal complaint and the order of the Metropolitan Magistrate in entertaining the said complaint and passing the order under Section 156(3) is bad in law and so also the registration of the case vide Fir 134/91 and the investigation therein by the police. According to the Counsel, because of the prohibition of Section 195 Cr.P.C. the offences mentioned therein are akin and are non-cognizable and the police cannot take cognizance in respect of the Court proceedings or the forgery of the document mentioned therein. He mentioned Section 195(b)(iii) which lays down that no Court shall take cognizance of any offence described in Section 463 Indian Penal Code or punishable under Sections 471, 475 or 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 proceedings in any Court, except on the complaint In writing of that Court or of some other court to which that Court is subordinate. According to the learned Counsel, the offence under Section 463 Indian Penal Code covers an offence under Section 468 also. The object of mentioning Section 463 under Section 195 Cr.P.C. is to include all cases of foregery whatever the nature of fraudulent intention may be. According to the learned Counsel, the complaint, Fir and investigation in the present case are abuse of the process of the Court and are liable to be quashed.

(4) Section 195(1)(b)(ii) of the new Code of Criminal Procedure reads as under: "No Court shall take cognizance of any offence described in Section 463 or punishable under Sections 471, 475 or 476 of the Indian Penal 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."

(5) The purpose of the Section is to bar private prosecution where the course of justice is sought to be perverted leaving It to the Court itself to uphold its dignity and prestige. This Section postulates that the Court can file a complaint in respect of the specified offences when a document is produced or received in evidence in any proceeding in Court only. when the offence is committed after the commencement of these proceedings and not prior to it. The complaint of the Court is not necessary when the offence is committed before the commencement of the proceedings in Court. Similar view was taken by Kerala High Court in Philip v. Raphael and others, 1985 Crl. Law Journal 126. In this view the offences punishable under Section 465 and Section 467 Ipc are alleged to be committed much earlier than the filing of the suit, which was filed on 6th August, 1987. Both the forged document i.e., the pronote and the receipt form the very basis of the suit for recovery of the amount mentioned in these documents. It can not be the case that these documents were forged during the proceedings for the recovery of amount and were produced and received in evidence during the proceedings. The Court can file a complaint in respect of the specified offence when a document is produced and received in evidence in any proceeding in Court only when the offence is committed after the commencement of the proceedings. As the offence punishable under Sections 465 and 467 Indian Penal Code which are alleged to be committed before the commencement of the proceedings and offence under Section 420 Indian Penal Code does not find mention under Section 195(1)(b)(ii) Cr.P.C. so a private complaint is maintainable. Section 195(1)(b)(ii) is not attracted and the Courts intervention for the purpose is not called for. Regarding the offence under Section 471 Ipc it is only a sequester to the other offences as it apparent from the allegations in the complaint. Supreme Court in Mohan Lal and another v. The State of Rajasthan and another has held that in such circumstances if the complainant succeeds in proving the other offences It would be only academic to consider whether the learned magistrate can take cognizance of the offence under Section 471 Indian Penal Code because it is hardly likely that a separate sentence would be imposed for that offence. On the other hand if the charge in regard to the other offence fails the one in regard to Section 471 would necessarily fail in the light of facts stated in the complaint. In these circumstances the Hon'ble Supreme Court directed the Court of magistrate to proceed with the complaint on the basis that it is complaint to him to take cognizance of the offence under Section 471 Indian Penal Code also.

(6) In view of this proposition of law, this petition is dismissed. Record of the lower Court be sent back immediately.