Pegasus Computers vs State
2014 Latest Caselaw 3883 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of decision: 25th August, 2014

+       CRL. M.C. No.1181/2013


PEGASUS COMPUTERS                                        ..... Petitioner

                             Through:      Mr. Rajat Aneja with Ms. Arohi
                                           Holani, Advocates.

                             versus

STATE                                                    .....Respondent

                             Through:      Mr. Yogesh Verma, APP for the
                                           State with Inspector Harpal
                                           Singh, P.S. Naraina.


CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH

VED PRAKASH VAISH, J. (ORAL)

1. This is a petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as „Cr.P.C.‟) assailing the order dated 25.10.2012 passed by learned Additional Sessions Judge, Dwarka Courts, Delhi whereby Criminal Revision Petition No.264/2012 filed by the petitioner was dismissed.

2. The brief facts giving rise to the present petition are that the petitioner filed a complaint for the offences under Sections 191/192/194/195/196/197/200/201/203/409 of IPC on the allegations, inter alia, that petitioner had availed a car loan from M/s. Kotak

Mahindra Primus Ltd. for purchase of a Santro LS car. The petitioner was to pay a sum of Rs.1,47,047/- (Rupees One lakh forty seven thousand forty seven only) to M/s. Charu Motors Pvt. Ltd. and Rs.2,50,000/- (Rupees Two lakhs fifty thousand) was to be paid by the finance company namely, M/s. Kotak Mahindra Primus Ltd. to M/s. Charu Motors Pvt. Ltd., on behalf of the complainant/ petitioner. The amount of Rs.2,50,000/- (Rupees Two lakhs fifty thousand only) was to be repaid in 48 equal monthly instalments by the petitioner. The petitioner issued 48 blank post-dated cheques towards the repayment of the said loan. The first instalment was fraudulently encashed by M/s. Kotak Mahindra Primus Ltd. on 27.01.2001 instead of due date i.e. 15.03.2001. The financer abruptly terminated the agreement just 18 days after the encashment of the first EMI and the said Santro car was forcibly reprocessed by the officials of the financer. On 29.05.2001, the petitioner lodged a complaint registered at P.S. Naraina for the offence under Section 379 IPC but no action was taken by the police. The petitioner filed W.P. (Crl.) No.856/2003 seeking investigation by some other independent agency as the police was not conducting fair and proper investigation. The SHO of Police Station, Naraina filed a status report stating that since the petitioner had defaulted in making payment of financer, the vehicle was repossessed and accordingly, a cancellation report dated 20.08.2002 was filed. The said cancellation report was accepted by learned Metropolitan Magistrate. However, the complainant alleged that the report filed by the SHO is false and fabricated and is based on representation made by Mr. Amit Labru, Area Manager of M/s. Kotak Mahindra Primus Ltd.

3. The pre-summoning evidence was adduced by the petitioner. Vide order dated 27.04.2012 learned Metropolitan Magistrate, Dwarka Courts, Delhi dismissed the complaint on the ground that the letters sent by Mr. Amit Labru, Area Manager of the financer company to the SHO is not „evidence‟ within the meaning of Section 3 of the Indian Evidence Act and the offence under Sections 191/192/194/195 of IPC pertains to the offence of perjury and giving „false evidence‟ were not made out and secondly, the complaint filed in the year 2010 was beyond the period of limitation as prescribed under Section 468 of Cr.P.C.

4. The petitioner preferred a Criminal Revision No.264/2012 against the order dated 27.4.2012. Vide impugned order dated 25.10.2012 passed by learned Additional Sessions Judge, Dwarka Courts, Delhi the revision petition was dismissed. Learned Additional Sessions Judge, Dwarka Courts, Delhi was in disagreement with learned Magistrate on both the counts. However, the revision petition was dismissed on the ground that the offence had been committed in relation to the proceedings before this Court in the criminal writ petition filed by the petitioner and, therefore, a private complaint is barred under Section 195(1)(b)(i) of the Cr.P.C. and the Magistrate could not have taken the cognizance of the offence.

5. Feeling aggrieved by the impugned order dated 25.10.2012, the petitioner has preferred the present petition.

6. Learned counsel for the petitioner urges that the bar engrafted in Section 195(1)(b)(i) of Cr.P.C. is not an embargo to learned Metropolitan Magistrate for taking cognizance where the offence

committed with respect to a document prior to the same being filed in the Court. Accordingly, learned counsel for the petitioner submits that bar under Section 195(1)(b)(ii) of Cr.P.C. is attracted only when the offence with regard to questioned document are committed after it has been produced or filed in the Court. In support of his submission, learned counsel for the petitioner has relied on judgment in the case of „Sachida Nand Singh vs. State of Bihar‟, (1998) 2 SCC 493.

7. The short question involved in the present case is whether the bar occur in clause (b)(ii) of sub-section (1) of Section 195 of Cr.P.C. is applicable or not?

8. At this juncture it is relevant to reproduce the provisions of Section 195(1) of Cr.P.C.:

"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences 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, attempt to commit, such offence, or

(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;

(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 committee in, or in relation to, any proceeding in any Court, or

(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

(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, or of some other Court to which that Court is subordinate."

9. A perusal of clause (b)(ii) of sub-section (1) of Section 195 of Cr.P.C. goes to show that there can be two interpretations. Firstly, an offence described in Section 463, or punishable under Section 471, Section 475 or Section 476 of IPC is alleged to have been committed in respect of a document, which is subsequently produced or given in evidence in a proceeding in any Court, a complaint by the Court would be necessary. Secondly, when a document has been produced or given in evidence in a proceeding in any Court and thereafter an offence described as aforesaid is committed in respect thereof, a complaint by the Court would be necessary. If the second interpretation is accepted, the offence as described in the Section is committed prior to production or giving in evidence of the document in Court, no complaint by Court would be necessary and a private complaint would be maintainable.

10. In Sachida Nand Singh's case (supra) relied upon by learned counsel for the petitioner, the Hon‟ble Supreme Court of India after considering the relevant provisions and various judgments, observed as under:

"11. The scope of the preliminary enquiry envisaged in section 340(1) of the Code is to ascertain whether any offence affecting administration of justice has been committed in respect of a document produced in court or given in evidence in a proceeding in that Court. In other words the offence should have been committed during the time when the document was in custodial egis.

12. It would be strained thinking that any offence involving forgery of a document if committed far outside the precincts of the Court and long before its production in the Court, could also be treated as one affecting administration of justice merely because that document later on reached the Court records.

xxxxx xxxxxxx xxxxxxx

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 committee before the document was produced in a Court."

11. The controversy is no more res integra in view of judgment of five Judges Bench of the Hon‟ble Supreme Court of India in „Iqbal Singh Marwah and Anr. vs. Meenakshi Marwah and Anr.‟, (2005) 4 SCC 370, wherein it was observed as under:

"20. An enlarged interpretation to Section 195(1)(b)(ii), whereby the bar created by the said provision would also operate where after commission of an act of forgery the

document is subsequently produced in Court, is capable of great misuse. As pointed out in Sachida Nand Singh, after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution, either at the instance of a private party or the police until the Court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would be highly detrimental to the interest of society at large."

12. Applying the aforesaid law in Iqbal Singh Marwah's case (supra) the bar under Section 195 is not applicable to the facts of the present case.

13. In the light of the aforesaid discussion, the matter is remanded back to learned Additional Sessions Judge with the direction to decide the Criminal Revision on merits. The petitioner is directed to appear before learned Additional Sessions Judge, Dwarka Courts, Delhi on 15.09.2014.

14. The petition stands disposed of accordingly.

(VED PRAKASH VAISH) JUDGE AUGUST 25th, 2014 hs