M/S Bandekar Brothers Pvt.Ltd. vs Prasad Vassudev Keni on 2 September, 2020
| DATE OF JUDGEMENT | 2 SEPTEMBER, 2020 |
| COURT | SUPREME COURT OF INDIA |
| CASE TYPE | CRIMINAL CASE |
| APPELLANT | M/S BANDEKAR BROTHERS |
| RESPONDENT | PRASAD VASSUDEV KENI |
| BENCH | ROHINTON FALI NARIMAN, NAVIN SINHA, HON’BLE MS. BANERJEE |
| REFERRED | THE PRESIDENCY SMALL CAUSE COURTS ACT,1882, THE STATE BANK OF INDIA ACT, 1955, THE INDIAN PENAL CODE- SECTION 193 IN IPC, SECTION 195 IN CRPC, 1973 |
FACTS OF THE CASE
This particular case was a criminal appeal that was decided on 2 September 2020. In this case, the Supreme Court has dealt with Section 190 Of the Criminal Procedure Code along with Section 191 And Section 192 of the Indian Penal Code of 1860 which deals with giving false evidence and fabricating false evidence respectively.
As per the facts of this case, the complainant had initially filed two complaints under Section 340 read with Section 195 of the Code of Criminal Procedure (referred to as Cr.P.C, henceforth). In the complaint, it was alleged that the accused had committed the offences of giving false evidence and fabricating false evidence which falls under Section 190 and 191 of the Indian Penal Code (referred to as IPC, henceforth). The accused are alleged to have committed forgery of debit notes and untrue entries in the financial records. Post this the complainant filed to convert such complaints into complaints of private nature placing reliance on the Iqbal case. The Judicial Magistrate converted the said complaint and issued process under Section 191,192 and 193 of the IPC. The Sessions Court allowed the revision petition and held that the restriction under Section 195(1)(b)(i) of the Cr.P.C is applicable and in addition to the same the
requirements under Section 340 of the Cr.P.C are to be followed compulsorily. This was challenged in the High Court through a writ petition, but it was dismissed.
As per the contentions of the complainant was that the debit notes had been fabricated and falsely produced by the respondent in a fraudulent manner to make believe that the complainants owed money to the other party. The counsel appearing on behalf of the complainant placed his authority on the Iqbal case as the forged documents were forged before the proceedings of the case. Thus the precedent is applicable, and a private complaint would hence enjoy maintainability. He also placed reliance on several other cases to prove that the case applied to Section 195(1) (b)(i) as well as Section 195 (1)(b)(ii) and stated that the High Court relied on the The Iqbal case overruled the case.
Whereas the counsel appearing on behalf of the respondents argued that the ruling under the Iqbal case applied to only Section 195 (1) (b) (ii) as concluded in the High Court also. He said 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 causing it to be believed that such debit notes were made by a person whom the person was making it knows that it was not made. Suppose the complaints are read as a whole. In that case, it will make it clear that the entirety of the complaints was in, or about, offences committed under Sections 191 and 192 of the IPC used/to be used in 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 the process only under Sections 191 to 193 of the IPC, which order remained unchallenged by the Appellants.”
Concerning Iqbal’s case, the decision was that the cases which fell under the ambit of Section 195 (1)(b)(i) of the CrPC, the document that is alleged to be forged should be custodia legis post which the forged act takes place. And if it is vice versa, a private complaint would hence then be maintainable.
The main need was to differentiate solidly between the two sections and the Court noting the same held that, “Where the facts mentioned in a complaint attract 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 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 any Court.”
“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”, 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 before the document being introduced in court 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.”
The Court pointed towards the judgement that was laid down in the Narendra Kumar Srivastava case in 2019 and stated that when the matter is related to Section 195(1)(b)(i), the decision of the Iqbal case cannot be applied and if the false evidence is produced outside the judicial premises of the Court falling under Section 191 and Section 192 of the IPC, for such matter the decision of Iqbal’s case is not made to apply for validation of a private complaint.
The Court further held that in the particular case there is the attraction of provision of Section 191 and Section 192 and no other provision. The Court concludingly held that “It seems to us 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 the process after that 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.”
The Bench has then allowed for the reinstatement of the first two complaints in its original form paving the way for it to be pursued as per Section 195 read with Section 340 of the Criminal Procedure Code.
Thus, the Court has held that private complaints against offences envisaged under Section 191 and Section 192 of the Indian Penal Code relating to giving of false evidence and fabricating of false evidence will not be maintainable when the commission of the same is about the proceeding of the court.
ARGUMENTS:
BY PETITIONER:
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 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 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 refer to several decisions of this Court.
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):
In Dr. S. Dutt v. State of Uttar Pradesh (1966) 1 SCR 493, the question arose in the context of an expert witness (i.e. the Appellant before the Supreme Court) who produced a diploma before the Sessions 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 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 “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:
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 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) “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 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 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 is necessary and it is obvious that the lesser offence was chosen 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.” (at pages 503-504)
Likewise, in a recent judgment in Narendra Kumar Srivastava v. State of Bihar and 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 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 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 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)].
On 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 of false evidence and offences against public justice, whereas, the second category of offences related to offences in respect of a document produced or given in evidence in a proceeding in any court.
ARGUMENT BY RESPONDENT:
Shri Yogesh Nadkarni, learned counsel appearing on behalf of 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 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 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 to the complaints, which were correctly filed under Section 195 read with Section 340 of the CrPC. He contended that the counter-affidavit that was relied upon by the Appellants to the Respondent’s revision applications was 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 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 the 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 (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.
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 this behalf under sub-section (2), may take cognizance of any offence—
(a) upon receiving a complaint of facts which constitute such offence;
(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 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 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
(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 committed 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.
(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 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 Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that 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 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 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 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 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, 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;
(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
(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 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 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 on this behalf.
(4) In this section, “Court” has the same meaning as in section 195.
JUDGEMENT
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 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 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 the CrPC.
REFERENCE
https://indiankanoon.org/doc/141105348/
https://main.sci.gov.in/supremecourt/2014/6205/6205_2014_33_1501_23716_Judgement_02- Sep-2020.pdf
written by SANJANA TOMAR intern under legal vidhiya.
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