. GOPALAKRISHNA MENON AND ANOTHER v..
\
*D. RAJA REDDY AND ANOTHER September 5, 1983 - [D. A. Desai AND RANGANATH Misra, JJ.]
Code of Criminal Procedure, 1973—S. 195(1)(b)(ii)—Scope of—In absence of complaint from appropriate civil court prosecution for offence punishable under Ss. 467 I.P.C. not sustainable.
Indian Penal Code—S. 467 read with s. 463—-Scope of—Offence punishable under, s. 467 is offence described in 8. 463.
The appellants filed a civil suit against the respondents for recovery of certain amount of money and produced som: original documents with the plaint. The first respondent filed a complaint against the appellants alleging forgery of his signature on one such document and thereby commission of offences punishable under sections 467 and 471 LP.C. The appellants objected to maintainability of the criminal action and later moved the High Court for quashing the said proceedings. The appellants contended that in the absence of complaint from the civil court the prosecution was barred in view of s. 195 (1)(b)(ii) of the Code of Criminal Procedure. The High Court dismissed the application and observed that s. 463 I.P.C, cannot be construed to include s. 467.
Allowing the appeal,
HELD; The prosecution would not be sustainable, [842 B]
Section 195(1}{b)(ii) of the Code of Criminal Procedure provides that no Court shall take cognizance of any offence described in s, 463... of the Penal Code, when such offence is alleged to have been committed in respect of a document produced ..in a proceeding in any Court...except on the complaint in writing of that Court. Section 463 of the Penal Code in a sense defines the offence of forgery and the offence which is made punishable under s. 467 is in respect of an offence described in s. 463. Once it is accepted that s. 463. -defines forgery and s. 467 punishes forgery of a particular category, the pro- viston in Ss. 195(1}(b)(ii) of the Code of Criminal Procedure would immediately be attracted and on the basis that the offence punishable under s, 467 of the Penal Code is an offence described in s. 463, in the absence of a complaint by the Court the prosecution would not be maintainable. [839 E-G, 840 1D, E, H,°841 A-B]
Patel Laljibhai Somabhai v. The State of Gujarat, {1971 Suppl. S.C.R.
834; and S. L. Goswami vy. High Court of Madhya. Pradesh at Jabalpur, {1979]
2S.C.R. 385, referred to.
&. MENON y. DR. REDDY (Ranganath Misra, J.) 837
CRIMINAL APPELLATE Jurispiction : Criminal Appeal No. ahd of 1983
Appeal by Special leave from the Judgment and Order dated the 8th November, 1982 of the Andhra Pradesh High Court in
Criminal Miscellaneous Petition No. 1936 of 1982. A. Subba Rao for the Appellant. B. Kanta Rao for the Respondent. The Judgment of the Court was delivered by
RANGANATH Misra, J. — The short question arising in this appeal by-special leave is whether in the absence of necessary complaint by the Civil Court where a money receipt alleged to have been forged was produced, prosecution for offences punishable under sections 467 and 471 read with s. 34 of the Indian Penal Code would be maintainable. The accused are the appellants and they challange the dismissal of their application under section 482 of the Code of Criminal Procedure (‘Code’ for short) by the High Court of Andhra Pradesh.
The appellants are father and son respectively. They took a printing press from the Ist respondent in terms of an ‘agreenient dated December 3, 1980, with a view’to carrying on the printing business. The agreement stipulated that ‘the appellants would have to deposit Rs. 20,000 with the'Ist respondent and pay Rs. 500 p.m. as also 50% of the net profits ‘to Ist respondent. Dispute arose between the parties over the compliance of the terms of the agreement whereupon the Ist respondent filed against the appellants O.S. No. 609/81 for mandatory injunction and O.S. No. 1140/81 for recovery of damages. Appellants filed O.S. No. 358/81 for refund of Rs. 20,000 claimed to have been deposited with 1st respondent and for recovery of Rs. 8638 on the footing that the same had been paid to st respondent by cheques’ and in cash. Along with their plaint appellants produced the original contract as also the money reéceipt .
for Rs. 20,000 in support of the claim in the suit. After production of the money receipt in Court, Ist respondent filed a complaint - , against the appellants alleging forgery of his signature on the money - receipt and thereby commission of offences punishable under sections 467 and 471, LP.C. On receiving summonses from the Court, the appellants objected to maintainability of the criminal action and ik aq
838 _ SUPREME COURT REPORTS _ (1983) 3 S.G.R, later moved the High Court of Andhra Pradesh for quashing the said proceedings by contending that in the absence of complaint from the Court the prosecution was barred in view of s. 195 (1) (b) (ii) of the Code. In support of this contention reliance was placed on s. 340 of the Code. The High Court referred to the provisions of ss. 463, 465, 467, 471 and 474 of the Penal Code and observed :
“From the above provisions, it is quite manifest that _the offence which is mentioned in the complaint carries greater punishment, namely, 10 years imprisonment, . whereas under s. 463, LP.C. the punishment is infinitely lesser than the one under s. 467, namely 2 years of fine or both. That apart, in a-case reported in 1979 Crl. L.R. at 228, it has been held by the Gujarat High Court that the offences laid down under ss. 474 and 471, LP.C. are distinct. In that case it was contended that a complaint by Ato police under s. 474 that B was in possession of forged documents with intention to use them in Court proceedings and thereafter B producing documents'in Court and thereby committing offence . under s, 471 did not wipe out the offence under s. 474, The High Court held under these circumstances that the Magistrate can proceed with case under s. 474 against B grounding the reason that s. 195 (1) (b) (ii) is not attracted, .
The penal provisions as it is fairly settled ought to be interpreted very strictly and therefore on the foregoing analysis I have no hesitation in holding that s. 463 cannot be construed to include s. 467 as well and, therefore, certainly it is competent for the Magistrate to take cognizance of and try the same as it is needless to follow the case. Hence the contention on the basis of the provisions ins. 340 of the Code of Criminal Procedure fails and the same is rejected”.
There ‘is no dispute that the alleged forged document was © produced in the sait brought by the appellants, Section 340 of the . Code provides :
' “340. (1) When, upon an application made to ‘it in. this behalf or otherwise, any Court is of opinion that ‘it is expedient -in the interest of justice that an inquiry
G. MENON y. D.R. REDDY (Ranganath Misra, J.) 839
-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 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 i in custody to such Magistrate; and
(e) bind over. any person to appear ahd give _ evinence before such Magistrate’
4 aot Me
The relevant part. of s. 195 referred to ins. 340 of the Code’ ‘reads thus:
“195, (1) No Court shall take cognizance _—
(b) (ii) of any offence described in section | 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offerice is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, .... except on the complaint in writing of that Court, or of some.
- other ‘Court to which that Court is subordinate” (underlining is ours) ce -
If s. 195 (1) (b) (ii) is attracted to the facts of the present case, in the absence of a complaint in ‘writing of the Civil Court ‘where the alleged forged receipt has been produced, ‘taking of cognizance . of the offence would be bad in law and the prosecution being -not® maintainable, there would be absolutely no justification’ to harass -
. The High Court has not made any reference to s. 471 of I.P.C. while ” rejecting the submissions of the appellants apparently because s. 471
© 940 SUPREME COURT REPORTS (1983) 3 s.c.k, the appellants by allowing prosecution to have a full dressed trial. we Section 195 (1) (b) (ii) uses two different expressions : in regard to s, ,
~ 463 of the Indian Penal Code it says, “offence described”, while in . regard to ss. 471 and 475 or 476 of the I.P.C. it says, ‘punishable’. * in terms has been mentioned in the provision. So far as s. 463 is concerned, the High Court has taken the view as we have already indicated that “section 463 cannot be construed to include s. 467”. Section 463 of the I.P.C. provides :
' “463. Forgery — Whoever makes any false document or part of a document, 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 contract, or with intent to commit fraud or that fraud may be committed, commits forgery”.
It is the opening section of Chapter XVIII of the Penal Code: dealing with offences relating to documents and to property’ marks. This opening section in a sense defines the offence of forgery. Section’ 467 of the Penal Code provides : .
“467. Forgery of valuable security, will, ‘etc. — Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to y make or transfer any valuable security, or to receive the principal, interest, or dividends theteon, or to receive or deliver any money, movable propeity, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or. an acquittance of receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either S description for a term which may extend to ten years, and ‘Shall also be liable to fine’ \ * Phe purpose of our extracting the t two sections of the Penal Code is to show the offence’ which is made punishable under s. 467 of
“
G. MENON ¥. D.R. REDDY (Ranganath Misra, J.) 841 the Penal Code is in respect of an offence described in s.. 463. Once it is accepted that s. 463 defines forgery and s. 467 punishes forgery of a particular category, the provision ins. 195 (1) (b) (ii) of the Code would immediately be attracted and on the basis: that the offence punishable under s. 467 of the Penal Code is an offence . described in s. 463, in the absence of a complaint by the Court the prosecution would not be maintainable. ‘We have no doubt in our mind that the High Court took a worng view of the matter.
_ We may briefly refer to two decisions of this Court. In Patel Laljibhai Somabhai v. The State of Gujarat,2) the accused had filed a suit for recovery of certain money on the basis of a forged cheque and a private complaint had been filed before the Court of the Judicial Magistrate alleging offences under ss. 467 and 471 of the LP.C. The appellant raised an objection that in view of s. 195 (1) (c) of the Code of Criminal Proceduré cognizance of the offence could not be taken on a private complaint. The High Court upheld the order of commitment by finding that though there would be a bar for prosecution for offences punishable under ss. 467 and 471 of the I.P.C.-on a private complaint, in the facts of the case that question did not arise and this Court refused ‘to interfere, by holding that the alleged offences had been committed at a time when the accused was not a party to the civil proceeding. Not the~ conclusion but the ratio supports our view.
In S.L. Goswami vy. High Court of Madhya Pradesh at Jabbalpur,@) to which one of us was.a party, it was held that an offence under s. 466, I.P.C. was covered by clause (c) of s. 195 (1) of the Code and it came within the purview of the section as the offence under s, 463, I.P.C. is dealt ‘with in s. 466, I.P.C. Section 466, 1 P.C., it was pointed out, was an aggravated form of forgery in that the forgery should relate to a document specified in that section. Section 466, I.P.C. was, therefore, an offence as described in s. 463, I.P.C. which was committed in relation to a record or proceeding of or in a Court of justice. What was said in the aforesaid decision in regard to the offence under s. 466, I.P.C. has full application to an offence under s. 467, I.P.C. Therefore, the ratio of the last cited decision has full application to the — present case.
(1) [1971] Suppl. S.C.R. 834.” © mT (2) [1969]2S.C.R. 385. -
5 4a
84200 SUPREME COURT REPORTS [1983] 3 scr.
In view of what we have said above, the prosecution in the instant case on the basis of a private complaint and in the absence of 4 complaint from the appropriate civil court where the alleged fraudulent receipt has been produced, would not be sustainable. As we are of the view that if the prosecution is allowed to continue serious prejudice would be caused to the appellants and they would be called upon to face a trial which would not be sustainable, we allow this appeal and set aside the decision of the High Court ‘and quash the complaint case filed against the appellants.
HLS.K. ; . Appeal allowed.
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St ay