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TMI Blog2020 (9) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the admonition laid down in an early judgment of this Court. Whether the forging of the debit notes, so strongly relied upon by Shri Mishra as being offences under Sections 463 and 464 of the IPC, can at all be said to attract the provisions of these Sections? - HELD THAT:- Even if we are to put aside all the averments made in the two complaints (which clearly attract the provisions of 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 forgery itself is not made out, none of the sections that are sought to be relied upon in Chapter XVIII of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 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 sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainable. He 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 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 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 may have been issued stating wrong sections, which would ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (2) Where it is brought to the notice of such Magistrate, or of any 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. 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 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 to be false or does not believe to be true, is said to give false evidence. Explanation 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry, 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. 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; (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 the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of document, electronic record or electronic 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 fraudulently, by cancellation or otherwise, alters a document or an electronic record i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those sections to start criminal prosecutions on frivolous, vexatious or insufficient grounds inspired by a 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 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 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. The offences about which the court a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceed to deal with the case as if it were instituted on a 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 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 needs 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 ingr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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: 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 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 false statement so that a judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an 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) 16. In Baban Singh and Anr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose 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 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, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 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 abetto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the phrase material to any matter in question 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 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 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 plaintiff-licensee. Suits for protecting such possession of immovable property against the alleged illegal attempts on the part of the defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Procedure, 1973 (for short CrPC ), this appeal has been placed 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 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 (b)(ii) and they relate to (1) contempt of lawful authority of public 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 are offences which directly affect th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Code have 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 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 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 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 earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 produced in court, is capable of great misuse. As pointed out in Sachida Nand 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5(1)(b)(ii) of the CrPC, has argued that the same reasoning ought to 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 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, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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. 15. Section 195 CrPC lays down a rule to be followed by the 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 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 xxx xxx 17. Section 340 CrPC makes it clear that a prosecution under this section can be initiated only by the sanction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced in a court. Accordingly we dismiss this appeal. 23. In Sachida Nand 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 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. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence in a judicial proceedings before the Hon'ble Civil Judge 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. 36. Various particulars of fabricated documents are then given as 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 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: 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 ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Spl. Civil Suits No. 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/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 ₹ 1,88,27796/- alongwith the statements annexed thereto sent under the cover of 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 ₹ 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 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) Forged De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed No.1 on the basis of the counterclaim for ₹ 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. (iii) Forged a Debit Note dated 31 March, 2000 for an amount of ₹ 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. (iv) Forged a Debit Note dated 31 March, 2000 for the sum of ₹ 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. (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 ₹ 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 dated 04.07.2000 at EXHIBIT-J Colly herein. Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such proceedings. 16. The Accused No.2 and 4 to 10 herein respectively joined as 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 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. 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. 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: (c) send it to a M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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-ulHuq and Ors. v. State of West Bengal (1953) SCR 836, this Court cautioned (at page 846): 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 disclose primarily and essentially an offence for which a complaint of the court or of the public servant is required. In other words, 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 punishable under some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause the judge before whom the suit is filed to form an opinion that the will is a genuine 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 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. 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 not, as this case can be disposed of on the other point viz. that when the allegations amount to an offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: 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 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 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 by an order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rised or empowered by the owner to execute the deed on the owner s behalf. The Court held: 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 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: 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. 2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xecuted by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, 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 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 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, as a result whereof un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to the provisions of the law, could not have been done. 166. Further, the offence of forgery deals with making of a false 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 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 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 valuable securities, will, etc. or Section 471 i.e. using as genuine a forged document or Section 477-A i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i 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, chargesheet has been filed against the petitioner and others under Sections 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 32-2010 (All)] and 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 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 scruti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial fact. Admittedly, filing of successive petitions before the court amounts 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. 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 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. 58. Shri Mishra, as an alternative argu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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