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TMI Blog2020 (4) TMI 838X X X X Extracts X X X X X X X X Extracts X X X X ..... ce the matter was pending before such tribunal. Though in the notice issued to the petitioner with regard to the action taken on the complaint, the respondent authorities did not specifically refer to the provisions of Section 195 of the Cr.P.C., the purport of the said communication can clearly be inferred, whereby the respondent authorities wanted a complaint to be made by the concerned court under Section 340 of Cr.P.C., since, the document is already filed into the court. The restriction placed under Section 195 of the code is applicable only when a court is required to take notice judicially of the act of offence complained and the investigation thereinto by the police authorities. Thus, this court is of the view that the respondent police authorities ought to have registered an FIR on the basis of the complaint made by the petitioner and take up investigation in the matter as specified under Section 156 of the Code, instead of issuing notice claiming that a civil dispute is pending before NCLT and directing the petitioner to approach NCLT for redressal. Though this court having come to the conclusion that the respondent police authorities ought to have registered an FIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the purchase orders placed in respect of the goods supplied by the said respondent promptly and closed the account of the 5th respondent. ii) It is claimed by the petitioner that some disputes arose over the quality of certain goods supplied by the 5th respondent which the petitioner did not accept and the last payment in respect of the admitted amounts due and payable was made by the petitioner on 27.05.2015. iii) It is the case of the petitioner that the 5th respondent after more than three years from the date of last payment sent a demand notice dated 13.05.2019 under Section 8 of the Insolvency and Bankruptcy Code (in short IBC) claiming an amount of ₹ 2,07,03,712/- including interest up to 10.05.2019 as due and payable by the petitioner to the said respondent. It is also claimed that in response to the said notice, the petitioner company promptly sent its reply on 21.05.2019 categorically stating that the alleged claim of the 5th respondent was hopelessly barred by limitation in the light of the various judicial pronouncements of the Hon ble Supreme Court with regard to applicability of the provisions of the Limitation Act, 1963 to the proceedings under IBC. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction from the Honourable NCLT to lodge an FIR and investigate further. viii) It is also claimed that despite the petitioner company lodging a complaint with the 4th respondent by email dated 03.09.2019, the 4th respondent authority did not register the FIR based on the complaint made by the petitioner company, while the company petition filed by the 5th respondent is being proceeded with by the NCLT and hence, the petitioner is constrained to approach this Hon ble court seeking a direction to the 4th respondent authority to register the complaint made by the petitioner company as the same discloses an offence of cognizable nature such as forgery, fraud and cheating committed by the 5th respondent. It is also claimed that the insistence of the 4th respondent to get a direction from Hon ble NCLT to investigate is totally unwarranted. 3. Counter affidavit on behalf of 3rd respondent who is working as inspector of police of the 4th respondent police station is filed and placed on record. The case of the respondent as stated in the counter affidavit is that the petitioner had lodged a complaint dated 29.10.2019 with the 4th respondent wherein it is claimed that the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in exercise of jurisdiction under Article 226 of the Constitution of India can direct the official respondents to register an FIR on the basis of the complaint made by the petitioner. 7. Though elaborate arguments were advanced by both the learned counsel for the petitioner as well as on behalf of the official respondents as to whether the action of the 4th respondent in directing the petitioner to approach the NCLT for the redressal of the complaint is justified or not. It is submitted by the learned counsel to the petitioner that the understanding of the respondent authority with regard to the application of the provisions of Section 195 of CRPC is clearly misplaced for the reason that the said provision would be applicable only if an offence is committed after a case is filed into the court. Since the case of the petitioner is that the 5th respondent had resorted to forgery in order to file a case against the petitioner, the said provision has no application. Learned counsel for the petitioner would submit that the provisions of Section 195 of CRPC would get attracted when an act of forgery takes place while the document is in the custody of the court i.e., custodia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e forum to avail the remedies in accordance with law against the said action of the official respondent u/s. 340 of Cr. P.C. and the High Court cannot direct registration of an FIR based on the complaint so made under Article 226 of the Constitution of India. In support of the above submission, learned Government Pleader placed reliance on the judgement of the Hon ble Supreme Court in the case of Sakiri Vasu V. State of U.P. (2008) 2 SCC 409. 9. Having regard to the submissions made on either side, it is to be seen that the scope and application of Section 195 of Cr.P.C. is no longer resintegra. In the case of Iqbal Singh Marwah (Supra), the constitution bench of the Hon ble Supreme Court has explained in detail the scope of Section 195(1)(b)(ii) of Cr.P.C. after taking note of divergent views expressed in the earlier judgments of the Supreme Court in the case of Surjit Singh V. Balbir Singh (1996) 3 SCC 533 and Sachida Nand Singh V. State of Bihar (Supra). The Hon ble Supreme Court on due consideration of the scheme of the Act, the statutory provision of Section 195 Cr.P.C and clauses (a), (b)(i) and b(ii) thereunder, in para 10 of the judgement observed thus This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on may be delayed indefinitely. Such an interpretation would he highly detrimental to the interest of society at large. 26. Judicial notice can be taken of the fact that the Courts are normally reluctant to direct filing of a criminal complaint and such a course is rarely adopted. It will not be fair and proper to give an interpretation which leads to a situation where a person alleged to have committed an offence of the type enumerated in clause (b)(ii) is either not placed for trial on account of non-filing of a complaint or if a complaint is filed, the same does not come to its logical end. Judging from such an angle will be in consonance with the principle that an unworkable or impracticable result should be avoided. In Statutory Interpretation Therefore, in order that a victim of a crime of forgery, namely, the person aggrieved is able to exercise his right conferred by law to initiate prosecution of the offender, it is necessary to place a restrictive interpretation on clause (b)(ii). 11. From a reading of the above, it would be clear that if an act of forgery is resorted to and using such forged document a proceeding is laid in any court, the provisions of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclusion that the complaint so made does not disclose commission of any cognizable offence. The reason as stated in the said notice is that the preliminary inquiry revealed there is a civil dispute pending between parties before the NCLT, as such the party is directed to approach the NCLT for redressal. The reason as stated in the notice can not be said to be valid and justiciable, since the main grievance of the petitioner in the complaint made is relating to the sign and stamp affixed in its name on the Ledger A/c statement being forged one and having come from the custody of the 5th respondent, and the complaint made clearly discloses a cognizable offence falling under Section 463 of Cr.P.C. having been committed. 15. The other submission of the learned counsel for the petitioner is that, having regard to the language used in Section 195 of Cr.P.C., the restriction of an offence committed not being taken cognizance of is applicable only to the courts and does not in any way circumscribe the power of police to investigate into the complaint and thus the respondent police authorities could not have shirked their responsibility to register an FIR on the basis of the complaint ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Sections 419, 420, 467 and 468, I. P. C. by them in course of the proceeding of a civil suit, on the ground that Section 195(1)(b)(ii), Cr. P. C. prohibited entertainment of and investigation into the same by the police. From a plain reading of Section 195, Cr. P. C. it is manifest that it comes into operation at the stage when the Court intends to take cognizance of an offence under Section 190(1), Cr. P. C; and it has nothing to do with the statutory power of the police to investigate into an FIR which discloses a cognizable offence, in accordance with Chapter XII of the Code even if the offence is alleged to have been committed in, or in relation to, any proceedings in Court. In other words, the statutory power of the police to investigate under the Code is not in any way controlled or circumscribed by Section 195, Cr. P. C. It is of course true that upon the charge-sheet (challan), if any, filed on completion of the investigation into such an offence the Court would not be competent to take cognizance thereof in view of the embargo of Section 195(1)(b), Cr. P. C., but nothing therein deters the Court from filing a complaint for the offence on the basis of the FIR (filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter making an entry in the General Diary, it is always open for the petitioner to approach the competent Magistrate court by filing a private complaint under Section 200 of the Code, if he is aggrieved by the said notice and get the complaint referred to the police authorities for investigation and filing a report before the concerned Magistrate under Section 156 of Code. Further, he would also submit that this court cannot direct registration of an FIR in view of the settled position of law as explained in the case of Sakiri Vasu (Supra). 21. In the case of Lalita Kumari (Supra), the Constitution Bench of the Hon ble Supreme Court, while holding that if the complaint / information discloses commission of cognizable offence, the police authorities have no option, but to register an FIR forthwith. Further in the said decision it was observed thus 104. Burking of crime leads to dilution of the rule of law in the short run; also has a very negative impact on the rule of law in the long run since people stop having respect for the rule of law. Thus, non-registration of such large number of FIRs leads to a definite lawlessness in the society. 22. However, in the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of filing a criminal complaint under Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies? In the above decision it was further observed thus It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere. 24. Having regard to the position of law as enunciated by the Hon ble Supreme Court, and having regard to the fact that a notice has been issued by the 3rd respondent, to the petitioner informing the action taken on the complaint, which may not be to the liking of petitioner, that by itself would not entail the petitioner approaching this court under Article 226 of the Constitution of India. Further, in a recent judgement rendered on 20.03.2020 in the case of M. Subramaniam and Another V. S. Janaki and Another10, the Hon ble Supreme Court, while setting aside the order of the Madurai Bench of the Madras High Court, directing the registration of FIR in a 10 Criminal Appeal No. 102 of 2011 dated 20.03.2020 writ petition filed, was pleased to refer to another ..... X X X X Extracts X X X X X X X X Extracts X X X X
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