Karnataka High Court
P.N. Parthasarthy And Others vs G.K. Srinivasa Rao on 24 February, 1995
Equivalent citations: 1995(2)ALT(CRI)560, 1995CRILJ3406, ILR1995KAR1584, 1995(3)KARLJ203
ORDER
1. The petitioners have challenged the legality and propriety of the order passed by the learned VII Addl., Chief Metropolitan Magistrate in CC No. 17311/1993 on 18-11-1993 issuing process against them for the offences under Section 467, 472, 473 IPC. Petitioners have prayed for setting aside the said order and for quashing the proceedings before the learned Magistrate.
2. Facts giving rise to the present revision petition are as under :-
The respondent filed a private complaint against the petitioners and two others under Section 200 Cr.P.C. for various offences under Sections 339, 406, 379, 467, 472, 473 and 323 IPC. The complaint was referred to the Police for investigation under Section 156(3) Cr.P.C. The Police filed B-Report. The respondent protested against the same and led evidence. On the basis of the complaint averments, respondents evidence both oral and documentary, the learned Magistrate passed the order on 18-11-1993 registering the case against the petitioners for the offences under Sections 467, 472, 473 IPC.
3. The allegations in the complaint are as under -
The respondent is a life member of Sri Lakshmi Vidyalaya registered under the Karnataka Societies Registration Act. The said society runs and Upgraded Primary School, at Kumara Park West, Bangalore and a Teacher Training Institute in Bangarpet since 1964 onwards. The object of the society is the propogation of the education. Petitioner No. 2 was the Honarary Secretary. Being aided and abetted by other petitioners she set up a hostile attitude towards the management and the management gave her option to continue either as a secretary of the institution or as paid teacher. She opted to continue as Head Mistress of Primary School and therefore she had no voice in the managing body of the society. The material allegations in the complaint are found in the paragraphs 4 and 5 and they read as under :-
"4. With sinister designs and ulterior motives and at the instigation of the other accused mentioned herein the, said second accused set up a parallel committee consisting of herself and accused No. 1, 3 to 10 and wrongfully restrained the complainant and other office bearers from entering into the premises wherein the said primary school is situated as stated above.
5. The Complainant being surprised and embarrsed, gave a complaint to the Police, Vyalikaval on 22-9-1984 to take action but actually the Police did not take any action. On the other hand, they supported the accused persons and prevented the complainant from entering his own institution. As a result, the accused persons 1 to 9 took complete control of the management of the said institution, including account books, cheque books, seals, furniture, and other property which was belonging to the said society, and which was in the said premises and operated on the Accounts of the said society, at Bangalore.
4. Paragraphs 6 and 7 of the complaint referred to installation of telephone in the school premises and its being listed in the society.
"6. To achieve their nefarious acts also they got installed a telephone bearing No. 366150 which actually stands in the name of C. S. Tara, sister of accused No. 2 which enabled them to easily contact higher-ups like Ministers, Police Officers and Officers of the Educational department and went on making false representations, and were able to achieve their desired nefarious ends through this quick communication.
7. Needless to state the said telephone No. is also found entered in the Directory as if it is installed in No. 30, V. S. Raju Road, K.P. West, Bangalore-20."
5. Paragraph 8 refers to Teachers Training Institute run at Bangarpet.
6. Paragraph 9 reads as under :-
"9. The complainant submits that number of civil suits, writ petitions and other proceedings are still pending before the various courts as well as before the Registrar of Societies."
7. Paragraph 10 of the complaint refers to the attempts of the petitioners to get their names registered as members of the society.
8. Paragraph 11 of the complaint being material is reproduced as under :-
"11. However, the said accused who earlier could not succeed as aforesaid, some-how managed to get their names filed with the Registrar of societies (Special Deputy Commissioner, District Registrar (Urban), Bangalore) along with a fake or got up balance sheet relating to the year 1986 (which earlier was not accepted by the registrar) surprisingly with their political influence and other methods the said accused were able to file a bogus balance sheet relating to the year 1987 along with the names of the members of the Governing Council, i.e., accused No. 1 to 10 and others, which have been accepted by the Registrar of societies on 1-2-1988. The balance sheet submitted along with the list of members of the complainant society relating to the year 1987 does not show the accounts relating to the TTI, at Bangarpet, as in fact, they are not managing or in possession of the same."
9. Paragraph 12 of the complaint refers to misappropriation of funds of Bangarpet Institution and the complainant states that he would take separate action in that behalf.
10. Paragraphs 13 and 15 are material and they are reproduced as under :-
"13. The accused at Bangalore have also drawn various amounts, which the society had to its credit in Vijaya Bank, Syndicate Bank and State Bank of Mysore and have misappropriated the said amount for themselves.
15. By reason of the fact that the accused have prevented or wrongfully restrained the complainant from entering the premises of the said society, misappropriation of funds of the said society relating to the primary school, and by falsification of accounts, passing fake or illegal resolutions, in the name of the complainant society by misusing the letterheads, seals of the said society, the accused have committed various offences under Section 339, wrongful restraint, misappropriation of funds under Section 406, theft of the articles belonging to the society like Mike, Typewriter, amplifier, records of registration etc., an offence under Section 379. An offence under Section 464 for falsification of accounts making false documents making a possession counter feit seals of the said society with intent to commit offence punishable under Sections 47 and 473."
11. In paragraph 16 there is a reference to the assault and manhandling of the complainant on 26-1-1986 and 19-10-1987 by petitioner No. 9.
12. In respect of the complaint averments dtd. 13-3-1989 referred to above, the respondent as P.W. 1 has given evidence before the learned Magistrate. It is found from his deposition that he is the founder and life member of the said society and was duly elected as Honrary President of Lakshmi Vidyalaya a registered society. According to P.W. 1, some of the petitioners are teachers and all the petitioners conspired and formed a parallel committee claiming themselves as Office bearers like President, Secretary and Executive Council members and opened accounts in Vijaya Bank, Sankey Road, Syndicate Bank, Seshadripuram Road, passed illegal resolutions, operated the Syndicate Bank Account in the name of Lakshmi Vidyalaya English Medium School in the State Bank of Mysore and Sir M. Vishweshwaraiah Co-operative Bank. He further stated that they drew the amount standing in the name of the complainant society from the Syndicate Bank, Seshadripuram Road and SB account in Vijaya Bank. P.W. 1 further stated that petitioners deposited the tution fee collected from the students and they also got made counterfeit seal of the Society for drawing the amount and or making correspondence with various Government departments. In his further statement recorded on 1-10-1993, the complainant respondent the petitioners had drawn the money from Vijaya Bank and also from Syndicate Bank account of the society. According to him they have misused the name of the society and had made Correspondence with Registrar and also had submitted false accounts to the registrar. He referred to 24 documents which according to him are the correspondence, resolutions, the extract of Bank accounts, the letter heads, the visiting cards and other correspondence carried on by the petitioners in the name of the society.
13. On the basis of the above material, the learned Counsel for the petitioner has contended that the entire averments in the complaint, the sworn statement of the respondent and the documents referred above by him taken at their face value did not constitute any offence much less the offence registered against petitioners and therefore according to him the proceedings required to be quashed. He referred to certain pronouncement of the Apex Court and the High Court of Punjab and Haryana in support of his contention.
14. Sri Subbarayappa, learned Counsel for the complainant contended that the petitioners not being members of the Society have falsely represented themselves to be the members and office bearers of the society and have got made letter-heads and visiting cards and seals etc. and have carried on correspondence in the name of Lakshmi Vidyalaya Society and they have operated the Bank accounts collected funds from students and have drawn the money standing in the name of the society and have misappropriated the same and have thus committed fraud on the society and are guilty of the offence alleged against them. He submitted that complainant's rights are affected and the efforts of the petitioners show dishonest claim and misappropriation of the funds of the complainant society and the process issued is based on the materials placed and duly considered by the learned Magistrate an therefore the petitioners should not be allowed to stifle the prosecution rightly commenced by the complainant. He also contends that the complainant and others are the persons in control and management of the society as decided by the Registrar of Societies as per orders passed after rejecting the contentions of the petitioners.
15. The question for consideration is whether the impugned order and the proceedings need to be quashed as prayed for in the revision petition.
16. The allegations in the complaint disclose that the grievance of the complainant is that petitioners have set up a parallel managing committee though according to him they are not the members of Lakshmi Vidyalaya and that they have taken complete control of the management of the institution including account books, cheque books, seals, furniture and other property belonging to the said society and lying in the said premises and they have operated on the Bank accounts of the society.
17. It is also evident from paragraph 9 in the complaint that number of civil suits, writ petitions and other proceedings were pending before the various Courts as well as before the Registrar of Society on the date the complaint came to be filed.
18. In the cause-title, the complainant described himself as life member and ex-President of Lakshmi Vidyalaya. From the witness-box he has stated that he is the President of Lakshmi Vidyalaya. From these complaint averments referred to and the sworn statement of the complainant, it is evident that the management of the society has been taken over by a parallel managing committee of the petitioners and that they have taken possession of all the account books, cheque books, seals, and other property belonging to the society and they were operating the Bank accounts of the said society and that they were collecting the fees and depositing the same by opening accounts in different banks, they were drawing those amounts and they also drew the amount from the accounts opened by the Lakshmi Vidyalaya in different banks. By so doing, according to the complainant, they have committed various criminal offences such as forgery, making false documents, using false documents and using counterfeit seals because they have used the letter heads of Lakshmi Vidyalaya, the seals of Lakshmi Vidyalaya the visiting cards of Lakshmi Vidyalaya etc. Copies of such correspondence, extracts of Bank Accounts, letters written by the petitioners are got produced and referred to as incriminating documents. There is no material to show as to who exactly forged the documents and the date of the alleged offence.
19. The narration of the facts shows that there were number of civil suits, writ petitions and representations pending before the Civil Courts, High Court and the Registrar of Societies for disposal and at that stage this complaint has been filed before the court of learned Chief Magistrate. The evidence given before the learned Magistrate by the complainant as P.W.1 proceeds on the basis that he and his group of persons are in the management of Lakshmi Vidyalaya and this aspect is not alleged in the complaint. The complaint averment is that the entire management of the Lakshmi Vidyalaya is taken over by the petitioners by forming a parallel managing committee. Therefore it is not for the Criminal Court to decide as to who is the competent managing body under whose control or supervision the institutions work.
19A. The offences alleged are in respect of wrongful restraint, assault, forgery, making false documents and using counterfeit seals and forged documents for committing aggravated offences of forgery.
19B. With regard to allegations of wrongful restraint, no process appears to have been issued and there is no grievance made out by either of the parties and therefore it is not necessary to go into the allegations constituting the offence of wrongful restraint. Similar is the case with regard to assault and hurt under Sec. 323, IPC. There are no specific details in respect of the time and place of committing those offences and the learned Magistrate appears to have rightly concluded in not issuing process in that behalf.
20. The major offences complained are forgery, making false documents and using counterfeit seals which are aggravated forms of forgery. Forgery is defined in Section 463, IPC as under :-
"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."
21. Making a false document is defined in Sec. 464, IPC as under :-
"464. Making a false document. - A person is said to make a false document -
First. - Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person whom or by whose authority he knows that it was not made, signed, sealed, or executed, or at a time at which he knows that it was not made, signed, sealed or executed; or Secondly. - Who, without lawful authority, dishonestly, or fraudulently, by cancellation or otherwise, alters a document in any material part thereof, after it has been made or executed either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly. - Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document, knowing that such person by reason of unsoundness of mind or intoxication cannot or that by reason of deception practised upon him, he does not know the contents of the document or the nature of the alteration.
Explanation 1. - A man's signature of his own name may amount to forgery.
Explanation 2. - The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery."
22. Section 465 provides for punishment of forgery "465. Punishment for forgery. - Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
23. Sections 467, 472, 473 IPC, in respect of which offences process has been issued read as under :-
"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 make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with (imprisonment for life), or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
472. Making or possessing counterfeit seal, etc., with intent to commit forgery punishable under Sec. 467. - Whoever makes or counterfeits any seal, plate or other instrument for making an impression, intending that the same shall be used for the purpose of committing any forgery which would be punishable under Section 467 of this Code, or, with such intent, has in his possession any such seal, plate or other instrument, knowing the same to be counterfeit, shall be punished with (imprisonment for life) or with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
473. Making or possessing counterfeit seal etc., with intent to commit forgery punishable otherwise. - Whoever makes or counterfeits any seal, plate or other instrument for making an impression, intending that the same shall be used for the purpose of committing any forgery which would be punishable under any section of this Chapter other than Section 467 or with such intent has in his possession any such seal, plate or other instrument knowing the same to be counterfeit, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
24. The material placed in the case shows that the petitioners have carried on correspondence as office bearers of Lakshmi Vidyalaya by signing their own names on behalf of Lakshmi Vidyalaya. They have opened accounts as office bearers of Lakshmi Vidyalaya by signing their own names on behalf of Lakshmi Vidyalaya. They have made deposits of the money collected in such accounts and have also withdrawn such deposited amount with documents in their own names and on behalf of Lakshmi Vidyalaya as its office bearers. They have carried out correspondence as office bearers of Lakshmi Vidyalaya Managing Committee in their own names. Whether these acts fall under the offences alleged ?
25. As per definition of Section 464, IPC in respect of making a false document, a person is said to make a false document -
(i) who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document,
(ii) with the intention of causing it to be believed that such document or part of a document was made signed or sealed or executed
(iii) by or by the authority of a person whom or by whose authority he knows that it was not made, signed or sealed or executed,
(iv) or at a time at which he knows that it was not made, signed sealed or executed.
26. The documents relied on as forged documents are the documents made or signed by the petitioners on behalf of Lakshmi Vidyalaya as Office bearers of the said society. Making of such document, signing such correspondence, addressing letters in their own names on behalf of Lakshmi Vidyalaya do not come within the definition of making a false document referred to above. If these documents had been made signed or sent purporting to have been done by persons other than the petitioners, then the offence of making a false document would have been made out. The facts referred to by the petitioners also do not fall in the portions secondly and thirdly of making a false document found in Section 464 IPC. The respondent appears to be under the impression that these documents are false documents because petitioners are not concerned with Lakshmi Vidyalaya society and whatever correspondence they have carried out, whatever letters they have addressed, whatever bank accounts they have operated on behalf of Lakshmi Vidyalaya are all unauthorised acts and they constitute the offence alleged. These contentions are not acceptable because as earlier held the criminal court will not decide which group is competent to manage the affairs of Lakshmi Vidyalaya and which group is the one legally entitled group to do so.
27. The dispute between the rival groups is of civil nature and the parties should not be allowed to agitate such disputes in criminal courts.
28. The complaint averments are very clear that the complainant was the Ex. President and as stated by him in paragraph 5 of the complaint the entire management of the society has been taken over by the petitioners. Therefore it was the group of petitioners who were managing the Lakshmi Vidyalaya. They were carrying on the administration and were looking after the affairs of the institution by writing letters, by drawing cheques by operating accounts in the bank by signing their names on behalf of Lakshmi Vidyalaya. Such acts are done by the petitioners in their own rights and not in somebody else's name or on behalf of somebody else who is really in charge of the management of the Lakshmi Vidyalaya. Therefore these acts do not come under the definition of making a false document punishable for forgery and its aggravated forms. Even the seals used which are contended to be counterfeit seals, there appears to be no prima facie case because as contended in paragraph 5 of the complaint, including account books, cheque books, furniture and other belongings of the society were taken over by the petitioners and hence the same will not make out a case of offences under Sections 467, 472 or 471, IPC when the petitioners used the seals of Lakshmi Vidyalaya and signed their names as office bearers of Lakshmi Vidyalaya. If the documents are made and signed by the petitioners under their own authority and if the petitioners represented themselves as persons incharge of the Lakshmi Vidyalaya, it cannot be said that they are guilty of making the false documents and using the same in the name of Lakshmi Vidyalaya rendering themselves liable for punishment for the offences registered against them.
29. The above view also finds support from the judgment in Gulab Singh v. State of Punjab, (1984) 2 Crimes 869. The High Court of Punjab and Haryana held that to constitute the offence under section 464 IPC it is essential that the accused person must make a document with the intention of making it to be believed that it was signed by or by the authority of someone else while he knows that it was not made or authorised by that person. In the case on hand, the petitioners have made and signed the documents in their own names on their own behalf and not at all purporting to act on behalf of somebody or in the name of someone else. Therefore the offence of making a false document is not prima facie made out. Therefore the complaint averments, sworn statement of the complainant and the documents referred to do not make out a case of making a false document or the offence of using the counterfeit seals or other aggravated offences alleged against the petitioners.
30. Learned counsel on both sides referred to various other authorities reference to which is not at all necessary since they all deal with Court's power to quash proceedings.
31. Vindication of majesty of justice and the maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengence, is the observation made by the Supreme Court in Punjab National Bank v. Surendra Prasad Sinha, . It is also not open to any party to stifle prosecution. In the case on hand when various suits and writ petitions before the courts and proceedings before the Registrar were pending between the parties and when there was dispute with regard to who was entitled to run the Lakshmi Vidyalaya Institution, the petitioners are alleged to have committed these offences by running the institution. These allegations show that the real dispute was a civil dispute to run the institution between the parties and when several litigations were pending in various Civil Courts and High Court and before the Registar of Societies, the complainant dragged the petitioners before the criminal court and made them face the prosecution for offences alleged in the complaint. The facts disclose that the complaint averments, sworn statement of the complainant and the documents relied on, taken at their face value do not constitute the offence alleged. The complaint therefore amounts to an abuse of process of the court. Therefore the impugned order issuing process against the petitioners and the criminal proceedings initiated in the Court of the learned Chief Metropolitan Magistrate need to be quashed.
In the result, the petition is allowed. Impugned order is set aside. Proceedings in CC No. 17311/1993 are quashed.
32. Petition allowed.