Karnataka High Court
R.Narayana Swamy vs M.Chandrappa S/O Mathappa on 4 April, 2013
Equivalent citations: 2013 CRI. L. J. 3734, 2013 (3) AIR KANT HCR 473, (2014) 3 RECCRIR 509, (2013) 3 KCCR 2619
Author: Anand Byrareddy
Bench: Anand Byrareddy
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®
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 04TH DAY OF APRIL, 2013
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION No.2298 of 2009
BETWEEN:
R. Narayana Swamy,
S/o. Ramaiah,
Aged about 39 years,
Advocate, No.28, I Floor,
13th Cross, Cubbonpet,
Bangalore-560 009. ...PETITIONER
(By Shri. S.R. Hegde Hudlamane, Advocate)
AND:
M. Chandrappa,
S/o. Mathappa,
Aged about 57 years,
Resident at No.210, 7th Block,
K.S.R.T.C. Quarters,
Shanthinagar,
Wilson Garden,
Bangalore-27. ...RESPONDENT
(By Shri Rajagopala Naidu, Advocate)
*****
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This Criminal Petition is filed under Section 482 of the
Code of Criminal Procedure, 1973, praying to quash the
proceedings initiated by the respondents at
P.C.R.No.12937/2005 (C.C.No.20123/2008) on the file of the
4th Additional Chief Metropolitan Magistrate, Bangalore City,
Bangalore insofar as the petitioner is concerned, exercising its
power under Section 482 of the Code of Criminal Procedure, to
secure.
This petition is coming on for Final Hearing, this day, the
court made the following:
ORDER
Heard the learned Counsel for the petitioner and the learned Counsel for the respondent.
2. The facts of the case are as follows:-
The petitioner is a member of the Bar. He had enrolled on 24.2.1995. He had initially commenced his career as a Junior under one Shri B.P.Puttasiddaiah, Advocate and he had worked with him for about six months. Subsequently, he had joined one C.R. Laxmana Murthy, Advocate and he was there till February 2000. He then set up his independent practice from his residence in Rajajinagar, Bangalore. When the petitioner started his independent office, he used to attend to the 3 work of his erstwhile senior Laxmana Murthy not on a regular basis, but when he was asked to. The petitioner claims that the respondent Chandrappa was a client of Laxmana Murthy and in a civil suit in O.S.2300/1999, C.R. Laxmana Murthy had filed his vakalat and also had filed a criminal complaint drafted by Laxman Murthy to which the petitioner had affixed his signature to the vakalath, on the instructions of Laxmana Murthy. The complaint alleged offences punishable under sections 463, 464, 465, 468, 469, 474, 441, 440 read with Sections 120-B and 34 of the Indian Penal Code, 1860 (hereinafter referred to as 'the IPC' for brevity) against one L.R.Reddy, son of Hanumappa and Srimathi, wife of L.R.Reddy and the same was registered as PCR No.93/2000. It was also submitted that the complaint itself had been drafted by Laxmana Murthy on the instructions said to have been given by Shri M.Chandrappa, respondent. The petitioner however, had signed the vakalat on the request of one Laxmana Murthy, though Chandrappa had not engaged his services and did not 4 pay any fees to the petitioner. The complaint was referred to the Police Sub-Inspector, Myco Layout Police Station, for investigation under Section 156(3) of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the 'Cr.PC', for brevity). The matter was adjourned from 30.5.2005 from time to time awaiting the report of the Police. The petitioner on the request of Laxmana Murthy, had attended the case on the adjourned dates as and when Laxmana Murthy requested him. The petitioner did not appear on 18.10.2002 nor did he sign or file any memo to the effect that the complainant had expired. However, it transpires that an advocate said to be representing the respondent had filed such a memo and on the basis of the same, the Magistrate had recorded that since the complainant is absent and taking into account the memo filed stating that the complainant is dead, the complaint stood abated and the case was closed. The Magistrate did not record the name of the advocate who had filed the memo nor the order sheet signed by the advocate, who had filed such a memo. Though the said 5 memo or ordersheet did not contain any signature of the present petitioner, Chandrappa had submitted a complaint on 29.4.2005, that the memo was a false document filed in the complaint and has named the petitioner as one of the accused (accused no.2) as being responsible for having filed such a memo resulting in the complaint being closed and that complaint having been numbered as PCR No.12937/2005 before the IV Additional Chief Metropolitan Magistrate, Bangalore, the petitioner has filed the present petition.
The complaint having been referred to the police for investigation, the police had in turn filed the 'B' report by filing a protest memo as the Magistrate has rejected the 'B' report and has taken cognizance of the offence alleged and has issued process which has been challenged by the petitioner herein.
3. The learned Counsel for the petitioner draws attention to a five-judge bench decision of the apex court addressing the question as to how the bar under section 195(1) (b)(ii) would be attracted and would submit that having regard to the tenor of 6 Section 195 of the Cr.P.C, the present case alleged by the respondent - the complainant is that, on the basis of a false document or the false memo filed before the Court of the Magistrate, the complaint filed by the respondent stood abated and the case was closed. Therefore, it would constitute an offence punishable under Section 192 of the IPC. Secondly, the bar under Section 195 Cr.P.C. would apply. In that, the court below could not have taken cognizance of the case on the basis of a private complaint in the light of a special procedure being directed insofar as the prosecution for an offence punishable under Section 192 IPC is concerned. Therefore, he would submit that the entire proceedings are a nullity and ought to be quashed.
4. The learned Counsel for the respondent, on the other hand, would submit that there can be no quarrel with the legal proposition and that the matter be remitted to the court below in order that the proper procedure be followed and action be taken in due course.
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5. In the light of these rival contentions, the question to be considered is, whether the proceedings are vitiated on account of the legal bar as contended by the learned Counsel for the petitioner. The apex court in the case of Iqbal Singh Marwah and another vs. Meenakshi Marwah and another, (2005) 4 SCC 370, was dealing with a reference in view of difference of opinion as to whether or not the bar under section 196 would apply in a given case. The facts were that the appellants, who were real brothers of Mukhtar Singh Marwah and the respondents were his widow and son respectively to the said Marwah. Mukhtar Singh Marwah died on 3.6.1993. Appellant no.1 had filed a probate case in No.363/1993 in the Court of the District Judge, Delhi for being granted the probate of the will allegedly executed by Marwah on 20.1.1993. The petition was contested on the ground that the will was forged. On their application, appellant no.1 filed the original will in the Court of the District Judge on 10.2.1994. Thereafter, the respondents moved an application under section 340 of the 8 Cr.P.C requesting the court to file a criminal complaint against the appellant no.1 as the will set up by him was forged. A reply to the said application was filed on 27.7.1994 but the application was not disposed of. Thereafter, the respondents filed a criminal complaint in May 1996 in the Court of the Chief Metropolitan Magistrate, New Delhi for prosecution of the appellants and their mother under sections 192, 193, 463, 464, 465, 467, 469, 471, 499 and 500 IPC on the ground that the will set up by the appellants was forged and fictitious document. It was stated in the complaint that though Mukhtar Singh Marwah was an educated man, but the will bears his thumb impression. He had accounts in Bank of Tokyo and Standard Chartered Bank which he used to operate by putting his signature. Under the will he had completely divested the respondents, who were his widow and son, respectively, and also daughter and had bequeathed his entire property to his mother and after her death, to his brothers and sisters. The Magistrate held that the question whether the will was a 9 genuine document or a forged one, was an issue before the District Judge in the probate proceedings where the will had been filed, Sections 195(1)(b)(i) and (ii) Cr.P.C operated as a bar for taking cognizance of the offences under the above said Sections. The complaint was accordingly dismissed. The respondents thereafter filed a criminal revision against the order of the learned Magistrate before the Sessions Judge who relied on Sachida Nand Singh vs. State of Bihar, (1998) 2 SCC 493, and held that the bar contained in Section 195(1)(b)(ii) Cr.PC would not apply where forgery of a document was committed before the said document was produced in court. The revision petition was accordingly allowed, and the matter was remanded to the Court of the Magistrate for proceeding in accordance with law. The appellants challenged the same by filing a petition under section 482 of the CR.P.C before the High Court and the same was dismissed on 15.9.2000 following the law laid down in Sachida Nand, supra. Feeling aggrieved, the appellants had approached the apex court the apex court held 10 that the principal controversy revolves round the interpretation of the expression "when such offence is allged to have been committed in respect of a document produced or given in evidence in a proceeding in any court" occurring in clause
(b)(ii) of sub-section (1) of Section 195 Cr.PC. and the reliance placed on the observations in part -10 of Surjit Singh vs. Balbir Singh, (1996) 3 SCC 533 is opposed to what was laid down in Sachida Nand, supra which did not refer to Sachida Nand, supra, and finally concluded that in view of the discussion that the law laid down in Sachida Nand, supra, has correctly decided that it was the correct view. In Sachida Nand, supra, it was held that the scope of preliminary inquiry envisaged in Section 340(1) of the Code is to ascertain whether any offence affecting administration of justice has been committed in respect of a document produced in court or given in evidence in a proceeding in that court. In other words, the offence should have been committed during the time when the document was in custodia legis. It would be a strained thinking 11 that any offence involving forgery of a document if committed far outside the precincts of the court and long before its production in the court, could also be treated as one affecting administration of justice merely because that document later reached the court records.
The sequitur of the above discussion is that the bar contained in Section 195(1)(b)(ii) of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a court.
6. In view of the law laid down as above, in the present case on hand, the document produced in court on the basis of which the case has been disposed of would be clearly an offence punishable under Section 192 of the IPC in which view, the bar under section 195(1)(b)(ii) of the code would be applicable and therefore, it was for the procedure prescribed under section 340 to have been followed before there could be any prosecution of the accused. Hence, in the light of the case 12 having been entertained against the petitioner in respect an offence which was punishable under section 192 of the IPC, it was necessary for the court to have followed the procedure prescribed in law. Hence, the entertainment of the private complaint and the registration of a case in that view of the matter was bad in law.
Therefore, the proceedings initiated by the respondent hereinabove were misconceived and would have to be quashed.
7. Accordingly, the petition is allowed and the proceedings initiated at the instance of the complainant - respondent are quashed. However, it is to be noticed that the proper procedure would have been for the respondent to have approached the very court which had dismissed the complaint on the basis of the false document that was produced and to have initiated further inquiry as to whether the document in question was a forged document and a false document and could not have been relied upon and to have initiated 13 appropriate proceedings under section 340 of the Cr.P.C. It is therefore open for the respondent to take appropriate steps if the respondent is so inclined.
Sd/-
JUDGE nv