Himachal Pradesh High Court
Dalip Kumar vs Of on 11 January, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No.195 of 2019 Reserved on: 08.11.2023 .
Date of Decision: 11.01.2024.
Dalip Kumar ...Petitioner
Versus
of
State of Himachal Pradesh & ors ...Respondents
Coram rt
Hon'ble Mr. Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes For the Petitioner : Mr. Sanjeev Bhushan, Sr. Advocate with Mr. Sohail Khan, Advocate.
For Respondent No.1 : Mr. Prashant Sen, Deputy Advocate General.
For Respondents No.2,3, 6 & 7: Mr. Rakesh Chauhan, Advocate.
For Respondents No.4 & 5 : Mr. Romesh Verma, Sr. Advocate with Mr. Sumit Sharma, Advocate.
Rakesh Kainthla, Judge The present petition has been filed against the order dated 09.09.2016 passed by learned Judicial Magistrate First Class (JMFC), Ani, District Kullu, rejecting the objections filed by 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 11/01/2024 20:34:29 :::CIS 2the petitioner against the cancellation report as confirmed by learned Sessions Judge in Criminal Revision No. 0100010 of 2011 .
dated 10.01.2019. (Parties shall hereinafter be referred to in the same manner as they were referred before the learned Trial Court for convenience).
2. Briefly stated, that the complainant filed a complaint of under Section 156(3) of Cr. P.C. against the accused for the commission of offences punishable under Sections 420, 467, rt 468, 471 and 120B of IPC. It was asserted that the accused No.4 (Prem Raj) was facing encroachment proceedings before Collector-cum-DFO. The accused prepared a false report that the encroachment was removed and the land was vacant. Accused No.3 made a false statement in the Court to benefit accused No.4.
The structure of accused No.4 still existed on the spot and the construction was continuing. This fact was found in the demarcation given by Tehsildar on 08.08.2013.
3. The police conducted the investigation and submitted a cancellation report. Petitioner-objector filed the objection that the investigation was not conducted properly. The statements of authorized officials were not recorded. Learned JMFC held that ::: Downloaded on - 11/01/2024 20:34:29 :::CIS 3 no offence punishable under Sections 420, 467, 468, 471 and 120B of IPC was made out. It appears to be an offence of giving .
false evidence in Court for committing forgery. Section 195 of Cr.P.C. creates a bar for taking cognizance of such offence if it is committed regarding the Court proceeding except upon the written complaint filed by the Court. No complaint was filed by of the concerned Court and it is not permissible to file any complaint to the police.
4. rt Being aggrieved from the order, the petitioner filed a revision before learned Sessions Judge, Kinnaur at Rampur Bushehr. Learned Sessions Judge, Kinnaur upheld these findings and held that Section 195 of Cr.P.C. creates a bar for taking cognizance of the commission of offences punishable under Section 466, and 471 of IPC without any complaint.
5. Being aggrieved from the orders passed by learned Courts below, the present petition has been filed asserting that there was sufficient evidence to show that the accused had forged the documents to benefit Prem Raj. The police should have filed a charge sheet instead of filing a cancellation report. Learned JMFC, Ani erred in accepting the cancellation report on the minor ::: Downloaded on - 11/01/2024 20:34:29 :::CIS 4 technicality. Learned Sessions Judge erred in dismissing the revision petition on technical grounds. The provisions of Section .
195 of Cr.P.C. is not attracted in the present case. Therefore, it was prayed that the present petition be allowed and the orders passed by learned Courts below be set aside.
6. I have heard Mr Sanjeev Bhushan, learned Senior of Counsel assisted by Mr Sohail Khan, learned counsel for the petitioner and Mr Prashant Sen, learned Deputy Advocate rt General for respondent No.1/State, Mr. Rakesh Chauhan, Advocate, for respondents No.2, 3, 6 & 7 and Mr. Romesh Verma, learned Senior Counsel assisted by Mr. Sumit Sharma, learned counsel for respondents No. 4 and 5.
7. Mr. Sanjeev Bhushan, learned Senior Counsel for the petitioner submitted that the learned Courts below erred in dismissing the objection and accepting the cancellation report. It was wrongly held that the cognizance of the matter was barred under Section 195 of Cr.P.C. There was sufficient evidence to connect the accused with the commission of the offence;
therefore, he prayed that the present revision petition be allowed and the orders passed by learned Courts below be set aside.
::: Downloaded on - 11/01/2024 20:34:29 :::CIS 58. Mr. Prashant Sen, learned Deputy Advocate General, for respondent No.1 submitted that the learned Courts below had .
rightly held that the Court could not have taken cognizance without their being a complaint from the concerned Court. The petitioner/complainant had made the complaint regarding submitting a false report to the Court, which falls within the of mischief of Section 195 of Cr.P.C. and learned Courts below had rightly accepted the cancellation report. Therefore, he prayed rt that the present petition be dismissed.
9. Mr. Rakesh Chauhan and Mr. Romesh Verma, supported the submissions of Mr. Prashant Sen and submitted that no interference is required with them. They also submitted that the present petition is in the nature of a second revision which is not permissible under law. Therefore, they prayed that the present petition be dismissed.
10. I have given considerable thought to the submissions at the bar and have gone through the records carefully.
11. The petitioner had filed the revision petition before the learned Sessions Judge against the order dated 09.09.2016.
The revision was dismissed and the present petition has been ::: Downloaded on - 11/01/2024 20:34:29 :::CIS 6 filed under Section 482 of Cr.P.C. assailing the order passed in the revision. It was laid down by the Delhi High Court in Kapoor .
Chand Gupta v. State, 2023 SCC OnLine Del 3373, that a second revision does not lie under law and a petition under Section 482 of Cr.P.C. cannot be filed, which in substance is the second revision. It was observed:
of "13. In Rajan Kumar Manchanda v. State of Karnataka, 1990 Supp SCC 132, the Hon'ble Supreme Court has held as under:
rt"2. ...A second Revision did not lie at the instance of the State to the High Court in view of the provisions of Section 397(3) of Cr. P.C. Obviously, to avoid this bar, the application moved by the State before the High Court was stated to be under Section 482 Cr. P.C. asking for the exercise of inherent powers. In the exercise of that power, the High Court has reversed the order of the Magistrate as affirmed by the Sessions Judge. The question for consideration is as to whether the bar under Section 397(3) Cr.
P.C. should have been taken note of to reject the revision at the instance of the State Government or action taken by the High Court in the exercise of its inherent power has to be sustained. It is not disputed by the counsel appearing for the State that the move before the High Court was really an application for revision of the order of the Magistrate releasing the truck. That is exactly what is prohibited under Section 397(3) Cr. P.C. Merely by saying that the jurisdiction of the High Court for the exercise of its inherent power was being invoked the statutory bar could not have been overcome. If that was to be permitted every revision application facing the bar of Section 397(3) of the Code could be ::: Downloaded on - 11/01/2024 20:34:29 :::CIS 7 labelled as one under Section 482. We are satisfied that this is a case where the High Court had no jurisdiction to entertain the revision. The appeal is allowed and we set aside the order of the High Court.
.
The Order of the Magistrate as affirmed by the Session Judge is upheld."
14. In Surender Kumar Jain v. State, 2012 SCC OnLine Del 571, a learned Single Judge of this Court, held as under:
"5. The issue regarding the filing of a petition before the High Court after having availed the first revision petition before the Court of Sessions has come up of before the Supreme Court and this Court repeatedly.
While laying that section 397(3) Cr. P.C. laid the statutory bar of the second revision petition, the courts have held that the High Court did enjoy rtinherent power under section 482 Cr. P.C. as well to entertain petitions even in those cases. But, that power was to be exercised sparingly and with great caution, particularly, when the person approaching the High Court has already availed remedy of first revision in the Sessions Court. This was not that in every case the person aggrieved of the order of the first revision court would have the right to be heard by the High Court to assail the same order which was the subject matter of the revision before Sessions Court. It was all to depend not only on the facts and circumstances of each case but as to whether the impugned order bring about a situation which is an abuse of the process of court or there was a serious miscarriage of justice or the mandatory provisions of law were not complied with. The power could also be exercised by this Court if there was an apparent mistake committed by the revisional court. Reference in this regard can be made to the judgments of the Supreme Court in MadhuLimaye v. State of Maharashtra, (1977) 4 SCC 551, State of Orissa v. Ram Chander Aggarwal, AIR SC 87, Raj Kapoor v. State (Delhi Administration), 1980 Cri LJ 202, Krishnan ::: Downloaded on - 11/01/2024 20:34:29 :::CIS 8 v. Krishnaveni and Kailash Verma v. Punjab State Civil Supplies Corporation, (2005) 2 SCC 571."
15. In Varinder Kaur v. The State (NCT of Delhi), 2017 SCC OnLine Del 10638, a learned Single Judge of this Court, has .
observed as under:
21. It is worth mentioning that in the garb of a petition under Section 482 CrPC, the petitioner has filed a second revision petition which is not maintainable. In the case Wajid Mirza v. Mohammed Ali Ahmed, 1982 Cri LJ 890, the High Court of Andhra Pradesh has observed as under:--
of '23. This Court in Re Puritipati Jagga Reddy, (1979) 1 AP LJ 1: AIR 1979 AP 146 at p. 149 (FB) rt held:
The language of sub-section (3) of Section 397 contains no ambiguity. If any person had already chosen to file a revision before the High Court or to the Sessions Court under subsection (1), the same person cannot prefer a further application to the other Court. To put it in other words, subsec. (1) and (3) make it clear that a person aggrieved by any order or proceeding can seek remedy by way of revision either before the High Court or the Sessions Court. Once, he has availed himself of the remedy, he is precluded from approaching the other forum. It is equally manifest from the provisions of sub-section (3) that this bar is limited to the same person who has already chosen to go either to the High Court or to the Sessions court seeking a remedy and that it does not apply to the other parties or persons.' ::: Downloaded on - 11/01/2024 20:34:29 :::CIS 9
22. The Bombay High Court has taken the same view in the case Inayatullah Rizwi v. Rahimatuallah, 1981 Cri LJ 1398 and observed that:
'We are, therefore, of the view that a revision .
to the High Court would be tenable at the instance of a party who is unsuccessful before the Sessions Judge, or who is aggrieved by his order. In other words, a concurrent finding of the Sessions Judge and the Courts below becomes final, but when the Sessions Judge reverses the order of the Court below in of revision the defeated party is not precluded from moving to the High Court. The consensus of judicial opinion as can be seen rt supports only this view.'
16. In Pooja Walia v. State, 2011 SCC OnLine Del 2462, a learned Single Judge of this Court has held as under:
"8. At the very outset, I must state that the present petition is in essence a second revision filed by the petitioner raising the same set of grievances which were raised by her before the learned Additional Sessions Judge. Although Section 482 Cr. P.C. starts with a non-obstente clause that would mean merely on account of the fact that a person has preferred a revision in the Sessions Court, he need not be necessarily debarred from assailing the order in the High Court in the exercise of its power in Section 482 Cr. P.C. in order to prevent abuse of process of law or to secure the ends of justice, but ordinarily in the absence of this, the Court would discourage a party to have a petition under Section 482 Cr. P.C."
17. In RituSethi v. State, 2023 SCC OnLine Del 35, this Court has observed as under:
"10. The grounds taken in the present petition as well as during the course of the arguments are the same which were taken by the petitioner before the ::: Downloaded on - 11/01/2024 20:34:29 :::CIS 10 learned Appellate Court. The grounds raised before the learned Appellate Court were dealt with by a detailed threadbare analysis of the prosecution evidence on record and the finding of the learned .
trial Court. It was for the petitioner to demonstrate the perverseness in the impugned judgment passed by the learned Appellate Court in order to cause interference by this Court with two concurrent findings of acquittal qua the present respondent. The Hon'ble Supreme Court in Manju Ram Kalita v. State of Assam, (2009) 13 SCC 330, while of dealing with the scope of reappreciation of evidence by a higher court in criminal revision observed in para 9 as under:
rt "9. ...It is a settled legal proposition that if the courts below have recorded the finding of fact, the question of reappreciation of evidence by the third court does not arise unless it is found to be totally perverse..."
Following the aforesaid judgment, the Hon'ble Supreme Court recently in Malkeet Singh Gill v. State of Chattisgarh, (2022) 8 SCC 204, has held as under:
"10. Before adverting to the merits of the contention, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction alike to the appellate court and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short "CrPC") vests jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of ::: Downloaded on - 11/01/2024 20:34:29 :::CIS 11 such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be well- founded error which is to be determined on .
the merits of individual cases. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings."
12. A similar view was taken by Madras High Court in of Ramgopal v. State of M.P., 2018 SCC OnLine MP 924 and it was observed:
rt "9. In this regard in the case of Krishnan v. Krishnaveni, (1997) 4 SCC 241 in para 10 has held as under:--
"10. Ordinarily, when revision has been barred by Section 397(3) of the Code, a person accused/complainant - cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is a grave miscarriage of justice or abuse of process of the courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the ::: Downloaded on - 11/01/2024 20:34:29 :::CIS 12 process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under .
Section 397(1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings. The object of a criminal trial is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before of the memory of the witness fades out. The recent trend is to delay the trial and threaten the witness or to win over the witness by promise or inducement. rt These malpractices need to be curbed and public justice can be ensured only when trial is conducted expeditiously."
10. Therefore, in view of the law laid down by the Supreme Court in above cited case, it is found that the Court may not exercise its inherent power under Section 482 of the Cr.P.C. when the said petition is preferred before the Court is of the nature of second revision petition."
13. Therefore, there is a force in the submission of learned counsel for the respondents that the present petition is in the nature of a second revision, which is not permissible.
14. The grievance of the complainant is that a false report was submitted before the Collector-cum-DFO that the encroachment was removed. Section 8 of the Public Premises and Rent Recovery Act, 1971 provides that the Collector shall have the power of the Civil Court to hold any inquiry under the Act. Thus, the Collector has been treated as a Civil Court when he is holding ::: Downloaded on - 11/01/2024 20:34:29 :::CIS 13 an inquiry under the Act. In the present case, the grievance of the petitioner is related to the inquiry because the Collector was .
misled as per the petitioner to believe that encroachment was removed, whereas, it existed on the spot. The FIR was lodged for the commission of offences punishable under Sections 420, 467, 468, 471 and 120B of IPC, however, none of these offences would of be applicable because it is not the case that forgery within the meaning of Sections 463 and 464 of IPC were committed. There rt is a wide distinction between a document, whose contents are false and a document, which is false. A document whose contents are false does not fall within the purview of Sections 463 and 464 of IPC. It was laid down in Bandekar Bros. (P) Ltd. v. Prasad Vassudev Keni, (2020) 20 SCC 1 : (2022) 1 SCC (Cri) 626: 2020 SCC OnLine SC 707, that making false debit notes to claim the amount mentioned in them will not amount to forgery as is understood in law. It was observed:
"50. Section 463 IPC speaks of "forgery" as being the making of a "false document" or "false electronic record", or a part thereof, to do the various things that are stated in that section. Unless a person is said to make a false document or electronic record, Section 463 does not get attracted at all. The making of a "false document" is then dealt with in Section 464 IPC. On the facts of the present case, we are not concerned with the categories of false ::: Downloaded on - 11/01/2024 20:34:29 :::CIS 14 documents identified under the heads "Secondly" and "Thirdly" of Section 464. Shri Mishra states that the making of the debit notes by the respondents in order to falsely claim amounts owing to them would fall within the .
"First" category under Section 464.
51. The "First" category of Section 464 makes it clear that anyone who 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 or by the authority of a person by whom or by whose authority he knows that it was not made, can be said to make a false of document. Several judgments of this Court have held that assuming dishonesty or fraud, the second ingredient of the "First" category of Section 464 is that the document itself must be made by or by the authority of a person by whom rt or by whose authority the person who creates the forgery knows that it was not made. 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. [Devendra v. State of U.P., (2009) 7 SCC 495 : (2009) 3 SCC (Civ) 190 : (2009) 3 SCC (Cri) 461], this Court set out the following facts : (SCC p. 499, paras 5-6) "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 ::: Downloaded on - 11/01/2024 20:34:29 :::CIS 15 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 dated 17-9- 2005 passed an order to hear the complainant and register a first information report. Thereafter, Respondent 2 filed a first information report at Police Station Sahni Gate on 21-9-2005. The appellants filed an application for quashing the said first information report before the High Court. It of was marked as Criminal Miscellaneous Writ Petition No. 10568 of 2005."
52. This Court held that the sale deed executed did not constitute a "false document" under Section 464 IPC as rt follows : (Devendra case [Devendra v. State of U.P., (2009) 7 SCC 495 : (2009) 3 SCC (Civ) 190 : (2009) 3 SCC (Cri) 461], SCC pp. 502-503, paras 18-20) "18. Section 463 of the Penal Code reads as under:
'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 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.' According to Mr Das, making a false document so as to support any claim over title would constitute forgery within the meaning of the said provision and as a document was created for the purpose of showing one-third share in the joint property by the appellants although they were not entitled to therefor, they must be held to have committed an offence.
19. Making of any false document, in view of the definition of "forgery" is the sine qua non therefor.
::: Downloaded on - 11/01/2024 20:34:29 :::CIS 16What would amount to the making of a false document is specified in Section 464 thereof. What is, therefore, necessary is to execute a document with the intention of causing it to be believed that .
such document inter alia was made by the authority of a person by whom or by whose authority he knows that it was not made.
20. The appellants are the owners of the property.
They have executed a sale deed. Execution of the deed of sale is not denied. If somebody is aggrieved by the false assertions made in the said sale deed, it of would be the vendees and not the co-sharers. The appellants have not been alleged to be guilty of creating any false document."
53. In Mohd. Ibrahim v. State of Bihar [Mohd. Ibrahim v. State rt of Bihar, (2009) 8 SCC 751 : (2009) 3 SCC (Cri) 929], it was held that the execution of a sale deed by somebody in his own name qua property which is not his does not constitute making a "false document" under Section 464 IPC, because he does not impersonate the owner or falsely claim to be authorised or empowered by the owner to execute the deed on the owner's behalf. The Court held :
(SCC pp. 756-57, paras 13-17) "13. The condition precedent for an offence under Sections 467 and 471 is a 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:
::: Downloaded on - 11/01/2024 20:34:29 :::CIS 171. 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, of without lawful authority, after it has been made or executed by either himself or any other person.
3. The third is where a person dishonestly or rt fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
In short, a person is said to have made a "false document", if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered with a document; or (iii) he obtained a document by practising deception, or from a person not in control of his senses.
15. The sale deeds executed by the first appellant, clearly and obviously do not fall under the second and third categories of "false documents". It, therefore, remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession ::: Downloaded on - 11/01/2024 20:34:29 :::CIS 18 of the complainant's land (and that Accused 2 to 5 as the purchaser, witness, scribe and stamp vendor, colluded with the first accused in execution and registration of the said sale deeds) would bring the .
case under the first category.
16. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on the owner's of behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. rt The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under the first category of "false documents", it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.
17. When a document is executed 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 a 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."
::: Downloaded on - 11/01/2024 20:34:29 :::CIS 1954. In Mir Nagvi Askari v. CBI [Mir NagviAskari v. CBI, (2009) 15 SCC 643 : (2010) 2 SCC (Cri) 718], 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 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 IPC were set out by this Court in para 3 as follows : (SCC p. 648) "3. Accused 1, 2, 4 and 5 in their capacity as public servants, were working in the Fort Branch of Andhra of Bank. They were charged with abuse of their position and acting dishonestly and fraudulently, as a result whereof undue pecuniary advantage is said rtto have been procured by Accused 3 by way of crediting banker's cheques without them having been presented or sent for clearance and, thus, cheating Andhra Bank and dishonestly permitting substantial withdrawals from his current account by Accused 3. They are said to have prepared false documents and used them as genuine ones, with the intention to defraud and falsify entries in the books of accounts of the Bank. They are also charged with entering into a criminal conspiracy, as they, having been entrusted with the property of Andhra Bank, prepared credit and debit vouchers in favour of Accused 3, authorising credit of amounts of various cheques to the account of Accused 3 without having received any banker's cheques."
55. This Court, however, held that Section 464 IPC was not attracted, as follows : (Mir NagviAskari case [Mir NagviAskari v. CBI, (2009) 15 SCC 643 : (2010) 2 SCC (Cri) 718], SCC p. 687, paras 164-66) "164. A person is said to make a false document or record if he satisfies one of the three conditions as noticed herein before and provided for under the said section. The first condition being that the document has been falsified with the intention of ::: Downloaded on - 11/01/2024 20:34:29 :::CIS 20 causing it to be believed that such document has been made by a person, by whom the person falsifying the document knows that it was not made. Clearly, the documents in question in the present .
case, even if it be assumed to have been made dishonestly or fraudulently, had not been made with the intention of causing it to be believed that they were made by or under the authority of someone else. The second criterion of the section deals with a case where a person without lawful authority alters a document after it has been made. There has been of no allegation of alteration of the voucher in question after they have been made. Therefore, in our opinion, the second criterion of the said section is also not applicable to the present case. The third and rt final condition of Section 464 deals with a document, signed by a person who due to his mental capacity does not know the contents of the documents which were made i.e. because of intoxication or unsoundness of mind, etc. Such is also not the case before us. Indisputably therefore the accused before us could not have been convicted with the making of a false document.
165. The learned Special Judge, therefore, in our opinion, erred in holding that the accused had prepared a false document, which clearly, having regard to the provisions of the law, could not have been done.
166. Further, the offence of forgery deals with the 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 ::: Downloaded on - 11/01/2024 20:34:29 :::CIS 21 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 v. Delhi Admn. [Vimla v. Delhi Admn., AIR 1963 SC 1572 :
of (1963) 2 Cri LJ 434] ] Accordingly, the accused could not have been tried for an offence under Section 467 which deals with forgery of rt valuable securities, will, etc. or Section 471 i.e. using as genuine a forged document or Section 477-A i.e. falsification of accounts. The conviction of the accused for the said offences is accordingly set aside."
56. It is thus clear that even if we are to put aside all the averments made in the two complaints (which 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 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 IPC can thus be said to be even prima facie attracted in the facts of this case."
15. The allegations in the FIR show that the accused had committed an offence punishable under Chapter 11 of IPC of giving false evidence or fabricating false evidence. Learned ::: Downloaded on - 11/01/2024 20:34:29 :::CIS 22 Courts below had rightly held that the Court could not have taken cognizance of the same without the complaint by the Competent .
Court.
16. It was laid down by the Hon'ble Supreme Court in Bandekar Bros. (supra), that Section 195 of Cr.P.C. restricts the power of the Magistrate conferred under Section 190 of Cr.P.C. to of take cognizance and provides that the Magistrate can take cognizance on the conditions being specified under Section 195 rt of Cr.P.C. It was observed:
"14. Section 190 CrPC states that a Magistrate may take cognizance of any offence in one of three situations : (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; and (c) upon information received from any person other than a police officer, or upon his knowledge, that such offence has been committed. However, Section 195 CrPC states that in the offences covered by it, no court shall take cognizance except upon the complaint in writing of a public servant, insofar as the offences mentioned in sub-clause (1)(a) are concerned, and by the complaint in writing of the "Court"
as defined by sub-section (3), insofar as the offences delineated in sub-clause (1)(b) are concerned. The reason for the enactment of Section 195 CrPC has been stated felicitously in Patel Laljibhai Somabhai v. State of Gujarat [Patel Laljibhai Somabhai v. State of Gujarat, (1971) 2 SCC 376: 1971 SCC (Cri) 548], as follows : (SCC pp. 382-83, para
7) "7. The underlying purpose of enacting Sections 195(1)(b) and (c) and Section 476, seems to be to control the temptation on the part of the private ::: Downloaded on - 11/01/2024 20:34:29 :::CIS 23 parties considering themselves aggrieved by the offences mentioned in 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 offences and it is only by misleading the courts and thereby perverting the of 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 rtcourt 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 a party is deprived of the general right recognised by Section 190 CrPC, of the aggrieved parties directly initiating the criminal proceedings. The offences about which the court alone, to the exclusion of the aggrieved private parties, is clothed with the right to complain may, therefore, be appropriately considered to be only those offences committed by a party to a proceeding in that court, the commission of which has a reasonably close nexus with the proceedings in that court so that it can, without embarking upon a completely independent and fresh inquiry, satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party."
15. This section has been construed to be mandatory, being an absolute bar to the taking of cognizance under Section ::: Downloaded on - 11/01/2024 20:34:29 :::CIS 24 190 CrPC, unless the conditions of the section are met, as held by this Court in Daulat Ram v. State of Punjab [Daulat Ram v. State of Punjab, 1962 Supp (2) SCR 812: AIR 1962 SC 1206 : (1962) 2 Cri LJ 286] as follows : (SCR p. 815: AIR p.
.
1207, para 3) "3. ... The words of the section, namely, that the complaint has to be in writing by the public servant concerned and that no court shall take cognizance except on such a complaint clearly show that in every instance the court must be moved by the appropriate public servant. We have to decide of therefore whether the Tahsildar can be said to be the public servant concerned and if he had not filed the complaint in writing, whether the police officers in rtfiling the charge sheet had satisfied the requirements of Section 195. The words "no court shall take cognizance" have been interpreted on more than one occasion and they show that there is an absolute bar against the court taking seisin of the case except in the manner provided by the section."
16. Under Section 340 CrPC, the procedure in cases mentioned in Section 195 CrPC is set out. The Court may make a preliminary enquiry if it thinks necessary, and then record a finding to the effect that the provisions of Section 195(1)(b) CrPC are attracted, as a result of which the Court itself is then to make a complaint in writing and send it to a Magistrate of the First Class having jurisdiction. Where the Court declines to make any such complaint, an appeal is provided under Section 341 CrPC. The appellate power of the Court under Section 341 can also be invoked, insofar as a complaint has been made under Section 340, by the person so aggrieved. By Section 341(2), the appellate order shall be final and shall not be subject to revision. Finally, a Magistrate to whom a complaint is made under these sections shall proceed to deal with the case as if it were instituted on a police report -- vide Section 343(1)."
::: Downloaded on - 11/01/2024 20:34:29 :::CIS 2517. One of the conditions to take cognizance under Section 195 of Cr.P.C. is the complaint by the Competent Court.
.
Admittedly, no such complaint was filed in the present case.
Therefore, the Court could not have taken cognizance of the same and the learned Magistrate had rightly accepted the cancellation report and the learned Sessions Judge has rightly of dismissed the revision petition. There is no infirmity in the orders passed by learned Courts below.
18. rt Consequently, the present petition fails and the same is dismissed.
19. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge 11th January, 2024 (Saurav Pathania) ::: Downloaded on - 11/01/2024 20:34:29 :::CIS