Delhi District Court
Baljinder Singh Malia vs The State (Govt. Of Nct Of Delhi) on 2 February, 2023
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Revision No. 68/2023
CNR No.: DLCT01-001354-2023
Baljinder Singh Malia
President of:
M/s. Little Angles Public School Society (Regd.)
R/o 42 ZWYCIECZOW. M 99
Warsaw, Poland-93837
..... Petitioner
VERSUS
1. The State (Govt. of NCT of Delhi)
2. Naveen Bhardwaj
R/o A-1/283, Paschim Vihar
New Delhi-110063
3. Dilip Kumar Lal
S/o Sh. Prajapati Lal
R/o A-10, Raj Hans Vihar
Uttam Nagar, New Delhi
4. Mrs. Jasmohinder Singh
Little Angles Public School
B-5 Block, Paschim Vihar
New Delhi-110063
5. Smt. Indu Lal
W/o Sh. Dilip Kumar Lal
R/o A-10, Raj Hans Vihar
Vikas Nagar, Uttam Nagar
New Delhi-110059
6. Mahavir Prasad
R/o NG-11, Jwala Heri
Paschim Vihar, New Delhi-110063
7. Mrs. Manisha Sengar
W/o Late Jitender Sengar
Little Angles Public School
B-5 Block, Paschim Vihar
New Delhi-110063
Also at: B-5/106, SF, Paschim Vihar
New Delhi-110063
Crl. Rev. No. 68/2023 Baljinder Singh Malia vs. State & Ors. Page No. 1 of 15
8. Vikas Bakshi
S/o Sh. Balkishan Bakshi
Little Angles Public School
B-5 Block, Paschim Vihar
New Delhi-110063
Also at: Village Boe, Ambala Cantt.
District Ambala, Haryana-133 001
..... Respondents
Date of Institution : 30.01.2023
Date of Arguments : 30.01.2023
Date of Judgment : 02.02.2023
JUDGMENT
1. The criminal revision petition under Section 397 of 'The Code of Criminal Procedure, 1973' (Hereinafter referred to as 'Cr.P.C.') is directed against order dated 22.12.2022 (In short 'the impugned order') in complaint vide CIS No. 127/2022 titled as 'Baljinder Singh Malia vs. Naveen Bhardwaj & Ors.' whereby Ld. MM-07, Central, Tis Hazari Courts, Delhi (Hereinafter referred to as 'the trial Court') dismissed complaint under Section 200 Cr.P.C. as well as an application under Section 156 (3) Cr.P.C. seeking direction to SHO, PS Subzi Mandi to register FIR against the respondent No. 2 to 8. BRIEF FACTS:
2. The petitioner filed a complaint under Section 200 Cr.P.C. alongwith an application under Section 156 (3) Cr.P.C. seeking registration of FIR against the respondent No. 2 to 8 for offences under Section 465/467/468/471/120B/34 of 'The Indian Penal Code, 1860' (In short 'IPC') on averments that the petitioner is president of Little Angles Public School Society (Hereinafter 'the said society'). The said society is managing a school, namely, Little Angles Public School at B-5 Block, Paschim Vihar, New Delhi-110063. The petitioner's father was one of the founding members of the said society. Crl. Rev. No. 68/2023 Baljinder Singh Malia vs. State & Ors. Page No. 2 of 15
3. According to the petitioner, he filed a civil suit against the respondent No. 2 to 8 vide CS No. 558/2021 pending adjudication before the Court of Sh. V.K. Gautam, Ld. ADJ, Tis Hazari Courts, Delhi.
4. The case of the petitioner is that the respondent No. 2 to 8 forged and fabricated certain documents and filed the said documents alongwith written statements in the said suit. The respondent No. 2 to 8 used forged documents as genuine to deprive the petitioner and other members of the said society from their valuable rights and seek favourable order from the Court.
The respondent No. 2 to 8 forged documents including e-mails. The respondent No. 2 to 8 created false evidence and they have not filed original documents on judicial record.
5. The case of the petitioner is that he lodged a complaint with SHO, PS Subzi Mandi on 01.12.2021 through speed post. He also made a complaint to DCP (North) on 07.12.2021 through speed post. However, jurisdictional police has not taken any action. The petitioner cannot collect evidence and ascertain other persons involved in conspiracy to commit the said offences. There is need of recovery of original forged and fabricated documents. There is need of investigation pertaining to manner of forgery of the documents. There is need of custodial interrogation of the respondent No. 2 to 8. There is need of scientific and forensic investigation. The allegations made in the complaint disclosed commission of cognizable offences punishable under Section 465/467/468/471/120B/34 IPC. However, jurisdictional police did not register FIR and investigate the case. Therefore, jurisdictional police be directed to register FIR and investigate the case.
Crl. Rev. No. 68/2023 Baljinder Singh Malia vs. State & Ors. Page No. 3 of 15 STATUS REPORT:
6. On being directed, PSI Deepak Kumar, PS Subzi Mandi submitted status report. Operative part of the status report is, verbatim, as under:
"During the course of enquiry it revealed that on the perusal of the complaint it reflects that one document was filed which could have affected the court informing wise decision. It appears that filing of document could have affected the judicial mind of court, however the concerned Hon'ble Court did not send any complaint in this regard. Thus, the private complaint in the nature of 156 (3) Cr.P.C. is not maintainable in present scenario. However, the undersigned is ready to abide any directions / order passes by this Ld. Court."
THE IMPUGNED ORDER:
7. The trial Court, vide impugned order, dismissed the complaint under Section 200 Cr.P.C. and application under Section 156 (3) Cr.P.C. The relevant part of the impugned order is as under:
"10. At the outset, it is noticed that this complaint alleges offences have been committed pertaining to documents and evidence submitted and placed in judicial proceedings in other court i.e. ADJ Court and therefore in view of this court, it would be hit by section 195 Cr.P.C as such a complaint cannot proceed from a private complainant u/s 200 Cr.P.C for such offences falling under Section 195 (1) (b) (i)
(ii) & (iii) Cr.P.C and can only be complained by the Court concerned. The complainant ought to have invoked section 340 Cr.P.C in those judicial proceedings, if at all there was merit in his case, the concerned Court would have been the appropriate forum to hear his case. Moreover, if the complainant has grievance that forged documents have been filed in proceeding before the ADJ Court, the complainant can very well call any expert witness in such proceedings to prove that alleged documents are forged and fabricated.
Crl. Rev. No. 68/2023 Baljinder Singh Malia vs. State & Ors. Page No. 4 of 15
11. Recently the Hon'ble Supreme Court in M/s Bandekar Brothers Pvt. Ltd. & Anr. v. Prasad Vassudev Keni, etc. 2020 SCC OnLine SC 707 held that the Court held that Section 195 of CrPC is an exception to the general provision contained in Section 190 of CrPC, and creates an embargo upon the power of the Court to take cognizance of certain types of offences enumerated under Section 195 which must necessarily follow the drill contained in Section 340 of the CrPC. It is an absolute bar.
12. Hence, present application under Section 156 (3) as well as private complaint under Section 200 Cr.P.C. is dismissed being devoid of merit."
THE CRIMINAL REVISION:
8. Feeling aggrieved and dissatisfied with the impugned order, the petitioner preferred the criminal revision petition.
APPEARANCE:
9. I have heard arguments of Mr. Nikhil Malhotra, Advocate for the petitioner and examined trial Court record.
CONTENTIONS OF LD. COUNSEL FOR THE PETITIONER:
10. Ld. Counsel for the petitioner contended that the impugned order is contrary to principle of law laid down in the judgment of Hon'ble Supreme Court of India in Iqbal Singh Marwah vs. Meenakshi Marwah & Anr., (2005) 4 SCC 370. He contended that bar under Section 195 Cr.P.C. is not applicable to documents forged and fabricated before they are produced or used in a judicial proceeding. He contended that the judgment relied by the trial Court in the case of M/s Bandekar Brothers Pvt. Ltd. & Anr. v. Prasad Vassudev Keni (supra) is not applicable to this case. He contended that the trial Court did not appreciate that forgery was not committed after the said documents were filed in the Court.
Crl. Rev. No. 68/2023 Baljinder Singh Malia vs. State & Ors. Page No. 5 of 15
11. Ld. Counsel for the petitioner contended that status report stated that one document filed on record could affect the decision of the Court. He contended that the allegations made in the complaint disclosed commission of offences punishable under Section 465/467/468/471/120B/34 IPC. He contended that the respondent No. 2 to 8 forged e-mails and other documents to show that they have become members of the said society. He contended that description of the forged documents is given in complaint dated 28.11.2021 lodged with PS Subzi Mandi. He contended that e-mails were truncated or fabricated. He contended that a private complaint is maintainable in respect of forged and fabricated documents produced or used in a proceeding before the Court. He contended that there is need of scientific investigation to ascertain manner of forgery and the persons involved in preparation of the said documents as well as for recovery of the said documents. He prayed for setting aside of the impugned order.
LAW:
12. Section 195 Cr.P.C. is as under:
"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.-(1) No Court shall take cognizance-
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or
(ii) of any abetment of, attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
Crl. Rev. No. 68/2023 Baljinder Singh Malia vs. State & Ors. Page No. 6 of 15
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under Section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause
(ii), [except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate]. (2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:
Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
(3) In clause (b) of sub-section (1), the term "Court"
means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purpose of this section.
(4) For the purposes of 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;
Crl. Rev. No. 68/2023 Baljinder Singh Malia vs. State & Ors. Page No. 7 of 15
(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."
13. The edifice of the case of the petitioner is premised on the principle of law enunciated in Iqbal Singh Marwah vs. Meenakshi Marwah & Anr. (supra), as under:
"33. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) CrPC would be attracted only when the offences enumerated in the said provision has been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e. during the time when the document was in custodia legis.
34. In the present case, the Will has been produced in the court subsequently. It is nobody's case that any offence as enumerated in Section 195(1)(b)(ii) was committed in respect to the said Will after it had been produced or filed in the Court of District Judge. Therefore, the bar created by Section 195(1)(b)(ii) CrPC would not come into play and there is no embargo on the power of the court to take cognizance of the offence on the basis of the complaint filed by the respondents. The view taken by the learned Additional Sessions Judge and the High Court is perfectly correct and calls for no interference."
14. The case of the petitioner is that the respondent No. 2 to 8 forged and fabricated following documents:
Sl. No. Documents
1. Noted dated 08.07.2019 for inviting membership for the society
2. Application submitted by Mr. Dilip Kumar Lal for membership
3. Emails dated 12.07.2019 and 19.09.2019
4. Minutes of General Body Meeting dated 15.07.2019
5. Notice dated 07.07.2019 for General Body Meeting on 15.07.2019
6. Notice dated 14.09.2019 for summoning an emergent meeting of governing body of the society Crl. Rev. No. 68/2023 Baljinder Singh Malia vs. State & Ors. Page No. 8 of 15
15. As held in the judgment in Iqbal Singh Marwah (supra), a private complaint is maintainable for offences under Section 463, Section 471, Section 475 or Section 476 IPC in respect of a document produced or given in evidence in a proceeding in any Court. Bar under Section 195(1)(b)(ii) Cr.P.C. will come into play only in respect of offences committed in, or in relation to, any proceeding in any Court.
16. In M/s Bandekar Brothers Pvt. Ltd. & Anr. v. Prasad Vassudev Keni (supra), two private complaints were filed alleging use of forged debit notes and false entries in books of accounts in a civil suit. In that case, the appellants contended before Hon'ble Supreme Court of India that documents and books of accounts were forged before they were used in evidence in the Court proceedings and therefore, there was no requirement to follow procedure set out under Section 340 Cr.P.C. and further that offences of forgery punishable under IPC can be subject matter of a private complaint and further, he relied on judgment in Iqbal Singh Marwah (supra). Hon'ble Supreme Court of India after taking note of relevant statutory provisions observed, as under:
"17.....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.
23. At this stage, it is important to understand the difference between the offences mentioned in Section 195(1)(b)(i) and Section 195(1)(b)(ii) CrPC.
Crl. Rev. No. 68/2023 Baljinder Singh Malia vs. State & Ors. Page No. 9 of 15 Where the facts mentioned in a complaint attract the provisions of Sections 191 to 193 IPC, Section 195(1)(b)(i) CrPC applies. What is important is that once these sections of IPC are attracted, the offence should be alleged to have been committed in, or in relation to, any proceeding in any court. Thus, what is clear is that the offence punishable under these sections does not have to be committed only in any proceeding in any court but can also be an offence alleged to have been committed in relation to any proceeding in any court.
30. Importantly, the Court then stated that Section 195 CrPC is an exception to the general provision contained in Section 190 thereof, and creates an embargo upon the power of the Court to take cognizance of certain types of offences enumerated under Section 195, which must necessarily follow the drill contained in Section 340 CrPC (see para 21). An important reason is then given by the Court, which is that the victim of a forged outside the court premises and before being introduced in a court proceeding, would render the victim of such forgery remediless, in that it would otherwise be left only to the court mentioned in Section 340 CrPC who decides as to whether a complaint ought or ought not to be lodged in respect of such complaint.....
37. The aforesaid judgments clearly lay down that when Section 195(1)(b)(i) CrPC is attracted, the ratio of Iqbal Singh Marwah, which approved Sachida Nand Singh v. State of Bihar, is not attracted, and that therefore, if false evidence is created outside the court premises attracting Sections 191/192 IPC, the aforesaid ratio would not apply so as to validate a private complaint filed for offences made out under these sections."
17. Forgery is defined in Section 463 IPC, 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 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."
Crl. Rev. No. 68/2023 Baljinder Singh Malia vs. State & Ors. Page No. 10 of 15
18. Making a false document is defined in Section 464 IPC, as under:
"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 in any material part thereof, after it has been made, executed or affixed with [electronic signature] 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 or an electronic record or to affix his [electronic signature] on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that be reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.]"
19. The case of the petitioner is that the respondent No. 2 to 8 forged documents and e-mails to become members of the said society and used the said documents and e-mails in a civil suit vide CS No. 558/2021 pending adjudication before the Court of Sh. V.K. Gautam, Ld. ADJ, Tis Hazari Courts, Delhi.
Crl. Rev. No. 68/2023 Baljinder Singh Malia vs. State & Ors. Page No. 11 of 15
20. The petitioner has neither stated in the complaint under Section 200 Cr.P.C. nor in the complaint dated 28.11.2021 lodged with PS Subzi Mandi or in the grounds of revision, the nature of forgery committed by the respondent No. 2 to 8 in relation to the aforesaid documents used or produced before the Civil Court.
21. In M/s Bandekar Brothers Pvt. Ltd. & Anr. v. Prasad Vassudev Keni (supra), Hon'ble Supreme Court of India held, as under:
"51.....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 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....."
22. A person is said to have made a 'false document', if (i) he made or executed a document claiming to be someone else or authorized by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practising deception, or from a person not in control of his senses.
23. This is not the case of the petitioner that the respondent No. 2 to 8 made any false document with the intention of causing it to be believed that such document or electronic record was made, signed, sealed, executed, transmitted or affixed by the authority of a person by whom he knows that it was not made, signed, sealed, executed or affixed. It is not the case of the petitioner that the respondent No. 2 to 8 represented that the said documents were signed or executed by the petitioner.
Crl. Rev. No. 68/2023 Baljinder Singh Malia vs. State & Ors. Page No. 12 of 15
24. Notice dated 07.07.2019 for General Body Meeting of the said society was issued by the respondent No. 4. Request dated 14.09.2019 for convening an emergent meeting of the said society was made by the members of the said society. Public notice dated 08.07.2019 inviting membership of the said society was issued by the respondent No. 4. An application dated 09.07.2019 seeking membership of the said society was submitted by the respondent No. 3. Minutes of Meeting of the said society was signed by the members of the said society including the respondent No. 3 and 4. E-mails dated 12.07.2019 and 19.09.2019 were sent by the respondent No. 4. Therefore, the respondent No. 2 to 8 did not prepare any document pretending to be prepared by the petitioner.
25. As regards contention that Notice dated 07.07.2019 for General Body Meeting, Request dated 14.09.2019 for convening emergent meeting of General Body of the said society and Minutes dated 15.07.2019 of General Body Meeting bear forged signatures of Mr. Jitender Sengar, it can be stated that Mr. Jitender Sengar never disputed that the signatures on the said documents did not pertain him. Even the petitioner has made his wife Mrs. Manisha Sengar as the respondent No. 7 (accused No. 6 in the complaint). Therefore, the petitioner has failed to show commission of any offence punishable under Section 464 or 471 IPC.
26. The petitioner has to prove that the said documents or e-mails are false and fabricated evidence under Section 191 and / or 192 IPC and punishable under Section 193 IPC, as contained in Section 195(1)(b)(i) Cr.P.C. Therefore, the petitioner has to follow the drill of Section 340 Cr.P.C.
Crl. Rev. No. 68/2023 Baljinder Singh Malia vs. State & Ors. Page No. 13 of 15 CONCLUSION:
27. Therefore, this Court does not find any legal infirmity or material illegality or jurisdictional error in the impugned order which would occasion injustice, if it is not set- aside. Accordingly, the criminal revision petition filed by the petitioner is dismissed. A copy of judgment alongwith trial Court record be sent to trial Court. The criminal revision file be Digitally signed consigned to record room. by SANJAY SANJAY SHARMA SHARMA Date:
2023.02.02 15:08:00 +0530 Announced in the open Court SANJAY SHARMA-II on this 02nd February, 2023 Addl. Sessions Judge-03 (Central) Tis Hazari Courts, Delhi Crl. Rev. No. 68/2023 Baljinder Singh Malia vs. State & Ors. Page No. 14 of 15 Baljinder Singh Malia vs. State & Ors. CNR No.: DLCT01-001354-2023 Crl. Revision No. 68/2023 02.02.2023 Present : Mr. Nikhil Malhotra, Advocate with the petitioner.
Vide separate judgment, the criminal revision petition filed by the petitioner is dismissed. The criminal revision file be consigned to record room.
Digitally signedby SANJAY SANJAY SHARMA SHARMA Date:
2023.02.02 15:08:16 +0530 Sanjay Sharma-II ASJ-03, Central District Tis Hazari Courts Delhi NK 02.02.2023 Crl. Rev. No. 68/2023 Baljinder Singh Malia vs. State & Ors. Page No. 15 of 15