Bombay High Court
Shri H.V. Rangaswamy & Another vs The State Of Maharashtra & Another on 25 March, 1998
Equivalent citations: 1998(5)BOMCR499
Author: S.S. Nijjar
Bench: S.S. Nijjar
ORDER S.S. Nijjar, J.
1. This petition has been filed under Article 227 of the Constitution of India for quashing and setting aside the orders passed by the Additional Sessions Judge for Greater Mumbai dated 9th October, 1997, in Criminal Revision Application No. 99 of 1997 and for quashing the order passed by the learned Metropolitan Magistrate, 21st Court, Bandra, Mumbai in C.C. No. 76/S/95 dated 3rd December, 1996.
2. Admitted facts for the purpose of the decision of this petition are that the petitioner No. 1 was working with Canara Bank at Bangalore and petitioner No. 2 was working with Canara Bank at Mumbai. The first respondent is the State of Maharashtra. The second respondent is the original complainant who had filed complaint under sections 409, 467, 468, 471, 474, of I.P.C. against the petitioners and five other accused.
3. The allegation in the complaint is that at the relevant time respondent No. 2 was working as an Accountant of a Steel Merchandising firm known as Yatin Steels which had its office at 50-A Baroda Street, Bombay-9. He has also been an agent for Life Insurance Corporation. The complaint was filed against a firm trading in steel items who were arraigned as accused Nos. 2 to 5 and against the petitioner Nos. 1 and 2. It was stated that since 1989, respondent No. 2 had maintained an account with New Bank of India, Mandvi Branch, Bombay. In April, 1991, accused Nos. 2 to 4 represented to respondent No. 2 that they were facing financial difficulties. Thus a cash loan of Rs. 1,00,000/- was given to accused Nos. 2 to 4 by Respondent No. 2. This was given against a Hundi in favour of respondent No. 2 dated 8m April, 1991. This was also supported by a post dated cheque dated 27th November, 1991, in the sum of Rs. 1,11,440/- Upon the cheque having been dishonoured, respondent No. 2 prosecuted the accused Nos. 2 to 4 for offences under sections 138 to 141 of the Negotiable Instruments Act (for short "the Act"). On 20th March, 1992 respondent No. 2 received a letter dated 18th March, 1992, from Canara Bank, Lavello Road, Bangalore calling upon him to arrange for the clearance of the dues amounting to Rs. 5,36,250/-. This amount was demanded as one Shri Pankaj Joshi, accused No. 4, had not made any arrangement for payment of the bills which were dishonoured. Similar letters had been sent to accused Nos. 1 to 5. In reply to the query made by respondent No. 2, Canara Bank sent a number of documents purported to have been executed by him. It was stated that the respondent No. 2 had executed the document as a guarantor for the loans which had been given to accused Nos. 1 to 5. Inspite of the denial Canara Bank filed a suit against the accused persons as also respondent No. 2 on 27-1-1994. In this suit the Bank had relied on a Guarantee Agreement dated 19th April, 1991. On coming to know that the Bank had filed the civil suit on the basis of forged document, respondent No. 2 filed the complaint on the basis of which the two impugned orders have been passed. The complaint was filed on 5th April, 1995. On pursuing the complaint as well as the documents, the learned Metropolitan Magistrate issued process, inter alia, against the petitioners. The petitioners, therefore, filed an application before the learned Metropolitan Magistrate, 21st Court, Bandra, Bombay for revocation of the issue of process on the ground that the said Court had no jurisdiction under section 195(b)(ii) of the Criminal Procedure Code, to entertain the complaint. This plea of the petitioners has been rejected by the Metropolitan Magistrate by his order dated 3rd December, 1996. Against the said order, the petitioners filed criminal revision application which has been dismissed by the learned Additional Sessions Judge on 9th October, 1997.
4. It was submitted before the learned Magistrate that the case of the petitioners is squarely covered by a judgment o! the Supreme Court . Nirmaljit Singh Hoon v. The State of West Bengal and others. The submission made before the learned Magistrate that it was only the Courts in which the civil suit was filed at Bangalore had the jurisdiction, if any, was summarily rejected by the learned Magistrate. Before the learned Addition Sessions Judge, three authorities were specifically cited i.e. . The learned Additional Sessions Judge, however, relied on a judgement and dismissed the revision petition. A perusal of the order of the learned Additional Sessions Judge shows that the authorities in particular has neither been distinguished nor followed. It is a settled proposition of law that where there is a conflict of precedent then the decisions of the larger Bench of the Supreme Court have to be followed in preference to smaller Benches of the Court. This view of mine has been reiterated lately by a learned Single Judge of this Court in the case of National Housing Bank v. A.N. Z. Grindlays Bank P.L.C., L.J.1998(2) page 153. If one is to follow the law laid down by the Supreme Court in the Nirmalijit Singh's case (supra) it leaves no manner of doubt that the complaint ought to have been filed by the Court before which the forged document was produced or tendered. In the present case, forgery if any is alleged to have been committed on 19th April, 1991. The civil suit was filed by the Bank on 27-1-1994. Thus there was no question of any forgery having been committed before the Court. Furthermore, the complaint could not be entertained at the hands of a private party. The complaint, if any, has to be filed by the Court before which a party to a proceeding in that Court has produced or tendered in evidence a document in respect of which the offence is alleged to have been committed. Mr. Pillai, Counsel appearing on behalf of respondent No. 2, has placed strong reliance on a Full Bench decision of the Punjab and Haryana High Court in the case of Harbans Singh and others v. State of Punjab, 1986 Cri. L.J. 1834. He has relied on the following observations made therein:
"18. The net result of the discussion is that Karnail Singh's case, 1983 Cri.L.J. 713 (Punj. & Har.) is correctly decided and depicts the correct position of the law. Section 195(1)(b)(ii) of the new Code, is limited in its operation only to the offences mentioned in this section if committed in regard to a document produced or given in evidence in such proceedings, while the document is in the custody of the Court, it has no application to a case in which such a document is fabricated prior to its production or given in evidence."
These observations of the Full Bench are contrary to the law laid down by the Supreme Court in Nirmaljit Singh's case (supra). A perusal of the judgment of the Punjab & Haryana Full Bench also shows that Nirmaljit Singh's case was not brought to the notice of the said Bench. In Mahadev Bapuji Mahajan (dead) and another v. State of Maharashtra, the Supreme Court has come to the conclusion that even though the documents which were produced before the Revenue Court, the bar under section 195(1)(b) of the Criminal Procedure Code, was not attracted. It was held that the complaint by the private party could be entertained. In paragraph 3 of the judgment the Supreme Court observes as under :
"3. Leave was granted limited to the question of sanction as required under section 195 of the Criminal P.C., of 1973. It was contended before the High Court that under section 195, Cr. P.C. of 1973, the complaint should be filed by the Court concerned and then the Criminal Court can take cognizance of the offences mentioned under section 195(1)(b) Cr. P.C. The submission was based on the ground that in the instant case, the charge-sheet was filed in 1975 and hence the provisions of section 195(1)(b), Cr.P.C. were attracted since the complaint was not filed by the Revenue Court before which a proceedings was deemed to be pending and the alleged offences of forgery were committed in respect of documents produced or given in evidence in such proceeding. In other words, the submission is that when offence is alleged to have been committed in respect of documents produced or given in evidence in the proceedings in a Revenue Court and since that Revenue Court has not filed any complaint, the Criminal Court has no jurisdiction to take cognizance of the offences. On behalf of the State it was contended that in the instant case, a complaint was filed long before the new Code came into force and the offences thereby deemed to have been committed before the proceedings commenced. Therefore, the question of Revenue Court's giving the complaint did not arise. This aspect has been considered by the High Court in great detail. Regarding the offences committed before the start of the proceedings, the High Court, in our view, has rightly held that no complaint is necessary by the Court concerned either in the old Code or in the new Code. Therefore, the contention that the absence of a complaint by the Revenue Court was a bar for taking cognizance by the Criminal Court in respect of these offences which were committed even before the start of the proceedings before the Revenue Court cannot be sustained. The view taken by the High Court appears to be correct."
Irrespective of the controversy raised by the Counsel, I am of the considered opinion that the matter is no longer res integra. The Three Judges Bench of the Supreme Court considered the applicability of section 195(1)(b)(ii) in the case of Surjit Singh and others v. Balbir Singh . In that case the facts were as follows. The respondent therein had laid the complaint for offences punishable under sections 420, 467, 468, 471 read with section 120B I.P.C. with the allegations that the appellants had conspired and fabricated an agreement dated July 26, 1978 and forged the signature of Smt. Dalip Kaur and on the basis thereof they attempted to claim retention of the possession of the remaining part of the house. The Magistrate, Amritsar had examined witnesses under section 202 of the Code of Criminal Procedure, 1973 (for short, the 'Code') and ordered issue of process summoning the appellants to appear on September 27, 1983. It would appear that the appellants filed civil suit for an injunction to restrain Dalip Kaur from interfering with the possession of appellants 1 to 3 and he produced the agreement dated 21-2-1984 which was said to have been executed and signed by Dalip Kaur. Thereafter, the appellants filed an application to quash the complaint on the ground of bar under section 195 of the Code. The Magistrate and on revision the Sessions Judge dismissed the same. When the revision was filed in the High Court of Punjab & Haryana, on a question of law ultimately the matter was referred to Full Bench which had answered the question against the appellants and remitted the matter to the referring Judge. The learned Single Judge in the impugned order dated August 4, 1986 has dismissed the revision. On the aforesaid facts, the Supreme Court examined the question as to "Whether the Magistrate, First Class at Amritsar is devoid of jurisdiction to take cognizance of the offence". The appellants placed strong reliance on the judge-
merit of the Supreme Court in the case of Gopal Krishna Menon v. D. Raja Reddy and the judgment in the case of Patel Laljibhai and Somabhai v. State of Gujarat . It was contended that once the documents had been produced before the Court, it is the civil Court that has seisin*** of the matter. It alone or an Officer on its behalf has to lay the complaint in writing. The Supreme Court examined section 195(1)(b)(ii) which reads that no Court shall take cognizance "of any offence described in section 463, or punishable under section 471, 475 or 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." Relying on the observations made by the Supreme Court in the earlier cases in Budhu Ram v. State of Rajasthan and in Patel Laljibhai's case (supra) the Supreme Court has held thus:
"It would thus be clear that for taking cognizance of an offence, the document, the foundation for forgery, if produced before the Court or given in evidence, the bar of taking cognizance under section 195(1)(b)(ii) gets attracted and the Criminal Court is prohibited to take cognizance of offence unless a complaint in writing is filed as per the procedure, prescribed under section 340 of the Code, by or on behalf of the Court."
The Supreme Court further observed that the object thereby is to preserve purity of the administration of justice and to allow the parties to adduce evidence in proof of certain documents without being compelled or intimidated to proceed with the judicial -process. In this case, the observations made by the Supreme Court in the earlier case of Laljibhai Patel were quoted as under :
"6. The purpose of imposing embargo created by section 195 was considered in Patel Laljibhai's case (supra). This Court held at pages 841 -42 (of Supp. S.C.C.) : (at pp. 1939-40 of A.I.R.) :--
"The under lying purpose of enacting section 195(1)(b) and (c) and section 476 seems to be to control the temptation on the part of the private 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 these offences and it is only by misleading the Courts and thereby perverting the due course of law and justice that the ultimate object of harming the private party is designated to be realised. As the purity of the proceedings of the Court 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 party is deprived of the general right recognised by section 190, Cr.P.C. 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. It, therefore, appears to us to be more appropriate to adopt the strict construction of confining the prohibition contained in section 195(1)(c) only to those cases in which the offences specified therein were committed by a party to the proceeding in character as such party."
At page 846 (of Supp. S.C.C.) : (at p. 1943 of A.I.R.) it was stated that:
"Broadly speaking we are inclined to agree with the reasoning of the Allahabad Full Bench in Kushal Pal Singh's case . This in our opinion reflects the better view. The purpose and object of the Legislature in creating the bar against cognizance of private complaints in regard to the offences mentioned in section 195(1)(b) and (c) is both to save the accused persons from vexatious or baseless prosecutions inspired by feelings of vindictive-ness on the part of the private complainants to harass their opponents and also to avoid confusion which is likely to arise on account of conflicts between findings of the courts in which forged documents are produced or false evidence is led and the conclusions of the criminal courts dealing with the private complaint. It is for this reason as suggested earlier, that the Legislature has entrusted the Court, whose proceedings had been target of the offence of perjury to consider the expediency in the larger public interest, of a criminal trial of the guilty party."
It has been observed by the Supreme Court that the object of the bar under section 195 is to protect persons from needless harassment for the sake of private vendetta; to preserve purity of the judicial process and unsullied administration of justice; to prevent the parties of the temptation to pre-empt the proceedings pending in a Court. Earlier also the Supreme Court in the case of Nirmaljit Singh's case (supra) while examining the provisions of section 195(1)(c) of the Criminal Procedure Code, had held as under :
".....The proper construction of that clause, therefore, is that when a party to a proceeding before any Court produces or tenders in evidence a document in respect of which an offence e.g. section 471 read with section 467, is alleged to have been committed, it is that Court before which the document is produced or tendered in evidence which can file a complaint regarding such an offence and a Magistrate cannot take cognizance of such an offence except upon a complaint by such Court or a Court subordinate to it. On this construction the contention urged by Mr. Chagla must fail."
In Nirmaljit Singh Hoon's case (supra) Mr. Chagla had submitted that even though the document had been produced before the police in an investigation conducted by virtue of the orders issued under section 156(3), it tantamounts to production of the document in Court. It was also argued that since the copies of the documents were used annexures to the affidavit, this certainly can be said to have been produced in the proceedings before the Court. Both these submissions of the learned Counsel were rejected as noticed above. In my view, the courts below have erred in law by ignoring the aforesaid ratio laid down by the Supreme Court. Both the aforesaid judgements are judgments given by larger Bench. The judgement relied upon by the Additional Sessions Judge, Greater Bombay, was given by a smaller Bench of two Judges. Apart from this, a perusal of the complaint would show that the petitioners are sought to be roped in on the presumption that they had acted on the basis of a forged document. In the event it is found that the document had been forged it would then be the submission of the respondents that the petitioners have committed offences of misappropriation and breach of trust. It is to be noticed that the Bank was not at all the beneficiary of the transaction. The loan had been advanced to accused Nos. 2 to 4. Thus there would have been no case of any unjust enrichment in the case of either the Bank or its employees. In view of the above, I am of the considered opinion that permitting these proceedings to continue would lead to abuse of the process of law. Whilst exercising power under Article 227 of the Constitution of India the power and the duty of the High Court is essential to ensure that the courts and tribunals inferior to the High Court have done what they were required to do. The High Court has the power under Article 227 to quash the proceedings pending in the lower courts when the said courts have no jurisdiction to entertain the said proceedings.
5. In view of the above the writ petition is allowed. Both the impugned orders are quashed. Resultantly the proceedings pending in C.C. No. 76/S/95 before the learned Metropolitan Magistrate, 21st Court, Bandra are quashed qua the petitioners. Rule made absolute.
Certified copy expedited.
6. Petition allowed.