Bombay High Court
Bharat Hiralal Sheth And Others vs Jaysin Amarsinh Sampat And Another on 14 February, 1997
Equivalent citations: 1997CRILJ2509
Author: D.G. Deshpande
Bench: D.G. Deshpande
ORDER
1. Heard the learned Counsel for the petitioners and the respondents. Respondent No. 2 filed criminal complaint against the petitioners in the Court of the Metropolitan Magistrate, 30th Court, Kurla under Sections 193, 465, 467, 468, 471 r./w. 34 of the I.P.C. This complaint was filed in 1981 and it is pending for the last 16 years undecided apparently on account of the attempts of the accused to challenge interim orders. The Magistrate in 1986 decided to frame charges, that order was challenged by the accused before the Sessions Court in revision. The revisional Court remanded the matter back to the Magistrate for passing a detailed and speaking order. Consequently, the Magistrate passed his speaking order on 12th February, 1993 framing charges against the accused under Sections 465, 468 and 471 r./w. 34 of the I.P.C. This order was again challenged by the petitioners before the Sessions Judge in revision by Revision Application No. 158 of 1993 and the revision was decided on 6th September, 1994 by the Sessions Judge and the same was dismissed. That order is challenged now in this writ petition and in this manner the complaint is pending before the Magistrate since 1981.
2. The learned Counsel for the petitioner firstly urged that this was not a case of forgery because the documents at Annexure "C" was admittedly prepared by the petitioners i.e. in their office in the name of the petitioner and consequently the matter did not come in the definition of the word "forgery". Secondly, according to the learned Counsel for the petitioners, the dispute between petitioners and the complainant-respondent No. 1 was purely of a civil nature, that no criminality involved in it and therefore the Magistrate committed error in framing charges. Thirdly, according to him in the arbitration proceedings the complainant-respondent No. 1 was present and an award was passed against him and to give counter blow to the said Award being passed in anticipation, the complainant filed the present complaint. The learned Counsel for the petitioners also relied upon certain authorities and documents in support of his contention.
3. On the other hand, it was argued by the learned Advocate for the respondents that this revision against an order passed by the learned Sessions Judge in revision was not maintainable. Secondly, according to him from the Illustration (h) of Section 464 and from Explanation 1 of Illustration (e) it was clear that preparing a document by the complainant as per Exhibit "C" was a forgery. He also contended that merely because the transaction appears to be of civil nature it cannot be thrown out from the criminal Court if the complainant succeeds in making a case that criminality is involved in the transaction. Thirdly, it was argued that both the courts below had given concurrent findings on facts against the petitioner and therefore in revision it was not open to this Court to upset those findings on fact. Lastly, it was argued that in the arbitration proceedings the complainant appeared thrice and did not take part in that sense of the term and therefore taking part in arbitration proceedings cannot act as estoppel against the complainant. The learned APP supported the submissions made by the complainant's Advocate.
4. So far as, forgery is concerned, it is the case of the complainant that he was buying and selling shares through accused No. 1 since 1972 and he had done business worth lacs of rupees from 1972 to 1975. On 4th July, 1974 an Ordinance was promulgated by the Central Government when several transactions between accused and the complainant were pending. Because of the Ordinance there was a crash in the market and the prices of shares went down considerably. As a result, complainant's profits from complainant's transaction with accused No. 1 shot up and substantial amount became due and payable by the accused No. 1 to the complainant.
5. Further, as per the complaint, the accused went on making payments and also went on giving the shares. The complainant began to suspect the conduct of the accused was making false and dishonest contentions. He, therefore, went to the office of the accused and questioned about his mala fide intention and at that time the accused threw a bill on his face which gave details of certain transactions having been taken place on 23rd August, 1974 in which the complainant suffered loss of Rs. 30,700/-. The bill is numberd 771 dated 30th August, 1974 and according to the petitioner this bill is fabricated by the accused in the complainant's name inorder to avoid making the payment of dues to the complaiant. This in short is the case of the complainant and in this background it was argued by the petitioners' Advocate that this bill which is at Exhibit "C" of the petition was prepared by the petitioner in their own office, in their own name in regular course of business and therefore there was no forgery in it. On the other hand, the complainant's Advocate contended that a regular bill showing transactions from 16/8 to 30/8 was already served upon the complainant by the petitioner in 1974 itself and in this bill the so-called transaction dated 23-8-74 was not reflected and as such preparing documents Exhibit "7" was a bforgery. It was also contended that this bill Exh. "C" was given to the complainant 3/4 years after the transaction.
6. Section 463 of the IPC defines forgery as under :-
463. Forgery - Whoever makes any false document or part of a document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
And Section 464 defines "Making a false document" and also lays down three manners in which false documents can be said to have been made. As per the first category "Whoever dishonestly or bfraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed.
7. Relying upon this definition of making false document, the learned Counsel for the petitioners Contended that it was not the case of the complainant that petitioner made document Exhibit "C-7" with intention of causing it to be believed that this document was made by the authority of a person by whom or by whose authority the petitioners knew that it was not made and therefore document Exhibit "C-7" did not amount to forgery.
8. It is true that on the face of it documents Exhibit "C-7" is not made by the petitioner with the intention of causing it to be believed that the petitioner made the document with or by the authority of some other person and as such it appears that petitioners have a strong case in their favour. However, there is another angle to this argument and according to the learned Counsel for the respondents and the learned APP Illustration (h) of Section 464 and Explanation 1 of Illustration (e) thereof squarely and directly bring the case within the ambit of Sections 463 and 464.
9. Illustration (h) is as under :-
"(h) A sells and conveys an estate to Z. A afterwards, in order to defraud Z of his estate, executes a conveyance of the same estate to B, dated six months earlier than the date of the conveyance to Z, intending it to be believed that he had conveyed the estate to B before he conveyed it to Z. A has committed forgery."
Explanation 1. - A man's signature of his own name may amount to forgery.
Illustration (e) is as under :-
"(e) A draws a bill of exchange on himself in the name of B without B's authority, intending to discount it as a genuine bill with a banker and intending to take up the bill on its maturity. Here, as A draws the bill with intent to deceive the banker by leading him to suppose that he had security of B, and thereby to discount the bill, A is guilty of forgery."
It will be seen from the Illustration (h) that A in order to defraud Z executed a conveyance of the same estate to B which was ariti-dated by six months than the conveyance of Z and this was done by A intending it to be believed that he had conveyed the estate to B before he conveyed it to Z and this has been held to be forgery. From this illustration it will be clear that a man can be to have committed a forgery of document even if he himself is the author and signatory of the document. This illustration does not require that he should sign a document making it to be believed that somebody else has signed the same or that he was authorised to sign the same on somebody else's behalf.
10. Explanation 1 makes it further clear that the man's signature in his own name may amount to forgery and from Illustration (e) it is clear that writing a promissory note by A in the circumstances given in the illustration is considered as an act of forgery under the first head of the definition.
11. From these two Illustrations (h) and (e) and Explanation 1 it will be clear that legislature intended to cover cases under the offence of forgery whenever the person was the creator of a document even though the document was made by himself in his own name and signed in his own name. These two illustrations with Explanation 1, therefore, make the scope of the definition "Making a false document" very wide and it cannot be said that part Ist of 464 is the only provision defining words "Making the false document".
12. In view of this legal provision, it can be prima facie held that preparing Exh. "C-7" by the petitioners showing the certain transaction dated 23-8-1974 when, in fact, according to the complainant those transactions did not take place on 23-8-1974 and that they did not find place in the bill Ex. "C-8" dated 30-8-74 served upon the complainants, was forgery by the petitioner. The contention of the petitioners' Advocate, therefore, has to be rejected and that of the respondents' Advocate and his placing of reliance on Illustration (h), Explanation 1 and Illustration (e) has to be accepted.
13. Secondly, it was argued by the petitioners' Advocate that this transaction was purely civil btransaction, that no criminality was involved in the same. Apparently, the transaction may appears be of civil one because it pertains to sale and purchase of shares and making adjustment in that. It may that this bill Exhibit "C-7" formed part of the regular bill book which was written date-wise, however, at this stage, as rightly observed by both the courts below minute scrutiny of the evidence is not to be done and therefore, when in Exhibit "C-8", there is no reference to the transactions dated 23-8-74 which are now shown in Exh. "C-7", the case of the complainant that this Exh. "C-7" was subsequently prepared and given to him whether by throwing on his face or otherwise has to be accepted as an act involving criminality on the part of the petitioners. It cannot, therefore, be said that merely because the transaction is of civil nature the Magistrate should have refused to frame charges or should have refused to take cognizance of the complaint.
14. It is pertinent to note, in this regard that the case of the complainant and the petitioners is contradictory so far as the time of service of this bill upon complainant by the petitioner. Accordiiig to the petitioner this Exhibit "C-7" was served upon the complainant in due course of time i.e. by September, 1974 itself. However, according to the complainant, it was served upon him or given to him in 1977-78. The statement of the complainant in that regard has been recorded by the Magistrate on oath and whereas the defence of the accused is only by way of suggestions in the cross-examination before the charge and as such at this stage the statement on oath has to be given preference and accepted.
15. It was also contended by petitioners' Advocate that the petitioner has record to show the regularity of his transaction and regularity of preparation of bills and service on concerned parties and that all these material was produced before the arbitrator so also produced before the trial Court during his cross-examination and therefore according to him the case of the complainant should have been rejected. I am unable to agree with this submission because even though the defence was disclosed by the petitioners and made open during the cross-examination before charge and even though the petitioners brought all these circumstances on record both the Courts below refused to interfere in the matter of framing charge by not accepting the defence of the petitioner.
16. The learned Counsel for the petitioner cited certain authorities in support of his contention that Exh. "C-7" could not be said to have been a forged document because it was prepared by the petitioners in their own name and under their own signatures. , In re : Venkatasuryanarasimha Rao. This ruling is not applicable to the present case because the present case is directly covered by Illustration (h), Explanation 1 and Illustration (e). For the same reason .
Motisinh Gambhirsinh v. The State is also not applicable. Coming to the tenability of this petition, it was contended by the respondents' Advocate that the present revision being a revision against the order of the learned Sessions Judge was not tenable. The respondents' Advocate relied upon , Dharampal v. Ramsri in support of their contention that no revision is tenable against the revision apd provisions of Section 482 of the Cr.P.C. should be invoked only in the rarest of the rate cases. On the other hand the learned Counsel for the petitioner relied upon , Krishnan v. Krishnaveni. This held the High Court has suo motu power under Sections 401 and 483 of the Cr.P.C. to have supervisory jurisdiction to prevent abuse of process and to meet ends of justice and for curbing mal-practices and delaying proceedings.
17. In my opinion, even if for the sake of arguments it is accepted that the High Court can invoke its inherent powers in a given case the question is whether this is a case where such powers should be invoked. Both the Courts below had given reasoned orders which do not show that there is any abuse of the process of law nor which shows that any malpractices or delaying tactics were adopted by the complainant. None of the orders of both the Courts below can be said to be perverse resulting in serious miscarriage of justice and as such even if this Coun may invoke its inherent powers, the present case is not the one requiring such interference. This is also not a rarest of the rare case where powers under Section 482 should be invoked.
All the other authorities cited by the petitioners' Advocate about the forgery have not considered Illustration (h), Explanation 1 and Illustration (e) because the facts in this case were different and therefore these authorities have no application in the present case.
18. For all these reasons civen above, the judgments of both the courts below do not require any interference to the contrary it is necessary to give directions to the concerned Magistrate to decide and dispose of the complaint within a specified period without allowing any party to further delay and protract the litigation. I, therefore, pass the following order :-
ORDER The writ petition is dismissed. Parties to appear before the Magistrate on 3rd March, 1987 and the Magistrate is directed to complete the trial within a period of six months from the receipt of this order.
19. Petition dismissed.