Karnataka High Court
Indian Bank vs Span Floritech Private Limited on 5 July, 2013
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 5TH DAY OF JULY 2013
BEFORE
THE HON'BLE MR JUSTICE K. N. KESHAVANARAYANA
CRIMINAL PETITION No.4143/2009
BETWEEN:
1. Indian Bank,
A Body corporate constituted under
The Banking Companies
(Acquisition & Transfer of
Undertakings) Act, 1970 and
Having its head office at No.66,
Rajaji Salai, Chennai-600 001
And Having branch Office at
United Mansion,
110, M.G.Road,
Bangalore-560 001.
And Represented by its
Deputy General Manager
And Circle Head,
Mr.G.N.Hegde,
S/o. Late N.P.Hegde,
Aged 57 years.
2. Mr.C.G.Raghu,
S/o. Mr.G.M.Ganapamaiah,
Aged 57 years,
Assistant General Manager,
Indian Bank,
M.G.Road Branch,
United Mansion, 110,
M.G.Road,
Bangalore-560 001.
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3. Mr.G.N.Hegde,
S/o. Late N.P.Hegde,
Aged 57 years,
Deputy General Manager
And Circle Head,
Indian Bank, Circle Office,
Raheja Towers, M.G.Road,
Bangalore-560 001. ... Petitioners
(By Sri.A.Keshava Bhat &
Sri.K.Shrikrishna, Advocates)
AND:
1. Span Floritech Private Limited,
A Company incorporated under
The Companies Act,
Having its Registered Office
At 252, 4th Cross, 4th Main,
H.A.L.3rd Stage,
Bangalore-560 075,
Duly Represented by its
Managing Director,
Mr.T.Mukunda.
2. The State of Karnataka
Represented by the
State Public Prosecutor,
High Court Buildings,
Bangalore. ... Respondents
(By Sri.Y.Rajendra Prasad Shetty, Advocate for R-1;
Sri.K.Dilip Kumar, Government Pleader for R-2)
This Criminal Petition is filed under Section 482 of the
Cr.P.C praying to quash the entire proceedings in PCR
No.11969/2009 on the file of the IV-Additional Chief
Metropolitan Magistrate, Bangalore and the consequential FIR
registered by the Police dated 11.07.2009 in Crime
No.262/2009 of Ashoknagar Police Station.
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This Criminal Petition coming for admission on this day,
the Court made the following:
ORDER
In this petition filed under Section 482 of Cr.P.C., the petitioners arraigned as Accused Nos. 1 to 3 in PCR No.11969/2009 on the file of IV-Additional C.M.M., Bangalore, have sought for quashing the entire proceedings in the said case and consequential FIR registered by the police on 11.07.2009 in Crime No.262/2009 of Ashoknagar police station.
2) Respondent No.1 filed a private complaint alleging the offences punishable under Sections 120-B, 409, 420, 465, 468, 471 r/w. 34 of I.P.C. against these petitioners inter alia alleging that, petitioner Nos. 2 and 3, as officers of the 1st accused-Bank, for the purpose of filing the claim for recovery of money against the complainant before the Debt Recovery Tribunal (for short, 'DRT'), Bangalore, have produced forged and created Acknowledgement of Debt to bring the claim within the period of limitation and thereby they have committed the aforesaid offences.
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3) The learned Magistrate before whom the complaint was presented, referred the complaint for
investigation to the police under Section 156(3) of Cr.P.C., based on which, Ashoknagar Police registered the case in Crime No. 262/2009 and took-up investigation. On coming to know of the same, the petitioners have presented this petition
4) The principal contention urged in this petition is that the complaint is barred under Section 195 (1)(b)(ii) of Cr.P.C. and therefore, the learned Magistrate had no jurisdiction to entertain the said complaint, as such, the order referring the complaint to the police for investigation is without jurisdiction and that in the absence of any allegation in the complaint to the effect that petitioners being the Chairman, Managing Director and other officers of the bank are responsible for the alleged forgery, the learned Magistrate could not have directed an investigation to be made on the allegations made in the complaint. Therefore, it is contended that the registration of the case 5 by the 2nd respondent-police against these petitioners is without any basis.
5) I have heard Sri. Keshava Bhat, learned counsel appearing for the petitioners as well as Sri. Y. Rajendra Prasad Shetty, learned counsel appearing for Respondent No.1 and the learned Government Pleader appearing for Respondent No.2.
6) Sri. Keshava Bhat during the course of the argument laid stress on the bar created under Section 195(1)(b)(ii) of Cr.P.C. and contended that in the light of the said bar, the complaint could not have been entertained and investigation into the allegations made on such complaint could not have been directed. He also contended that, in the absence of any allegations about these petitioners being responsible for the alleged acts, the investigation ordered by the learned Magistrate is perverse and liable to be set aside.
7) On the other hand, learned counsel for Respondent No.1 contended that, the bar under Section 6 195(1)(b)(ii) is not applicable to the facts of this case for the reason that the forgery alleged in the complaint has occurred much prior to the production of the document before the DRT, therefore, the learned Magistrate had jurisdiction to entertain the complaint. It is his contention that, even if Section 195(1)(b)(ii) is applied, the bar is only against taking cognizance and not entertaining the complaint. Therefore, the order passed by the learned Magistrate on entertaining the complaint directing investigation by the police, is justifiable. Learned counsel further contended that, in the light of the specific defence taken by Respondent No.1 before the DRT as to the forgery of Acknowledgement of Debt, the DRT referred the said document to the handwriting expert of the State Forensic Science Laboratory, Bangalore, and the handwriting expert after examination of the disputed document with the admitted signature of Respondent No.1 has furnished his opinion that the signature found on the Acknowledgement of Debt is produced by means of 'traced forgery'. A copy of the said opinion is produced along with the memo. In the light of the same, it is contended by the learned counsel for 7 Respondent No.1 that there is prima-facie material at this stage to indicate that the document produced before the DRT by the bank in support of its claim is the forged one and therefore, it is a fit matter for investigation by the police to find-out as to who is responsible for the forgery and who is responsible for production of such forged document before the competent court to support the claim. Therefore, he sought for dismissal of the petition.
8) In the facts and circumstances of the case, the point that arises for consideration is, Whether the petitioners. have made-out any ground for quashing the proceedings?
9) I have bestowed my anxious considerations to the submissions made on both sides.
10) As noticed supra, the principal allegation in the complaint against the petitioners is that, in support of the claim made before the DRT, an Acknowledgement of Debt is produced so as to bring claim within the period of limitation; that the said document is forged and created 8 one. Section 195 of Cr.P.C. no doubt creates a bar for the court from taking cognizance of any offences enumerated therein except on the complaint in writing of that court or by such officer of the court as that court may authorize in that behalf, or of some other court to which that court is subordinate.
11) Reading of Section 195 of Cr.P.C. makes it clear that, the bar created therein is only as to the court taking cognizance. The section does not bar entertaining a complaint under Section 200 Cr.P.C. by a private individual alleging offences enumerated therein. In the case on hand, the learned Magistrate on receipt of the complaint lodged by Respondent No.1, has merely referred the complaint to the police for investigation under Section 156(3) of Cr.P.C. Nevertheless even if it is assumed for the purpose of argument that this section is applicable even at the stage of entertaining the complaint, in my considered opinion, in the light of the authoritative pronouncement of the Constitutional Bench of the Apex Court in Iqbal Singh Marwah Vs. Meenakshi Marwah (2005 SCC (Crl.) 1101, 9 the bar created under Section-195(1)(b)(ii) is not applicable to the case on hand. As noticed supra, the alleged forgery and creation of document, according to Respondent No.1, has occurred anterior to the date of filing of the petition before the DRT. In other words, according to the specific averments made in the complaint, the forged document was produced before the DRT to make it appear that the claim made therein was within the period of limitation. The allegation in the complaint is not that the forgery or creation has occurred when the document was in the custody of the court.
12) In Iqbal Singh Marwah's case cited supra, the Apex Court after considering the various decisions on the point, has concluded that Section 195(1)(b)(ii) of Cr.P.C. would be attracted only when the offences enumerated in the said provision have been committed with respect to the 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. In the light of the said decision, there is no substance in the argument of 10 Sri.Keshava Bhat about the application of Section 195(1)(b)(ii) of Cr.P.C.
13) As could be seen from the copy of the handwriting expert's opinion, the disputed document was referred to handwriting expert by DRT for comparison and opinion. According to the handwriting expert, the signature on the disputed document namely, Acknowledgement of Debt-cum- Security produced by the bank before the DRT was compared with the specimen signature of Respondent No.1-complainant and the expert has opined that the person who wrote the admitted the signatures marked as S.1 to S.16 did not write the questioned signature marked as Q.1, and the questioned signature marked as Q1 is produced by means of 'traced forgery'. Thus, at this stage, there is prima-facie evidence to indicate that the document in question has been fabricated by 'Traced Forgery'. Of course, in the complaint it is not specifically stated as to who committed this forgery. However, the matter as to who committed forgery has to be found-out during the investigation. The petitioner is the Bank represented by its 11 Chairman and Managing Director, who is the principal officer of the bank. The document in question is filed before the Tribunal by the Bank. Therefore, principally it is an offence by the company, for which the principal officer namely, the Managing Director is undoubtedly would be liable. The other two petitioners are arraigned in the capacity of Assistant General Manager and Deputy General Manager respectively. In view of the fact that the question as to who was responsible for this forgery and responsible for production of such forged document before the DRT has to be found-out during the investigation, I do not find any perversity or illegality in the order passed by the learned Magistrate directing investigation. Therefore, I find no merit in this petition. Accordingly, the petition is dismissed.
Sd/-
JUDGE KGR*