Gujarat High Court
Navin Kohli - Naveen Project Ltd vs State Of Gujarat & 3 on 22 March, 2017
Author: B.N. Karia
Bench: B.N. Karia
R/CR.MA/3434/2011 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 3434 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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NAVIN KOHLI - NAVEEN PROJECT LTD....Applicant(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR ANSHIN H DESAI, Senior Advocatel with MR. NEEL N SHAH, Advocate for
the Applicant(s) No. 1
DELETED for the Respondent(s) No. 3
MR HARSHIL C DATTANI, ADVOCATE for the Respondent(s) No. 4
MR KP RAVAL, APP for the Respondent(s) No. 1
RULE NOT RECD BACK for the Respondent(s) No. 2 - 3
RULE SERVED for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE B.N. KARIA
Date : 22/03/2017
CAV JUDGMENT
1. The present application is filed by the applicant- Page 1 of 24 HC-NIC Page 1 of 24 Created On Mon Aug 14 11:00:58 IST 2017 R/CR.MA/3434/2011 CAV JUDGMENT accused no.1 under Section 482 of the Code of Criminal Procedure, 1973 { "CrPC" for brevity} for quashing and setting aside the complaint, being Criminal Case No. 5656 of 2007 filed before the court of learned Chief Judicial Magistrate, Jamnagar for the offence punishable under Sections 193, 196, 200, 471 read with section 34, 114 and 120B of the Indian Penal Code and order dated 30.07.2007 issuing summons as well as other consequential proceedings arising therefrom, qua the present applicant.
2. The facts leading to filing of the present application are as under;
2.1 That, the original accused no.2 (respondent no.3) had given a power of attorney on behalf of a Company named Navin Projects Limited in favour of the accused no.3 (respondent no.4) to contest a summary suit, being Summary Suit No. 21 of 2002. That, a Vakalatnama thereof was also signed by the respondent no.4 and he had given some applications in the said suit. That, no application for leave to defend Page 2 of 24 HC-NIC Page 2 of 24 Created On Mon Aug 14 11:00:58 IST 2017 R/CR.MA/3434/2011 CAV JUDGMENT was filed by the respondent no.4 under the power held from the respondent no.3. That, at this juncture, the applicant, who is the Managing Director of Navin Projects Limited, came to know through another advocate, who was retained by the applicant in some other case that as such, a summary suit is filed against the Company, wherein the present applicant and a suit against him is proceeding ex-parte and respondent no.4 has filed a Vakalatnama on behalf of the Company on the basis of a power of attorney executed by respondent no.3. That, however no application for leave to defend has been moved by the said power of attorney holder on behalf of the company. 2.2 That, the applicant, therefore, gave an application praying for leave to defend pointing out these facts. The said application came to be rejected and the said order remained final as the appeal preferred against the order rejecting the application for leave to defend, has been withdrawn. Ultimately, the Summary Suit was decreed in favour of the plaintiff (respondent no.2) vide Page 3 of 24 HC-NIC Page 3 of 24 Created On Mon Aug 14 11:00:58 IST 2017 R/CR.MA/3434/2011 CAV JUDGMENT judgment dated 03.04.2008, and therefore, if the complainant-respondent no.2 has to realize the said amount, the same has to be realized by moving an appropriate execution application and by executing the decree passed in the Summary Suit No. 21 of 2002, but cannot lodge the impugned complaint.
2.3 That, in two criminal cases, being Criminal Case No. 4737 of 1998 and Criminal Case No. 3488 of 1999, which were filed in respect of same transaction of a cheque, plea of the accused no.1 (applicant herein) was recorded and that the applicant was aware about representation of the Company through the respondent no.4 (ie., accused no.3). Moreover, in the said case and in the applications made in connection thereof, frequently, it was described that Bipin Gondiya is the power of attorney of Navin Project Limited Company and he was appointed by passing a resolution. Even if, with an intention to get gainful benefits in false manner in Civil Summary Case No. 21/2002 and with an intention to cheat the Court and the present Page 4 of 24 HC-NIC Page 4 of 24 Created On Mon Aug 14 11:00:58 IST 2017 R/CR.MA/3434/2011 CAV JUDGMENT complainant, the facts declared by the accused no.1-- applicant are false, as per his belief and as per statement and record produced before the court of Criminal though with an intention to misguide the Court in legal procedure, the accused have produced such kind of false evidence and thereby, the impugned complaint was filed by the respondent no.2.
3. Heard learned senior counsel Mr. Anshin H. Desai appearing for the applicant and learned APP Mr. KP Raval appearing for the respondent no.1-State.
4. Though served, the respondent no.2 did not choose to appear before this Court. Hence, no argument was advanced on behalf of the respondent no.2.
5. As per the order passed by this Court on 2nd March, 2017 in Criminal Misc. Application No. 6151 of 2017, respondent no.3 was ordered to be deleted. Nobody appeared for arguments on behalf of the respondent no.4, though served.
6. It was submitted by learned senior counsel Mr. Page 5 of 24 HC-NIC Page 5 of 24 Created On Mon Aug 14 11:00:58 IST 2017 R/CR.MA/3434/2011 CAV JUDGMENT Anshin H. Desai appearing on behalf of the applicant that the complaint lodged by the respondent no.2 and the order of issuing summons by the learned Judge are bad in law, contrary to the settled legal provisions. He has contended that the complaint is nothing, but an absolute abuse of the process of the Court, just to harass the applicant and a short cut method to civil proceedings. It is further submitted that prima facie, on perusal of the impugned complaint, no offence, as alleged in the complaint, has been committed by the applicant. It is further submitted that respondent no.2 has no locus standi to file the said complaint in view of the specific bar as contemplated in Section 195(b)(i),
(ii) of the Code. As per the said provision, no Court shall take cognizance of any offence punishable under sections 193 to 196, 199, 200 and 471 of the Indian Penal Code, except on a complaint in writing of that Court or of some other Court, to which, that Court is subordinate. It is further submitted that the allegation of the complainant is that the applicant has given false Page 6 of 24 HC-NIC Page 6 of 24 Created On Mon Aug 14 11:00:58 IST 2017 R/CR.MA/3434/2011 CAV JUDGMENT evidence before the Civil Court at Jamnagar in Summary Suit No. 21/2002. If that is so, it is only the said Court or some other Court, to which, the said Court is subordinate to, has an authority to make a complaint in writing to an appropriate Court, if it deem fit to do so. That, learned Civil Judge, Jamnagar has not filed any such complaint, but the plaintiff himself has filed a private complaint, which is ex-facie, not tenable in view of Section 195 of the Code, and therefore, no Court shall take any cognizance of the alleged offence. However, the learned trial judge has taken cognizance of the alleged offence and issued process against the applicant, which is a gross error of law and miscarriage of justice. It is further argued that the first offence alleged against the applicant is under Section 193 of the Code, which deals with punishment for false evidence. This offence is punishable for a term, which may extend to 7 years and shall also be liable to fine. A bare perusal of the said Section and ingredients of the complaint would make it clear that no offence as has Page 7 of 24 HC-NIC Page 7 of 24 Created On Mon Aug 14 11:00:58 IST 2017 R/CR.MA/3434/2011 CAV JUDGMENT been alleged, is made out, because the applicant has not given any false evidence. That, the allegation in respect of stand taken by the applicant in the leave to defend application, which has not been accepted, by no stretch of circumstances, can be said to be an offence under Section 193 of the Indian Penal Code. Whereas, Section 196 of the Indian Penal Code pertains to using evidence known to be false. The impugned complaint does not contain any such ingredients of alleged offence under section 196 of the Code. Section 200 of the Code pertains to using as true, such declaration knowing it to be false and states that whoever corruptly uses or attempts to use as true any such declaration, knowing the same to be false in any material point, shall be punished in the same manner, as if he gave false evidence. In the instant case, there are no ingredients in the complaint, so as to establish any offence under section 200 of the Code. And whereas, Section 471 IPC pertains to using as genuine a forged (document or electronic record) and describes that Page 8 of 24 HC-NIC Page 8 of 24 Created On Mon Aug 14 11:00:58 IST 2017 R/CR.MA/3434/2011 CAV JUDGMENT whoever fraudulently or dishonestly uses as genuine any document or electronic record, which he knows or has reason to believe to be forged document or electronic record, shall be punished in the same manner, as if he had forged such document. No case apparently made out by the complainant based on which the offence under Section 471 IPC can be said to have been committed by the applicant. Section 340 CrPC, if put into operation, no offence, as has been alleged in the complaint, can be said to have been committed and the complaint itself is not maintainable in the eyes of law against the applicant. Lastely, it was requested by learned senior counsel Mr. Anshin H. Desai appearing for the applicant to quash the complaint, being Criminal Case No. 5656 of 2007 pending in the court of Metropolitan Magistrate, Jamnagar and impugned order dated 30.07.2007 issuing summons, qua the applicant. In support of his arguments, learned senior counsel for the applicant has relied upon decisions of Hon'ble Supreme Court in Page 9 of 24 HC-NIC Page 9 of 24 Created On Mon Aug 14 11:00:58 IST 2017 R/CR.MA/3434/2011 CAV JUDGMENT cases of (a) Patel Laljibhai Somabhai v. State of Gujarat, reported in AIR 1971 SC 1935, (b) Gopalakrishna Menon & Anr. v. D. Raja Reddy & Anr., reported in AIR 1983 SC 1053, (c) M. S. Ahlawat v. State of Haryana & Anr., reported in AIR 2000 SC 168(1) and (d) Kailash Mangal v. Ramesh Chand (dead) through LR, reported in (2015) 15 SCC 729.
7. Learned APP Mr. K.P. Raval appearing for the respondent no.1-State has supported the arguments advanced by the learned senior counsel appearing for the applicant and requested to pass necessary order.
8. Having considered the facts of the case, submissions made by learned senior counsel Mr. Anshin H. Desai appearing for the applicant and documentary evidence produced on record, it appears that the respondent no.2 has lodged a complaint against the present applicant as well as other respondents before the court of learned Chief Judicial Magistrate, Jamnagar, which was registered as Criminal Case No. 5656/2007 for the offence punishable under Sections 193, 196, Page 10 of 24 HC-NIC Page 10 of 24 Created On Mon Aug 14 11:00:58 IST 2017 R/CR.MA/3434/2011 CAV JUDGMENT 200, 471, 34, 114, 120B of the Indian Penal Code.
9. As per the complaint made by the respondent no.2, the original accused no.2 ie., respondent no.3 herein had given a power of attorney in favour of the respondent no.4 -original accused no.3 to contest Summary Suit No. 21/2002. The power of attorney was given by the respondent no.3 in favour of the respondent no.4 on behalf of the company viz., Navin Projects Limited. That, vakalatnama was signed by the respondent no.4-original accused no.3, who had given some applications in the above stated Summary Suit. That, no application for leave to defend was filed by the respondent no.4 under the power given to him by the respondent no.3. The present applicant, who happens to be a Managing Director of Navin Projects Limited came to know through another advocate, who was retained by the applicant in some other case that the Summary Suit was filed against the Company and the present applicant. He was further informed that the suit against him was proceeding ex-parte and one Mr. Page 11 of 24 HC-NIC Page 11 of 24 Created On Mon Aug 14 11:00:58 IST 2017 R/CR.MA/3434/2011 CAV JUDGMENT Bipin Gondiya-respondent no.4 has filed a vakalatnama on behalf of the Company, on the basis of the power of attorney executed by the respondent no.3, however, no application for leave to defend was moved by him by the said power of attorney holder on behalf of the Company. The applicant filed his appearance through his advocate and submitted one application praying the leave to defend, pointing out the facts. The application submitted by the applicant was rejected by the Court and the said order was challenged in appeal. The said order remained find, as the appeal preferred against the order rejecting the application for leave to defend was subsequently withdrawn by the applicant. Thereafter, the same was decreed in favour of the plaintiff ie., respondent no.2 vide judgment dated 03.04.2008, and therefore, if the complainant has realized the said amount, he was obliged to move execution petition and by executing the decree passed in Summary Suit No. 21/2002. Instead of filing Execution Petition, the respondent no.2 filed criminal Page 12 of 24 HC-NIC Page 12 of 24 Created On Mon Aug 14 11:00:58 IST 2017 R/CR.MA/3434/2011 CAV JUDGMENT complaint and adopted a short cut to the civil proceedings.
10. The main grievance raised by the applicant is locus standi of the respondent no.2 to file a complaint in view of Section 195(1)(b) and 195(1)(c) CrPC. For better appreciation, a profitable reproduction of Section 195 CrPC is made hereunder:-
" 195. Prosecution for contempt of lawful authority of public servants.- (1) No Court shall take cognizance-
(a) of any offence punishable under Sections 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate-,
(b) Prosecution for certain offences against public justice.-of any offence punishable under any of the following sections of the same Code, namely, Sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in or in relation to any proceeding in any Court, except on the complaint in writing of such Court or some other Court to which such Court is subordinate; or Page 13 of 24 HC-NIC Page 13 of 24 Created On Mon Aug 14 11:00:58 IST 2017 R/CR.MA/3434/2011 CAV JUDGMENT
(c) Prosecution for certain offences relating to documents given in evidence. Of any offence described in Section 463 or punishable under Section 471, Section 475 or Section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate.
Para: 7: The underlying purpose of enacting S. 195(1)(b) and (c) and s. 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 designed to be Page 14 of 24 HC-NIC Page 14 of 24 Created On Mon Aug 14 11:00:58 IST 2017 R/CR.MA/3434/2011 CAV JUDGMENT 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 recognized by S. 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 S. 195(1)(c) only to those cases in which the offences specified Page 15 of 24 HC-NIC Page 15 of 24 Created On Mon Aug 14 11:00:58 IST 2017 R/CR.MA/3434/2011 CAV JUDGMENT therein were committed by a party to the proceeding in the character as such party. It may be recalled that the superior court is equally competent under S. 476A Cr. P.C. to consider the question of expediency of prosecution and to complain and there is also a right of appeal conferred by S. 476B on a person on whose application the, Court has refused to make a complaint under S. 476 or S. 476A or against whom such a complaint has been made. The appellate court is empowered after hearing the parties to direct the withdrawal of the complaint or as the case may be, itself to, make the complaint. All these sections read together indicate that the legislature could not have intended to extend the prohibition contained in S. 195(1)(c) Cr. P.C.-to the offences mentioned, therein when committed by a party to a proceeding in that court prior to his becoming such party. It is no doubt true that quite- often-if not almost invariably-the documents are forged for being used or produced in evidence in court before the proceedings are started. But that in our opinion cannot be the controlling factor. because to adopt that construction, documents forged long 843 before the commencement of a proceeding in which they may happen to be actually used or produced in evidence, years Page 16 of 24 HC-NIC Page 16 of 24 Created On Mon Aug 14 11:00:58 IST 2017 R/CR.MA/3434/2011 CAV JUDGMENT later by some other party would also be subject to ss. 195 and 476 Cr. P.C. This in our opinion would unreasonably restrict the right possessed by a person and, recognized by s. 190 Cr. P.C. without promoting the real purpose and object underlying these two sections. The Court in such a case may not be in a position to satisfactorily determine the question of expediency of making a complaint.
This view has been followed by the Hon'ble Supreme Court in case of Patel Laljibhai Somabhai v. The State of Gujarat, reported in AIR 1971 SC 1935.
11. From the averments made in the complaint, it is nowhere found that the applicant has given any false evidence before the Court of learned 2nd Additional Senior Civil Judge, Jamnagar in Summary Suit No. 21/2002. That, learned 2nd Additional Senior Civil Judge, Jamnagar has not filed any such complaint, but the respondent no.2, who as a plaintiff in the Summary Suit, has filed a private complaint, which would not tenable in view of Section 195 of the Code, and Page 17 of 24 HC-NIC Page 17 of 24 Created On Mon Aug 14 11:00:58 IST 2017 R/CR.MA/3434/2011 CAV JUDGMENT therefore, this Court is of the view that no cognizance of the alleged offence can be taken. As per Section 193 of Indian Penal Code, whoever intentionally gives false evidence in any stage of a judicial proceedings, or fabricates the false evidence for the purpose of being used in any stage of a judicial proceedings, shall be punished with imprisonment of either description for a term which may extend to 7 years and shall also be liable to fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term, which may extend to 3 years and shall also be liable to fine. From a bare perusal of Section and the ingredients made out in the complaint, it can be said that no offence as alleged, is made out because it is nowhere stated in the complaint that applicant has given any false or fabricated evidence. In respect of allegations regarding stand taken by the applicant in the leave to defend application, which has not been accepted and established that no offence under section Page 18 of 24 HC-NIC Page 18 of 24 Created On Mon Aug 14 11:00:58 IST 2017 R/CR.MA/3434/2011 CAV JUDGMENT 193 of the Code was committed.
12. Further, Section 196 of the Indian Penal Code prescribes pursuant in the same manner as if accused gave false evidence for using evidence known to be false. In the complaint, there is no averments or any ingredient of alleged offence under section 196 of the Code. It is nowhere stated that the applicant has attempted to use as true or genuine any evidence, which he knows to be a false or fabricated. Section 200 IPC prescribes punishment in the same manner as if the accused gave false evidence for using as true such declaration knowing it to be false. In the case on hand, no ingredients are called out in the complaint to establish any offence under Section 200 IPC. It is the case of applicant that no such power was given by the company to the respondent no.2 and those facts have been set out by him in his application for leave to defend and the said proceedings were terminated by the court below against the applicant.
13. Section 471 IPC pertains to using as genuine a Page 19 of 24 HC-NIC Page 19 of 24 Created On Mon Aug 14 11:00:58 IST 2017 R/CR.MA/3434/2011 CAV JUDGMENT forged (document or electronic record) and states that whoever fraudulently or dishonestly uses as genuine, which he knows or has reason to believe to be forged. It transpires from the complaint that no such allegations are made out by the respondent no.2, on which an offence punishable under section 174 IPC can be said to have been committed by the applicant.
14. Section 340 IPC prescribes procedure in cases mentioned in section 195 of the CrPC. Section 195 CrPC deals with prosecution for contempt of lawful authority of public servant. It can be said that applicant is a public servant, therefore, in view of the provision of Section 340 and 195 CrPC, the complaint itself would not be maintainable or tenable in the eyes of the law.
15. In case of Gopalkrishna Menon & Anr. v. Raja Reddy & Anr., reported in AIR 1983 SC 1053, it is held by the Apex Court that any offence of a complaint from the appropriate civil court, where the alleged fraudulent receipt has been produced, would not be sustainable by private person. It was further viewed Page 20 of 24 HC-NIC Page 20 of 24 Created On Mon Aug 14 11:00:58 IST 2017 R/CR.MA/3434/2011 CAV JUDGMENT that if the prosecution is allowed to continue serious prejudice would be caused to the appellant and they would be called upon to face a trial, which would not be sustainable.
16. In case of M. S. Ahlawat v. State of Haryana & Anr., reported in AIR 2000 SC 168(1), it is held that, for forgery and making false statements at different stages in the Court punishable under section 193 IPC without following the procedure prescribed under Sections 195 and 340 CrPC. Primarily, Supreme Court does not exercise any original criminal jurisdiction in relation to offences arising under Section 193 IPC, and secondly, the seriousness of the charge arising under Section 193 IPC requires an elaborate inquiry and trial into the matter by the competent criminal court and a summary inquiry by mere issuing a show cause notice and considering affidavits or inquiry reports would not tantamount to a procedure provided under the Criminal Procedure Code. Apt it would be, to reproduce para-6 of the said decision, which reads, thus-
Page 21 of 24 HC-NIC Page 21 of 24 Created On Mon Aug 14 11:00:58 IST 2017 R/CR.MA/3434/2011 CAV JUDGMENT "6. Section 340 Cr.P.C. prescribes the procedure as to how a complaint may be preferred under Section 195 Cr.P.C. While under Section 195 Cr.P.C, it is open to the court before which the offence was committed to prefer a complaint for the prosecution of the offender, Section 340 Cr.P.C. prescribes the procedure as to how that complaint may be preferred.
Provisions under Section 195 Cr.P.C. are mandatory and no court can take cognizance of offences referred to therein. It is in respect of such offences the court has jurisdiction to proceed under Section 340 Cr.P.C. and a complaint outside the provisions of Section 340 Cr.P.C. cannot be filed by any civil, revenue or criminal court under its inherent jurisdiction."
17. Here also, the respondent no.2, being a private person, has lodged a complaint against the present applicant for the offence punishable under Section 193, 196, 200, 471, 34, 114, 120B of the Indian Penal Code, which would not be maintainable, as Section 193 to 195 CrPC would be mandatory and no Court can take cognizance of the offence referred to therein. A complaint of the respondent no.2 would be outside the Page 22 of 24 HC-NIC Page 22 of 24 Created On Mon Aug 14 11:00:58 IST 2017 R/CR.MA/3434/2011 CAV JUDGMENT provisions of Section 340 CrPC and cannot be filed by any civil, revenue or criminal Court under its inherent jurisdiction.
18. In case of Kailash Mangal v. Ramesh Chand (dead) through LR, reported in (2015) 15 SCC 729, it is held that unless a written complaint is made by the Court concerned under Section 195(1)(b)(i) CrPC, no cognizable offence punishable under Section 193 IPC, would be taken. In this case, the learned Magistrate has taken cognizance of the alleged filing of a false affidavit and Civil Suit on private complaint filed by the respondent was set aside.
19. For the aforesaid reasons, private complaint filed by the respondent no.2 for the offences allegedly committed under Sections 193, 196, 200, 471, 34, 114, 120B of the Indian Penal Code is not maintainable, as the same has been initiated on the basis of non- compliance of the provision of Section 195(1)(b)(i) CrPC. Therefore, the same is liable to be quashed and set aside.
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20. Hence, the application stands allowed. Complaint, being Criminal Case No. 5656 of 2007 filed before the court of learned Chief Judicial Magistrate, Jamnagar for the offence punishable under Sections 193, 196, 200, 471 read with section 34, 114 and 120B of the Indian Penal Code and the order dated 30.07.2007 issuing summons, as well as other consequential proceedings arising therefrom is quashed, qua the present applicant. Rule is made absolute to the aforesaid extent. No costs.
(B.N. KARIA, J.) ksdarji Page 24 of 24 HC-NIC Page 24 of 24 Created On Mon Aug 14 11:00:58 IST 2017