Karnataka High Court
Salim @ Salim Khan vs State Of Karnataka on 24 April, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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NC: 2024:KHC:16851
CRL.RP No. 175 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL REVISION PETITION NO. 175 OF 2016
BETWEEN:
SALIM @ SALIM KHAN,
S/O GAIBAN KHAN,
AGED ABOUT 48 YEARS,
TAILOR BY PROFESSION,
R/AT NAAGAVALLI(V), HEBBU HOBLI,
TUMKUR TALUK & DISTRICT - 572 118.
...PETITIONER
(BY SRI. SUNIL KUMAR PATIL, ADVOCATE)
AND:
STATE OF KARNATAKA
BY KYATHASANDRA POLICE,
TUMKUR TALUK & DISTRICT - 572 104.
...RESPONDENT
(BY SRI. VINAY M, HCGP)
Digitally signed by B
K THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING
MAHENDRAKUMAR
Location: HIGH TO SET ASIDE THE IMPUGNED JUDGMENT OF CONVICTION AND
COURT OF ORDER OF SENTENCE DATED 16.08.2012, PASSED IN C.C.NO.
KARNATAKA
1118/2002 BY THE PRL. CIVIL JUDGE AND JMFC, TUMAKURU AND
JUDGMENT, DATED 21.11.2015, PASSED IN CRL.A.NO.138/2012, BY
THE VI ADDL. DIST. AND S.J., AT TUMAKURU, BY ALLOWING THIS
REVISION PETITION AND CONSEQUENTLY ACQUIT THE
ACCUSED/PETR. FOR THE OFFENCE P/U/S 465 R/W 34 OF IPC.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC:16851
CRL.RP No. 175 of 2016
ORDER
The petitioner/accused No.2 who is convicted for the offence punishable under Section 465 read with Section 34 of IPC and sentenced to undergo simple imprisonment for two years and liable to pay fine of Rs.5,000/- and in default to undergo simple imprisonment for two months, is before this Court.
2. The case of the prosecution is that, although the accused Nos.2 and 3 who were not the inmates of the lorry bearing No.MEZ-6472 which met with an accident, got created the wound certificate in collusion with accused No.1, who was the doctor, so as to claim compensation illegally.
3. The prosecution to prove its case examined P.Ws.1 to 11 and marked the documents at Ex.P1 to P32. The trial Court after appreciating the evidence on record held that the prosecution has established the guilt of petitioner/accused No.2, and passed the impugned judgment of conviction and order of sentence which was affirmed by the Appellate Court. Against which, the present revision petition is filed.
4. Learned counsel for the petitioner/accused No.2 submits that the prosecution has not placed on record any evidence to substantiate that petitioner/accused No.2 by making use of the fabricated wound certificate filed the petition for claiming the compensation. He further submits that even if the allegations against the petitioner/accused No.2 is accepted, the cognizance of the offence under Section 465 of IPC can be taken only upon a complaint in writing as stated under Section 195(1) (b) of Cr.P.C.
-3-NC: 2024:KHC:16851 CRL.RP No. 175 of 2016
5. Per contra, learned HCGP for the respondent-State argued that the evidence on record clearly establishes that the petitioner by creating wound certificate falsely claimed compensation, and the trial court as well as the appellate Court after appreciating the evidence on record have rightly passed the impugned judgment of conviction, and in the absence of any perversity or arbitrariness, the findings recorded by the trial Court as well as the Appellate court does warrant interference.
6. I have considered the submissions made by the learned counsel for the parties and perused the trial court records.
7. The prosecution examined P.W.1- the owner of the lorry which met with the accident, and P.Ws.2 and 3 who were inmates of the lorry and sustained injuries in the accident, and in their evidence they have categorically stated that the petitioner/accused No.2 was not traveling as on the date of the accident. P.W.6 is the senior Pharmacist working in the Government Hospital, Tumkuru, who in his evidence stated that the wound certificate at Exs.P3 and 4 were issued by accused No.1. P.Ws.7 and 8, the doctors who were working in the Government Hospital, Tumkur have stated that the x-rays at Exs.P3 and 4 not pertaining to accused Nos.2 and 3, and it is in respect of others. The specific case of the prosecution is that the accused No.2 by making use of fabricated wound certificate filed a petition claiming compensation. However, the prosecution has not placed any record to substantiate that the petitioner/accused No.2 made use of the fabricated wound certificate to claim compensation illegally.
8. Section 195 of Cr.P.C deals with prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence and it states -4- NC: 2024:KHC:16851 CRL.RP No. 175 of 2016 that no Court shall take cognizance of any offence prescribed under Section 463 or offence punishable under Sections 471, 475, 476 and 477 of IPC when such offences are alleged to have been committed in respect of the documents produced or given in evidence in a proceeding in any Court except on the complaint in writing of that Court.
9. In the instant case, the allegation against accused No.2 is of creating fabricated documents, in the form of wound certificate and producing the same before Court concerned, so as to claim compensation against which the cognizance of the offence punishable under Section 465 of IPC is taken, in relation to the offence for creating false documents which constitutes the offence of forgery under Section 463 and 464 of IPC, which could have been taken only upon the complaint in writing.
10. The Hon'ble Apex court in the case of Bandekar Brothers Private Limited and another -vs- Prasad Vassudev Keni and other reported in (2020) 20 SCC 1 has held as follows:
"48. Equally important to remember is that if in the course of the same transaction two separate offences are made out, for one of which Section 195 CrPC is not attracted, and it is not possible to split them up, the drill of Section 195(1)(b) CrPC must be followed. Thus, in State of Karnataka v. Hemareddy [State of Karnataka v. Hemareddy, (1981) 2 SCC 185 : 1981 SCC (Cri) 395] , this Court referred to a judgment of the Madras High Court (V.V.L. Narasimhamurthy, In re [V.V.L. Narasimhamurthy v. State, 1953 SCC OnLine Mad 236 : AIR 1955 Mad 237] ) and approved its ratio as follows : (Hemareddy case [State of Karnataka v. Hemareddy, (1981) 2 SCC 185 : 1981 SCC (Cri) 395] , SCC pp. 190-91, paras 7-8) ................. The effect of the allegations in the complaint preferred by the complainant is that the petitioner -5- NC: 2024:KHC:16851 CRL.RP No. 175 of 2016 has caused this will to come into existence intending that such will may cause the Judge before whom the suit is filed to form an opinion that the will is a genuine one and, therefore, his minor daughter is entitled to the property. The allegation, therefore, in the complaint will undoubtedly fall under Section 192 IPC. It will, therefore, amount to an offence under Section 193 IPC i.e. fabricating false evidence for the purpose of being used in the judicial proceeding. There is no doubt that the facts disclosed will also amount to an offence under Sections 467 and 471 IPC. For prosecuting this petitioner for an offence under Sections 467 and 471, a complaint by the court may not be necessary as under Section 195(1)(b) CrPC a complaint may be made only when it is committed by a party to any proceeding in any court.
Mr Jayarama Ayyar does not give up his contention that the petitioner, though he appears only a guardian of the minor girl, is still a party to the proceeding. But it is unnecessary to go into the question at the present moment and I reserve my opinion on the question whether the guardian can be a party to a proceeding or not, as this case can be disposed of on the other point viz. that when the allegations amount to an offence under Section 193 IPC, a complaint of court is necessary under Section 195(1)(a) CrPC and this cannot be evaded by prosecuting the accused for an offence for which a complaint of court is not necessary.'
8. We agree with the view expressed by the learned Judge and hold that in cases where in the course of the same transaction an offence for which no complaint by a court is necessary under Section 195(1)(b) of the Code of Criminal Procedure and an offence for which a complaint of a court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in Section 195(1)(b) of the Code of Criminal Procedure should be upheld."
11. The cognizance of the offence punishable under Sections 463 and 465 of IPC taken on the basis of the final report, culminating in convicting the petitioner stands vitiated.
-6-NC: 2024:KHC:16851 CRL.RP No. 175 of 2016 Therefore, the impugned judgment of conviction and order of sentence is not sustainable in law. Accordingly, I pass the following:
ORDER i. Criminal Revision Petition is allowed. ii. The impugned judgment and order of sentence dated 16.08.2012 passed by the principal Civil Judge and JMFC Tumkuru and the judgment dated 21.11.2015 passed by the VI Addl. District and Sessions Judge in Crl.A.No.138/2012 are set aside.
iii. The petitioner/accused No.2 is acquitted of the aforesaid offences.
iv. Bail bonds, if any executed by the petitioner/accused No.2 stands cancelled.
Sd/-
JUDGE RKA List No.: 1 Sl No.: 23 CT: BHK