Document Fragment View

Matching Fragments

4. After various depositions had been made by witnesses before the said Magistrate, an application dated 09.05.2011 was filed, in which the Appellants prayed, relying upon the Supreme Court judgment in Iqbal Singh Marwah and Anr. v. Meenakshi Marwah and Anr. (2005) 4 SCC 370, that the said complaints be converted to private complaints. This was done by two orders of the Judicial Magistrate dated 13.10.2011, who after converting the said complaints into private complaints, issued process under Sections 191, 192 and 193 of the IPC. It is important to note that the Appellants/complainants did not file any revision or other proceedings to challenge the issue of process under the aforesaid sections of the IPC.

6. Writ petitions filed by the Appellants against the aforesaid judgment proved unsuccessful, the High Court dismissing the aforesaid writ petitions by the impugned judgment dated 22.11.2013.

7. Shri Anil Kumar Mishra, learned Advocate appearing on behalf of the Appellants, took us through the complaints dated 11.08.2009. It was his case that debit notes had been created by the Respondents which were totally fraudulent, in order to buttress their case that certain amounts were owed by the Appellants to the Respondents. The learned counsel argued with great vehemence that this is why the fifth suit, viz., Suit No.1/2003/A was ultimately withdrawn on 01.10.2007, the Respondents having realised that the evidence given would completely belie their false case. The learned counsel then referred to the counter-affidavit filed to the revision petition before the learned Sessions Judge in order to buttress his plea that offences under the “forgery” sections of the IPC had been made out, which would all be the subject matter of a private complaint, and which do not have to follow the procedure set out by Section 340 CrPC. He relied very heavily upon Iqbal Singh Marwah (supra) to argue that the documents and books of accounts etc. that were forged, were all forged before they were taken in evidence in the Court proceedings, as a result of which the judgment squarely applied, and a private complaint, therefore, would be maintainable. He also argued that the High Court was wrong in stating that the Appellants did not file any Section 482 petition making a grievance that the complaints disclosed other offences also, and that the Magistrate ought to have issued process for the same. He cited a judgment to assail this part of the High Court judgment, stating that the High Court ought not to have stood upon ceremony, but if it had found injustice, ought to have suo moto exercised powers under Section 482 of the CrPC. He further attacked the impugned judgment, by stating that its reliance on Surjit Singh v. Balbir Singh (1996) 3 SCC 533, a judgment that has been expressly overruled in Iqbal Singh Marwah (supra), would also show that the reasoning of the aforesaid judgment is completely faulty. He cited a number of judgments which followed Iqbal Singh Marwah (supra), and stated that it was wrong to say that it was confined only to Section 195(1)(b)(ii), but that its reasoning would clearly apply to cases which fall within both Section 195(1)(b)(i) as well as Section 195(1)(b)(ii) of the CrPC. As an alternative argument, he went on to add that process may have been issued stating wrong sections, which would make no difference, as at the stage of framing a charge under Section 211 of the CrPC, the correct sections could then be referred to. Even thereafter, charges as framed can always be altered under Section 216 of the CrPC. He then went on to point out that under Section 460(e) of the CrPC, once a Magistrate issues process under Section 190(1)(a) of the CrPC, any irregularity that may be committed in the course of the proceedings can always be condoned. According to him, therefore, the complaints were correctly registered as private complaints and ought to continue as such.

30. However, Shri Mishra, undaunted by the fact that Iqbal Singh Marwah (supra) and its progeny are all cases relatable to Section 195(1)(b)(ii) of the CrPC, has argued that the same reasoning ought to apply to cases falling under Section 195(1)(b)(i) of the CrPC. First and foremost, as has been pointed out hereinabove, every judgment that follows Iqbal Singh Marwah (supra) is in the context of offences mentioned in Section 195(1)(b)(ii) of the CrPC. Secondly, there is direct authority for the proposition that the ratio in Iqbal Singh Marwah (supra) cannot be extended to cases governed by Section 195(1)(b)(i) of the CrPC.

“9. While restoring the conviction of the appellant under Section 193 IPC, the High Court has relied upon a decision of the Constitution Bench of this Court in Iqbal Singh Marwah v. Meenakshi Marwah. A Constitution Bench of this Court in Iqbal Singh Marwah case held that the protection engrafted under Section 195(1)(b)(ii) CrPC would be attracted only when the offence enumerated in the said provisions has been committed with respect to a document after it had been produced or given in evidence in proceedings in any court i.e. during the time when the document was in custodia legis. Where the forgery was committed before the document was filed in the Court, the High Court was held not justified in quashing the prosecution of the accused under Sections 467, 468, 471, 472 and 477-A IPC on the ground that the complaint was barred by the provisions of Section 195(1)(b)(ii) CrPC. Section 195(1)(b)(ii) CrPC would be attracted only when the offences enumerated in the provision have been committed with respect to a 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.