M/S Bandekar Brothers Pvt.Ltd. vs Prasad Vassudev Keni on 2 September, 2020


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Supreme Court of India

M/S Bandekar Brothers Pvt.Ltd. vs Prasad Vassudev Keni on 2 September, 2020

Author: Rohinton Fali Nariman

Bench: Rohinton Fali Nariman, Navin Sinha, Hon’Ble Ms. Banerjee

                                                                            REPORTABLE

                                         IN THE SUPREME COURT OF INDIA

                                       CRIMINAL APPELLATE JURISDICTION

                                      CRIMINAL APPEAL NOS. 546-550 OF 2017

                      M/S BANDEKAR BROTHERS PVT. LTD. & ANR.                    …Appellants


                                                        Versus

                      PRASAD VASSUDEV KENI, ETC. ETC.                          …Respondents


                                                    JUDGMENT

R.F. Nariman, J.

1. The proceedings in this case arise out of two criminal complaints dated

11.08.2009 filed by the Appellants against the Respondents herein before

the Court of the Sessions Judge, North Goa, under Section 340 read with

Section 195 of the Code of Criminal Procedure, 1973 (“CrPC”) in respect

of offences alleged under Sections 191 and 192 of the Indian Penal Code,

1860 (“IPC”).

2. Accused No.1 in the aforesaid complaints is a proprietary concern of the

late V.G. Quenim, based in Goa, which is engaged in the business of

Signature Not Verified
producing, processing and sale of iron ore. Accused Nos.2 and 3 are his
Digitally signed by
INDU MARWAH
Date: 2020.09.02
17:29:14 IST
Reason:

son and wife respectively, who are the co-proprietors of M/s V.G. Quenim,

the aforesaid V.G. Quenim having expired on 20.07.2007. M/s V.G.

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Quenim had shared a business relationship with the Appellants since the

year 1990. However, disputes arose between the parties, as a result of

which four suits, being Suit Nos.7, 8, 14 and 21 of 2000/A, were filed by

the Appellants against M/s V.G. Quenim before the Civil Court at

Bacholim. A fifth suit, being Suit No.1/2003/A, was filed by the late V.G.

Quenim against the Appellants, which was withdrawn on 01.10.2007

unconditionally. The Respondents filed their Written Statements and

Counter Claims in the said suits filed by the Appellants.

3. After withdrawal of the fifth suit, these criminal complaints were filed,

inasmuch as the Appellants contended that in these proceedings, the

Respondent/Accused had given false evidence, and had forged debit

notes and made false entries in books of accounts. By two orders dated

01.10.2009, the learned Additional Sessions Judge-I in North Goa at

Panaji, returned the complaints, stating that these complaints could only

be filed in the Court before whom such proceedings were pending in which

the alleged offences were committed. The complaints were then filed

before the learned Judicial Magistrate First Class at Bicholim.

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

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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.

5. The Respondents, however, filed revision applications against the said

orders, in which it was stated that the bar contained in Section 195(1)(b)(i)

of the CrPC, and the procedure under Section 340 CrPC being mandatory,

could not be circumvented, and the complaints read as a whole would

clearly show that offences under Sections 191 to 193 of the IPC alone

were made out, as a result of which the drill under the aforesaid sections

of the CrPC would have to be observed. In a counter-affidavit dated

08.10.2012 filed to the aforesaid revision applications, the Appellants, for

the first time, took the plea that offences under Sections 463, 464, 465,

467, 468, 469, 471, 474, 475 and 477-A of the IPC were also made out

against the Respondents, as a result of which a private complaint would

be maintainable. The learned Additional Sessions Judge, Mapusa, by his

judgment dated 05.03.2013, held that the bar under Section 195(1)(b)(i) of

the CrPC was attracted, and that the provisions under Section 340 of the

CrPC, which were mandatory, had to be followed. Since this was not done,

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the revision petitions were allowed and the complaints quashed. Iqbal

Singh Marwah (supra) was distinguished, stating that it was a judgment

which concerned itself with Section 195(1)(b)(ii) and not Section

195(1)(b)(i) of the CrPC, and would, therefore, have no application in the

facts of this case.

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

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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,

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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.

8. Shri Yogesh Nadkarni, learned counsel appearing on behalf of the

Respondents, referred to the pending suits, and to the application for

conversion of the complaints, which, according to him, were correctly filed

under Section 195 read with Section 340 CrPC. He argued that the High

Court was correct in its conclusion that Iqbal Singh Marwah (supra) was

a case which arose only under Section 195(1)(b)(ii) of the CrPC, and that

the complaints filed in the present case disclose offences which would fall

within Section 195(1)(b)(i) of the CrPC. He also vehemently argued that

the debit notes, which were the sheet-anchor of the Appellants’ case,

cannot be said to have been forged within the meaning of Sections 463

and 464 of the IPC, as the debit notes, even if dishonestly or fraudulently

made, had to be made within the intention of causing it to be believed that

such debit notes were made by a person whom the person making it knows

6
that it was not made, which is not the case, as the debit notes were made

on the sole proprietorship’s letterhead, with the writing and signatures that

were of the proprietor. He, therefore, argued that the forgery sections

under the IPC do not get attracted at all to the complaints, which were

correctly filed under Section 195 read with Section 340 of the CrPC. He

contended that the counter-affidavit that was relied upon by the Appellants

to the Respondent’s revision applications was clearly an afterthought, in

order to buttress a hopeless case. In any event, the complaints read as a

whole, would make it clear that the entirety of the complaints were in, or in

relation to, offences committed under Sections 191 and 192 of the IPC

used/to be used in judicial proceedings and, therefore, fell squarely within

Section 195(1)(b)(i) of the CrPC. He also argued that after conversion into

a private complaint, the Magistrate issued process only under Sections

191 to 193 of the IPC, which order remained unchallenged by the

Appellants. He also cited judgments relating to the object sought to be

achieved by Section 195, as well as judgments which distinguished Iqbal

Singh Marwah (supra) on that ground that it applied only to cases falling

under Section 195(1)(b)(ii) and not to cases falling under Section

195(1)(b)(i) of the CrPC.

9. Having heard the learned counsel appearing on behalf of the parties, it is

necessary to set out the relevant sections of the CrPC and the IPC.

7

CrPC

“190. Cognizance of offences by Magistrates.—(1) Subject to
the provisions of this Chapter, any Magistrate of the first class,
and any Magistrate of the second class specially empowered in
this behalf under sub-section (2), may take cognizance of any
offence—

(a) upon receiving a complaint of facts which constitute such
offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a
police officer, or upon his own knowledge, that such offence has
been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate
of the second class to take cognizance under sub-section (1) of
such offences as are within his competence to inquire into or
try.”

“195. Prosecution for contempt of lawful authority of public
servants, for offences against public justice and for
offences relating to documents given in evidence.—(1) No
Court shall take cognizance—

(a) (i) of any offence punishable under sections 172 to 188
(both inclusive) of the Indian Penal Code, (45 of 1860), or

(ii) of any abetment of, or attempt to commit, such offence, or

(iii) of any criminal conspiracy to commit such offence,

except on the complaint in writing of the public servant
concerned or of some other public servant to whom he is
administratively subordinate;

(b) (i) of any offence punishable under any of the following
sections of the Indian Penal Code (45 of 1860), namely,
sections 193 to 196 (both inclusive), 199, 200, 205 to 211
(both inclusive) and 228, when such offence is alleged to have
been committed in, or in relation to, any proceeding in any
Court, or

8

(ii) of any offence described in section 463, or punishable
under section 471, section 475 or section 476, of the said
Code, when such offence is alleged to have been committed
in respect of a document produced or given in evidence in a
proceeding in any Court, or

(iii) of any criminal conspiracy to commit, or attempt to commit,
or the abetment of, any offence specified in sub-clause (i) or
sub-clause (ii),

except on the complaint in writing of that Court or by such officer
of the Court as that Court may authorise in writing in this behalf,
or of some other Court to which that Court is subordinate.

(2) Where a complaint has been made by a public servant under
clause (a) of sub-section (1) any authority to which he is
administratively subordinate may order the withdrawal of the
complaint and send a copy of such order to the Court; and upon
its receipt by the Court, no further proceedings shall be taken on
the complaint:

Provided that no such withdrawal shall be ordered if the trial in
the Court of first instance has been concluded.

(3) In clause (b) of sub-section (1), the term “Court” means a
Civil, Revenue or Criminal Court, and includes a tribunal
constituted by or under a Central, Provincial or State Act if
declared by that Act to be a Court for the purposes of this
section.

(4) For the purposes of clause (b) of sub-section (1), a Court
shall be deemed to be subordinate to the Court to which appeals
ordinarily lie from the appealable decrees or sentences of such
former Court, or in the case of a Civil Court from whose decrees
no appeal ordinarily lies, to the Principal Court having ordinary
original civil jurisdiction within whose local jurisdiction such Civil
Court is situate:

Provided that—

(a) where appeals lie to more than one Court, the Appellate
Court of inferior jurisdiction shall be the Court to which such
Court shall be deemed to be subordinate;

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(b) where appeals lie to a Civil and also to a Revenue Court,
such Court shall be deemed to be subordinate to the Civil or
Revenue Court according to the nature of the case or
proceeding in connection with which the offence is alleged to
have been committed.”

“340. Procedure in cases mentioned in section 195.—(1)
When, upon an application made to it in this behalf or otherwise,
any Court is of opinion that it is expedient in the interests of
Justice that an inquiry should be made into any offence referred
to in clause (b) of sub-section (1) of section 195, which appears
to have been committed in or in relation to a proceeding in that
Court or, as the case may be, in respect of a document produced
or given in evidence in a proceeding in that Court, such Court
may, after such preliminary inquiry, if any, as it thinks
necessary,—

(a) record a finding to that effect;

(b) make a complaint thereof in writing;

(c) send it to a Magistrate of the first class having jurisdiction;

(d) take sufficient security for the appearance of the accused
before such Magistrate, or if the alleged offence is non-
bailable and the Court thinks it necessary so to do, send the
accused in custody to such Magistrate; and

(e) bind over any person to appear and give evidence before
such Magistrate.

(2) The power conferred on a Court by sub-section (1) in respect
of an offence may, in any case where that Court has neither
made a complaint under sub-section (1) in respect of that
offence nor rejected an application for the making of such
complaint, be exercised by the Court to which such former Court
is subordinate within the meaning of sub-section (4) of section

195.

(3) A complaint made under this section shall be signed,—

(a) where the Court making the complaint is a High Court, by
such officer of the Court as the Court may appoint;

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(b) in any other case, by the presiding officer of the Court or
by such officer of the Court as the Court may authorise in
writing in this behalf.

(4) In this section, “Court” has the same meaning as in section

195.

341. Appeal.—(1) Any person on whose application any Court
other than a High Court has refused to make a complaint under
sub-section (1) or sub-section (2) of section 340, or against
whom such a complaint has been made by such Court, may
appeal to the Court to which such former Court is subordinate
within the meaning of sub-section (4) of section 195, and the
superior Court may thereupon, after notice to the parties
concerned, direct the withdrawal of the complaint, or, as the
case may be, making of the complaint which such former Court
might have made under section 340, and, if it makes such
complaint, the provisions of that section shall apply accordingly.

(2) An order under this section, and subject to any such order,
an order under section 340, shall be final, and shall not be
subject to revision.”

“343. Procedure of Magistrate taking cognizance.—(1) A
Magistrate to whom a complaint is made under section 340 or
section 341 shall, notwithstanding anything contained in
Chapter XV, proceed, as far as may be, to deal with the case as
if it were instituted on a police report.

(2) Where it is brought to the notice of such Magistrate, or of any
other Magistrate to whom the case may have been transferred,
that an appeal is pending against the decision arrived at in the
judicial proceeding out of which the matter has arisen, he may,
if he thinks fit, at any stage, adjourn the hearing of the case until
such appeal is decided.”

IPC

“24. “Dishonestly”.—Whoever does anything with the intention
of causing wrongful gain to one person or wrongful loss to
another person, is said to do that thing “dishonestly”.

25. “Fraudulently”.—A person is said to do a thing fraudulently
if he does that thing with intent to defraud but not otherwise.”

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“191. Giving false evidence.—Whoever, being legally bound
by an oath or by an express provision of law to state the truth,
or being bound by law to make a declaration upon any subject,
makes any statement which is false, and which he either knows
or believes to be false or does not believe to be true, is said to
give false evidence.

Explanation 1.—A statement is within the meaning of this
section, whether it is made verbally or otherwise.

Explanation 2.—A false statement as to the belief of the person
attesting is within the meaning of this section, and a person may
be guilty of giving false evidence by stating that he believes a
thing which he does not believe, as well as by stating that he
knows a thing which he does not know.

192. Fabricating false evidence.—Whoever causes any
circumstance to exist or makes any false entry in any book or
record, or electronic record or makes any document or
electronic record containing a false statement, intending that
such circumstance, false entry or false statement may appear in
evidence in a judicial proceeding, or in a proceeding taken by
law before a public servant as such, or before an arbitrator, and
that such circumstance, false entry or false statement, so
appearing in evidence, may cause any person who in such
proceeding is to form an opinion upon the evidence, to entertain
an erroneous opinion touching any point material to the result of
such proceeding is said “to fabricate false evidence”.

193. Punishment for false evidence.—Whoever intentionally
gives false evidence in any of a judicial proceeding, or fabricates
false evidence for the purpose of being used in any stage of a
judicial proceeding, shall be punished with imprisonment of
either description for a term which may extend to seven 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 three years, and shall also be liable to fine.

Explanation 1.—A trial before a Court-martial is a judicial
proceeding.

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Explanation 2.—An investigation directed by law preliminary to
a proceeding before a Court of Justice, is a stage of a judicial
proceeding, though that investigation may not take place before
a Court of Justice.”

“196. Using evidence known to be false.—Whoever corruptly
uses or attempts to use as true or genuine evidence any
evidence which he knows to be false or fabricated, shall be
punished in the same manner as if he gave or fabricated false
evidence.”

“463. Forgery.—Whoever makes any false document or false
electronic record or part of a document or electronic record, 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.

464. Making a false document.—A person is said to make a
false document or false electronic record—

First.—Who dishonestly or fraudulently—

(a) makes, signs, seals or executes a document or part of a
document;

(b) makes or transmits any electronic record or part of any
electronic record;

(c) affixes any electronic signature on any electronic record;

(d) makes any mark denoting the execution of a document
or the authenticity of the electronic signature,

with the intention of causing it to be believed that such document
or part of document, electronic record or electronic signature
was made, signed, sealed, executed, transmitted or affixed by
or by the authority of a person by whom or by whose authority
he knows that it was not made, signed, sealed, executed or
affixed; or

Secondly.—Who without lawful authority, dishonestly or
fraudulently, by cancellation or otherwise, alters a document or

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an electronic record in any material part thereof, after it has been
made, executed or affixed with electronic signature either by
himself or by any other person, whether such person be living
or dead at the time of such alteration; or

Thirdly.—Who dishonestly or fraudulently causes any person to
sign, seal, execute or alter a document or an electronic record
or to affix his electronic signature on any electronic record
knowing that such person by reason of unsoundness of mind or
intoxication cannot, or that by reason of deception practised
upon him, he does not know the contents of the document or
electronic record or the nature of the alteration.

Explanation 1.—A man’s signature of his own name may
amount to forgery

Explanation 2.—The making of a false document in the name of
a fictious person, intending it to be believed that the document
was made by a real person, or in the name of a deceased
person, intending it to be believed that the document was made
by the person in his lifetime, may amount to forgery.

Explanation 3.—For the purposes of this section, the expression
“affixing electronic signature” shall have the meaning assigned
to it in clause (d) of sub-section (1) of section 2 of the Information
Technology Act, 2000 (21 of 2000).”

10. Section 190 of the CrPC states that a Magistrate may take cognizance of

any offence in one of three situations: (a) upon receiving a complaint of

facts which constitute such offence; (b) upon a police report of such facts;

and (c) upon information received from any person other than a police

officer, or upon his own knowledge, that such offence has been committed.

However, Section 195 of the CrPC states that in the offences covered by

it, no Court shall take cognizance except upon the complaint in writing of

a public servant, insofar as the offences mentioned in sub-clause (1)(a)

14
are concerned, and by the complaint in writing of the “Court” as defined by

sub-section (3), insofar as the offences delineated in sub-clause (1)(b) are

concerned. The reason for the enactment of Section 195 of the CrPC has

been stated felicitously in Patel Laljibhai Somabhai v. State of Gujarat

(1971) 2 SCC 376, as follows:

“7. The underlying purpose of enacting Section 195(1)(b) and (c)
and Section 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 those
offence 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 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
Section 190 CrPC, 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.”

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11. This section has been construed to be mandatory, being an absolute bar

to the taking of cognizance under Section 190 of the CrPC, unless the

conditions of the section are met, as held by this Court in Daulat Ram v.

State of Punjab (1962) Supp. 2 SCR 812 as follows (at page 815):

“The words of the section, namely, that the complaint has to be
in writing by the public servant concerned and that no court shall
take cognizance except on such a complaint clearly show that in
every instance the court must be moved by the appropriate public
servant. We have to decide therefore whether the Tahsildar can
be said to be the public servant concerned and if he had not filed
the complaint in writing, whether the police officers in filing the
charge-sheet had satisfied the requirements of Section 195. The
words “no court shall take cognizance” have been interpreted on
more than one occasion and they show that there is an absolute
bar against the court taking seisin of the case except in the
manner provided by the section.”

12. Under Section 340 of the CrPC, the procedure in cases mentioned in

Section 195 of the CrPC is set out. The Court may make a preliminary

enquiry if it thinks necessary, and then record a finding to the effect that

the provisions of Section 195(1)(b) of the CrPC are attracted, as a result

of which the Court itself is then to make a complaint in writing, and send it

to a Magistrate of the first class having jurisdiction. Where the Court

declines to make any such complaint, an appeal is provided under Section

341 of the CrPC. The appellate power of the Court under Section 341 can

also be invoked, insofar as a complaint has been made under Section 340,

by the person so aggrieved. By Section 341(2), the appellate order shall

be final and shall not be subject to revision. Finally, a Magistrate to whom

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a complaint is made under these sections shall proceed to deal with the

case as if it were instituted on a police report – vide Section 343(1).

13. The point forcefully argued by the learned counsel on behalf of the

Appellants is that his clients, being victims of forgery, ought not to be

rendered remediless in respect of the acts of forgery which are committed

before they are used as evidence in a court proceeding, and that therefore,

a private complaint would be maintainable in the fact circumstance

mentioned in the two criminal complaints referred to hereinabove. The

Court has thus to steer between two opposite poles of a spectrum – the

“yin” being the protection of a person from frivolous criminal complaints,

and the “yang” being the right of a victim to ventilate his grievance and

have the Court try the offence of forgery by means of a private complaint.

In order to appreciate whether this case falls within the category of

avoiding frivolous litigation, or whether it falls within the individual’s right to

pursue a private complaint, we must needs refer to several decisions of

this Court.

14. In Babu Lal v. State of Uttar Pradesh (1964) 4 SCR 957, a 5-Judge

Bench of this Court dealt with the difference between the ingredients of

offences made out under Sections 192 and 193 of the IPC on the one

hand, and the “forgery” sections of the IPC on the other. The Court put it

thus (at pages 962-963):

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“It is true that some of the ingredients of the act of fabricating
false evidence which is penalised under Section 193 Indian
Penal Code and of making a false document and thereby
committing forgery within the meaning of Sections 463 and 464
of the Indian Penal Code are common. A person by making a
false entry in any book or record or by making any document
containing a false statement may, if the prescribed conditions of
Section 463 are fulfilled, commit an offence of forgery. But the
important ingredient which constitutes fabrication of false
evidence within the meaning of Section 192 Indian Penal Code
beside causing a circumstance to exist or making a false
document — to use a compendious expression — is the intention
that the circumstance so caused to exist or the false document
made may appear in evidence in a judicial proceeding, or before
a public servant or before an arbitrator, and lead to the forming
of an erroneous opinion touching any point material to the result
of the proceeding. The offences of forgery and of fabricating false
evidence for the purpose of using it in a judicial proceeding are
therefore distinct, and within the description of fabricating false
evidence for the purpose specified in Section 479-A Criminal
Procedure Code, the offence of forgery is not included. In any
event the offence penalised under Section 471 Indian Penal
Code can never be covered by sub-section (1) of Section 479-A.
Therefore for taking proceeding against a person who is found to
have used a false document dishonestly or fraudulently in any
judicial proceeding, resort may only be made to Section 476
Code of Criminal Procedure.”

15. In Dr. S. Dutt v. State of Uttar Pradesh (1966) 1 SCR 493, the question

arose in the context of an expert witness (i.e. the Appellant before the

Supreme Court) who produced a diploma before the Sessions Court from

the Imperial College of Science and Technology in London, to the effect

that he had specialised in the subject of criminology. The prosecution

applied to the Sessions Judge under Section 195 of the CrPC for

prosecution of Dr. Dutt under Section 193 of the IPC. This application was

rejected. Two days after its rejection, the private complainant lodged a

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report at a police station alleging that Dr. Dutt had committed an offence

under Section 465, 466 and 471 of the IPC, stating that the diploma

produced was forged, and that Dr. Dutt had used this “in the court with a

bad motive”, passing it off as genuine. The question which arose before

this Court was as to whether the private complaint was substantially for

offences under Sections 191 to 193 or 196 of the IPC, as against the

“forgery” sections contained in the IPC from Section 463 onwards. After

setting out the two sets of sections contained in the IPC, the Court held:

“The broad distinction between offences under the two groups is
this. Section 465 deals with the offence of forgery by the making
of a false document and Section 471 with the offences of using
forged documents dishonestly or fraudulently. Section 193 deals
with the giving or fabricating of false evidence and Section 196
with corruptly using evidence known to be false. The gist of the
offence in the first group is the making of a false document and
the gist of the offences in the second group is the procuring of false
circumstances or the making of a document containing a false
statement so that a judicial officer may form a wrong opinion in a
judicial proceeding on the faith of the false evidence. Another
important difference is that whereas Section 471 requires a user
to be either fraudulent, dishonest or both, Section 196 is satisfied
if the user is corrupt. The Penal Code defines the expressions
fraudulently and dishonestly but not the expression corrupt.

We shall now attempt to apply the two groups of offences
contained in Chapter XI and Chapter XVIII, to the proved acts of
Dr Dutt. We shall begin with Chapter XI. The definition of the
expression “fabricating false evidence” in Section 192, already
quoted, quite clearly covers this case. If Dr Dutt fabricated the false
diploma he made a document containing a false statement
intending that it may appear in evidence and so appearing in
evidence may cause any person who is to form an opinion upon it
to entertain an erroneous opinion touching on point material to the
result of a judicial proceedings. Dr Dutt, as alleged, was falsely
posing as an expert and was deposing about matters which were

19
material to the result of the trial. He had a document to support his
claim should occasion arise. He produced the document, although
asked to do so, intending that the presiding Judge may form an
erroneous opinion about Dr Dutt and the relevancy of his
evidence. The case was thus covered by Section 192. When Dr
Dutt deposed, let us assume falsely about his training, he
committed an offence under Section 193. Again, when Dr Dutt
used the diploma as genuine his conduct was corrupt, whether or
not it was dishonest or fraudulent.”
(at pages 499-500)

“It would thus be seen that the action of Dr Dutt was covered by
Sections 192 and 196 of the Penal Code. If Dr Dutt gave false
evidence in court or if he fabricated false evidence the offence
under Section 193 was clearly committed. If he used fabricated
evidence an offence under Section 196 was committed by him.
These offences would have required a complaint in writing of the
Sessions Judge before cognizance could be taken.”
(at page 501)

“We are, therefore, satisfied that Dr Dutt’s conduct does not come
within Section 471. On the other hand, it falls within Section 196
which casts its net wider in the interest of the purity of
administration of justice. It may be noted that an offence under
Section 196 of the Penal Code is a far more serious offence than
the offence under Sections 465/471. The former is punishable with
imprisonment upto seven years and fine while the latter is
punishable with imprisonment upto two years or with fine.

In this connection we may again recall the words of this Court
which were put in the forefront by Mr Chari that it is not permissible
for the prosecution to drop a serious charge and select one which
does not require the procedure under Section 195 of the Code of
Criminal Procedure. If the offence was under Section 196 of the
Indian Penal Code, a complaint in writing by the court concerned
was required. Before a complaint is made the court has to consider
whether it is expedient in the interests of justice to order a
prosecution. In the lesser offence no such complaint by the court
is necessary and it is obvious that the lesser offence was chosen
to bypass the Sessions Judge who had earlier decided that Dr Dutt
should not be prosecuted for perjury. Such a device is not to be
commended. In our opinion, the offence in the present case did

20
not fall within Sections 465/471 IPC and the prosecution launched
against Dr Dutt cannot be allowed to go on.”
(at pages 503-504)

16. In Baban Singh and Anr. v. Jagdish Singh and Anr. (1966) 3 SCR 552,

the question was whether the swearing of false affidavits before a Court

would amount to an offence under Sections 191 or 192 of the IPC, or

whether Section 199 of the IPC would be attracted, in which case the

special procedure delineated by Section 479-A of the Code of Criminal

Procedure, 1898 need not be followed. The Court held (at pages 555-

556):

“The matter has to be considered from three standpoints. Does
the swearing of the false affidavits amount to an offence under
s.199, Indian Penal Code or under either s.191 or 192, Indian
Penal Code
? If it comes under the two latter sections, the present
prosecution cannot be sustained, Section 199 deals with a
declaration and does not state that the declaration must be on
oath. The only condition necessary is that the declaration must be
capable of being used as evidence and which any court of justice
or any public servant or other person, is bound or authorised by
law to receive as evidence. Section 191 deals with evidence on
oath and s.192 with fabricating false evidence. If we consider this
matter from the standpoint of s.191, Indian Penal Code the
offence is constituted by swearing falsely when one is bound by
oath to state the truth because an affidavit is a declaration made
under oath. The definition of the offence of giving false evidence
thus applies to the affidavits. The offence may also fall within s.

192. It lays down inter alia that a person is said to fabricate false
evidence if he makes a document containing a false statement
intending that such false statement may appear in evidence in a
judicial proceeding and so appearing in evidence may cause any
person who, in such proceeding is to form an opinion upon the
evidence, to entertain an erroneous opinion touching any point
material to the result of such proceeding. When Baban Singh and
Dharichhan Kuer made declarations in their affidavits which were
tendered in the High Court to be taken into consideration, they

21
intended the statements to appear in evidence in a judicial
proceeding, and so appearing, to cause the court to entertain an
erroneous opinion regarding the compromise. In this way their
offence came within the words of ss.191/192 rather than s.199 of
the Indian Penal Code
. They were thus prima facie guilty of an
offence of giving false evidence or of fabricating false evidence
for the purpose of being used in a judicial proceeding.

Section 479-A lays down a special procedure which applies to
persons who appear as witnesses before civil, revenue or criminal
courts and do one of two things: (i) intentionally give false
evidence in any stage of the judicial proceeding or (ii) intentionally
fabricate false evidence for the purpose of being used in any
stage of the judicial proceeding. The first refers to an offence
under Section 191/193 and the second to that under 192/193 of
the Indian Penal Code
. In respect of such offences when
committed by a witness, action under s.479-A alone can be taken.
The appellants were witnesses in the inquiry in the High Court
and they had fabricated false evidence. If any prosecution was to
be started against them the High Court ought to have followed the
procedure under s. 479-A of the Code of Criminal Procedure. Not
having done so, the action under S.476 of the Code of Criminal
Procedure was not open because of sub-s. (6) of s.479-A and the
order under appeal cannot be allowed to stand.”

17. In Kamla Prasad Singh v. Hari Nath Singh (1967) 3 SCR 828, the

question which arose before the Court was as to whether the intentional

making of a false entry in a document to be used in a judicial proceeding

would make out an offence under Section 192, or whether it would make

out an offence under Section 218 of the IPC, in which case a private

complaint would have been maintainable before a Magistrate. In dealing

with the distinctive features of complaints filed under Sections 192 and 193

of the IPC, the Court held (at pages 829-830):

22

“The first question is what are the distinct features of Section 193
and Section 218 of the Indian Penal Code. Section 193 states the
punishment for giving false evidence in any stage of a judicial
proceeding or fabricating false evidence for the purpose of being
used in any stage of judicial proceeding. Section 191 defines the
offence of giving false evidence and Section 192 the offence of
fabricating false evidence. We may ignore Section 191 because
here admittedly there is no giving of false evidence as defined in
the Penal Code
. The offence of fabricating false evidence comes
into existence when a person causes any circumstance to exist or
makes any false entry in any book or record or makes any
document containing a false statement intending that such
circumstance, false entry or false statement may appear in
evidence in a judicial proceeding etc. and so appearing cause an
erroneous opinion be formed touching a point material to the result
of such proceeding. The offence is a general one and does not
specify the person or the kind of document. It may be any person
and the fabricated evidence may be in any form. Section 218 on
the other hand deals with the intentional preparation of a false
record by a public servant with the object of saving or injuring any
person or property. The difference between the two sections is
clearly noticeable. Section 192 deals with judicial proceeding and
the false evidence is intended to be used in a judicial proceeding.
Section 218 deals with public servants and there the gist is the
intentional preparation of a false record with a view of saving or
injuring any person or property. This need not have relation to a
judicial proceeding as such.”

18. In holding that the alleged offence committed by one Ahlmad would fall

under Section 192 and not under Section 218 of the IPC, the Court then

went on to observe (at pages 830-831):

“It will appear from this that the alleged offence committed by the
Ahlmad was clearly in or in relation to a proceeding in Court. In
fact he made an incorrect entry about a case actually in Court with
the intention that the date of the institution of the proceeding may
be taken to be November 9, 1962 although the case was alleged
to be instituted after December 4, 1962. His offence (if any be
proved against him) would fall within Section 192. Section 192
deals with fabrication of false evidence to be used in a judicial
proceeding so as to cause an erroneous opinion to be formed on

23
a material point. Section 192 therefore completely covers the case
against Ahlmad, and must cover the case of Hari Nath Singh the
alleged abettor. Section 218 Indian Penal Code does not apply in
this case, because the record was not made with the object of
saving or injuring any person or property. The offence of Section
192
of the Indian Penal Code is punishable under Section 193
Indian Penal Code and the latter section is one of the sections
mentioned in Section 195(1)(b) of the Code of Criminal Procedure,
the gist of which has been reproduced above. The decision of the
High Court was therefore right that the Court could not take
cognizance of the offence alleged against the Ahlmad and his
abettor, because the offence was fabricating of false evidence in
a case which was in fact pending and the false entry was made
with the object that an erroneous opinion be formed on a material
point. Such a case could only be instituted by a court in which or
in relation to which this offence was committed and a private
complaint was therefore incompetent.”

19. At this stage, it is important to understand the difference between the

offences mentioned in Section 195(1)(b)(i) and Section 195(1)(b)(ii) of the

CrPC. Where the facts mentioned in a complaint attracts the provisions of

Section 191 to 193 of the IPC, Section 195(1)(b)(i) of the CrPC applies.

What is important is that once these sections of the IPC are attracted, the

offence should be alleged to have been committed in, or in relation to, any

proceeding in any Court. Thus, what is clear is that the offence punishable

under these sections does not have to be committed only in any

proceeding in any Court but can also be an offence alleged to have been

committed in relation to any proceeding in any Court.

20. The words “in relation to” have been the subject matter of judicial

discussion in many judgments. Suffice it to say that for the present, two

such judgments need to be noticed. In State Wakf Board, Madras v.

24

Abdul Azeez Sahib and Ors., AIR 1968 Mad. 79, the expression “relating

to” contained in Section 57(1) of the Wakf Act, 1954 fell for consideration

before the Madras High Court. The High Court held:

“8. We have no doubt whatever that the learned Judge,
(Kailasam, J.), was correct in his view that even the second suit
has to be interpreted as within the scope of the words employed
in S. 57(1) namely, “In every suit or proceeding relating to title to
Wakf property”. There is ample judicial authority for the view that
such words as “relating to” or “in relation to” are words of
comprehensiveness which might both have a direct significance
as well as an indirect significance, depending on the context.
They are not words of restrictive content and ought not to be so
construed. The matter has come up for judicial determination in
more than one instance. The case in Compagnie Financiec Dae
Pacifique v. Peruvian Guano Co
, is of great interest, on this
particular aspect and the judgment of Brett, L.J., expounds the
interpretation of O. 31, R. 12 of the Rules of the Supreme Court,
1875, in the context of the phrase “material to any matter in
question in the action”. Brett, L.J., observed that this could both
be direct as well as indirect in consequences and according to the
learned Judge the test was this (at page 63):

“…a document can properly be said to contain information which
may enable the party requiring the affidavit either to advance his
own case or to damage the case of his adversary if it is a
document which may fairly lead him to a train of inquiry, which
may have either of these consequences.””

21. Likewise, in Mansukhlal Dhanraj Jain and Ors. Etc. v. Eknath Vithal

Ogale Etc., (1995) 2 SCC 665, the expression “Suits and proceedings

between a licensor and licensee…relating to the recovery of possession”

under Section 41(1) of the Presidency Small Cause Courts Act, 1882 came

up for consideration before this Court. The Court held:

“14…The words ‘relating to’ are of wide import and can take in
their sweep any suit in which the grievance is made that the

25
defendant is threatening to illegally recover possession from the
plaintiff-licensee. Suits for protecting such possession of
immovable property against the alleged illegal attempts on the
part of the defendant to forcibly recover such possession from the
plaintiff, can clearly get covered by the wide sweep of the words
“relating to recovery of possession” as employed by Section
41(1)
.

xxx xxx xxx

16. It is, therefore, obvious that the phrase “relating to recovery of
possession” as found in Section 41(1) of the Small Cause Courts
Act is comprehensive in nature and takes in its sweep all types of
suits and proceedings which are concerned with the recovery of
possession of suit property from the licensee and, therefore, suits
for permanent injunction restraining the defendant from effecting
forcible recovery of such possession from the licensee-plaintiff
would squarely be covered by the wide sweep of the said phrase.
Consequently in the light of the averments in the plaints under
consideration and the prayers sought for therein, on the clear
language of Section 41(1), the conclusion is inevitable that these
suits could lie within the exclusive jurisdiction of Small Cause
Court, Bombay and the City Civil Court would have no jurisdiction
to entertain such suits.”

22. Contrasted with Section 195(1)(b)(i), Section 195(1)(b)(ii) of the CrPC

speaks of offences described in Section 463, and punishable under

Sections 471, 475 or 476 of the IPC, when such offences are alleged to

have been committed in respect of a document produced or given in

evidence in a proceeding in any Court. What is conspicuous by its absence

in Section 195(1)(b)(ii) are the words “or in relation to”, making it clear that

if the provisions of Section 195(1)(b)(ii) are attracted, then the offence

alleged to have been committed must be committed in respect of a

document that is custodia legis, and not an offence that may have occurred

26
prior to the document being introduced in court proceedings. Indeed, it is

this distinction that is vital in understanding the sheet anchor of the

Appellant’s case namely, this Court’s judgment in Iqbal Singh Marwah

(supra).

23. In Iqbal Singh Marwah (supra), a 5-Judge Bench was constituted in view

of a conflict between decisions of this Court as follows:

“2. In view of conflict of opinion between two decisions of this
Court, each rendered by a Bench of three learned Judges
in Surjit Singh v. Balbir Singh [(1996) 3 SCC 533] and Sachida
Nand Singh v. State of Bihar
[(1998) 2 SCC 493] regarding
interpretation of Section 195(1)(b)(ii) of the Code of Criminal
Procedure, 1973 (for short “CrPC”), this appeal has been placed
before the present Bench.”

24. The Court first spoke of the broad scheme of Section 195 of the CrPC,

which deals with three distinct categories of offences, and held that the

category of offences contained in Section 195(1)(b)(ii) ought to be read

along with the offences contained in Section 195(1)(a) and 195(1)(b)(i),

which are clearly offences which directly affect either the functioning or

discharge of duties of a public servant or of courts of justice. This was

stated in paragraph 10 of the judgment as follows:

“10. The scheme of the statutory provision may now be
examined. Broadly, Section 195 CrPC deals with three distinct
categories of offences which have been described in clauses (a),

(b)(i) and (b)(ii) and they relate to (1) contempt of lawful authority
of public servants, (2) offences against public justice, and (3)
offences relating to documents given in evidence. Clause (a)
deals with offences punishable under Sections 172 to 188 IPC
which occur in Chapter X IPC and the heading of the Chapter is
— “Of Contempts of the Lawful Authority of Public Servants”.

27

These are offences which directly affect the functioning of or
discharge of lawful duties of a public servant. Clause (b)(i) refers
to offences in Chapter XI IPC which is headed as — “Of False
Evidence and Offences Against Public Justice”. The offences
mentioned in this clause clearly relate to giving or fabricating false
evidence or making a false declaration in any judicial proceeding
or before a court of justice or before a public servant who is bound
or authorised by law to receive such declaration, and also to some
other offences which have a direct correlation with the
proceedings in a court of justice (Sections 205 and 211 IPC). This
being the scheme of two provisions or clauses of Section 195 viz.
that the offence should be such which has direct bearing or affects
the functioning or discharge of lawful duties of a public servant or
has a direct correlation with the proceedings in a court of justice,
the expression “when such offence is alleged to have been
committed in respect of a document produced or given in
evidence in a proceeding in any court” occurring in clause (b)(ii)
should normally mean commission of such an offence after the
document has actually been produced or given in evidence in the
court. The situation or contingency where an offence as
enumerated in this clause has already been committed earlier
and later on the document is produced or is given in evidence in
court, does not appear to be in tune with clauses (a)(i) and (b)(i)
and consequently with the scheme of Section 195 CrPC. This
indicates that clause (b)(ii) contemplates a situation where the
offences enumerated therein are committed with respect to a
document subsequent to its production or giving in evidence in a
proceeding in any court.”

25. The Chapter heading of Chapter XXVI of the CrPC, which contains

Sections 340 and 341 was then referred to – the heading reading

“Provisions as to Offences Affecting the Administration of Justice”, which

according to the Court also indicated that the offences mentioned in

Section 195(1)(b)(ii) are offences which directly affect the administration

of justice. After referring to various judgments, the Court then explained

28
the difference between Section 195(1)(c) of the Code of Criminal

Procedure, 1898 and Section 195(1)(b)(ii) of the CrPC, 1973 as follows:

“19. As mentioned earlier, the words “by a party to any
proceeding in any court” occurring in Section 195(1)(c) of the old
Code have been omitted in Section 195(1)(b)(ii) CrPC. Why
these words were deleted in the corresponding provision of the
Code
of Criminal Procedure, 1973 will be apparent from the 41st
Report of the Law Commission which said as under in para
15.39:

“15.39. The purpose of the section is to bar private prosecutions
where the course of justice is sought to be perverted leaving to
the court itself to uphold its dignity and prestige. On principle
there is no reason why the safeguard in clause (c) should not
apply to offences committed by witnesses also. Witnesses need
as much protection against vexatious prosecutions as parties
and the court should have as much control over the acts of
witnesses that enter as a component of a judicial proceeding, as
over the acts of parties. If, therefore, the provisions of clause (c)
are extended to witnesses, the extension would be in conformity
with the broad principle which forms the basis of Section 195.”

20. Since the object of deletion of the words “by a party to any
proceeding in any court” occurring in Section 195(1)(c) of the old
Code is to afford protection to witnesses also, the interpretation
placed on the said provision in the earlier decisions would still
hold good.”

26. Importantly, the Court then stated that Section 195 of the CrPC is an

exception to the general provision contained in Section 190 thereof, and

creates an embargo upon the power of the Court to take cognizance of

certain types of offences enumerated under Section 195, which must be

necessarily follow the drill contained in Section 340 of the CrPC (see

paragraph 21). An important reason is then given by the Court, which is

that the victim of a forged document which is forged outside the court

29
premises and before being introduced in a Court proceeding, would render

the victim of such forgery remediless, in that it would otherwise be left only

to the court mentioned in Section 340 of the CrPC who decides as to

whether a complaint ought or ought not to be lodged in respect of such

complaint. Paragraph 23 therefore states:

“23. In view of the language used in Section 340 CrPC the court
is not bound to make a complaint regarding commission of an
offence referred to in Section 195(1)(b), as the section is
conditioned by the words “court is of opinion that it is expedient in
the interests of justice”. This shows that such a course will be
adopted only if the interest of justice requires and not in every
case. Before filing of the complaint, the court may hold a
preliminary enquiry and record a finding to the effect that it is
expedient in the interests of justice that enquiry should be made
into any of the offences referred to in Section 195(1)(b). This
expediency will normally be judged by the court by weighing not
the magnitude of injury suffered by the person affected by such
forgery or forged document, but having regard to the effect or
impact, such commission of offence has upon administration of
justice. It is possible that such forged document or forgery may
cause a very serious or substantial injury to a person in the sense
that it may deprive him of a very valuable property or status or the
like, but such document may be just a piece of evidence produced
or given in evidence in court, where voluminous evidence may
have been adduced and the effect of such piece of evidence on
the broad concept of administration of justice may be minimal. In
such circumstances, the court may not consider it expedient in
the interest of justice to make a complaint. The broad view of
clause (b)(ii), as canvassed by learned counsel for the appellants,
would render the victim of such forgery or forged document
remediless. Any interpretation which leads to a situation where a
victim of a crime is rendered remediless, has to be discarded.”

27. Paragraph 25 of the judgment then refers to how the broader interpretation

that was accepted in Surjit Singh (supra) would be capable of great

misuse. This was put by the Court as follows:

30

“25. An enlarged interpretation to Section 195(1)(b)(ii), whereby
the bar created by the said provision would also operate where
after commission of an act of forgery the document is
subsequently produced in court, is capable of great misuse. As
pointed out in Sachida Nand Singh [(1998) 2 SCC 493] after
preparing a forged document or committing an act of forgery, a
person may manage to get a proceeding instituted in any civil,
criminal or revenue court, either by himself or through someone
set up by him and simply file the document in the said proceeding.
He would thus be protected from prosecution, either at the
instance of a private party or the police until the court, where the
document has been filed, itself chooses to file a complaint. The
litigation may be a prolonged one due to which the actual trial of
such a person may be delayed indefinitely. Such an interpretation
would be highly detrimental to the interest of the society at large.”

28. The Court then held that where it is possible, interpretatively speaking, an

impracticable result should be avoided (see paragraphs 26 and 27). The

Court, which was dealing with a forged will that had been introduced in

Court proceedings after it was forged, therefore concluded:

“33. In view of the discussion made above, we are of the opinion
that Sachida Nand Singh [(1998) 2 SCC 493] has been correctly
decided and the view taken therein is the correct view. Section
195(1)(b)(ii)
CrPC would be attracted only when the offences
enumerated in the said 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.

34. In the present case, the Will has been produced in the court
subsequently. It is nobody’s case that any offence as enumerated
in Section 195(1)(b)(ii) was committed in respect to the said Will
after it had been produced or filed in the Court of District Judge.
Therefore, the bar created by Section 195(1)(b)(ii) CrPC would
not come into play and there is no embargo on the power of the
court to take cognizance of the offence on the basis of the
complaint filed by the respondents. The view taken by the learned
Additional Sessions Judge and the High Court is perfectly correct
and calls for no interference.”

31

29. Thus, Iqbal Singh Marwah (supra) is clear authority for the proposition

that in cases which fall under Section 195(1)(b)(ii) of the CrPC, the

document that is said to have been forged should be custodia legis after

which the forgery takes place. That this judgment has been followed in

several subsequent judgments is beyond cavil – see Mahesh Chand

Sharma v. State of U.P and Ors. (2009) 15 SCC 519 (at paragraphs 21-

23); C.P. Subhash v. Inspector of Police, Chennai and Ors. (2013) 11

SCC 559 (at paragraphs 12 and 13); Kishorbhai Gandubhai Pethani v.

State of Gujarat and Anr. (2014) 13 SCC 539 (at paragraphs 14 and 15)

and Vishnu Chandru Gaonkar v. N.M. Dessai (2018) 5 SCC 422 (at

paragraphs 14 and 17).

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.

32

31. Thus, in Kailash Mangal v. Ramesh Chand (2015) 15 SCC 729, this

Court was confronted with the conviction of the appellant under Sections

193 and 419 of the IPC in a case initiated on a private complaint. Iqbal

Singh Marwah (supra) was put in the forefront of the argument, stating

that the offence that had been committed on the facts of this case had

been committed with respect to a document prior to its being custodia

legis. This Court distinguished Iqbal Singh Marwah (supra) as follows:

“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.

10. In the instant case, the false affidavit alleged to have been filed
by the appellant was in a proceeding pending before the civil court
and the offence falls under Section 193 IPC and the proceeding
ought to have been initiated on the complaint in writing by that court
under Section 195(1)(b)(i) IPC. Since the offence is said to have
been committed in relation to or in a proceeding in a civil court, the
case of Iqbal Singh Marwah is not applicable to the instant case.”

33

32. Likewise, in a recent judgment in Narendra Kumar Srivastava v. State

of Bihar and Ors. (2019) 3 SCC 318, the Court was concerned with false

affidavits that had been prepared/forged outside the Court. This being so,

the question that arose before the Court was whether the Magistrate was

justified in taking cognizance of an offence punishable under Section 193

of the IPC on the basis of a private complaint. This Court held:

“13. It is clear from sub-section (1)(b) of Section 195 CrPC that
the section deals with two separate set of offences:

(i) of any offence punishable under Sections 193 to 196 (both
inclusive), 199, 200, 205 to 211 (both inclusive) and 228 IPC,
when such offence is alleged to have been committed in, or in
relation to, any proceeding in any court; [Section 195(1)(b)(i)]

(ii) of any offence described in Section 463, or punishable under
Section 471, Section 475 or Section 476 IPC, when such offence
is alleged to have been committed in respect of a document
produced or given in evidence in a proceeding in any court.
[Section 195(1)(b)(ii)].

14. On the reading of these sections, it can be easily seen that
the offences under Section 195(1)(b)(i) and Section 195(1)(b)(ii)
are clearly distinct. The first category of offences refers to
offences of false evidence and offences against public justice,
whereas, the second category of offences relates to offences in
respect of a document produced or given in evidence in a
proceeding in any court.

15. Section 195 CrPC lays down a rule to be followed by the
court which is to take cognizance of an offence specified therein
but contains no direction for the guidance of the court which
desires to initiate prosecution in respect of an offence alleged to
have been committed in or in relation to a proceeding in the latter
court. For that purpose, one must turn to Section 340 which
requires the court desiring to put the law in motion to prefer a
complaint either suo motu or an application made to it in that
behalf.

34

xxx xxx xxx

17. Section 340 CrPC makes it clear that a prosecution under
this section can be initiated only by the sanction of the court
under whose proceedings an offence referred to in Section
195(1)(b)
has allegedly been committed. The object of this
section is to ascertain whether any offence affecting
administration of justice has been committed in relation to any
document produced or given in evidence in court during the time
when the document or evidence was in custodia legis and
whether it is also expedient in the interest of justice to take such
action. The court shall not only consider prima facie case but also
see whether it is in or against public interest to allow a criminal
proceeding to be instituted.

xxx xxx xxx

21. As already mentioned, clauses under Section 195(1)(b)
CrPC i.e. sub-section 195(1)(b)(i) and sub-section 195(1)(b)(ii)
cater to separate offences. Though Section 340 CrPC is a
generic section for offences committed under Section 195(1)(b),
the same has different and exclusive application to clauses (i)
and (ii) of Section 195(1)(b) CrPC.

22. In Sachida Nand Singh [(1998) 2 SCC 493] relied on by the
learned counsel for the appellant, this Court was considering the
question as to whether the bar contained in Section 195(1)(b)(ii)
CrPC is applicable to a case where forgery of the document was
committed before the document was produced in a court. It was
held: (SCC pp. 497 & 501, paras 6 & 23)

“6. A reading of the clause reveals two main postulates for
operation of the bar mentioned there. First is, there must be
allegation that an offence (it should be either an offence
described in Section 463 or any other offence punishable under
Sections 471, 475 and 476 IPC) has been committed. Second is
that such offence should have been committed in respect of a
document produced or given in evidence in a proceeding in any
court. There is no dispute before us that if forgery has been
committed while the document was in the custody of a court, then
prosecution can be launched only with a complaint made by that
court. There is also no dispute that if forgery was committed with
a document which has not been produced in a court then the

35
prosecution would lie at the instance of any person. If so, will its
production in a court make all the difference?

***

23. The sequitur of the above discussion is that the bar contained
in Section 195(1)(b)(ii) of the Code is not applicable to a case
where forgery of the document was committed before the
document was produced in a court. Accordingly we dismiss this
appeal.”

23. In Sachida Nand Singh, this Court had dealt with Section
195(1)(b)(ii)
CrPC unlike the present case which is covered by
the preceding clause of the section. The category of offences
which fall under Section 195(1)(b)(i) CrPC refer to the offence of
giving false evidence and offences against public justice which is
distinctly different from those offences under Section 195(1)(b)(ii)
CrPC, where a dispute could arise whether the offence of forging
a document was committed outside the court or when it was in
the custody of the court. Hence, this decision has no application
to the facts of the present case.

24. The case in hand squarely falls within the category of cases
falling under Section 195(1)(b)(i) CrPC as the offence is
punishable under Section 193 IPC. Therefore, the Magistrate
has erred in taking cognizance of the offence on the basis of a
private complaint. The High Court, in our view, has rightly set
aside the order of the Magistrate. However, having regard to the
facts and circumstances of the case, we deem it proper to set
aside the costs imposed by the High Court.”

33. The aforesaid judgments clearly lay down that when Section 195(1)(b)(i)

of the CrPC is attracted, the ratio of Iqbal Singh Marwah (supra), which

approved Sachida Nand Singh and Anr. v. State of Bihar and Anr.

(1998) 2 SCC 493, is not attracted, and that therefore, if false evidence is

created outside the Court premises attracting Sections 191/192 of the IPC,

the aforesaid ratio would not apply so as to validate a private complaint

filed for offences made out under these sections.

36

34. At this stage, it is important to examine the complaints dated 11.08.2019

filed in the present case. The first complaint, after setting out some facts,

clearly states:

“3. This Application is made under the provisions of Section 340
r/w section 195 of the Cr.P.C, 1973, (hereinafter called for short
“the Said Code”) seeking an order of inquiry into an offence
committed by Accused under the provisions of Section 191 and
193 of the Indian Penal Code, 1860.(hereinafter called “Penal
Code”) An offence under these provisions have been committed
by the Accused in relation to the proceedings before the Civil
Judge Senior Division at Bicholim in Spl. Civil Suits No. 7/2000/A,
8/2000/A, 14/2000/A, 21/2000/A (first 4 suits) and 1/2003/A (the
5th suit, which stands withdrawn after completion of evidence). An
offence under the above said provisions is also committed in
respect of documents in the above suits for which a separate
criminal complaint is being filed. Forged/manipulated documents
have been produced and given in evidence in the above
proceedings. All the above suits/proceedings are within the
jurisdiction of this Hon’ble Court.”

35. The complaint then refers to false statements made by the

Respondents/accused in their Written Statements and Counter Claims in

the first four suits, which are pleadings before the Court, and then goes on

to state:

“14. The Complainants state that both the Accused No. 2 and
Accused No. 3 have made declarations on a subject which they
are bound by law and has, in fact, made Statements, which are
false and which both the Accused know or believe to be false or
does not believe it to be true, which is also applicable to the
Accused No. 4 to 10 herein. The Accused 2 has given false
evidence. Moreover, circumstances are caused by the Accused
2 to making false entries in any books or record intending that
such circumstance, false entry or false statements does appear
in evidence in a judicial proceedings before the Hon’ble Civil
Judge Senior Division at Bicholim and, therefore, the false entry
and false statements so appearing in evidence has caused

37
persons in such proceedings to form a opinion upon the evidence
or entertain an erroneous opinion touching any point material to
the result of such proceedings.”

36. Various particulars of fabricated documents are then given as follows:

“f) In all the 5 Suits, the Accused produced some fabricated
documents. Regarding one of such documents being a typed
statement dated 3.09.1998 confronted to the Complainants
Witness during his cross, a Xerox copy was first shown with
handwritten remarks of page 2 thereof of an employee of the
Accused. When the said witness declined to comment on the said
Xerox copy on the next date, the original typed statement with the
said handwritten remark torn/missing therein was shown to the
witness. Whereas in the common Affidavit dated 10.02.2003 filed
by late V.G. Quenim in the first 4 suits at para 38 stated:
“I say that in the torn portion of page one there were only initials of
Shri Prabhu from my office. So also in the torn portion of page 2
the words written thereon were “checked with the previous
statement and found correct” bearing initials of Mr. Vikas Naik who
is working in my office as Accountant. I cannot explain how the
said portion got torn”

In addition, there are other fabricated documents produced by the
Accused in the said suits which would be the subject matter of
complaint u/s 192 being filed by the Complainants herein
separately.

g) The Accounts were manipulated, false entries were made in
their books of Account, Profit and Loss Account, Balance Sheet
etc. The counterclaims filed in suit No.7/2000/A and 8/2000/A
against complaint No.1 and 2 despite the above pointed out
fabrication/manipulation were also written off as Bad Debts as on
31.03.2000 in their audited books of Account.

h)The Accused No.1 claimed that the Mutual, Open and Current
Account was closed on 09.03.2000 whereas the Accused No.2
claimed that the SAME mutual open and current Account was
closed on 09.03.2000 and 31.03.2000 i.e. on two occasions and
finally during the cross examination of the Accused No.2 herein in
the 5th suit he has admitted that the same were not the ledger
Accounts.”

38

37. The prayer made in this complaint is then as follows:

“IT IS THEREFORE PRAYED THAT THIS HON’BLE COURT BE
PLEASED TO:

(a) record a finding to that effect;

(b) make a Complaint thereof in writing;

(c) send it to a Magistrate of the First Class having Jurisdiction;

(d) take sufficient Security for appearance of the Accused before
such Magistrate, or if the alleged offence is non- bailable and the
Court thinks it necessary so to do, send the Accused in custody
to such Magistrate; and

(e) bind over any person to appear and give evidence before such
Magistrate.”

38. So far as the second complaint is concerned, like the first complaint, this

was also stated to be an application under Sections 340 read with 195 of

the CrPC as follows:

“3. This Application is made under the provisions of Section 340
read with section 195 of the Cr.PC, 1973, (hereinafter called for
short the Said Code”) seeking an order of inquiry into an offence
committed by Accused under the provisions of Section 192 and
193 of the Indian Penal Code, 1860.(hereinafter called “Penal
Code”) An offence under these provisions have been committed
by the Accused in relation to the proceedings in the Court of the
Civil Judge Senior Division at Bicholim i.e. in Spl. Civil Suits No.
7/2000/A, 8/2000/A, 14/2000/A, 21/2000/A (first 4 Suits) and Spl.
Civil Suit No. 1/2003/A (the 5th Suit, which stands withdrawn after
completion of evidence) An offence under the abovesaid
provisions is committed in respect of documents in the above suits
for which a separate criminal complaint is being filed.
Forged/manipulated documents have been produced and given in
Evidence in the above proceedings. All the above suits are within
the jurisdiction of this Hon’ble Court.

a) Forged a Debit Note dated 09.03.2000 for Rs.1,88,27796/-

alongwith the statements annexed thereto sent under the cover of

39
letter dated 09.03.2000. Hereto marked as EXHIBIT-C Colly is
copy of said documents.

b)The said Debit Note dated 09.03.2000 for Rs. 1,88,27,796/- at

(a) above is the subject matter of counterclaim filed by the
Accused against the Complainant No. 1 in Spl. Civil Suit No.
7/2000/A which Debit Note is reflecting in the manipulated Ledger
extract annexed to the written statement dated 10.03.2000 at Exh.
A thereto which document is produced and given in evidence in
Spl. Civil Suit No.1/2003/A which document is at EXHIBIT-F
COLLY herein.

c) Forged Debit Note dated 31.03.2000 for Rs.76,19,869/-
alongwith the statements annexed thereto sent under the cover of
letter dated 4.07.2000. Hereto annexed and marked as EXHIBIT –
D Colly is the copy of the said documents.

d) Forged a Debit Note dated 31.03.2000 for the sum of Rs.
29,081/- also sent under the cover of the said letter dated
04.07.2000. Hereto marked as EXHIBIT-D Colly is the copy of the
said document.

e) The said 2 Debit Notes at (c) and (d) above for total amounting
to Rs. 76,48,950/- is subject matter of the counterclaim filed by the
Accused against the Complainant No. 2 in Spl. Civil Suit No.
8/2000/A, which Debit Notes are reflecting in the manipulated
ledger extract annexed to the written statement and counterclaim
dated 04.07.2000 at Exh: B thereto, which document is produced
and given in evidence in Spl. Civil Suit No. 1/2003/A which
document is at EXHIBIT-J Colly herein.

In this Complaint, the Complainants request this Hon’ble Court to
make a preliminary enquiry it deems fit and necessary. This
Hon’ble Court will also be pleased to record (a) a record of
evidence to this effect (b) to make a complaint thereof in writing

(c) and thereafter send it to a First Class Magistrate Court, having
jurisdiction (d) pass such orders as this Hon’ble Court may deem
fit and proper considering the facts and circumstances of the case
for punishing the Accused under the Provisions of Section 193 and
196 of the said Penal Code.”

39. Then the complaint goes on to refer to various false affidavits/statements

made by the accused, as follows:

40

“In such circumstances, he has declared on false
affidavits/statements in all 5 suits being Spl. Civil Suits No.
7/2000/A, 8/2000/A, 14/2000/A, 21/2000/A and 1/2003/A
respectively. He has also fabricated documents, false entries in his
books of account, in order to file his counter claims in Spl. Civil
Suits No. 7/2000/A and 8/2000/A. The false entries and the
fabricated documents created by the Accused No. 2 are as follows:

(i) Forged a Debit Note dated 09.03.2000 with statements annexed
thereto and manipulated Ledger Account and claimed an amount
of Rs. 1,88,27,796/- from the Complainant No. 1 in their counter
claim which are at EXHIBIT-C Colly herein.

(ii) Manipulated ledger extract of the Account of the Complainant
No.1 appearing in the audited books of account of the Accused
No.1 on the basis of the counterclaim for Rs.1,88,27,796/- filed by
the Accused in Spl. Civil Suit No.7/2000/A annexed as Exh. ‘A’ to
the Written Statement and counterclaim dated 10.03.2000 at
EXHIBIT-F Colly herein.

(iii) Forged a Debit Note dated 31 March, 2000 for an amount of
Rs.76, 19,869/- with statements annexed thereto and manipulated
Ledger Account and claimed an amount from the Complainant No.
2 in their counter claim sent under the cover of letter dated
04.07.2000 are at EXHIBIT-D Colly herein.

(iv) Forged a Debit Note dated 31 March, 2000 for the sum of
Rs.29,081/- purportedly for Sales Tax and manipulated Ledger
Account and claimed an amount from the Complainant No. 2 in
their counter claim sent under the cover of letter dated 04.07.2000
is at EXHIBIT-D Colly herein.

(v) Manipulated Ledger extract of the Account of Complainant No.2
purportedly appearing in the audited books of account of the
Accused No.1 on the basis of the counterclaim for a sum of
Rs.76,48,950/- filed by the Accused in Spl. Civil Suit No.8/2000/A
annexed at Exh. ‘B’ to the Written Statement and counterclaim
dated 04.07.2000 at EXHIBIT-J Colly herein.

Apart from the above mentioned debit notes, many manipulations,
false entries were made by the Accused in their books of Account,
Profit and loss Account, Balance sheet etc. In the 5th Suit being
Spl. Civil Suit No.1/2003/A, Accused No. 2 produced copy of the
audited Profit and Loss Account and Balance Sheet as on

41
31/03/2000 with annexures, Tax Audit Reports issued by their
Auditors and some supporting Ledger Accounts, Journal Vouchers
et., in respect of all the transactions of Ore claimed by late V. G.
Quenim the then Proprietor of the Accused No.1. The suit claim in
the 5th suit being Spl. Civil Suit No. 1/2003/A as also the counter
claims filed in Spl. Civil Suits No.7/2000/A and 8/2000/A against
Complainant No. 1 and 2 were neither standing to the debit of to
the Current Account of the respective Complainants herein nor the
same were credited to the sale of ore account in the books of
account of the Accused No.1 but instead, they have been written
off as Bad Debts as on 31.03.2000 in their audited books of
account.”

40. Importantly, the averment made in paragraph 11 of the complaint reads as

follows:

“11. The Complainants crave leave to refer to and rely upon the
certified copies of the Cross-examination and the various books
of account which has been manipulated, forged by making false
entry by the Accused. The purpose of the Accused is to influence
the Hon’ble Court to form an opinion upon such evidence.”

41. As a result, the second complaint ends stating:

“15. The Complainants state that both the Accused No. 2 and
Accused No. 3 have made a declarations on a subject which they
are bound by law and has, in fact, made Statements, which are
false and which both the Accused know or believe to be false or
does not believe it to be true, which is also applicable to the
Accused No.4 to 10 herein. The Accused No. 2 has given false
evidence. Moreover, circumstances are caused by the Accused 2
and 3 to making false entries in any books or record intending that
such circumstance, false entry or false statements does appear
in evidence in a judicial proceedings before the Hon’ble Civil
Judge Senior Division at Bicholim and, therefore, the false entry
and false statements so appearing in evidence has caused
persons in such proceedings to form a opinion upon the evidence
or entertain an erroneous opinion touching any point material to
the result of such proceedings.

16. The Accused No.2 and 4 to 10 herein respectively joined as
LR’s upon the death of Mr. V.G. Quenim the then Proprietor of the

42
Accused No.1 on 20.07.2007, in first 4 suits. Similarly, in the 5
suit the Accused Nos.2 to 10 herein respectively joined as LR’s
therein.

17. After the Accused No.2 to 10 abovenamed were brought on
record in the said 5 suits in Aug./Sept. 2007, the said Accused
have not even made any attempt to correct the false statements
in the pleadings in all the respective suits which continues till date
with the falsehood. Besides, the Accused No.2 and 3 are directly
involved. Thus the Accused No.2 to 10 herein have become the
co-proprietors of M/s. V.G. Quenim upon the death of late V.G.
Quenim the original Proprietor of the Accused No.1 herein.

18. It is submitted that the Accused herein have therefore.
committed an offence w/s. 192 of the Indian Penal Code and the
Accused herein are, punishable under the provisions of Section
193
of the Indian Penal Code.

IT IS THEREFORE PRAYED THAT THIS HON’BLE COURT BE
PLEASED TO:

(a) record a finding to that effect;

(b) make a Complaint thereof in writing:

(c) send it to a Magistrate of the First Class having Jurisdiction;

(d) take sufficient Security for appearance of the Accused before
such Magistrate, or if the alleged offence is non- bailable and the
Court thinks it necessary so to do, send the Accused in custody
to such Magistrate; and

(e) bind over any person to appear and give evidence before such
Magistrate.”

42. A perusal of the aforesaid complaints leaves no manner of doubt that the

first complaint attracts the provisions of Section 191 of the IPC, and the

second complaint attracts the provisions of Section 192 of the IPC.

However, for the first time in the counter-affidavit to the revision application

43
that was filed by the Respondents before the learned Sessions Judge, the

Appellants stated:

“II. The said application is liable/ought to be dismissed in as much
as a perusal of the complaint and its accompaniments not only
make out a case under section 192/193 IPC but the same also
leads to a conclusion that the offences under sections 463, 464,
465, 467, 468, 469, 471, 474, 475 & 477-A of IPC have also been
made out and as such, the accused persons be proceeded
accordingly.

xxx xxx xxx

V. The said application deserves to be dismissed because the law
relating to the bar engrafted in section 195(1)(b)(ii) of the Code of
Criminal Procedure is not applicable to a case where forgery of the
document was committed before the document was produced in
the court. As such, the documents forgery of which have been
committed were not the custodia legis.”

43. There is no doubt that realising the difficulties in their way, the Appellants

suddenly changed course, and applied to the Magistrate vide application

dated 09.05.2011 to convert what was a properly drafted application under

Section 195 read with section 340 of the CrPC, into a private complaint. A

reading of the two complaints leaves no manner of doubt that they have

been drafted keeping the ingredients of Sections 191 and 192 of the IPC

alone in mind – the only argument from the Appellants now being that since

certain debit notes were forged prior to their being introduced in the court

proceedings, not only would the ratio in Iqbal Singh Marwah (supra)

apply, but also that the ingredients of the “forgery” sections of the IPC have

now been made out. While it is important to bear in mind that in genuine

44
cases where the ingredients of forgery as defined in Section 463 of the

IPC have been made out, and that therefore, a private complainant should

not be left remediless, yet it is equally important to bear in mind the

admonition laid down in an early judgment of this Court. Thus, in Basir-ul-

Huq and Ors. v. State of West Bengal (1953) SCR 836, this Court

cautioned (at page 846):

“Though, in our judgment, Section 195 does not bar the trial of an
accused person for a distinct offence disclosed by the same facts
and which is not included within the ambit of that section, it has
also to be borne in mind that the provisions of that section cannot
be evaded by resorting to devices or camouflages. The test
whether there is evasion of the section or not is whether the facts
disclose primarily and essentially an offence for which a complaint
of the court or of the public servant is required. In other words, the
provisions of the section cannot be evaded by the device of
charging a person with an offence to which that section does not
apply and then convicting him of an offence to which it does, upon
the ground that such latter offence is a minor offence of the same
character, or by describing the offence as being one punishable
under some other section of the Indian Penal Code, though in truth
and substance the offence falls in the category of sections
mentioned in Section 195 of the Criminal Procedure Code. Merely
by changing the garb or label of an offence which is essentially an
offence covered by the provisions of Section 195 prosecution for
such an offence cannot be taken cognizance of by misdescribing
it or by putting a wrong label on it.”

44. 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 of the CrPC is not attracted, and it is not possible to split them up, the

drill of Section 195(1)(b) of the CrPC must be followed. Thus, in State of

Karnataka v. Hemareddy (1981) 2 SCC 185, this Court referred to a

45
judgment of the Madras High Court (Re V.V.L. Narasimhamurthy AIR

1955 Mad 237) and approved its ratio as follows:

“7…In the third case, Somasundaram, J., has observed:

“The main point on which Mr Jayarama Aiyar appearing for the
petitioner seeks to quash this committal is that on the facts an
offence under Section 193 IPC is disclosed for which the court
cannot take cognizance without a complaint by the court as
provided under Section 195(1)(b) of the Criminal Procedure Code.
The first question which arises for consideration is whether on the
facts mentioned in the complaint, an offence under Section 193,
IPC is revealed. Section 193 reads as follows:

Whoever intentionally gives false evidence in any stage of a judicial
proceeding, or fabricates false evidence for the purpose of being
used in any stage of a judicial proceeding, shall be punished with
imprisonment of either description for a term which may extend to
7 years, and shall also be liable to fine.

‘Fabrication of false evidence’ is defined in Section 192. The
relevant portion of it is:

Whoever causes any circumstance to exist intending that such
circumstance may appear in evidence in a judicial proceeding and
that such circumstance may cause any person who in such
proceeding is to form an opinion upon the evidence to entertain an
erroneous opinion touching any point material to the result of such
proceeding is said ‘to fabricate false evidence’.

The effect of the allegations in the complaint preferred by the
complainant is that the petitioner 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), Criminal PC a

46
complaint may be made only when it is committed by a party to any
proceeding in any court.

Mr Jayarama Aiyar 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), of the
Criminal PC 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.”

45. Bearing these admonitions in mind, let us now see as to whether the

“forging” of the debit notes, so strongly relied upon by Shri Mishra as being

offences under Sections 463 and 464 of the IPC, can at all be said to

attract the provisions of these Sections.

46. Section 463 of the IPC speaks of “forgery” as being the making of a “false

document” or “false electronic record”, or a part thereof, to do the various

things that are stated in that section. Unless a person is said to make a

false document or electronic record, Section 463 does not get attracted at

all. The making of a “false document” is then dealt with in Section 464 of

the IPC. On the facts of the present case, we are not concerned with the

47
categories of false documents identified under the heads “Secondly” and

“Thirdly” of Section 464. Shri Mishra states that the making of the debit

notes by the Respondents in order to falsely claim amounts owing to them

would fall within the “First” category under Section 464.

47. The “First” category of Section 464 makes it clear that anyone who

dishonestly or fraudulently makes or executes a document with the

intention of causing it to be believed that such document was made or

executed by or by the authority of a person by whom or by whose authority

he knows that it was not made, can be said to make a false document.

Several judgments of this Court have held that assuming dishonesty or

fraud, the second ingredient of the “First” category of Section 464 is that

the document itself must be made by or by the authority of a person by

whom or by whose authority the person who creates the forgery knows

that it was not made. If the second ingredient is found missing, the offence

of forgery is not made out at all. Thus, in Devendra v. State of U.P. (2009)

7 SCC 495, this Court set out the following facts:

“5. On or about 22-8-1997, a sale deed was executed by
Appellants 1 and 2 in favour of Appellants 3 and 4. On 24-8-2005,
a suit was filed by Respondent 2 and others for cancelling the
aforesaid deed of sale dated 22-8-1997, which was registered as
Civil Suit No. 382 of 2005. The said suit is still pending in the Court
of the learned Civil Judge (Junior Division), Ghaziabad. In the said
suit, however, it was averred that Solhu had four sons whereas in
Suit No. 135 of 1982, it was stated that Solhu had five sons. The
appellants filed an application under Order 9 Rule 13 read with
Section 151 of the Code of Civil Procedure before the Court of the

48
Deputy District Magistrate (First Class), Ghaziabad praying for
dismissal of Suit No. 135 of 1982. An application for impleadment
was also filed by the appellants in Civil Miscellaneous Writ
Petition No. 17667 of 1985.

6. On or about 21-9-2005, Respondent 2 filed an application in
Police Station Kavinagar, Ghaziabad wherein the City Magistrate
by an order dated 17-9-2005 passed an order to hear the
complainant and register a first information report. Thereafter,
Respondent 2 filed a first information report in Police Station
Sahni Gate on 21-9-2005. The appellants filed an application for
quashing the said first information report before the High Court. It
was marked as Criminal Miscellaneous Writ Petition No. 10568 of
2005.”

48. This Court held that the sale deed executed did not constitute a “false

document” under Section 464 of the IPC as follows:

“18. Section 463 of the Penal Code reads as under:

“463. Forgery.—Whoever makes any false documents or false
electronic record or part of a document or electronic record, 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.”

According to Mr Das, making of a false document so as to support
any claim over title would constitute forgery within the meaning of
the said provision and as a document was created for the purpose
of showing one-third share in the joint property by the appellants
although they were not entitled to therefor, they must be held to
have committed an offence.

19. Making of any false document, in view of the definition of
“forgery” is the sine qua non therefor. What would amount to
making of a false document is specified in Section 464 thereof.
What is, therefore, necessary is to execute a document with the
intention of causing it to be believed that such document inter alia
was made by the authority of a person by whom or by whose
authority he knows that it was not made.

49

20. The appellants are the owners of the property. They have
executed a sale deed. Execution of the deed of sale is not denied.
If somebody is aggrieved by the false assertions made in the said
sale deed, it would be the vendees and not the co-sharers. The
appellants have not been alleged to be guilty of creating any false
document.”

49. In Mohd. Ibrahim v. State of Bihar (2009) 8 SCC 751, it was held that

the execution of a sale deed by somebody in his own name qua property

which is not his does not constitute making a “false document” under

Section 464 of the IPC, because he does not impersonate the owner or

falsely claim to be authorised or empowered by the owner to execute the

deed on the owner’s behalf. The Court held:

“13. The condition precedent for an offence under Sections 467
and 471 is forgery. The condition precedent for forgery is making
a false document (or false electronic record or part thereof). This
case does not relate to any false electronic record. Therefore, the
question is whether the first accused, in executing and registering
the two sale deeds purporting to sell a property (even if it is
assumed that it did not belong to him), can be said to have made
and executed false documents, in collusion with the other
accused.

14. An analysis of Section 464 of the Penal Code shows that it
divides false documents into three categories:

1. The first is where a person dishonestly or fraudulently makes or
executes a document with the intention of causing it to be believed
that such document was made or executed by some other person,
or by the authority of some other person, by whom or by whose
authority he knows it was not made or executed.

2. The second is where a person dishonestly or fraudulently, by
cancellation or otherwise, alters a document in any material part,
without lawful authority, after it has been made or executed by
either himself or any other person.

50

3. The third is where a person dishonestly or fraudulently causes
any person to sign, execute or alter a document knowing that such
person could not by reason of (a) unsoundness of mind; or (b)
intoxication; or (c) deception practised upon him, know the
contents of the document or the nature of the alteration.

In short, a person is said to have made a “false document”, if (i) he
made or executed a document claiming to be someone else or
authorised by someone else; or (ii) he altered or tampered a
document; or (iii) he obtained a document by practising deception,
or from a person not in control of his senses.

15. The sale deeds executed by the first appellant, clearly and
obviously do not fall under the second and third categories of “false
documents”. It therefore remains to be seen whether the claim of
the complainant that the execution of sale deeds by the first
accused, who was in no way connected with the land, amounted
to committing forgery of the documents with the intention of taking
possession of the complainant’s land (and that Accused 2 to 5 as
the purchaser, witness, scribe and stamp vendor, colluded with the
first accused in execution and registration of the said sale deeds)
would bring the case under the first category.

16. There is a fundamental difference between a person executing
a sale deed claiming that the property conveyed is his property,
and a person executing a sale deed by impersonating the owner
or falsely claiming to be authorised or empowered by the owner,
to execute the deed on owner’s behalf. When a person executes
a document conveying a property describing it as his, there are
two possibilities. The first is that he bona fide believes that the
property actually belongs to him. The second is that he may be
dishonestly or fraudulently claiming it to be his even though he
knows that it is not his property. But to fall under first category of
“false documents”, it is not sufficient that a document has been
made or executed dishonestly or fraudulently. There is a further
requirement that it should have been made with the intention of
causing it to be believed that such document was made or
executed by, or by the authority of a person, by whom or by whose
authority he knows that it was not made or executed.

17. When a document is executed by a person claiming a property
which is not his, he is not claiming that he is someone else nor is
he claiming that he is authorised by someone else. Therefore,
execution of such document (purporting to convey some property

51
of which he is not the owner) is not execution of a false document
as defined under Section 464 of the Code. If what is executed is
not a false document, there is no forgery. If there is no forgery,
then neither Section 467 nor Section 471 of the Code are
attracted.”

50. In Mir Nagvi Askari v. CBI (2009) 15 SCC 643, vouchers that were made

dishonestly by employees of a bank to profit a co-accused were held not

to be “false documents” within the meaning of Section 464 of the IPC, as

they were not made with the intention of causing it to be believed that the

vouchers were made by or under the authority of somebody else. The facts

necessary to attract Sections 463 and 464 of the IPC were set out by this

Court in paragraph 3 as follows:

“3. Accused 1, 2, 4 and 5 in their capacity as public servants,
were working in Fort Branch of Andhra Bank. They were charged
with abuse of their position and acting dishonestly and
fraudulently, as a result whereof undue pecuniary advantage is
said to have been procured by Accused 3 by way of crediting
banker’s cheques without them having been presented or sent
for clearance and, thus, cheating Andhra Bank and dishonestly
permitting substantial withdrawals from his current account by
Accused 3. They are said to have prepared false documents and
used them as genuine ones, with the intention to defraud and
falsify entries in the books of accounts of the Bank. They are also
charged with entering into the criminal conspiracy, as they,
having been entrusted with the property of Andhra Bank,
prepared credit and debit vouchers in favour of Accused 3,
authorising credit of amounts of various cheques to the account
of Accused 3 without having actually received any banker’s
cheques.”

51. This Court, however, held that Section 464 of the IPC was not attracted,

as follows:

52

“164. A person is said to make a false document or record if he
satisfies one of the three conditions as noticed hereinbefore and
provided for under the said section. The first condition being that
the document has been falsified with the intention of causing it to
be believed that such document has been made by a person, by
whom the person falsifying the document knows that it was not
made. Clearly the documents in question in the present case,
even if it be assumed to have been made dishonestly or
fraudulently, had not been made with the intention of causing it to
be believed that they were made by or under the authority of
someone else. The second criterion of the section deals with a
case where a person without lawful authority alters a document
after it has been made. There has been no allegation of alteration
of the voucher in question after they have been made. Therefore,
in our opinion the second criterion of the said section is also not
applicable to the present case. The third and final condition of
Section 464 deals with a document, signed by a person who due
to his mental capacity does not know the contents of the
documents which were made i.e. because of intoxication or
unsoundness of mind, etc. Such is also not the case before us.
Indisputably therefore the accused before us could not have been
convicted with the making of a false document.

165. The learned Special Judge, therefore, in our opinion, erred
in holding that the accused had prepared a false document, which
clearly, having regard to the provisions of the law, could not have
been done.

166. Further, the offence of forgery deals with making of a false
document with the specific intentions enumerated therein. The
said section has been reproduced below.

“463. Forgery.—Whoever makes any false documents or false
electronic record or part of a document or electronic record, 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.”

However, since we have already held that the commission of the
said offence has not been convincingly established, the accused
could not have been convicted for the offence of forgery. The
definition of “false document” is a part of the definition of “forgery”.

53

Both must be read together. [Vimla (Dr.) v. Delhi Admn. [AIR
1963 SC 1572] Accordingly, the accused could not have been
tried for offence under Section 467 which deals with forgery of
valuable securities, will, etc. or Section 471 i.e. using as genuine
a forged document or Section 477-A i.e. falsification of accounts.
The conviction of the accused for the said offences is accordingly
set aside.”

52. It is thus clear that even if we are to put aside all the averments made in

the two complaints (which clearly attract the provisions of Sections 191

and 192 of the Penal Code), and were to concentrate only on the debit

notes that are said to have been “created” by the Respondents, it is clear

that the debit notes were not “false documents” under Section 464 of the

IPC, inasmuch they had not been made with the intention of causing it to

be believed that they were made by or under the authority of some other

person. Since this basic ingredient of forgery itself is not made out, none

of the sections that are sought to be relied upon in Chapter XVIII of the

IPC can thus be said to be even prima facie attracted in the facts of this

case.

53. It now remains to deal with some of the other submissions of Shri Mishra.

The submission of Shri Mishra challenging the finding of the High Court

that the Appellants did not file any proceedings under Section 482 of the

CrPC to make a grievance that the complaint discloses other offences

also, and that the Magistrate ought to have issued process for the same,

has no legs to stand on. Whether a High Court acts suo motu under

Section 482 of the CrPC is for the High Court to decide, being a discretion

54
vested in the High Court to be exercised on the facts of the case. As we

have seen, the facts of this case clearly show that the two complaints dated

11.08.2009 correctly invoked Section 195 read with Section 340 of the

CrPC, and were then sought to be converted into private complaints,

thereby attempting to fit a square peg in a round role. This has correctly

been interdicted by the Sessions Court in revision, and by the High Court

judgment under appeal.

54. Shri Mishra then argued that Surjit Singh (supra) had been relied upon

by the High Court, which judgment was overruled in Iqbal Singh Marwah

(supra). Though this is correct, the reasoning that Iqbal Singh Marwah

(supra) is not applicable to the facts of the present case, to which the

provisions of Section 195(1)(b)(ii) of the CrPC do not apply, is a finding

made by the High Court in the impugned judgment which is unexceptional.

For this reason also, incorrect reliance based on Surjit Singh (supra)

would not avail the Appellants in the present case.

55. Shri Mishra then relied upon Ram Dhan v. State of U.P. & Anr. (2012) 5

SCC 536. In this case, the real ratio of the case can be found in paragraphs

6 to 8, in which this Court held:

“6. We find no merit in the petition. After investigation, charge-

sheet has been filed against the petitioner and others under
Sections 177, 181, 182 and 195 IPC. The petitioner has
suppressed the material fact and has not disclosed anywhere in
this petition that he had approached the High Court under
Section 482 CrPC for quashing of the charge-sheet, which stood

55
rejected vide order dated 3-2-2010 [Ram Dhan v. State of U.P.,
Application
under Section 482 No. 3310 of 2010, order dated 3-
2-2010 (All)] and the said order attained finality as has not been
challenged any further. Thus, he is guilty of suppressing the
material fact which makes the petition liable to be dismissed only
on this sole ground.

7. We are of the view that it was necessary for the petitioner to
disclose such a relevant fact. The learned Chief Judicial
Magistrate while deciding the application under Section 239
CrPC has made reference to the said order of the High Court
dated 3-2-2010. We had been deprived of the opportunity to
scrutinise the charge-sheet as well as the order of the High Court
dated 3-2-2010 and to ascertain as to whether the grievance of
the petitioner in respect of the application of the provisions of
Section 195 read with Section 340 CrPC had been raised in that
petition and as to whether even if such plea has not been taken
whether the petitioner can be permitted to raise such a plea
subsequently.

8. In such a fact situation, the courts below may be right to the
extent that the question of discharge under Section 239 CrPC
was totally unwarranted in view of the order passed by the High
Court on 3-2-2010. For the reasons best known to the petitioner,
neither the copy of the charge-sheet nor of the order dated 3-2-
2010 passed by the High Court have been placed on record.”

56. However, the Court goes on to state:

“9. Be that as it may, the charge-sheet has been filed under
Sections 177, 181, 182, 195 and 420 IPC. Section 177 IPC deals
with an offence furnishing false information. Section 181 IPC
deals with false statement on oath. Section 182 IPC deals with
false information with intent to cause public servant to use his
lawful power to the injury of another person. Section 195 IPC
deals with giving or fabricating false evidence with intent to
procure conviction of offence punishable with imprisonment for
life or imprisonment.

10. At least the provisions of Sections 177 and 182 deal with the
cases totally outside the court. Therefore, the question of
attracting the provisions of Sections 195 and 340 CrPC does not
arise. Section 195 IPC makes the fabrication of false evidence
punishable. It is not necessary that the fabrication of false

56
evidence takes place only inside the court as it can also be
fabricated outside the court though has been used in the court.
Therefore, it may also not attract the provisions of Section 195
CrPC. (See Sachida Nand Singh v. State of Bihar [(1998) 2 SCC
493])

11. Mr Ashok Kumar Sharma, learned counsel appearing for the
petitioner, has placed a very heavy reliance on the judgment of
this Court in Abdul Rehman v. K.M. Anees-Ul-Haq [(2011) 10
SCC 696]. However, it is evident from the judgment relied upon
that the judgment in Sachida Nand Singh, which is of a larger
Bench, has not been brought to the notice of the Court. (See
also Balasubramaniam v. State [(2002) 7 SCC 649])

12. The petitioner is guilty of suppressing the material fact.
Admittedly, filing of successive petitions before the court amounts
to abuse of the process of the court. Thus, we are not inclined to
examine the issue any further.

13. Considering the composite nature of the offences, we do not
see any cogent reason to interfere with the impugned order. The
petition lacks merit and is, accordingly, dismissed.”

57. From this case it is impossible to cull out a ratio that insofar as an offence

under Section 195 IPC is concerned, the provisions of Section 195 CrPC

would not be attracted. The Court’s mind was on suppression of material

facts, as a result of which, after making the statement made in paragraph

10, the Court then went on to state in paragraph 12 that they were not

inclined to examine the issue any further in view of suppression of material

facts, and the filing of successive petitions before the Court which amounts

to abuse of process of the Court. One sentence torn out of context cannot

possibly avail the Appellant, given the detailed discussion in today’s

judgment, after considering all relevant authorities. This judgment also,

therefore, does not carry the matter any further.

57

58. Shri Mishra, as an alternative argument, then stated that it was always

open for the Magistrate or Court to waive an irregularity once a Magistrate

assumes jurisdiction under Section 190(1)(a) of the CrPC even wrongly,

and for this purpose, he referred to Section 460(e) of the CrPC. This

provision is only attracted if a Magistrate, “not empowered” by law to take

cognizance of an offence under clause (a) of Section 190(1) of the CrPC,

takes such cognizance erroneously, but in good faith. The “empowerment”

spoke of is the jurisdiction of the Magistrate to proceed with the complaint.

Section 460 of the CrPC cannot, and does not, apply to cases in which

Section 195 of the CrPC is involved inasmuch as Section 195 of the CrPC

is an exception to Section 190 of the CrPC, and is an absolute bar to taking

cognizance of the offences mentioned therein, unless the drill followed in

Section 340 of the CrPC is observed. “Empowerment” obviously does not

refer to a mandatory provision in the nature of a statutory bar to taking

cognizance. This argument also has no legs to stand on, and is therefore

rejected. So also the further argument that proceedings may be allowed to

continue before the Magistrate, who can then frame charges based on the

“forgery” sections of the IPC – we have held that the complaints read as a

whole do not make out a case under Section 463 and 464 of the IPC, but

instead clearly attract the provisions of 191 and 192 of the IPC. For these

reasons also, this submission must needs be rejected.

58

59. As has been mentioned hereinabove, the concerned Judicial Magistrate

by his order dated 13.10.2011 converted the two complaints into private

complaints and then issued process under sections 191, 192 and 193 of

the IPC. This judgment has been set aside in revision by the learned

Additional Sessions Judge in his judgment dated 05.03.2013, in which the

learned Judge held:

“ORDER

The revision petitions are allowed. The impugned orders of
issuing process against the petitioners/original accused are
quashed and set aside.

The petitioners/accused in Criminal Revision Application No.
17/2012, 18/2012 and 20/2012 stand discharged, of offence
punishable under section 193 read with 191 of Indian Penal Code
and the petitioners/accused in Criminal Revision Application No.
16/2012 A. and 19/2012 stand discharged of an offence
punishable under sections 193 read with 192 of Indian Penal
Code
and are hereby set at liberty. Both the complaint 81/P/09
and 82/P/09 stand dismissed.”

60. Writ petitions that were filed against this order have been dismissed by the

impugned judgment. It seems to us that the baby and the bath-water have

both been thrown out together. While it is correct to say that the order of

conversion and issuing of process thereafter on a private complaint may

not be correct, yet the two complaints as originally filed can still be

pursued. Once the Magistrate’s order had been set aside, the learned

Additional Sessions Judge ought to have relegated the parties to the

position before the original complaints had been converted into private

59
complaints. Since this has not been done, we find that Shri Mishra is right

in stating that even though allegedly serious offences have been made out

under Sections 191 and 192 of the IPC, yet the complaints themselves

have now been quashed. We, therefore, reinstate the two complaints in

their original form so that they may be proceeded with further, following

the drill of Sections 195 and 340 of the CrPC.

61. The appeals filed are disposed of accordingly.

..………..………………J.

(R. F. Nariman)

……..……………………J.

(Navin Sinha)

New Delhi.

2nd September, 2020.

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