Cases referred:
1. Gopalkrishna Menon v. D. Raja Reddy; A.I.R. 1983 S.C. 1053.
2. Patel Laljibhai Somabhai v. State Of Gujarat..; A.I.R. 1971 S.C. 1935.
3. Vishnu Kumar v. State of A.P.; 1980 Cri. L.J. 1361.
4. Ram Pal Singh v. State of U.P.; 1982 Crl. L.J. 424.
5. Vindhya Basini Prasad v. State of U.P.; 1982 Crl. L.J. 2177.
6. Dharam Chand and Others v. The State of Rajasthan and another; Crimes VII - 1985 (2) 354.
7. Nateshan v. State of Karnataka; 1978 Cri. L.J. 1642.
8. Legal Rememberance v. Haridas Mundhra; A.I.R. 1976 S.C. 2225.
9. Philip v. Raphael and others; 1985 Cri. L.J. 126.
10. Harbans Singh and others v. State of Punjab; A.I.R. 1987 P&H 19.
11. T.M. Harpanahalli v. State of Karnataka; I.L.R. 1987 Kar. 3833.
ORDER
R. Ramakrishna, J. - The revision petitioners have questioned the taking of cognizance and issue of process by the learned Principal Civil Judge and C.J.M., Shimoga by orders dated 13.12.1993 and 16.12.1993 in C.C. No. 437 of 1993.
2. Revision Petition No. 715 of 1993 is by Accused No. 2 and Revision Petition No. 13 of 1994 is by Accused No. 3.
3. Since a common question of law is involved in both these petitions, they have heard together and the following order is passed.
4. To appreciate the contention of the petitioners, a few facts are relevant and they are as follows:
On 14.12.1992 one K.G. Basavaraiappa and his wife Dakshayaniyamma were found dead in their house situated at 4th Cross, Jyothirao Beedi, Vidyanagar, Shimoga. Initial investigation disclosed that it is a case of suicide. Therefore, a case under UDR No. 33 of 92 read with section 174 of the code of criminal procedure was registered. Later on a complaint dated 31.3.1993 was lodged that the couple had died a homicidal death. A case was registered by Kota Police in Crime No. 69 of 1993 for an offence under section 302 of the indian penal code against unknown persons. Subsequently, investigation was taken over by Corps of Detectives, Bangalore. After investigation, a charge sheet was filed against one Shivalinga Murthy as A-1 and the petitioners herein as A-2 and A-3. A-1 was charged for offences of murder, forgery, forgery of valuable security and forgery for cheating, criminal conspiracy and causing disappearance punishable under sections 302, 465, 467, 468 ,120(b) and 201 of the indian penal code and the petitioners are charged for offences-of forgery, forgery of valuable security, forgery for cheating, using as genuine a forged document, criminal conspiracy and causing disappearance punishable under sections 465, 467, 468, 471 120(b) and 201 of the indian penal code.
5. The case of the prosecution is that the first accused who is an immediate neighbour of the deceased K.G. Basavaraj who was suffering from paralytic stroke has develop his confidence with the said K.G. Basavaraj. Gradually, A-1 developed illegal intimacy with his wife Dakshayanamma. With the connivance of Dakshayanamma they have decided to eliminate K.G. Basavaraj. A1 also obtained signatures on four blank stamp papers of Rs. 5/- denomination on the present of getting a car for the use of K.G. Basavraj. A-1 also gota letter written from K.G. Basavraj that he was winding up his business transactions, selling his houses and gave away the sale proceeds to his blood relatives and well wishers. On the night of 13.12.1992, A-1 was successful in administering pesticide to K.G. Basavaraj with the help of Dakshayanamma and later he has administered poison to Dakshayanamma and committed the murder of the couples.
After eliminating the above couples with an intention to cheat the deceased, A-1 held conspiracy with the petitioners. He has approached the petitioner in Crl. Revision Petition No. 715 of 1993 T. Govindara Ju, a practising Advocate at Shimoga and with his assistance used the signature of the deceased K.G. Basavaraj and Dakshayanamma which was obtained on the blank sheets of stamp paper to make a false sale agreements dated 7.12.1992 and 9.12.1992 as if the deceased entered into an agreement with Keshava Kumar, the petitioner in Cri. Revision Petition No. 13 of 1994 who is also a practicing Advocate, to sell the residential houses for an agreed sum of Rs. 1,20,000/- acknowledging the receipt of Rs. 97,000/- as advance.
On 20.1.1993 knowing fully well that the sale agreement dated 7.12.1992 and 9.12.1992 are forged documents Keshava Kumar used them as genuine and filed an Original Suit before the Additional Civil Judge's Court at Shimoga in O.S. No. 12 of 1993 against the legal heirs of the deceased K.G. Basavaraj. The petitioner, Govindaraju took the advantage of another forged documents by using them as genuine started acting as an Advocate for Keshava Kumar in O.S. No. 12 of 1993.
6. The learned Civil Judge and C.J.M., Shimoga, after taking cognizance has issued summons.
7. The State has contested these petitions and contended there is no infirmity or error in issuing process against the petitioners.
8. Sri A.H. Bhagawan, the learned Advocate for one of the petitioner, addressed his arguments in respect of both the petitioners as a common question is involved. According to Mr. Bhagawan that taking of cognizance and issue of process is clearly barred under section 195(1)(b)(ii) and (iii) of the code of criminal procedure. The further contention of Sri Bhagawan is that since the allegation against the petitioners is that on the basis of the forged documents they have filed a suit is O.S. No. 12 of 1993 and therefore, there should be a complaint in writing of that court to take cognizance of the offences and issue of process. Here, we are directly concerned with section 195(1)(b)(ii) and (iii) which reads as follows :
"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) xxxx xxxx
(b)(i) xxxx xxxx
(ii) of any offence described in Section 463, or punishable under section 471, section 475 or section 476, of the said code, when such evidence is alleged to have been committed in respect of 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) of or sub-clause (ii) except in the complaint in writing of that Court, or of some other Court to which that court is subordinate."
9. A plain reading of this Section would show that for offences mentioned in clause (b) (ii) and (iii) of section 195(1) of the code of criminal procedure the Court can take cognizance of those offences only when the complaint is in writing filed by the Court or some other Court to which that Court is subordinate, before which the document in question is found to be forged one and the accused before that court are found to have committed any offence. In the instant cases, on the basis of the alleged forged document, the petitioner have filed a suit in the Civil Court and therefore, it would appear that the civil court alone would be an appropriate authority to file complaint and not the police.
10. Number of decisions are cited in support of this contention. The contention of Sri A.H. Bhagawan is that since the matter is pending before the civil Judge in O.S. 12 of 1993 the State is not prevented to move the said Court to file a complaint to enable the court to take cognizance of the offences which are enumerated under section 195(1)(b)(ii) and (iii) of cr. p.c.
11. Under Chapter IV conditions requisite for initiation of proceedings are enumerated. Taking of cognizance by the Magistrate are made subject to the provisions of this chapter. section 195 provides for prosecution for contempt of lawful authority of public servants for offences against public justice and for offences relating to documents given in evidence. Owing to the character of certain offences the right to prosecute under relevant sections has been restricted and courts are prohibited from taking cognizance of the offences unless the Courts directly concerned from their superior officers or superior courts makes the complaint. Section 195 makes a distinction between complaint by public servants and by courts and Section 340 prescribes the procedure for making complaint by courts.
12. In Gopalkrishna Menon v. D. Raja Reddy1, the question before their Lordships was in the absence of necessary complaint by the Civil Court where a money receipt alleged to have been forged was produced for prosecution of offences under sections 467 and 471 read with section 34 of i.p.c. would be maintainable? The subject matter of the document was a money receipt for Rs. 20,000/- which was produced in the court to show that the money involved in the suit has already paid. The respondent disputing this contention filed a complaint alleging forgery of his signature on the money receipt. On receiving summons from the Court, the appellants subjected to the maintainability of the criminal action, in the absence of complaint from the court. On these set of facts, the Supreme Court held that if section 195(1)(b)(ii) is attracted to the facts of the case, in the absence of a complaint in writing of the civil Court where the alleged forged receipt has been produced, taking of cognizance of the offence would be bad in law and the prosecution is not maintainable. The Supreme Court further held that the view of the Andhra Pradesh High Court that Section 463 IPC cannot be construed to include section 467 of the said code was wrong and set aside the said view.
A careful reading of the Judgment of the Supreme Court in Gopala Krishna Menon's case, cited supra, would indicate that the question of the scope and extend of section 195(l)(b)(ii) was not adjudicated by Their Lordships. However, it must be mentioned that the Supreme Court in Gopala Krishna Menon's case approved the ratio in Patel Laljibhai Somabhai v. State Of Gujarat..2.
13. In Vishnu Kumar v. State of A.P.3, some forged documents have been created by the tenants in the form of agreement to sell after having learnt that the landlord is making arrangement to sell the shops. On that forged receipts one of the tenant filed a suit for specific performance of the agreement of sale. On these set of facts, a learned single Judge of the said Court held that neither the police nor private person can file a complaint for a Magistrate to take cognizance for the offence punishable under Section 463 which also includes Sections 465 to 471 and 195(l)(b)(ii) of the Code of Criminal Procedure.
14. In Ram Pal Singh v. State of U.P.4, a Division bench of the Allahabad High Court was of the view that the bar applies not only to complaints in respect of parties to proceedings in which objection able document is produced but also to complainants against other persons alleged to have committed offence in relation to the document.
15. In Vindhya Basdini Prasad v. State of U.P.5, a learned single Judge of Allahabad High Court held that Bar of taking cognizance of offence under Section 195 is applicable even in a case initiated on a police report and not only in a private complaint. It is further held that the fact whether the forgery was committed' outside or inside the Court is immaterial.
16. In Dharm Chand and Others v. The State of Rajasthan and another6, the Court held that even if the document is alleged to have been forged before the commencement of the proceedings in the Court, the bar contained in Section, 195(1)(b)(ii) shall apply if the document has already been filed in a court before the cognizance of an offence referred to in the section is taken by the criminal court.
17. In Nateshan v. State of Karnataka7, the appellant was an employee of Air Force working at H.A.L., Bangalore. He presented an application for medical advance of Rs. 500/- for the treatment of his wife. The advance was sanctioned and the money was ordered to be paid in two installments of Rs. 250/- each. After receiving one installment, the appellant filed the medical reimbursement application for Rs. 293-40 enclosing the prescription chits, cash bills etc. On an investigation, it is revealed that the appellant has filed a false application enclosing forged prescription chits, cash bills etc. One of the defence taken by the appellant was that in view of the amendment made to section 195(1)(b)(ii) of cr. p.c. 1973 by deletion of the words "by a party to any proceedings in any court", a prosecution for the offence of forgery under Section 471 IPC in respect, of a document produced or given in evidence in court being the subject matter of the prosecution, cannot be taken cognizance by the Court unless a complaint in writing is filed by that court. The learned single Judge, Kuddor, J., as he then was, held :
"No complaint in writing by the court for taking cognizance of an offence under S. 471 I.P.C. is necessary in a prosecution for the offence of forgery under S. 471 I.P.C., committed in respect of a document produced or given in evidence in court which is the very subject matter of the prosecution."
18. In Legal Rememberance v. Haridas Mundhra8, the Hon'ble Judges of the Supreme Court were of the clear view that the scope of section 195 (1) (c) is restricted to cases where the offences alleged to have been committed by the party to a proceeding after he became such a party and not before.
The accused in the said case was a Director and Managing Agent of a company was prosecuted for offences under sections 418, 471 and 477-a of the i.p.c. He alleged to have used forged bills to defraud the company. In a Company Petition on the direction issued by the Company Judge the prosecution was initiated. It is further held that the forged bills in respect of which offence was alleged to have been committed were neither tendered nor produced in evidence before the Company Judge and as such the requirements of section 195(1)(c) were not satisfied. The Court is of the clear view that section 195(1)(c), 476 and 476-a if read together indicate beyond doubt that the legislature could not have intended to extend the prohibition contained in section 195(1)(c) of the offences mentioned therein when committed by a party to a proceeding prior to his becoming such party.
19. In Philip v. Raphael and others9, the Kerala High Court has taken the view that the deletion of the words "by a party to any proceeding in any court" which were there in section 195(1)(c) of the code of 1898 from the new provision has extended the right of the Court to file complaint, to others including witnesses and that the deletion of the words was not intended to affect the right in respect of the offences committed prior to the proceedings in Court. The view taken by the learned single Judge is that section 195(1)(b)(ii) postulants that the Court can file a complaint in respect of the specified offences then a document is produced or received in evidence in any proceeding in court, only when the offence is committed in respect of such document after the commencement of the proceedings and that the complaint of the Court is not necessary when the offence is committed before the commencement of the proceedings in Court.
20. A Full Bench of the Punjab and Haryana High Court in Harbans Singh and others v. State of Punjab10, has held that section 195(1)(b)(ii) of the code which envisages bar against prosecution in respect of the offences mentioned therein except on a complaint of the Civil Court is limited in its operation to the offences committed while the document is in the custody of the court.
21. The views taken by the learned single Judge of the Kerala High Court in Philip case (supra) and the Full Bench of the Punjab and Haryana High Court in Harbans Singh's case (supra) reflect the correct view with regard to the scope and applicability of section 195(1)(b)(ii) the code. The views are based on the decisions of the Supreme Court referred to in the two cases by the Kerala High Court and the Punjab and Haryana High Court.
22. The Judgment of this Court in T.M. Harpanahalli v. State of Karnataka11, is brought to my notice where a learned Judge, Mr. Navadgi, J., held a contrary view against the views expressed by various other High Courts regarding the installment of Section 195 and its application, specially after 1973 amendment where the words "by a party to any proceeding in any court' was deleted. The petitioner in this case have been charged for the offence punishable under sections 466 and 107 read with section 34 of the i.p.c. A private complaint was referred to the police for investigation under section 156(3) of the cr. p.c. and the jurisdiction police concerned after investigation have filed a charge sheet. The jurisdictional Magistrate relying on a decision of the Kerala High Court in Philip v. Raphael and others (supra) and the decision of the Supreme Court in Patel Laljibhai Somabhai v. State Of Gujarat.. (supra) has not accepted the defence of the accused for the application of Section 195. According to the learned Magistrate, complaint of the Court would be necessary only when the offence is committed after the commencement of the proceedings and not prior to it. The learned Judge Mr. Navadgi importing the strict construction and liberal construction is of the view that if the forgeries are stated to have been committed before they were produced in court in the original suit, section 195(1)(b)(ii) has no application.
23. If the section is liberally constructed the bar would be applicable to all the cases involved in the offences mentioned in the section in respect of a document produced or given in evidence in Court irrespective of the time when the offence alleged to have been committed. If the strict construction is to be preferred, the bar would operate only if the offence is alleged to have been committed in respect of document which is produced or given in evidence and not to the offence committed earlier to the proceedings in Court.
24. In the cases on hand, the forgery of valuable security for the purpose of cheating alleged to have been committed immediately after the death of the deceased couples. The signatures are obtained by a false representation on 7.12.1992 and 9.12.1992. Therefore, the opinion expressed in T.M. Harapanahalli's case is squarely applicable to the facts of this case. I am in full agreement with the views expressed by Mr. Navadgi, J., because the documents were produced before the Civil Judge in original suit in O.S. No. 12 of l993. The fact of forgery is a matter that is to be established subsequently and only after the concerned court comes to the conclusion that the forgery is committed, it will have jurisdiction to initiate criminal proceedings against the person who is responsible for forging and using a valuable document.
25. The facts and circumstances of the cases show that the foregeries are stated to have been committed in respect of the documents before they were produced in the original suit pending before the Civil Judge, it is my considered view that section 195(1)(b) (ii) of the code has no application. However, the petitioners have not raised the jurisdictional fact before the trial court after receipt of summons, but they have rushed to this court. The law laid down by this Court in T.M. Harapanahalli's case (supra) squarely applies to the facts and circumstances under which the petitioners are charged.
26. In the suit, these criminal revision petitions fail and the same are dismissed.
Revision Petition dismissed.
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