George Bhaktan vs Rabindra Lele & Ors

Page 1 2

4. The broad essential facts which are required to be

adumbrated for the adjudication of the appeal are that the

appellant-complainant filed a complaint under Section 200

of the Code of Criminal Procedure, 1973 (for short ‘the

Code’) against the accused-respondents alleging

commission of offences under Section 425, 468 and 471 of

the Indian Penal Code, 1860 ( for short ‘the IPC’) on the

foundation that the complainant, the Managing Director of

Ores India (P) Ltd. had approached the accused persons for

supply of machines and equipments for establishing an Iron

Ore Crusher Unit at village Regalveda in the district of

Sundargarh with the financial assistance from Orissa State

Financial Corporation (OSFC). The accused persons being

desirous of supplying the machinery and equipments

persuaded the complainant to place the purchase order in

their favour and on the basis of their past performance, the

appellant placed the purchase order on 23.10.1997. As

stipulated in the said purchase order, the accused persons,

apart from other things, had agreed to provide designing

and drawing for complete plant with 15 months guarantee

from the date of dispatch. On the basis of the purchase

order, the complainant sent cheques for Rs.15 lakhs and, as

Page 2 3

alleged, after receipt of the said money the accused

persons sent their written confirmation to OSFC

acknowledging the receipt of the money. The OSFC, in

turn, paid Rs.25 lakhs to the accused persons as an

advance keeping in view the commitment made by the

complainant.

5. As the complaint would further uncurtain, in spite of

substantial amount of money being paid by way of

advance, no steps were taken by the accused persons to

ensure supply of machineries and equipments with an

ulterior motive, as a consequence of which the complainant

suffered huge loss. It is asserted in the complaint petition

that with the intention to cause wrongful loss and damage

to the complainant, accused persons procured a letter pad

of the complainant from a staff of the company and typed a

letter with the signature of George Bakhtan on that letter

so that they would get an extension from the OSFC

regarding the date of purchase. It is further alleged that

the accused persons orchestrated a conspiracy and

contrived to manipulate the transaction but eventually the

machineries were not supplied. In this backdrop, the

Page 3 4

complaint was lodged for the offences which have been

mentioned hereinbefore.

6. On the basis of the complaint, initial statement of the

complainant was recorded under Section 200 of the Code

and thereafter an enquiry was conducted under Section

202 of the Code and ultimately cognizance was taken. Be it

stated, for some reason, the order of cognizance initially

taken was set aside by the High Court and the matter was

remitted to the trial court to deal with the aspect of

cognizance in accordance with law. Thereafter, vide order

dated 18.10.2000, the learned Magistrate took cognizance

in respect of the offences.

7. Being grieved by the aforesaid order, the respondents

preferred a petition under Section 482 of the Code. The

primary plank of proponement before the High Court was

that the order of cognizance was sensitively susceptible

inasmuch as the alleged forged document was produced in

the suit brought by the respondents and, therefore, the

prohibition contained in Section 195(1)(b)(ii) would get

attracted on all fours. To bolster the said submission,

reliance was placed on a two-Judge Bench decision in

Page 4 5

Gopalakrishna Menon and Anr. V D. Raja Reddy and

Anr.1 The said submission was resisted by the counsel for

the complainant placing reliance on Smt. Nagawwa V.

Veeranna Shivalingappa Konjalgi and others2. The

High Court, appreciating the legal submissions, came to hold

as follows:-

“8. In the case at hand, the prosecution is on the basis of a private complaint and in the absence of a complaint from the appropriate civil court, where the alleged fraudulent document has been produced, would not be sustainable and such proposition is no longer res integra what has been settled by the Hon'ble supreme Court in the judgment rendered in the case of Gopalakrishna Menon & another (supra).

9. In view of the aforesaid conclusion, I am of the considered view that if the prosecution is allowed to continue, serious prejudice would be caused to the petitioners and they would be called upon to face the trial which would not be sustainable. Hence, the order of cognizance dated 18.10.2000 passed in I.C.C. case No. 92 of 1998 by the learned S.D.J.M., Panmposh, Udit Nagar, Rourkela is set aside and it is left open for the opposite party-company, if so advised, to make such complaint before the Civil Court, Vadodara if aggrieved in any manner to the alleged forged document produced before the said court who would be competent to deal with the same.”

1 (1983) 4 SCC 240 2 (1976) 3 SCC 736

Page 5 6

8. As is evincible, at the said juncture, the High Court did

not think it appropriate to dwell upon the justifiability of

the order taking cognizance on facts, for it set aside the

order solely on the basis of the principle stated in

Gopalakrishna menon (supra).

9. Attacking the aforesaid order Mr. Tejaswi Kumar

Pradhan learned counsel for the appellant submitted that

the order passed by the High Court suffers from incurable

infirmity, for it has relied on a decision which has not been

accepted by the Constitution Bench in Iqbal Singh

Marwah and Another V. Meenakshi Marwah and

Another3. It is also urged by him that it would have been

advisable on the part of the High Court to deal with the lis

on the bedrock of law as well as on the factual score and as

the same has not been done, the impugned order is wholly

unsustainable and deserves to be set aside.

10. Mr. Mohan Rao, learned counsel appearing for the

respondents, resisting the aforesaid submissions urged that

though the principle stated in Gopalakrishna Menon's

case (supra) may not be applicable in praesenti, yet had

3 (2005) 4 SCC 370

Page 6 7

the High Court perused the documents which have been

alleged to have been forged by the complainant it would

have come to a definite conclusion that no case has been

made out in respect of the alleged offences. It is his further

submission that present case is one which falls in one of

the seven categories as enumerated in State of Haryana

and others v. Bhajan Lal and others4. That apart, Mr.

Rao would also contend that the allegation in the complaint

petition as regards the receipt of amount by way of

cheques sent by the complainant is a false one inasmuch

as the cheques for the said amount were dishonoured and

proceedings under Section 138 of the Negotiable

Instruments Act, 1881 were instituted against the

respondents and hence, the instant criminal proceeding,

being a malafide one, deserves to be quashed.

11. On a perusal of the order passed by the High Court, it

is absolutely pellucid that it has not adverted to any aspect

pertaining to the allegations in the complaint or the

material brought on record to arrive at a conclusion

whether a prima facie case has been made out or not. It

has singularly addressed the controversy on the legal 4 1992 Supp (1) SCC 335

Page 7 8

backdrop that when a document is produced in a civil

proceeding, it attracts the bar under Section 195(1)(b)(ii) of

the Code and, therefore, the complaint is not tenable in

law. In Gopalakrishna Menon's case the two-Judge

Bench referred to various provisions of the Code and

eventually ruled thus:

“If S. 195 (1)(b)(ii) is attracted to the facts of the present 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 being not maintainable, there would be absolutely no justification to harass the appellants by allowing prosecution to have a full dressed trial.”

12. In Sachida Nand Singh and another v. State of

Bihar and another5 a three-Judge Bench was dealing with

the question whether a prosecution can be maintained in

respect of a forged document produced in a court unless

complaint has been filed by the court concerned in that

behalf. Elaborating the posed question the Court stated

that the question involved is whether prohibition contained

in Section 195(1)(b)(ii) of the Code would apply to such

prosecution. Proceeding further the three-judge Bench

5 (1998) 2 SCC 493

Page 8 9

observed that though the question was ticklish, yet it had

almost received a quietus with the pronouncement in Patel

Laljibhai Somabhai v. State of Gujarat 6, however, a

subsequent decision in Gopalakrishna Menon's case

struck a different note and thereby revived the issue that

had been put to rest. After referring to the language

employed in Sections 340 and 195 of the Code and the

decisions in Raghunath v. State of U.P. 7, Mohan Lal v.

State of Rajasthan8 and Legal Remembrancer of

Govt. of W.B. v. Haridas Mundra9, the Court finally

opined thus:-

“Of course in the end of that decision it was mentioned that prosecution on the basis of a private complaint, in the absence of a complaint from appropriate civil court, is not sustainable. Learned Judges made reference to the decisions in Patel Laljibhai Somabhai and S.L. Goswami (Dr) v. High Court of M.P. 10, and observed that the ratio in those decisions support the view taken by them. The forgery alleged in Goswami case took place during the period when the document in question was in the custody of the Court and in such a case the bar under Section 195(1)(b)(ii) would certainly apply. But, with great respect, we are unable to agree that the ratio in Laljibhai Somabhai would support the

6 (1971) 2 SCC 376 7 (1973) 1 SCC 564 8 (1974) 3 SCC 628 9 (1976) 1 SCC 555 10 (1979) 1 SCC 373

Page 9 10

conclusion reached in Gopalakrishna Menon case.

13. From the aforesaid it is limpid that the principle stated

in Gopalkrishna Menon (supra) has specifically been

overruled in Sachida Nand Singh’s case. Despite the

three-Judge Bench decision in Sachida Nand Singh

(supra) the controversy was not allowed to rest. Thereafter

the conflict was seen in the principle stated in Surjit

Singh v. Balbir Singh11, a decision rendered by a three-

Judge Bench and Sachida Nand Singh (supra) and both

pertained to interpretation of Section 195 (1)(b)(ii) of the

Code and, therefore, the controversy travelled to the

Constitution Bench in Iqbal Singh Marawah's case.

14. The Constitution Bench after analyzing in detail the

contours of provisions contained in Section 340, 195(1)(b)

and after referring to the decisions in Patel Laljibhai

(supra), Raghunath (supra) and taking note of deletion of

certain words occurring in Section 195(1) of the old Code,

and the 41st report of the Law Commission, came to hold as

follows:

“ In view of language used in Section 340 CrPC the Court is not bound to make a 11 (1996) 3 SCC 533

Page 10 11

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 interest 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 discouraged.”

15. Thereafter, the larger Bench proceeded to observe

thus:

Page 11 12

“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 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.”

16. On the base of aforesaid ratiocination, the Constitution

Bench approved the principle laid down in Sachidanand

Singh (supra) by stating thus:

“In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 19591)(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 ”

Page 12 13

In view of the aforesaid the law laid down in

Gopalkrishna Menon (supra) is no more good law.

17. Be it stated, the Constitution Bench repelled the

argument of strict construction and distinguishing many a

decision, came to hold that Section 195 is not a penal

provision but is a part of procedural law, namely, CrPC,

which elaborately gives a procedure for trial of criminal

cases. Proceeding further, their Lordships held that the

provision only creates a bar against taking cognizance of an

offence in certain specified situations except upon

complaint by Court and a penal statute is one upon which

an action for penalties can be brought by a public officer or

by a person aggrieved and a penal act in its wider sense

includes every statute creating an offence against the

State, whatever is the character of the penalty for the

offence.

18. Dealing with the argument that there should be no

conflict in the findings recorded by the civil and criminal

court, the Constitution Bench referred to earlier

Page 13 14

Constitution Bench decision in M.S. Sheriff V. State of

Madras12 and declined to accept the said submission.

19. Eventually, taking note of the facts in that case, the

Court held the Will in question had been produced in the

Court subsequently and there was no allegation that the

offence as enumerated in Section 195(1)(b)(ii) was

committed in respect of the said Will after it had been

produced or filed in the Court, the bar created by the said

provision would not come into play and hence, there was

no embargo on the power of the court to take cognizance

of the offence on the basis of the complaint filed by the

complainants therein.

20. In the case at hand, as we find, the allegation in the

complaint is that the respondents had forged the signature

of the complainant and submitted to the Corporation

seeking extension of the period of supply. Thereafter,

seeking certain relief a suit was filed and in the suit the

document was filed. There is no allegation that this

document was forged when the matter was subjudice

before the Civil Court. Thus, the dicta of the Constitution

12 1954 SCR 1144

Page 14 15

Bench is squarely applicable. The High Court has clearly

erred in relying on the principle stated in Gopalakrishna

Menon's case (supra) which makes the impugned order

wholly indefensible.

21. We have already taken note of the submission of Mr.

Rao that the High Court has not adverted to the factual

score whether a case has been made out on the basis of

the material brought on record. In the absence of any

findings in that regard by the High Court, we do not intend

to take up the burden on ourselves. That makes it

obligatory on our part to set aside the order passed by the

High Court and remand the matter to it for fresh

consideration whether in the obtaining factual matrix the

order of cognizance deserves to be lancinated. We would

request the High Court to dispose of the petition within a

period of three months as the matter has been continuing

for long. We may hasten to clarify that we have not

expressed any opinion on the merits of the case.

22. Consequently, the appeal is allowed, the order passed

by the High Court is set aside and the matter is remanded

to the High Court for fresh disposal in accordance with law.

Page 15 16

...................................J. [Dipak Misra]

...................................J. [Vikramajit Sen]

New Delhi;

September 24, 2014

Page 16