Vishnu Chandru Gaonkar vs N.M. Dessai

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 359 OF 2018 (Arising Out of SLP (Criminal) No. 1395 of 2010)

VISHNU CHANDRU GAONKAR … APPELLANT

VERSUS

N.M. DESSAI … RESPONDENT

J U D G M E N T

ASHOK BHUSHAN, J.

This appeal has been filed questioning the

judgment and order dated 06.10.2009 of the High

Court of Bombay at Goa in Criminal Appeal No. 22

of 2009 by which judgment, the criminal appeal

filed by the respondent Shri Narayan M. Dessai

has been allowed setting aside the order of

District & Sessions Judge dated 31.07.2008

directing for filing a complaint under Section Signature Not Verified Digitally signed by NIDHI AHUJA Date: 2018.03.06 17:25:17 IST 195(1)(b)(ii) of Cr.P.C.

Reason: 2

2. The facts which are necessary to be noted

for deciding this appeal are:-

A regular Civil Suit No. 4 of 1993 was filed

by two plaintiffs namely Laximan Rama

Gaonkar and Janu Narayan Gaonkar impleading

two defendants namely Kusta Naga Gaonkar and

Shri Suresh Kust Gaonkar. The appellant in

this appeal is legal heir of original

plaintiff No. 2, Janu Narayan Gaonkar. The

Suit No. 4 of 1993 was decreed by judgment

and decree dated 07.12.2001. An application

for execution of decree was filed by the

legal heirs of the plaintiffs on 07.12.2003.

Legal heirs of the original defendants filed

a Civil Appeal No. 91 of 2004 questioning

the judgment and decree dated 07.12.2001.

One of the appellants in Civil Appeal No. 91 of 2004 namely Shaba Manju Velip (one of the

legal heirs of original defendants Kusta

Naga Gaonkar) died on 02.03.2005. No

application to bring his legal heirs on 3

record was filed by the appellants. The

application to withdraw execution case No. 1

of 2003 filed for execution of the decree in

Civil Suit No. 4 of 1993 was filed by the

plaintiff’s advocate on 20.06.2006. The

application for withdrawal of Civil Appeal

No. 91 of 2004 was filed on 18.07.2006,

which was allowed on 18.07.2006 itself. The

Execution Case No. 01 of 2003 was also

allowed to be withdrawn on 21.07.2006. On

29.11.2007, the appellant filed an

application under Section 195(1)(b)(ii)

Cr.P.C. making allegations against the

respondent, who was counsel for the

appellants in Civil Appeal No. 91 of 2004

that he committed offence in verifying and

forging thumb impression of dead appellant

namely Shaba Manju Velip. By order dated

31.07.2008, learned District & Sessions

Judge found that it is a fit case for

inquiry under Section 195(1)(b)(ii) and 4

directed for inquiry and registering a

complaint under Section 195(1)(b)(ii).

Respondent preferred an appeal before the

High Court against the order of District &

Sessions Judge dated 31.07.2008. The High

Court vide its impugned judgment allowed the

appeal and quashed the order of the District

Judge dated 31.07.2008 as well as the

complaint filed pursuant thereto. Aggrieved

against the judgment of the High Court, the

appellant has filed this appeal.

3. Learned counsel for the appellant submitted

that the High Court relying on the Three Judge

Bench judgment of this Court in Sachida Nand

Singh & Anr. Vs. State of Bihar & Anr., (1998) 2

SCC 493, which has been approved by the

Constitution Bench of this Court in Iqbal Singh

Marwah & Anr. Vs. Meenakshi Marwah & Anr.,

(2005) 4 SCC 370, has allowed the appeal filed

by the respondent whereas the above judgments of

this Court, wherein reference was made to 5 Section 195(1)(b)(ii) Cr.P.C., which were not

applicable in the facts of the present case,

since allegations made in the complaint filed by

the appellant were referable to Section 195(1)

(b)(i). It is submitted that the District &

Session Judge has rightly considered all facts

and circumstances and directed for filing of

complaint against the respondents under Section

195(1)(b). No one has appeared on behalf of the

respondent in spite of service.

4. We have considered the submissions of the

learned counsel for the parties and perused the

records.

5. It is useful to extract Section 195(1) of

Cr.P.C., which is to the following effect:-

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

(a) (i) of any offence punishable un-

der sections 172 to 188 (both in- 6

clusive) of the Indian Penal Code (45 of 1860 ), or

(ii) of any abetment of, or at-

tempt to commit, such offence, or

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

except on the complaint in writ- ing of the public servant con-

cerned or of some other public servant to whom he is administra- tively subordinate;

(b) (i) of any offence punishable un- der 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

(ii) of any offence described in section 463, or punishable under section 471, section 475 or sec- tion 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in ev- idence 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), 7

[except on the complaint in writ- ing of that Court, or by such of-

ficer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate]. ……………………………………………”

6. From the facts which are on the record,

there is no dispute that the Appeal No. 91 of

2004 was filed by several appellants, out of

which one of the appellants was Shaba Manju

Velip, who died on 02.03.2005. The application

for withdrawal of the appeal was filed on

18.07.2006. It is further to be noted that one

Vimal Shaba Velip, who was one of the

respondents before the High Court, took it upon

herself to say that the thumb impression, which

was put as of Shaba Manju Velip was put by her,

since her husband Shaba Manju Velip also used to

sign along with her, in good faith, she put her

thumb impression. The respondent N.M. Dessai

came with the case that he having been informed

that talks of settlement amongst the Gaonkars is

going on and they are intending to withdraw the 8

execution application filed by them. He, as per

instructions of his client, drafted and handed

over the application for withdrawing the Appeal

No. 91 of 2004 to one Suresh K. Gaonkar to

obtain the signatures of the remaining

respondents. He further came with the case that

he was not aware of death of Shaba Manju Velip

or alleged forged thumb impression of Shaba

Manju Velip on the application.

7. The facts fairly indicate that the

application when it was presented in the Court

in Appeal No. 91 of 2004 for withdrawal of the

appeal, signatures/thumb impressions of the

appellants were already obtained on the said

application, which was handed over to the

respondent in this appeal for filing in the

Court. On the same date, i.e., 18.07.2006, the

Court allowed the application permitting

withdrawal of the appeal.

8. A Criminal Misc. Application No. 95 of 2007 9

for initiating action under Section 195(1)(b)

(ii) of Cr.P.C. was filed by the appellant after

the said withdrawal of the appeal. Copy of the

Application No. 95 of 2007 has been filed as

Annexure P-4. It is useful to quote prayer in

the application, which is to the following

effect:-

“The applicant therefore prays that in view of above an enquiry may be conducted and the written complaint be made as per the provision contemplated under Section 195(1)(b)

(ii) of Criminal Procedure Code in order to prosecute and take further action against the respondents above as per the provision of law.”

9. The application was allowed by the District

Judge vide order dated 31.07.2008 where the

District Judge had directed for inquiry to be

conducted in terms of Section 195(1)(b)(ii) of

Cr.P.C., it is useful to quote Paras 18 and 19

of the order of the District Judge, which is to

the following effect:-

“18. Though the respondent No.9 has canvassed that he was totally unconnected with any of such transaction, such a plea would not 10

lie in his mouth when he was representing the said appellants and one of whom was Shaba, since deceased and instrumental in seeking the withdrawal of the appeal also at his instance as late as 18.7.2006 despite Shaba being dead on that day.

Therefore, on the basis of the material on record, it is apparent that an offence of forgery under Section 463 I.P.C. has allegedly been committed to withdraw the appeal mis- representing the deceased as living and the execution of the Sale Deeds in respect of the very same property on the following day and a day thereafter. The application so filed in Court would be “a document” in the context of the Evidence Act and evidence.

19. I am therefore satisfied that this is a fit case where inquiry is required to be conducted in terms of Section 195(1)(b)(ii) of Cr.P.C. and initiate complaint against the respondents for appropriate action as per law.”

10. The two judgments of this Court, which has

already been noticed by the High Court needs

detailed reference.

11. A Three Judge Bench of this Court in

Sachida Nand Singh & Anr. Vs. State of Bihar & 11

Anr., (1998) 2 SCC 493 had occasion to consider

Section 195(1)(b)(ii) and Section 340(1) Cr.P.C.

Interpreting Section 195(1)(b)(ii), following

was laid down in Paras 8, 11 and 23:-

“8. That apart it is difficult to in- terpret Section 195(1)(b)(ii) as con- taining a bar against initiation of prosecution proceedings merely be- cause the document concerned was pro- duced in a court albeit the act of forgery was perpetrated prior to its production in the Court. Any such construction is likely to ensue un- savoury consequences. For instance, if rank forgery of a valuable docu- ment is detected and the forgerer is sure that he would imminently be em- broiled in prosecution proceedings he can simply get that document produced in any long-drawn litigation which was either instituted by himself or somebody else who can be influenced by him and thereby pre-empt the pros- ecution for the entire long period of pendency of that litigation. It is a settled proposition that if the lan- guage of a legislation is capable of more than one interpretation, the one which is capable of causing mis- chievous consequences should be averted. Quoting from Gill v. Donald Humberstone & Co. Ltd.5 Maxwell has stated in his treatise (Interpreta- tion of Statutes, 12th Edn., p. 105) that “if the language is capable of more than one interpretation we ought to discard the more natural meaning 12

if it leads to unreasonable result and adopt that interpretation which leads to a reasonably practicable re- sult”. The clause which we are now considering contains enough indica- tion to show that the more natural meaning is that which leans in favour of a strict construction, and hence the aforesaid observation is emi- nently applicable here.

11. The scope of the preliminary en-

quiry envisaged in Section 340(1) of the Code is to ascertain whether any offence affecting administration of justice has been committed in respect of a document produced in court or given in evidence in a proceeding in that Court. In other words, the of- fence should have been committed dur- ing the time when the document was in custodia legis.

23. The sequitur of the above discus- sion 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.”

12. It is also relevant to note that

observations have been made by this Court that

forgery of a document if committed far outside

the precincts of the Court and long before its 13

production in the Court, the same cannot be

treated as one affecting administration of

justice. In Para 12, following has been held:-

“12. It would be a strained thinking that any offence involving forgery of a document if committed far outside the precincts of the Court and long before its production in the Court, could also be treated as one affect- ing administration of justice merely because that document later reached the court records.”

13. A contrary earlier view having expressed

by another Three Judge Bench in Surjit Singh &

Ors. Vs. Balbir Singh, (1996) 3 SCC 533, being

not in accord with the view expressed by this

Court in Sachida Nand Singh & Anr. Vs. State of

Bihar & Anr. (supra), the same was referred to a

Constitution Bench for resolving the conflict. The Constitution Bench vide its judgment in

Iqbal Singh Marwah & Anr. Vs. Meenakshi Marwah &

Anr., (2005) 4 SCC 370 has resolved conflict and

approved three Judge Bench judgment in Sachida

Nand Singh & Anr. Vs. State of Bihar & Anr.

(supra). In Para 33, following was laid down:- 14

“33. 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 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 evi-

dence in a proceeding in any court i.e. during the time when the docu- ment was in custodia legis.”

14. Learned counsel for the appellant before

us has pressed only one submission, i.e., the

judgment of Constitution Bench in Iqbal Singh

Marwah (supra) was a case, which interpreted

Section 195(1)(b)(ii), to which there cannot be

any dispute but present was a case of offence

under Section 195(1)(b)(i). Hence the

Constitution Bench judgment of this Court was

not applicable and the High Court committed

error in relying on the Constitution Bench

Judgment in Iqbal Singh Marwah (supra).

15. The submission which has been raised by

learned counsel for the appellant before us has 15

to be stated to be rejected due to the reason

that before the Session Court as well as before

the High Court, the appellant has alleged an

offence under Section 195(1)(b)(ii). A copy of

the Application No. 95 of 2007 has been annexed

as Annexure P-4. The prayer made therein as

extracted above clearly prays for complaint to

be made as per the provisions contemplated under

Section 195(1)(b)(ii) of Cr.P.C. Even the order

of District Judge, which was the basis in favour

of the appellant on 31.07.2008 has also directed

for inquiry and initiating complaint in terms of

Section 195(1)(b)(ii) of Cr.P.C., which has also

been extracted above for ready reference. There

being specific case of the appellant in his

complaint as well as in order passed by the

District Judge in his favour, it is not open for

the appellant now to turn round and claim that

allegations are covered under Section 195(1)(b)

(i). There is one more reason due to which the

above submission cannot be accepted. The 16

Constitution Bench elaborately noticing the

statutory scheme under Section 195 has held that

where offences has already been committed

earlier and later on the document is produced or

given in the evidence in Court, the same is

neither covered under Clauses (a), (b)(i) or (b)

(ii). In Para 10, Constitution Bench made

following observations:-

“10. The scheme of the statutory provi- sion may now be examined. Broadly, Sec- tion 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”. 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 Of-

fences Against Public Justice”. The of- fences 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 17

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 proceed- ings 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 af- fects the functioning or discharge of lawful duties of a public servant or has a direct correlation with the pro- ceedings in a court of justice, the ex- pression “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 of- fence 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) contem- plates 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.”

16. It is further to be noted that the

execution application, which was filed by the 18

decree holder was also withdrawn. It is further

relevant to notice that the appeal, which was

filed by judgment debtor was withdrawn by

judgment debtor, which in no manner had impaired

the interest of the appellant, who was legal

heir of decree holder. It is also on the record

that legal heirs of the decree holders have also

withdrawn their execution application, which has

attained finality. None of the appellants, who

had filed Appeal No.91 of 2004 before the High

Court has initiated any proceeding against the

present respondent N.M. Dessai, who was their

advocate. It is only the appellant, who was

respondent in Appeal No.91 of 2004 has filed a

complaint under Section 195. The High Court

having taken into consideration entire facts and

circumstances have rightly come to the

conclusion that present is not a case where any

complaint could have been proceeded under

Section 195(1)(b)(i) Cr.P.C.

19

17. We thus fully endorse the view of the High

Court that present is not a case where any

complaint could have been proceeded with under

Section 195(1)(b)(ii). We thus do not find any

merit in this appeal and the same is dismissed.

..........................J. ( A.K. SIKRI )

..........................J. NEW DELHI, ( ASHOK BHUSHAN ) MARCH 06, 2018.