M/s Bandekar Brothers Pvt. Ltd. & Anr. vs Prasad Vassudev Keni, etc. etc.

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 – A perusal of the complaints filed in the instant case, leaves no manner of doubt that the first complaint attracts the provisions of s.191 of the IPC and the second complaint attracts the provisions of s.192 of the IPC – The debit notes that are said to be created by the respondents, it is clear that the debit notes were not ‘false documents’ u/s.464 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 said to be even prima facie attracted in the facts of the present case – The facts clearly show that the two complaints correctly invoked s.195 r/w. s.340 of the Cr.PC and were then sought to be converted into private complaints thereby attempting to fix a square peg in a round role – This has correctly been interdicted by the Sessions Court in revision and by the High Court under appeal – 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 – Therefore, the two complaints reinstated in their original form so that they may be proceeded further, following the drill of s.195 and s.340 of Cr.PC. Disposing of the appeals, the Court

HELD: 1. 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. [Para 19][1100-C-E]

2. 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 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. [Para 22][1102-BD]

3. The Iqbal Singh Marwah 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. [Para 29][1106-G]

4. The various Supreme Court judgments clearly lay down that when Section 195(1)(b)(i) of the Cr.PC is attracted, the ratio of Iqbal Singh Marwah, 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. [Para 33][1110-H; 1111-A]

5. A perusal of the 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 counteraffidavit to the revision application that was filed by the Respondents before the Sessions Judge, the Appellants took the plea that offences u/ss.463, 464, 465, 467, 468, 469, 471, 474,

475 and 477-A of the IPC were also made out against the respondents. [Para 42][1117-G-H; 1118-A-B]

6. 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 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 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. [Para 43][1118-D-G]

7. It is thus clear that even if all the averments made in the two complaints (which clearly attract the provisions of Sections

191 and 192 of the Penal Code) are put aside, 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. [Para 52][1127-BC]

8. It now remains to deal with some of the other submissions of appellants. The submission of appellants 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 vested in the High Court to be exercised on the facts of the case. As this Court has 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. [Para 53][1127-D-F]

9. Writ petitions that were filed against this order have been dismissed by the impugned judgment. It seems to this Court 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 Additional Sessions Judge ought to have relegated the parties to the position before the original complaints had been converted into private complaints. Since this has not been done, this Court finds that appellants 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. 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. [Para 60][1131-B-D] Iqbal Singh Marwah and Anr. v. Meenakshi Marwah and Anr. (2005) 4 SCC 370 : [2005] 2 SCR 708; Babu Lal v. State of Uttar Pradesh [1964] 4 SCR 957 – followed.

Patel Laljibhai Somabhai v. State of Gujarat (1971) 2 SCC 376 : [1971] Suppl. SCR 834; Daulat Ram v. State of Punjab [1962] 2 Suppl. SCR 812; Dr. S. Dutt v. State of Uttar Pradesh [1966] 1 SCR 493; Baban Singh and Anr. v. Jagdish Singh and Anr. [1966] 3 SCR 552; Kamla Prasad Singh v. Hari Nath Singh [1967] 3 SCR 828; Kailash Mangal v. Ramesh Chand (2015) 15 SCC 729; Narendra Kumar Srivastava v. State of Bihar and Ors. (2019) 3 SCC 318 : [2019] 2 SCR 643; Basir-ul-Huq and Ors. v. State of West Bengal [1953] SCR 836; State of Karnataka v. Hemareddy (1981) 2 SCC 185 : [1981]

2 SCR 695; Devendra v. State of U.P. (2009) 7 SCC

495 : [2009] 7 SCR 872; Mohd. Ibrahim v. State of Bihar (2009) 8 SCC 751 : [2009] 13 SCR 1254; Mir Nagvi Askari v. CBI (2009) 15 SCC 643 : [2009]

13 SCR 124 – relied on.

Surjit Singh v. Balbir Singh (1996) 3 SCC 533 : [1996]

3 SCR 70; Mansukhlal Dhanraj Jain and Ors. Etc. v. Eknath Vithal Ogale Etc. (1995) 2 SCC 665 : [1995] 1 SCR 996; Mahesh Chand Sharma v. State of U.P and Ors. (2009) 15 SCC 519 : [2009] 13 SCR 922; C.P. Subhash v. Inspector of Police, Chennai and Ors. (2013)

11 SCC 559 : [2013] 1 SCR 545; Kishorbhai

Gandubhai Pethani v. State of Gujarat and Anr. (2014) 13 SCC 539 : [2013] 10 SCR 208; Vishnu

ChandruGaonkar v. N.M. Dessai (2018) 5 SCC 422 : [2018] 3 SCR 103; Sachida Nand Singh and Anr. v. State of Bihar and Anr. (1998) 2 SCC 493 : [1998] 1 SCR 492 – referred to.

State Wakf Board, Madras v. Abdul Azeez Sahib and Ors. AIR 1968 Mad. 79; Re V.V.L. Narasimhamurthy AIR 1955 Mad 237 – referred to.