# M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. PRASAD VASSUDEV KENI, ETC. ETC

- **Citation:** [2020] 10 S.C.R. 1075
- **Court:** Supreme Court of India
- **Decided:** 2020-09-02
- **Case number:** Criminal Appeal Nos. 546-550 of 2017
- **Bench:** R. F. Nariman, Navin Sinha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-s-bandekar-brothers-pvt-ltd-anr-v-prasad-vassudev-keni-etc-etc-34156
- **Pages:** 57

## Headnote

Code of Criminal Procedure, 1973 - s.340 - Penal Code,
1860 - ss.191 and 192 - Respondent/accused-proprietory concern
had shared a business relationship with the appellants - Dispute
arose between the parties, as a result of which various suits were
filed by the appellants - The respondents filed their written statements
and counter-claims in the said suits filed by the appellants - The
appellants filed criminal complaints and contended that respondent/
accused had given false evidence and had forged debit notes and
made false entries in books of accounts - The Magistrate converted
the said complaints into private complaints and issued process u/
ss.191, 192 and 193 IPC - The respondent filed revision applications
against the said orders, in which it was stated that the bar contained
in s.195(1)(b)(i) of Cr.PC and the procedure u/s.340 Cr.PC being
mandatory could not be circumvented - In a counter-affidavit to
the revision application, the appellants for the first time 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, as a result of which a private complaint would be
maintainable - The Additional Sessions Judge allowed the revision
and quashed the complaints - Writ petitions filed by the appellants
were dismissed by the High Court - On appeal, held: Iqbal Singh
Marwah case is clear authority for the proposition that in cases
which fall u/s.195(1)(b)(ii) of the Cr.PC, the document that is said
to have been forged should be custodia legis after which the forgery
takes place - Further, various judgments of the Supreme Court also
lay down that when s.195(1)(b)(i) of the Cr.PC is attracted, the ratio
of Iqbal Singh Marwah case is not attracted and that therefore, if
false evidence is created outside the Court premises attracting ss.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
- A perusal of the complaints filed in the instant case, leaves no
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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, wha

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1075
M/S BANDEKAR BROTHERS PVT. LTD. & ANR
v.
PRASAD VASSUDEV KENI, ETC. ETC.
(Criminal Appeal Nos. 546-550 of 2017)
SEPTEMBER 02, 2020
[R. F. NARIMAN AND NAVIN SINHA, JJ.]
Code of Criminal Procedure, 1973 - s.340 - Penal Code,
1860 - ss.191 and 192 - Respondent/accused-proprietory concern
had shared a business relationship with the appellants - Dispute
arose between the parties, as a result of which various suits were
filed by the appellants - The respondents filed their written statements
and counter-claims in the said suits filed by the appellants - The
appellants filed criminal complaints and contended that respondent/
accused had given false evidence and had forged debit notes and
made false entries in books of accounts - The Magistrate converted
the said complaints into private complaints and issued process u/
ss.191, 192 and 193 IPC - The respondent filed revision applications
against the said orders, in which it was stated that the bar contained
in s.195(1)(b)(i) of Cr.PC and the procedure u/s.340 Cr.PC being
mandatory could not be circumvented - In a counter-affidavit to
the revision application, the appellants for the first time 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, as a result of which a private complaint would be
maintainable - The Additional Sessions Judge allowed the revision
and quashed the complaints - Writ petitions filed by the appellants
were dismissed by the High Court - On appeal, held: Iqbal Singh
Marwah case is clear authority for the proposition that in cases
which fall u/s.195(1)(b)(ii) of the Cr.PC, the document that is said
to have been forged should be custodia legis after which the forgery
takes place - Further, various judgments of the Supreme Court also
lay down that when s.195(1)(b)(i) of the Cr.PC is attracted, the ratio
of Iqbal Singh Marwah case is not attracted and that therefore, if
false evidence is created outside the Court premises attracting ss.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
- A perusal of the complaints filed in the instant case, leaves no
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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
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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
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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
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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
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v.
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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.
Case Law Reference
[2005] 2 SCR 708
followed
Para 4
[1996] 3 SCR 70
referred to
Para 7
[1971] Suppl. SCR 834
relied on
Para 10
[1962] 2 Suppl. SCR 812
relied on
Para 11
[1964] 4 SCR 957
followed
Para 14
[1966] 1 SCR 493
relied on
Para 15
[1966] 3 SCR 552
relied on
Para 16
[1967] 3 SCR 828
relied on
Para 17
AIR 1968 Mad. 79
referred to
Para 20
[1995] 1 SCR 996
referred to
Para 21
[2009] 13 SCR 922
referred to
Para 29
[2013] 1 SCR 545
referred to
Para 29
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[2013] 10 SCR 208
referred to
Para 29
[2018] 3 SCR 103
referred to
Para 29
(2015) 15 SCC 729
relied on
Para 31
[2019] 2 SCR 643
referred to
Para 32
[1998] 1 SCR 492
referred to
Para 33
[1953] SCR 836
relied on
Para 43
[1981] 2 SCR 695
relied on
Para 44
AIR 1955 Mad 237
referred to
Para 44
[2009] 7 SCR 872
relied on
Para 47
[2009] 13 SCR 1254
relied on
Para 49
[2009] 13 SCR 124
relied on
Para 50
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
546-550 of 2017.
From the Judgment and Order dated 22.11.2013 of the High Court
of Bombay at Goa in Criminal Writ Petition Nos. 65, 66, 69, 70 and 73 of
2013.
Anil Kumar Mishra, E. Dais, Parijat Sinha, Ms. Reshmi Rea Sinha,
Devesh Mishra, Rudra Dutta, Yogesh Nadkarni, A. Raghunath,
Ms. Ruchira Gupta, Shishir Deshpande, Advs. for the appearing parties.
The Judgment of the Court was delivered by
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 producing, processing and sale of iron ore. Accused Nos.2
and 3 are his son and wife respectively, who are the co-proprietors of
M/s V.G. Quenim, the aforesaid V.G. Quenim having expired on
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20.07.2007. M/s V.G. Quenimhad 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 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 counteraffidavit dated 08.10.2012 filed to the aforesaid revision applications,
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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, 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 counteraffidavit 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 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
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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,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 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
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with Section 340 of the CrPC. He contended that the counter-affidavit
that was relied upon by the Appellants to the Respondent's revision
applicationswas 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.
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
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v.
PRASAD VASSUDEV KENI [R. F. NARIMAN, J.]
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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
(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 subclause (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
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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;
(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
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v.
PRASAD VASSUDEV KENI [R. F. NARIMAN, J.]
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(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;
(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.
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(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."
"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".
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v.
PRASAD VASSUDEV KENI [R. F. NARIMAN, J.]
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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.
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 recordFirst.-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 theelectronic signature,
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with the intention of causing it to be believed that such document
or part of document, electronic record orelectronic 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
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
M/S BANDEKAR BROTHERS PVT. LTD. & ANR v.
PRASAD VASSUDEV KENI [R. F. NARIMAN, J.]
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mentioned in sub-clause (1)(a) 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 Lalji bhai 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."
11. This section has been construed to be mandatory, being an
absolute bar to the taking of cognizance under Section 190 of the CrPC,
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unless the conditions of the section are met, as held by this Court in
Daulat Ram v. State of Punjab (1962) Supp.