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R.R. Diwakar and ors. Vs. V.B. Guttal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1975CriLJ90
AppellantR.R. Diwakar and ors.
RespondentV.B. Guttal
Excerpt:
.....the said case, their lordships of the supreme court have pointed out that even if a person makes a false document, unless he acts dishonestly or fraudulently, it would not amount to an offence of forgery. the last three words 'but not otherwise' clearly indicate that the intent must be an 'intent to defraud'.11. in air1951cal581 a bench of the high court of calcutta has pointed out that in every case of forgery where the question of authority was raised, it was essential to drove not only lack of authority but also the dishonest intention with probably more than usual care; in paragraph 6 of the judgment their lordships have pointed out that it is well established that the inthere jurisdiction of the high court can be exercised to quash proceedings in a proper case either to prevent the..........the act, and when the said enquiry was pending a declaration has been made and if it amounts to a false declaration, the person who should file a complaint is the additional district magistrate and a. private person has no competence to rile such a complaint. as per the definition in section 1 of the act, the additional district magistrate is a magistrate and is a court, and if any false document is produced before him, he should file a complaint under sub-clause (a) of section 195, cr.p.c. it is also contended that on the allegations in the complaint itself, the ingredients of the offences under sections 465 and 471, i.p.c. have not been made out and that no dishonest or fraudulent intention on behalf of the accused has been alleged in the complaint and as such the court is not.....
Judgment:
ORDER

Santhosh, J.

1. The petitioners before this Court are Al, A2 and A3 respectively in the Court of the Judicial Magistrate, First Class, Fourth Court. Bangalore, in C.C. No. 396 of 1973. A private complaint was filed by the respondent against them and A4 alleging that they had committed the offences under Sections 455 and 471, I.P.C. The learned Magistrate took cognizance of the offences and issued summons to the accused. This order passed by the learned Magistrate issuing summons to the accused is challenged in this revision petition.

2. Sri K. J. Shetty. the learned counsel appearing on behalf of the petitioners, has contended that the complaint is not maintainable as it is barred by Sub-clause (c) of Section 195, Cr. P. C, His argument is that an enquiry is pending before the Additional District Magistrate under the Press and Registration of Books Act, 1867, which will hereinafter be referred to as the Act, and when the said enquiry was pending a declaration has been made and if it amounts to a false declaration, the person who should file a complaint is the Additional District Magistrate and a. private person has no competence to rile such a complaint. As per the definition in Section 1 of the Act, the Additional District Magistrate is a Magistrate and is a Court, and if any false document is produced before him, he should file a complaint under Sub-clause (a) of Section 195, Cr.P.C. It is also contended that on the allegations in the complaint itself, the ingredients of the offences under Sections 465 and 471, I.P.C. have not been made out and that no dishonest or fraudulent intention on behalf of the accused has been alleged in the complaint and as such the Court is not justified in issuing summons to the accused.

Even assuming that the statement made is false, unless it is made dishonestly or fraudulently, it would not amount to an offence either under Section 465, I.P.C. or under Section 471, I.P.C. It is pointed out that under Section 19-D of the Act it is the duty of the publisher of every newspaper to furnish the details referred to therein and the accused persons were duty bound to furnish those details, as the complainant was refusing to discharge his duties as printer and publisher. It is argued that even though disciplinary proceedings were taken against the complainant, he refused to resign, but continued to be a printer and publisher, and that was the reason why the proceedings were taken before the District Magistrate for cancellation of his declaration under Section 8-B of the Act.

Strong reliance has been placed on the decisions in S. Dutt v. State of U P.. : 1966CriLJ459 and in Pramatha Nath v. State : AIR1951Cal581 in support of the contention that unless there is dishonest or fraudulent intention even if the statement is false, it would not amount to offences under Sections 465 and 471. I.P.C. As on the face of the complaint itself no offence has been made out against the accused, it is urged that this is a fit case wherein the proceedings of the Court below should be quashed. Reliance has also been placed on the observations made by their Lordships of the Supreme Court in R. P. Kapur v. State of Punjab : 1960CriLJ1239 in support of the said contention.

3. Sri C. V. Subba Rao, the learned counsel appearing on behalf of the respondent-complainant, has contended that Sub-clause (c) of Section 195, Cr.P.C. Ls not attracted to the instant case. It is contended that there was no is pending and that there were no parties before the Additional District Magistrate when the false declaration had been made before him. The filing of the cancellation application by the petitioners before the Additional District Magistrate has nothing to do with the production of the alleged false document before the Magistrate. There is no connection between that proceeding and this proceeding except that the person before whom the documents have been produced is one and the same. It is also contended that when the Additional District Magistrate received the false declaration, he was not .acting as a Court and therefore, he had no right to summon the witnesses or record evidence. Strong reliance has been placed on the decision in Virindar Kumar Satyawadi v. State of Punjab. : 1956CriLJ326 and in Karunakar Hegde v. State of Mysore AIR 1963 Mys 153 : (1963) 1 Mys LJ 22 - (1963) 1 Cri LJ 781 in support of the said contentions. It is further contended that the petitioners have admittedly made a false declaration stating that the said, declaration has been made by the complainant. This declaration presented to the Additional District Magistrate on 1-3-1973 has not been signed by the complainant. Hence, as it purports to be a statement sent and signed by the complainant, it is obviously a false document produced before the Additional District Magistrate. It is contended that the Court should look to the allegations made in the complaint and not what the accused urges before the Court.

As what has been stated in the said declaration is false and it is purported to be sent and signed by the complainant, the complainant is exposed to the danger of prosecution under the Press and Registration of Books Act, for making any false statement. This false statement has been made by the accused with the idea of making wrongful gain to themselves and causing harm to the complainant under Section 14 of the Act. As the statement made in the said declaration is false, the complainant is liable to be prosecuted and likely to suffer damages. It is contended that Illustration (i) to Section 464, I.P.C. would apply to the facts of this case and would amount to a false complaint as per Section 465, I.P.C. It is, therefore, urged that the application discloses that the accused made this declaration dishonestly and fraudulently. It is further argued that the petitioners have not made any application under the in^ there powers of the High Court under Section 561-A, Cr.P.C. to quash the proceedings, but the petition has been filed under Sections 435 and 439, Cr.P.C.

The very decision in : 1960CriLJ1239 relied on by the petitioners is helpful to the respondent as it clearly shows that the High Court should not ordinarily interfere with the proceedings pending in the Court unless it comes within the definition laid down by their Lordships in that case. If the complaint discloses an offence, this Court should not interfere with the proceedings, but should allow it to be continued. It is urged that as the Court below, after applying its mind has issued process to the accused, the complainant should be permitted to adduce evidence and then the Court should find out whether the alleged offences have been made out or not. It is urged that at this stage this Court should not interfere with the proceedings pending before the trial Court.

4. I will first consider the contention advanced by the learned counsel for the petitioners as to whether sanction of Court under Sub-clause (c) of Section 195, Cr.P.C. is necessary in the instant case. Sub-clause (c) of Section 195 reads as follows:

(1) No Court shall take cognizance:

(c) of any offence described in Section 463 or punishable under Section 471, Section 475 or Section 47(3 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of Some other Court to which such Court insubordinate.

It is no doubt true that proceedings had been instituted by the petitioners under Section 8-B of the Act against the respondent for cancellation of the declaration made by him that he is the printer and publisher of the newspaper Samyuktha Karnataka and Journal Karma Veers. The said application had been filed on 12-2-1973 and the same was pending. This alleged false declaration has been made on 1-3-1973. The said alleged false declaration, as already pointed out, has been made under Section 19-D read with Rule 8 framed under Section 20-B of the Act. Under Section 19-D it shall be the duty of the publisher of every newspaper to furnish to the Press Registrar an annual statement in respect of the newspaper as required by the Act. This declaration has been made by the petitioners as they were bound to make such a declaration under the Act, and if they did not make such declaration, they were liable to be prosecuted. As contended by the learned counsel for the respondent, filing of this cancellation application has no connection with the declaration that has been made under Section 19-D of the Act by the petitioners.

As there was statutory liability on their part to do so the petitioners have made this declaration. As the respondent, in spite of the request of the petitioners, refused to make his declaration stating that he has ceased to be the printer and publisher of the newspaper and the journal, the petitioners had filed this declaration before the Magistrate. There is force in the contention of the learned' counsel for the respondent that when this declaration under Section 19-D was made before him, the Magistrate was not acting as a Court. He had no power either to record evidence or to summon the witnesses. In the enquiry before him with regard to the cancellation of the declaration, the Magistrate had only powers to hold some enquiry and not to record evidence or summon the witnesses. As already stated, the declaration made by the petitioners under Section 19-D has no connection with the enquiry that was pending before the Magistrate about the cancellation of the declaration even though the declaration was made before the same Magistrate. It is not possible to say that when the Magistrate received the declaration under Section 19-D, he was acting as Court as required by Sub-clause (e) of Section 195, Cr.P.C. In : 1956CriLJ326 their Lordships of the Supreme Court in paragraph 6 of the order have observed as follows:

There has been considerable discussion in the Courts in England and Australia as to What are the essential characteristics of a Court as distinguished from a Tribunal exercising quasi-judicial functions....It may be stated broadly that what distinguishes a Court from a quasi-judicial Tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties .are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it.

And it also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced .and in accordance with law. When a question therefore arises as to whether an authority created by an Act is a Court as distinguished from a quasi-judicial tribunal, what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a Court.

Their Lordships have pointed out in that case that there was no machinery provided for summoning of witnesses, or of compelling production of documents, and that there was no lis, in which persons with opposing claims were entitled to have their rights adjudicated in a judicial manner, but it had only power to hold an enquiry such as was usually conducted by an 'ad hoc' tribunal entrusted with a quasi-judicial power. Their Lordships have further pointed out in that case that the power of the returning officer was judicial in character, but he was not acting judicially in discharging it. Hence their Lordships have held that he was not acting as a Court.

5. In AIR 1963 Mys 1515 : (1963) 1 Cri LJ 781 a Bench of this Court at paragraph 6 of the judgment has observed as follows :

It may be stated broadly that what distinguishes a Court from a quasi-judicial tribunal is that it is charged with a duty to decide the disputes in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it.

And it also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law.

6. Bearing in mind the principles' enunciated by their Lordships in the two decisions referred to above, it is not possible to say that the Additional District Magistrate when he received the declaration made by the petitioners under Section 19-D of the Act, was acting as a Court and the alleged offence has been committed by the party to a proceeding in a Court and as such sub-clause

7. The next question that has to be considered is whether, on the allegations in the complaint, offences under Sections 465 and 471, I.P.C. have been made out. Paragraphs 4, 5 and 7 of the complaint refer to the alleged offences committed by the accused persons. In paragraph 4 of the complaint it is stated that the accused persons without complainant's authority and consent made a false document purporting to be a declaration made by the complainant and issued under his signature in his capacity as the publisher of the above daily which contains false recitals and submitted the same to the Additional District Magistrate, Bangalore, on 1-3-1973. Paragraph 5 states that the above false documents were prepared and published by the accused with intent to defraud the complainant and expose him to injury of prosecution by the authorities under the Press and Registration of Books Act, Para 7. Paragraph 7 states that by such declaration, the accused have further cheated the authorities under the Act by their fraudulent representations to accept the said declaration. Para 7 ends with (he following sentence :

The accused persons have abetted one another in the commission of the above offences by conspiring among themselves and by aiding and instigating one another.

8. The complaint does not disclose which of the four accused made the false document and produced the same before the Magistrate. Al is the Editor, A2 is the Manager and A3 is the Assistant Editor of Samyuktha Karnataka. A4 is the Assistant Editor of Karma Veera, Hubli. It is clear from what has been stated by the complainant at para 7 of his complaint that he himself does not know which of the four accused made this false document and who produced it and that there are general allegations that the accused persons abetted one another in the commission of the offences by conspiring among themselves and by aiding and instigating one another. These are undoubtedly too vague and general allegations on which no Court can act.

9. The offences with which the accused are charged are (1) an offence of forgery punishable under Section 465, I.P.C. and (2) an offence of using a forged document as a genuine one punishable under Section 471, I.P.C. Section 464, I.P.C. defines making of a false document. It says that a person is said to make a false document, who dishonestly or fraudulently makes, signs, seals or executes & document or part of a document. It is clear from this that a person is said to have made a false document if he dishonestly or fraudulently makes or executes such a document. Section 24, I.P.C. defines 'dishonestly'. It reads .as follows :

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'.' Section 25, I.P.C. defines 'fraudulently' and it reads as follows:

A person is said to do a thing 'fraudulently' if he does that thing with intent to defraud but not otherwise.' Section 463, I.P.C. defines forgery and it reads as follows.

Whoever makes any false document or part of a document, with intent to cause dam-age 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.

It is clear from the definition of Section 463, I.P.C., that apart from making a false document, the person should intend to cause damage or injury either to the public or to any person, and then only it would amount to forgery.

10. When exactly a person acts dishonestly, or fraudulently is laid down very clearly in the case in : 1966CriLJ459 . In the said case, their Lordships of the Supreme Court have pointed out that even if a person makes a false document, unless he acts dishonestly or fraudulently, it would not amount to an offence of forgery. Their Lordships in that case were considering the conduct of Dr. Dutt who produced .a forged diploma to make out that he was an expert, He was prosecuted for having committed the same offence under Sections 465 and 471, I.P.C. In the said case when examining the question whether Dr. Dutt is guilty of the offences under Sections 4C5 and 471, their Lordships held that Dr. Dutt might have intended to deceive the Court that he was a forensic expert when he produced the false diploma certificate but he did not act dishonestly. His intention was not to cause any one wrongful loss and he had no intention of defrauding. In paragraph 13 of the judgment, their Lordships have observed as follows :. It may be pointed out at once that it was not suggested before us that Dr. Dutt made a false document within the definition of the expression in Section 464 of the I.P.C. In fact, there was no complaint that he committed the forgery himself. He was said to have used a false document as genuine dishonestly and fraudulently. The word dishonestly is defined by Section 24 of Penal Code. A person who 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'. Dr. Dutt'-s conduct involves neither a gain to any person nor loss to .another. He was asked to produce the diploma in Court and he did. It is a matter of some doubt whether he can be said to have used the diploma because he did not voluntarily bring the diploma to Court, There is authority to show that such a user is not contemplated by Section 471 of the I.P.C. Even if one were to hold that he did use the document as genuine his intention in producing it was to support his statement and not to cause a wrongful gain to himself or to cause wrongful loss lo another. This part of the section does not apply. The next question is whether his conduct can be said to be fraudulent. The word 'fraudulently' is defined by Section 25 of the Penal Code. A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise. The last three words 'but not otherwise' clearly indicate that the intent must be an 'intent to defraud'....

11. In : AIR1951Cal581 a Bench of the High Court of Calcutta has pointed out that in every case of forgery where the question of authority was raised, it was essential to Drove not only lack of authority but also the dishonest intention with probably more than usual care; the reason was that mere abuse of authority was not a crime and that it was not forgery where the act was done under the honest belief that the party doing it had a right to do although in point of fact he had really no such authority. In paragraph 9 of the judgment their Lordships have observed as follows:

The more cogent reason in this case is that whatever may be the construction of the words 'makes a false document' it is an essential ingredient of the offence of forgery that there must be the fraudulent or dishonest intention. Now, in this case the prosecution case is that although the petition purports to be made by Hari Charan as guardian of Naresh Dhara Hari Charan never authorised the making of this petiiton. The question therefore is : Did the accused applicant have the authority or did he dishonestly or fraudulently put in this petition or was instrumental in putting in this petition before the Appellate Officer? In every case of forgery where the question of authority is raised, as it is raised here, it is essential to prove not only lack of authority but also the dishonest intention with probably more than usual care. The reason is that mere abuse of authority would not necessarily lead to a conclusion that there is a forgery. Abuse of authority can be in various forms and every abuse of authority is not a crime. It is not forgery where the act is done under the honest belief that the party doing it had a right to do it although in point of fact he had really no such authority. I will assume that the evidence given by Hari Charan and by his son Amulya, the complainant, to be correct on the point that neither Hari Charan nor Amulya gave any authority to the accused Pramatha making an honest mistake that he had the authority. It will be an abuse of authority, if he did so, but not forgery in that case or abetment of forgery.

12. The observations made in the above decisions apply with full force to the facts of this case. It is no doubt true that the petitioners have filed the declaration in the name of the complainant, but, as already pointed out, they were, under a statutory authority, to file such a declaration under Section 19-D of the Act, As the respondent, though requested, was still persisting to continue as the printer and publisher of the newspaper, the petitioners had no other alternative but to make the alleged declaration as required by law or otherwise face a prosecution. If they had not filed such a declaration they were liable for prosecution under the Act.

13. There is no force in the contention urged on behalf of the respondent that this declaration caused the respondent damage or injury. He could not obviously be prosecuted under Section 14 of the Act for making a false statement, as admittedly he had not made the statement. If he had made the statement then only the authority could prosecute him for making a false statement. In the complaint filed by him at paragraph 6, he had categorically stated that he had nothing to do with the said declaration and that he had not signed the same. He has further stated that he had written to the Registrar of Press and Newspapers in India and the Additional District Magistrate informing them that he had not made this declaration. It cannot therefore be said that this declaration filed by the petitioners has caused the respondent any injury. If, as a matter of fact, such declaration had not been made by the petitioners, and as the respondent continued as printer and publisher of the newspaper and journal, the respondent was bound as publisher to have made such a declaration under Section 19-D of the Act. and if such declaration had not been made by him, he was liable for prosecution. So. it is clear from this that instead of there being a danger of his prosecution, he has escaped the liability for prosecution as a result of these accused making such a declaration as required under Section 19-D of the Act. There was no dishonest or fraudulent intention on the part of the petitioners in making the declaration as they thought that if they did not make such a declaration, they would be liable for prosecution. As already pointed out, the complaint does not even state as to which of the four accused has made this declaration and who produced the same before the authority concerned. Applying the principles laid down in AIR 1965 SC 523 : 1966 Cri LJ 459 and in : AIR1951Cal581 , there can be no doubt that the complainant has not made out any dishonest or fraudulent intention on the part of the petitioners who had made the said declaration on 1-13-1973. I have already pointed out that under Section 4(i8, I.P.C. the complainant has further to make out that even if the document is proved to be a false document, it was made with intent to cause damage or injury to the public or to the complainant. It cannot therefore be said that when the petitioners produced this declaration, their intention was to cause damage or injury to the public or to the complainant. I am therefore of the opinion that on the allegations of the complainant no offence either under Section 465, I.P.C. or under Section 471, I.P.C. has-been made out against the petitioners.

14. It has been contended by the learned counsel for the respondent that the petitioners have not invoked the powers of this Court under Section 561-A, Cr.P.C. to quash the proceedings. I see no force in this contention. Though the petitioners might not have specifically mentioned Section 561-A, Cr.P.C. in their application, the records of the case under its revisional powers have been produced before the Court. After considering the matter, if this Court thinks interests of Justice requires it. it is open to this Court to exercise its inthere power and quash the proceedings if it thinks that it is necessary to do so. It is open to this Court even sitting in revision to set aside the order of issuing summons to the petitioners-accused, if it thinks that interest of justice requires [that the order issuing summons against 'the petitioners should be set aside.

15. In : 1960CriLJ1239 their Lordships of the Supreme Court have pointed out the categories of cases where proceedings should be quashed. Their Lordships have pointed out that where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is .a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In paragraph 6 of the judgment their Lordships have pointed out that it is well established that the inthere jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Their Lordships have no doubt pointed out that ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage, but, it is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inthere jurisdiction. Their Lordships have further pointed out that if the Court thinks that the institution or continuance of the said proceedings would amount to the .abuse of the process of the court, the High Court would be justified in quashing the proceedings on that ground. Their Lordships have also pointed out that it on the face of the complaint itself no offence is made out, in such cases the question of appreciating the evidence does not arise. In such cases, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused persons. For the reasons already pointed out by me. I am clearly of the opinion that it would be manifestly unjust to permit the continuance of the criminal proceedings in this case. I am also of the opinion that if the prosecution is allowed to continue, there is no possibility of the case ending in conviction of the accused. I have already pointed out that no dishonest or fraudulent intention has been made out against the petitioners to warrant their conviction for offences under Sections 465 and 471, T.P.C. I, therefore, think that this is a fit case wherein the interests of justice require that the proceedings instituted against the petitioners should be quashed by this Court.

16. In the result, for the reasons mentioned above, I allow the revision petition and quash the proceedings instituted against the petitioners-accused.


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