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State of Gujarat Vs. Vora SaifuddIn Akbarali and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial;Criminal
CourtGujarat High Court
Decided On
Case NumberCri. Ref. No. 49 of 1966
Judge
Reported inAIR1969Guj195; 1969CriLJ902; (1969)GLR646
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 190, 190(1), 195(1), 215, 438, 463, 475, 476, 479A and 479A(1); Indian Penal Code (IPC), 1860 - Sections 34, 109, 420, 465, 467, 468 and 471; Code of Civil Procedure (CPC), 1908
AppellantState of Gujarat
RespondentVora SaifuddIn Akbarali and anr.
Appellant Advocate G.T. Nanavaty, Asst. Govt. Pleader,; M.A. Trivedi, Adv. for;
Respondent Advocate A.D. Shah, Adv. for; R.N. Patel, Adv.
DispositionReference rejected
Cases ReferredBudhu Ram v. State of Rajasthan
Excerpt:
.....court where alleged forged cheque produced - whether court not entitled to take cognizance of offence committed by party to proceeding in respect of document except complaint in writing as contemplated by section 195 (1) - cognizance of criminal court barred under section 195 (1) (c) if offence committed under section 463 or section 471 by party to proceeding in court - it must be committed in respect of document produced in evidence in such proceedings - no offence of forgery committed after cheque produced in civil court - held, section 195 (1) not barred and order passed by magistrate committing accused to session court stands. - - were not complied with and consequently the committal proceedings were bad in law. before him, the learned assistant public prosecutor conceded..........dishonestly using as genuine any document which the accused knows or has reason to believe to be a forged document, does not fall within the category of offences contemplated in section 479a (1) of the code of criminal procedure, cannot come in the way of any such complaint. it may be stated that there has been no application presented by the party for taking any action under section 476 of the criminal procedure code and, therefore, there would not arise any such consideration as thought by the learned sessions judge viz. that for want of taking any action under section 479a of the ' criminal procedure code, no such action can at all be taken against the accused in the case. so far there is no dispute.5. the material point, however, that requires to be considered is as to whether the.....
Judgment:
ORDER

N.G. Shelat, J.

1. The facts giving rise to this reference, broadly stated, are that one Patel Laljibhai Somabhai of village Juval Rupavati, filed Civil Suit No. 11 of 1964 in the Court of the Joint Civil Judge (J. D.) at Dholka, against Vora Safakathusein Yusufali, the complainant in the present case, and his brother Vora Ahmedhussain Yusufali for recovering a sum of Rs. 2000 on the basis of a cheque dated 22-11-03 drawn in the name of self under the signature of the complainant Vora Safakathussain Yusufali Lakdawala on the Bombay Mercantile Co-operative Bank Ltd.. Ahmedabad Branch. In that suit, the defence of the complainant and his brother Vora Ahmedhussain Yusufali was that the cheque in question and certain coupons which were produced and relied upon in that suit were forged and a false suit in collusion with the accused in this case was filed. That suit came to be dismissed on 30-1-1965 by Shri R. K. Atodaria, Joint Civil Judge (J. D.) Dholka. Thereafter on 16-11-1965 the complainant Vora Safakathusain Yusufali Lakdawala filed a complaint in the Court of the Judicial Magistrate, First Class, Dholka, against the two accused for offences punishable under Sections 467 and 471 of the Indian Penal Code. After making the necessary inquiry, the learned Magistrate committed both the accused to the Court of Sessions, Ahmedabad (Rural) at Narol, to stand their trial for offences under Sections 467 and 471 read with Section 34 of the Indian Penal Code. That Sessions Case No. 45 of 1966 was transferred to the Court of the Assistant Sessions Judge, Ahmedabad (Rural) at Narol for disposal in accordance with law.

2. Before the trial began, the accused No. 2 presented an application inter alia contending that the provisions contained in Sections 195(1)(c), 476 and 479A of the Criminal P. C. were not complied with and consequently the committal proceedings were bad in law. He, therefore, prayed that the order of commitment should be quashed. Since the learned Assistant Sessions Judge was not authorised under Section 438 of the Code of Criminal Procedure to report the case to the High Court, he addressed a letter to the Court of Session in that regard and consequently that Sessions Case No. 45 of 1986 was withdrawn from his file and taken over on his file. That application was then heard by the learned Sessions Judge, Ahemedabad (Rural) at Narol. Before him, the learned Assistant Public Prosecutor conceded that having regard to the fact that the provisions contained in Sections 195(1)(c), 476 and 479A of the Criminal Procedure Code were not complied with, the order of commitment was bad in law and that it required to be quashed. The learned Sessions Judge also found that the complaint filed in the Court of the Judicial Magistrate, First Class, against the accused in the case was bad inasmuch as no sanction was obtained from the Court of the Civil Judge where the alleged forged cheque was produced. That being so, the commitment order was also bad in law and he has consequently referred the matter to this Court for quashing the order of commitment made under Section 215 of the Criminal Procedure Code.

3. Mr. Nanavaty, the learned Assistant Govt. Pleader, opposes the acceptance of the reference whereas Mr. Shah, the learned advocate for the accused, supports the reference. Mr. Trivedi, the learned advocate for the complainant, joins hands with the arguments advanced by the learned Assistant Govt. Pleader in this Court.

4. Now the allegations made in the complaint are clearly to the effect that the cheque dated 22-11-63 for a sum of Rs. 2000/- on the Bombay Mercantile Co-operative Bank Ltd., Ahmedabad Branch, was a forged one and that the accused had produced the same in the Court of the Joint Civil Judge (J. D.) Dholka in a suit filed against the present complainant for recovering a sum of Rs. 2000/- thereunder. That was the basis of a claim made by the plaintiff-accused in that suit and since they had collusive-ly and in furtherance of their common intention to obtain a decree for the 'claim and for that purpose, since they had produced and made use thereof knowing or having reason to believe the cheque to be a forged one, they were liable for the offences under Sections 467, 471 read with Section 34 of the Indian Penal Code. Now as the learned Civil Judge had not chosen to take any action while dismissing the suit, for fabricating such evidence in the form of a cheque produced by the party-plaintiff, under Section 479A of the Criminal Procedure Code, the learned Sessions Judge found that no proceedings can now be taken in respect thereof by the complainant. Apart from the applicability of Section 479A of the Criminal Procedure Code, having regard to the decision in Babu Lal v. State of Uttar Pradesh, AIR 1064 SC 725, such an offence punishable under Section 471, Indian Penal Code, being one of fraudulently or dishonestly using as genuine any document which the accused knows or has reason to believe to be a forged document, does not fall within the category of offences contemplated in Section 479A (1) of the Code of Criminal Procedure, cannot come in the way of any such complaint. It may be stated that there has been no application presented by the party for taking any action under Section 476 of the Criminal Procedure Code and, therefore, there would not arise any such consideration as thought by the learned Sessions Judge viz. that for want of taking any action under Section 479A of the ' Criminal Procedure Code, no such action can at all be taken against the accused in the case. So far there is no dispute.

5. The material point, however, that requires to be considered is as to whether the Court was not entitled to take cognizance of any such offence said to have been committed by a party to any proceeding in Court in respect of a document such as a cheque dated 22-11-63 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 is subordinate as contemplated under Section 195 (1) (c) of the Criminal Procedure Code. Section 190 of the Criminal P. C. entitles any Presidency Magistrate and any Judicial Magistrate to take cognizance of any offence except as hereinafter provided. In other words, the cognizance of offences can be said to have been properly taken by the learned Judicial Magistrate unless it is shown that by any operation of section in the Criminal Procedure Code, no such cognizance can be taken. Section 195 (1) of the Criminal Procedure Code, therefore, serves as an exception to the general rule contemplated in Section 190 (1) of the Criminal Procedure Code, for it lays down that :--

'195. (1) No Court shall take cognizance -

(a) *****

(b) *****

(c) of any offence prescribed in Section 463 or punishable under Section 471, Section 475 or Section 476 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 is subordinate.'

The contention of Mr. Shah was that all the conditions contemplated in Section 195 (1)(c) of the Code have been fulfilled so as to justify him to say that the cognizance of the complaint taken by the learned Magistrate was bad in law, for, that could only be taken provided a complaint in writing of such Court, or of some other Court to which such Court is subordinate was filed. Now it is true as pointed out by him, the cheque is said to have been forged and that had come to be produced in a civil proceeding in the Court of the Civil Judge (J. D.) at Dholka so that the offences in that regard fall under Sections 463 and 471 of the Indian Penal Code. Then the person who produced the same or gave in evidence was a party-plaintiff to that suit before the Court. Consequently, he urged, that except on the basis of a complaint filed by that Civil Court, it was not competent for the Judicial Magistrate to entertain any such complaint in respect of those offences under Sections 467 and 471 read with Section 34 of the Indian Penal Code in respect of that document which was produced in that civil suit between the parties. On a plain and simple reading of Section 195(1)(c) of the Code, one feels inclined to so think, but it was pointed out by Mr. Nanavaty, the learned Assistant Govt. Pleader for the State, by a reference to a decision in the case of State of Gujarat v. All : (1968)9GLR1 , that this Section 195(1)(c) of the Criminal Procedure Code has been interpreted by the Division Bench of this High Court, and as laid down therein, no such complaint by the Court was essential to be filed, and that therefore the complaint was competent under Section 190(1) of the Code, and the committal proceedings made by the learned Magistrate were not vitiated by reason of non-compliance of Section 195(1)(c) of the Code. What ultimately appears to have been held in that case was that under Section 195(1)(c) of the Criminal Procedure Code, sanction for prosecuting a party to a proceeding for an offence under Section 471 of the Indian Penal Code was not necessary 'in respect of a use made outside' the Court to which the document was subsequently produced. That way the decision given in (1902) 4 Bom LR 268, Noor Mahomad Cassum v. Kaikhosru Maneckjee, was found to be correct as against the one in 38 Bom LR 440= (AIR 1936 Bom 221) Emperor V. Rachappa Yellappa. But while analysing and interpreting that part of the section, His Lordship Miyabhoy C. J. speaking for himself and Mehta J. (majority) has held as urged by Mr. Nanavaty, that only the offences which come within the mischief are those which were committed by a party in regard to a document which is 'already' produced or given in evidence in a proceeding in which the present accused is a party. Making that statement further clear, it has been observed that Clause (c) is confined only to those cases where the offences mentioned in the Clause are committed in respect of documents after they are so produced or given in evidence. In other words, the offence in respect of that document already produced in the Court must have been committed while it remained in custody of the Court. It does not refer to any offence already committed in respect of that document outside and later on produced in Court in a proceeding between the same parties. While so holding, his Lordship Miyabhoy C, J. has towards the end observed as under:--

'Under the circumstances, in our judgment, though we are conscious of the fact that the authorities of the Bombay and several High Courts, specially those dealing with offences connected with Section 463, take the wider view, on the whole, we have come to the conclusion that the narrower view which was expressed but without any reason in Noor Mahomad Cassum's case, (1902) 4 Bom LR 268 is the correct view and, therefore, we propose to answer the query put by the Division Bench by holding that, that case was correctly decided.'

Desai J., however, has given a dissenting judgment in that case, and according to him, the correct interpretation of Section 195 (1) (c) was that on the date on which the Criminal Court takes cognizance of the offence mentioned in the clause, the Court has to satisfy itself whether the offence in respect of which it is called upon to take cognizance is alleged to have been committed by a party to a proceeding in any Court and whether the alleged offence is in respect of document produced or given in evidence in such proceedings. If these conditions are satisfied, the Criminal Court will have jurisdiction to entertain the complaint only if it is filed by the Court In which it is tendered in evidence by the party to the proceeding or by some other Court to which such Court is subordinate, irrespective of the fact whether the alleged offence of forgery was committed before the proceedings were initiated or thereafter. Much though I feel inclined to be in agreement with the view, expressed in the dissenting judgment, since the decision of majority of the Full Bench of this Court binds, that must prevail as it governs the case. No offence of forgery was committed after the cheque was already produced in that civil suit, and that since it must have been committed outside the Court before it was produced, Section 195(1)(c) would not come in and bar the complaint in the case.

6. It was, however, pointed out by Mr. Shah that while interpreting this Section 195(1)(c) of the Criminal Procedure Code in the case referred to above, the effect of the two important decisions is not considered. The first is the decision of a Division Bench of this High Court in the case of the State v. Bhikhubhai AIR 1965 Guj 70, and the other is of the Supreme Court in the case of Budhu Ram v. State of Rajasthan, 1963 (2) Cri LJ 698 (SC). In the first case of AIR 1965 Guj 70, the contention was that the learned Magistrate had committed an error of law in taking cognizance of the charge-sheet for the offences under Sections 420, 465, 468, 471 read with Section 109 of the Indian Penal Code in view of the fact that the cognizance of the aforesaid offences was barred under Section 195 sub-Section (1) Clause (c) of the Criminal Procedure Code. The offence was in respect of a document, Ex. 83, dated 15th January 1954 produced before the Agricultural Lands Tribunal, and it was found that the cognizance of any offence in relation to that particular document could only be taken on a complaint filed by the Tribunal and that a charge-sheet without the complaint of the Tribunal was barred. On a reference made to this Court for quashing the committal order after analysing Section 195 (1) (c) of the Code, it was observed that the cognizance of the Criminal Court will be barred under Section 195 (1) (c) if the following conditions are satisfied:--

(1) The offence alleged to have been committed must be an offence described in Section 463 or an offence punishable under Section 471, Section 475 or Section 476 of the Indian Penal Code.

(2) Such offence must be alleged to have been committed by a party to any proceeding in any Court.

(3) The offence so alleged to have been committed must be in respect of a document produced or given in evidence in such proceeding.

If these conditions are satisfied, a Criminal Court cannot take cognizance of any of the aforesaid offences except on a complaint in writing by such Court or by some other Court to which such Court is subordinate. Then after finding that the first two conditions were already satisfied in that case, they referred to the third condition which was necessary to be satisfied as the offences must be alleged to have been committed in respect of a document produced or given in evidence in the proceeding before the Court. Then His Lordship Miyabhoy J. speaking for the Division Bench observed as under :--

'From the facts already recited, it is quite clear that the only document which was produced before the Tribunal was the Contract Exhibit 83. Therefore, it is quite clear that the charges of forgery, in so far as they are based upon the document, Ex. 83, would come within the purview of Clause (1) (c) aforesaid. It was then held that it was hit by Section 195 (1)(c) of the Code. But the other charge relating to a false entry in the stamp register was not so hit since that was not produced before the Tribunal. This case has laid down further that the offence must have been committed by a party to the proceeding and that it was not at all essential that the proceeding referred to in Clause (1) (c) should be pending at the time when the cognisance of the crime was sought. Now the decision does appear to have proceeded on the basis that it did not matter whether the document in, question was forged before the same was produced in a proceeding before the Court. This decision, it is also true, does not appear to have been considered in the Full Bench case. But this decision cannot be said to have laid down any such direct proposition contrary to the interpretation and decision given in respect of Section 195 (1) (c) in the Full Bench case. In fact no such interpretation was at all required to be made in that case so as to say that it would have any effect in weighing or giving interpretation to the section as done in the Full Bench case.

7. The other case of 1963(2) Cri LJ 698 (SC) (supra) referred to above, does not also appear to have been placed before their Lordships when the decision came to be given by the Full Bench in the case reported in : (1968)9GLR1 . This decision also proceeds on the basis that any forged document when it is sought to be produced or given in any evidence in any proceeding by any party to the same and any offences in relation thereto are said to have been committed by him, a complaint would be essential as contemplated in Section 195 (1) (c) of the Code. Considerable stress was laid by Mr. Shah on the observations made by the Supreme Court in this case for showing that Section 195 (1) (c) would hit no sooner any such document alleged to have been forged is produced before a Court in any proceeding by a party thereto, and that therefore, it made no difference whether it was forged outside the Court or inside the Court at any time, After setting out Section 195 (1)(c) of the Code, the pertinent observations made by the Supreme Court ran thus:--

'It will be seen on a plain grammatical construction of this provision that a complaint by the Court is required where the offence is of forging or of using as genuine any document which is known or believed to be a forged document when such document is produced or given in evidence in court. It is clear therefore that it is only when the forged document is produced in Court that a complaint by the Court is required.'

These observations are no doubt entitled to great weight and if they were brought to the notice of the Full Bench, they would have been certainly considered. But even in this case, the direct question for decision was as to whether the offences referred to in Section 195(1)(c) of the Code related to the original document alleged to be a forged one, or to a copy thereof as well and it was held that it did not apply to a copy of any document said to have been forged. At any rate, the section does not appear to have been interpreted as we find it done in the Full Bench case.

8. Mr. Shah, then invited a reference to the report of the Select Committee; 1916 when amendments were made in this section by Act XVIII of 1923. The material part sought to be relied upon runs thus:--

'The provisions of Section 195 cause constant and great difficulty, and various amendments have been suggested which we have considered at length. We have no doubt that it will not be possible to remedy the evils which are connected with this section so long as private individuals are allowed to prosecute for offences connected with the administration of justice. In our opinion the only effective way of dealing with this section is to allow prosecutions to be launched only by the public servant or by the Court.'

Apart from these citations, he also urged that Section 471 of the Indian Penal Cede has not been properly considered in the Full Bench case for if one refers to that section, the offence relates to using as genuine a forged document. That section provides that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document. The words 'uses as genuine any document which he knows or has reason to believe to be a forged document' presuppose the same having been already forged or at any rate known or having reason to believe the same to be a forged document by that party and having then made use thereof by producing the same or by giving in evidence in the proceeding 'before that Court, That in itself rules out any such, interpretation, according to him, given by the Full Bench under Section 195(1)(c) of the Code, for it relates to an offence which must have been committed in respect of that document before it is used in that proceeding, and not necessarily and only in respect of a document already produced and then offence committed in that respect in the Court. With great respect, it is difficult to agree with the majority view in the Full Bench case referred to above, for the reasons stated above, and, if I may say so, I respectfully agree with the dissenting view expressed by Desai, J. in that Full Bench case. It finds considerable support from various authorities of different High Courts referred to therein. I need not repeat the same reasons given by him over again here. It is, however, enough to say that all that has no meaning as the decision of the Full Bench of this High Court binds this Court and I must abide by it as long as it stands.

9. It was, however, urged by Mr. Shah that the Full Bench decision requires to be reconsidered as it would be far too difficult for anyone to go in appeal to the Supreme Court against any such decision in the case. That cannot be helped. That is hardly a good ground for referring the matter for reconsideration by a larger Bench. Ordinarily reconsideration of any Full Bench decision of one's own High Court cannot arise on a mere ground that one does not agree with that view. Such an approach would take away the finality of decisions in such matters. However, it is not that it cannot be done at all. In my view, that can only be done provided, at any rate, two conditions are satisfied. The first is that the decision is found to be manifestly wrong or that it has lost sight of important decisions of the same High Court, or of other High Courts on the same point. But more important is about the satisfaction of that Judge that the public interest of a very substantial character is seriously affected or jeopardised by allowing any such decision to stand. I do not think both these conditions are so fully satisfied in this case, and therefore, I do not consider this to be a fit case for any such request being granted.

10. In the result, therefore, the reference is not accepted and the order passed by the learned Magistrate committing the accused to the Court of Session stands.


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