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Kantilal Khimchand Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1963CriLJ558; (1963)GLR647
AppellantKantilal Khimchand
RespondentThe State
Cases ReferredHuq v. State of West Bengal
Excerpt:
- - code, and has been convicted by the trial court as well as by the sessions court in appeal. if these requirements are satisfied, then there must be a complaint in writing of such court or some-other court to which such court is subordinate. the first requirement is therefore satisfied. the accused was plaintiff in the court and the second requirement is also satisfied. 18 did not bear any mark like ex. code is bad. 28/1, is not bad, as it does not require the sanction of the court in view of the federal court ruling in hori ram singh v......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.he relies on in re gopal sidheshvar, 9 bom lr 735: 6 cri lj 78 for his contention that the word 'produced' in the above section is not the same thing as 'giving in evidence' and that a document produced in court is one which is produced for the purpose of being tendered in evidence or for some other purpose. the learned judges of the bombay high court therein held as under: 'section 195(c) of the criminal procedure code, 1898, applies to a document which is alleged to have been forged and which is produced in a court of.....
Judgment:
ORDER

V.B. Raju, J.

1. The applicant was convicted under Sections 380, 467 and 471, Indian Penal Code. The prosecution case was that the accused was a plaintiff in Civil Suit No. 304 of I960 pending in? the Court of Joint Civil Judge, Junior Division, Surat. Defendant No. 1 produced a list, Ex. 28, along with Ex. 28/1, a receipt purporting to have been passed by the accused. Before the receipt was actually exhibited. it was the prosecution case that the plaintiff took it from the record of the Court and inserted in its place Ex. 18, a forged document which is alleged to have been forged by him adding some words to the words in the original document. According to the prosecution both Exs. 28/1 and Ex. 18, the forged receipt, were signed by the accused. On these facts, the accused was prosecuted under Sections 380, 467 and 471, I. P. Code, and has been convicted by the trial Court as well as by the Sessions Court in appeal.

2. Now in revision it is contended by the learned Counsel for the applicant that in this case there has not been any complaint by the Court and such a trial requires a complaint by a Court in view of the provisions of Section 195(1)(c), Cri. Pro. Code. This section reads as follows: '(1) No Court shall take cognisance: (c) of any offence described 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.

He relies on In re Gopal Sidheshvar, 9 Bom LR 735: 6 Cri LJ 78 for his contention that the word 'produced' in the above section is not the same thing as 'giving in evidence' and that a document produced in Court is one which is produced for the purpose of being tendered in evidence or for some other purpose. The learned Judges of the Bombay High Court therein held as under: 'Section 195(c) of the Criminal Procedure Code, 1898, applies to a document which is alleged to have been forged and which is produced in a Court of Justice. Under the section, the production of a document in a Court is not the same thing as 'giving it in evidence'. A document produced in a Court means one which is produced for the purpose of being tendered in evidence or for some other purpose.

3. The learned Counsel for the applicant also relied on Zumberlal v. Mt. Malobi 18 Cri LJ 1001 (2) : AIR 1917 Nag 198. In that case it was held that the document though not produced in the civil Court was under the control of the Court and Section 195(1)(c) of the Cri. Pro. Code applied to such a document. The learned Judges were dealing with the case where the plaintiff mentioned in his list of documents, upon which he relied, a document which was lying with the Sub-Registrar and he made an application to the Subordinate Judge for an order for the production of the document. The learned Judge ordered the Sub-Registrar to produce it, but before it was produced in Court it was discovered to be a false document. The learned Judge disagreed with the view taken in Lalta Prasad v. Emperor ILR 34 All 654, that so long as the prosecution is confined to offences connected with a document committed prior to its production in Court, such prosecution is within the law and requires no sanction. According to the learned Judge, that was too narrow a construction placed on Section 195, and he observed that the wording of Clause (c) is wide enough to cover the case of an offence committed in relation to any proceeding Wore a Court. The learned Counsel for the applicant also relied on Nalini Kanta Laha v. Anukul Chandra Laha 18 Cri LJ 522 : AIR 1918 Cal 792, wherein it was held that an alleged forged document, which had been registered before a Sub-Registrar and was called for by the Magistrate in the proceedings under Section 145, Cri. P. C, and was made use of by the pleader in the course of his argument and referred to by the Magistrate in his judgment, was a document within the meaning of Section 195(1)(c), Cri. P. C, and the accused could not be prosecuted in respect of its antecedent forgery and antecedent user before the Sub-Registrar without the sanction of the Magistrate.

The learned Counsel for the applicant also relied on Gobindram Sunderdas v. Emperor 43 Cri LJ 612 : AIR 1942 Sind 62, where it was observed that the words produced or given in evidence in. Clause (c) of Section 195(1) are disjunctive and the words in that section do not qualify the word 'produced' and the document can come within Section 195(1)(c) even if it was not produced in evidence. In this case a reference was also made to the observations of Macleod C. J. in In re Bhau Vyankatesh Chakorker, ILR 49 Bom 608 at p. 614: (AIR 1925 Bom 433 at pp. 434-435), which are as follows:

We think that Section 195(1)(c) is wide enough to include any document produced or given in evidence in the course of a proceeding whether produced or given In evidence by the party who is alleged to have committed the offence or by anyone else and that the intention of the Legislature in the framing of the section, as it stands now, was to give authority only to the Court in which a proceeding was pending to file a complaint in respect of documents which were produced or given in evidence before it. If there had been any intention to limit the provisions of the section to a document produced or given in evidence by a party to the proceeding, then it would have been a simple matter to insert words to make that intention clear. These words are not there.

He also relied on Satya Dev v. Ghanshiam , where it was held that a mere filing of document amounts to production and the word produced' does not necessarily mean produced in evidence. Reliance was also placed on Gulabchand v. Emperor AIR 1925 Bom 467, where it was held as under:

Where a party to a proceeding hands up a document to the Judge who does not take the document on the file but returns it to the party, the document is 'produced' in the proceeding within the meaning of Section 195(1)(c). No complaint with reference to the document can be entertained by a criminal Court, in the absence of a complaint in writing by the Court concerned.

Reliance was also placed on AIR 1925 Bom 433, where it was held as under:

Section 195(1)(c) is wide enough to include any document produced or given in evidence in the course of a proceeding whether produced or given in evidence by the party who is alleged to have committed the offence or by any one else.' The wording of a section is always very important, and if we turn to Clause (c) of Section 195(1), Cri. Pro. Code, it is clear that following are the requirements of that clause:1. The offence must be one described in Section 463 or punishable under Section 471, Section 475 or Section 476, Indian Penal Code.

2. That the offence must be alleged to have been committed by a party to a proceeding in Court.

3. That the offence must be alleged to have been committed by him in respect of a document produced or given in evidence in such proceeding.

If these requirements are satisfied, then there must be a complaint in writing of such Court or some-other Court to which such Court is subordinate. It is alleged that the offence under Section 467, I. P. Code, is included in the expression 'any offence described in Section 463', because forgery defined in Section 463 is a forgery of any type or documents.

Offences under Sections 467 and 471 are alleged to have been committed by the accused. The first requirement is therefore satisfied. The second requirement is that the offence must be alleged to have been committed by a party to a proceeding in Court. The accused was plaintiff in the Court and the second requirement is also satisfied. The third requirement is that the offence must be alleged to have been committed by him in respect of a document produced or given in such proceeding. The Legislature did not use the words produced or given in evidence by him in such proceeding'. It is therefore clear that the words produced or given in evidence' mean by any one and not necessarily by the accused. Sometimes a witness may produce a document in Court and it may be used by a party in the proceeding. The person who uses the document may be different from the person who produced it in the Court, although technically the party is deemed to have produced it.

4. Now in this case according to the learned Sessions Judge, the document was not produced in the Court at all, but was merely inserted in the record of the Court by the accused. According to the learned Sessions Judge, the original document which was produced was different from this document and the original document had been produced by the defendant in the Court. This document, Ex. 18, which is alleged to be forged was not at all produced in the Court either by the plaintiff or the defendant, and was intended to take place of the document which had been produced. The argument of the learned Sessions Judge is that it was not at all produced in Court so that the question whether it was produced by a party or someone else does not arise. According to the prosecution the document was inserted in the record of the Court with the idea that the Court should be led into the belief that this was the document which the defendant had produced. It is true that the document, namely, Ex. 18 did not bear any mark like Ex. 28/1 on it. The only authority relied on by the learned Counsel by the applicant on this point is 18, Cri U 1001 (2): (AIR 1917 Nag 198), where it was observed that a document which comes under the control of the Court must be deemed to have been produced in the Court. The contention of the learned Government Pleader is that the Court was unaware of its existence and the document was not under the control of the Court. But the expression used in Clause (c) of Sub-section (1) of Section 195, Criminal Procedure Code, is 'in respect of a document produced or given in evidence in such proceeding'. Technically, it is true that the document produced in such proceeding is Ex. 28/1, and that document had not been forged but had only been stolen away. But the expression in respect of a document produced in such proceeding' must apply to a document which was inserted with the object of taking the place of document produced in such proceeding. It can also be said that the document which was inserted in the record of the Court was produced in the Court. The record of the Court includes not merely the record when the Court is sitting in open Court but also includes the record after the Court has completed its sitting In the open Court. Therefore, in my opinion, to insert a document in the record of the Court itself amounts to producing it in the record of the Court and therefore amounts to production in such proceeding. For both these reasons, I hold that the document, namely, Ex. 18, was produced in such proceeding. According to the prosecution, it was produced in such proceeding and according to the prosecution, the offence under Sections 467 and 471 was alleged to have been committed in respect of. such a document. Therefore, in my opinion, Section 195(1)(c) of the Criminal Procedure Code does apply to the facts of the present case and a complaint of the Court referred to in this clause is necessary. In absence of such a complaint under Section 195(1)(c), Cri. Pro. Code, as admitted by the learned Government Pleader, the conviction of the applicant under Sections 467 and 471, I. P. Code is bad. The conviction of the applicant under both these sections and the sentences passed against him are, therefore, set aside. Fine, if paid, should be refunded.

5. But the conviction of the applicant under Section 380, I. P. Code, for the offence of theft of the document, Ex. 28/1, is not bad, as it does not require the sanction of the Court in view of the Federal Court Ruling in Hori Ram Singh v. Emperor , Which was followed in The State v. Laldas : AIR1953Bom177 , and Basir-ul-Huq v. State of West Bengal : 1953CriLJ1232 . The learned Counsel for the applicant, however, has strenuously urged that the sentence should reduced to one of fine. It is true that this is a case of theft of a document from the record of the Court. But, nevertheless, it was a theft of a document and the litigation related to a tenancy proceeding and the plaintiff was a tenant. Having regard to all these circumstances, I reduce the sentence to one year's rigorous imprisonment and a fine of Rs. 300/- in default six months' R.I.


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