IMPORTANT POINT
Where cognizance of the allegation of false sale deed has been taken by the Criminal Court prior to the proceeding in the civil court coming into existence anti before the sale deed could be produced or given in evidence in the civil proceeding, in such a case bar of section 195(1)(b)(ii) of Criminal Procedure Code is not attracted to an application under section 294(1) Criminal Pro­cedure Code.

JUDGMENT

B.D. Agarwal, J. - Heard learned coun­sel.

2. On December 23, 1983, the opposite party No. 2 brought a complaint in writing against the applicants in the Court of the Munsif - Magistrate Gyanpur district Varanasi, contending, in brief; that on November 28, 1983, the applicants bad, in furtherance of common intention, got a deed of sale executed in favour of Ram Kishore (applicant No. 1) by Amar Nath (applicant No. 3) representing, however, that the executant is the complainant (Shyam Kishore alias Kishori Lal). The con­tention is that the complainant did not, in fact, execute the deed in question and that Amar Nath has impersonated for the complainant in this respect. Subsequent to the statement recorded under sections 200/202 Code of Cri­minal Procedure the accused were summoned for the offence under sections 419, 467, 468 and 471 Indian Penal Code. The statement of the complainant under section 244 of the Code has also been recorded. An application was made from the side of the complainant in the trial Court under section 294(1) of the Code. Section 294(1) provides that where any docu­ment is filed before any Court by the prosecution the particulars of every such document shall be included in a list and the accused or his counsel shall be called upon to admit or deny the genuineness of such document. The com­plainant had got summoned, from the office of the Sub-Registrar, the deed of sale impugned dated November 28, 1983. The application was made in respect of this document. To this there was objection raised from the side of the accused. The objection has been overruled by order of the court below dated August 29, 1985. Aggrieved the accused-applicants have approached this Court under Section 482 of the Code.

3. Learned counsel contends that the Munsif-Magistrate could not take cognizance in view of section 195(1)(b)(ii) of the Code since there is a shit instituted by the com­plainant in the civil court for the cancellation of the deed of sale dated November 28, 1983. It may not be doubted that though the offence under sections 419, 467 and 468 Indian Penal Code is not specifically referred to in section 195(1)(b)(ii), these are covered in view of the reference made therein to the offence described in section 463 of the Indian Penal Code and since the offence under these sections is said to arise from the same transaction vide State of Karnataka v. Hamareddy @ Vermareddy1, Smt. Maharaji and others v. Rama Shanker and another2, Ram Pal Singh v. State of U.P. and others3 and Gopalkrishna Menon and another v. D. Raja Reddy and another4.

4. The material fact, however, is that as the learned counsel for the applicants-accused admits, the suit in the civil court was instituted by the opposite-party No. 2, the complainant for cancellation of the deed of sale subsequent to the filing of the complaint dated December 23, 1983, meaning thereby, in other words, that on the date when the complaint was filed and also when cognizance was taken thereon by the Munsif-Magistrate, there was no suit in the civil court pending. The bar created under section 195(1)(b) is to the effect that no court shall take cognizance of any offence referred to therein 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. This, therefore, stands in the way of cognizance being taken by the criminal court in the particular situation arising as men­tioned thereunder. Since in the present the cognizance had been taken by the criminal court prior to the proceeding in the civil court coming into existence and before the document could be produced or given in evidence in the civil proceeding, it is obvious that section 195 (1)(b)(ii) is not attracted. Secondly from the material placed before me it is not indicated that in the civil court the impugned deed of sale bas been filed in original. From the order impugned dated August 29, 1985, it is clear on the contrary that the de