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High Court Of Delhi
A.M.CHAKRABORTTY - Appellant
Versus
VED VRAT - Respondent
CRIMINAL APPEAL 167 of 1983
Decided On : 10/07/1985
Held, the civil court having taken seisin of the matter prior to the filing of the charge sheet by the police under Section 173 of the Code, there can be no room for doubt that the case would fall within the purview of stab clause (i) of clause (b) of Section 195(1).(Para 13)
Further held, the crucial date for the purpose of Section 195(1)(b) of the Code would be the date when the Court takes cognizance of the offence. It would apply if a judicial proceeding is in existence at the time when it is sought to prosecute the offender for the offence in I question. In the instant case, the judicial proceeding, viz. the suit instituted by respondent No. 1 for injunction, was already pending when the police report under Section 173 of the Code was submitted on 14th February, 1981. Hence, by no stretch of reasoning it can be said that no nexus between the fabrication of false evidence including conspiracy to create false evidence and the judicial proceeding in which the factum of tenancy is sought to be established exist. So, sub-clauses (i) and (iii) of clause (b) of Section 195(1) would be squarely attracted to the facts of the instant case and the prohibition contained therein to the cognizance of the offence on the basis of police report would operate so far as offence under Section 193 I.P.C. is concerned. (Para 14)
(ii) Indian Penal Code, Sections 192, 193, 448, 463, 464, 465 and 471 - Criminal Procedure Code, 1973 - Section 195(1)(b)(ii) -Respondent tenant alleged to have prepared documents to create tenancy of first floor-Complaint by petitioner - Civil suit for injunction by respondent - However, none of the alleged forged documents produced or given in evidence in a proceeding in any court - These documents seized by police during investigation - Whether the prohibition contained in section 195(1)(b)(ii) of the Code would apply? (No) (Para 15)
(iii) Indian Penal Code, 1860 - Sections 463, 464 and 465 – Forgery - Respondent, alleged to have forged documents (cheques) to create tenancy in their name-Forged cheques in question issued by respondent. No. 3 and he signed the same in his own name - Whether he is said to have committed any forgery within the meaning of sections 463, 464, and 465 I.P.C.? (No) (Para 18)
Held, the mere fact that the cheques contain false recitals/statements will not make them a false document. Needless to say that there is a Clear distinction between an offence of forgery and that of fabrication of false evidence. The gist of offence of forgery is the making of a false document while the gist of offence of fabricating false evidence is the procuring of false circumstances or the making of a document containing a false statement so that a judicial officer may form a wrong opinion in a judicial proceeding on the face of the false evidence. (Para 18)
(iv) Indian Penal Code, 1860 –Section 471 - Criminal Procedure Code, 1973 - Section 195(1)(b)(ii) - Respondent, alleged to have forged some documents (cheques) to create tenancy in his name - Pay in slips forged by some-one were used dishonestly for depositing the two cheques in question -Pay-in slips seized by police not produced in the civil suit filed by respondent - Whether the bar contained in section 195(1)(b)(ii) would be attracted against taking cognizance of the offence under section 471 I.P.C.? (No) (Para 19)
(v) Indian Penal Code, 1860 - Sections 378, 403, 441, 442 and 448 - Theft and criminal house trespass by the respondents-Key of premises was with petitioner, heir of landlady - Goods belonging to deceased, landlady lying in the premises - Lock found missing on 17th February, 1980 by petitioner Respondents dishonestly trying to create evidence to establish their tenancy on the premises - Whether offence under section 448 I.P.C. is proved against respondents? (Yes) (Para 20)
( 1 ) BOTH the above-mentioned revision petitions are directed against order dated 2nd February 1983 of an Additional Sessions Judge discharging the respondents in a police case under Sections 193, 448, 463, 464,465 and 471, read with Section 120-B, Indian Penal Code (for short pip ).
( 2 ) THE facts leading to these revision petitions in brief are that Miss Kamla Sen Gupta was the owner of property bearing No. A-5, Chitranjan Park, New Delhi. Dr. Ved Vrat-respondent No. I was her tenant in respect of the ground floor of the said property. Miss Kamla Sen Gupta died intestate on 18th December, 1977 leaving behind her brother Arun Kumar Sen Gupta, who was a lunatic and has since died, and four sisters, namely, Smt. Bina Gupta, Smt. Kalyani Sen. Smt. Lalita Ray and Smt. Bani Roy. None of the legal heirs of the deceased was living with her at the time of her death and they were all residing in Calcutta excepting Smt. Bani Roy, who was then living in North Carolina, U. S. A.
( 3 ) ON 19th February 1980, the petitioner-A. M. Chakraborty who was holding a power of attorney from all the above-mentioned heirs of the deceased, lodged a complaint at Police Station Kalkaji that in the absence of the owners of the properly in question he was looking after the same and the first floor of the house had been put under lock and key which had been handed over to him by one of the heirs. He had been visiting the property in question from time to time and although he had suspected that some unauthorised use was being made of the first floor by some persons, he used the find the same under lock and key whenever he went there. However, when he visited the premises in question on 17th February 1980 which was Sunday, he found that the lock of the first floor was missing. He was told by the occupants of the ground floor that they had taken the first floor on rent. However, when asked to disclose the name of the person from whom they had taken the first floor also to produce evidence, if any, in respect of the same, Shri Chakraborty was flatly told that it was none of his business and that the necessary information would be available at the police station. He further alleged that the unauthorised occupants of the first floor were the tenants of the ground floor against whom he had filed a suit for eviction on the ground of non-payment of rent and the same was pending in the court of an Additional Rent Controller. He asserted that Dr. Ved Vrat and his wife (Dr. (Mrs.) Prem Lata-respondent No. 2) were tenants only in respect of the ground floor and there was no question of their having taken on rent the first floor of the premises, as alleged. A case under Section 448 Indian Penal Code being FIR No. 284/80 was registered against respondents 1 and 2 on the basis of that complaint.
( 4 ) DURING the course of investigation, respondents 1 and 2 told the police that they had taken the first floor of house No. A-5, Chitranjan Park, on rent from one Shri SC. Dass Gupta, who was a relation of the deceased Miss Kamla Sen Gupta and was looking after the property in question after her death on behalf of her legal heirs. They further disclosed that two cheques dated 12th August 1978, one for Rs. 700. 00 representing rent for two months and the other for Rs. 350. 00 representing cost of the furniture sold to them, were delivered to S. C. Dass Gupta and they were inducted as tenants in the first floor with effect from the said date. They amplified that the two cheques mentioned above bore endorsements showing that the amount of Rs. 700. 00 was on account of rent for two months while the amount of Rs. 350. 00 was paid on account of cost of furniture etc.
( 5 ) ON completion of investigation the police filed a charge sheet against all the three respondents under Sections 195, 448, 467, 471 read with Section 120b, Indian Penal Code on the allegations that respondents 1 and 2 hatched a conspiracy along with A. K. Gupta-respondent No. 2, who is real brothe
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