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1988 Supreme(Gau) 188
GAUHATI HIGH COURT
S.Haque, J.
Subh Karan Choraria -Appellant
Versus
Jadunandan Sharma -Respondent
Criminal Revision No. 387 of 1988
Decided On : 30-09-1988
K.K.Bhatra, S.S.Sharma, O.P.Bhati
The bar under section 195 (1) (b) (ii) of the CrPC applies only to the original document and not to a copy or photostat copy of that document. The criminal court can take cognizance of the offense of forgery on the person producing the original document, only on the complaint of the court where the document is produced to put in evidence.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 195 (1) (B) (II) - FORGERY - PRODUCTION OF ORIGINAL DOCUMENT IN CIVIL COURT AFTER COGNIZANCE TAKEN BY MAGISTRATE - NO BAR TO MAINTENANCE OF COMPLAINT CASE - SECTION 195 (1) (B) (II) NOT APPLICABLE.
Fact of the Case:
The accused petitioners filed a revision application for quashing the proceedings of a criminal case alleging forgery, forgery for cheating, and using a forged document as genuine. The complaint was filed by the opposite party, who alleged that the rent receipt produced by the accused petitioners in a civil suit was forged. The accused petitioners argued that the criminal court was barred from taking cognizance of the offenses under section 195 (1) (b) (ii) of the Code of Criminal Procedure (CrPC) since the alleged forged document was filed in the civil court.
Finding of the Court:
The court held that the bar under section 195 (1) (b) (ii) of the CrPC applies only to the original document and not to a copy or photostat copy of that document. The criminal court can take cognizance of the offense of forgery on the person producing the original document, only on the complaint of the court where the document is produced to put in evidence. A court in which a copy of an alleged forged document is produced cannot prosecute the person producing the same on the basis of that copy.
Issues: Whether the criminal court was barred from taking cognizance of the offenses under section 195 (1) (b) (ii) of the CrPC since the alleged forged document was filed in the civil court.
Ratio Decidendi: The court relied on the Supreme Court decisions in Krishna v. D. Raja Reddy and Sushil Kumar v. State of Haryana to hold that the bar under section 195 (1) (b) (ii) of the CrPC does not apply where the accused plaintiff produced/filed the copy of a document in court (civil) withholding the original with him. In such circumstances, a private complainant can prosecute such a person on the allegation that the original document is forged and the bar for the criminal court under section 195 (1) (b) (ii) would not be applicable.
Final Decision: The court rejected the revision application and held that the cognizance taken by the magistrate for the offenses in the complaint case was not barred under section 195 (1) (b) (ii) of the CrPC. The court also held that the subsequent production of the original document by the accused petitioners in the civil court did not adversely affect the legality of the proceedings of the complaint case.
2. The statements/allegations in the complaint petition coupled with the statement of the complainant under section 200 of the Cr. P. C.. have focused a prima facie case to form opinion by the Magistrate, taking cognizance of the alleged offence, of having sufficient grounds for proceeding.
3. The only question for consideration is whether there was bar under section 195 (1) (b) (ii) for the Criminal Court to take cognizance of the offences under section 465/468/471 of the I. P. C. (Forgery, Forgery for cheating and using forged document as genuine) on the complaint of Sri Jadunandan Sharma, where the copy of the alleged forged document was filed/produced in the Civil Court in connection with a suit.
4. The petitioner No. 2 as an attorney for petitioner No. 1 filed a photostat copy of rent receipt dated 7. 7.88 in Title Suit No. 65 of 1988 and Misc. (J) Case No. 97 of 1988 before the Court of Munsiff No. 2, Gauhati claiming that the opposite party Jadunandan Sharma (defendant of the suit) granted the said rent receipt to the petitioner No, 1, and on the basis of that rent receipt prayed for declaration that the petitioner No. 1 (Plaintiff) is the tenant under the opposite party in respect of the suit house/holding of the Title Suit, No. 70 of 1977 and also for injunction restraining the opposite party from executing the decree of the Title Suit No. 70 of 1977. According to the complainant the said rent receipt dated 7. 7. 1988 was forged and filed the Criminal Complaint Case No. 1066 c of 1988. Learned Magistrate by order dated 20. 8. 1988 issued process against the accused petitioner with search warrant for seizure of the original rent receipt dated 7.7. 1988.
5. It may be mentioned here that the opposite party as plaintiff of Title Suit No. 70 of 1977 obtained decree for ejectment althrough upto Supreme Court against M/S. Hans Kumar Jain and others and the Title Execution Case No. 9 of 1982 is pending in the Court of Assistant District Judge, Guwahati.
6. Learned counsel Mr. O. P. Bhati for the accused petitioner submits that the document ( rent receipt), alleged to be forged had been produced/filed in the suit for the purpose of giving evidence in the proceeding of the suit/case in Civil Court, so the Court of Magistrate barred in taking cognizance except on the complaint in writing by the Court of Munsiff, Gauhati, and that the present complaint case by the opposite party/complainant was of maintainable. Mr. Bhati refers AIR 1983 SC 1053 Krishna vs. ' D. Raja Reddy in support of his submission. Mr. K. K. Bhatra, learned counsel for the opposite party-complainant submits that the original forged document (rent receipt ) had not been filed/ produced before the Court in the suit by the accused plaintiffs; and that production of a photostat copy can not be a bar for taking cognizance by Magistrate under section 195 (1) (b) (ii) on a complaint by private person. Mr. Bhatra refers the case Sushil Kumar vs. State of Haryana reported in AIR 1988 SC 419 in support of the submission. These submissions by the counsel of both sides were made on 20.9.1988.
7. It was held by the Supreme Court (AIR 1983 SC 1053) that a private complaint for forgery of a document, produced in Criminal Court, would not be sustainable for the bar under section 195 (1) (d) (ii) and the Court in which the forged document had been filed was competent to lodge complaint for prosecution. In that case the accused (plaintiff) in a suit produced the original contract along with an original money receipt before the Civil Court and the allegation by the complainant (1st defendant) in the criminal complaint case was that the money receipt was forged and in such circumstances where the original money receipt was produced in Court for t
