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2023 Supreme(Online)(KER) 29285
HIGH COURT OF KERALA
BECHU KURIAN THOMAS, J
JOSEPH P.V – Appellant
Versus
STATE OF KERALA – Respondent
Crl.MC 866 2023
V.JOHN SEBASTIAN, RALPH VISHNU CHANDRAN, RALPH RETI JOHN APPU, BABU SHIFNA, MUHAMMED SHUKKUR, GIRIDHAR, KRISHNA KUMAR, VISHNUMAYA, M.B.GEETHU, T.A.APOORVA, RAMKUMAR
The bar under Section 195(1)(b)(ii) Cr.P.C. applies only to forgeries committed after the document's court production.
Headnote:
Criminal - Forgery - Indian Penal Code 1860 - Sections 195(1)(b)(ii), 463, 471, 406, 420
Fact of the Case:
The petitioner alleged that the accused filed a false case against him using a forged promissory note. The initial police investigation found no grounds for action, but a protest complaint was filed. The court ruled that it could not take cognizance due to the provisions of Section 195(1)(b)(ii) Cr.P.C.
Finding of the Court:
The court determined that the Magistrate's order was incorrect because it misapplied the legal principles outlined regarding Section 195(1)(b)(ii), which only applies to forgeries committed after document production in court.
Issues: Whether the court can take cognizance of forgery complaints under the provisions of Section 195(1)(b)(ii) Cr.P.C. when the forgery occurred prior to document presentation in court.
Ratio Decidendi: The court concluded that Section 195(1)(b)(ii) does not bar cognizance when forgery happens before a document’s submission in court, diverging from the implications of that section as previously discussed in related case law.
Final Decision: The impugned order was set aside, directing the Magistrate to reconsider the matter according to law.
ORDER
Petitioner is the complainant in C.M.P.No.1715/2015 on the files of the Judicial First Class Magistrate’s Court, Aluva. The complainant alleges that offences under Sections 468, 471, 406 and Section 420 r/w Section 34 of the Indian Penal Code , 1860.
2. According to the complainant, the accused had, in furtherance of their common intention filed a false case against him before the Munsiff’s Court on the basis of a forged promissory note executed by the complainant in favour of the 4th accused.
3. Initially the complaint was referred for investigation to the Police and after investigation, a final report was filed, droping all further action. A protest complaint was thereafter preferred by the petitioner, in which the impugned order dated 27.10.2021 was passed stating that in view of the bar under Section 195 (1)(b)(ii) Cr.P.C, the court cannot take cognizance of an offence under Section 463 IPC punishable under Section 471 on a complaint filed by a private person and that there must be a written complaint, a court before which a forged document was produced or was given in evidence.
4. Undoubtedly the conclusion arrived at by the learned Magistrate is not contrary to them as held by the Supreme Court in Iqbal Singh Marwah and Another v. Meenakshi Marwah and Another [2005 (4) SCC 370], the bar under Section 195 (1)(b)(ii) would be attracted only in respect of documents where the forgery was committed after its production in court and not with respect to documents, which was a subject of forgery prior to its production. 5. In view of the above settled legal position, I am satisfied that the impugned order is irregular and is liable to be set aside. Accordingly, I set aside Annexure A3 order dated 27.10.2022 in C.M.P.No.1715/2015 and direct the Magistrate to consider the matter afresh, in accordance with law.
The Crl.M.C. is allowed as above.
sd/
BECHU KURIAN THOMAS JUDGE jm/
APPENDIX OF CRL.MC 866/2023 PETITIONER ANNEXURES Annexure1 CERTIFIED COPY OF THE COMPLAINT DATED
01.10.2015 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ALUVA Annexure2 TRUE COPY OF THE REPORT DATED 01.08.2019 FROM THE CENTRAL FORENSIC SCIENCE LABORATORY, HYDERABAD Annexure3 CERTIFIED COPY OF THE ORDER DATED 27.10.2021 IN CMP 1715/2015 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ALUVA
