TaxTMI 
TaxTMI 
2020 (9) TMI 1174
X X X X Extracts X X X X
X X X X Extracts X X X X
.....2007. M/s V.G. Quenim had shared a business relationship with the Appellants since the year 1990. However, disputes arose between the parties, as a result of which four suits, being Suit Nos.7, 8, 14 and 21 of 2000/A, were filed by the Appellants against M/s V.G. Quenim before the Civil Court at Bacholim. A fifth suit, being Suit No.1/2003/A, was filed by the late V.G. Quenim against the Appellants, which was withdrawn on 01.10.2007 unconditionally. The Respondents filed their Written Statements and Counter Claims in the said suits filed by the Appellants. 3. After withdrawal of the fifth suit, these criminal complaints were filed, inasmuch as the Appellants contended that in these proceedings, the Respondent/Accused had given false evidence, and had forged debit notes and made false entries in books of accounts. By two orders dated 01.10.2009, the learned Additional Sessions Judge-I in North Goa at Panaji, returned the complaints, stating that these complaints could only be filed in the Court before whom such proceedings were pending in which the alleged offences were committed. The complaints were then filed before the learned Judicial Magistrate First Class at Bicholim. 4. Af....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mplaints dated 11.08.2009. It was his case that debit notes had been created by the Respondents which were totally fraudulent, in order to buttress their case that certain amounts were owed by the Appellants to the Respondents. The learned counsel argued with great vehemence that this is why the fifth suit, viz., Suit No.1/2003/A was ultimately withdrawn on 01.10.2007, the Respondents having realised that the evidence given would completely belie their false case. The learned counsel then referred to the counter-affidavit filed to the revision petition before the learned Sessions Judge in order to buttress his plea that offences under the "forgery" sections of the IPC had been made out, which would all be the subject matter of a private complaint, and which do not have to follow the procedure set out by Section 340 CrPC. He relied very heavily upon Iqbal Singh Marwah (supra) to argue that the documents and books of accounts etc. that were forged, were all forged before they were taken in evidence in the Court proceedings, as a result of which the judgment squarely applied, and a private complaint, therefore, would be maintainable. He also argued that the High Court was wrong in sta....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed within the meaning of Sections 463 and 464 of the IPC, as the debit notes, even if dishonestly or fraudulently made, had to be made within the intention of causing it to be believed that such debit notes were made by a person whom the person making it knows that it was not made, which is not the case, as the debit notes were made on the sole proprietorship's letterhead, with the writing and signatures that were of the proprietor. He, therefore, argued that the forgery sections under the IPC do not get attracted at all to the complaints, which were correctly filed under Section 195 read with Section 340 of the CrPC. He contended that the counter-affidavit that was relied upon by the Appellants to the Respondent's revision applications was clearly an afterthought, in order to buttress a hopeless case. In any event, the complaints read as a whole, would make it clear that the entirety of the complaints were in, or in relation to, offences committed under Sections 191 and 192 of the IPC used/to be used in judicial proceedings and, therefore, fell squarely within Section 195(1)(b)(i) of the CrPC. He also argued that after conversion into a private complaint, the Magistrate issued pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....idence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate. (2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section. (4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y such officer of the Court as the Court may authorise in writing in this behalf. (4) In this section, "Court" has the same meaning as in section 195. 341. Appeal.-(1) Any person on whose application any Court other than a High Court has refused to make a complaint under sub-section (1) or sub-section (2) of section 340, or against whom such a complaint has been made by such Court, may appeal to the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195, and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint, or, as the case may be, making of the complaint which such former Court might have made under section 340, and, if it makes such complaint, the provisions of that section shall apply accordingly. (2) An order under this section, and subject to any such order, an order under section 340, shall be final, and shall not be subject to revision." "343. Procedure of Magistrate taking cognizance.-(1) A Magistrate to whom a complaint is made under section 340 or section 341 shall, notwithstanding anything contained in Chapter XV, proceed, as far as may be, to deal with the....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. Explanation 1.-A trial before a Court-martial is a judicial proceeding. Explanation 2.-An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice." "196. Using evidence known to be false.-Whoever corruptly uses or attempts to use as true or genuine evidence any evidence which he knows to be false or fabricated, shall be punished in the same manner as if he gave or fabricated false evidence." "463. Forgery.-Whoever makes any false document or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or impl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; and (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. However, Section 195 of the CrPC states that in the offences covered by it, no Court shall take cognizance except upon the complaint in writing of a public servant, insofar as the offences mentioned in sub-clause (1)(a) are concerned, and by the complaint in writing of the "Court" as defined by sub-section (3), insofar as the offences delineated in sub-clause (1)(b) are concerned. The reason for the enactment of Section 195 of the CrPC has been stated felicitously in Patel Laljibhai Somabhai v. State of Gujarat (1971) 2 SCC 376, as follows: "7. The underlying purpose of enacting Section 195(1)(b) and (c) and Section 476, seems to be to control the temptation on the part of the private parties considering themselves aggrieved by the offences mentioned in those sections to start criminal prosecutions on frivolous, vexatious or insufficient grounds inspired by a revengeful desire to harass or spite their opponents. These offences hav....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e than one occasion and they show that there is an absolute bar against the court taking seisin of the case except in the manner provided by the section." 12. Under Section 340 of the CrPC, the procedure in cases mentioned in Section 195 of the CrPC is set out. The Court may make a preliminary enquiry if it thinks necessary, and then record a finding to the effect that the provisions of Section 195(1)(b) of the CrPC are attracted, as a result of which the Court itself is then to make a complaint in writing, and send it to a Magistrate of the first class having jurisdiction. Where the Court declines to make any such complaint, an appeal is provided under Section 341 of the CrPC. The appellate power of the Court under Section 341 can also be invoked, insofar as a complaint has been made under Section 340, by the person so aggrieved. By Section 341(2), the appellate order shall be final and shall not be subject to revision. Finally, a Magistrate to whom a complaint is made under these sections shall proceed to deal with the case as if it were instituted on a police report - vide Section 343(1). 13. The point forcefully argued by the learned counsel on behalf of the Appellants is tha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....urpose specified in Section 479-A Criminal Procedure Code, the offence of forgery is not included. In any event the offence penalised under Section 471 Indian Penal Code can never be covered by sub-section (1) of Section 479-A. Therefore for taking proceeding against a person who is found to have used a false document dishonestly or fraudulently in any judicial proceeding, resort may only be made to Section 476 Code of Criminal Procedure." 15. In Dr. S. Dutt v. State of Uttar Pradesh (1966) 1 SCR 493, the question arose in the context of an expert witness (i.e. the Appellant before the Supreme Court) who produced a diploma before the Sessions Court from the Imperial College of Science and Technology in London, to the effect that he had specialised in the subject of criminology. The prosecution applied to the Sessions Judge under Section 195 of the CrPC for prosecution of Dr. Dutt under Section 193 of the IPC. This application was rejected. Two days after its rejection, the private complainant lodged a report at a police station alleging that Dr. Dutt had committed an offence under Section 465, 466 and 471 of the IPC, stating that the diploma produced was forged, and that Dr. Dutt ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....let us assume falsely about his training, he committed an offence under Section 193. Again, when Dr Dutt used the diploma as genuine his conduct was corrupt, whether or not it was dishonest or fraudulent." (at pages 499-500) "It would thus be seen that the action of Dr Dutt was covered by Sections 192 and 196 of the Penal Code. If Dr Dutt gave false evidence in court or if he fabricated false evidence the offence under Section 193 was clearly committed. If he used fabricated evidence an offence under Section 196 was committed by him. These offences would have required a complaint in writing of the Sessions Judge before cognizance could be taken." (at page 501) "We are, therefore, satisfied that Dr Dutt's conduct does not come within Section 471. On the other hand, it falls within Section 196 which casts its net wider in the interest of the purity of administration of justice. It may be noted that an offence under Section 196 of the Penal Code is a far more serious offence than the offence under Sections 465/471. The former is punishable with imprisonment upto seven years and fine while the latter is punishable with imprisonment upto two years or with fine. In this conne....
X X X X Extracts X X X X
X X X X Extracts X X X X
....may also fall within s. 192. It lays down inter alia that a person is said to fabricate false evidence if he makes a document containing a false statement intending that such false statement may appear in evidence in a judicial proceeding and so appearing in evidence may cause any person who, in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding. When Baban Singh and Dharichhan Kuer made declarations in their affidavits which were tendered in the High Court to be taken into consideration, they intended the statements to appear in evidence in a judicial proceeding, and so appearing, to cause the court to entertain an erroneous opinion regarding the compromise. In this way their offence came within the words of ss.191/192 rather than s.199 of the Indian Penal Code. They were thus prima facie guilty of an offence of giving false evidence or of fabricating false evidence for the purpose of being used in a judicial proceeding. Section 479-A lays down a special procedure which applies to persons who appear as witnesses before civil, revenue or criminal courts and do one of two things: (....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and does not specify the person or the kind of document. It may be any person and the fabricated evidence may be in any form. Section 218 on the other hand deals with the intentional preparation of a false record by a public servant with the object of saving or injuring any person or property. The difference between the two sections is clearly noticeable. Section 192 deals with judicial proceeding and the false evidence is intended to be used in a judicial proceeding. Section 218 deals with public servants and there the gist is the intentional preparation of a false record with a view of saving or injuring any person or property. This need not have relation to a judicial proceeding as such." 18. In holding that the alleged offence committed by one Ahlmad would fall under Section 192 and not under Section 218 of the IPC, the Court then went on to observe (at pages 830-831): "It will appear from this that the alleged offence committed by the Ahlmad was clearly in or in relation to a proceeding in Court. In fact he made an incorrect entry about a case actually in Court with the intention that the date of the institution of the proceeding may be taken to be November 9, 1962 althoug....
X X X X Extracts X X X X
X X X X Extracts X X X X
....for consideration before the Madras High Court. The High Court held: "8. We have no doubt whatever that the learned Judge, (Kailasam, J.), was correct in his view that even the second suit has to be interpreted as within the scope of the words employed in S. 57(1) namely, "In every suit or proceeding relating to title to Wakf property". There is ample judicial authority for the view that such words as "relating to" or "in relation to" are words of comprehensiveness which might both have a direct significance as well as an indirect significance, depending on the context. They are not words of restrictive content and ought not to be so construed. The matter has come up for judicial determination in more than one instance. The case in Compagnie Financiec Dae Pacifique v. Peruvian Guano Co, is of great interest, on this particular aspect and the judgment of Brett, L.J., expounds the interpretation of O. 31, R. 12 of the Rules of the Supreme Court, 1875, in the context of the phrase "material to any matter in question in the action". Brett, L.J., observed that this could both be direct as well as indirect in consequences and according to the learned Judge the test was this (at page 63....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ts absence in Section 195(1)(b)(ii) are the words "or in relation to", making it clear that if the provisions of Section 195(1)(b)(ii) are attracted, then the offence alleged to have been committed must be committed in respect of a document that is custodia legis, and not an offence that may have occurred prior to the document being introduced in court proceedings. Indeed, it is this distinction that is vital in understanding the sheet anchor of the Appellant's case namely, this Court's judgment in Iqbal Singh Marwah (supra). 23. In Iqbal Singh Marwah (supra), a 5-Judge Bench was constituted in view of a conflict between decisions of this Court as follows: "2. In view of conflict of opinion between two decisions of this Court, each rendered by a Bench of three learned Judges in Surjit Singh v. Balbir Singh [(1996) 3 SCC 533] and Sachida Nand Singh v. State of Bihar [(1998) 2 SCC 493] regarding interpretation of Section 195(1)(b)(ii) of the Code of Criminal Procedure, 1973 (for short "CrPC"), this appeal has been placed before the present Bench." 24. The Court first spoke of the broad scheme of Section 195 of the CrPC, which deals with three distinct categories of offences, and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....(i) and consequently with the scheme of Section 195 CrPC. This indicates that clause (b)(ii) contemplates a situation where the offences enumerated therein are committed with respect to a document subsequent to its production or giving in evidence in a proceeding in any court." 25. The Chapter heading of Chapter XXVI of the CrPC, which contains Sections 340 and 341 was then referred to - the heading reading "Provisions as to Offences Affecting the Administration of Justice", which according to the Court also indicated that the offences mentioned in Section 195(1)(b)(ii) are offences which directly affect the administration of justice. After referring to various judgments, the Court then explained the difference between Section 195(1)(c) of the Code of Criminal Procedure, 1898 and Section 195(1)(b)(ii) of the CrPC, 1973 as follows: "19. As mentioned earlier, the words "by a party to any proceeding in any court" occurring in Section 195(1)(c) of the old Code have been omitted in Section 195(1)(b)(ii) CrPC. Why these words were deleted in the corresponding provision of the Code of Criminal Procedure, 1973 will be apparent from the 41st Report of the Law Commission which said as und....
X X X X Extracts X X X X
X X X X Extracts X X X X
....should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the court may not consider it expedient in the interest of justice to make a complaint. The broad view of clause (b)(ii), as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged document remediless. Any interpretation which leads to a situation where a victim of a crime is rendered remediless, has to be discarded." 27. Paragraph 25 of the judg....
X X X X Extracts X X X X
X X X X Extracts X X X X
....arned Additional Sessions Judge and the High Court is perfectly correct and calls for no interference." 29.Thus, Iqbal Singh Marwah (supra) is clear authority for the proposition that in cases which fall under Section 195(1)(b)(ii) of the CrPC, the document that is said to have been forged should be custodia legis after which the forgery takes place. That this judgment has been followed in several subsequent judgments is beyond cavil - see Mahesh Chand Sharma v. State of U.P and Ors. (2009) 15 SCC 519 (at paragraphs 2123); C.P. Subhash v. Inspector of Police, Chennai and Ors. (2013) 11 SCC 559 (at paragraphs 12 and 13); Kishorbhai Gandubhai Pethani v. State of Gujarat and Anr. (2014) 13 SCC 539 (at paragraphs 14 and 15) and Vishnu Chandru Gaonkar v. N.M. Dessai (2018) 5 SCC 422 (at paragraphs 14 and 17). 30. However, Shri Mishra, undaunted by the fact that Iqbal Singh Marwah (supra) and its progeny are all cases relatable to Section 195(1)(b)(ii) of the CrPC, has argued that the same reasoning ought to apply to cases falling under Section 195(1)(b)(i) of the CrPC. First and foremost, as has been pointed out hereinabove, every judgment that follows Iqbal Singh Marwah (supra) is in....
X X X X Extracts X X X X
X X X X Extracts X X X X
.....Likewise, in a recent judgment in Narendra Kumar Srivastava v. State of Bihar and Ors. (2019) 3 SCC 318, the Court was concerned with false affidavits that had been prepared/forged outside the Court. This being so, the question that arose before the Court was whether the Magistrate was justified in taking cognizance of an offence punishable under Section 193 of the IPC on the basis of a private complaint. This Court held: "13. It is clear from sub-section (1)(b) of Section 195 CrPC that the section deals with two separate set of offences: (i) of any offence punishable under Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228 IPC, when such offence is alleged to have been committed in, or in relation to, any proceeding in any court; [Section 195(1)(b)(i)] (ii) of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476 IPC, 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. [Section 195(1)(b)(ii)]. 14. On the reading of these sections, it can be easily seen that the offences under Section 195(1)(b)(i) and Section 195(....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... offence (it should be either an offence described in Section 463 or any other offence punishable under Sections 471, 475 and 476 IPC) has been committed. Second is that such offence should have been committed in respect of a document produced or given in evidence in a proceeding in any court. There is no dispute before us that if forgery has been committed while the document was in the custody of a court, then prosecution can be launched only with a complaint made by that court. There is also no dispute that if forgery was committed with a document which has not been produced in a court then the prosecution would lie at the instance of any person. If so, will its production in a court make all the difference? *** 23. The sequitur of the above discussion is that the bar contained in Section 195(1)(b)(ii) of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a court. Accordingly we dismiss this appeal." 23. In Sachida Nand Singh, this Court had dealt with Section 195(1)(b)(ii) CrPC unlike the present case which is covered by the preceding clause of the section. The category of offences which fall under Section 1....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... given in evidence in the above proceedings. All the above suits/proceedings are within the jurisdiction of this Hon'ble Court." 35. The complaint then refers to false statements made by the Respondents/accused in their Written Statements and Counter Claims in the first four suits, which are pleadings before the Court, and then goes on to state: "14. The Complainants state that both the Accused No. 2 and Accused No. 3 have made declarations on a subject which they are bound by law and has, in fact, made Statements, which are false and which both the Accused know or believe to be false or does not believe it to be true, which is also applicable to the Accused No. 4 to 10 herein. The Accused 2 has given false evidence. Moreover, circumstances are caused by the Accused 2 to making false entries in any books or record intending that such circumstance, false entry or false statements does appear in evidence in a judicial proceedings before the Hon'ble Civil Judge Senior Division at Bicholim and, therefore, the false entry and false statements so appearing in evidence has caused persons in such proceedings to form a opinion upon the evidence or entertain an erroneous opinion t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....agistrate, or if the alleged offence is non- bailable and the Court thinks it necessary so to do, send the Accused in custody to such Magistrate; and (e) bind over any person to appear and give evidence before such Magistrate." 38. So far as the second complaint is concerned, like the first complaint, this was also stated to be an application under Sections 340 read with 195 of the CrPC as follows: "3. This Application is made under the provisions of Section 340 read with section 195 of the Cr.PC, 1973, (hereinafter called for short the Said Code") seeking an order of inquiry into an offence committed by Accused under the provisions of Section 192 and 193 of the Indian Penal Code, 1860.(hereinafter called "Penal Code") An offence under these provisions have been committed by the Accused in relation to the proceedings in the Court of the Civil Judge Senior Division at Bicholim i.e. in Spl. Civil Suits No. 7/2000/A, 8/2000/A, 14/2000/A, 21/2000/A (first 4 Suits) and Spl. Civil Suit No. 1/2003/A (the 5th Suit, which stands withdrawn after completion of evidence) An offence under the abovesaid provisions is committed in respect of documents in the above suits for which a separate ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to various false affidavits/statements made by the accused, as follows: "In such circumstances, he has declared on false affidavits/statements in all 5 suits being Spl. Civil Suits No. 7/2000/A, 8/2000/A, 14/2000/A, 21/2000/A and 1/2003/A respectively. He has also fabricated documents, false entries in his books of account, in order to file his counter claims in Spl. Civil Suits No. 7/2000/A and 8/2000/A. The false entries and the fabricated documents created by the Accused No. 2 are as follows: (i) Forged a Debit Note dated 09.03.2000 with statements annexed thereto and manipulated Ledger Account and claimed an amount of Rs. 1,88,27,796/- from the Complainant No. 1 in their counter claim which are at EXHIBIT-C Colly herein. (ii) Manipulated ledger extract of the Account of the Complainant No.1 appearing in the audited books of account of the Accused No.1 on the basis of the counterclaim for Rs. 1,88,27,796/- filed by the Accused in Spl. Civil Suit No.7/2000/A annexed as Exh. 'A' to the Written Statement and counterclaim dated 10.03.2000 at EXHIBIT-F Colly herein. (iii) Forged a Debit Note dated 31 March, 2000 for an amount of Rs. 76, 19,869/- with statements annexed th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Accused No. 3 have made a declarations on a subject which they are bound by law and has, in fact, made Statements, which are false and which both the Accused know or believe to be false or does not believe it to be true, which is also applicable to the Accused No.4 to 10 herein. The Accused No. 2 has given false evidence. Moreover, circumstances are caused by the Accused 2 and 3 to making false entries in any books or record intending that such circumstance, false entry or false statements does appear in evidence in a judicial proceedings before the Hon'ble Civil Judge Senior Division at Bicholim and, therefore, the false entry and false statements so appearing in evidence has caused persons in such proceedings to form a opinion upon the evidence or entertain an erroneous opinion touching any point material to the result of such proceedings. 16. The Accused No.2 and 4 to 10 herein respectively joined as LR's upon the death of Mr. V.G. Quenim the then Proprietor of the Accused No.1 on 20.07.2007, in first 4 suits. Similarly, in the 5 suit the Accused Nos.2 to 10 herein respectively joined as LR's therein. 17. After the Accused No.2 to 10 abovenamed were brought on re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ties in their way, the Appellants suddenly changed course, and applied to the Magistrate vide application dated 09.05.2011 to convert what was a properly drafted application under Section 195 read with section 340 of the CrPC, into a private complaint. A reading of the two complaints leaves no manner of doubt that they have been drafted keeping the ingredients of Sections 191 and 192 of the IPC alone in mind - the only argument from the Appellants now being that since certain debit notes were forged prior to their being introduced in the court proceedings, not only would the ratio in Iqbal Singh Marwah (supra) apply, but also that the ingredients of the "forgery" sections of the IPC have now been made out. While it is important to bear in mind that in genuine cases where the ingredients of forgery as defined in Section 463 of the IPC have been made out, and that therefore, a private complainant should not be left remediless, yet it is equally important to bear in mind the admonition laid down in an early judgment of this Court. Thus, in Basir-ulHuq and Ors. v. State of West Bengal (1953) SCR 836, this Court cautioned (at page 846): "Though, in our judgment, Section 195 does not b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to 7 years, and shall also be liable to fine. 'Fabrication of false evidence' is defined in Section 192. The relevant portion of it is: Whoever causes any circumstance to exist intending that such circumstance may appear in evidence in a judicial proceeding and that such circumstance may cause any person who in such proceeding is to form an opinion upon the evidence to entertain an erroneous opinion touching any point material to the result of such proceeding is said 'to fabricate false evidence'. The effect of the allegations in the complaint preferred by the complainant is that the petitioner has caused this will to come into existence intending that such will may cause the judge before whom the suit is filed to form an opinion that the will is a genuine one and, therefore, his minor daughter is entitled to the property. The allegation, therefore, in the complaint will undoubtedly fall under Section 192 IPC. It will, therefore, amount to an offence under Section 193 IPC, i.e. fabricating false evidence for the purpose of being used in the jud....
X X X X Extracts X X X X
X X X X Extracts X X X X
....king of the debit notes by the Respondents in order to falsely claim amounts owing to them would fall within the "First" category under Section 464. 47. The "First" category of Section 464 makes it clear that anyone who dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, can be said to make a false document. Several judgments of this Court have held that assuming dishonesty or fraud, the second ingredient of the "First" category of Section 464 is that the document itself must be made by or by the authority of a person by whom or by whose authority the person who creates the forgery knows that it was not made. If the second ingredient is found missing, the offence of forgery is not made out at all. Thus, in Devendra v. State of U.P. (2009) 7 SCC 495, this Court set out the following facts: "5. On or about 22-8-1997, a sale deed was executed by Appellants 1 and 2 in favour of Appellants 3 and 4. On 24-8-2005, a suit was filed by Respondent 2 and others for cancelling the aforesaid deed of sale d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g it to be believed that such document inter alia was made by the authority of a person by whom or by whose authority he knows that it was not made. 20. The appellants are the owners of the property. They have executed a sale deed. Execution of the deed of sale is not denied. If somebody is aggrieved by the false assertions made in the said sale deed, it would be the vendees and not the co-sharers. The appellants have not been alleged to be guilty of creating any false document." 49. In Mohd. Ibrahim v. State of Bihar (2009) 8 SCC 751, it was held that the execution of a sale deed by somebody in his own name qua property which is not his does not constitute making a "false document" under Section 464 of the IPC, because he does not impersonate the owner or falsely claim to be authorised or empowered by the owner to execute the deed on the owner's behalf. The Court held: "13. The condition precedent for an offence under Sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the first accused, in execu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of "false documents", it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. 17. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ers a document after it has been made. There has been no allegation of alteration of the voucher in question after they have been made. Therefore, in our opinion the second criterion of the said section is also not applicable to the present case. The third and final condition of Section 464 deals with a document, signed by a person who due to his mental capacity does not know the contents of the documents which were made i.e. because of intoxication or unsoundness of mind, etc. Such is also not the case before us. Indisputably therefore the accused before us could not have been convicted with the making of a false document. 165. The learned Special Judge, therefore, in our opinion, erred in holding that the accused had prepared a false document, which clearly, having regard to the provisions of the law, could not have been done. 166. Further, the offence of forgery deals with making of a false document with the specific intentions enumerated therein. The said section has been reproduced below. "463. Forgery.-Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any pe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d into private complaints, thereby attempting to fit a square peg in a round role. This has correctly been interdicted by the Sessions Court in revision, and by the High Court judgment under appeal. 54. Shri Mishra then argued that Surjit Singh (supra) had been relied upon by the High Court, which judgment was overruled in Iqbal Singh Marwah (supra). Though this is correct, the reasoning that Iqbal Singh Marwah (supra) is not applicable to the facts of the present case, to which the provisions of Section 195(1)(b)(ii) of the CrPC do not apply, is a finding made by the High Court in the impugned judgment which is unexceptional. For this reason also, incorrect reliance based on Surjit Singh (supra) would not avail the Appellants in the present case. 55. Shri Mishra then relied upon Ram Dhan v. State of U.P. & Anr. (2012) 5 SCC 536. In this case, the real ratio of the case can be found in paragraphs 6 to 8, in which this Court held: "6. We find no merit in the petition. After investigation, chargesheet has been filed against the petitioner and others under Sections 177, 181, 182 and 195 IPC. The petitioner has suppressed the material fact and has not disclosed anywhere in this pet....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e fabrication of false evidence takes place only inside the court as it can also be fabricated outside the court though has been used in the court. Therefore, it may also not attract the provisions of Section 195 CrPC. (See Sachida Nand Singh v. State of Bihar [(1998) 2 SCC 493]) 11. Mr Ashok Kumar Sharma, learned counsel appearing for the petitioner, has placed a very heavy reliance on the judgment of this Court in Abdul Rehman v. K.M. Anees-Ul-Haq [(2011) 10 SCC 696]. However, it is evident from the judgment relied upon that the judgment in Sachida Nand Singh, which is of a larger Bench, has not been brought to the notice of the Court. (See also Balasubramaniam v. State [(2002) 7 SCC 649]) 12. The petitioner is guilty of suppressing the material fact. Admittedly, filing of successive petitions before the court amounts to abuse of the process of the court. Thus, we are not inclined to examine the issue any further. 13. Considering the composite nature of the offences, we do not see any cogent reason to interfere with the impugned order. The petition lacks merit and is, accordingly, dismissed." 57. From this case it is impossible to cull out a ratio that insofar as an offenc....