Gopalakrishna Menon & ANR Vs. D.
Raja Reddy & ANR  INSC 113 (5 September 1983)
MISRA RANGNATH MISRA RANGNATH DESAI, D.A.
CITATION: 1983 AIR 1053 1983 SCR (3) 836 1983
SCC (4) 240 1983 SCALE (2)236
Code of Criminal procedure, 1973-S. 195(1)(b)(ii)-Scope
of-In absence of complaint from appropriate civil court prosecution for offence
punishable under s. 467 I.P.C. not sustainable.
Indian Penal Code-S. 467 read with s.
463-Scope of- offence punishable under. s. 467 is offence described in s. 463.
The appellants filed a civil suit against the
respondents for recovery of certain amount of money and produced some original
documents with the plaint. The first respondent filed a complaint against the
appellants alleging forgery of his signature on one such document and thereby
commission or offences punishable under sections 467 and 471 I.P.C. The
appellants objected to maintainability of the criminal action and later moved
the High Court for quashing the said proceedings. The appellants contended that
in the absence of complaint from the civil court the prosecution was barred in
view of s. 195 (1)(b)(ii) of the Code of Criminal Procedure. The High Court
dismissed the application and observed that s. 463 I.P.C. cannot be construed
to include s. 467.
Allowing the appeal,
HELD: The prosecution would not be
sustainable. [842 B] Section 195(1)(b)(ii) of the Code of Criminal Procedure
provides that no Court shall take cognizance of any offence described in s.
463... Of the Penal Code, when such offence is alleged to have been committed
in respect of a document produced .. in a proceeding in any Court ... except on
the complaint in writing of that Court. Section 463 of the Penal Code in a
sense defines the offence of forgery and the offence which is made punishable
under s. 467 is in respect of an offence described in s. 463. Once it is
accepted that s. 463 defines forgery and s. 467 punishes forgery of a
particular category, the provision in s. 195(l)(b)(ii) of the Code of Criminal
Procedure would immediately be attracted and on the basis that the offence
punishable under s. 467 of the Penal Code is an offence described in s. 463, in
the absence of a complaint by the Court the prosecution would not be
[839 E-G, 840 D, E, H, 841 A-B] Patel
Laljibhal Somabhai v. The State of Gujarat,  Suppl. S.C.R. 834; and S. L.
Goswami v. High Court of Madhya Pradesh ar Jabalpur,  2 S.C.R. 385
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 307 of 1983 Appeal by Special leave from the Judgment and Order
dated the 8th November, 1982 of the Andhra Pradesh High Court in Criminal
Miscellaneous Petition No. 1936 of 1982.
A. Subba Rao for the Appellant.
B. Kanta Rao for the Respondent.
The Judgment of the Court was delivered by
RANGANATH MISRA, J.- The short question arising in this appeal by special leave
is whether in the absence of necessary complaint by the Civil Court where a
money receipt alleged to have been forged was produced, prosecution for
offences punishable under sections 467 and 471 read with s.
34 of the Indian Penal Code would be
maintainable. The accused are the appellants and they challenge the dismissal
of their application under section 482 of the Code of Criminal Procedure
('Code' for short) by the High Court of Andhra Pradesh.
The appellants are father and son
respectively. They took a printing press from the 1st respondent in terms of an
agreement dated December 3, 1980, with a view to carrying on the printing
business. The agreement stipulated that the appellants would have to deposit
Rs. 20,000 with the 1st respondent and pay Rs. 500 p.m. as also 50% of the net
profits to 1st respondent. Dispute arose between the parties over the
compliance of the terms of the agreement whereupon the 1st respondent filed
against the appellants O.S. No. 609/81 for mandatory injunction and O.S. No.
1140/81 for recovery of damages. Appellants filed O.S. No. 358/81 for refund of
Rs. 20,000 claimed to have been deposited with 1st respondent and for recovery
of RS. 8638 on the footing that the same had been paid to 1st respondent by
cheques and in cash. Along with their plaint appellants produced the original
contract as also the money receipt for Rs. 20,000 in support of the claim in
the suit. After production of the money receipt in Court, 1st respondent filed
a complaint against the appellants alleging forgery of his signature on the
money receipt and thereby commission of offences punishable under sections 467
and 471, I.P.C. On receiving summonses from the Court, the appellants objected
to maintainability of the criminal action and 838 later move the High Court of
Andhra Pradesh for quashing the said proceedings by contending that in the
absence of complaint from the Court the prosecution was barred in view of s. 195
(1) (b) (ii) of the Code. In support of this contention reliance was placed on
s. 340 of the Code. The High Court referred to the provisions of ss. 463 465
467 471 and 474 of the Penal Code and observed.
"From the above provisions, It is quite
manifest that the offence which is mentioned in the complaint carries greater
punishment, namely, 10 years imprisonment, whereas under s. 463, I.P.C. the
punishment is infinitely lesser than the one under s. 467, namely 2 years of
fine or both. That apart, in a case reported in 1979 Crl. L.R. at 228, it has
been held by the Gujarat High Court that the offences laid down under ss. 474
and 471, I.P.C. are distinct. In that case it was contended that a complaint by
A to police under s. 474 that was in possession of forged documents with
intention to use them in Court proceedings and thereafter producing documents
in Court and thereby committing offence under s. 471 did not wipe out the
offence under s. 474. The High Court held under these circumstances that the Magistrate
can proceed with case under s. 474 against grounding the reason that s. 195 (1)
(b) (ii) is not attracted.
The penal provisions as it is fairly settled
ought to be interpreted very strictly and therefore on the foregoing analysis I
have no hesitation in holding that s. 463 cannot be construed to include s. 467
as well and, therefore, certainly it is competent for the Magistrate to take
cognizance of and try the same as it is needless to follow the case. Hence the
contention on the basis of the provisions in s. 340 of the Code of Criminal
Procedure fails and the same is rejected".
There is no dispute that the alleged forged
document was produced in the suit brought by the appellants. Section 340 of the
"340. (1) When, upon an application made
to it in this behalf or otherwise, any Court is of opinion that it is expedient
in the interest of justice that an inquiry 839 should be made into any offence
referred to in clause (b) of sub-section (1) of section 195, which appears to
have been committed in or in relation to a proceeding in that Court or, as the
case may be, in respect of a document produced or given in evidence in a
proceeding in that Court, such Court may, after such preliminary inquiry, if
any, as it thinks necessary- (a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the class
(d) take sufficient security for the
appearance of the accused before such Magistrate, 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".
The relevant part of s. 195 referred to in s.
340 of the Code reads thus:
"195. (1) No Court shall take
cognizance- X X X X (b)(ii) of any offence described in section 463, or
punishable under section 471, section 475 or section 476, of the said Code,
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, ... except on the
complaint in writing of that Court, or of some other Court to which that Court
is subordinate". (underlining is ours).
If s. 195 (1) (b) (ii) is attracted to the
facts of the present case, in the absence of a complaint in writing of the
Civil Court where the alleged forged receipt has been produced, taking of
cognizance of the offence would be bad in law and the prosecution being not
maintainable, there would be absolutely no justification to harass 840 the
appellants by allowing prosecution to have a full dressed trial. Section 195
(1) (b) (ii) uses two different expressions: in regard to s. 463 of the Indian
Penal Code it says, "offence described", while in regard to ss. 471 and
475 or 476 of the I.P.C. it says, "punishable". The High Court has
not made any reference to s. 471 of I.P.C. while rejecting the submissions of
the appellants apparently because s. 471 in terms has been mentioned in the
So far as s. 463 is concerned, the High Court
has taken the view as we have already indicated that "section 463 cannot
be construed to include s. 467". Section 463 of the I.P.C.
"463. Forgery-Whoever makes any false
document or part of a document, 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 implied contract,
or with intent to commit fraud or that fraud may be committed, commits forgery".
It is the opening section of Chapter XVIII of
the Penal Code dealing with offences relating to documents and to property
marks. This opening section in a sense defines the offence of forgery. Section
467 of the Penal Code provides:
"467. Forgery of valuable security,
will, etc.- Whoever forges a document which purports to be a valuable security
or a will, or an authority to adopt a son, or which purports to give authority
to any person to make or transfer any valuable security, or to receive the principal,
interest, or dividends thereon, or to receive or deliver any money, movable
property, or valuable security, or any document purporting to be an acquittance
or receipt acknowledging the payment of money, or an acquittance or receipt for
the delivery of any movable property or valuable security, shall be punished
with imprisonment for life, or with imprisonment of either description for a
term which may extend to ten years, and shall also be liable to fine".
The purpose of our extracting the two sections
of the Penal Code is to show the offence which is made punishable under s. 467
of 841 the Penal Code is in respect of an offence described in s. 463. Once it
is accepted that s. 463 defines forgery and s. 467 punishes forgery of a
particular category, the provision in s. 195 (1) (b) (ii) of the Code would
immediately be attracted and on the basis that the offence punishable under s.
467 of the Penal Code is an offence described in s. 463, in the absence of a
complaint by the Court the prosecution would not be maintainable. We have no
doubt in our mind that the High Court took a wrong view of the matter.
We may briefly refer to two decisions of this
Court. In Patel Laljibhai Somabhai v. The State of Gujarat,(1) the accused had
filed a suit for recovery of certain money on the basis of a forged cheque and
a private complaint had been filed before the Court of the Judicial Magistrate
alleging offences under ss. 467 and 471 of the I.P.C. The appellant raised an
objection that in view of s. 195 (1) (c) of the Code of Criminal Procedure
cognizance of the offence could not be taken on a private complaint. The High
Court upheld the order of commitment by finding that though there would be a
bar for prosecution for offences punishable under ss. 467 and 471 of the I.P.C.
On a private complaint, in the facts of the case that question did not arise
and this Court refused to interfere by holding that the alleged offences had
been committed at a time when the accused was not a party to the civil
proceeding. Not the conclusion but the ratio supports our view.
In S.L. Goswami v. High Court of Madhya
Pradesh at Jabalpur,(2) to which one of us was a party. it was held that an
offence under s. 466, I.P.C. was covered by clause (c) of s. 195 (1) of the
Code and it came within the purview of the section as the offence under s. 463,
I.P.C. is dealt With in s. 466, I.P.C. Section 466, I P.C., it was pointed out,
was an aggravated form of forgery in that the forgery should relate to a
document specified in that section.
Section 466, I.P.C. was, therefore, an
offence as described in s. 463, I.P.C. which was committed in relation to a
record or proceeding of or in a Court of justice. What was said in the
aforesaid decision in regard to the offence under s. 466, I.P.C. has full application
to an offence under s; 467, I.P.C. Therefore, the ratio of the last cited
decision has full application to the present case.
842 In view of what we have said above, the
prosecution in the instant case on the basis of a private complaint and in the
absence of a complaint from the appropriate civil court where the alleged
fraudulent receipt has been produced, would not be sustainable. As we are of
the view that if the prosecution is allowed to continue serious prejudice would
be caused to the appellants and they would be called upon to face a trial which
would not be sustainable, we allow this appeal and set aside the decision of
the High Court and quash the complaint case filed against the appellants.
H.S.K. Appeal allowed.