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Present: Mr. Vijay Aggarwal, Advocate with Mr. Rakesh Mukhija, Advocate for applicant.
+ Co. Appls. 895-896/2011 in Crl.O. (Co.) 5/2011 in Co. Pet.
145/2002
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+
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Allowed, subject to all just exceptions.
Accordingly, applications stand disposed of.
Cri.O. (Co.) 5/2011 in Co. Pet. 145/2002
(M/s. Future Consultants Pvt. Ltd. vs. M/s. Jersey Industires P. Ltd.)
Present application has been filed under Section 340 read with
Section 195(1)(b) Cr.P.C. on behalfofthe applicant.
I put it to learned counsel for applicant that prohibition contained in Section 195 of Cr.P.C. is attracted only when the offences enumerated in the said provision have been committed with respect t9 a document after it has been produced or given in evidence in a proceeding in any court, i.e., during the time when the document was "custodia legis ".
However, learned counsel for applicant states that the alleged forged document has been produced in Court by way of a supporting affidavit and, therefore, both remedies can be exercised namely, going to the police under the forgery sections and/or filing a petition in this
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2011:DHC:10492
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Court under section effecting administration ofjustice.
But in my opinion, in view of the categorical law laid down by the Constitution Bench of the Supreme Court in Iqbal Singh Marwah
Vs. Meenakshi Marwah, (2005) 4 SCC 370, the applicant is at liberty to file a complaint directly. In fact, the Apex Court in Iqbal Singh
Marwah (supra) has held as under:-
"23. In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding
-commission ofan offence referred to in Section 195(l)(b), as the section is conditioned by the words "court is of opinion that it is expedient in the interests ofjustice". This shows that such a course will be adopted only if the interest ofjustice requires and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests ofjustice that enquiry 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 ofoffence has upon administration ofjustice. 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 bejust a piece ofevidence 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 ofjustice may be minimal. In such circumstances, the court may not consider it expedient in the interest ofjustice 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 ofa crime is rendered remediless, has to be discarded.
JUDGMENT
24. There is another consideration which has to be kept in mind. Sub-section (1) of Section 340 CrPC contemplates holding ofa preliminary enquiry. Normally, a direction for filing of a complaint is not made during the pendency of the proceeding before the court and this is done at the stage when the proceeding is concluded and the final judgment is rendered. Section 341 provides for an appeal against an order directing filing of the complaint. The hearing and ultimate decision of the appeal is bound to take time. Section 343(2) confers a discretion upon acourt trying the complaint to adjourn the hearing ofthe case ifit is brought to its notice that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen. In view of these provisions, the complaint case may not proceed at all for decades specially in matters arising out of civil suits where decisions are challenged in successive appellate for a which are time-consuming. It is also to be noticed that there is no provision of appeal against an order passed under Section 343(2), whereby hearing of the case is adjourned until the decision of the appeal. These provisions show that, in reality, the procedure prescribed for filing a complaint by the court is such that it may not fructify in the actual trial ofthe offender for an unusually long period. Delay in prosecution ofa guilty person comes to his advantage as witnesses become reluctant to give evidence and the evidence gets lost. This important consideration dissuades us from accepting the broad interpretation sought to be placed upon clause (b)(ii).
25. An enlarged interpretation to Section 195(1)(b)(ii), whereby the bar created by the said provision would also operate where after commission of an act offorgery the document is subsequently produced in court, is capable of great misuse. As pointed out in Sachida Nand Singh after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding '\ instituted in any civil, criminal or revenue court, either by himselfor through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution, either at the instance of a private party or the police until the court, where the document has been filed, itselfchooses to file a complaint. The litigation may be a prolonged one due to which the actual trial ofsuch a person may be delayed indefinitely. Such an interpretation would be highly detrimental to the interest ofthe society at large.
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33. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) CrPC would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e. during the time when the document was in custodia legis." Consequently, I am of the opinion that prohibition contained in Section 195 Cr.P.C. is not attracted in the present case and the applicant is at liberty to file appropriate criminal proceedings before concerned Court in accordance with law. However, it is clarified that this Court has not expressed any opinion on the merits ofthis case. Accordingly, present application stands disposed of. MAY 16,2011 JS u--st MANMOIIAN,J