Section 195 of CrPC is an exception to Section 190 thereof and acts as an absolute bar, the procedure mentioned in Section 340 CrPC to be mandatorily followed: SC

M/s Bandekar Brothers Pvt. Ltd. & Anr. v. Prasad Vassudev Keni, etc.

CRIMINAL APPEAL NO.S 546-550 OF 2017.

Decided on 2.09.2020.

Bench: R.F. Nariman, Navin Sinha, JJ

Relevant Provisions:

Code of Criminal Procedure, 1973 (CrPC): Sections 190, 195, 340.

Indian Penal Code, 1860 (IPC): Sections 191, 192, 193, 463, 464.

Facts:

Respondents shared a business relationship with the appellants and some dispute arose between them and hence civil suits were filed by the appellants against the respondents. Later, criminal complaints were filed by the appellants against the respondents alleging that the respondent had given false evidence in the civil proceedings, had forged debit notes and made false entries in the books of accounts. The criminal complaints were filed under Section 340 read with Section 195 of the Code of Criminal Procedure, 1973 in respect of the offences alleged under Sections 191 and 192 of the Indian Penal Code. Appellants made an application to convert the said criminal complaints into private complaints and this was done by the order of the Judicial Magistrate who converted the said complaints into private complaints and issued process under Section 191, 192 and 193 of the IPC.

The respondents filed a revision application against the said order and stated that the bar contained in Section 195(1)(b)(i)  of CrPC, and the procedure mentioned in Section 340 CrPC is mandatory and could not be circumvented as the complaints show that offences under Sections 191 to 193 of the IPC are being made out. In a counter affidavit, appellants took the plea that offences under sections 463,464,465,467,468,469,471,474,475 and 477-A of IPC i.e., of “forgery” are also made out so the private complaint is maintainable. The Additional Sessions Judge held that the bar under Section 195(1)(b)(i) of the CrPC is attracted and it is mandatory to follow procedure under Section 340 of the CrPC and revision petition was allowed and the criminal complaints were quashed. Appellants filed writ petition in the High Court but they were dismissed. Hence, this present appeal.

[Editor’s Note: [S. 195 Cr.P.C deals interalia with offence relating to documents given in evidence and the procedure for initiation of inquiry for the aforesaid mentioned offence is given under S. 340 ]

Issue: Whether the making of the debit notes in order to falsely claim amounts would fall under Section 464 of the IPC and attract the provisions of “forgery” sections under the IPC?

Held: The Court held that the debit notes were not “false documents” under Section 464 of the IPC, in as much as they had not been made with the intention of causing it to be believed that they were made by or under the authority of some other person. Since, this basic ingredient of forgery is not made out, none of the Section of forgery mentioned in Chapter XVIII of the IPC are attracted in this case.

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 person by whom or by whose authority he knows that it was not made, can be said to make a false document. 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.

Issue:  Whether the bar contained in the Section 195 of the CrPC is mandatory and it acts as an exception to Section 190 of the CrPC?

Held: The Court held that Section 195 of CrPC is an exception to the general provision contained in Section 190 of CrPC, and creates an embargo upon the power of the Court to take cognizance of certain types of offences enumerated under Section 195 which must necessarily follow the drill contained in Section 340 of the CrPC. It is an absolute bar.

The Court also held that in the course of the same transaction if two separate offences are made out, for one of which Section 195 of the CrPC is not attracted and it is not possible to split them up, the drill of Section 195(1)(b) of the CrPC must be followed.

It was also stated by the Court that Section 460 of the CrPC cannot and does not apply to cases in which Section 195 of the CrPC is involved as the Section 195 of the CrPC is an exception to Section 190 of the CrPC.