
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.