R.Govindaraj v. State rep. by The Inspector of Police Central Crime Branch Tiruppur District at Tiruppur (Cr.No.6/2009)

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 11.09.2009C O R A MTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.O.P.No.8077 of 2009andM.P.No.1 of 2009R.Govindaraj ..PetitionerVs.1.State rep. by The Inspector of Police Central Crime Branch Tiruppur District at Tiruppur (Cr.No.6/2009)2.G.Seetha Devi ..Respondents (Impleaded the 2nd respondent as per Order of this Court dated 09.06.2009 in M.P.No.2 of 2009)Criminal Original Petition filed under Section 482 of CriminalProcedure Code to call for the records from the first respondentpertaining to the complaint in Cr.No.6/2009 and quash the firstinformation report as far as the petitioner (A1) is concerned.For Petitioner : Mr.J.FranklinFor Respondents : Mr.I.Paul Nobel Devakumar,(R1) Govt. Advocate (Crl.Side) Mr.P.M.Duraiswamy (R2)O R D E RThe present petition has been filed under Section 482 Cr.P.C forquashing the first information report registered on the file ofCentral Crime Branch, Tiruppur as Cr.No.6/2009 for alleged offencespunishable under Sections 468, 471, 120-B, 520 and 506(i) IPC.2. Though the petition, at the first instance, was filed againstthe investigating officer, namely the first respondent alone,subsequently, the de-facto complainant Smt.G.Seetha Devi got herself https://hcservices.ecourts.gov.in/hcservices/ impleaded as the second respondent by filing a miscellaneous petitionM.P.No.2 of 2009 and obtaining an order on 09.06.2009 for herimpleadment in the criminal OP.3. The petitioner herein is none other than the brother of thesecond respondent herein (de-facto complainant). Both of themjointly purchased properties in the years 1989 and 1990. Theproperties, thus purchased by both of them were in their jointenjoyment till differences arose between them leading to the filingof a suit by the second respondent herein in O.S.No.303/2008 on thefile of Sub-court, Tiruppur in the month of August 2008 for partitionand separate possession. The suit was resisted by the petitionerherein, who figured as the defendant in the said suit by filing awritten statement containing allegation to the effect that the secondrespondent herein had executed a general power of attorney in respectof her half share in the properties purchased by her jointly with herbrother (the petitioner herein) in favour of one V.Bhaskaran and inexercise of the power conferred upon him, the said Bhaskaran executeda registered sale deed in favour of the petitioner herein on25.04.2008; that the petitioner, after having purchased the same fora valuable consideration of Rs.4,50,000/-, made improvements to theproperty spending huge amount and that the second respondent, withsome ulterior motive to gain unlawful enrichment and as an abuse ofprocess of court, had filed the above said suit. 4. Pursuant to the filing of the said written statement by thepetitioner herein on 23.12.2008, the second respondent herein filed areply statement denying the allegations found in the writtenstatement and specifically denying the allegation that she hadexecuted a power of attorney in favour of the above said V.Bhaskaranand contending that the petitioner herein was liable to be prosecutedin a criminal court, as he had fabricated documents. The said replystatement was signed on 03.01.2009 and filed on 23.01.2009. Undersuch circumstances, on 12.01.2009 itself, the second respondentherein lodged a complaint with the Central Crime Branch, Tiruppuralleging conspiracy between the petitioner herein and V.Bhaskaran,pursuant to which they forged the signature of the second respondent(de-facto complainant), fabricated a document styled as the power ofattorney and created a document on the basis of the forged power ofattorney as a sale deed in favour of the petitioner on 25.04.2008.It was also alleged in the complaint that, when the second respondent(de-facto complainant), after coming to know that they had forgeddocuments, in order to stake claim to the property of the secondrespondent, she questioned the petitioner regarding the same on05.01.2009, for which he replied that the second respondent/de-factocomplainant could do anything she wanted to do and causedintimidation by causing a threat to kill her in case she could claimher property. Though the complaint was lodged by her on 12.01.2009,the police, probably considering the bar provided under Section 195Cr.P.C., assigned it a C.S.R.No. (C.S.R.No.4/2009) and later on https://hcservices.ecourts.gov.in/hcservices/ registered a case on 05.03.2009 as Cr.No.6/2009 on the file ofCentral Crime Branch, Tiruppur for offences punishable under Sections468, 471, 120-B, 420 and 506(i) IPC after obtaining legal opinionfrom the Assistant Public Prosecutor. 5. Pursuant to the registration of the said case, the petitionerherein has come forward with the present petition for quashing theFIR. The petitioner has sought for an order quashing the FIR on thegrounds that a civil dispute between the petitioner and the secondrespondent, who are brother and sister, is sought to be given acriminal colour by lodging a false complaint with ulterior motive;that the said complaint nonetheless will amount to an abuse ofprocess of law and that there is a clear bar for taking cognizance ofthe offence otherwise than on a complaint in writing given by a courtin which the suit was filed as the offences under Sections 468 and471 IPC were allegedly committed in respect of a document produced ina proceeding pending in a court of law, namely the Sub-court,Tiruppur.6. The petition is resisted by the respondents 1 and 2contending that there was no impediment for the police to takecognizance of the offence based on the complaint of the secondrespondent/de-facto complainant and that the contention of thepetitioner that a pure civil dispute is sought to be converted into acriminal case with ulterior motive in order to achieve unlawful gain,is quite untenable since the said ground has been raised for the sakeof raising a ground in a petition seeking quashing of the firstinformation report.7. Mr.J.Franklin, learned counsel for the petitioner solelyrelies on a judgment of a learned single judge of this court inM.Sadasivam and others v. K.Duraisamy reported in (2008) 1 MLJ (Crl)9. It is true that in the said case, after referring to thejudgments of the Hon'ble Supreme Court in Surjit Singh v. BalbirSingh reported in 1996 SCC (Cri) 521 and in Gopalakrishna Menon v.D.Raja Reddy reported in AIR 1983 SC 1052, the learned single judgehas observed that there is a total bar under Section 195(1)(b)(ii) ofCr.P.C for taking cognizance of the offences mentioned in the saidprovision unless the complaint in writing is filed as per theprocedure described under Section 340 of the Code of CriminalProcedure by or on behalf of the court in which the document relatingto which the offence was allegedly committed had been filed or givenin evidence. 8. The learned counsel for the petitioner relying on the abovesaid observations made by a learned single judge of this court in theabove said case, has argued that the document, which is alleged tohave been forged is one filed in a civil suit pending before the Sub-court, Tiruppur and that hence the bar provided under Section 195(1)(b)(ii) of Cr.P.C., would squarely apply to the complaint preferred https://hcservices.ecourts.gov.in/hcservices/ by the second respondent herein and that the first information reportregistered based on the complaint of the second respondent inCr.No.6/2009 on the file of the Central Crime Branch, Tiruppur isliable to be quashed in exercise of the inherent powers of the HighCourt. 9. In addition to the above said legal contention relying on anearlier judgment of this court as a precedent, the learned counselfor the petitioner has also contended that the very fact that thesecond respondent has chosen to prefer a complaint after filing thecivil suit for partition in which the genuineness of the documents inquestion was also challenged by her and without waiting for theresult of the civil case will amount to an abuse of process of lawand that hence for that reason also the first information report inCr.No.6/2009 on the file of Central Crime Branch, Tiruppur is liableto be quashed.10. Per contra, it is contended on behalf of the respondentsthat the bar provided under Section 195(1)(b)(ii) is not attracted tothe case on hand in so far as the forgery is not alleged to have beencommitted after the document was produced in a court of law and sincethe case of the de-facto complainant is that the forgery wascommitted before the said document was produced in a court of law inthe civil proceedings and that hence the prayer made by thepetitioner for quashing the first information report relying on theabove said provision should be rejected as untenable.11. It is the further contention raised on behalf of therespondents that there was no latches on the part of the secondrespondent/de-facto complainant, who came forward with the complaintwithin a reasonable time after the written statement containingallegation to the effect that the second respondent had executed apower of attorney in favour of V.Bhaskaran, who in turn executed asale deed in favour of the petitioner on the strength of such powerof attorney; that when the complaint contains sufficient allegationsdisclosing commission of cognizable offences, the first informationreport registered based on the complaint cannot be quashed simplybecause a civil case is pending regarding the genuineness of thedocument, which is alleged to be forged; that every case of allegedforgery shall contain elements of disputes of civil nature as well ascriminal nature and that when clear and unambiguous averments aremade in the complaint, the court cannot quash the complaint byevaluating the allegations made in the complaint.12. Let us now take up the legal plea raised on behalf of thepetitioner to the effect that Section 195(1)(b)(ii) is a bar fortaking cognizance of the offences under Section 468 and 471 IPC, forwhich reliance has been made on a judgment of this court inM.Sadasivam and others v. K.Duraisamy reported in (2008) 1 MLJ (Crl)9. Section 195(1) reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "(1) No court shall take cognizance —(a)(i) of any offence punishable under sections172 to 188 (both inclusive) of the Indian Penal Code(45 of 1860), or(ii) of any abetment of, or attempt to commit,such offence, or(iii) of any criminal conspiracy to commit, suchoffence, or except on the complaint in writing of thepublic servant concerned or of some other publicservant to whom he is administratively subordinate;(b)(i) of any offence punishable under any of thefollowing sections of the Indian Penal Code (45 of1860), namely, sections 193 to 196 (both inclusive),199, 200, 205 to 211 (both inclusive) and 228, whensuch offence is alleged to have been committed in, orin relation to, any proceeding in any court, or(ii) of any offence described in section 463, orpunishable under section 471, section 475 or section476, of the said Code, when such offence is alleged tohave been committed in respect of a document producedor given in evidence in a proceeding in any Court, or(iii) of any criminal conspiracy to commit, orattempt to commit, or the abetment of, any offencespecified in sub-clause (i) or sub-clause (ii), excepton the complaint in writing of that Court or by suchofficer of the Court as that Court may authorise inwriting in this behalf, or of some other Court to whichthat Court is subordinate." 13. Of course it is true that there is no explicit stipulationin the said section that the forgery relating to a document filed ina proceedings before a court of law or given in evidence in a courtshould have been committed after the said document was filed or givenin evidence in the said court. Section 195(1)(b)(ii) Cr.P.C. simplystates that, if any such offence described in Section 463 orpunishable under section 471, section 475 or section 476, of the saidCode, when such offence is alleged to have been committed in respectof a document produced or given in evidence in a proceeding in anycourt, no court shall take cognizance of such offence otherwise thanon a written complaint given by the court concerned or on his behalf.The said section has been interpreted by the learned single judge ofthis court, of course relying on two earlier judgments of the Hon'bleSupreme Court in Surjit Singh v. Balbir Singh reported in 1996 SCC(Cri) 521 and in Gopalakrishna Menon v. D.Raja Reddy reported in AIR https://hcservices.ecourts.gov.in/hcservices/ 1983 SC 1052, to mean that any offence of forgery allegedly committedin respect a document produced or given in an evidence in aproceeding before a court in respect of which such forgery is allegedto have been committed either prior to such production in the courtor subsequent to its production, the bar under section 195(1)(b)(ii)will be attracted. 14. With due respect to the Hon'ble judge, I am not able toconcur with the view expressed by the learned single judge in theabove said judgment cited by the learned counsel for the petitioner.The same does not have a binding effect since subsequent judgments ofthe Hon'ble Supreme Court in which a contrary view has beenexpressed, were not adverted to by the learned single judge inarriving at the said conclusion. In fact, the Hon'ble Supreme Courtin Sachidanand Singh and another vs. State of Bihar and anotherreported in (1998) 2 SCC 493, a larger bench of the Supreme Courtconsisting of a three Hon'ble judges has made the followingobservation:-"The sequitur of the above discussion is that thebar contained in Section 195(1)(b)(ii) of the Code isnot applicable to a case where forgery of the documentwas committed before the document was produced in acourt."15. When the very same question was raised before theconstitutional bench consisting of five Hon'ble Judges of the SupremeCourt in Iqbal Singh Marwah and Another vs. Meenakshi Marwah andAnother reported in (2005) 4 SCC 370. The said view expressed by thethree judge bench of the Supreme Court in Sachidanand Singh andanother vs. State of Bihar and another reported in (1998) 2 SCC 493,was approved and the constitutional bench of the Hon'ble SupremeCourt made the following observation:-"An enlarged interpretation to Section 195(1)(b)(ii), whereby the bar created by the said provision wouldalso operate where after commission of an act of forgerythe document is subsequently produced in court, iscapable of great misuse. As pointed out in Sachida NandSingh and another vs. State of Bihar and another reportedin (1998) 2 SCC 493, after preparing a forged document orcommitting an act of forgery, a person may manage to geta proceeding instituted in any civil, criminal or revenuecourt, either by himself or through someone set up by himand simply file the document in the said proceeding. Hewould thus be protected from prosecution, either at theinstance of a private party or the police until thecourt, where the document has been filed, itself choosesto file a complaint. The litigation may be a prolongedone due to which the actual trial of such a person may be https://hcservices.ecourts.gov.in/hcservices/ delayed indefinitely. Such an interpretation would behighly detrimental to the interest of the society atlarge."............................"Judicial notice can be taken of the fact that thecourts are normally reluctant to direct filing of acriminal complaint and such a course is rarely adopted.It will not be fair and proper to give an interpretationwhich leads to a situation where a person alleged to havecommitted an offence of the type enumerated in clause (b)(ii) is either not placed for trial on account of non-filing of a complaint or if a complaint is filed, thesame does not come to its logical end. Judging from suchan angle will be in consonance with the principle that anunworkable or impracticable result should be avoided."It was also observed therein as follows:-"In view of the discussion made above, we are of theopinion that Sachidanand Singh and another vs. State ofBihar and another reported in (1998) 2 SCC 493, has beencorrectly decided and the view taken therein is thecorrect view. Section 195(1)(b)(ii) Cr.P.C would eattracted only when the offences enumerated in the saidprovision have been committed with respect to a documentafter it has been produced or given in evidence in aproceeding in any court i.e. during the time when thedocument was in custodia legis."16. The same was followed by a recent judgment of the Hon'bleSupreme Court in P.Swaroopa Rani v. M.Hari Narayana Alias Hari Babureported in (2008) 3 SCC (Cri) 79.17. These three judgments which brought about a change in law bythe judicial interpretation were not taken note of by the learnedsingle judge while making the observations in the judgment cited onbehalf of the petitioner herein in support of his contention thatthere is a bar under Section 195(1)(b)(ii) Cr.P.C for takingcognizance of the offences alleged in the complaint. As the saidview expressed by the learned judge was not only in ignorance of theabove said subsequent judgments of the Hon'ble Supreme Court but alsois diametrically opposite to the view expressed by the Hon'bleSupreme Court. The same is per incuriam and can never be a bindingprecedent since reliance was made on a judgment which wassubsequently overruled by larger benches including a constitutionalbench of the Hon'ble Supreme Court. https://hcservices.ecourts.gov.in/hcservices/

18. The said judgments squarely apply to the case on hand. Inview of the said observation of the Hon'ble Supreme Court in thelatest cases, this court accepts the contention raised on behalf ofthe respondents that only when forgery and tampering with thedocuments are alleged to have been committed in respect of a documentproduced in a court after the same was produced in the court or givenin evidence in the proceedings, the bar under section 195(1)(b)(ii)will be attracted and that the said bar is not attracted to the casesof forgery or tampering with the documents allegedly committed priorto the production of the said documents in the court.19. It is the clear case of the second respondent/de-factocomplainant that the power of attorney was forged in her name beforethe production of the same in the civil suit and that hence the barprovided under section 195(1)(b)(ii) is not attracted to the case onhand. 20. So far as the other two contentions of the petitioner areconcerned, this court is of the considered view that they are alsoliable to be rejected, as there is no substance in them. Thecontention of the petitioner that the second respondent having chosento file a civil suit in which the question of genuineness of thedocument is raised, should not have chosen to prefer the complaintalleging forgery of the document without waiting for the result ofthe civil case, does not have any substance in it. It is unnecessaryto cite all the precedents, which go to show that when an act givingrise to a cause of action for criminal prosecution as well as a civilremedy, the criminal prosecution launched cannot be quashed simplybecause a civil remedy is available or that proceedings for suchcivil remedy has been initiated. Suffice it to cite a judgment ofthe Hon'ble Supreme Court in Vitoori Pradeep Kumar vs. KaisulaDharmaiah and others reported in (2002) 9 SCC 581. It is traite lawthat the availability of the civil remedy and the fact thatproceedings in a civil court has been initiated for such civil remedyis not a bar for seeking criminal prosecution of the offender. 21. The next contention of the petitioner that the secondrespondent has chosen to prefer the complaint with some latches andas an afterthought also deserves to be rejected as untenable. Aspointed out supra, within a reasonable time after she came to knowthe fact of commission of the alleged offences through the writtenstatement of the petitioner herein in the suit filed by the secondrespondent, she has not only filed a reply statement denying thegenuineness of the document in question, but also chose to prefer thecomplaint setting the criminal law in motion against the petitionerherein. Allegations indicating the absence of knowledge of thedocument till the filing of the written statement by the petitionerin O.S.No.303/2008 are also found in the complaint. Therefore, itcannot be said that there are latches on the part of the secondrespondent/de-facto complainant and the plea of the petitioner that https://hcservices.ecourts.gov.in/hcservices/ the complaint was the result of an afterthought also deserves to berejected as untenable. 22. The next contention of the petitioner is to the effect thatthe lodging of the complaint by the second respondent/de-factocomplainant is an example of abuse of process of law. Except a baldallegation on the ground that the petitioner and the de-factocomplainant are brother and sister that it is an example of abuse ofprocess of law and that the complaint has been lodged before thedisposal of the civil case instituted by the de-facto complainantagainst the petitioner, no other ground has been raised in support ofthe petitioner's contention that the complaint of the de-factocomplainant is an example of abuse of process of law. We have alreadyseen that the pendency of the suit is not a bar for preferring acomplaint to set the criminal law in motion. Therefore, thepetitioner's contention that during the pendency of the parallelproceedings in a civil court, lodging of the complaint and settingthe criminal law in motion shall amount to abuse of process of law,does not have any substance in it and the same deserves to berejected. 23. When the de-facto complainant has emphatically contended inthe complaint that she did not execute any power of attorney infavour of V.Bhaskaran who executed the sale deed in favour of thepetitioner herein as the power agent of the second respondent, thecomplaint cannot be quashed on the sole ground that the transactionhas taken place in favour of the petitioner, who is none other thanthe brother of the de-facto complainant. If at all the sister wantedto convey her property to his own brother, there was no need for herto allow the intervention of the third person as an agent byexecuting a power of attorney in his favour for the purpose ofexecuting a sale deed in favour of the petitioner, the learnedcounsel for the second respondent pointed out. Though there issubstance in the contention raised by the learned counsel for thesecond respondent, it shall not be proper to express any opinionregarding the said contention as doing so will amount to appreciationof evidence and evaluating the same, which cannot be done in apetition filed under Section 482 Cr.P.C. 24. After considering all the points raised on behalf of theparties, this court comes to a definite conclusion that it is not afit case in which this court can exercise its inherent power forquashing the first information report registered on the basis of thecomplaint of the second respondent/de-facto complainant. There is nomerit in this petition and the same deserves to the dismissed. https://hcservices.ecourts.gov.in/hcservices/

25. Accordingly, this criminal original petition is dismissed.Consequently, the connected miscellaneous petition is closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrar asrTo1.The Inspector of Police, Central Crime Branch, Tiruppur District at Tiruppur. 2.The Public Prosecutor, High Court, Madras 600 104.+ 2 c.cs. to Mr. J. Franklin, Advocate. S.R.No.46427.+ 1 c.c. to Mr. P.M. Duraiswamy, Advocate. S.R.No.46373. Order inCrl.O.P.No.8077/2009TM (CO)GSK 29.09.2009.