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PETITIONER: GURU BIPIN SINGH

       Vs.

RESPONDENT: SH. CHONGTHAM MANIHAR SINGH& ANR.

DATE OF JUDGMENT:       11/10/1996

BENCH: G.N. RAY, B.L. HANSARIA

ACT:

HEADNOTE:

JUDGMENT:                THE 11TH DAY OF OCTOBER, 1996 Present :           Hon’ble Mr. Justice G.N. Ray           Hon’ble Mr. Justice B.L. Hansaria Ram Jethmalani,  Sr. Adv.  P.H. Parekh  and Ms.  Indu Verma, Advs. with him for the appellant Dr. Shankar  Chosh, Sr. Adv., S.K. Bhattacharya, L.K. Paonam S. Janani, Advs. with him for the Respondents.                       J U D G M E N T The following Judgment of the Court was delivered : Guru Bipin Singh V. Sh. Chongtham Manihar Singh & Anr.                       J U D G M E N T HANSARIA, J.      Leave granted.      The Chief  Judicial Magistrate, Imphal, took cognizance of a  complaint against the appellant under sections 465 and 468 read  with section  420 IPC;  and ordered on 20.12.90 to issue warrant  of arrest  against  him.  He  approached  the Gauhati High  Court, Imphal  Bench, seeking  quashing of the criminal proceedings.  The High  Court having  dismissed the revision petition,  this Court  has  been  approached  under Article 136 of the Constitution. 2.  Shri   Jethmalani,  appearing   for  the  appellant  has contended that  the proceeding is an abuse of the process of the court  and deserves to be quashed because of there being no legally  admissible evidence  against the  appellant  and also because  no offence  has been  made  out  even  if  the allegations made  against the  appellant in the complaint be accepted as true. 3. The abuse of process argument is advanced, inter alia, on the ground  that the  complaint  is  stale  in  as  much  as relating to  the self-same matter a complaint had been filed in early  1966 under  Section 500  IPC, which became subject matter of Complaint Case No. 13/66, which, however, ended in compromise in  1968. According to the learned counsel, to re agitate the  same matter  in 1990  is not   for any bonafide purpose but  because of  jealousy against the appellant  for

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his having  been awarded Sangeet Natak Akademy Award for the book  titled   "Govinda  Sangeet   Lila  Vilasa"  which  was published by  the appellant  in 1964. The award was in token of the  learned  presentation  of  the  subject.  The  abuse argument is  also advanced  because in  the earlier  case an apology had been tendered by the appellant which had come to be accepted; and so, the present complaint is only to harass him. 4. Dr. Ghosh, appearing for the respondent, has urged that a fresh cause  of action  accrued, which  led to the filing of the present  complaint, inasmuch  as the  appellant repeated the same  offence in  his article  published in  "Dances  of Manipur; the  classical tradition", which saw light in 1989. This compendium  contains an article by the appellant titled "Theory :the  textual tradition"  in which it has been again stated by  the  appellant  that  the  former  book  (Govinda Sangeet Leela Vilasa) had been written by King Bhagyachandra in 18th  century,  a  part  of  whose  manuscript  has  been published at page 101. So, according to the learned counsel, the appellant  has reiterated his stand that the first book, which was  the subject matter of 1966 complaint, is based on King  Bhagyachandra’s   write-up.  The  allegation  is  that Bhagyachandra being  illiterate could  not have  written the manuscript; and  the  appellant in order to give credence to his book falsely represented to the readers that the same is based on manuscript written by the King. 5.  On   the  aforesaid  facts,  we  would  not  accept  the contention of  Shri Jethmalani  that a stale matter is being reagitated of  jealousy. We,  therefore, do  not find in the present case any abuse of the process of the court, as urged by the counsel. 6. We  may now  examine the  contention that the allegations made in the complaint, even if true, do not  make cut a case under the  aforesaid penal sections. The basic allegation is that the   appellant  had forged  the first  book by stating that is  was based  on the  manuscript of  the king  thereby deceiving the  Government to  get  it  published  for  which purpose the  assistance of  Rs. 2,500  was given  and  which also induced  many members  of the  public to  buy the  same believing it  as genuine  hereby  depriving  them  of  their money. Shri  Jethmalani has  urged that for an offence under section 465,  the same  has to  be "forgery"  as defined  in section 463,  whose first ingredient is making of "any false document or  a part of a document". A person is said to make false document as per section 464,      First   -    who   dishonestly   or      fraudulently makes, signs scales or      execute a  document or  part  of  a      document,   or   makes   any   mark      denoting   the   execution   of   a      document,  with  the  intention  of      causing it to be believed that such      document or  part of a document was      made, signed, sealed or executed by      or by  the authority of a person by      whom or by whose authority he knows      that  it   was  not  made,  signed,      sealed or executed, or at a time at      which he  knows  that  it  was  not      made, signed,  sealed or  executed;      or      Secondly X   X   X    X      Thirdly  X   X   X    X      Explanation 2  :- The  making of  a      false document  in the  name  of  a

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    fictitious person,  intending it to      be believed  that the  document was      made by the person in his lifetime,      may amount to forgery. 7.   It is  urged by Shri Jethmalani that for making a false document, the  person concerned  has to  make, sign, seal or execute the  same. It is submitted that in the present case, even as  per the  complaint, the  appellant had  not move  , signed, sealed  or executed  the alleged manuscript inasmuch as the  allegation is  that the appellant had passed on some writing as  representing the  same to  be in the hand of the king. In  the initial  statement the  complainant had stated that the  appellant relied  upon the  fabricated book  named above "Showing  the same  as  genuine  and  claiming  it  as written by late Maharaja Bhagachandra ........." 8.   This shows  that the  allegations is that the appellant had represented  some writing  to be of the Maharaja, though in fact  it was  not so.  It is  not the allegation that the appellant had himself written the manuscript and represented it to  be that  of Maharaja. According to Dr. Ghosh, despite this  being  the  position,  requirement  of  464  would  be satisfied in  view of  what has  been stated  in Explanation shows that  for it  to get  attracted  "making  of  a  false document" is  essential; and  it is  this  aspect  which  is missing in  the present  case, according to Shri Jethmalani. There  is   apparently  force  in  the  submission  of  Shri Jethmalani because,  as already  pointed out,  it is not the allegation that  it is  the appellant  who had made, signed, sealed or executed the writing in question. This apart, when we desired  Dr. Ghosh  to bring  to our  notice as  to which writing of  King Bhagyachandra  was represented to belong to him, we  were referred  to a  printed book  titled "Rajarshi Bhagyachandra Govinda  Sangeet  Leela  Vilasa".  This  book, however, is  a Manipuri  translation by  one Pt. Braj Behari Sharma, we do not have the original. 9.   In view of all the above, we agree with Shri Jethmalani that the allegations made in the complaint, even if true, do not make  out the  case of  forgery. Now,  if forgery be not there, allegations  under section 420 would fail because the allegation in  para 5  of the  complaint is that by "forging the said  book" deception  was   caused and  members of  the public were  induced to  purchase the  same.  So, forgery is the principal  allegation; cheating  being  a  consequential offence. If  forgery goes,  cheating  cannot  stand.  So,the complaint sections,  namely 420,  465 and  468.  It  may  be pointed out  that 468  is intimately  connected with 420 and 465. 10.  Having come  to the  aforesaid conclusion, it is really not necessary  to deal with still another submission of Shri Jethmalani that  there is  no legally admissible evidence to support the  case of  the   complainant.  For  the  sake  of completeness, it  may however,  be  pointed  out  that  this submission has  been  advanced,  because  in  the  complaint reliance has  been sought  to be placed principally on three pieces of  evidence (1)  statement of one Madam Gopal Sharma (since deceased)  which was recorded in the first complaint, and  which has been enclosed as Annexure C/1; (2) a reply of one Pt.  Sh. Joginder  Nath Bhattacharya (also dead by now), which is  enclosed as  Annexure C/2;  and (3) a statement of the appellant  dated 8.10.66  which was  made when the first complaint was filed, which is Annexure C/3. As to the first, submission  of   Shri  Jethmalani   is  that   the  same  is inadmissible in  law inasmuch  as the  requirements  of  the proviso to section 33 of the Evidence Act are not satisfied. This appears to be so. As to Annexure C/2, the contention is

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that the  same is,  what in legal parlance known as "written heresay". As  to the  Annexure C/3,  the submission  is that though the  same  is  admissible,  that  proves  nothing.  A perusal  of  that  statement  shows  that  appellant  stated therein that  he had found the manuscript of Rajarshi and he had edited  the same, for which purpose he took the  help of a Sanskrit  scholar for  correcting grammatical pitfalls and spellings. He  then brought  out a  modified version  of the book and  destroyed the original as he thought that it might cause  confusion     if   two  manuscripts  were  kept.  The statementended by  begging  pardon  as  the  appellant  felt represent for  such  short sightedness. This shows that Shri Jethmalani is  right in  contending that  the statement does not advance  the case  of the  complaint as  it has not been admitted  that   the   manuscript   was   not   a   Rajarshi Bhagyachandra. 11.  The aforesaid  being the legal position, we would allow the appeal  by quashing  the complaint.  It may be mentioned that after  having heard  learned counsel for the parties at length, we  have not  felt inclined to accept the submission of Dr.  Ghosh that  this Court  having been approached under Article 136 of the power, which is used in cases where there is miscarriage  of justice. We having found that no case has been  made   out  in   the  complaint,  continuance  of  the proceedings continue.  It is  because of inclined to draw on our power under Article 136. 12.  Before parting, we desire to state that it would behave the appellant  to make   public  statement, as was his offer during the  abortive compromise  talk,   that the manuscript was not  in the  hand of  Rajarshi Bhagyachandra  a  and  he undertakes not  to state so in future. We have felt the need for such  a statement because it seems to us that the  claim about  the   manuscript  being   in  the   hand  of     Raja Bhagyachandra  has  hurt  the  feelings  of  the  people  of Manipur, who  have great  regard and  respect for  late king Bhagyachandra, to  whom something  was  imputed,  apparently with motive, by the appellant without basis.