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PETITIONER: SUSHIL KUMAR AND ORS.

       Vs.

RESPONDENT: STATE OF HARYANA AND ORS.

DATE OF JUDGMENT08/12/1987

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) SEN, A.P. (J)

CITATION:  1988 AIR  419            1988 SCR  (2) 182  1987 SCC  Supl.  654     JT 1987 (4)   586  1987 SCALE  (2)1248

ACT:      Power of  Magistrate frame  charges under  Sections 471 and 474,  Cr. P.  C. in  the absence  of a  complaint from a Civil Court-Bar of section 195(1)(b)(ii), Cr. P. C. thereon.

HEADNOTE: %      The appellant  Sushil Kumar  filed a Civil Suit against the wife  of respondent  No. 2 and obtained, on the strength of a  copy of  a deed of partnership, a temporary injunction restraining the  wife and  her husband from interfering with the possession  of some  property. Thereupon  the respondent No.  2   lodged  a   report  with  the  police  against  the appellants, alleging  that the partnership deed was a forged one and,  accordingly, the appellants had committed offences punishable under  ss. 465,  468, 471,  474,  120B  and  420, I.P.C. The  magistrate framed charges against the appellants under ss. 465, 468, 120B and 420, I.P.C., but refrained from framing charges  under ss.  471 & 474, I.P.C., on the ground that, in the absence of a complaint from the Civil Court. he could not take cognizance under those sections.      On a  revision preferred  by the  State, the Additional Sessions Judge  upheld the  order  of  the  magistrate.  The respondent No.  2 then  moved the High Court under s. 482 of the Code  of Criminal  Procedure 1973,  which  reversed  the decision, holding that as the document was not forged during the  period   it  was  in  Court  Custody,  the  bar  of  s. 19(1)(b)(ii) Cr.P.C.  was not  attracted, and  directed  the magistrate to  frame fresh charges. The appellants thereupon appealed to this Court by special leave against the order of the High Court.      Dismissing the  appeal and  confirming the direction of the High Court but on a different ground, the Court, ^      HELD: The  original document,  the deed of partnership, was not  filed in the Civil Court and a temporary injunction was obtained  on the  strength of  its copy.  The  reasoning given by  the High  Court in  support of its judgment is not correct but  that does  not help  the appellants.  The Privy Council in  Sanmukhsingh v. The King, [1949] L.R. 77 I.A. 7, observed that by production of a copy of the

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182 allegedly forged  document,  it  cannot  be  said  that  the document itself  was given  in evidence.  This view  accords with the  plain grammatical meaning of the words and is also supported by the practical common sense. [184D, F-G]      Since the  document alleged  to have been forged in the case was  not produced  in  the  Court,  the  provisions  of section 195(1)(b)(ii) of the Code of Criminal Procedure have no application.  The High Court’s direction is confirmed but on a different ground, as indicated.[184G-H]      Sanmukhsingh v.  The King,  [19491 L.R.  77 I.A.  7 and Budhu Ram v. State of Rajasthan,[1963]3 S.C.R. 376, referred to.

JUDGMENT:      CRIMINAL APPELLATE  JURlSDICTlON: Criminal  Appeal  No. 617 of 1987.      From the  Judgment and  order dated  20 3  1987 of  the Punjab and  Haryana High  Court in  Crl. Misc  No. 5338-M of 1986      Prem Malhotra for the Appellants      S.C. Mohanta,  C.V.S. Rao,  A.K Goel, and B.P Singh for the Respondents      The Judgment of the Court was delivered by      SHARMA, J. This appeal is directed against the judgment of the  High Court of Punjab and Haryana reversing the order of the Judicial Magistrate, Hissar refusing to frame charges against the  appellants under  ss 471  and 474 of the Indian Penal Code.  The dispute  between the parties arose out of a difference between  them in  connection with  a  partnership business. The  appellant Sushil  Kumar filed  a  civil  suit against  Smt.   Shakuntala  Devi,  wife  of  Inder  Prakash, respondent  No.  2.  Relying  upon  a  copy  of  a  deed  of partnership, he  obtained a temporary injunction restraining her and  her husband from interfering with the possession of a certain  property The respondent No 2, thereupon. Iodged a report with  the police against the appellants alleging that the partnership  deed was  a forged  one and that they being parties to  the forgery  had committed  offences  punishable under ss.  465, 468,  47 1, 474, 120B and 420 IPC. A challan was submitted  and the  learned  Magistrate  framed  charges against the appellants under ss. 465, 468, 120B and 420 IPC, but refrained from 184 framing any charge under ss. 471 and 474 IPC holding that he could not  take  cognizance  under  these  sections  in  the absence of a complaint from the civil court.      2. The  State preferred  a revision  and the Additional Sessions Judge, Hissar, who heard the application upheld the order of  the Magistrate.  The respondent  No. 2, therefore, moved the  High Court  under section  482  of  the  Code  of Criminal Procedure,  1973 (hereinafter  referred to  as  the Code) and  a learned  Single  Judge  reversed  the  decision holding that  as the  document was  not  forged  during  the period  it   was  in   court  custody  the  bar  of  Section 195(1)(b)(ii) of  the Code was not attracted. The Magistrate was  accordingly   directed  to  frame  fresh  charges.  The appellants, after  obtaining special  leave, are challenging this order in the present appeal.      3.  According   to  the   allegations  in   the   first information report  the partnership  deed  in  question  was forged by  the appellant  Sushil Kumar  and Shiv  Nandan  in league with  the officials  of the Income tax Department and

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Sushil Kumar, thereafter, produced a copy of the forged deed in the  suit. The  original document  was not  filed in  the civil court,  and temporary  injunction was  obtained on the strength of  its copy.  We shall  assume that  the reasoning given by  the High  Court in  support of its judgment is not correct but  that does  not help the appellants. Sub-section (1)(b)(ii) of  Section 195  of the  Code lays  down that  no court shall  take cognizance of any offence described in the sections mentioned  therein when  such offence is alleged to have been  committed in  respect of  "a document produced or given in evidence in a proceeding in any Court. Interpreting the similar  language of  the corresponding provision in the earlier Criminal  Procedure Code  of 1898, the Privy Council in Sanmukhsingh v. The King, [1949] L.R. 77 I.A. 7, observed that by  production  of  a  copy  of  the  allegedly  forged document it  cannot be  said that  the document  itself  was given in  evidence. This  view, as pointed out, accords with the plain  grammatical meaning  of the  words  and  is  also supported by the practical common sense. The Judgment of the Judicial Committee  was followed  in Budhu  Ram v.  State of Rajasthan, [1963] 3 SCR 376. Accordingly, we hold that since the document  alleged to  have been  forged was  not in  the present case  produced in  the court,  the provisions of the section 195(1)(b)(ii)  of the  Code have no application. We, therefore, confirm  the High  Court’s direction,  but  on  a different ground as indicated. The appeal is dismissed. S.L.                                       Appeal dismissed. 185