STATE OF KARNATAKA v. HEMAREDDY ALIAS VEMAREDDY AND ANR

Citation: [1981] 2 S.C.R. 695

Court: Supreme Court of India

Bench: S. MURTAZA FAZAL ALI, A. VARADARAJAN

Case summary

is therefore required and he could be validly convicted for that offence on the complaint given by the private individual.

Judgment text

STATE OF KARNATAKA v. • HEMAREDDY ALIAS VEMAREDDY AND ANR. January 27, 1981 [S. MURTAZA fAZAL ALI AND A. VARADARAJAN, JJ. ] Code of Crimina: Procedure 1973, S. 195(1)(b)(i) & Indian Penal Code 1860, S. 1·. 467, 193 and 114-Suit for reden1p1io11 of 1nortgage-Conspiracy by accused to deprive con1plai11ant of land-Safe deed forged-Prosecution without lvrittcn con1plaint of Court-Maintainability. Section 195(1)(b)(i) of the Code of Criminal Procedure 1973 provides that no court sha. 11 take cognizance of any offence punishable under any of the sections enumerated therein (one of v... hich is S. 193 J. P. C. ) when such offence is allL'ged to hai·e been conunifled i11, or in relation to, any proceeding in any court, except upon a written co1nplaint from a Court. The prosecution alleged that both the respondents along\\'ith two others conspired to cheat the complainant and to deprive him of certain lands by fabricating a sale deed.

The complainants' paternal grand-uncle mortgaged certain lands with possession to the father of respondent No. 1 for a period of 20 years with the • condition that possession would be surrendered. to the owner after the expiry of th~ period. The father of the complainant executed a will bequeathing the aforesaid lands to hinl. The period of 20 years having expired the complainant requested respondent No. 1 to surrender possession. Respondent No. 1 having failed to deliver possession, the compla. inant filed a suit for redemption of the mortgage. Subsequent to the institution of the suit the complainant came to know that respondent No. 1 had purchased the lands in question from respondent No. 2 who had impersonated the real ov.. ·ner, i. e. wife of the complainJnt's paternal grand-uncle. On inquiries made in the office of the Sub-Registrar, the complainant learnt that the sale deed had been registered on 10-11-1970.

After obtaining a registration copy of the sale deed and ascertaining that respondent No. 2 had no property of her own, the complainant filed a criminal complaint in the Court. After investigation, the Sub-Inspector of police filed a chargesbeet against both the respondents a. nd two others for having commiUed offences under sections 120B, 193, 465. 468 and 420 read with section 114 I. P. C. The Sessions Court to which only the respondents were committed, convicted respondent No. l under section 467 read with section 114 and section 193 I. P. C. and respondent No. 2 under section 467 I. P. C. and sentenced them to imprisonment and fine. In the appeals. against their conviction and sentence. the High Court found that respondent No. 1 was guilty nnder section 467 read with section 114 and section 193 J. P. C. , but acquitted him on the ground that the complaint in the crjminal case which ended in the conviction of both the respondents Vi'aS filed by a private individual i. e.

the complainant and not by a Civil Court. As regards respondent ~Na. 2 it found her to be guilty under section 467 l. P. C. but finding that she forged the document independently of respondent No. 1 and being an illiterate \\'Oman who haJ n1ercly put her thumb impression on the docun1ent to admit its execution hct'ore the Subi-Registrar modified the ,_entcncc awarded to her, • In the appeal to this Court. HELD: 1(i) The High Court was not right in law in holding that the complaint was totally not maintainable against respondent No. l in view of the provisions of S. 195(l)(b) of the Code of Criminal Procedure 1973, and in not only acquit· ting him of the offence under s. 467 read with s. 114 I. P. C. but also in finding that he has comn1itted an offence punisbabJe under section J93 l. P. C. [7. lOH] 1(ii) The High Court was justified in coming to rhe conclusion on the evi· dence that respondent No. 1 was guilty under section 467 read with section 114 I. P. C. and that respondent No.

~ was guilty under section 467 l. P. C. [711AJ l(iii) 'fhe conviction of respondent No. l under section 467 read with section 114 I. P. C. and of respondent No. 2 of 467 I. P. C. are confirmed. [711B] 2. S. 195 ( 1) (b) of the Code of Criminal Procedure requires that the offence under s. 193 LP. C. should be alleged to have been committed in or in relation to, any proceeding in any court. Since the forged sate deed was not produced in evidence in any stage of the redemption suit, s. 195(l)(b) of the Code of Criminal Procedure is not attracted. Therefore, the Magistrate who committed the accused to the Se'. sions. ccukl not n1ve taken cognizance of any offence under s. 193 I. P,C. so far as respondent No. 1 is concerned. The complaint could have been taken on file only for an offence punishable under s. 467 read with s. 114 I. P. C. so far as that accused is concer,ned. No complaint by the court for prosecuting respondent No. 1 for offence under s. 467 read with s. 114 l. P. C.

is therefore required and he could be validly convicted for that offence on the complaint given by the private individual. [701E-GJ 3. The Legislature could not have intended to extend the prohibition cont. 'lined ins. 195(1)(c) Cr. P. C. to the offences mentioned therein when committed by a party . to a proceeding in that court prior to his becoming such party. [708HJ 4. In cases, v;'here in the course of the same transaction an offence for which no complaint by a Court is necessary under section 195(1)(b) of the- Code of Criminal Procedure, and an offence for which a complaint of a court is necessary under that sub-section, are committed, it is not rossible to split up· and hold that the prosecution of the accused for the offences not mentioned in s. 195( 1) (h) of the Code of Criminal Procedure should be upheld. [702G] ' Jn the instant case the document forged by Respondent No. 2 was the sale deed d es the complainant stated (1) lt967] I SC R 93. (2) A. l. R. 1929 Madras 21. (3) A.

LR. 19J2 Madras 253. (4) A. LR. 1955 Madras 217 KARNATAKA v. HEMAREDDY (Varadarajan, !. ) 70 I that certain persons conspiTed with others and forged a document with the object of using it in evidence in certain proceedings pending in a court and other proceedings which might follow. That document was actually used in the proceedings pending before a court, and it • has been held that the offence complained of fell under s. 195(1) (b) of the Code of Criminal Procedure and, therefore, the complaint cannot be taken cognizance of unless it was in writing and by the court in which the offence was alleged to have been committed. It has been observed in that decision that to hold in such a case that although a private person was barred from prosecuting the accused for fabricating false evidence, he would still be at liberty to prosecute him for fraud would result in the provisions of s.

195(1) (b) of the Code of Criminal Procedure being evaded and that it is not open to the court to try the accused either for fabricating evidence or for fraud because the specific offence of fabricating false evidence should be given preference over the more general offence of forgery. In the second case the complaint was filed by a private person alleging that the accused had fabricated a promissory note and induced a third party to file suit against the complainant so as to obtain a fraudulent decree, and it has been held that the allegation made in the complaint attracted the provisions of s. 195(1) (b) of the Code of Criminal Procednre and the Conrt must refuse to take cognizance. In the third case, Som& ad High Court in Kushal Pal Singh case (supra) by pointing out that in that case lhe offence 4:lf forgery was alleged to have been committed in 1898, more than 25 years before it was produced or given in evidence in court and it was for this reason that Section 195(1) (c), Cr. P.

C. was held to be inapplicahk. In our view, the duration of time between the date of forgery and the production or giving in evidence of the forged document in court is not a governing factor. The principle laid down in Sombabhai's case (supra) was not founded on any such consideration. Reference to such delay was made in that decision in another context. After taking notice of the fact that Section 195(1) (c), Cr. P. C. deprives a private aggrieved party of the general right recognized by Section 190 Cr. P. C.

of directly initiating criminal [proceedings this Court observed in the case: / "The offences about which the Court alone, to the exclusion of the aggrieved private parties, is clothed with the right to complain may, therefore, be appropriately considered to be only those offences committed by a party to a proceeding in that comt, the commission of which has a reasonably close nexus with the proceedings in that court so that it can, without embarking upon a completely independent and fresh inquiry, satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party. It, therefore, appe'arS to be more appropriate to adopt in strict construction of confining the prohibition contained in Section 195 (1) (c) only to those cases in which the offences specified therein were committed by a party to the proceeding in the character as such party".

In the present case, the offence of abetmcnt of forgery was complete when the forged sale deed dated 10-11-70 was fabricated and registered. But no offence under s. 193 I. P. C. falling within the scope of s. 195(1) (b) of Cr. P. C. could be stated to have been committed by Hemareddy alias Vemareddy as the forged sale deed was not at all put in evidence at any stage in the redemption suit filed by the complainant on 17-11-70. Section 195 (l)(b) of the Code of Criminal Procedure reads : "(195) (1) No Court shall take cognizance (a) ........................... . (b) (i) of any offence punishable under any of the following sections of the Indian Penal Code, namely, sections l 93 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or ,, It could be seen that the section requires that the offence under s. 193 I. P. C.

should be alleged to have been committed in or in relation to, any proceeding in any court. Since the forged sale deed was not produced jn evidence in any stage of the redemption suit, s. 195(1) (b) of the Code of Criminal Procedure is not attracted. Therefore, the Magistrate who committed the accused to the Sessions, could not have taken cognizance of any offence under s. 193 I. P. C. so far as Hemareddy alias Vemareddy (A-1) is concerned. The complaint could have been taken on file only for an offence punishable under s. 467 'I read with s. 114 I. P. C. so far as that accused is concerned. It would t follow that no complaint by the court for prosecuting Hemareddy alias · Vemareddy for the offence under s. 467 read with s. 114 I. P. C. is required, and he could be validly convicted for that offence on the complaint given by the private individual. We are,. therefore, of the opinion that learned Judges of the.

High Court were not right in law in holding that the complaint in this case was totally not maintainable against I Hemareddy alias Vemareddy in view of the provisions of s. 195 (1) (b) of the Code of Criminal Procedure, und in not only acquitting Hemareddy alias Vemareddy of the offence under s. 467 read with s. 114 I. P. C. but alw in finding that he has committed an olfence punishable under s. 193 I. P. C. We accordingly confirm the judgment of the KARNATAKA v. HEMAREDDY (Varadarajan, J. ) 711 High Coutt as regards modification of the sentence awarded to Pyatal A Dhimakka (A-·2) and the acquittal of Hemaredd; alias Vemareddy 1 under s 1 )3 l. P. C. and dismiss the appeal to that extent but allow the appeal in part so far as Hemareddy alias Vcmareddy is concerned and find him guilty under s. 467 read with s. 114 l. P. C. and convict him and sentence him to undergo RI. for one year and also pay a fine of B Rs. 500/. and in default to undergo R. I. for thice months. N. V. K.

Appeal dismissed. l