PATEL LALJIBHAI SOMABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal with certificate under Art. 134 (1) (c) of the Constitution directed against the Judgment and order of the Gujarat High Court in criminal reference made by the Sessions Judge, Ahmedabad, raises an important question of law on which there appears to be conflict of judicial opinion. Even in the Gujarat High Court the correctness of the majority view in the Full Bench decision in the State of Gujarat v. Ali Bin Rajak, (1968) 9 Guj LR 1 (FB) has been doubted by the learned Judge hearing the criminal reference in the present case, who followed the majority view merely because he felt bound by it. The learned single Judge did not consider the case to be fit for reference to a larger bench for reconsidering the majority view in the case of Ali Bin Rajak, (1968) 9 Guj LR (FB) , Certificate of fitness for appeal to this Court was, however, granted by the learned Judge.

(2.) The question raised relates to the scope and effect of S. 195 (1) (c) , Cr. P. C. and its applicability to cases where a forged document has been produced as evidence in a judicial proceeding by a party thereto and prosecution of that party is sought for offences under Ss. 467 and 471, I.P.C. in respect of that document.

(3.) The relevant facts of the case may now be briefly stated. The appellant Patel Laljibhai Somabhai instituted a Civil Suit (No. 11 of 1964) in the court of Joint Civil Judge at Dholka against Vora Safakat Huseian Yusufali (hereafter called the complainant) and his brother Vora Ahmed Huseian Yusufali for the recovery of Rs. 2,000/- on the basis of a cheque dated November 22, 1963 (alleged to have been given to him on June 27, 1963) under the signatures of the complainant Vora Safakat Huseian Yusufali Lakadwala on the Bombay Mercantile Co-operative Bank Ltd., Ahmedabad Branch. The defence in the suit was that the cheque in question and certain coupons which were produced and relied upon in that suit were forged and the suit was false. The suit was dismissed on January 30, 1965 by the Joint Civil Judge, Dholka. The Court did not believe the plaintiff's story about the cheque. On November 16, 1965 the complainant filed a complaint in the Court of the Judicial Magistrate, First Class, Dholka against two accused persons for offences punishable under Ss. 467 and 471, I. P.C. The two accused were Vora Saifuddin Akbarali and the appellant. Vora Saifuddin Akbarali (accused no.1) is described in the complaint as the complainant's sister's husband. It was averred in the complaint that the complainant's elder brother Ahmedbhai had started a business in milk in Ahmedabad and accused no. 1 used to help him in that business from time to time. This business had been started in the shop of the brother of accused no. 1 who was also dealing in milk. Ahmedbhai used to stay at the house of accused no 1. The books, coupons and cheque books of the milk business had been kept at the residence of accused no. 1. This business was carried on till July, 1962 when it was closed and Ahmedbhai left Ahmedabad for Limbdi for staying there. The appellant had been appointed as the commission agent through accused no. 1 and milk was collected from various milkmen through him (the appellant) . When the business was closed on July 28, 1962 a sum of Rs. 231.1.0 remained to be paid to the appellant and nine cans of milk remained in balance with him A notice was given in this connection after settling all the accounts and the appellant paid Rs. 200/- in cash to Ahmedbhai and thereafter nothing was due to the appellant. On November 30, 1962 the defendants in the suit at the instance of accused no. 1 started a milk shop at Jamalpur and they used to stay at the house of accused no. 1 who was employed in the Mercantile Bank and through whom an account was opened with that bank in the name of the defendants. Accused no. 1 used to utilise this account for himself and his brothers. Being a relative, accused no. 1 was trusted by the complainant and his brother and they used to act according to the instructions of accused No. 1. In June, 1962 accused No. 1 had come to Limbdi and asked for a loan of Rupees 15,000/- from the complainant's father. But this request was declined with the result that accused No. 1 got annoyed and threatened him with ruinous consequences. Thereafter accused No. 1 conspired with the appellant to ham the complainant and his brother and father. Cheque books containing blank cheque forms but bearing the complainants signatures and all the books of account were at that time kept in the house of accused No. 1, where the complainant and his brother used to stay. It is in this background that the accused No. 1 prepared a cheque for Rs. 2,000/- in his own handwriting on a blank cheque form bearing the complainant's signature and the appellant utilised that cheque. The appellant and accused No. 1 were, on these averments, alleged to have forged the cheque. Civil Suit No. 11/64 was then filed in which this cheque was used knowing the same to be forged. The Magistrate found prima facie evidence that the appellant law accused No. 2) had fraudulently used in the Civil suit the forged cheque in question. The Magistrate also found prima facie evidence that accused No. 1 had committed an offence punishable under Section 467, I. P. C. and the appellant was liable under Section 34, 1. P. C. The forgery of the cheque and the use of the forged cheque as genuine were considered by the Committing Magistrate to form part of the same transaction and the two charges could, therefore, be tried together. The question of the necessity of complaint by the Civil Court under Section 195 (1) (c) , Cr. P. C. was also raised in the committing Court but following the decision of the Bombay High Court in Emperor v. Mallappa, AIR 1937 Bom 14, the Magistrate held that provision to be inapplicable to the present case. On behalf of the appellant an application was then made in the court of the Assistant Sessions Judge in which the trial was to be held, praying for quashing the commitment proceedings because in face of S. 195 (1) (c) no cognizance of the offence could be taken by the court on a private complaint. As the Assistant Sessions Judge could not make any reference to the High Court the case was withdrawn by the Sessions Judge to his own court who after hearing the application referred the case to the High Court with a recommendation that the commitment order be quashed. The High Court, considering itself bound by the majority view in the case of Ali Bin Rajak, (1968) 9 Guj LR 1 declined the recommendation and upheld the conmitment order as already noticed. In view of the conflict of judicial opinion amongst the various High Courts and even in the Gujarat High Court itself we would prefer first to consider the relevant statutory provisions on their own language and thereafter to consider the decided cases.