DADASAHEB SHANKAR YADAV Vs. CHANDRAKANT JUABA YADAV

JUDGEMENT

(1.) NOBODY represented for the petitioner even though on record Shri Shuja Uddin has filed Vakalatnama. Ms. Deogaonkar holding for Shri V. A. Thorat appears for the respondent No. 1 Shri Mhaispurkar A. P. P. appears for the respondent No. 2.

(2.) THE writ petition is to challenge the order passed by the 3rd Additional Sessions Judge, Satara dated 6-12-1989. By the impugned order the learned Additional Judge has set aside the order of the Judicial Magistrate, First Class, was in R. C. C. No. 214/83 discharging the petitioner from the offence punishable under section 463, Indian Penal Code. The allegation against the petitioner in the complaint before the Magistrate was that the petitioner was collecting an amount of Rs. 700/- using a letter of authority purported to be issued by the Respondent No. 2 authorizing him to collect the Rs. 700/- from the sugar factory, Bhuinj towards the transport charges. When a suit was filed by the respondent no. 1 against the sugar factory, Bhuinj for realization of rs. 700/- due to him towards the transport charges, the letter in question was produced by the sugar factory in discharge of their obligation to pay the transport charges. The Roznama of the suit No. 2009/79, which has produced along with the writ petition, will go to show that on 7-10-1982 the so-called letter of authority dated 1-3-1979 has been produced at the instance of the sugar factory. The petitioner did not appear in the suit and contested the matter. He was set ex parte. The Civil Court exonerated the sugar factory from its liability to pay the amount : but a decree was passed against the petitioner, the present complaint was filed on 21-3-1983 whereas the suit was decreed on 28-10-1982. The complaint before the Magistrate alleges that the letter dated 1-3-1979 was fabricated by the petitioner for the purpose of defrauding the respondent No. 1 and collecting the amount of Rs. 700/- from the sugar factory. On an application filed by the petitioner before the Magistrate for discharge, the Magistrate allowed his petition. The learned Magistrate seems to have taken a stand, that the alleged fabricated letters since produced before the court, by virtue of section 195 of the Criminal procedure Code, that court should have made a complaint before the Magistrate and then only the Magistrate could have taken cognizance of the offence. Against the order of discharge, the respondent No. 1 filed a revision before the additional Judge as mentioned above. The Additional Judge, as mentioned earlier by the impugned order set aside the order of the Magistrate. The Additional Judge took up a stand that much before the filing of the suit the so-called letter came to be in existence and that the letter in question was not relied upon by the Civil Court because the suit was decreed merely on oral evidence. The said letter was not made use of as an evidence before the Civil Court and therefore bar under section 195, Criminal Procedure Code will not be attracted.

(3.) IN this context the learned counsel for respondent no. 1 has brought to my notice a decision of the Supreme court in AIR 1994 SC 1549 where it has been held that if the offence of forgery of documents was committed before the start of proceedings before a court, then bar of section 195 will not be attracted. In this context in para 3 of the judgment the Supreme Court has held :