Pratibha Upasani, J.@mdashThis criminal writ petition is filed by the petitioner/original complainant Dilipkumar J. Jain, being aggrieved by the judgment and order dated 28th February, 1994, passed by the Additional Sessions Judge, Greater Bombay in Criminal Revision Application No. 15 of 1993. By the impugned judgment and order, the learned Additional Sessions Judge dismissed the revision application of the complainant/petitioner herein, which he had filed against the judgment and order dated 11th December, 1992, passed by the Metropolitan Magistrate, 29th Court, Dadar, who had dismissed the complainant''s complaint, which he had filed under sections 193 and 471 of the Indian Penal Code read with section 195 of the Code of Criminal Procedure, 1973.
2. Few facts, which are required to be stated, are as follows :
The present petitioner had filed C.C. No. 18-S-92 against respondent No. 2/original accused for the offence punishable u/s 138 of the Negotiable Instruments Act, 1881. In these proceedings, the accused/respondent No. 2/Mohammed Tamboli led an application for discharge. The case of complainant was that he was the Manager of M/s. H.B. Jain, a firm doing wholesale business of various items of consumer goods. Respondent No. 2 was the Proprietor of M/s. Bombay Traders, a firm doing trading in some items of consumer goods. The said firm of respondent No. 2 purchased and took delivery of some merchandise from the petitioner''s firm M/s. S.B. Jain, in payment of which M/s. Bombay Traders issued cheques worth Rs. 57,48.10 paise in favour of the petitioner''s firm. They were dishonoured. Therefore, the petitioner filed the above complaint Case No. 18/S/92 in the Court of the Metropolitan Magistrate, 29th Court, Bhoiwada, u/s 138 of the Negotiable Instruments Act, 1881, against respondent No. 2, he being the proprietor of the said M/s. Bombay Traders, whose cheques had bounced.
3. Thereafter, respondent No. 2 filed an application for discharge and along with the discharge application annexed copies of two receipts-one signed by the erstwhile servant Mr. Lekhu of the petitioner''s firm, purportedly showing having received back some materials and the other one, signed by the petitioner, purportedly showing having received the payment of the said cheques, which were dishonoured.
4. The petitioner''s story is that he had a doubt that the first receipt, which was signed by his erstwhile servant Lekhu, was forged and he was certain that the second receipt was also forged, as, according to him, he had not signed any receipt. Hence complaint being Complaint Case No. 78/Misc./1992, under sections 193, 471 of the Indian Penal Code read with section 195 of the Code of Criminal Procedure, 1973, against respondent No. 2 came to be filed by him. This complaint was filed by him when his first complaint u/s 138 of the Negotiable Instruments Act, 1881, which he had filed against respondent No. 2 was still pending.
5. The petitioner alleged in this second complaint that respondent No. 2 was using copy of the forged documents in order to escape the liability in a criminal case. He also averred that either respondent No. 2 had earlier stolen or got stolen the letter-heads of the petitioner''s firm as he was regularly coming there and was having good relations with the firm''s staff or respondent No. 2 had fabricated the letter-heads of the petitioner''s firm in order to facilitate the commission of forgery. It is his story that he used one such copy in his discharge application and it was quite possible that some more letter-heads might be lying in respondent No. 2''s office or residence. He, therefore, applied for search warrant u/s 94 of the Code of Criminal Procedure, 1973.
6. The learned Magistrate of the 29th Court, Bhoiwada, however, rejected Complaint Case No. 78/Misc./92 on the ground that forgery had come to light during the pendency of judicial proceedings of Case No. 18/S of 1992 (which the complainant had filed u/s 138 of the Negotiable Instruments Act, 1881, against respondent No. 2). The learned Magistrate further held that the said complaint could be filed only by the concerned Court u/s 195 of the Code of Criminal Procedure, 1973. He rejected the petitioner''s application for search warrant also as a corollary to the rejection of the Complaint Case No. 78/Misc./92. Being aggrieved by the said order of rejection of his complaint as well as his application for search warrant, the petitioner approached the Sessions Court and filed Criminal Revision Application No. 15 of 1993. The learned Additional Sessions Judge also, by his impugned judgment and Order dated 28th February, 1994 dismissed his Revision Application. It is against this order, that the petitioner has approached this Court.
7. Mr. Bharadwaj appearing for the petitioner has submitted that the learned Magistrate ought to have proceeded u/s 156(3) of the Code of Criminal Procedure, 1973, when it was a specific allegation of the complainant that there was forgery of the receipts, which allegedly his erstwhile servant Mr. Lekhu had committed. According to him, the learned Magistrate ought to have sent the disputed receipts and the letter to the hand writing expert to affirm whether those documents were really signed by Lekhu or whether they had been signed by the complainant. It is the grievance of the petitioner''s Advocate that instead of following this procedure, the learned Magistrate proceeded under Chapter XV of the Code of Criminal Procedure, 1973 and hastily dismissed the complaint u/s 203. He also argued that in the present case, since the accused had produced only a copy of the disputed receipt and the letter, private complaint by the aggrieved party was maintainable and that there was no bar u/s 195 of the Code of Criminal Procedure, 1973. To substantiate his arguments, Mr. Bharadwaj relied upon number of authorities. Some of them were as follows:
(1) AIR 1950 37 PC 34 Sanmukh singh and another v. The King. (2)
8. I have heard Mr. Bharadwaj at length on this point, so also Mr. Salvi, the learned A.P.P. appearing for the State. The legal position on this point is well settled and there is almost no grey area, that indeed when what is produced before the Court is only a copy of the forged document and the original forged document is not produced, then bar u/s 195(1)(b)(ii) of the Code of Criminal Procedure, 1973, would not apply. Therefore, on this point, the submissions advanced by Mr. Bharadwaj can be accepted and it will have to be held that the finding of the learned Metropolitan Magistrate, 29th Court, Dadar, was erroneous inasmuch as he erroneously held that the complaint filed by the complainant was not tenable as the Court ought to have filed the complaint and that the complainant had no locus standi to file the present complaint (the second complaint), in view of section 195 of the Code of Criminal Procedure. He gave a finding that the Court ought to have filed a complaint which was obviously wrong.
9. The Revisional Court, has correctly accepted the submission of Mr. Bharadwaj on this point that when on a copy of the disputed document, which is alleged to be a forged document, is tendered in the Court, bar of section 195 of the Code of Criminal Procedure is not attracted. However, the second limb of argument of Mr. Bharadwaj that the learned Magistrate ought to have sent the disputed receipts for investigation to the hand-writing expert, and that he was bound to proceed u/s 156(3) of the Code of Criminal Procedure, 1973, is not acceptable. The learned Addl. Sessions Judge, was of the view that the complainant, by making this application, was trying to make use of State machinery for the purpose of collecting evidence which was not proper. The learned Additional Sessions Judge also thought that the application of the complainant was premature at that stage and that the concerned Court where the disputed documents were filed, would have to consider the exact nature of the documents on record and that the original documents would have to be brought on record, which might give rise to the Court to proceed u/s 195 of the Code of Criminal Procedure, 1973. In my opinion, the finding of the Additional Sessions Judge is correct and I do not find any reason to differ with the said finding.
10. The present position as far as the case in hand is concerned, is that there is no finding from the lower Court that the disputed documents are forged documents. No such finding is as yet given by the lower Court. It is also true that the complainant is seeking to use the State machinery at this stage to collect evidence in his favour. This is improper and has to be avoided. Mr. Bharadwaj has been harping on the point that bar of section 195 of the Code of Criminal Procedure, 1973, is not attracted. This is no doubt an important point for consideration. However, having considered that point in favour of the petitioner, the next point is, whether the application of the complainant to send the allegedly forged receipt to the hand-writing expert at this stage is proper or not. The learned Additional Sessions Judge has held that it is premature and I agree with that finding. The main complaint filed u/s 138 of the Negotiable Instruments Act, 1881 is still pending and, hence, application of the complainant under sections 193 and 471 of the Indian Penal Code in Case No. 78/Misc. of 1992 was thought to be a premature application and the learned Additional Sessions Judge was correct in refusing the relief prayed for by the petitioner in this revision application.
11. After hearing both the Advocates at length and after going through the impugned judgment of the Revisional Court, I find that the learned Additional Sessions Judge, while holding in favour of the complainant as far as legal position u/s 195 of the Code of Criminal Procedure, 1973 for the offence punishable under sections 193 and 471 of the Indian Penal Code is concerned, has not stated in so many terms that the private complaint filed by the petitioner is maintainable as there is no bar of section 195(1)(b)(ii) of the Code of Criminal Procedure. He has simply dismissed the revision application while partly holding in favour of the petitioner. His finding in para 10 of the judgment against the petitioner also need not be interfered with. As far as the finding in para 10 of the impugned judgment about discretion of the Magistrate u/s 156(3) of the Code of Criminal Procedure is concerned, the learned Addl. Sessions Judge is right and I agree with his finding. In view of this position, the prayer of the writ petition will have to be modified as follows:
Criminal Writ Petition No. 521 of 1994 is partly allowed and it is held that the criminal complaint in Case No. 78/Misc. of 1992, is maintainable and the learned Magistrate is directed to proceed in accordance with law. Writ petition is disposed of accordingly.
Criminal writ petition partly allowed.
