Case: George Bhaktan Vs. Rabindra Lele

4. The broad essential facts which are required to be adumbrated for the adjudication of the appeal are that the appellant-complainant filed a complaint under Section 200 of the Code of Criminal Procedure, 1973 (for short the Code) against the accused-respondents alleging commission of offences under Section 425, 468 and 471 of the Indian Penal Code, 1860 ( for short the IPC) on the foundation that the complainant, the Managing Director of Ores India (P) Ltd. had approached the accused persons for supply of machines and equipments for establishing an Iron Ore Crusher Unit at village Regalveda in the district of Sundargarh with the financial assistance from Orissa State Financial Corporation (OSFC). The accused persons being desirous of supplying the machinery and equipments persuaded the complainant to place the purchase order in their favour and on the basis of their past performance, the appellant placed the purchase order on 23.10.1997. As stipulated in the said purchase order, the accused persons, apart from other things, had agreed to provide designing and drawing for complete plant with 15 months guarantee from the date of dispatch. On the basis of the purchase order, the complainant sent cheques for Rs.15 lakhs and, as alleged, after receipt of the said money the accused persons sent their written confirmation to OSFC acknowledging the receipt of the money. The OSFC, in turn, paid Rs.25 lakhs to the accused persons as an advance keeping in view the commitment made by the complainant5. As the complaint would further uncurtain, in spite of substantial amount of money being paid by way of advance, no steps were taken by the accused persons to ensure supply of machineries and equipments with an ulterior motive, as a consequence of which the complainant suffered huge loss. It is asserted in the complaint petition that with the intention to cause wrongful loss and damage to the complainant, accused persons procured a letter pad of the complainant from a staff of the company and typed a letter with the signature of George Bakhtan on that letter so that they would get an extension from the OSFC regarding the date of purchase. It is further alleged that the accused persons orchestrated a conspiracy and contrived to manipulate the transaction but eventually the machineries were not supplied. In this backdrop, the complaint was lodged for the offences which have been mentioned hereinbefore6. On the basis of the complaint, initial statement of the complainant was recorded under Section 200 of the Code and thereafter an enquiry was conducted under Section 202 of the Code and ultimately cognizance was taken. Be it stated, for some reason, the order of cognizance initially taken was set aside by the High Court and the matter was remitted to the trial court to deal with the aspect of cognizance in accordance with law. Thereafter, vide order dated 18.10.2000, the learned Magistrate took cognizance in respect of the offences7. Being grieved by the aforesaid order, the respondents preferred a petition under Section 482 of the Code. The primary plank of proponement before the High Court was that the order of cognizance was sensitively susceptible inasmuch as the alleged forged document was produced in the suit brought by the respondents and, therefore, the prohibition contained in Section 195(1)(b)(ii) would get attracted on all fours. To bolster the said submission, reliance was placed on a two-Judge Bench decision in Gopalakrishna Menon and Anr. V D. Raja Reddy and Anr. (1983) 4 SCC 240 )The said submission was resisted by the counsel for the complainant placing reliance on Smt. Nagawwa V. Veeranna Shivalingappa Konjalgi and others ((1976) 3 SCC 736 ). The High Court, appreciating the legal submissions, came to hold as follows:-8. In the case at hand, the prosecution is on the basis of a private complaint and in the absence of a complaint from the appropriate civil court, where the alleged fraudulent document has been produced, would not be sustainable and such proposition is no longer res integra what has been settled by the Honble supreme Court in the judgment rendered in the case of Gopalakrishna Menon & another (supra)9. In view of the aforesaid conclusion, I am of the considered view that if the prosecution is allowed to continue, serious prejudice would be caused to the petitioners and they would be called upon to face the trial which would not be sustainable. Hence, the order of cognizance dated 18.10.2000 passed in I.C.C. case No. 92 of 1998 by the learned S.D.J.M., Panmposh, Udit Nagar, Rourkela is set aside and it is left open for the opposite party-company, if so advised, to make such complaint before the Civil Court, Vadodara if aggrieved in any manner to the alleged forged document produced before the said court who would be competent to deal with the same

Reasoning:
8. As is evincible, at the said juncture, the High Court did not think it appropriate to dwell upon the justifiability of the order taking cognizance on facts, for it set aside the order solely on the basis of the principle stated in Gopalakrishna menon (supra)11. On a perusal of the order passed by the High Court, it is absolutely pellucid that it has not adverted to any aspect pertaining to the allegations in the complaint or the material brought on record to arrive at a conclusion whether a prima facie case has been made out or not. It has singularly addressed the controversy on the legal backdrop that when a document is produced in a civil proceeding, it attracts the bar under Section 195(1)(b)(ii) of the Code and, therefore, the complaint is not tenable in law20. In the case at hand, as we find, the allegation in the complaint is that the respondents had forged the signature of the complainant and submitted to the Corporation seeking extension of the period of supply. Thereafter, seeking certain relief a suit was filed and in the suit the document was filed. There is no allegation that this document was forged when the matter was subjudice before the Civil Court. Thus, the dicta of the Constitution Bench is squarely applicable. The High Court has clearly erred in relying on the principle stated in Gopalakrishna Menons case (supra) which makes the impugned order wholly indefensible21. We have already taken note of the submission of Mr. Rao that the High Court has not adverted to the factual score whether a case has been made out on the basis of the material brought on record. In the absence of any findings in that regard by the High Court, we do not intend to take up the burden on ourselves.