VISHNU CHANDRU GAONKAR versus N.M. DESSAI

Citation: [2018] 3 S.C.R. 103 · Decided: 06-03-2018 · Supreme Court of India · Bench: A.K. SIKRI · Disposal: Dismissed

Cited by 1 judgment(s) · cites 4 · see the full citation network in Lexace

Judgment (excerpt)

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VISHNU CHANDRU GAONKAR
v.
N.M. DESSAI
(Criminal Appeal No.359 of 2018)
MARCH 06, 2018
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Code of Criminal Procedure, 1973: s. 195(1)(b)(ii) –
Prosecution under, for offence alleged to have been committed in
respect of document produced or given in evidence in a proceeding
in any court – On facts, application u/s. 195(1)(b)(ii) by appellant
making allegations against respondent-counsel for the opposite
party, that he committed offence in verifying and forging thumb
impression of dead appellant – Order of District and Sessions Judge
directing for filing a complaint u/s. 195(1)(b)(ii) – Set aside by the
High Court – On appeal, held: Where offences has already been
committed earlier and later on the document is produced or given
in the evidence in Court, the same is neither covered under Clauses
(a), (b)(i) or (b) (ii) – On facts, the High Court rightly held that
instant case is not where any complaint could have been proceeded
u/s. 195(1)(b)(ii).
Dismissing the appeal, the Court
HELD: 1.1 Appeal No. 91 of 2004 was filed by several
appellants, out of which one of the appellants was SMV, who died
on 02.03.2005. The application for withdrawal of the appeal was
filed on 18.07.2006. One of the respondents before the High
Court, took it upon herself to say that the thumb impression,
which was put as of ‘SMV’ was put by her, since her husband
‘SMV’ also used to sign along with her, in good faith, she put her
thumb impression. The respondent came with the case that he
having been informed that talks of settlement amongst the
Gaonkars is going on and they are intending to withdraw the
execution application filed by them. He, as per instructions of his
client, drafted and handed over the application for withdrawing
the Appeal No. 91 of 2004 to one SK to obtain the signatures of
the remaining respondents. He further came with the case that
  [2018]  3 S.C.R. 103
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SUPREME COURT REPORTS
[2018] 3 S.C.R.
he was not aware of death of SMV or alleged forged thumb
impression of SMV on the application. The facts fairly indicate
that the application when it was presented in the Court in Appeal
No. 91 of 2004 for withdrawal of the appeal, signatures/thumb
impressions of the appellants were already obtained on the said
application, which was handed over to the respondent in this
appeal for filing in the Court. On the same date, i.e., 18.07.2006,
the Court allowed the application permitting withdrawal of the
appeal. A Criminal Misc. Application No. 95 of 2007 for initiating
action under Section 195(1)(b)(ii) of Cr.P.C. was filed by the
appellant after the said withdrawal of the appeal. The application
was allowed by the District Judge where the District Judge had
directed for inquiry to be conducted in terms of Section
195(1)(b)(ii) of Cr.P.C. [Paras 7-9] [109-A-B, D]
1.2 The submission raised by the appellant is rejected due
to the reason that before the Session Court as well as before the
High Court, the appellant has alleged an offence under Section
195(1)(b)(ii). In the Application No. 95 of 2007 prayer was for
complaint to be made as per the provisions contemplated under
Section 195(1)(b)(ii) of Cr.P.C. Even the order of District Judge,
which was the basis in favour of the appellant on 31.07.2008 has
also directed for inquiry and initiating complaint in terms of Section
195(1)(b)(ii) of Cr.P.C. There being specific case of the appellant
in his complaint as well as in order passed by the District Judge
in his favour, it is not open for the appellant to turn round and
claim that allegations are covered under Section 195(1)(b)(i). The
Constitution Bench in Iqbval Singh Marwah elaborately noticing
the statutory scheme under Section 195 has held that where
offences has already been committed earlier and later on the
document is produced or given in the evidence in Court, the
same is neither covered under Clauses (a), (b)(i) or (b) (ii).
[Para 15] [112-B-E]
1.3 The execution application, which was filed by the decree
holder was also withdrawn. The appeal, which was filed by
judgment debtor was withdrawn by judgment debtor, which in no
manner had impaired the interest of the appellant, who was legal
heir of decree holder. It is also on the record that legal heirs of
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the decree holders have also withdrawn their execution
application, which has attained finality. None of the appellants,
who had filed Appeal No.91 of 2004 before the High Court has
initi

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