P.K.Jain - (1.) HEARD Shri V. C. Katiyar, learned counsel for the revisionists, Sri R. B. Sahi and learned A.G.A. for the opposite party.
(2.) OPPOSITE party No. 2 Mahabali filed the complaint before Munsif Magistrate, Fatehpur raising that he was co-sharer with accused Sheo Shanker, Suresh Chandra and two others, namely, Bihari and Ram Shanker. Sheo Shanker and Suresh Chandra wanted the complainant to give land of his share to them. The complainant did not agree whereupon accused Sheo Shanker and Suresh Chandra conspired with the Jia Lal accused and after impersonating Jia Lal as Mahabali got the sale-deed dated 3.12.81 executed in the name of Ram Shanker and Bihari. Accused Vedshi Lal Verma and Jagat Narain, Lekhpal had also colluded and conspired in getting forged sale-deed executed and registered. Sheo Nath and Ram Asrey accused had also identified Jia Lal as Mahabali at the time of the execution of sale-deed. It was also alleged that the accused person approached Bihari son of Dwarika co-sharer in the said khata for signing an application for mutation. Bihari did not sign the said application and informed about the execution of forged sale-deed to the complainant. On these allegations, it was prayed that the accused person may be tried and convicted for offence punishable under Sections 465, 467, 120B and 420, I.P.C. The complainant examined himself under Section 203, I.P.C. and Behari son of Dwarika under Section 202, I.P.C. and also moved an application for summoning the original document from accused Sheo Shanker and Suresh Chandra and also the record of the office of Sub-Registrar so that the thumb impression on the sale-deed may be compared with the thumb impression of the complainant. Learned Magistrate being satisfied with the evidence on record summoned the accused persons under Sections 465 and 420, I.P.C. vide order dated 25.2.1987. On appearance, the accused persons moved an application dated 18.10.82 alleging that the present complaint was in respect of executing forged sale-deed. The complainant has already filed a civil suit for cancellation of the sale-deed which was pending from before filing of the present complaint. It was stated that the complainant was barred by Section 196, Cr. P.C. and court cannot take cognizance. After hearing the parties counsel, learned Magistrate passed order dated 4.11.1982 holding that the suit was pending before the civil court in which the question of forging the document in question was under consideration. Learned Magistrate held that the complaint was barred by Section 195 (1) (b), Cr. j P.C. Consequently, the complaint was dismissed.
(3.) THE revision preferred against the judgment and order of the trial court was allowed by the learned Additional Sessions Judge vide judgment and order dated 29.4.83 holding that bar under Section 195 (1) (b), Cr. P.C. was applicable to the cases where the offence is said to have been committed by the parties to the proceedings after such party had become party in such proceedings and not before. Learned Sessions Judge held that in the present case offences under Sections 465, 467, 120B and 420, I.P.C. were undisputedly alleged to have been committed by the opposite parties prior to their having become party to the proceedings or prior to the said document having been produced or tendered in evidence in the proceedings in any court. THE learned Sessions Judge relied upon the cases of Raghunath v. State, AIR 1973 SC 1100 and Madan Lai v. State of Rqjasthan, AIR 1974 SC 299. Learned Sessions Judge set aside the order of the Magistrate and remanded the case for proceeding in accordance with law. It is this judgment and order which is being challenged in this revision. I It may be noted that there was no material before the courts below to | come to the conclusion if any proceedings before the civil or revenue court were j instituted at any stage in which the document in question was filed claiming to be the genuine document. The complainant in his complaint simply stated that | Behari a co-sharer approached him and told him that the accused persons had come to him with mutation application asking him to put his thumb impression on the same and it was then that he (complainant) learnt about the execution of forged document. The accused persons in their application dated 18.10.1982 simply stated that a suit was pending before the civil court which was filed by the complainant's party and in the said suit, the genuineness of the said sale-deed was being questioned. Neither the number of the suit nor the court in which the suit was pending was stated nor any document was filed showing that the suit was actually pending in which the genuineness of the document in question was being challenged by the complainant. Without such evidence the question of applicability of bar under Section 195, Cr. P.C. could not have been disposed of by the courts below.;