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PETITIONER:

GURU BIPIN SINGH

Vs.

RESPONDENT:

SH. CHONGTHAM MANIHAR SINGH& ANR.

DATE OF JUDGMENT: 11/10/1996

BENCH:

G.N. RAY, B.L. HANSARIA

ACT:

HEADNOTE:

JUDGMENT:

THE 11TH DAY OF OCTOBER, 1996

Present :

Hon'ble Mr. Justice G.N. Ray

Hon'ble Mr. Justice B.L. Hansaria

Ram Jethmalani, Sr. Adv. P.H. Parekh and Ms. Indu Verma,

Advs. with him for the appellant

Dr. Shankar Chosh, Sr. Adv., S.K. Bhattacharya, L.K. Paonam

S. Janani, Advs. with him for the Respondents.

J U D G M E N T

The following Judgment of the Court was delivered :

Guru Bipin Singh

V.

Sh. Chongtham Manihar Singh

& Anr.

J U D G M E N T

HANSARIA, J.

Leave granted.

The Chief Judicial Magistrate, Imphal, took cognizance

of a complaint against the appellant under sections 465 and

468 read with section 420 IPC; and ordered on 20.12.90 to

issue warrant of arrest against him. He approached the

Gauhati High Court, Imphal Bench, seeking quashing of the

criminal proceedings. The High Court having dismissed the

revision petition, this Court has been approached under

Article 136 of the Constitution.

2. Shri Jethmalani, appearing for the appellant has

contended that the proceeding is an abuse of the process of

the court and deserves to be quashed because of there being

no legally admissible evidence against the appellant and

also because no offence has been made out even if the

allegations made against the appellant in the complaint be

accepted as true.

3. The abuse of process argument is advanced, inter alia, on

the ground that the complaint is stale in as much as

relating to the self-same matter a complaint had been filed

in early 1966 under Section 500 IPC, which became subject

matter of Complaint Case No. 13/66, which, however, ended in

compromise in 1968. According to the learned counsel, to re

agitate the same matter in 1990 is not for any bonafide

purpose but because of jealousy against the appellant for

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his having been awarded Sangeet Natak Akademy Award for the

book titled "Govinda Sangeet Lila Vilasa" which was

published by the appellant in 1964. The award was in token

of the learned presentation of the subject. The abuse

argument is also advanced because in the earlier case an

apology had been tendered by the appellant which had come to

be accepted; and so, the present complaint is only to harass

him.

4. Dr. Ghosh, appearing for the respondent, has urged that a

fresh cause of action accrued, which led to the filing of

the present complaint, inasmuch as the appellant repeated

the same offence in his article published in "Dances of

Manipur; the classical tradition", which saw light in 1989.

This compendium contains an article by the appellant titled

"Theory :the textual tradition" in which it has been again

stated by the appellant that the former book (Govinda

Sangeet Leela Vilasa) had been written by King Bhagyachandra

in 18th century, a part of whose manuscript has been

published at page 101. So, according to the learned counsel,

the appellant has reiterated his stand that the first book,

which was the subject matter of 1966 complaint, is based on

King Bhagyachandra's write-up. The allegation is that

Bhagyachandra being illiterate could not have written the

manuscript; and the appellant in order to give credence to

his book falsely represented to the readers that the same is

based on manuscript written by the King.

5. On the aforesaid facts, we would not accept the

contention of Shri Jethmalani that a stale matter is being

reagitated of jealousy. We, therefore, do not find in the

present case any abuse of the process of the court, as urged

by the counsel.

6. We may now examine the contention that the allegations

made in the complaint, even if true, do not make cut a case

under the aforesaid penal sections. The basic allegation is

that the appellant had forged the first book by stating

that is was based on the manuscript of the king thereby

deceiving the Government to get it published for which

purpose the assistance of Rs. 2,500 was given and which

also induced many members of the public to buy the same

believing it as genuine hereby depriving them of their

money. Shri Jethmalani has urged that for an offence under

section 465, the same has to be "forgery" as defined in

section 463, whose first ingredient is making of "any false

document or a part of a document". A person is said to make

false document as per section 464,

First - who dishonestly or

fraudulently makes, signs scales or

execute a document or part of a

document, or makes any mark

denoting the execution of a

document, with the intention of

causing it to be believed that such

document or part of a document was

made, signed, sealed or executed by

or by the authority of a person by

whom or by whose authority he knows

that it was not made, signed,

sealed or executed, or at a time at

which he knows that it was not

made, signed, sealed or executed;

or

Secondly X X X X

Thirdly X X X X

Explanation 2 :- The making of a

false document in the name of a

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fictitious person, intending it to

be believed that the document was

made by the person in his lifetime,

may amount to forgery.

7. It is urged by Shri Jethmalani that for making a false

document, the person concerned has to make, sign, seal or

execute the same. It is submitted that in the present case,

even as per the complaint, the appellant had not move ,

signed, sealed or executed the alleged manuscript inasmuch

as the allegation is that the appellant had passed on some

writing as representing the same to be in the hand of the

king. In the initial statement the complainant had stated

that the appellant relied upon the fabricated book named

above "Showing the same as genuine and claiming it as

written by late Maharaja Bhagachandra ........."

8. This shows that the allegations is that the appellant

had represented some writing to be of the Maharaja, though

in fact it was not so. It is not the allegation that the

appellant had himself written the manuscript and represented

it to be that of Maharaja. According to Dr. Ghosh, despite

this being the position, requirement of 464 would be

satisfied in view of what has been stated in Explanation

shows that for it to get attracted "making of a false

document" is essential; and it is this aspect which is

missing in the present case, according to Shri Jethmalani.

There is apparently force in the submission of Shri

Jethmalani because, as already pointed out, it is not the

allegation that it is the appellant who had made, signed,

sealed or executed the writing in question. This apart, when

we desired Dr. Ghosh to bring to our notice as to which

writing of King Bhagyachandra was represented to belong to

him, we were referred to a printed book titled "Rajarshi

Bhagyachandra Govinda Sangeet Leela Vilasa". This book,

however, is a Manipuri translation by one Pt. Braj Behari

Sharma, we do not have the original.

9. In view of all the above, we agree with Shri Jethmalani

that the allegations made in the complaint, even if true, do

not make out the case of forgery. Now, if forgery be not

there, allegations under section 420 would fail because the

allegation in para 5 of the complaint is that by "forging

the said book" deception was caused and members of the

public were induced to purchase the same. So, forgery is

the principal allegation; cheating being a consequential

offence. If forgery goes, cheating cannot stand. So,the

complaint sections, namely 420, 465 and 468. It may be

pointed out that 468 is intimately connected with 420 and

465.

10. Having come to the aforesaid conclusion, it is really

not necessary to deal with still another submission of Shri

Jethmalani that there is no legally admissible evidence to

support the case of the complainant. For the sake of

completeness, it may however, be pointed out that this

submission has been advanced, because in the complaint

reliance has been sought to be placed principally on three

pieces of evidence (1) statement of one Madam Gopal Sharma

(since deceased) which was recorded in the first complaint,

and which has been enclosed as Annexure C/1; (2) a reply of

one Pt. Sh. Joginder Nath Bhattacharya (also dead by now),

which is enclosed as Annexure C/2; and (3) a statement of

the appellant dated 8.10.66 which was made when the first

complaint was filed, which is Annexure C/3. As to the first,

submission of Shri Jethmalani is that the same is

inadmissible in law inasmuch as the requirements of the

proviso to section 33 of the Evidence Act are not satisfied.

This appears to be so. As to Annexure C/2, the contention is

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that the same is, what in legal parlance known as "written

heresay". As to the Annexure C/3, the submission is that

though the same is admissible, that proves nothing. A

perusal of that statement shows that appellant stated

therein that he had found the manuscript of Rajarshi and he

had edited the same, for which purpose he took the help of

a Sanskrit scholar for correcting grammatical pitfalls and

spellings. He then brought out a modified version of the

book and destroyed the original as he thought that it might

cause confusion if two manuscripts were kept. The

statementended by begging pardon as the appellant felt

represent for such short sightedness. This shows that Shri

Jethmalani is right in contending that the statement does

not advance the case of the complaint as it has not been

admitted that the manuscript was not a Rajarshi

Bhagyachandra.

11. The aforesaid being the legal position, we would allow

the appeal by quashing the complaint. It may be mentioned

that after having heard learned counsel for the parties at

length, we have not felt inclined to accept the submission

of Dr. Ghosh that this Court having been approached under

Article 136 of the power, which is used in cases where there

is miscarriage of justice. We having found that no case has

been made out in the complaint, continuance of the

proceedings continue. It is because of inclined to draw on

our power under Article 136.

12. Before parting, we desire to state that it would behave

the appellant to make public statement, as was his offer

during the abortive compromise talk, that the manuscript

was not in the hand of Rajarshi Bhagyachandra a and he

undertakes not to state so in future. We have felt the need

for such a statement because it seems to us that the claim

about the manuscript being in the hand of Raja

Bhagyachandra has hurt the feelings of the people of

Manipur, who have great regard and respect for late king

Bhagyachandra, to whom something was imputed, apparently

with motive, by the appellant without basis.