GURU BIPIN SINGHversusSH. CHONGTHAM MANIHAR SINGH AND ANR.

                          GURU BIPIN SINGH                                       A
                                      v.
          SH. CHONGTHAM MANIHAR SINGH AND ANR.

                           OCTOBER 11, 1996.

                 [G.N. RAY AND B.L. HANSARIA, JJ.]                               B

       Penal Code, 1860 : Sections 420, 465, 468 and 500-Seeking initiation
of Criminal Proceedings-Earlier a Complaint had been filed, which had
ended in compromise with tendering of apology-Repetition of same offence
alleged-Whether fresh cause of action accrned-Held, no legally admissible        c
evidence availablr-Commission of forgery under Section 463 has to be
there-Making of any false document or a part thereof must-In absence of
forgery the allegation under Section 420 would fail-Section 468 intimately
connected with Sections 420 and 465.

       Evidence Act : Section 33-Proviso-Reliance sought to be placed on         D
certain statement recorded in the first complaint-Held, the same is inadmis-
sible in law inasmuch as the requirements have not been complied with.

       Constitution of India, 1950: Article 136-Normally invoked only where
there is mis-carriage of justicr-Could also be invoked where continuance of      E
proceedings would merely be waste of court's time as no useful purpose would
be served.

      A complaint had been filed in early 1966 under Section 500 IPC
against the appellant. It, however ended in compromise in 1968. The
appellant had tendered an apology and it was accepted. The complaint             F
pertained to the book titled "Govinda Sangeet Lila Vilasa" which was
published by the appellant in 1964 for which he had heel! awarded Sangeet
Natak Academy Award. The award was in token of the learned presentation
of the subject.

       The publication of his article by the appellant in "Dances of Manipur     G
the classical tradition" in 1989 led to the filing of a fresh complaint on the
ground that a fresh cause of action had accrued inasmuch as the appellant
repeated the same offence which· was the subject matter of the earlier
complaint. This compendium contained an article by the appellant titled
"Theory : the textual tradition" in which it had been again stated by the        H
                                       611
    612                  SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R.

A appellant that the said book (Govinda Sangeet Leela Vilasa) had been
    written by King Bhagyachandra in 18th Century, a part of whose
    manuscript had been published at page 101. So, the appellant had
    reiterated his stand that the first book, which was the subject matter of
    1966 complaint, is based on King, Bhagyachandra's write-up. The allega-
    tion was that Bhagyachandra being illiterate could not have written the
B
    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.

         The Chief Judicial Magistrate, took cognizance of the complaint
C   against the appellant under Sections 465 and 468 read with Section 420
    IPC and ordered issuance of warrant of arrest against him. Appellant
    approached the High Court, seeking quashing of the criminal proceedings.
    The High Court having dismiss~d the revision petition, this Court has been
    approached under Article 136 of the Constitution.

D          It was contended for the appellant that the proceeding was an abuse
    of the process of the Court and deserves to be quashed because of there
    being no legally admissible evidence against him and also because no
    offence had been made out. The complaint had become stale inasmuch as
    relating to the selfsame matter a complaint had been filed earlier under      {


E   Section 500 IPC, which ended in a compromise. To re-agitate the same
    matter again was not for any bonafide purpose, but because of jealousy
    against the appellant as he was awarded by the Sangeet Natak Academy
    for his work, which was also published by him. It was also contended that
    in the earlier case an apology had been tendered by the appellant, which
    was accepted.
F
        On behalf of the respondent it was contended that a fresh cause of
  action had accrued foasmuch as the appellant repeated the same offence
  in his article published subsequently, in which it had been again wrongly
  stated by the appellant that the said book had been written by King
G Bhagyachandra.

          Allowing the appeal, this Court

        HELD : 1.1. For making a false document, the person concerned has
  to make, sign, seal or execute the same. The appellant had not made,
H signed, sealed or executed the alleged manuscript inasmuch as the allega-
             BIPIN SINGH v. CHONGTHAM MANIHAR SINGH                        613

tion is that the appellant ha~ passed on some writing as representing the A
same to be in the hand of Kibg Bhagyachandra. [616-D]

      1.2. It is not the allegation that t~e appellant had himself written the
manuscript and represented it to be that of King Bhagyachandra. Despite
this being the position, the requirement of Section 464 would be satisfied        B
in view of what had been stated in Explanation 2 to-section 464. So, far
the Explanation to get attracted "making of a false document" is essential;
and it is this aspect which is missing in the present case. So, the allegations
made in the complaint, even if true, do not make out the case of forgery.
                                                                [616-F, 617-B]
      2. If forgery be not there, allegation under Section 420 would fail
                                                                                  c
because the allegation 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 does not make
out a case under any of the three Sections, namely, 420, 465 and 468.             D
Section 468 is intimately connected with Sections.420 and 465. [617-B-C]

      3. As regards, there being no legally admissible evidence to support
the case, there are three pieces of evidence upon which reliance had been
sought to be placed pl'incipally. The first statement is inadmissible in law      E
inasmuch as the requirements of the proviso to Section 33 of the Evidence
Act are not satisfied. As to the second statement, it is what in legal parlance
is known as ''written hearsay''. The third statement, though admissible, does
not advance the case of the complainant as it has not been admitted that the
manuscript was not of King Bhagyachandra. [617-D-H, 618-A]
                                                                                  F
      4. As no case has been made out in the complaint, continuance of the
proceedings would merely be waste of Court's time and no useful purpose
would be served in allowing to proceedings to continue, this Court felt
inclined to draw on the power under Article 136 of the Constitution. [618-C]

      5. However, it would behove of the appellant to make a public G
statement that the manuscript was not in the hand of King Bhagyachandra
and he undertakes not to state so in future, because such a statement has
hurt the feelings of the people, who have great regard and respect for late
King Bhagyachandra to whom something was imputed by the appellant
without basis. [618-D-E]                                                    H
    614                   SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R.

A         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
    1805 of 1996.

         From the Judgment and Order dated 12.8.94 of the Assam High
    Court in Crl.A.No.l of 1991.

B           Ram Jethmalani, P.H. Parekh. and Ms. Indu Verma for the Appel-
    lant.

          Dr. Shankar Ghosh, S.K. Bhattacharya, L.K. Paonam and S. Janani
    for the Respondents.

C           The Judgment of the Court was delivered by

            HANSARIA. J. Leave granted.

         The Chief Judicial Magistrate, Imphal, took cognizance of a com-
  plaint against the appellant under sections 465 and 468 read with section
D 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 Con-
  stitution.
E
          2. Shri J ethmalani, 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.
F
        3. The abuse of process argument is advanced, inter alia, on the
  ground that the complaint is stale inasmuch 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-
G agitate the same matter in 1990 is not for any bonafide purpose but because
  of jealousy against the appellant for 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 ad-
H vanced because in the earlier case an apology had been tendered by the
     BIPIN SINGH v. CHONGTIIAM MANlHAR SINGH [HANSARIA, J.]               615

appellant which had come to be accepted; and so, the present complaint           A
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 publish-
ed in "Dances of Manipur; the classical tradition", which saw light in 1989. B
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       c
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 allega-
tion 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 D
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.                                                            E
       6. We may now examine the contention that the allegations made in
the complaint, even if true, do not make out 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 assistance F
of Rs.2,500 was given and which also induced many members of the public
to buy the same believing it as genuine thereby 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 G
said to make a false document as per section 464,

        First - who dishonestly or fraudulently makes, signs, seals or
        executes 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 H
    616                    SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R.

A           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   x   x   x   x
B
            Thirdly -    x   x   x x     x   x x     x

           ·Explanation 2 :- The making of a false document in the name of
            a fictitious person, intending it to be believed that the document
           ·was made by a real person, or in the name of a deceased person,
c           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
D   submitted that in the present case, even as per the complaint, the appellant
    had not made, 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
E   book named above "showing the same as genuine and claiming it as written
    by late Maharaja Bhagyachandra ..."

        8. This shows that the allegation 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
p 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 2 to section 464. A perusal of that
  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
G 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
H Bhagyachandra Govinda Sangeet Leela Vilasa". This book, however, is a
-'         BIPIN SINGH v. CHONG1HAM MANIHAR SINGH [HANSARIA, J.] · 617

      Manipuri translation by one Pt. Braj Behari Sharma. We do not have the           A
      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, allegation under section 420 would
                                                                                       B
      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 does not make out a case under any of the three sections,
      namely, 420, 465 and 468. It may be pointed out that 468 is intimately           C
      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 D
       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
       Madan 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 E
       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 J ethmalani 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 F
       to Annexure C/2, the contention is that the same is, what in legal parlance
       known as "written hearsay". As to the Annexure C/3, th~ 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 Rajarsiii and he had edited the same, for which purpose he
       took the help of a Sanskrit scholar for correcting grammatical pitfalls and G
     _ 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 statement ended by begging pardon as the
       appellant felt repentant for such short sightedness. This shows that Shri
       Jethrnalani is right in contending that the statement does not advance the H
    618                  SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R.

A case of the complaint as it has not been admitted that the manuscript was
    not of 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
B the submission of Dr. Ghosh that this Court having been approached under
  Article 136 of the Constitution, we may not permit invocation of this 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 would merely be waste of court's time, as no useful purpose
C would be served in allowing the proceedings to continue. It is because of
  this that we have felt inclined to draw on our power under Article 136.

           12. Before parting, we desire to state that it w_ould behove the
    appellant to make a public statement, as was his offer during the abortive
    compromise talk, that the manuscript was not in the hand of Rajarshi
D   Bhagyachandra 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
E   with motive, by the appellant without basis.

    s.s                                                        Appeal allowed.