Bombay High Court
Gopal S/O Ramchandra Abewal And ... vs The State Of Maharashtra, Police ... on 30 November, 2007
Equivalent citations: 2008(110)BOM.L.R.26
Author: V.R. Kingaonkar
Bench: V.R. Kingaonkar
JUDGMENT V.R. Kingaonkar, J.
Page 0028
1. This is an application filed Under Section 482 of the Cr.P.C. for quashing of F.I.R. lodged by Respondent No. 3 on 24.4.2007 at Sadarbazar Police Station, Jalna for offences Under Sections 420, 468, 504, 506 read with Section 34 of the I.P.C.
2. For amplification of understanding the nature of dispute, a brief resume of facts may be taken. The dispute relates to an open plot bearing CTS No. 4076, admeasuring 9277 Sq.ft. According to the Respondent No. 3, who lodged the F.I.R., he agreed to purchase the said open plot for consideration of Rs. 50,00,000/-. He paid earnest amount of Rs. 51,000/-to the owners Nandkishor Jaiswal and others. He was inducted in possession thereof. About a month prior to lodging of the F.I.R. he came to know that the applicant Nos. l and 2 have fabricated a false document styled as "Taba Isar Pawati" dated 30.3.1999 which was purportedly executed by original owner Lalchand Bhurelal Yadav. They were abusing and were giving threats to him. They were trying to disturb his possession by erecting a hut in the open plot. Consequently, he urged to carry out investigation in regard to forgery of the document, offence of cheating and that of criminal intimidation.
3. The Police registered an offence and started the investigation. It appears that the Police recorded some of the statements including that of said Lalchand Yadav.
Page 0029
4. The applicants would submit that on the basis of the agreement of sale dated 30.3.1999, which was purportedly executed by said Lalchand in favour of applicant No. l, she filed a civil suit (Special Civil Suit No. 99/2006) in the Court of Civil Judge (S.D.), Jalna for relief of specific performance and injunction. The injunction was sought not only against said Lalchand but also adjoining property owners by name Deepak Kundanlal Rathi and Shivratan Rathi as well as the applicant No. l. The Civil Court granted temporary injunction in favour of applicant No. 2 in the said suit. The civil litigation is still pending before the competent Court.
5. According to the applicants, false complaint is lodged by the Respondent No. 3 in respect of the agreement of sale (Taba Isar Pawati). They alleged that the F.I.R.is without any foundation and, therefore, is liable to be quashed. They further alleged that investigation into the F.I.R. and eventually any prosecution is likely to cause unnecessary harassment to them. That would amount to abuse of process of law. Consequently, they urged to quash the F.I.R. and consequent investigation.
6. The Respondent No. 3 has filed counter affidavit alleging that he is in actual possession of the open plot bearing CTS No. 4076 over which the applicants are trying to make an illegal claim. It is submitted by the Respondent No. 3 that the complaint is truth bearing and the applicants are trying to misuse a totally fabricated and false document. It is contended that signature of said Lalchand is forged and the so-called agreement of sale, relied upon by applicant No. 2 in her Special Civil Suit No. 99/2006, is outcome of fraud and conspiracy between the applicants inter se. It is asserted that the Criminal Law is set in motion with bonafide intention to protect the rights available to the Respondent No. 3 and to bring on surface the forgery committed by the applicants in relation to the so-called agreement of sale dated 30.3.1999.
7. Heard Mrs. Kalpalata Patil Bharaswadkar, learned advocate for the applicants, Mr.Umakant Patil, learned A.P.P. for the State and Mr.A.S.Bajaj, learned advocate for Respondent No. 3.
8. At the threshold, let it be noted that the Respondent No. 3 claims to have agreed to purchase the disputed open plot from members of Jaiswal family under an agreement executed by them in his favour. Said members of Jaiswal family claimed their rights on the basis of a sale transaction entered into with one Vithal Ramesh Agrawal, who is said to be Special Power of Attorney Holder of Lalchand Yadav. Needless to say, the applicant No. 2 Meerabai as well as Respondent No. 3 -Nandkishor claim their rights through the same previous owner, namely, Lalchand Yadav.
9. On perusal of copy of the application for temporary injunction and the order rendered by the Civil Court, it would be clear that said Lalchand was joined as defendant No. 1 in the Special Civil Suit No. 99/2006 filed by applicant No. 2 - Meerabai. He did not file his pleadings. The reasons for such omission may be genuine but the fact remains that he did not resist application for interim injunction nor did he file pleadings in the suit. The most important fact to be noticed is that the agreement of sale dated 30.3.1999, regarding which the alleged forgery is said to have been Page 0030 committed by the applicants, is filed by the applicant No. 2 - Meerabai in that civil suit (Spl.C.S. No. 99/06). Learned advocate Mrs. Bharaswadkar, makes a statement that the original agreement dated 30.3.1999 is filed by the applicant No. 2 Meerabai in the said suit. This fact is most significant inasmuch as where forgery of a document is alleged in the context of a document filed in suit, then cognizance of offence cannot be taken in view of Section 195(1)(b)(ii) of the Cr.P.C. The relevant Section reads as follows:
Secton 195. -Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. -(1) No Court shall take cognizance
(a) (i) xxx xxx xxx
(ii) xxx xxx xxx
(iii) xxx xxx xxx
(b)(i) xxx xxx xxx
(ii) of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, of the abetment of, any offence specified in Sub-clause (i) or subclause (ii), except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.
10. A plain reading of above referred provision contained in Cr.P.C. makes it explicit that parallel Criminal proceedings for any offence referred to in the above provision cannot be taken cognizance of. If there is forgery of any document produced before the Court then it is for the Court to decide as to whether the document is really forged and that producer thereof has committed an offence. Obviously, it is on the complaint of the Court or authorised officer of the Court that cognizance can be taken by the Criminal Court and not otherwise. Mr.Bajaj, learned advocate for the Respondent No. 3 would submit that the applicants are attempting to create trouble by causing criminal trespass. I may mention here that the offence registered under the F.I.R. is not one punishable Under Section 447 of the I.P.C. The offences registered on the basis of the impugned F.I.R. are said to be punishable Under Sections 420, 468, 504 and 506 read with Section 34 of the I.P.C. As regards allegation of criminal intimidation, it may be said that they are too vague. The offence of cheating cannot be attributed to the applicants because they did not directly deal with the Respondent No. 3 in respect of the transaction in question nor they made any representation to him. Even taking extreme view of the matter, the offence of cheating cannot be even remotely said to have been made out from the averments made in the F.I.R. So far as offence Under Section 468 of the I.P.C. is concerned, it is the offence of forgery in relation to the document produced in the Civil Court Page 0031 and, therefore, the proper recourse available to the Respondent No. 3 is to move the Civil Court by seeking impleadment in the suit and to establish accusation made by him.
11. Mr.Bajaj, would submit that even though there is Civil remedy available yet, Criminal complaint can be lodged. He referred to Alpic Finance Ltd. v. P.Sadasivan and Anr. . A parallel recourse can be made available where the same set of facts give rise to the civil rights as well as to the right to set the Criminal Law in motion. There cannot be any duality of opinion regarding availability of such parallel remedy in specified kind of cases, particularly, relating to offences in respect of financial matters. For example, the complaint for offence Under Section 138 of N.I. Act can be tried by the Criminal Court and simultaneously civil suit also can be filed for recovery of amount of the dude cheque. There is no difficulty in accepting such proposition of law and the complaint or F.I.R. cannot be quashed merely because civil remedy is also available.
12. Mr.Bajaj, learned advocate seeks to rely on Rajesh Bajaj v. State NCT of Delhi and Ors. and State of T.N. v. Thirukkural Perumal . The Apex Court in Rajesh Bajaj v. State of NCT of Delhi and Ors. (supra) held that where the facts narrated in the complaint revealed commercial transaction then it cannot be the sole ground to reach conclusion that offence of cheating would elude from such transaction. The Apex Court held that in such cases crux is the intention of the accused person. In "State of T.N. v. Thirukkural Perumal" (supra), it is held that the High Courts power to quash FIR and criminal proceedings should be exercised sparingly, keeping in view the guidelines laid down by the Supreme Court in various decisions. It is further held that genuineness and reliability of allegations cannot be evaluated on the basis of the evidence collected during the course of investigation at the stage of considering application Under Section 482 of the Cr.P.C.
13. At this juncture, it may stated that alleged offence of forgery in respect of the document dated 30.3.1999 is said to have been committed by forging signature of Lalchand on the document to which the applicant No. l is a signatory as an attesting witness. Obviously, said Lalchand is the person who is really aggrieved one. As stated earlier, he is a party to the Civil Suit (Special Civil Suit No. 99/06). He did not make any complaint regarding forgery of his signature. The third proposed purchaser (Respondent No. 3) alleges about such forgery of the signature of said Lalchand. Mr.Bajaj, would submit that the Respondent No. 3 is aggrieved as a result of the forgery of said document. He would point out from certain observations in A.R. Antulay v. Ramdas Sriniwas Nayak and Anr. that anyone can set or put the criminal law into motion. The Apex Court made it clear, however, that anyone can set or put the criminal law law into motion except where the statute enacting or creating an offence indicates to the contrary. Herein, by virtue of the bar created Under Page 0032 Section 195 of the Cr.P.C., the Respondent No. 3 cannot set the law in motion and that too in relation to the document which is produced in the Court and is purportedly forged by putting fabricated signatures of said Lalchand. The dispute is of civil nature. It is for Lalchand to explain whether he executed Special Power of Attorney in favour of the Vendors of Jaiswal brothers and really transferred the property in question under a genuine transaction. It is for said Lalchand to bring it to the notice of the Civil Court that his signature is purportedly forged one. It is aptly stated that some times "Sand shines more than the Sun".
14. The parameters for exercise of the powers Under Section 482 of the Cr.P.C. are categorised and succinctly set out in Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors. 2007 AIR SCW 6679. This authority is of vital significance while deciding the present application. The Apex Court laid down the tests. The relevant observations of the Apex Court may be reproduced for ready reference:
The veracity of the facts alleged by the appellants and the respondents can only be ascertained on the basis of evidence and documents by a civil court of competent jurisdiction. The dispute in question is purely of civil nature and respondent No. 3 has already instituted a civil suit in the court of Civil Judge. In the facts and circumstances of this case, initiating criminal proceedings by the respondents against the appellants is clearly an abuse of the process of the Court.
xxx xxx xxx Inherent powers under Section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.
In the given case, the application filed Under Section 482 of the Cr.P.C. before the High Court of Uttaranchal at Nainital, was rejected.
The Apex Court held that when there is civil dispute in respect of properties then the criminal prosecution for offences Under Sections 420, 120B, 467 of the I.P.C. ought not to have been taken cognizance of and that such F.I.R. filed by the Respondents was liable to be quashed. Considering the above referred legal position settled down by the Apex Court, I am of the opinion that the F.I.R. in question would amount to abuse of the process of law and moreover, that cognizance of the offence in relation to the forgery alleged, in the context of document which is filed in the civil Court cannot be taken in view of the bar contemplated Under Section 195 of the Cr.P.C.
15. For the reasons aforesaid, the application is granted. The impugned F.I.R. and the investigation incidental thereto is quashed.