Andhra Pradesh High Court - Amravati
M.Nagasanjeva Reddy vs The State Of Andhra Pradesh on 2 November, 2022
Author: R. Raghunandan Rao
Bench: R. Raghunandan Rao
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
CRIMINAL PETITION No.8433 & 8434 of 2022
COMMON ORDER:
The 2nd respondent/de facto complainant had filed a complaint registered as Crime No.300 in III Town Proddatur Police Station for offences under Section 209, 467, 468, 469, 471 of IPC and 156(3) of Cr.P.C. The said crime was registered upon investigation being referred to the police by the First Additional Judicial Magistrate of First Class, Proddatur in C.C.No.1450 of 2021. This complaint was filed against seven accused.
2. Aggrieved by the said registration of the complaint and further investigation, Accused Nos.1 to 4 have filed Criminal Petition No.8433 of 2022 and Accused Nos.5 to 7 have filed Crl.P.No.8434 of 2022 before this Court, for quashing the said complaint.
3. The genesis of this complaint is the legal notice dated 15.08.2021, sent by the advocates of accused Nos.1 and 2 (the parties herein are being referred as they are arrayed in the complaint). In this legal notice, the petitioners relying upon an agreement of sale dated 25.12.2017 had called upon the complainant to accept the remaining sale consideration and 2 execute a deed of sale conveying certain property belonging to the de facto complainant. In reply, the counsel of the de facto complainant, by notice dated 23.08.2021, had taken the defence that there was no agreement of sale and the said agreement of sale had been fabricated by Accused Nos.1 and 2. A request was also made for production of the said agreement of sale. In reply, the advocates of the accused Nos.1 and 2, by a notice dated 28.08.2021 took the stand that the agreement of sale is not a fabricated document and attached a copy of the agreement with the legal notice. After receipt of this notice, the advocate of the de facto complainant again sent a notice dated 02.09.2021 reiterating the earlier stand of the de facto complainant.
4. Accused Nos.1 and 2 had thereupon filed O.S.No.32 of 2021 in the Court of the II Additional District Judge, Kadapa at Proddatur, for specific performance of the agreement of sale, dated 25.12.2017. After filing of the suit, the de facto complainant had approached the I Additional Judicial Magistrate of First Class on 30.10.2021, under Section 200 of Cr.P.C. In this complaint, which was numbered as C.C.No.1450 of 2021, the de facto complainant had alleged that the agreement of sale dated 25.12.2017 had been fabricated by Accused Nos.1 and 2 and was shown to have been witnessed by Accused Nos.3 and 4. Further, the agreement of sale itself had 3 been created at the behest of accused Nos.5 to 7. The de facto complaint took the stand that since all the accused were involved in the fabrication/forgery of the agreement of sale dated 25.12.2017, all of them require to be punished in the said offences. The Magistrate after recording the sworn statements of the de facto complainant and other witnesses had referred the matter for investigation to the Proddatur III Town Police Station. Upon such reference, Crime No.300 of 2022 was registered on 20.10.2022. One further fact which requires to be noticed is that the de facto complainant had also filed a written statement in O.S.No.32 of 2021 dated 27.04.2022.
5. The accused in the above complaint have filed both the above criminal petitions for quashing the complaint. As the issues raised in both the complaints are one and the same and since the petitioners in these petitions are accused in the same complaint, both the petitions are being disposed of by a common order.
6. Sri V.Nitesh, the learned counsel appearing for the accused in both the petitions draws the attention of this Court to the allegation of the de facto complainant, in the written statement of O.S.No.31 of 2021, that the agreement of sale dated 25.12.2017 is fabricated and forged. He submits that once 4 genuineness of the agreement of sale has become an issue to be considered by the civil Court, further investigation in the crime, registered against the petitioners, is not permissible, as any such investigation would prejudice the rights of the petitioners in setting out their case in the civil Court. For this preposition, he relies upon the Judgment of the Hon'ble Supreme Court reported in Rajeshbhai Muljibhai Patel vs. State of Gujarat and Another (Paragraphs 20 to 22)1. He also relies upon a Judgment of the Hon'ble Supreme Court reported in Sardool Sing and Another vs. Nasib Kaur.,2 to contend that once a document is the subject matter of civil litigation and the civil Court is seized of the validity of the said document, criminal investigation cannot be permitted to go on while the validity of the document is before the civil Court.
7. He contends that in such a situation, continuation of the complaint and investigation under the complaint would not be permissible and the aid complaint would have to be quashed.
8. Sri P.Veera Reddy, learned Senior Counsel appearing for Ms.S.Anvesha, learned counsel for de facto complainant 1 (2020) 3 SCC 794 2 1987 (supplementary) SCC 146 5 would submit that the criminal petitions have been filed within five days of the complaint being registered and stopping investigation at the very inception would not be permissible. He relies upon the Judgment of the Hon'ble Supreme Court in Superintendent of Police, CBI and Others vs Tapan Kumar Singh3., to contend that an FIR is not an encyclopaedia of all information and investigation has to be permitted for ascertainment of facts and for further discovery of facts.
9. He would also rely upon the Judgment of the Hon'ble Supreme Court in Neeharika Infrastructure Pvt.Ltd., vs State of Maharashtra.,4 to contend that the police have the statutory right and duty to investigate into a cognizable offence and that the power of quashing should be exercised clearly with circumspection in the rarest of rare cases. He would further submit that neither of those situations arise in the present case and investigation should be permitted to go on.
10. The learned Senior Counsel would also submit that the views of the Hon'ble Supreme Court in Rajeshbhai Muljibhai Patel vs. State of Gujarat and Another would be binding on this Court if a ratio had been lay down in the said 3 (2003) 6 SCC 175 4 (2021) AIR SCC 211 6 Judgment. He submits that paragraphs 20 to 22 did not laid down any ratio and was only a view expressed by the Hon'ble Supreme Court in facts of that particular case and no case law has also been considered. In the circumstances, he would submit that reliance on the said Judgment would not be proper.
11. A recital of facts set out above would show that the accused herein had set up an agreement of sale which was disputed by the de facto complainant. There was an exchange of notices between the parties in the months of August and September, 2021. Thereafter, a suit was filed by the Accused Nos.1 and 2 for specific performance on 09.09.2021. After these events, the de facto complainant had approached the criminal Court on 29.10.2021. The written statement disputing the validity of the agreement of sale was filed on 27.04.2022. The Magistrate referred the complaint to the police on 23.09.2022 and the case was registered by the S.H.O of the police station on 20.10.2022.
12. A perusal of the Judgment of the Hon'ble Supreme Court in Rajeshbhai Muljibhai Patel vs. State of Gujarat and Another reveals that the view taken by the Hon'ble Supreme Court was that criminal investigation into a matter which is in issue and especially when the question of validity of a document 7 is an issue before the civil Court, it would not be permissible to conduct a criminal investigation as it would prejudice the rights and interests of the persons propounding the said document. The observations of the Hon'ble Supreme Court in paragraph No.20 are as follows:
20. Be that as it may, in the Summary Suit No.105/2015, leave to defend was granted to respondent No.2-Mahendrakumar on 19.04.2016. On the application filed by appellant No.3 in the said Summary Suit No.105/2015, four receipts filed in the suit were sent to the handwriting expert. The handwriting expert has opined that signatures in all the four receipts did not tally with the sample signatures which were of respondent No.2-
Mahendrakumar. It was only thereafter, complaint was filed by Mahendrakumar, based on which, FIR No.I- 194/2016 was registered on 28.12.2016 against the appellants for the offences punishable under Sections 406, 420, 465, 467, 468, 471 and 114 IPC. As rightly contended by the learned counsel for the appellants, in the Summary Suit No.105/2015, issue No.5 has been framed by the Court "whether the defendant proved that the plaintiff has fabricated the forged signature illegally and created forged receipts". When the issue as to the genuineness of the receipts is pending consideration in the civil suit, in our view, the FIR ought not to have been allowed to continue as it would prejudice the interest of the parties and the stand taken by them in the civil suit.
13. To the mind of this Court, the Hon'ble Supreme Court had laid down a principle that when a civil Court is seized of the question relating to the validity of a document, it would not be appropriate to permit criminal investigation in to the validity of the said document. In that view of the matter, the contention of the learned Senior Counsel that there is no ratio in this Judgment cannot be accepted.
8
14. In any event, the Hon'ble Supreme Court in Sardool Sing and Another vs. Nasib Kaur had taken a similar view in the following manner.
"A civil suit between the parties is pending wherein the contention of the respondent is that no Will was executed whereas the contention of the appellant is that Will has been executed by the testator. A case for grant of probate is also pending in the Court of learned District Judge, Rampur. The civil Court is therefore seized of the question as regards the validity of the Will. The matter is sub judice in the aforesaid two cases in civil Courts. At this juncture the respondent cannot therefore be permitted to institute as criminal prosecution on the allegation that the Will is a forged one. That question will have to be decided by the civil Court after recording the evidence and hearing the parties in accordance with law. It would not be proper to permit the respondent to prosecute the appellants on this allegation when the validity of the Will is being tested before a civil Court. We, therefore, allow the appeal, set aside the order of the High Court and quash the criminal proceedings pending in the Court of the Judicial Magistrate, First Class, Chandigarh in the case entitled Smt. Nasib Kaur v. Sardool Singh. This will not come in the way of instituting appropriate proceedings in future in case the civil court comes to the conclusion that the Will is a forged one. We of course refrain from expressing any opinion as regards genuineness or otherwise of the Will in question as there is no occasion to do so and the question is wife open before the lower Courts."
15. In the circumstances, Crime No.300 of 2022 is quashed, leaving it open to the de facto complainant to initiate criminal action in the event of the civil Court coming to the conclusion that the agreement is a forged document.
16. Accordingly, the criminal petitions are allowed. 9 As a sequel, pending miscellaneous petitions, if any, shall stand closed.
____________________________ R. RAGHUNANDAN RAO, J.
02.11.2022 RJS 10 HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO CRIMINAL PETITION No.8433 & 8434 of 2022 02.11.2022 RJS