Delhi District Court
Shri Om Prakash Gupta vs State on 4 February, 2019
IN THE COURT OF DR. NEERA BHARIHOKE
ADDL. SESSIONS JUDGE06:SOUTH EAST
SAKET COURT: NEW DELHI
CRIMINAL REVISION NO.284/2018
Shri Om Prakash Gupta
Through LR, Subhash Chandra Gupta
R/o TA105, Gali No.1 & 2,
Tughlakabad Extension,
New Delhi
. . . . Revisionist
Versus
1. State
2. Smt. Walse Chandran
W/o Sh. Chandran
R/o Block A/1576
Green Field Colony
Faridabad, Haryana.
3. Sh. Nagar Mal Yadav
S/o Sh. Dhanna Mal Yadav
C/o Rameshwar Yadav
R/o 301, Rajdhani Apartment
Opp. Shanti Van (Brham Kumari)
Abu Road, District Sirohi
Rajasthan.
4. Rameshwar Yadav
S/o Sh. Dhanna Mal Yadav
R/o 301, Rajdhani Apartment
Opp. Shanti Van (Brham Kumari)
Abu Road, District Sirohi
Rajasthan.
CR No.284/18 Page 1 of 8
5. Smt. Usha Yadav
W/o Rameshwar Yadav
R/o 301, Rajdhani Apartment
Opp. Shanti Van (Brham Kumari)
Abu Road, District Sirohi
Rajasthan.
6. Narender Pandey
S/o Not known
R/o 40/12, DDA Flats
Sarojini Nagar
New Delhi110023.
7 Ram Prakash
S/o Not Known
R/o 40/12, DDA Flats,
Sarojini Nagar,
New Delhi110023.
8 R. K. Yadav
S/o Not Known
R/o 161/16, Amrit Puri
Garhi, East of Kailash
New Delhi110065. . . . Respondents
Date of Institution : 19.04.2018
Date of Arguments : 28.01.2019
Date of Order : 04.02.2019
ORDER
1. The present revision petition under Section 397 of The Code of Criminal Procedure (hereinafter to be referred as "Cr.P.C") has been against the order dated 08.01.2018 passed by the learned CR No.284/18 Page 2 of 8 Metropolitan Magistrate (in short "MM"), South East District, Saket Court, New Delhi in CC No.46/1 titled Om Prakash Gupta vs. Walse Chandran and Others.
2. Om Prakash Gupta, had filed a complaint against the respondent herein for the offences punishable under section 420/466/467/468/471/506/120 B/34 of Indian Penal Code, 1860 (in short "IPC"). He had alleged that accused no. 2/respondent no. 3, Nagar Mal Yadav, had previously filed the suit before the court of Shri S.K. Sarwaria, the then learned ADJ on the basis of forged and fabricated documents. The revisionist had alleged that the thumb impressions on the sale documents were actually put by Walse Chandran/respondent no. 2 falsely representing before the court that the thumb impressions belong to Late St. Somwati, wife of complainant, late Om Prakash Gupta. The complainant had submitted that believing that the thumb impression on the forged documents as that of Somwati, learned court had decreed the suit in favour of respondent no. 3, Nagar Mal Yadav. The complainant had also alleged that later he found out that the thumb impression had been forged as a demand of ₹24 Lakhs was made by the respondent no. 2 to get the matter resolved.
3. The complainant had pleaded that the said decree had been obtained by committing a fraud with the court by filing forged and fabricated documents. There were also allegations that the accused persons/respondents had criminally intimidated the complainant and CR No.284/18 Page 3 of 8 his family members. The complainant, Om Prakash Gupta, had passed away during the pendency of the complaint case before the learned trial court and with the order dated 29.04.2008, his son, Subhash Chander, was substituted as complainant in the complaint case filed before the learned trial court.
4. Learned trial court had summoned 3 accused persons namely Walse Chandran, Nagar Mal Yadav and Rameshwar Yadav. After they entered appearance, precharge evidence was led on behalf of the complainant.
5. The impugned order was passed by learned trial court after hearing arguments on the point of discharge under the provisions of section 245 (2) Cr.P.C. In the impugned order, learned trial court has observed that:
"The accused persons were summoned for the offences under section 468/461/120 B IPC as they were alleged to have forged the sale documents pertaining to the property in question and used the same as genuine before the court in order to obtain a decree. Section 195 (1) (b) (ii) specifically bars the prosecution of an offence of forgery as defined under section 463 IPC and also the offence of using of forged document as genuine punishable under section 471 IPC. Further offence of forgery for the purpose of cheating punishable under section 468 IPC is also an offence of forgery as defined CR No.284/18 Page 4 of 8 under section 463 IPC. Prosecution for commission of the said offences can only be initiated on the complaint in writing of the court before which the said offence is alleged to have been committed. The procedure thereof has been provided under the provisions of section 340 CR PC. As such, the complaint herein with respect to the offences under section 468/471/120 B IPC cannot be proceeded except as per the procedure prescribed under section 340 Cr.P.C. Hence the complaint qua offences under section 468/471/120 B IPC is not maintainable before this court."
6. The learned trial court thereafter dismissed the said complaint vide the impugned order.
7. Learned counsel for revisionist has argued that the said finding determining the maintainability of the complaint under section 468/471/120 B IPC is not only contrary to law but against the law laid down in the matter of Iqbal Singh Marwah and anr. Vs. Meenakshi Marwah and Anr., Appeal (Crl.) 402 of 2005, decided on 11/03/2005. He argued that the case of the revisionist before the learned trial court was that the respondents had forged the sale documents pertaining to the property in question and used the same as genuine before the court in order to obtain a decree and the interpretation of the learned trial court of the law laid down in the matter of Iqbal Singh Marwah and anr. Vs. Meenakshi Marwah CR No.284/18 Page 5 of 8 and Anr.(Supra) is incorrect as the same was not applicable to the facts of the case before learned trial court. It has been argued that there was no requirement for compliance of section 195 Cr. P.C. or the procedure prescribed under section 340 Cr.P.C. by the revisionist for proceeding with the complaint with respect to offences under section 468/471/120B IPC and that the said requirement only arises in case the document is alleged to have forged while being in custody of the court.
8. Learned counsels for respondents argued that there is no merit in the submissions of revisionist and that the issue in respect of forgery of the alleged documents stands settled in the civil suit before the court of Shri S.K. Sarwaria, the then learned ADJ which was challenged by the revisionist up to the stage of the Hon'ble Apex Court but was upheld and is thus beyond challenge.
9. Detailed arguments have been advanced by learned counsels for parties.
10. The scope of the present petition is confined by section 397 and 398 of Cr. P. C. and what is to be seen is only correctness, legality or propriety of any finding. Sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court. In the present order this court is not embarking on the merits of the submissions made by learned counsels of either sides and is only dealing with the objection taken in the present revision petition as to whether learned trial court has rightly applied to the facts of the case the law laid down in the matter of Iqbal Singh Marwah and Anr. Vs. CR No.284/18 Page 6 of 8 Meenakshi Marwah and Anr., (Supra)
11. In the said matter, the controversy revolved around the interpretation of the expression "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" occurring in clause (b)(ii) of subsection (1) of section 195 Cr.P.C.
12. In the said matter it was held that section 195(1)(b)(ii) Cr.P.C. would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court i.e. during the time when the document was in custodia legis.
13. Admittedly the documents in question have not been alleged by either side to have been forged after the same had been produced or given in evidence in a proceeding in any court. Therefore, the bar created by 195(1)(b)(ii) Cr.P.C. would not come into play and there is no embargo on the power of the Court to take cognizance of the offence on the basis of the complaint filed by the respondents. Thus the view taken by the learned trial court is incorrect.
14. In view of these observations, the impugned order dated 08.01.2018 is set aside to the extent.
15. The present revision petition is therefore allowed and learned trial court is directed to make further enquiry into the complaint and into the case of the persons accused of the offence under section 468/471/120 B IPC for which they have been discharged to determine if the complaint qua offences under section 468/471/120 B CR No.284/18 Page 7 of 8 IPC is maintainable against them.
16. Parties are directed to appear before learned trial court on 07.02.2019 at 2 PM.
17. A true copy of the order alongwith TCR be sent back to court concerned.
Digitally signed by
18. Revision file be consigned to record room. NEERA NEERA BHARIHOKE BHARIHOKE Date:
2019.02.05 10:30:01 +0530 Announced in the open (DR.NEERA BHARIHOKE) court today i.e.04.02.19 Addl. Sessions Judge06 SouthEast, Saket Courts, New Delhi CR No.284/18 Page 8 of 8