Bombay High Court
Smt. Lataben W/O Manubhai Bagdai And 2 ... vs Sanjay Gulabchand Gupta on 5 May, 2016
Author: V. L. Achliya
Bench: V. L. Achliya
sgpp 1 APPLN1292.2010.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT NAGPUR
CRIMINAL APPLICATION NO. 1292 OF 2010
1. Smt. Lataben w/o Manubhai Bagdai,
Age : 74 years,
2. Shri. Deepak S/o Manubhai Bagdai,
Age : 45 years,
3. Shri. Pradeep S/o. Manubhai Bagdai,
Age : 48 years,
Sr. No. 1 to 3, all R/o. Khare House,
Buty Gadikhana Sitabuldi, Nagpur. Applicants..
(Orig. accused)
VERSUS
Shri. Sanjay Gulabchand Gupta,
Age : 40 years,
R/o. 115, Wardhaman Nagar (East),
Nagpur. Respondent..
(Orig. Complainant)
........
Mr N. A. Vyawahare, Advocate for the applicants
B. P. Bhatt, Advocate for the respondent/sole.
..........
CORAM : V. L. ACHLIYA, J.
RESERVED ON : 22nd JANUARY, 2016.
PRONOUNCED ON : 5th MAY, 2016.
PER COURT:
. The applicants (original accused) have preferred this
application u/s 482 of the Cr.P.C. for quashing the Criminal Complaint Case No. 61 of 2005 filed by the respondent (original complaint) u/s 200 of Cr.P.C. for taking cognizance of an offence u/s 466 of the IPC.
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2. The respondent/complainant herein filed criminal complaint under Section 200 of the Code of Criminal Procedure before the Magistrate alleging therein that the applicants/accused have committed an offence under Section 466 of the Indian Penal Code. It is alleged that, in the year 1991 the accused persons had purchased three shop blocks (Block Nos. 4, 5 and 7) in a multi-storied building constructed by the complainant. As per the bilateral agreement, the accused have paid total amount of Rs. 8,171/- towards sales tax. Subsequently, the accused persons lodged complaint with the Sales Tax Department. The said amount deposited came to be seized by Sales Tax Department. The accused have filed three separate complaints bearing Nos. 584, 585 and 586 of 2005 before the District Consumer Dispute Redressal Forum, Nagpur. By order dated 10.09.1998 passed in the matter, the District Consumer Dispute Redressal Forum directed the respondent to refund the amount of sales tax collected from the accused. As against the order passed by the District Consumer Dispute Redressal Forum, the respondent preferred appeal before the State Consumer Disputes Redressal Commission, which was registered as Appeal No. 2232/1998.
The appeal was listed for hearing on 19.07.2003. It is alleged that, taking advantage of the absence of complainant and his counsel, the ::: Uploaded on - 06/05/2016 ::: Downloaded on - 30/07/2016 01:02:15 ::: sgpp 3 APPLN1292.2010.odt accused shown a letter dated 15.10.1999 addressed to accused persons by the Sales Tax Office, Nagpur, wherein it was recorded that the amount of Rs. 8,171/- paid by accused refunded to respondent by adjusting the amount against certain other dues. According to the complainant, such letter was never issued by the Sales Tax Department in favour of accused and the accused have forged the letter and made the Commission to act upon that letter. It is alleged that, the contents of the letter which was shown to the Consumer Disputes Redressal Commission, Maharashtra were different than the contents of letter which was written by the Sales Tax Department. In the background of said allegations, the complainant has alleged that the accused have committed an offence under Section 466 of the Indian Penal code and liable for punishment.
3. The complaint was filed on 11.04.2005. After perusing the contents of the complaint, verification and the documents filed by the complainant, the learned Magistrate was pleased to issue process under Section 466 of the IPC against the accused vide order dated 22.02.2006 passed in the matter. The case was tried as warrant case. The complainant adduced the evidence before charge. The accused preferred application for discharge on the ground that the evidence adduced makes ::: Uploaded on - 06/05/2016 ::: Downloaded on - 30/07/2016 01:02:15 ::: sgpp 4 APPLN1292.2010.odt out no case to proceed against them. Vide order dt. 16.11.2007, the learned Magistrate rejected the application for discharge and framed charge against the accused under Section 466 of the Indian Penal Code.
The said order of rejection was challenged by filing Criminal Revision Application No. 3 of 2008 before the Sessions Court, Nagpur. The revision application was heard and decided in favour of accused persons by judgment and order dated 28.03.2008. The learned Additional Sessions Judge was pleased to quash the order passed by trial Court and ordered the discharge of the accused from criminal complaint case No. 61 of 2005. In the meanwhile, the order passed by the State Consumer Dispute Redressal Commission was challenged before the National Consumer Dispute Redressal Commission, New Delhi. Vide order dt.
13.09.2004, National Consumer Dispute Redressal Commission dismissed the Revision Petition and maintained the order passed by the State Consumer Dispute Redressal Commission. As against the order dated 28.03.2008 passed by learned Additional Sessions Judge, Nagpur, the complainant preferred Criminal Revision Application No. 111/2008 before the High Court, Nagpur. Vide judgment and order dated 15.04.2010, the Revision Application No. 111/2008 was allowed and order dated 20.03.2008 passed in Criminal Revision No. 3/2008 by the Sessions Court, Nagpur was set aside. So also, the application for ::: Uploaded on - 06/05/2016 ::: Downloaded on - 30/07/2016 01:02:15 ::: sgpp 5 APPLN1292.2010.odt discharge dated 26.02.2007 filed by the accused came to be rejected.
The trial Court was directed to proceed with trial against the accused persons and further directed to complete the trial expeditiously. After the Revision Application No. 111/2008 allowed by this Court, the accused have preferred this application under Section 482 of the Code of Criminal Procedure for quashing the Criminal Complaint Case No. 61/2005.
4. Learned counsel for the applicants strenuously contended that, filing of such complaint amounts to gross abuse of process of law.
It is contended that, the trial Court has taken cognizance of complaint without taking into consideration the bar operating under Section 195(1)
(b)(ii) of the Code of Criminal procedure to take cognizance of such complaint. According to learned counsel for the applicants, the cognizance of offence under Section 466 of the IPC cannot be taken on the basis of complaint instituted by individual as that of the complainant. The cognizance of such an offence can be taken only on the basis of complaint in writing of that Court or by such officer of the Court as that Court may authorize in writing in this behalf or of some other Court to which that Court is subordinate before whom such offences referred in sub-section (1) of Section 195 has been committed.
::: Uploaded on - 06/05/2016 ::: Downloaded on - 30/07/2016 01:02:15 :::sgpp 6 APPLN1292.2010.odt According to learned counsel for the applicants, in absence of complaint filed at the instance of State Redressal Commission before which the alleged act of forgery has been committed, the cognizance of offence under Section 466 of the IPC should not have been taken by the learned Magistrate. It is contended that, cognizance of such complaint amounts to gross abuse of process of law as the applicants are unnecessarily harassed and therefore the impugned order as well as the proceedings before the learned Magistrate deserve to be quashed. In support of his contentions, the learned counsel has placed reliance upon the decision of the Hon'ble Supreme Court in the case of Dr. S. L. Goswami v. The High Court of Madhya Pradesh reported in AIR 1979 SC 437.
5. On the other hand, the learned counsel for the respondent has objected the very maintainability of the Revision Application. It is contended that, in Criminal Revision Application No. 111/2008, the Single Bench of this Court (Coram : A. B. Chaudhari, J.) has set aside the order passed by the Sessions Court and rejected the application for discharge filed by applicants. In the light of decision in Criminal Revision Application No. 111/2008, the learned Counsel argued that this Court may not entertain this application. So far as the order passed by Magistrate to take cognizance by the Magistrate, the learned counsel has ::: Uploaded on - 06/05/2016 ::: Downloaded on - 30/07/2016 01:02:15 ::: sgpp 7 APPLN1292.2010.odt submitted that the offence of forgery which is alleged in the complaint not pertains to act of forgery committed during the course of proceedings but the complaint refers to act of forgery committed outside the Court and showing such forged document during the course of hearing of matter before State Consumer Dispute Redressal Forum. It is therefore contended, that provisions of Section 195 of Code of Criminal Procedure would not act as a bar in taking cognizance by the learned Magistrate. It is contended that, as the act alleged in the complaint i.e. the act of forgery in respect of the letter was committed before said letter was produced before the State Consumer Dispute Redressal Commission, the bar u/s 195 of Cr.P.C. would not operate in the matter.
In support of this submission, the learned counsel has placed reliance on Division Bench judgment of this Court (Coram : D. G. Deshpande and V. K. Tahilramani) in the case of Jitendra Chandrakant Mehta Vs. M/s.
Shamrock Impex Pvt. Ltd. and others reported in 2006(4) Mh.L.J. 355.
6. I have thoroughly considered the submissions advanced in the light of the record and proceedings. The first and foremost question which posed for my consideration is that, in the light of the Criminal Revision Application No. 111/2008 decided by this Court (Coram : A. B. Chaudhari, J.), the present application filed u/s 482 of ::: Uploaded on - 06/05/2016 ::: Downloaded on - 30/07/2016 01:02:15 ::: sgpp 8 APPLN1292.2010.odt Cr.P.C. deserves to be entertained. The fact is not in dispute that, the application for discharge filed by the applicants was rejected by the trial Court. Being aggrieved by said order, the applicants have preferred Criminal Revision which was allowed by Sessions Court. As against the order of Sessions Court, the respondent preferred Criminal Revision before this Court which was allowed vide judgment and order dt.
15/4/2010. The order of discharge of the accused was tested before this Court and this Court upheld the order passed by the trial Court and set aside the order passed by the Sessions Court. In para 5 of the said order, this Court has observed as under:
"5. Perusal of the above portion of the judgment clearly shows that the accused persons had shown a letter dated 15- 10-1999 from Sales Tax Officer and after reading it, the appellate forum stated that the said letter showed that the amount was refunded to the builder i.e. applicant by the Sales Tax Department and though the said amount was refunded to the builder, that was not refunded to the flat owners by him. Therefore, the payment from applicant was ordered to be made to the flat owners. The revisional Court has in its revisional order for no reasons touched the sanctity of the said appellate judgment and which could be thrashed out only in the full fledged trial. The approach of revisional court, in my opinion, is wholly improper and illegal. The trial Court is entitled to know the case of complainant and defence on evidence and thereafter to marshal the evidence in the light of the observations of the State Commission and then come to the appropriate conclusion regarding the said finding recorded by the appellate authority. Second aspect is that revisional Court has held that the offence under Section 466 of the Indian Penal Code can be committed only by public servant. I quote Section 466 of the Indian Penal Code as under:-
"466. Forgery of record of Court or of public register, etc. - (Whoever forges a document or an electronic record), purporting to be a record or ::: Uploaded on - 06/05/2016 ::: Downloaded on - 30/07/2016 01:02:15 ::: sgpp 9 APPLN1292.2010.odt proceeding of or in a Court of Justice, or a register of birth, baptism, marriage or burial, or a register kept by a public servant as such, or a certificate or document purporting to be made by a public servant in his official capacity, or an authority to institute or defend a suit, or to take any proceedings therein, or to confess judgment, or a power of attorney, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
(Explanation - For the purposes of this section, "register" includes any list, data or record of any entries maintained in the electronic form as defined in clause (r) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000)."
Reading of section itself shows that it is not necessary that only public servant can commit forgery. Any other person than public servant can also commit forgery. In view of the above discussion, I find that this revision application will have to be allowed and the impugned revisional order will have to be quashed and set aside. Hence, I make the following order.
Order
(i) Criminal Revision Application is allowed.
(ii) Impugned order 28-3-2008 in Criminal Revision No.3/2008 passed by the Ad hoc District Judge-9 & A.S.J., Nagpur is quashed and set aside.
(iii) The application for discharge dated 26-2-2007 is rejected. The trial Court shall now proceed with the trial against the accused persons and shall complete the trial expeditiously.
JUDGE"
7. The above quoted observations recorded by this Court in Criminal Revision Application No. 111/2008 clearly reflects that, this Court has considered the merit of the application for discharge filed by the applicants. On due consideration of the submissions advanced, this Court has held that the order passed by the Sessions Court allowing the application for ::: Uploaded on - 06/05/2016 ::: Downloaded on - 30/07/2016 01:02:15 ::: sgpp 10 APPLN1292.2010.odt discharge is not sustainable in law. It is further observed that, the matter requires consideration and after recording the evidence, the trial Court would come to the appropriate conclusion. It appears from record that, evidence before charge was recorded. Thereafter, the trial Court framed the charge.
While deciding the Revision Petition No. 111/2008, this Court has set aside the order passed by Sessions Court and upheld the order passed by the trial Court and further rejected the application for discharge. Upholding the order of rejection of application for discharge leads to inference that this Court has found case to proceed against the accused. In view of this, it is not proper on the part of this Court to entertain the application u/s 482 of Cr.P.C. seeking quashing of proceeding of Criminal Case No. 61/2005.
8. In view of above, I am not inclined to entertain this application filed u/s 482 of Cr.P.C. Accordingly, the application is rejected. The issue raised by the applicants that, section 195(1)(b)(ii) of Cr.P.C. operates as bar to take cognizance of offence U/s 466 of IPC, is kept open to be raised before the trial Court. Trial Court is directed to expedite the hearing of the case and decide the same as far as possible within a period of six months from the date of passing of this order.
[ V. L. ACHLIYA, J. ] LATER ON :
After pronouncing the judgment, Mr N. A. Vyawahare, learned ::: Uploaded on - 06/05/2016 ::: Downloaded on - 30/07/2016 01:02:15 ::: sgpp 11 APPLN1292.2010.odt counsel for the applicants makes oral request to stay the order and to continue the interim order operating in the matter.
2. The request made for stay of the order and continuation of interim order is rejected.
[ V. L. ACHLIYA, J. ] ::: Uploaded on - 06/05/2016 ::: Downloaded on - 30/07/2016 01:02:15 :::