Calcutta High Court (Appellete Side)
Shyamal Roy vs The State Of West Bengal & Anr on 28 November, 2016
Author: Debi Prosad Dey
Bench: Debi Prosad Dey
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debi Prosad Dey
CRR No. 1736 of 2011
With
CRAN 419 of 2015
Shyamal Roy..................................Petitioner
Versus
The State of West Bengal & Anr..........Respondents
For the Appellant/ : Mr. Phiroze Edulji Petitioner : Mr. Sanjib Kumar Dan For the plaintiffs/ Respondents : Mr. Imran Ali For the Opposite : Mr. Tapas Kumar Ghosh Party no.2 : Mr. Tanmoy Chowdhury Heard on : 21.11.2016 Judgment on : 28.11.2016 Debi Prosad Dey, J. :-
This application under Section 482 of the Code of Criminal Procedure has been filed for quashing complaint case no. 65 of 2010(Jahirul Islam Chowdhury Versus Shyamal Roy) pending before the learned Additional Chief Judicial Magistrate, Bolpur, District- Birbhum under section 468 of the Indian Penal Code. CRAN being no.419 of 2015 has already been disposed of on 06.06.2016 by the Hon'ble Justice Ranjit Kumar Bag.
In order to appreciate the case of the parties, it is necessary to state in brief the facts of the case. Opposite party no. 2/Jahirul Islam Chowdhury(herein after referred to as opposite party no.2 only) purchased a plot of land and set up new life nursing home at Nanoor Chandidas Road, (Sian) Post Office- Bolpur, District- Birbhum. A sale deed was executed by opposite party no. 2 on 29th June, 1999 in favour of the petitioner for transferring land measuring about 3600 Sq. Ft. and / or 8.26 decimals situated in Mouja - Khoshkadambapur, bearing J. L. No. 95, R.S Khatian No. 358, Hal Khatian No. 157/1 and 421, Touzi No.11, R S. Dag No. 2799, at Bolpur within District- Birbhum for consideration of rupees 4,00,000/-. It was registered with the Additional District Sub-Registrar, Bolpur, District- Birbhum in book no. 1 volume no. 49 pages 57 to 62 being Deed No. 4269 for the year 1999. The case of the opposite party no.2 is that in fact no such deed was ever executed by opposite party no.2 but the petitioner (Shyamal Kumar Roy), manufactured and forged such document with the left thumb impression of someone else and thereby the petitioner has tried to grab the entire property of the complainant with the help of such forged document. In fact the nursing home of the opposite party no.2 was being operated by the petitioner on payment of some fees but subsequently the petitioner did not tender such fees to the opposite no.2 and declared that the opposite party no.2 had actually sold out such property to the petitioner. Being aggrieved by such claim of the petitioner, the opposite party no.2 had lodged an FIR at Bolpur Police station and which was registered as FIR no. 141 of 2005 dated 19.09.2005 under Section 465, 468, 471 and 120B of the Indian Penal Code against the petitioner and one Prafulla Vyas. After completion of investigation, the Inspector of Police (D.E.B), Bolpur, District- Birbhum submitted a report being final Report No.95 dated 31st May, 2007 stating inter-alia that in fact opposite party no.2 genuinely executed such deed in favour of the petitioner since the handwriting expert of the forensic laboratory has opined that the L.T.I appearing on the deed and the admitted L.T.I of opposite party no.2 are of self-same person.
Opposite party no.2 took out a protest petition challenging such report in final form and learned Additional Chief Judicial Magistrate, Bolpur, District - Birbhum after hearing opposite party no. 2 and considering such petition directed for re-investigation by circle inspector, Bolpur, District - Birbhum. On 29th February, 2008 the circle inspector, Bolpur, District- Birbhum again submitted a report in final form being no. 39 of 2008 whereby the circle inspector again submitted final report against the petitioner recommending discharge of the petitioner. Opposite party no.2 again being aggrieved by and dissatisfied with such report submitted another application for re-investigation by Sub Divisional Police Officer, Bolpur, District - Birbhum. The prayer of opposite party no.2 was accepted by learned Additional Chief Judicial Magistrate, Bolpur, District - Birbhum and the matter was again sent for reinvestigation by the Sub-Divisional Police Officer, Bolpur, District - Birbhum. The Sub Divisional Police Officer, Bolpur again submitted report in final form recommending discharge of the petitioner with a prayer for drawing up a proceeding under Section 211 of the Indian Penal Code for filing false case against opposite party no.2. Learned Additional Chief Judicial Magistrate after considering the report of sub- Divisional Police Officer has accepted the said report. At that point of time opposite party no.2 filed a Naraji petition/protest petition in the form of complaint. Opposite party no.2 and his 2 witnesses were examined and thereafter learned Magistrate issued summons upon the petitioner holding inter- alia that opposite party no.2 has made out a prima facie case under Section 468 of the Indian Penal Code.
The petitioner has filed this application under Section 482 of the Criminal Procedure Code for quashing the said complaint case no. 65 of 2010 on the ground that learned Magistrate did not consider the actual legal position in respect of such complaint case while issuing summons against the petitioner and that the opposite party no.2 could not make out any different case, which has already been investigated by the senior most police officer of Bolpur sub division fortified by the decision and opinion of the handwriting expert of forensic laboratory. Secondly in order to invoke Section 468 of the Indian Penal Code the Magistrate ought to be satisfied that the impugned document i.e. registered deed of sale is forged one and then and then only Section 468 of the Indian Penal Code would have been attracted.
Learned Advocate appearing on behalf of the petitioner submitted that the impugned deed has been examined by the handwriting expert of the forensic laboratory and the expert has clearly opined that the L.T.Is appearing on such deed are of opposite party no.2. The matter has been successively investigated by the senior police officers and ultimately all such police officers in view of such report of the handwriting expert have submitted report in final form praying for discharge of the petitioner and recommending a case under Section 211 of the Indian Penal Code for false prosecution against opposite party no.2. Despite having such overwhelming materials on record learned Magistrate simply issued summons against the petitioner on the basis of the oral evidence of the opposite party no.2 and his witnesses. The opposite party no.2 has simply stated in his petition of complaint that a fake document has been prepared by the petitioner in collusion with his henchmen in order to grab the property of the opposite party no.2. Learned Magistrate while issuing summons has observed as follows:
"It appears from the oral testimony of complaint and his witnesses on S/A that he has been able to put forward a case against the accused under Section 468 I.P.C. so issue process against the accused under Section 468 I.P.C. In support of his contention learned Advocate appearing on behalf of the petitioner has referred the following decisions:-
1. AIR 1962 SC 876 (PRAMATHA NATH TALUQDAR Vs. SAROJ RANJAN SARKAR).
2. AIR 1977 SC 2432 (BINDESHWARI PRASAD SINGH Vs. KALI SINGH).
3. AIR 2001 SC 784 (JATINDER SINGH Vs. RANJIT KAUR).
4. (2003) CriLJ 866 (MAHESH CHAND Vs. B. JANARDHAN REDDY AND ANOTHER).
5. AIR 2005 SC 38 (POONAM CHAND JAIN AND ANOTHER Vs. FAZRU).
6. (2009) CriLJ 2849 (HIRA LAL AND OTHERS Vs. STATE OF U.P. AND OTHERS).
7. AIR 2010 SC 659 (POONAM CHAND JAIN AND ANOTHER Vs. FAZRU).
The apex Court has observed in the aforesaid decisions that there is absolutely no bar in filing second complaint even on almost identical facts but while maintaining such second complaint, it is incumbent upon the complainant to show some exceptional circumstances. Therefore, filing of second complaint is not a bar but a second complaint on the same facts cannot be made unless there are very exceptional circumstances. Even so second complaint is permissible depending upon how the complaint happened to be dismissed at the first instance.
Learned Advocate for the petitioner further submitted that there was absolutely no ingredients before the learned Magistrate to hold that the document impugned was forged by the petitioner or even the document impugned was a forged document. On the contrary, the report of the forensic expert reveals that the document is a genuine document and opposite party no.2 in fact had executed such document which was registered in presence of Additional District Sub Registrar, Bolpur, District - Birbhum. Learned Advocate appearing on behalf of the petitioner further submitted that in order to avoid the consequences of the proceeding under Section 211 of the Indian Penal Code and to put the petitioner in trouble, the petition of complaint has been filed. Continuance of such petition of complaint amounts to abuse of process and should not be allowed to continue.
Learned Advocate appearing on behalf of the opposite party no.2 contended that the discretion of the Magistrate while issuing process under Section 204 of the Indian Penal Code after examination of the witnesses under Section 200 Cr.PC, cannot be questioned by any superior Court in view of the law laid down in the decision reported in 1976 volume 3 SCC 736 (Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi & Ors.) learned Advocate appearing on behalf of opposite party no. 2 submitted that the power of Magistrate in issuing summons has been exercised by learned Additional Chief Judicial Magistrate, Bolpur and once learned Magistrate has exercised its discretion, it is not for the Hon'ble High Court or even the Hon'ble Supreme Court to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved would ultimately end in conviction of the accused. Therefore, such order of the Magistrate cannot be questioned in any higher appellate forum. Learned Magistrate was perfectly justified in using his discretion considering the facts and circumstances of this case. Accordingly such petition of complaint as well as the order of learned Magistrate cannot be quashed by this Court.
The admitted fact situation of the case under reference is that opposite party no.2 raised allegation against the petitioner to the effect that the petitioner forged a deed in order to grab the properties of the opposite party no.2. It is therefore incumbent upon the opposite party no.2 to establish in order to bring home such allegations that the impugned deed is forged one. It appears from the order of learned Magistrate that learned Magistrate has issued summons against the present petitioner being satisfied about a case under Section 468 of the Indian Penal Code.
Forgery has been defined under Section 463 of the Indian Penal Code. The punishment for forgery for the purpose of cheating has been provided in Section 468 of Indian Penal Code. Both the Sections are reproduced below for proper appreciation of the case under reference.
Section 463. "Forgery - Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."
Section 468. "Forgery for purpose of cheating - Whoever commits forgery, intending that the (document or electronic record forged) shall be used for the purpose of cheating, shall be punished with imprisonment of either description a term which may extend to seven years, and shall also be liable to fine." Therefore, in order to bring home the charge under Section 468 of the Indian Penal Code it is necessary to establish that the impugned deed was forged or that the petitioner has manufactured a false deed in order to cheat the opposite party no.2. It is needless to say that the complaint of the opposite party no.2 has been successively investigated by the senior police officers of Bolpur Sub-Division and they even took the help of the handwriting expert of forensic laboratory in order to come to a just finding as to if the deed impugned is a forged one or not. The report of the expert clearly reveals that opposite party no.2 had actually executed the said deed. Secondly, the deed was executed in presence of and in the office of Additional District Sub- Registrar of Bolpur within District- Birbhum. In that view of this case, there is absolutely no other mechanism to prove that the impugned deed is a forged one. On the contrary, it is settled principle of law that what is apparent, has to be accepted as real unless proved otherwise. The presumption of a registered deed is that the deed has been duly and validly executed and registered by the executant. This factual aspect in respect of the main allegation of the opposite party no.2 goes against the contention of opposite party no.2. Mere oral statement that a document has been forged for the purpose of cheating is not at all sufficient to exercise the discretion in favour of the opposite party no.2. The opposite party no.2 and his witnesses have simply stated that such deed was forged. No other documentary evidence has been filed before the learned Magistrate in order to justify that the deed impugned is a forged one. The decision reported in 1976 volume 3 SCC 736 (Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi And Ors.) also enumerates some illustrative examples whereby the order of the Magistrate issuing process against the accused can be quashed or set aside. In para 5 of such decision His Lordships have enumerated some illustrative examples, which may be reproduced below:-
1. Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused.
2. Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused.
3. Where the discretion exercised by the magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible and
4. Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.
It is therefore apparent from such illustrative examples as enumerated by the apex Court that when the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused, the petition of complaint may be quashed. Learned Magistrate while being satisfied that there are sufficient grounds to proceed with against the petitioner for offence under Section 468 of the Indian Penal Code ought to have looked into the result of investigation and the report of the expert.
Secondly, mere oral statement is not sufficient to justify that a document has been manufactured.
Thirdly, such document has not been produced before the learned Magistrate to justify that any sort of document has over been manufactured by the petitioner. In absence of any such document it is really difficult to accept that any such document has been manufactured by the petitioner for the purpose of cheating.
The apex Court in the decision reported in 1992 Supp(1) SCC 335 (State of Haryana Vs. Bhajan Lal) has given some illustrations in which the power under Section 482 of Code of Criminal Procedure can be invoked. The illustrative catagories indicated by the apex Court are as follows:
" 1. Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
It is apparent from the aforesaid illustrative examples that Hon'ble Supreme Court has accepted that the proceeding may be quashed by invoking jurisdiction under Section 482 of the Code of Criminal Procedure where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding has been instituted with an ill motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge and where the allegations made in the petition of complaint, even taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
Examination of the complainant and his witnesses under Section 200 of the Code of Criminal Procedure is not an empty formality and the real object behind the same is to ascertain whether the case against the accused is supported by prima facie materials or not. The object of such examination of witnesses is to enable a Court to satisfy itself about the existence of prima facie case against whom the complaint has been made and to ensure that the Court proceedings must not be permitted to degenerate into weapon of harassment and to prevent the abuse of process of Court by lame prosecution. This proposition of law as enunciated by the High Court at Calcutta in the decision reported in 2010 volume II Calcutta Criminal Law Reporter(Calcutta) page 148 (Smt. Mira Ghosh Vs. Smt. Mira Ghosh) also supports the contentions of the petitioner.
Even if the statements of opposite party no.2 and his witnesses be accepted at their face value and accepted in their entirety, such statements do not prima facie constitute any offence or make out a case against the petitioner since in absence of any such document or any evidence atleast prima facie to the effect that such document has been forged, the petitioner cannot be roped in a case under Section 468 of Indian Penal Code. It is also apparent from the materials on record that a proceeding under Section 211 of Indian Penal Code has been recommended against the opposite party no.2. Filing of such petition of complaint is nothing but the result of such ulterior motive of the opposite party no.2 for wreaking vengeance against the petitioner with a view to spite him due to his personal grudge. In that view of this case such proceeding ought not to be permitted to continue and continuance of such proceeding would amount to abuse of process. In the premises set forth above, I find sufficient merit to accept or to allow the prayer of the petitioner. Therefore, the complaint case no. 65 of 2010(Jahirul Islam Chowdhury Versus Shyamal Roy)pending before the learned Additional Chief Judicial Magistrate, Bolpur, District - Birbhum under Section 468 of the Indian Penal Code is thus quashed. The application under Section 482 of the Code of Criminal Procedure is accordingly allowed.
Let a copy of this order be forwarded to the Court of learned Additional Chief Judicial Magistrate, Bolpur, District- Birbhum forthwith for information and compliance.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible (Debi Prosad Dey, J.)