Gujarat High Court
Kiritsinh Chhaganbhai Parmar vs State Of Gujarat on 18 December, 2024
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
R/CR.MA/23648/2024 ORDER DATED: 18/12/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 23648
of 2024
In R/CRIMINAL APPEAL NO. 2912 of 2024
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KIRITSINH CHHAGANBHAI PARMAR
Versus
STATE OF GUJARAT & ANR.
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Appearance:
PRABHATSINH J PARMAR(7996) for the Applicant(s) No. 1
MS. KRINA CALLA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 18/12/2024
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. This application is filed under Section 419(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 seeking special leave to appeal against the judgment and order dated 13.05.2024 passed in Criminal Case No.1029 of 2014 by the Additional Chief Metropolitan Magistrate Court, Court No.14 at Ahmedabad.
2. Under the impugned judgment and order, the accused-respondent No.2 is acquitted of the offences punishable under Sections 406, 420, Page 1 of 12 Uploaded by MR PARESH J SOMPURA(HC00451) on Wed Jan 01 2025 Downloaded on : Fri Jan 03 22:19:32 IST 2025 NEUTRAL CITATION R/CR.MA/23648/2024 ORDER DATED: 18/12/2024 undefined 467, 468 and 471 of the Indian Penal Code.
3. It is the case, which has civil litigation flavour as well, as there is Civil Suit No.1680 of 2013, filed and pending between the parties in the City Civil and Sessions Court at Ahmedabad and it pertains to getting the peaceful and vacant possession of rented premises as the time period of rent agreement having expired. The Suit is filed for recovery. In the present case, the applicant is owner of the premises, whereas respondent- accused is tenant.
4. The basic allegation is that residential apartment being Flat No.2A of Jethal Apartment was occupied by respondent-accused as a tenant under leave and license agreement with the son of the complainant- applicant, as the son was owner of the premises on record.
5. The allegations are that the electric connection along with the meter was transferred in the name of accused by the Electric Company on the basis of an application made in the name of son of the complainant bearing his forged signature.
6. Learned Advocate for the applicant has preferred the Appeal contending interalia that the trial Judge has recorded acquittal on two main grounds, which are not tenable namely the locus of the complainant Page 2 of 12 Uploaded by MR PARESH J SOMPURA(HC00451) on Wed Jan 01 2025 Downloaded on : Fri Jan 03 22:19:32 IST 2025 NEUTRAL CITATION R/CR.MA/23648/2024 ORDER DATED: 18/12/2024 undefined himself in absence of Power of Attorney coming on record and that ingredients of Sections alleged or not met with. Learned Advocate has therefore argued that the Appeal is preferred mainly on two grounds that after Power of Attorney issued by son of the complainant, question of locus was not required to be examined and second ground being that though allegations were with regard to forgery of signature, the trial Judge has not undertaken an exercise of calling for hand writing experts opinion or examining hand writing expert and despite not taking undertaking such exercise, acquittal is recorded.
7. Learned Advocate for the applicant has thereafter argued that as per the decision of Hon'ble Supreme Court in case of Vishwa Mitter of Vijay Bharat Cigarette Stores, Dalhousie Road, Pathankot v/s. O. P. Poddar and ors. reported in AIR 1984 SC 5 , criminal machinery can be set into motion by anyone and therefore, it was not required for the accused to establish his locus more particularly in the facts of this case, where allegations of forgery are that of signature of his own son.
8. Learned Advocate for the applicant has argued that the applicant has placed on record as an evidence Exh-9 and 10, which are specimen signatures of son of the complainant in record of his Bank and the signature on the objectionable / tainted documents bearing forged Page 3 of 12 Uploaded by MR PARESH J SOMPURA(HC00451) on Wed Jan 01 2025 Downloaded on : Fri Jan 03 22:19:32 IST 2025 NEUTRAL CITATION R/CR.MA/23648/2024 ORDER DATED: 18/12/2024 undefined signature, if compared would demonstrate great variation even to the nakede eyes. In that situation, the Court ought to have invoked Section- 73 of the Indian Evidence Act before recording acquittal and in support his argument, he has relied upon decision of the Apex Court in case of the State (Delhi Administration) v/s. Pali Ram reported in AIR 1979 SC 14.
9. Learned Advocate for the applicant has drawn attention of this Court to the decision of Madhya Pradesh High Court though of learned Single Judge in case of Chothmal Narayanji v/s. Ramchandra Govindram reported in 1954 Cri.LJ. 788 submitted that on identical facts situation regarding forgery of signature on an application for transfer of electricity connection, it will attract offence of Section-463, 464 and 467.
10. For the perusal of the Court, the applicant has placed on record the documents from the record of the trial relevant for the purpose of considering the case of the applicant.
11. Learned Advocate for the applicant has also taken this Court through documents as well, which according to the case of the applicant are objectionable/ tainted documents, which the applicant has placed at Annexure-F, Annexure-G, Annexure-H and Annexure-I of the Appeal.
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12. The Court has taken into consideration arguments advanced by the applicant as is indicated in the preceding paras, root of the dispute has been tenancy litigation, where son of the complainant is owner, whereas respondent-accused is tenant and alleged action is of making application with the Electric Company for transfer of electric meter of the residential premises in the name of the respondent-accused, which bear signature of son of the complainant, which are allegedly forged.
13. While examining the case, the trial Judge has assigned reasons that the aforesaid complainant and witness have stated, in their examination- in-chief, the facts corresponding to the complaint . In view of the cross examination of the complainant made by the advocate for the accused, the complainant has admitted that his son executed rent agreement in favour of the accused and disputed flat is registered in the name of his son. His son has not executed the power of attorney in his favor to file criminal and civil cases related to the flat. In view of cross examination of the witness for the Prosecution, the witness has admitted that if he has executed the power of attorney in favour of his father, he does not have the same. Therefore, the deed of power of attorney for filing civil or criminal case in respect of the disputed flat owned by complainant's son Keturaj Kiritsinh Parmar has not been produced by the Prosecution.
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The trial court therefore held that it does not appear that complainant had authority to file the present complaint.
14. The Trial Court Moreover found that the so called rent agreement was executed by the complainant's son in favour of the accused. It does not appear that complainant's son Keturaj Kiritsinh Parmar has filed criminal case against the accused. Further, in view of the documentary evidences at tentative Exh. Nos. 5 to 10, the application bearing the signature of the accused for transferring the name in the record of the Torrent Power Electricity Company Ltd. is produced, but it does not appear that accused forged the signature of Keturaj, the son of the complainant in the aforesaid application and forged documents and used them as genuine. It does not appear that Prosecution has forwarded the document to the handwriting expert for the examination of the forged signature of Keturaj Kiritsinh Parmar in the application at tentative Exh. No. 5. Therefore, the Prosecution has not been able to prove the facts of documentary evidences at tentative Exh. Nos. 5 to 10. Further, in view of the aforesaid ingredients of sections 406, 420, 467, 468 and 471 of the I.P.C., it does not appear from the oral and documentary evidences produced by the Prosecution that the accused, with an intention to dishonestly cheat the complainant and his son, forged signature of Keturaj Page 6 of 12 Uploaded by MR PARESH J SOMPURA(HC00451) on Wed Jan 01 2025 Downloaded on : Fri Jan 03 22:19:32 IST 2025 NEUTRAL CITATION R/CR.MA/23648/2024 ORDER DATED: 18/12/2024 undefined Kiritsinh Parmar, the son of the complainant, and also forged documents and used them as genuine and got his name entered in the record of the Torrent Power Electricity Company Ltd. and thereby committed an offence.
15. To attract ingredients of Section, for which respondent-accused is tried being Section-467 and Section-471, which is vehemently canvassed by learned Advocate for the applicant. It is necessary that the document, which is alleged to be forged, purports to be a valuable security or (1) a will, or (2) any authority to adopt a son, or (3) a document which purports to give authority to any person to make or (4) a document to transfer any valuable security, or to receive principal, interest or (5) dividends thereon, or to receive or deliver any money, movable property or (6) valuable security, or (7) any document purporting to be an acquittance or 8) receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or (14) valuable security.
16. As is discussed above, alleged forgery is that of signature on letter addressed purportedly by son of the complainant to Electric Company for transfer of electric connection in the name of the respondent-accused.
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17. In the opinion of the Court, alleged forgery on such document does not fall in any of the categories mentioned herein above and would therefore, not constitute offence under Section-467.
18. Thereafter, learned Advocate has argued that offence is committed under Section-468, which provides for committing of forgery for the purpose of cheating. Section-415 defines cheating as to whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, which is relevant for the facts of this case. However, in the facts of this case, there does not appear to be any inducement for delivery of any property and therefore, argument of the applicant that the act of respondent-accused constitutes offence under Section-468 cannot be accepted.
19. The Court may thereafter consider whether the act attributed to the respondent-accused would constitute offence under Section-471 and whether the applicant was able to establish beyond reasonable doubt act of the respondent-accused in committing forgery of the document. The complaint also alleges the offence of criminal breach of trust and by the impugned judgment and order, the respondent-accused has been acquitted of charges under Section-406, which provides for punishment for criminal Page 8 of 12 Uploaded by MR PARESH J SOMPURA(HC00451) on Wed Jan 01 2025 Downloaded on : Fri Jan 03 22:19:32 IST 2025 NEUTRAL CITATION R/CR.MA/23648/2024 ORDER DATED: 18/12/2024 undefined breach of trust.
20. Section-405 of IPC defines Criminal breach of trust as a person in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged. The facts as are examined in this case, is submission of communication under alleged forged signature, which does not transfer any property or dominion over any property by the complainant in favour of the respondent-accused. Therefore, in the opinion of the Court, facts of this case also do not attract the ingredients of Section-405 for Criminal breach of trust.
21. In so far as allegations under Section-471 is concerned, it provides for punishment for using forged document as genuine document. According to the applicant, application made by respondent-accused in the prescribed format and the Communication letter at Exh-9 and 10 purportedly given by son of the complainant, but allegedly given by respondent-accused to Electric Company bearing alleged forged signature of son of the complainant. Therefore, it is alleged that there is use of forged document as genuine before Electric Company.
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22. Section-29 of IPC defines the document, which denotes any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, as evidence of that matter. Therefore, communication to Electric Company and application form may fall in the definition of 'Document', as is required under Section-471. At the same time, it is responsibility of the applicant (prosecution) to establish that the signature made on this tainted documents is by respondent-accused.
23. To establish this charge, the complainant has placed on record specimen signature of son of the complainant from the Bank record, which is obviously different than that of the signature on Exh-9 and 10; tainted documents. However, it is responsibility of the complainant side / prosecution to establish that signature on the tainted documents is under hand writing of respondent-accused.
24. From the record, there does not appear to be any application on behalf of the prosecution to get tainted documents examined at the hands of Hand Writing Experts and now belatedly contention is raised that the Court in exercise of Section-73 of Indian Evidence Act ought to have taken by the Trial Court for examination of signature either by referring Page 10 of 12 Uploaded by MR PARESH J SOMPURA(HC00451) on Wed Jan 01 2025 Downloaded on : Fri Jan 03 22:19:32 IST 2025 NEUTRAL CITATION R/CR.MA/23648/2024 ORDER DATED: 18/12/2024 undefined to it to the Hand Writing Expert or on its own on the basis of difference in signature seen by naked eyes.
25. Prosecution in this case may have established that there is variation in the natural signature of son of the complainant and the signature on the tainted documents vide Exh-9 and 10, but there is nothing on record to establish that such signature on tainted documents are at the hands of respondent-accused. Even if an exercise as is now prayed for under Section-73 of Indian Evidence Act, if, is not exercised at the relevant time by the trial Court, then also, it is respondent-accused who will get the benefit of such lapse.
26. The Court finds that even before this Court, there is no application separately made for taking additional evidence as provided for under the provisions of Cr.P.C. and in absence of any such prayer before this Court, this Court will not undertake exercise, which was not undertaken by the trial Court nor by the complainant himself and hence, if the benefit of such lapse is to go to respondent-accused, then so be it.
27. Lastly, the Court has taken into consideration overall facts situation, which predominantly is arising out of the tenancy dispute of residential premises, for which criminal prosecution is also faced with by Page 11 of 12 Uploaded by MR PARESH J SOMPURA(HC00451) on Wed Jan 01 2025 Downloaded on : Fri Jan 03 22:19:32 IST 2025 NEUTRAL CITATION R/CR.MA/23648/2024 ORDER DATED: 18/12/2024 undefined the tenant successfully. Therefore, the Court finds no reason to interfere with the impugned judgment and order dated 13.05.2024 passed in Criminal Case No.1029 of 2014 by the Additional Chief Metropolitan Magistrate Court, Court No.14 at Ahmedabad.
28. In view of the aforesaid, no case is made out for grant of special leave to appeal against the impugned judgment and order dated 13.05.2024 passed in Criminal Case No.1029 of 2014 by the Additional Chief Metropolitan Magistrate Court, Court No.14 at Ahmedabad. Hence, the application is hereby dismissed.
(A.Y. KOGJE, J) (SAMIR J. DAVE,J) PARESH SOMPURA Page 12 of 12 Uploaded by MR PARESH J SOMPURA(HC00451) on Wed Jan 01 2025 Downloaded on : Fri Jan 03 22:19:32 IST 2025