Allahabad High Court
Samar Garg vs State Of U.P. And Another on 28 January, 2020
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 67 Case :- APPLICATION U/S 482 No. - 3268 of 2020 Applicant :- Samar Garg Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sushil Shukla Counsel for Opposite Party :- G.A. Hon'ble Rahul Chaturvedi,J.
Heard Sri Sushil Shukla, learned counsel for the applicant, learned AGA for the State and perused the material on record.
This is fresh case and after hearing the argument of learned counsel for the parties and learned AGA the court proposes to decide/dispose of the present 482 Cr.P.C. application at the admission stage itself.
The instant 482 application is targeted against the impugned judgment and order dated 07.08.2019 (Annexure-21) passed by the learned Additional Sessions Judge, Court No.2, Gautam Budh Nagar while deciding the criminal revision no. 111 of 2018.
Submission made by the counsel is that the opposite party no.2 has lodged the FIR no. 157 of 2012 under Sections 420, 467, 468, 471, 506 and 120B IPC, P.S. Greater Noida, District Gautam Budh Nagar against the applicant Samar Garg and his father Anil Garg through 156(3) Cr.P.C. application, however, the police after investigation has submitted the closure report, when the said closure report no. 4 of 2014 was challenged by means of protest petition dated 21.05.2014, the same was ordered to be treated as complaint case and after adhering the procedure in Chapter XV of the Cr.P.C., learned IIIrd Additional Chief Judicial Magistrate vide order dated 09.05.2018 set aside the complaint case no. 254 of 2014 (Mukesh Kasana Vs. Samar Garg and others) under Section 203 Cr.P.C.. Aggrieved by the order of setting aside the magisterial order dated 09.05.2018 the criminal revision no. 111 of 2018 was preferred by the complainant Mukesh Kasana making Anil Garg and Samar Garg as opposite parties. The said revision was eventually allowed by the learned revisional court (IInd Additional Sessions Judge, Gautam Budh Nagar) vide impugned judgment and order dated 07.08.2019 and has remanded the matter back to the learned Magistrate for a fresh consideration in the light of the observation made in the impugned revisional court's judgment.
Since the matter has only been remanded for fresh consideration and the rights of the applicant is not being prejudice but on the insistence of learned counsel for the applicant, the Court is intends to decide the 482 application on merit at the admission stage itself.
As mentioned above, learned revisional court has only remanded the matter back to the the learned Magistrate for fresh consideration in the light of the observation made in the revsional judgement and by that that time there is no prejudice is being caused to the applicant, it is entirely domain of the learned Magistrate that he would re-visit the entire issue and pass a fresh order strictly in accordance with law relying upon the material on record and evidences but it is shocking to the Court that from the para (1) of the affidavit, the applicants Samar Garg and Anil Garg were addressed as "accused applicant". There was no question of addressing him as an accused up to this stage, because against the applicant, the complaint has already been set aside by the Magistrate under Section 203 Cr.P.C. and learned revisional court has only remanded the matter back to revisit and pass a fresh order strictly in accordance with law and till such time, the learned Magistrate passes a fresh order, and decide to proceed in accordance with Chapter XVI Section 204 Cr.P.C. applicants should not be addressed as accused applicants as mentioned in para 1 of the affidavit.(In re:- Mathura Prasad s/o Raghubir vs. State of U.P. decided by Division Bench of this Court on 25.08.2006, the question no.4 of this judgement is quoted herein below. Whether the accused is entitled to any notice or opportunity of hearing at pre-cognizance stage ?. To be precise the order of revisional court is quoted herein below"
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As mentioned above, on the insistence of learned counsel for the applicant, I am proposing to decide the present 482 Cr.P.C. application on merit.
Before addressing the case on merits, it is imperative to spell out the bare skeleton facts of this case which has given rise to the present controversy. Following are the factual narration of the fact, given in the affidavit in support of instant 482 application which are as under :-
(A) As per the story narrated by the applicant in his affidavit that opposite party no.2 Mukesh Kasana, way back in the year 2005, (26.05.2005 to be precise) was allotted a petrol pump/retail outlet from IBP company. The complainant proposes to install the said petrol pump at Kasana District Gautam Budh Nagar under the name & style of M/s Mukesh Kasana, Attar Singh at village over khasra no. 138 measuring 0.676 hect, village Sirsa, Kasana-Sikandrabad Road, District Gautam Budh Nagar. Originally this plot belongs to one Balbeer Singh from which the complainant Mukesh Kasana has purchased through registered instrument.
(B) Mukesh Kasana was running short of funds and finances, he invited applicant to invest amount and enter into a partnership firm with 50% share with profit and loss (as per narration of affidavit). It is alleged that IBP company was having no policy to allot the petrol pump/retail outlet to any partnership firm and it was alleged, that the parties were agreed to have partnership firm without having any formal permission from the parent IBP company.
Meanwhile, the complainant Mukesh Kasana sold half of the area of plot no. 138 in favour of the 'applicant' through a registered sale deed dated 18.08.2005 and get the same mutated in the revenue record.
(C) Besides this, as per the averment of the applicant, an agreement was also said to have arrived at between the applicant and the complainant before "notarial" on 14.09.2005 allegedly signed by both the parties in the presence of certain witnesses whereby complainant acknowledges that he has in receipt of total amount of Rs. 14,79,000/- on different occasions and mode. It was allegedly agreed between them that both will have share of 50% in profit and loss. Beside this, on the same day i.e. on 14.09.2005 complainant also signed a different affidavit duly notarized acknowledging the fact that 50% partnership in favour of the applicant over his retail outlet business and acknowledging the fact that he has receipt the aforesaid amount. All these documents are annexed with the affidavit as different Annexures.
(D) Though all these developments are internal and private arrangements between the two individuals, of which IBP company was completely ignorant and oblivion of this arrangement between them.
(E) Even before, the formal permission for the alleged change in the nature of the firm could be accorded by the IBP Company, the land of plot no. 138 on which retail outlet was established, come into acquisition proceedings by the Greater Noida Authority vide acquisition notice dated 12.03.2018 and 11.07.2018 respectively under Sections 4 and 6 of the Acquisition Act.
(F) The said acquisition proceeding was jointly assailed before this Court and when the proceeding are pending by means of CMWP No. 43244 of 2008. Greater Noida Authority allegedly, offered an alternative site to the complainant in lieu of acquired land and thereafter, the complainant got himself disassociated from the aforesaid pending writ petition.
(G) It is perspective of the applicant Samar Garg, that in order to pre-empt any plausible factum legal action from the side of applicant, to recover his investments, Mukesh Kasana the complainant has filed 156(3) Cr.P.C., application challenging the bonafide, validity of the alleged 'NOTARISED' agreement dated 14.09.2005. According to the complainant this agreement was never came into existence nor executed or signed by complainant has misutilized/forged the certain pre-signed stamp papers, for applicants executing the alleged agreement, the parties dated 14.09.2005. On the strength of the said agreement the applicant is claiming the shareholding of 50% partnership of profit and loss of the petrol pump. The complainant Mukesh Kasana has raised number of alleged anomaly and forgery in executing the said agreement dated 14.09.2005. It is also mentioned that this agreement between the parties is a notarized document but certificate was issued by the concerned NOTARY who has declined his signature over the said agreement in question dated 14.09.2005. There are version and counter version with regard to the veracity of the alleged agreement over the validity and veracity of the agreement which was subject matter of police investigation.
The entire controversy is surrounds around the alleged agreement dated 14.09.2005 (Annexure-3 to the petition) signed by the contesting parties. The opposite party no.2 in no uncertain term has declined his signatures and on the contrary, he alleged that certain signed blank papers were forged by the applicant and in fact till such time the authenticity of this agreement dated 14.09.2005 is under dense cloud of doubts, the applicants must face the prosecution for committing fraud, forgery or cheating.
During investigation the police has also collected the certificate issued by NOTARY Sri R.K.Samson dated 22.10.2012 in which he has declined, that over the said agreement neither the signatures nor the stamp belongs to the said notary.
As mentioned above the police after making the thread bare investigation has submitted its "closure report" and the said closure report was assailed by the complainant raising number of points bringing to the knowledge of the Court the loop holes in the investigation. The said protest petition was treated as complaint case and was ordered to be proceeded like complaint case. Learned Magistrate after adhering the prescribed procedure under Chapter XV was pleased to set aside the said complaint after giving certain observation in it. The said order of Magistrate, as pointed out earlier, was challenged before the revisional court and the revisional court set aside the order of Magistrate and remanded the matter back with certain observation/direction, that Magistrate would revisit the entire issue and pass suitable and well reasoned order in accordance with law.
Learned counsel for the applicant has insisted and brought on record and submitted that order of dismissing the complaint should not be set aside by the revisional powers unless it shows that the order of Magistrate, was perverse or manifestly unreasonable or prima facie incorrect or is perfunctory or based on incomplete evidence or some relevant evidence was not considered by him. The remand is mere for the purpose of remand cannot be ordered by the revisional court to waste the precious judicial time of the Magistrate again.
Learned counsel for the applicant has relied upon the judgment of Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao Phalke reported in (2015)3 SCC 123, paragraph 14 of the judgement is quoted herein below:
"14.In the case before us, the learned Magistrate went through the entire records of the case, not limiting to the report filed by the police and has passed a reasoned order holding that it is not a fit case to take cognizance for the purpose of issuing process to the appellant. Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non- consideration of any relevant material or there is palpable misreading of records, the revisional court is not justified in setting aside the order, merely because another view is possible. The revisional court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. Revisional power of the court under Sections 397 to 401 of Cr.PC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction."
I have keenly perused the judgment and with greatest respect of Hon'ble Court's observation, that facts of the above mentioned case are quite different or distinct with the facts of the case in hand and thus ratio laid down would not applicable in the present set of facts. In the instant case, learned Magistrate while passing the order impugned has nowhere given his judicial finding, as to the validity, veracity and genuineness of the alleged notarised agreement dated 14.09.2005, which is epicenter of the entire controversy involved between the parties. The entire criminal case initiated by the opposite party no.2 against the applicant is solely targetted against the alleged 'notarized agreement dated 14.09.2005', which is allegedly forged document by the applicant. The bonafides and genuineness of this notarised agreement is seriously disputed. In fact, neither IBP company was apprised of any agreement nor any attempt was ever made by the complaint to make the applicants as their partners. It is alleged that certain signed stamp papers were misutilized by the applicant for creating the alleged "notarized agreement" and this matter has to be properly thrashed and adjudicated by the court of competent jurisdiction.
This Court too is finding short to express his own opinion either ways, regarding validity of the alleged agreement dated 14.09.2005, while exercising the power under Section 482 Cr.P.C.. The Court has got no mechanism to declare that document to be genuine one or fabricated document.
In the latest judgment of Hon'ble Apex Court in the case of State of Madhya Pradesh Vs. Yogendra Singh Jadon & another, in Crl. Appeal No. 175 of 2020 dated 31.01.2020. The relevant extract of the judgment is quoted hereinbelow:-
"The power under Section 482 of the Code of Criminal Procedure, 1973 cannot be exercised where the allegations are required to be proved in court of law. The manner in which loan was advanced without any proper documents and the fact that the respondents are beneficiary of benevolence of their father prima facie disclose an offence underSections 420 and 120-B IPC. It may be stated that other officials of the Bank have been charge sheeted for an offence under Sections 13(1)(d) and 13(2) of the Act. The charge under Section 420 IPC is not an isolated offence but it has to be read along with the offences under the Act to which the respondents may be liable with the aid of Section 120-B of IPC."
Thus in exercising the power under Section 482 Cr.P.C., the Court cannot adjudicate regarding the genuineness of the document in question. It is only trial court, who will have judicial scrutiny the issue and to proceed against the applicant, if at all, it finds that alleged agreemet dated 14.09.2005 is prima facie a forged document. It is expected from the learned Magistrate that in additional to the directions given by the learned revisional court, the Magistrate will also ensure the validity and genuineness of the alleged "agreement dated 14.09.2005" and then pass a proper and well reasoned order as expected by the learned revisional court and therefore, I do not find any illegality or perversity in the order of learned revisional court, the present 482 Cr.P.C. stands disposed of with the direction mentioned above.
Order Date :- 28.1.2020 Abhishek Sri.