Telangana High Court
A.G.Krishna Rao vs The State Of Telangana.,Rep.,Pp And 2 ... on 27 September, 2022
Author: D.Nagarjun
Bench: D.Nagarjun
THE HONOURABLE DR. JUSTICE D.NAGARJUN
CRIMINAL PETITION No.1909 of 2016
ORDER:
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure by the petitioner - accused to quash Cr.No.358 of 2015 of Vanasthalipuram Police Station registered against him for the offences under Sections 191, 192, 463, 467, 465 of the Indian Penal Code.
02. The facts in brief as can be gathered from the record available before this Court are as hereunder:
a) The respondent Nos.2 and 3 - complainants have filed a private complaint on the file of learned VII Metropolitan Magistrate, Ranga Reddy District at Hayathnagar alleging that Complainant No.1 - respondent No.2 is the sister and Complainant No.2 - respondent No.3 is the brother - in- law of the petitioner-accused, have advanced hand loan to the petitioner, who in discharge of the same has issued the cheques. The said cheques were returned dishonoured and on which, respondent - complainant has filed complaint under Section 138 of the Negotiable Instruments Act vide C.C.Nos.249, 250 and 251 of 2011 on the file of learned V Special Magistrate 2 Court at Hasthinapuram, which were re-numbered subsequently as C.C.Nos.289, 290 and 291 of the 2014 on the file of learned II Special Magistrate Court at Hasthinapuram.
b) Respondent No.2-Complainant No.1 has filed C.C.No.291 of 2014 in respect of dishonour of cheque for Rs.5 lakhs; Respondent No.3-Complainant No.2 has filed C.C.No.289 of 2014 in respect of dishonour of cheque for Rs.1 lakh; daughter of complainants by name Mrs.A.Chaitanya has filed C.C.No.290 of 2014 in respect of dishonour of cheque for Rs.1 lakh against the petitioner-accused for the offence under Section 138 of the Negotiable Instruments Act. All the cases have been ended in acquittal vide judgment dated 30.12.2014. Aggrieved by the same, the respondent Nos.2 and 3 have preferred appeals vide CRL.A.No.107 and 108 of 2015 respectively on the file of learned V Additional District Judge, Ranga Reddy District at L.B.Nagar.
c) In addition to filing of the appeals, the respondent - complainant has filed private complaint against the petitioners under Section 200 of the Code of Criminal Procedure on the file of learned VII Metropolitan Magistrate, Ranga Reddy District at Hayathnagar and same was forwarded under Section 156 (3) of the Code of Criminal Procedure to the Police concerned and 3 thereafter the Police, Vanasthalipuram has registered a case in Crime No. 358 of 2015 of Vanasthalipuram Police Station for the offences under Sections 191, 192, 463, 467, 465 of the Indian Penal Code and issued FIR.
d) According to the de-facto complainant, in the said complaint, during the examination in chief of DW1, the petitioner-accused gave false evidence with fabricated document i.e., receipt - cum - undertaking, which is marked as Ex. D1 in C.C.No.250 of 2011 (new C.C.No.291 of 2014). Said document was fabricated forging the signature of complainant No.1.
e) Aggrieved by the order of taking cognizance, the petitioner-accused has filed the present criminal petition to quash Crime No. 358 of 2015 of Vanasthalipuram Police Station on the following grounds:
i) The crime registered under Sections 191, 192, 463, 467, 465 of the Indian Penal Code is not maintainable. The Complainants have suppressed the facts that the cases filed by them against the petitioner-accused were ended in acquittal and also suppressed about the pendency of the appeals.
ii) There is no legal bar with regard to execution of Ex.D1 when the date of purchase of the stamp is prior to execution of document.4
iii) During the course of trial in criminal cases filed under Section 138 of the Negotiable Instruments Act, the respondent Nos.2 and 3 have filed petition under Section 45 of the Evidence Act to send Ex. D1 to handwriting expert. The said application was allowed and Ex.D1 was sent to forensic science laboratory for comparison of admitted signature of Respondent No.2. FSL Authorities made a request to send contemporaneous signatures of respondent No.2 for the particular period. But respondent No.2 failed to send material that are requested by the FSL Authorities. Respondent No.1 counsel filed a memo on 22.01.2014 not pressing Crl.M.P.No.1037 of 2013, which clearly establishes that there is no material available to substantiate the case of respondent No.1. At this juncture, the present case is filed only to take vengeance against the petitioner to settle the dispute.
03. Now the point for determination is:
"Whether the proceedings against the
petitioner-accused in Cr.No.358 of 2015 of
Vanasthalipuram Police Station, can be quashed under Section 482 of the Code of Criminal Procedure ?
5
04. Heard Sri B.Mohan, learned counsel for the petitioner and Sri Pogada Krishna Arjun, learned counsel for the respondent Nos.2 and 3 and Sri S.Ganesh, learned Assistant Public Prosecutor.
05. The contention of the complainants is that Ex. D1 in C.C.No.291 of 2014 on the file of learned II Special Magistrate Court, Hastinapuram was created and filed before the Court knowing fully well that it is a fabricated and gave false evidence and thereby basing on such false evidence, trial Court has dismissed the complaint filed by the respondent No.2- complaint. On the other hand, learned counsel representing the petitioner-accused has submitted that Ex.D1 is not a fabricated one and it has been executed by respondent No.2-complaiant No.1.
06. The Respondent Nos.2 and 3 have filed complaints against the petitioner-accused for the offence under Section 138 of the Negotiable Instruments Act alleging that the cheque issued by the petitioner-accused for discharge of legally enforceable debt of Rs.5 lakhs was dishonoured. The petitioner- accused has taken the plea of discharge on the strength of Ex.D1 stated to have been executed by respondent No.2- 6 complainant No.1. After considering the rival contentions, learned trial Judge in C.C.No.291 of 2014 has upheld the plea of discharge vide Ex.D1 and acquitted the petitioner - accused for the offence under Section 138 of the Negotiable Instruments Act.
07. On perusal of the judgment dated 30.12.2014, it is clear that the counsel for the respondent - complainant has filed an application vide Crl.M.P.No.1037 of 2013 for sending Ex.D1 to the handwriting expert under Section 45 of the Indian Evidence Act and the said petition was allowed and accordingly Ex.D1 was sent to Forensic Science Laboratory. However, the authorities of Forensic Science Laboratory have insisted for sending contemporaneous signatures of respondent No.2 for the particular period for comparing the signature of Ex.D1. But respondent No.2 has not taken any steps to send document containing contemporaneous signatures of respondent No.2 to FSL Authorities.
08. The trial Court in C.C.No.291 of 2014 has observed as follows in the Judgment in respect of Ex.D1:
"Undisputedly the alleged disputed signature existing on a document can be compared with the admitted signatures of the said person existing on 7 admitted documents. Here the petition filed by the complainant in C.C.No.291/2014 u/s.45 of Indian Evidence Act for the purpose of comparing the signature existing on Ex.D1 with the admitted signatures existing on sworn statement of the complainant but not for ascertaining the age of the ink of the writing of the signature existing on the Ex.D1 document. Therefore, I cannot agree with the contention of the learned counsel for the complainant.
Non taking steps for sending the document under Ex.D1 for comparison of signature existing on it with the admitted signatures existing on vakalat and sworn statement of complainant in C.C.No.291/2014 even after allowing the petition filed u/s. Evidence Act. It is deemed that the complainant i.e., Jaysree not disputing the signature on Ex.D1."
09. Therefore, as the respondents have not utilized the opportunity of sending disputed documents to be examined by handwriting expert, the trial Court has given a finding that Ex. D1 is not fabricated.
10. It is the case of the respondents that Ex.D1 is a fabricated document, and that basing on such fabricated document the petitioner has given false evidence and thereby the petitioner is liable for punishment for fabricating the 8 document and also for giving false evidence. When there is prima-facie material before the Court in the form of Judgment in C.C.No.291 of 2014, given by competent Court stating that Ex.D1 is not fabricated document, allegations that the petitioner has filed fabricated document and that giving false evidence basing on Ex.D1 cannot be accepted.
11. In case, if the respondents succeeds in the appeal filed against the Judgment in C.C.No.291 of 2014 and in case if the appellate Court records a finding that Ex.D1 is not genuine document and if fabrication of Ex.D1 document is attributable to the petitioner, then the respondent can take steps against the petitioner. But when there is a clear finding by the trial Court that Ex.D1 is not a fabricated document, the respondents cannot obviously file a complaint seeking punishment of the petitioner-accused on the ground that he has forged Ex.D1 document.
12. The respondents are seeking punishment of the petitioners under Sections 191, 192, 463, 467 and 465 of the Indian Penal Code. The punishment of committing offences under Sections 191 and 192 of the Indian Penal Code is Section 193 of the Indian Penal Code. Therefore, the facto complainant 9 should have mentioned Section 193 of the Indian Penal Code instead of Sections 191 and 192 of the Indian Penal Code.
13. Similarly, Section 463 of the Indian Penal Code is definition of forgery, whereas Section 465 of the Indian Penal Code is punishment for forgery. In case, if the intention of the complainant is that the petitioner-accused has to be punished for the offence of forgery, the provision of law to be quoted is Section 465 of the Indian Penal Code but not provision under Section 463 of the Indian Penal Code.
14. Further, the complainant has also mentioned that the petitioner has committed offence under Section 467 of the Indian Penal Code, which is forgery of valuable security. Even if the petitioner-accused has committed the offence of forging valuable security as defined under Section 467 of the Indian Penal Code, the petitioner-accused cannot be charged for the offence under Section 465 of the Indian Penal Code because offence under Section 467 of the Indian Penal Code is aggravated form of Section 465 of the Indian Penal Code.
15. Therefore, proper provisions could have been Sections 193 and 467 of the Indian Penal Code, if at all the intention of the complainant is that the petitioner - accused has 10 fabricated and gave false evidence and also committed forgery of valuable security.
16. Section 195 of the Code of Criminal Procedure is a bar for taking cognizance of offence under Section 193 and 467 of the Indian Penal Code. Section 195 (b)(i) of the Code of Criminal Procedure reads as follows:
"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.
(1) No Court shall take cognizance-
(a) ................
(ii) ...............
(iii) ...............
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860 ), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, 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, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-
clause (i) or sub- clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate."
17. Basing on the above provision of law, it is clear that on the face of it, unless officer of the Court in writing files a complaint in respect of offences under Sections 191 and 192 of the Indian Penal Code punishable under Section 193 of the 11 Indian Penal Code, and also in respect of offences under Sections 463, 465 punishable under Section 467 of the Indian Penal Code, the cognizance shall not be taken. Though the bar under Section 195 of the Code of Criminal Procedure is there for the offence under Section 463 of the Indian Penal Code, since Section 467 of the Indian Penal Code is aggravated form of Section 463 of the Indian Penal Code, restrictions under Section 195 of the Code of Criminal Procedure from taking cognizance will also apply.
18. However, unless it is alleged that forgery of document is done after filing of the document in the Court, restriction in respect of taking cognizance for the offences punishable under Sections 463, 465 and aggravated form of offence under Section 467 of the Indian Penal Code is not applicable. Therefore, so far as taking cognizance of offence under Sections 191 and 192 of the Indian Penal Code which are punishable under Section 193 of the Indian Penal Code, restrictions imposed under Sections 195 of the Criminal Procedure Code would apply.
19. In respect of fabrication of the documents under Sections 463 and 465 of the Indian Penal Code are concerned, 12 this Court has already observed that admittedly the trial Court has given a finding in C.C.No.291 of 2014 that Ex.D1 is not fabricated documents. Once, it is not a fabricated document, the evidence given by the petitioner-accused in respect of Ex.D1 also cannot be stated as false evidence.
20. Therefore, in view of the above facts and circumstances, viewing from any angle, continuation of the proceedings against the petitioner-accused in Crime No.358 of Vanasthalipuram Police Station amounts to abuse of process of law.
21. Accordingly, the Criminal Petition is allowed and thereby the proceedings against petitioner-accused in Cr.No.358 of 2015 of Vanasthalipuram Police Station, are hereby quashed.
As a sequel, the Miscellaneous Petitions in this matter, pending if any, shall stand closed.
________________________ DR. D.NAGARJUN, J Date: 27.09.2022 AS