Karnataka High Court
Mr. M Subramani vs State Of Karnataka on 5 July, 2024
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
Reserved on : 21.06.2024
Pronounced on : 05.07.2024
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.5073 OF 2023
BETWEEN:
MR. M.SUBRAMANI
S/O LATE SRI. MUNIRAJU
AGED ABOUT 39 YEARS
R/AT NO.52, MADAPPANAHALLI
KUGUR POST, ANEKAL TALUK
BENGALURU - 562 125.
... PETITIONER
(BY SRI. SOURABH R. K., ADVOCATE)
AND:
1 . STATE OF KARNATAKA
BY THE HEBBAGODI POLICE STATION
BANGALORE RURAL DISTRICT
REPRESENTED BY THE SPP
HIGH COURT OF KARNATAKA
HIGH COURT BUILDING
BENGALURU - 560 001.
2 . MR. RAJA
S/O ROBERT LOUIS
AGED ABOUT 57 YEARS
R/AT NO.533/A, 8TH MAIN
2
4TH BLOCK, KORAMANGALA
BENGALURU - 560 034.
... RESPONDENTS
(BY SRI. B N JAGADEESH, ADDL. SPP FOR R1;
SMT. JYOTHI S KEMPAGOUDAR, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE ORDER DATED 07.02.2023 IN
C.C.NO.185/2023 PRODUCED IN ANNEUXRE-A AND THE ENTIRE
PROCEEDINGS THEREIN, PENDING ON THE FILE OF THE LD.IV
ADDL.CIVIL JUDGE AND J.M.F.C, ANEKAL BENGALURU RURAL.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 21.06.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner is before this Court calling in question an order dated 07-02-2023 passed by the IV Additional Civil Judge and JMFC at Anekal, Bengaluru Rural District in C.C.No.185 of 2023 and seeks quashment of entire proceedings.
2. Facts, in brief, adumbrated are as follows:-
The petitioner is accused No.1. The petitioner, intending to purchase immovable property for the purpose of investment, enters into a deed of sale with one Mrs. Dorothy Roberts, the mother of 3 the complainant, through her power of attorney holder in respect of property bearing Sy.No.60/5 situate in Hebbagodi Village, Attibele Hobli, Anekal Taluk, Bengaluru Rural District registered in the office of the Sub-Registrar, Anekal. It is the averment in the petition that Mrs. Dorothy Roberts herself personally executed a confirmation deed of the aforesaid sale deed in favour of the petitioner. On 05-12-2019, after the sale of the property, the complainant sought to break open the lock of the property and therefore, the petitioner files a suit before the jurisdictional civil Court in O.S.No.536 of 2019. A temporary injunction was granted against the mother of the complainant not to interfere with the possession and enjoyment of the property by the petitioner.
3. On 10-02-2020, immediately after grant of temporary injunction as aforesaid, a complaint comes to be registered by the 2nd respondent alleging that the sale deed was executed not by the mother of the complainant but by an imposter. Based upon the said complaint, a crime comes to be registered against the petitioner arraigning him as accused No.1 and three others in Crime No.50 of 2020. Police, after investigation, file a charge sheet in C.C.No.185 4 of 2023 against three accused persons. On filing of the charge sheet, the petitioner takes recourse to two proceedings, one the subject criminal petition having been filed on 29-05-2023. When no interim order was passed during the pendency of the criminal petition, the petitioner takes other recourse of filing an application seeking discharge from the array of accused before the learned Magistrate under Section 239 of the CrPC. The application was heard and order was passed on its merits on 21-11-2023 whereby the concerned Court discharged the petitioner from the array of accused.
4. Two months after the discharge of the petitioner, the prosecution submits a supplementary charge sheet under Section 173(8) of the Cr.P.C. In the supplementary charge sheet, the petitioner is brought back as accused No.1 and two others as accused Nos. 2 and 5. The learned Magistrate accepting the supplementary charge sheet, issues summons to all the accused including the petitioner. Issuance of summons leads the petitioner to file an application seeking amendment of the criminal petition raising a challenge to the summons so issued by the concerned 5 Court. Therefore, the challenge now revolves round filing of the supplementary charge sheet and issuing of summons to the petitioner by the concerned Court.
5. Heard Sri R. K. Sourabh, learned counsel appearing for the petitioner, Sri B.N. Jagadeesh, learned Additional Special Public Prosecutor appearing for respondent No.1 and Smt. Jyothi S. Kempagoudar, learned counsel appearing for respondent No.2.
6. The learned counsel appearing for the petitioner would vehemently contend that the petitioner is discharged by a judicial order on merits of the matter. Once there is a judicial order of discharge, the foundation itself is knocked out against the petitioner. Therefore, there was no charge pending or charge sheet pending for the prosecution to file an additional charge sheet or supplementary charge sheet arraigning the petitioner again as accused No.1, more so, in the light of the fact that the order of discharge has become final. The learned counsel would submit that to circumvent the rigour of Section 319, the prosecution has taken the step in connivance with the complainant. On merits of the 6 matter, the learned counsel would submit that purely a civil dispute is given a colour of crime by alleging that Mrs. Dorothy Roberts never intended to sell the property and it is the impersonator forging the signature of Mrs. Dorothy Roberts, this step is taken. In all, he would seek quashment of entire proceedings before the concerned Court.
7. Per contra, the learned Additional State Public Prosecutor would vehemently refute the submissions to contend that filing of additional or supplementary charge sheet is available in law for the prosecution under sub-section (8) of Section 173 of the Cr.P.C. He would further emphasize on the fact that the prosecution perhaps was not aware of the order of discharge in favour of the petitioner.
Therefore, the action of the prosecution cannot be found fault with.
It is for the petitioner to come out clean in the trial.
8. The learned counsel appearing for the complainant would also vehemently refute the submissions contending that the petitioner has indulged in impersonation, forgery of the signature of the mother of the complainant concerning the property. The sale 7 deed and the confirmation deed are all bogus and, therefore, he has instituted a civil suit before the jurisdictional Court. He would contend that there was no warrant to discharge the petitioner and, therefore, the subject crime must be permitted to be taken to its logical conclusion.
9. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
10. The afore-narrated facts are not in dispute and they are all a matter of record. However, a little walk in the history would become necessary. The story begins from a sale deed executed by Mrs. Dorothy Roberts, on 30-03-2016 registered before the Sub-
Registrar at Anekal. It is registered through the Special Power of Attorney holder one Mr. Nagaraj. After execution of the sale deed comes a confirmation deed on 08-08-2016 by the mother of the complainant in favour of the petitioner. It is the averment in the petition, as also the depiction in the confirmation deed, that the mother of the complainant has personally come and executed the 8 confirmation deed before the concerned Sub-Registrar. Between the dates of confirmation deed from the hands of the mother of the complainant and the sale deed through the Special Power of Attorney holder, the petitioner enters into an agreement of sale with one Anurag Barmecha Realty and Co. on 29-07-2016 without possession and they said to have entered into another agreement with the consent of the agreement holder on 05-09-2019. The earlier agreement holder later executes a deed of cancellation of agreement on an incident that happens on 05-12-2019, which according to the petitioner was interference by the complainant and his family trying to break open the lock. The petitioner instituted a suit in O.S. No.536 of 2019 for permanent injunction in which the concerned Court on 07-12-2019 grants a temporary injunction.
After receipt of the notice from the hands of the civil Court comes, the impugned complaint against the petitioner. Since the entire issue has now sprung from the complaint dated 10-02-2020, the same is reproduced below for the purpose of quick reference:
"From Date: 10-02-2020
Dorothy@ Dorothy Robert
MR RAJA S/O MRS DOROTHY ROBERT
W/o Robert Louis
9
#553/A, 8th Main, 4th Block
Koramangala,
Bengalooru - 560 034
7899835127
To
The Station House Officer
Hebbagodi Police Station, Bengalooru
Sir.
Sub: Complaint against M. Subramani, Nagaraj, Anurag
Barmecha, G. Saravanan & Dorothy Robert for impersonification, forgery, committing fraud by creating forged & fraudulent documentation with an intention of cheating and causing wrongful loss & threat to life, and to further provide police protection -reg.
I bring to your kind notice that under a registered sale deed Dt. 28.07.1981, I purchased the agricultural property in Sy. No. 60/5 measuring 2 Acres 1 Gunta situated at Hebbagodi Village, Attibele Hobli, Anekal Taluk, Bengalooru Rural District and thereafter I got my name mutated in the revenue records vide MR No. 2/81-82, and have also put up compound wall around the said property and managing the same with the support of my son Raja.
I state that on 04.12.2019 it was brought to our notice that certain persons had come near the above property and removed the name- board erected on the property and immediately upon coming to know the said fact, I filed a complaint before Hebbagodi Police, and immediately the Police came to the spot and questioned the persons present there and it was revealed that the aforesaid Subramani had indulged in such illegal act, and he started to make certain claims for which the Police asked him to bring all the documents in his custody to the Police Station the next day.
When I visited the Police Station the next day alongwith my son, the said Subramani failed to turn up or produce any document even though we waited in the Police Station till 7.00 PM in the 10 evening. Thereafter the Police asked us to go back and assured to interrogate the matter in due course.
Thereafter on the advice of my well-wishers, I approached the Sub- Registrar's office at Anekal and also Taluk Office. I was shocked & surprised to note that the aforesaid persons in connivance with each other had set up a person in my name and had indulged in creating documents and forging my signature and had registered documents before the Sub-Registrar offices at Anekal, Banashankari, Sarjapura & Attibele. With great difficulty I ran around all the Sub-Registrar's offices and applied for the documents, and obtained certified copies of agreements for sale Dt. 24.03.2016 said to have been executed by one Dorothy Robert in favour of M. Subramani. The said document is not signed by me and the photograph shown in the said document is not mine. However, the agreement for sale refers to my property.
Similarly, there is a registered sale deed Dt. 30.03.2016 executed by Dorothy Robert represented by one Nagaraj on the basis of a special power of attorney. The said registered sale deed is with respect to my property, but I have not signed the said document. The signatures in the said document are forged. Similarly, the special power of attorney referred to in the said document said to have been executed in favour of Nagaraj, is not executed by me and the said attorney too is forged.
Further, the above persons have also created confirmation deed Dt. 08.08.2016 with respect to my property by bringing a different person for registration and by forging my signature. Further, M. Subramani has executed the following deeds:
(1) Agreement for sale Dt.. 29.07.2016 in favour of Anurag Barmecha Realty & Co., represented by Anurag Barmecha. (2) Agreement for sale Dt. 05.09.2019 in favour of G. Saravanan (3) Cancellation deed Dt. 09.12.2019 (4) Cancellation of agreement Dt. 06.12.2019 11 All the above documents are created & concocted by the aforesaid persons in order to make unlawful enrichment and cheat me even though at no point of time have I ever executed any kind of special power of attorney or agreement for sale or sale deed with respect to my property as described hereinabove.
I specifically state that I have not received any money from the aforesaid persons. I obtained certified copies of the above deeds on 12.12.2019, 13.12.2019 & 16.12.2019 On the basis of the aforesaid documents and also taking advantage of the that I am aged 79 years, they have indulged in the above acts. Further, when I visited my property, certain unscrupulous persons again came near my property and threatened me with dire consequences if I did not sell the property and further threatened that I would not be able to digest the situation as sale deeds have already been created with respect to the property and if I were to go to Civil Court, the same would take years together and that I would not be alive to see that the problem solved.
Left with no other alternative, I approached the Senior Citizen Help Desk in the Police Commissioner's office on 17.12.2019 evening and thereafter on 18.12.2019. On 18.12.2019 I was advised to file another complaint before the jurisdictional police, and accordingly, I am approaching your authority to take serious action against all the abovesaid persons and also to give protection to my property and me. I also reasonably apprehend threat to my son Raja by the aforesaid persons and hence I request your authority to give protection to him.
I am enclosing photocopies of all the documents referred supra for immediate action.
Since I am aged and also due to the continuous stress of running around for the past several days to safeguard property, I am suffering from body-ache and hence I have signed this complaint and sending the same through my son Raja with a request to take immediate action.
Yours faithfully, Sd/-
10.02.2020"
12This becomes a crime in Crime No.50 of 2020 for the offences punishable under Sections 418, 419, 420, 465, 468, 471, 506 r/w 34 of the IPC. The Police conduct investigation and file a charge sheet against three accused including the petitioner arraigning him as Accused No.1. Column No.17, the summary of the charge sheet reads as follows:
"PÀ®A:-:418,419,465,468,471,420,506, eÉÆvÉUÉ 34 L¦¹ ಆ ೇಕ ಘನ ಾ ಾಲಯದ ಾ ೆ ೇ ದ, ೆಬ ೋ ೕ ಾ ೆ ಸರಹದು#, $ೆಂಗಳ(ರು )*ೆ.., ಆ ೇಕ +ಾಲೂ,ಕು, ಅ.$ೆ*ೆ ೋಬ/, ಹುಸೂ0ರು ರ ೆಯ ,ರುವ ೆಬ ೋ ಾ2ಮದ ಸ ೆ4 ನಂ.60/5 (ಹ5ೆಯ ಸ ೆ4 ನಂ. 60) ರ ,, ರುವ 2 ಎಕ7ೆ 01 ಗುಂ8ೆ ಜ:ೕನು 1 ೇ ಾ;<ಾರರ +ಾ= >2ೕಮ. <ೊ <ೊ.4 .4 7ಾಬ?4 ರವ ೆ ೇ ದ# ಜ:ೕ ಾ@ದು#, ಈ <ೋಷ7ೋಪ ಾ ಪDE ಅಂಕಣ 12 ರ , ನಮೂದುಪ Gರುವ 3 ೇ ಆ7ೋ ಯು 1 ೇ ಾ;<ಾರ ೆ ೇ ದ ಜ:ೕನನುH ಲಪ8ಾ=G, *ಾಭ Jಾ KೊಳLMವ ಉ<ೆ#ೕಶPಂದ ಮೂಲ ಜ:ೕನು Jಾ ೕಕ7ಾದ 1 ೇ ಾ;<ಾರರ +ಾ= >2ೕಮ. <ೊ.4 7ಾಬ?4 ರವರ ಬದ*ಾ@ $ೇ7ೆ ೆಂಗಸನುH ಮತು <ಾಖ*ಾ.ಗಳನುH ಸೃTEG, ಮೂಲ Jಾ ೕಕರ ಸUಯನುH ನಕಲು Jಾ Kೊಂಡು Wೕಸ. *ಾಭ Jಾ KೊಳLMವ ದುರು<ೆ#ೕಶPಂದ P ಾಂಕ:24/3/2016 ರಂದು 3 ೇ ಆ7ೋ >2ೕಧY ೊಂ<ಾ=ತ Agreement Of Sale ಅನುH 1 ೇ ಆ7ೋ ಸುಬ2ಮZರವ ೆ Jಾ KೊಟುE, PÀæಯದ ಯದ ಪ2.ಫಲವನುH 1 ೇ ಾ;<ಾರರ +ಾ= >2ೕಮ. <ೊ.4 7ಾಬ?4 ರವ ೆ ]ೕ ರುವ^Pಲ,. ಬದ*ಾ@, ಆ7ೋ ಗ5ಾದ 1 ೇ ಆ7ೋ ಸುಬ2ಮZ ಮತು 3 ೇ ಆ7ೋ >2ೕಧY _ಾ:ೕ*ಾ@ PÀæಯ ಪ2.ಫಲದ ಹಣವನುH 1 ೇ ಆ7ೋ ಯ, 3 ೇ ಆ7ೋ ೆ ಹಣ ]ೕ , ಆ ಮೂಲಕ ವಂಚ ೆ 1 ೇ ಾ;<ಾರರ +ಾ= ೆ Jಾ ರು+ಾ7ೆ.
1 ೇ ಾ;<ಾರರ +ಾ= >2ೕಮ. <ೊ.4 7ಾಬ?4 ರವರು 2 ೇ ಆ7ೋ ಾಗ7ಾಜುರವ ೆ ೊಂ<ಾ=ತ Special Power of Attorney Jಾ KೊಡPದ#ರು. 3 ೇ ಆ7ೋ ತನು 1 ೇ ಾ;<ಾರರ +ಾ= ೆ Wೕಸ Jಾಡುವ ಉ<ೆ#ೕಶPಂದ ನಕಲು ಎ . .ಎ <ಾಖ*ಾ.ಯ 1 ೇ ಾ;<ಾರರ +ಾ= ಬದ*ಾ@ $ೇ7ೆ ೆಂಗಸನುH ಸೃTEG, 3 ೇ ಆ7ೋ ಯು 1 ೇ ಾ;zÁರರ +ಾ= >2ೕಮ. <ೊa4 7ಾಬ4? ಪರ ಾ@ ಎ . .J ಅbKಾರ ¤ÃrzÀAvÉ 1£Éà 13 ¸ÁQëzÁgÀgÀ vÁ¬ÄUÉ ¸ÉÃjzÀ 2 JPÀgÉ 01 UÀÄAmÉUÉ d«ÄäUÉ ¢£ÁAPÀ:24/3/2016 gÀAzÀÄ J¸ï.¦.J PÉÆlÄÖ ವಂಚ ೆ Jಾ ನಕ <ಾಖ*ಾ. ಸೃTEGರು+ಾ7ೆ.
P ಾಂಕ:30/3/2016 ರಂದು 1 ೇ ಾ;<ಾರರ +ಾ= >2ೕಮ. <ೊ.4 7ಾಬ?4 ರವ ೆ ೇ ದ 2-01 ಗುಂ8ೆ ಜ:ೕ]ನುH 1 ೇ ಆ7ೋ ಸುಬ2ಮZ ೆ ೊಂ<ಾ=ತ Absolute Sale Deed Jಾ KೊಡPದ#ರು. 5 ೇ ಆ7ೋ ತನು 1 ೇ ಾ;<ಾರರ +ಾ= ೆ Wೕಸ Jಾಡುವ ಉ<ೆ#ೕಶPಂದ ನಕಲು ಸU ಶುದ2ಕ2ಯ <ಾಖ*ಾ. ಸೃTEG, 1 ೇ ಾ;<ಾರರ +ಾ= ಬದ*ಾ@ $ೇ7ೆ ೆಂಗಸನುH ಸೃTEG, 5 ೇ ಆ7ೋ >2ೕಧY, 1 ೇ ಆ7ೋ ಸುಬ2ಮZರವ ೆ ಶುದ2ಕ2ಯ Jಾ ದಂ+ೆ ನಕಲು ಸU Jಾ , <ಾಖ*ಾ. ಸೃTEG, 1 ೇ ಾ;<ಾರ ೆ ವಂcG - Wೕಸ Jಾ ರು+ಾ7ೆ P ಾಂಕ:8/8/2016 ರಂದು 5 ೇ ಆ7ೋ >2ೕಧY, 1 ೇ ಆ7ೋ ಸುಬ2ಮZ ೆ CONFIRMATION DEED Jಾ KೊDEದ# ನಂತರ, 1 ೇ ಆ7ೋ ಸುಬ2ಮZ 1 ೇ ಾ; <ಾರರ <ಾರ ರ +ಾ= <ೊ.4 7ಾಬ?4 ರವ ೆ ೇ ದ 2-01 ಎಕ7ೆ ಜ:ೕ]ನುH WೕಸPಂದ ಲdಾD=ಸುವ *ಾಭ Jಾ KೊಳLMವ ದುರು<ೆ#ೕಶPಂದ, P ಾಂಕ:29/7/2016 ರಂದು 1 ೇ ಆ7ೋ ಯು ಅನು7ಾಗ ಬಮ4eಾ ಾ D ಮತು ಕಂಪ] ೆ ೊಂ<ಾ=ತ AGREEMENT FOR SALE ಮತು P ಾಂಕ:5/9/2022 ರಂದು ).ಶರವಣf ರವ ಗಗೂ Sale Agreement Jಾ KೊDEದ#ನುH ನಂತರ 1 ೇ ಆ7ೋ ಯು P ಾಂಕ:6/9/2019 ರಂದು ).ಸರವಣf ೆ ಮತು ಬಮ4eಾ ಾ D ಮತು ಕಂಪ] ೆ Jಾ KೊDEದ# ೇ ಆ@2hಂ? ಗಳನುH CANCELLATION Jಾ , 1 ೇ ಾ;<ಾರ ೆ 1 ೇ ಆ7ೋ ತನು dಾ2ಣ$ೆದ Kೆ ಾaರು+ಾ7ೆಂದು ತ]iೆ=ಂದ ದೃಡಪDEರುತ<ೆ, ಆದುದ ಂದ 1 ೇ, 2 ೇ ಮತು 5 ೇ ಆ7ೋ ಗಳ jರುದk ಕಲಂ 418,419,465,468,471,420,506, lೊ+ೆ ೆ 34 ಐ G ೕತ ೊ ಸಲnಟE ಈ <ೋಷ7ೋಪ ಾ ಪDE."
(Emphasis added) By then the petitioner was already before this court in Criminal petition No.643 of 2021 seeking quashment of the crime. In the said criminal petition there was no interim order granted. During the pendency of the said petition, the prosecution filed a charge sheet as aforesaid. Filing of the charge sheet leads the petitioner to withdraw Criminal Petition No.643 of 2021. A coordinate Bench of 14 this Court by its order dated 25-10-2021 while permitting the petitioner to withdraw the petition, reserves liberty to challenge the charge sheet. Therefore, the present petition is preferred on 29-05-2023 challenging filing of the charge sheet.
11. During the pendency of this petition, since no interim order was granted, the petitioner chose to file an application before the learned Magistrate under Section 239 of the CrPC seeking discharge. The concerned Court by its order dated 21-11-2023, after hearing the parties, holds that a matter which is purely civil in nature is sought to be given a colour of crime and, therefore, following the judgment of the Apex Court and that of this Court, passes the following order:
".... .... ....
15. As already stated, there is no clear investigation of the material witness, recording of statement of the owner who alleged to have been impersonated, the document which is alleged to have been forged by way of impersonation has not sent for FSL examination, signature of the owner has not been sent for examination, etc., goes to the very root of the investigation and there are several laches and lacuna in the same. As already stated, there is vague allegation against the accused No.1 in the complaint lodged by the complainant against the accused No.1. Hence, doubt arises about the credibility of the complainant in lodging the present compliant 15 that too not by the original complaint, but by her son and so also registering the same and investigation and filing of charge sheet against the present accused No. 1.
16. Apart from that in the decision reported in (2023) 2 SCC 195 R.Nagender Yadav Vs. State of Telangana, it has been held that the police should have to obtain the specimen handwritings of the complainant so as to be compared with the disputed signature on the sale documents through a handwriting expert and that as on the date there is no report of the handwriting expert in regard to the genuineness of the signature of the complainant on the disputed sale deed. In the present case also, no such report has been obtained by the IO during his investigation and blindly filed the charge sheet.
17. In another case reported in Crl.Petition No.7702/2020 (Smt. Nirmala Vs. State of Karnataka), it has been held that during the pendency of the suit after thought filed the present complaint belatedly. When the matter is pending before the Civil Court with regard to the validity of the document of execution and when there is prima facie execution of sale deed in favour of the accused No.1, if the process issued against the petitioner if it is continued it amounts to an abuse of process and it leads to miscarriage of justice. It is nothing but giving criminal colour to the civil dispute between the parties. Hence it is a fit case to exercise the power u/s.482 of Cr.P.C. to quash the proceedings instigated against the petitioner, who is an agreement holder. The said ratio is aptly applicable to the facts and circumstances of the present case.
18. Above is the material on record in the charge sheet filed for the offences under sections-418, 419, 465, 468, 471, 420, 506 r/w.sec.34 of the IPC. As can be seen from the above material it does not in any manner implicate the accused No.1 for the alleged offences. Hence, on a careful consideration of the charge sheet materials, without hesitation, I am of opinion that it can be held that charge sheet filed for the offences under sections 418, 419, 465, 468, 471, 420, 506 r/w.sec. 34 of the IPC against the accused No.1 is groundless. In other words, I am of opinion that even if the above said charge 16 sheet material is accepted at its face value, offences alleged u/sections-418, 419, 465, 468, 471, 420, 506 r/w.sec.34 of the IPC cannot be sustained against the accused No. 1. Of-course, it is legal principle that even if a strong suspicion is made out from the charge sheet materials, charge can be framed. However, in my opinion above material is not sufficient even to hold that same gives rise to a strong suspicion about the accused No.1 committing the offences under sections- 418, 419, 465, 468, 471, 420, 506 r/w.sec. 34 of the IPC. Hence, I am of the considered view that from the charge sheet material it is explicitly clear that the offences alleged under sections-418, 419, 465, 468, 471, 420, 506 r/w.sec.34 of the IPC against the accused No.1 is groundless.
19. Having arrived at the above conclusion, I am of opinion that application filed by the accused No.1 to discharge him from the charge sheeted offences under sections-418, 419, 465, 468, 420, 506 г/w.sec.34 of the IPC requires to be allowed and the applicant/accused No.1 deserves to be discharged from the said offences. Consequently, Point no.1 is answered in the affirmative.
20. POINT No.2: For the foregoing reasons, I proceed to pass the following :-
ORDER The Application filed by the applicant/accused No.1 u/s. 239 of the Cr.P.C. is hereby allowed and accused No.1 is hereby discharged from the offences under sections-418, 419, 465, 468, 471, 420, 506 r/w.sec.34 of the IPC in this case."
(Emphasis added) The petitioner got discharged from the array of accused by a judicial order i.e., the Court of the learned Magistrate before whom the case was pending. The petitioner then thought it fit to remain 17 silent, as he has already been discharged from the array of accused. Then comes a supplementary/additional charge sheet filed by the prosecution under Section 173(8) of the Cr.P.C. The summary of the additional charge sheet reads as follows:
"PÀ®A:-418,419,465,468,471,420,506, eÉÆvÉUÉ 34 L¦¹ ಆ ೇಕ ಫನ ಾ ಾಲಯದ ಾ ೆ ೇ ದ ೆಬ ೋ ೕ ಾ ೆ ಸರಹದು# $ೆಂಗಳ(ರು )*ೆ,, ಆ ೇಕ +ಾಲೂ,ಕು, ಅ.$ೆ*ೆ ೋಬ/, ಹುಸೂ0ರು ರ ೆಯ ರುವ ೆಬ ೋ ಾ2ಮದ ಸ ೆ4 ನಂ.60/5 (ಹ5ೆಯ ಸ ೆ4 ನಂ. 60) ರ ,ರುವ 2 ಎಕ7ೆ 01 ಗುಂ8ೆ ಜ:ೕನು 1 ೇ ಾ;<ಾರರ +ಾ= >2ೕಮ. <ೊ.4 7ಾಬ?4 ರವ ೆ ೇ ದ# ಜ:ೕ ಾ@ದು#, ಈ <ೋಷ7ೋಪ ಾ ಪDE ಅಂಕಣ 12 ರ , ನಮೂದುಪ Gರುವ 5 ೇ ಆ7ೋ ಯು 1 ೇ ಾ;<ಾರ ೆ ೇ ದ ಜ:ೕನನುH ಲಪ8ಾ=G, *ಾಭ Jಾ KೊಳLMವ ಉ<ೆ#ೕಶPಂದ ಮೂಲ ಜ:ೕನು Jಾ ೕಕ7ಾದ 1 ೇ ಾ;<ಾರರ +ಾ= >2ೕಮ. <ೊ.4 7ಾಬ?4 ರವರ ಬದ*ಾ@ $ೇ7ೆ ೆಂಗಸನುH ಮತು <ಾಖ*ಾ.ಗಳನುH ಸೃTEG, ಮೂಲ Jಾ ೕಕರ ಸUಯನುH ನಕಲು Jಾ Kೊಂಡು Wೕಸ *ಾಭ Jಾ KೊಳLMವ ದುರು<ೆ#ೕಶPಂದ P ಾಂಕ:24/3/2016 ರಂದು 5 ೇ ಆ7ೋ >2ೕಧY ೋಂ<ಾ=ತ Agreement Of Sale ಅನುH 1 ೇ ಆ7ೋ ಸುಬ2ಮZರವ ೆ Jಾ KೊಟುE, PÀæಯದ ಯದ ಪ2.ಫಲವನುH 1 ೇ ಾ;<ಾರರ +ಾ= >2ೕಮ. <ೊ.4 7ಾಬ?4 ರವ ೆ ]ೕ ರುವ^Pಲ,. ಬದ*ಾ@, ಆ7ೋ ಗ5ಾದ 1 ೇ ಆ7ೋ ಸುಬ2ಮZ ಮತು 5 ೇ ಆ7ೋ >2ೕಧY _ಾ:ೕ*ಾ@ ಕ2ಯ ಪ2.ಫಲದ ಹಣವನುH 1 ೇ ಆ7ೋ ಯ, 5 ೇ ಆ7ೋ ೆ ಹಣ ]ೕ , ಆ ಮೂಲಕ ವಂಚ ೆಯನುH 1 ೇ ಾ;<ಾರರ +ಾ= ೆ Jಾ ರು+ಾ7ೆ.
1 ೇ ಾ;<ಾರರ +ಾ= >2ೕಮ. <ೊ.4 7ಾಬ?4 ರವರು 2 ೇ ಆ7ೋ ಾಗ7ಾಜುರವ ೆ ೊಂ<ಾ=ತ Special Power of Attorney Jಾ KೊಡPದ#ರು. 5 ೇ ಆ7ೋ ತನು 1 ೇ ಾ;<ಾರರ +ಾ= ೆ Wೕಸ Jಾಡುವ ಉ<ೆ#ೕಶPಂದ ನಕಲು ಎ . .ಎ <ಾಖ*ಾ.ಯ , 1 ೇ ಾ;<ಾರರ +ಾ= ಬದ*ಾ@ $ೇ7ೆ ೆಂಗಸನುH ಸೃTEG, 5 ೇ ಆ7ೋ ಯು 1 ೇ ಾ;<ಾರರ +ಾ= >2ೕಮ. <ೋ <ೋ.4 .4 7ಾಬ4? ಪರ ಾ@ ಎ . .J ಅbKಾರ ]ೕ ದಂ+ೆ 1 ೇ ಾ;<ಾರರ +ಾ= ೆ ೇ ದ 2 ಎಕ7ೆ 01 ಗುಂ8ೆ ೆ ಜ:ೕ] ೆ P ಾಂಕ:24/3/2016 ರಂದು ಎ . .J KೊಟುE ವಂಚ ೆ Jಾ ನಕ <ಾಖ*ಾ. ಸೃTEGರು+ಾ7ೆ.
P ಾಂಕ:30/3/2016 ರಂದು 1 ೇ ಾ;<ಾರರ +ಾ= >2ೕಮ. <ೊ.4 7ಾಬ?4 ರವ ೆ ೇ ದ 2-01 ಗುಂ8ೆ ಜ:ೕ]ನುH 1 ೇ ಆ7ೋ ಸುಭ2ಮZ ೆ ೋಂ<ಾ=ತ Absolute Sale 18 Deed Jಾ KೊಡPದ#ರು 5 ೇ ಆ7ೋ ತನು 1 ೇ ಾ;<ಾರರ +ಾ= ೆ Wೕಸ Jಾಡುವ ಉ<ೆ#ೕಶPಂದ ನಕಲು ಸU ಶುದ2PÀæಯ <ಾಖ*ಾ. ಸೃTEG 1 ೇ ಾ;<ಾರರ +ಾ= §zÀ¯ÁV ¨ÉÃgÉ ºÉAUÀ¸À£ÀÄß ¸Àȶֹ, 5 ೇ ಆ7ೋ >2ೕಧY, 1 ೇ ಆ7ೋ ಸುಬ2ಮZರವ ೆ ಶುದ2PÀæಯ Jಾ ದಂ+ೆ ನಕಲು ¸À» Jಾ , <ಾಖ*ಾ. ಸೃTEG, 1 ೇ ಾ;<ಾರ ೆ ವಂcG Wೕಸ Jಾ ರು+ಾ7ೆ.
ರು+ಾ7ೆ."
P ಾಂಕ:8/8/2016 ರಂದು 5 ೇ ಆ7ೋ >2ೕಧY, 1 ೇ ಆ7ೋ ಸುಬ2ಮZ ೆ CONFIRMATION DEED Jಾ KೊDEದ# ನಂತರ, 1 ೇ ಆ7ೋ ಸುಬ2ಮZ 1 ೇ ಾ; <ಾರರ +ಾ= <ೋ.4 7ಾಬ?4 ರವ ೆ ೇ ದ 2-01 ಎಕgÉ ಜ:ೕ]ನುH WೕಸPಂದ ಲdಾD=ಸುವ *ಾಭ Jಾ KೊಳLMವ ದುರು<ೆ#ೕಶPಂದ, P ಾಂಕ:29/7/2016 ರಂದು 1 ೇ ಆ7ೋ ಯು ಅನು7ಾಗ ಬಮ4eಾ ಾ D ಮತು ಕಂಪ] ೆ ೊಂ<ಾ=ತ AGREEMENT FOR SALE ಮತು P ಾಂಕ:5/9/2022 ರಂದು ).ಶರವಣf ರವ ಗಗೂ Sale Agreement Jಾ KೊDEದ#ನುH ನಂತರ 1 ೇ ಆ7ೋ AiÀÄÄ P ಾಂಕ:6/9/2019 ರಂದು ).ಸರವಣf ೆ ಮತು ಬಮ4eಾ ಾ D ಮತು ಕಂಪ] ೆ Jಾ KೊDEದ# ೇ ಆ@2hಂ? ಗಳನುH CANCELLATION Jಾ , 1 ೇ ಾ;<ಾರ ೆ 1 ೇ ಆ7ೋ ತನು dಾ2ಣ$ೆದ Kೆ ಾaರು+ಾ7ೆಂದು ತ]iೆ=ಂದ ದೃಡಪDEರುತ<ೆ.
ಆದುದ ಂದ 1 ೇ, 2 ೇ ಮತು 5 ೇ ಅ7ೋ ಗಳ jರುದk ಕಲಂ
418,419,465,468,471,420,506, lೊ+ೆ ೆ 34 ಐ G ೕತ ೊ ಸಲnಟE ಈ <ೋಷ7ೋಪ ಾ
ಪDE.
(Emphasis added)
If the charge sheet filed initially under Section 173(2) of the CrPC, as quoted hereinabove is juxtaposed with column No.17 of the additional charge sheet supra, it is verbatim same.
12. The note appended to the charge sheet filed under Section 173(2) of the CrPC sought permission to file additional 19 charge sheet, if any. The filing of the charge sheet under Section 173(2) was on 5-09-2022 and filing of the supplementary charge sheet was on 06-10-2023. One important development takes place in the meanwhile. As observed hereinabove, the petitioner gets discharged from the array of accused by a judicial order quoted supra. Once having been discharged by a judicial order and that order having become final, in the considered view of the Court, it was not open to the prosecution to file additional charge sheet, after the order of discharge, again bringing in the petitioner as accused No.1. As the petitioner was already an accused in the charge sheet filed under Section 173(2) of the CrPC and he had been discharged and the discharge had become final, the supplementary charge sheet again brings him back as accused No.1.
13. The learned Magistrate, again on the supplementary charge sheet being filed, issues summons to the accused ostensibly on the score that there were other accused added in the supplementary charge sheet. The learned Magistrate issues process, ignoring the fact that on the date the supplementary 20 charge sheet was filed before the Court, there was no proceeding pending against the petitioner, as he had already been discharged by a judicial order of the same Court. If there was nothing pending against him, or a charge not even pending against him, the question of bringing him back again as accused by filing an additional charge sheet would be contrary to law. As the foundation itself had been taken away by a judicial order, the prosecution is wanting to build a superstructure on a foundation that has vanished. It would have been altogether different circumstance if the order of discharge had been challenged before a higher for a, which has not happened and the order of discharge as on today has become final. No doubt in certain circumstances the accused can be brought in to the web of criminal case even after dropping the name while filing the charge sheet invoking Section 319 of the CrPC. That liberty also would not be available in the case at hand, as there is a judicial order discharging the petitioner from the array of accused. As long as judicial order stays without it being tinkered, the supplementary charge sheet cannot drag the petitioner back in to web of the criminal case. This would be on issue of legality.
2114. On merit of the matter whether there is any case to file a charge sheet or a supplementary charge sheet against the petitioner is also a matter that requires consideration. The afore-
narrated facts are not in dispute. The genesis of the problem is of the year 2019 when the petitioner institutes a civil suit in O.S.No.536 of 2019 in which temporary injunction is granted. The crime then comes to be immediately registered after the grant of temporary injunction. The mother of the complainant has also instituted a civil suit in O.S.No.1258 of 2019. It becomes necessary to notice the prayers that are sought by the complainant's mother before the civil Court. They read as follows:
"WHEREFORE, the Plaintiff prays that this Hon'ble Court may be pleased to:
a) Declare that the following registered deeds executed by the fifth Defendant in favour of the first Defendant with respect to the Suit Schedule Property, is by impersonification and by forging the signature of the Plaintiff, and that the said deeds are created, deceptive, invalid, void ab initio, sham, non-est in the eye of law and not binding on the Plaintiff;
i) Agreement of sale Dt. 24.03.2016 registered as Document No. BSK-1-15602-2015-16, CD No. BSKD350 Dt. 24.03.2016 before the Sub-Registrar, Basavanagudi (Banashankari) 22
ii) Registered Special Power of Attorney bearing No:
481/15-16 executed by the fifth Defendant in favour of the second-Defendant
iii) Absolute Sale Deed Dt. 30.03.2016 registered as Document No. ANK-1-02691-2016-17, CD No. ANKD407 Dt. 29.07.2016 before the Sub-Registrar, Anekal. The document is presented by second Defendant on the basis of purported special power of attorney bearing No. 481/15-16 registered before the Sub-
Registrar/Banashankari
iv) Confirmation Deed Dt. 08.08.2016 registered as Document No. ABL-1-02574-2016-17, CD No. ABLD278 Dt. 10.08.2016 before the Sub-Registrar, Attibele
b) Declare the following registered documents with respect to the Schedule Property are created, deceptive, invalid, void ab initio, sham, non-est in the eye of law and not binding on the Plaintiff;
i) Sale Agreement Dt. 29.07.2016 registered as Document No. ANK- 1-02692-2016-17, CD No. ANKD407 Dt. 29.07.2016 before the Sub-Registrar, Anekal said to have been executed by the first Defendant in favour of the fourth Defendant;
ii) Sale Agreement Dt. 05.09.2019 registered as Document No. SRJ- 1-03011-2019-20, CD No. SRJD445 Dt. 05.09.2019 before the Sub-Registrar, Basavanagudi (Sarjapura) said to have been executed by the first Defendant in favour of the third Defendant;
iii) Deed of Cancellation Dt. 09.12.2019 registered as Document No. ABL-1-06293-2019-20, CD No. ABLD575 Dt. 09.12.2019 before the Sub-Registrar, Attibele said to have been executed between fourth Defendant & first Defendant;
iv) Deed of Cancellation Dt. 06.12.2019 registered as Document No. SRJ-1-04684-2019-20, CD No. SRJD512 Dt. 09.12.2019 before the Sub-Registrar, Sarjapura said 23 to have been executed between third Defendant & first Defendant;
c) Grant judgement & decree of permanent injunction restraining the Defendants either by themselves or through their agents, workmen, henchmen, representatives, power of attorney holders or any person claiming through or under them from in any manner whatsoever alienating or creating third party interest over the Schedule Property;
d) Grant judgement & decree of permanent injunction restraining the Defendants either by themselves or through their agents, workmen, henchmen, representatives, power of attorney holders or any person claiming through or under them from in any manner whatsoever interfere with the Plaintiff's peaceful possession & enjoyment of the Schedule Property:
e) Grant the costs of this suit;
f) Grant such other relief/s as this Hon'ble Court may deem fit & proper, in the interest of justice & equity.
SCHEDULE All that piece & parcel of agricultural land in Sy. No. 60/5 measuring 2 Acres 1 Gunta situated at Hebbagodi Village, Attibele Hobli, Anekal Taluk, Bengalooru Rural District, bounded on the:
EAST BY Kammasandra Boundary
WEST BY Huskur Road
NORTH BY Mallasandra Muniyamma's
Property
SOUTH BY Krishnappa & Papaiah's Property
ADVOCATE FOR PLAINTIFF
PLAINTIFF
24
VERIFICATION
I, Dorothy @ Dorothy Robert, the Plaintiff above named, do hereby verify & declare that the averments made hereinabove are true & correct to the best of my knowledge, information, faith & belief."
(Emphasis added) The prayers sought before the civil Court by the mother of the complainant are that the agreement dated 24-03-2016 is not binding, power of attorney, sale deed and the confirmation deeds executed by her are not binding; further seeks a declaration that the sale agreement that has taken place between the petitioner and others is not binding; deeds of cancellation that have been executed by the petitioner and the third parties are not binding and seeks grant of permanent injunction restraining the petitioner and others from interfering with the peaceful possession and enjoyment of the property by the plaintiff/mother of the complainant. If the prayers that are sought and the complaint registered are red in tandem, what would unmistakably emerge is that, they are verbatim similar as forgery and also impersonation are alleged before the civil Court. Therefore, the complainant cannot sail in two 25 different boats at the same time - one before the civil Court and on the same cause of action setting in criminal law in motion.
15. Since the issue is undoubtedly civil in nature, permitting further proceedings against the petitioner even on the allegation of forgery, impersonation or cheating in an issue that is purely civil in nature would run foul of plethora of judgments of the Apex Court.
The Apex Court in the case of R.NAGENDRA YADAV v. STATE OF TELANGANA1 has held as follows:
"..... .... ....
15. It appears that the aforesaid aspects of the matter have been overlooked by the High Court. We are conscious of the fact that perfunctory investigation cannot be a ground either to quash the criminal proceedings or even to acquit the accused. We take notice of the fact that as on date the parties are before the civil court. The civil suit being Original Suit No. 1343 of 2016 between the parties is pending wherein the contention of the complainant as a plaintiff is that no sale deed dated 29-12-2010 was executed, whereas the contention of the appellant herein as a defendant in the suit is that the sale deed had been executed by the complainant. The civil court is therefore seized of the question as regards the legality and validity of the disputed sale deed. The matter is sub judice in the civil court.
1(2023) 2 SCC 195 26
16. At this juncture and more particularly in the peculiar facts and circumstances of the case, it will not be proper to permit the criminal prosecution to proceed further on the allegation of the sale deed being forged. That question will have to be decided by the civil court after recording the evidence and hearing the parties in accordance with law. It would not be proper having regard to what has been highlighted by us to permit the complainant to prosecute the appellant on this allegation when the validity of the sale deed is being tested before the civil court.
17. At this stage, we quote the following relevant part of the disputed sale deed dated 29-12-2010:
"AND WHEREAS now the above named Vendor herein has offered to sell the abovesaid property to the Vendees for a total sale consideration of Rs 24,08,000 (Rupees twenty-four lakhs eight thousand only), and the Vendee hereby agreed to purchase the same for the said sale consideration, and which is more fully described in the schedule and plan annexed hereto and marked in red colour and hereinafter for the sake of brevity referred to as the "SCHEDULE PROPERTY/SAID PROPERTY"
NOW THIS DEED OF SALE WITNESSETH AS UNDER:
The Vendor hereby declares, agrees and acknowledges that he has received the entire sale consideration of Rs 24,08,000 (Rupees twenty-four lakhs eight thousand only), from the Vendee in the manner mentioned hereunder:
(1) Rs 24,08,000 (Rupees twenty-four lakhs eight thousand only) financed by Axis Bank Ltd.And the receipt of which sum the Vendor do hereby admit and acknowledge."
(emphasis supplied)
18. It appears prima facie from the aforesaid that the purchaser (Vendee) might have obtained finance from Axis Bank Ltd. for the purpose of purchasing the plot in question. The police should have investigated whether the amount of Rs 24,08,000 (Rupees twenty-four lakhs eight thousand only) was paid by Axis Bank Ltd. directly to the original complainant (Respondent 2 herein). There is no clarity even in this regard.
27This aspect shall also be looked into while deciding the civil suit between the parties.
19. While exercising its jurisdiction under Section 482CrPC, the High Court has to be conscious that this power is to be exercised sparingly and only for the purpose of prevention of abuse of the process of the court or otherwise to secure the ends of justice. Whether a complaint discloses a criminal offence or not, depends upon the nature of the act alleged thereunder. Whether the essential ingredients of a criminal offence are present or not, has to be judged by the High Court. A complaint disclosing civil transaction may also have a criminal texture. But the High Court must see whether the dispute which is in substance of a civil nature is given a cloak of a criminal offence. In such a situation, if civil remedy is available and is in fact adopted, as has happened in the case on hand, the High Court should have quashed the criminal proceeding to prevent abuse of process of court.
20. We therefore allow this appeal, set aside the impugned order [R. Nagender Yadav v. State of Telangana, 2021 SCC OnLine TS 3598] of the High Court and quash the criminal proceedings of Criminal Complaint No. 1029 of 2015. We clarify that this will not come in the way of instituting appropriate proceedings in future in case the civil court comes to the conclusion that the disputed sale deed dated 29-12-2010 is forged. We refrain ourselves from expressing any opinion as regards the genuineness or otherwise of the sale deed in question as this question is wide open before the civil court. The civil court shall decide the civil suit pending between the parties on its own merits and on the basis of the evidence that may be led by both the sides. It shall be open to the civil court to take the opinion of the handwritings expert as regards the signature of the complainant on the disputed sale deed."
(Emphasis supplied) 28 Later, the Apex Court in the case of DEEPAK GABA v. STATE OF UTTAR PRADESH2 has held as follows:
".... .... ....
20. In the present case, the ingredients to constitute an offence under Section 420 read with Section 415IPC are absent. The pre-summoning evidence does not disclose and establish the essential ingredients of Section 415IPC. There is no assertion, much less legal evidence, to submit that JIPL had engaged in dishonesty, fraud, or intentional inducement to deliver a property. It is not the case of Respondent 2 complainant that JIPL had tried to deceive them, either by making a false or misleading representation, or by any other action or omission; nor is it their case that JIPL had offered any fraudulent or dishonest inducement to deliver a property. As such, given that the ingredients of Section 415IPC are not satisfied, the offence under Section 420IPC is not made out.
21. Section 471 IPC ["471. Using as genuine a forged document or electronic record.--Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record."] is also not attracted. This Section is applicable when a person fraudulently or dishonestly uses as genuine any document or electronic record, which he knows or has reasons to believe to be a forged document or electronic record. This Court in Mohd. Ibrahim [Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751: (2009) 3 SCC (Cri) 929. This Court, in this case, has cautioned that the ratio should not be misunderstood, to record the clarification, which in the present case, in our opinion, is not of any avail and help to Respondent 2 complainant. We respectfully concur with the clarification as well as the ratio explaining Sections 415, 464, etc. IPC.], has elucidated that the condition precedent of an offence under Section 471IPC is forgery by making a false document or false electronic record or part thereof. Further, to constitute the offence under Section 2 (2023) 3 SCC 423 29 471 IPC, it has to be proven that the document was "forged" in terms of Section 470 ["470. Forged document.--A false document [or electronic record] made wholly or in part by forgery is designated "a forged document or electronic record"."], and "false" in terms of Section 464 IPC ["464. Making a false document.--A person is said to make a false document or false electronic record--First.--Who dishonestly or fraudulently--(a) makes, signs, seals or executes a document or part of a document;(b) makes or transmits any electronic record or part of any electronic record;(c) affixes any electronic signature on any electronic record;(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of a document, electronic record or *[electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or* Substituted for "digital signature" by Act 10 of 2009, Section 51(e) (w.e.f. 27- 10-2009)Secondly.--Who without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; orThirdly.--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration."] .
22. Section 470 lays down that a document is "forged" if there is:
(i) fraudulent or dishonest use of a document as genuine; and
(ii) knowledge or reasonable belief on the part of the person using the document that it is a forged one. 30
Section 470 defines a "forged document" as a false document made by forgery.
23. As per Section 464IPC, a person is said to have made a "false document":
(i) if he has made or executed a document claiming to be someone else or authorised by someone else;
(ii) if he has altered or tampered a document; or
(iii) if he has obtained a document by practising deception, or from a person not in control of his senses.
24. Unless the document is false and forged in terms of Sections 464 and 470IPC respectively, the requirement of Section 471IPC would not be met.
25. In the counter-affidavit filed by Respondent 2 complainant, it is submitted that a few bills were faked/forged, as the goods were not ordered. Reference is made to balance of Rs 79,752 shown on 30-3-2013, which was objected to and thereupon as per the complaint itself the demand/bill was withdrawn. This would not make the bill a forged document or false document, in terms of Sections 470 and 464IPC. The complaint was made in the year 2017, four years after the bill/claim had been withdrawn, reflecting no criminal intent. The bill was not fake or forged, and at best it could be stated that it was wrongly raised. Moreover, the pre-summoning evidence is silent with regard to this bill and mens rea on the part of the accused is not shown and established. Same would be the position with regard to the bill/invoice of Rs 53,215 which was as per the complaint, sent directly to Manav Rachna International at Faridabad. The bill/invoice is not doubted as "forged" or "false" within the meaning of Sections 470 and 464IPC. No doubt, Adhunik Colour Solutions is mentioned as the buyer, and Manav Rachna International as the consignee, albeit the invoice was issued by JIPL. Pre-summoning evidence does not help and make out a case predicated on this bill/invoice. In the counter-affidavit filed before 31 us, it is alleged that since this bill was sent to Faridabad, JIPL had added the GST in the invoice. It is argued that had Respondent 2 complainant supplied the goods, instead of GST, VAT as applicable in Delhi would have been levied, as Respondent 2 complainant was based in Delhi. This argument is rather fanciful and does not impress us to justify summoning for the offence under Section 471IPC. Besides, the assertion is not to be found in the complaint, and cannot be predicated on the pre- summoning evidence."
(Emphasis supplied) The Apex Court in the case of USHA CHAKRABORTY v. STATE OF WEST BENGAL3 has held as follows:
".... .... ....
16. By non-disclosure the respondent has, in troth, concealed the existence of a pending civil suit between him and the appellants herein before a competent civil court which obviously is the causative incident for the respondent's allegation of perpetration of the aforesaid offences against the appellants. We will deal with it further and also its impact a little later. There cannot be any doubt with respect to the position that in order to cause registration of an F.I.R. and consequential investigation based on the same the petition filed under Section 156(3), Cr. P.C., must satisfy the essential ingredients to attract the alleged offences. In other words, if such allegations in the petition are vague and are not specific with respect to the alleged offences it cannot lead to an order for registration of an F.I.R. and investigation on the accusation of commission of the offences alleged. As noticed hereinbefore, the respondent alleged commission of offences under Sections 323, 384, 406, 423, 467, 468, 420 and 120B, IPC against the appellants. A bare perusal of the said allegation and the ingredients to attract them, as adverted to hereinbefore 3 2023 SCC OnLine SC 90 32 would reveal that the allegations are vague and they did not carry the essential ingredients to constitute the alleged offences. There is absolutely no allegation in the complaint that the appellants herein had caused hurt on the respondent so also, they did not reveal a case that the appellants had intentionally put the respondent in fear of injury either to himself or another or by putting him under such fear or injury, dishonestly induced him to deliver any property or valuable security. The same is the position with respect to the alleged offences punishable under Sections 406, 423, 467, 468, 420 and 120 B, IPC. The ingredients to attract the alleged offence referred to hereinbefore and the nature of the allegations contained in the application filed by the respondent would undoubtedly make it clear that the respondent had failed to make specific allegation against the appellants herein in respect of the aforesaid offences. The factual position thus would reveal that the genesis as also the purpose of criminal proceedings are nothing but the aforesaid incident and further that the dispute involved is essentially of civil nature. The appellants and the respondents have given a cloak of criminal offence in the issue. In such circumstance when the respondent had already resorted to the available civil remedy and it is pending, going by the decision in Paramjit Batra (supra), the High Court would have quashed the criminal proceedings to prevent the abuse of the process of the Court but for the concealment.
17. In the aforesaid circumstances, coupled with the fact that in respect of the issue involved, which is of civil nature, the respondent had already approached the jurisdictional civil court by instituting a civil suit and it is pending, there can be no doubt with respect to the fact that the attempt on the part of the respondent is to use the criminal proceedings as weapon of harassment against the appellants. The indisputable facts that the respondent has filed the pending title suit in the year 2015, he got no case that he obtained an interim relief against his removal from the office of Secretary of the School Managing Committee as also the trusteeship, that he filed the stated application for an order for investigation only in April, 2017 together with absence of a case that despite such removal he got a right to get informed of the affairs of the school and also the trust, would only support the said conclusion. For all these 33 reasons, we are of the considered view that this case invites invocation of the power under Section 482 Cr. P.C. to quash the FIR registered based on the direction of the Magistrate Court in the afore-stated application and all further proceeding in pursuance thereof. Also, we have no hesitation to hold that permitting continuance of the criminal proceedings against the appellants in the aforesaid circumstances would result in abuse of the process of Court and also in miscarriage of justice."
(Emphasis supplied)
16. On a coalesce of the judgments rendered by the Apex Court in the aforementioned cases, permitting further proceedings in the case at hand would run counter to law, become an abuse of the process of law and result in miscarriage of justice. However, liberty is required to be given to the complainant or the prosecution, to get these proceedings revived, if the civil Court would arrive at a finding that there was indeed impersonation or forgery by the petitioner, as the matter is at large before the civil Court. If the substratum before the civil Court goes against the petitioner, he will come back to the rigour of criminal proceedings.
Until that happens, there is no warrant to permit further proceedings against the petitioner.
3417. For all the aforesaid reasons, the following:
ORDER
(i) Criminal Petition is allowed.
(ii) The supplementary charge sheet filed against the petitioner on 06-10-2023 under Section 173(8) of the Cr.P.C. stands quashed.
(ii) It is made clear that the observations made in the course of the order would not become applicable in any other case of accused facing proceedings, as it is rendered in answer to the case of the petitioner under Section 482 of the Cr.P.C.
Consequently, pending applications, if any, also stand disposed.
Sd/-
JUDGE bkp CT:ss