Allahabad High Court
Shashwat Vikram Gupta And Others vs State Of U.P. And Another on 13 February, 2014
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment reserved on 31.01.2014 Judgment delivered on 13.02.2014 Case :- APPLICATION U/S 482 No. - 6700 of 2013 Applicant :- Shashwat Vikram Gupta And Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Ashish Kumar Srivastav Counsel for Opposite Party :- Govt. Advocate,Vinay Saran Connected with Case :- APPLICATION U/S 482 No. - 6699 of 2013 Applicant :- Shashwat Vikram Gupta And Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Ashish Kumar Srivastav,Ashish Kumar Counsel for Opposite Party :- Govt. Advocate,Vinay Saran Hon'ble Manoj Misra, J.
1. Both these applications are based on common course of events with common applicants though arising out of separate complaints with different complainant, therefore, for the sake of convenience, they are being decided by a common judgment.
2. Crl. Misc. Application u/s 482 No. 6700 of 2013 seeks quashing of the proceedings of Complaint Case No. 13 of 2013 under Sections 406, 420, 467, 468, 471, 352, 504, 506, 120-B I.P.C. whereas the Crl. Misc. Application u/s 482 No. 6699 of 2013 seeks quashing of the proceedings of Complaint Case No. 12 of 2013 under sections 406, 420, 467, 468, 471, 504, 506, 120-B I.P.C. both pending in the court of Additional Chief Judicial Magistrate 2nd, Varanasi. Both the applications also seek quashing of the summoning order dated 14.02.2013 passed in the respective cases.
3. In Complaint Case No. 13 of 2013, Shardul Vikram Gupta (the opposite party No.2 in Crl Misc. Application No.6700 of 2013) is the complainant whereas in Complaint Case No. 12 of 2013, Shashikant Tripathi, Director of Gyan Mandal Ltd., Varanasi (the opposite party No.2 in Crl Misc. Application No.6699 of 2013) is the complainant. In both the complaints, the accused are common and they are the applicants in both the applications.
4. In both the aforesaid complaints, the case of the complainant is that plot Nos. 54, 56, 57, 58 and 62, over a part which House No. B-30/5; B-30/5-A; B-30/5-B; and B-30/5-1 are situated, are owned by Shardul Vikram Gupta (complainant of complaint case No.13 of 2013) and Gyan Mandal Ltd., Varanasi (whose Director is the complainant in complaint case No.12 of 2013). It has been alleged that accused Nos.1 to 3, namely, Shashwat Vikram Gupta, Rakesh Jaiswal and Arvind Singh, are directors of a company named Kalpdrrum Ltd. It is alleged that a builders agreement dated 21.11.2005 for development of the aforesaid plots was entered into between the owners and Kalpdrrum Ltd. wherein it was provided that in all 40 developed flats, free of cost, would be provided to the owners in the following manner: 20 flats to the complainant in complaint case no.13 of 2013 (Shardul Vikram Gupta), 10 flats to Gyan Mandal Ltd. (the company, whose director is the complainant in complaint case No. 12 of 2013) and 10 flats to Smt. Poonam Gupta wife of Shardul Vikram Gupta, who is the accused No.5 in complaint case No. 13 of 2013.
5. It is the case of the complainant that acting on the builder's agreement, the builders raised multi-storeyed building but when the complainant(s) demanded their share of flats, under the builder's agreement dated 21.11.2005, their demand was refuted by setting up a forged/ fabricated and different agreement of the same date i.e. 21.11.2005 where, in place of 40 flats that were to be given to the aforesaid owners, 36 flats were mentioned. It is thus the case of the complainant, that the accused persons, in conspiracy with each other, had fabricated an agreement where, in place of 40 flats, it was mentioned 36 flats. The allegation is further to the effect that the other party acting on the fabricated agreement is fraudulently disposing of the flats and misappropriating the sale consideration. It has been alleged that, on 17.01.2013, the accused along with others had entered the office of the complainant and had abused and threatened the complainant not to raise demand for 40 flats.
6. The complaint allegations have been supported by the statement of the respective complainant(s) as well as of the witnesses recorded under sections 200 and 202 Cr.P.C. respectively.
7. The learned Magistrate found that from the complaint allegations and the statements in support thereof as also the documents produced, a prima facie case was made out to proceed against the accused and it, accordingly, summoned the accused persons.
8. Earlier, by order dated 06.03.2013, this Court, considering that the complainant and the accused were closely related, referred the matter to the Mediation Centre of this Court. The referral order was passed in Criminal Misc. Application No.6700 of 2013 whereas the Crl. Misc. Application No.6699 of 2013 was ordered to be connected with the other application. Pursuant to the referral order, the Mediation Centre of this Court submitted its report dated 02.07.2013, disclosing that the mediation process was completed but parties could not arrive at an agreement. As a result, both the cases were examined on merits.
9. Sri Gopal Chaturvedi, learned Senior Counsel, assisted by Sri Ashish Kumar Srivastav, learned counsel for the applicants in both the cases, submitted that in both the complaints, the common allegation is that a builders agreement dated 21.11.2005 was entered into between the parties under which certain number of flats were to be given to the owners free of cost. It has been submitted that the dispute between the parties is only with respect to the number of flats which are to be given to the owners under the builders agreement dated 21.11.2005. According to the complainant, the builders were required to give 40 flats to the owners whereas, according to the accused/ builders, the owners were entitled to only 36 flats. It was urged that according to the complaint case the accused persons in conspiracy with each other manipulated/ altered the agreement and set up a different agreement, but from the record it is clear that there is no alteration in the agreement, set up by the accused, so as to suggest alteration of the figure 40 to 36. Relying on Annexure-1 to the application, which is the builders agreement set up by the applicants, the learned counsel for the applicants pointed out that the agreement carries the signature of all the parties and there is no alteration in paragraph 2 of the terms and conditions of the agreement wherein it has been very clearly written that 36 residential flats will be given to the second party free of cost. It was submitted that as there is no alteration in the agreement dated 21.11.2005, which may suggest that the figure 40 was changed to 36, therefore, the builders agreement set up by the applicants cannot be said to be a false document within the meaning of second part of Section 464 of I.P.C. It was further urged that in the complaint, the complainant alleged that the disputed document was altered whereas in the statement recorded under section 200 CrPC it has been alleged that a different agreement was made but there is no statement of the complainant that the agreement which has been set up by the accused does not carry the signature of the parties including the complainant. It was thus submitted that if there is no allegation or evidence to suggest that the builders agreement set up by the applicants carry forged signatures of the complainant/ parties and further there being no alteration in the agreement, it becomes a case where there is no legally admissible evidence to support the complaint allegations and, as such, it is a fit case where the proceedings be quashed. It was submitted that although an incident dated 17.01.2013 has been set up in the complaint so as to show that the accused had come to the office of the complainant for threatening the complainant, but those allegations are general in nature and considering the relationship of the parties, the said allegations cannot be given much importance for the purpose of drawing proceedings against the applicants. To support the said submission, it was pointed out that the applicant no.1 and 4 are the sons of the complainant (Shradul Vikram Gupta) whereas the applicant no.5 is his wife. In the above backdrop, it was submitted that the continuance of proceedings are nothing but abuse of process of court and, therefore, it would be in the interest of justice that the same be quashed.
10. In support of his submissions, the learned senior counsel appearing for the applicants placed reliance on the judgment of the Apex Court in the case of R.P. Kapur Vs. State of Punjab reported in AIR 1960 SC 866, wherein it has been provided that inherent jurisdiction of the High Court, under Section 482 Cr.P.C. (old section 561-A), can be successfully invoked for quashing the proceedings where, even if the allegations made against the accused person do constitute an offense but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. It was urged that, in the instant case, there is neither any legal evidence to show alteration in the document nor there is any evidence to show that the signature on the agreement set up by the accused are forged, so as to suggest that the agreement in question is a false document within the meaning of section 464 IPC.
11. In reply to the aforesaid submissions, Sri Vinay Saran, learned counsel for the complainant, submitted that the complaint allegations do disclose commission of offense inasmuch as it is the specific case of the complainant that the agreement which was set up by the accused persons was fabricated so as to show a lesser number of free flats that were required to be given to the owners. It was urged that the statement of the complainant ought to be read as a whole so as to draw logical inference therefrom. It was urged that if the complaint allegations and the statement in support thereof are read as a whole they would indicate that the accused persons made /fabricated a separate agreement different from the one entered into between the parties where under, in place of 40 flats, 36 flats were on offer to the owners, free of cost. Sri Saran submitted that under first part of Section 464 I.P.C., the words makes, signs, sells, executes are used disjunctively, inasmuch as, they are separated by using comma (,) and, therefore, it is not necessary for the complainant, at this stage, to make a specific statement that the agreement set up by the accused does not carry the complainant's signature, because, the very fact that the complainant stated that a fabricated agreement, different from the one entered into by the parties, was set up by the accused persons, sufficient ground was made out to draw proceedings for an offense of making and using a false document. Sri Saran urged that by using modern day techniques like taking image from a scanner and pasting the same on a document, with the aid of a colored printer, an altogether different agreement can be made disclosing identical signatures. Therefore, mere non specific challenge to the signature appearing on a document, at this stage, would not be sufficient to rule out creation of a fabricated document if it has been, otherwise, demonstrated that there was a different agreement entered into between the parties than the one which has been set up by the accused persons. It was submitted that the complainant had produced a copy of a document according to which the complainant was entitled to 40 flats and had led evidence that the accused had set up a different agreement where under only 36 flats were on offer, in place of 40 flats, therefore, a prima facie case was made out against the accused persons of making and using a false document and, as such, the proceedings are legally justified. It was submitted that the term "legal evidence" used in R.P. Kapur's case (supra), is to be taken as "material" sufficient to draw proceeding because, at the stage of issuance of process, the Magistrate has to satisfy himself whether there are sufficient grounds to proceed against the accused. So far as evidence is concerned that is to be led during the course of trial. It was submitted that in the instant case it has been brought to the notice of the court below that there had been an agreement between the parties of the date 21.11.2005 which provided 40 free flats to the owners whereas the accused to deny the claim of the complainant set up another agreement that provided 36 flats which, according to the complainant was fabricated, therefore, there was sufficient legal evidence to draw proceeding. It was submitted that as to how that document has been fabricated is a matter of evidence which has to be led/tested/analyzed and weighed during the course of trial. It was urged that at the stage of drawing proceeding on a complaint, the Magistrate is required to form an opinion, on the basis of the complaint allegations, the statements made in support thereof and other materials provided by the complainant, as to whether there is sufficient ground to proceed against the accused and the Magistrate, at that stage, is not required to test or analyze or weigh the evidence so as to find out whether it would, ultimately, result in his conviction. It was strenuously urged that once the complainant had set up a case that the accused persons had set up an agreement other than the agreement which the complainant had entered into, and had supported it by getting himself and his witnesses examined under under sections 200 and 202 Cr.P.C. respectively, there was sufficient ground to proceed against the accused for making and using a false document.
12. Having noticed the submissions of the learned counsel for the parties, before assessing the weight of the respective submissions, it would be useful to first examine the provisions of section 463 and 464 of the Indian Penal Code, which provides as follows:
"Section 463. Forgery.--- Whoever makes any false documents or false electronic record, with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into express or implied contract, or with intent to commit fraud or that the fraud may be committed, commits forgery.
Section 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 digital signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or a part of document, electronic record or digital 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 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 digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly.--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital 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.
Explanation 1.--A man's signature of his own name may amount to forgery.
Explanation 2.--The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery.
[Note.-- The words ''digital signature' wherever they occur were substituted by the words ''electronic signature' by Amendment Act 10 of 2009.]"
A careful reading of section 464 IPC would reveal that making of a false document would include an act by which a person dishonestly or fraudulently makes a document or part of a document with the intention of causing it to be believed that such document or a part of document was made by or by the authority of a person by whom or by whose authority he knows that it was not made. Therefore, if a case is set up that the accused has fraudulently and dishonestly made an agreement different from the one entered into between the parties, just to defeat the rights of the complainant, it cannot be said that a case is not made out to proceed against the accused for making and using a false document.
13. In the instant case, there is no dispute between the parties that an agreement was entered into on 21.11.2005 by which the builders had agreed to raise construction and handover certain number of flats to the owners. There is also no dispute that under the builders agreement certain number of flats were to be offered to the complainant. What is disputed is the number of such flats. According to the applicants, 36 flats were to be handed over to the complainant whereas according to the complainant, 40 flats were to be handed over. Both the parties have filed their respective agreements along with affidavits. Whether the agreement set up by the accused persons is a false document or not is a matter of evidence. But what is clear is that both the parties have set up different agreements of the same date, therefore, in view of the complaint allegations and the statements in support thereof, a prima facie case is made out against the accused persons.
14. The argument of the learned counsel for the applicants that as there is no positive assertion of a forged signature on the document as also there is nothing to show any interpolation or alteration in the agreement disclosing alteration of the figure 40 to 36, therefore, creation of false document is ruled out, cannot be accepted, inasmuch as, it would give too narrow an interpretation to the first part of section 464 of the Code. In this regard, the submission of the learned counsel for the complainant that the words makes, signs, executes, etc. are used disjunctively, appears to have force because, otherwise, the legislature might not have used the word "makes" in the first part of section 464 IPC after having already used the term "make" in the opening part of section 464. It is well settled in law that a provision must not be interpreted in such a manner that any word / term used therein is rendered otiose. Further, a provision must be interpreted in a manner that it keeps itself abreast with changing times. In S.P. Gupta v. Union of India, 1981 Supp SCC 87, at page 273, in para 63 of the report, Hon'ble Bhagwati, J observed as follows:
"The interpretation of every statutory provision must keep pace with changing concepts and values and it must, to the extent to which its language permits or rather does not prohibit, suffer adjustments through judicial interpretation so as to accord with the requirements of the fast changing society which is undergoing rapid social and economic transformation. The language of a statutory provision is not a static vehicle of ideas and concepts and as ideas and concepts change, as they are bound to do in a country like ours with the establishment of a democratic structure based on egalitarian values and aggressive developmental strategies, so must the meaning and content of the statutory provision undergo a change. It is elementary that law does not operate in a vacuum. It is not an antique to be taken down, dusted, admired and put back on the shelf, but rather it is a powerful instrument fashioned by society for the purpose of adjusting conflicts and tensions which arise by reason of clash between conflicting interests. It is therefore intended to serve a social purpose and it cannot be interpreted without taking into account the social, economic and political setting in which it is intended to operate. It is here that the Judge is called upon to perform a creative function. He has to inject flesh and blood in the dry skeleton provided by the legislature and by a process of dynamic interpretation, invest it with a meaning which will harmonise the law with the prevailing concepts and values and make it an effective instrument for delivery of justice.
Likewise, in the case of Kailash Chand v. Dharam Dass, (2005) 5 SCC 375, at page 384, the apex court observed as follows:
"12. We find it difficult to accept the construction placed on the third proviso, in para 14 of the judgment in Molar Mal case. In Rakesh Wadhawan v. Jagdamba Industrial Corpn. this Court has held that a statute can never be exhaustive. The legislature is incapable of contemplating all possible situations which may arise in future litigation and in myriad circumstances. The scope is always there for the court to interpret the law with pragmatism and consistently with the demands of varying situations. The construction placed by the court on statutory provisions has to be meaningful. The legislative intent has to be found out and effectuated.
"Law is part of the social reality."
(See Law in the Scientific Era by Justice Markandey Katju, 2000 Edn., p. 33.) "Though law and justice are not synonymous terms they have a close relationship, as pointed out by the American jurist Rawls. Since one of the aims of the law is to provide order and peace in society, and since order and peace cannot last long if it is based on injustice, it follows that a legal system that cannot meet the demands of justice will not survive long. As Rawls says: ''Laws and institutions no matter how efficient and well arranged, must be reformed or abolished if they are unjust.' " (ibid., p. 72.) Clearly, law cannot be so interpreted as would cause oppression or be unjust.
13. Life is not static and so the law cannot afford to be static."
15. In view of the law noticed above, the term "makes", as it finds mention in the first part of section 464 of the Indian Penal Code, has to be accorded dynamic interpretation so as to include creation of a false document by using modern scientific techniques which may enable making of a false document with identical signature by use of modern scientific instruments, etc. Therefore, even if the complainant, at this stage, has not stated specifically that the disputed agreement carries his forged signature, the complaint allegations and the statement in support thereof, when read as a whole, do disclose that the complainant has been able to prima facie make out a case that a fabricated document was made disclosing different crucial term which, prima facie, makes out a case of making a false document within the meaning of first part of section 464 of the Indian Penal Code. The manner in which the said document was made is a matter of evidence to be led in trial. Whether the accused persons are guilty, or the complaint allegations are false and malicious, is a matter for the court below to decide on the basis of evidence led before it. At this stage, only a prima facie case is to be seen which, from the complaint allegations and the statements recorded in support thereof, is made out against the applicants. In view of the above the contention of the applicants' counsel that it is a case of no legal evidence, cannot be countenanced. Therefore, neither the complaint nor the proceedings in pursuance thereof, in both the cases, can be quashed at the threshold. The prayer of the applicants to that extent, in both the cases, is rejected.
16. However, considering the facts and circumstances of the case, it is provided that, if the applicants have not already obtained bail, in case they surrender before the court concerned and apply for bail, in both the cases, within 30 days from today, their bail applications shall be considered by the courts concerned, in both the cases, in accordance with the law laid down by this Court in the case of Amrawati and another Vs. State of U.P. : 2004 (57) ALR 290 as affirmed by Hon'ble Apex Court in Lal Kamlendra Pratap Singh Vs. State of U.P: [2009 (3) ADJ 322 (SC)]. For a period of 30 days from today no coercive steps would be taken against the applicants. It is made clear that no further time would be granted to the applicants for availing the benefit of the above direction.
17. It is also made clear that any observation made in this order should not be taken as a finding so as to cause prejudice to the applicants in the pending proceedings. Any observations made in this order are only for the purpose of deciding these two applications.
18. With the aforesaid observations/directions both the applications stand disposed of.
Order Date :- 13.02.2014 Sunil Kr Tiwari