Document Fragment View

Matching Fragments

3. The Respondent No. 3 has also filed various proceedings against the alleged compromise and the effect of the alleged compromise have not been given effect to and the Respondent No. 3 has not suffered any damage whatsoever.

4. Thereafter the petitioner was surprised to receive on or about 16th March, 1988, a purported summons, dated 21st January 1988 by the Respondent No. 3 directing the petitioner to appear before the 5th Metropolitan Magistrate on 17th March, 1988. A copy of the purported complaint under Section 467 of the Indian Penal Code was annexed with the purported summons. It appears from the said purported complaint that in the meantime on or about 30th December, 1987 and after about one and a half years from the said purported dismissal Order and after about one and a half years from the said purported dismissal Order and after about one and a half years from the date of the events which form the subject matter of the allegations against the petitioner a purported Criminal Complaint was filed and copy of the complaint is marked Annexure 'O' to this petition. The petitioner has appeared before the Learned 5th Metropolitan Magistrate, Calcutta on or about 17th March, 1988 and has been enlarged on bail. The petitioner submits that the complaint does not disclose any offence punishable under Section 467 of the Indian Penal Code as it does not disclose commission of any forgery as defined in Section 463 of the Indian Penal Code and which is an essential ingredient of the offence under Section 467 of the Indian Penal Code, that there is no allegation that the petitioner has made any false document or part of a document and as such there can be no question of commission of forgery as has been defined in Section 463 of the Indian Penal Code and that there is also no allegation which shows that there was any intention on the part of the petitioner to cause any 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 any express or implied contract or with intent to commit fraud or that fraud may be committed.

8. The Respondents contend that the ingredients of the offence punishable under Section 467 of the Indian Penal Code have been prima facie established in the petition of complaint filed before the Magistrate, that the writ petitioner had no valid authority to enter into compromise on behalf of the Respondents, that the Affidavit-affirmed by him before the appeal Court in F.A.T. 1583 of 1986 and that in Suit No. 482 of 1982 were in substance "valuable security" as it had the effect of extinguishing the right of the Respondent No. 3 in the Company flat as well as in the Head Office premises, that the signing of the Affidavits for and on behalf of the Respondent without any legal Authority of the Respondent No. 3 Company amounts to forgery within the meaning of Section 464 of the Indian Penal Code and there were prima facie materials before the Learned Magistrate to take cognizance and thereafter on considering the petition complaint and evidence of the complainant who was authorised by the Respondent No. 3 to file the petition of complaint on behalf of the Respondent No. 3 the Learned Magistrate issued summons against the petitioner which is an act in accordance with provisions of the Code of Criminal Procedure and the contention of the writ petitioner that the Learned Magistrate did not have any jurisdiction to entertain the petition or complaint and to issue summons upon the petitioner has no substance and there is no ground for the Writ Court to interfere with the Criminal Proceeding pending in a Court of Law.

14. As regards the second point, namely, whether the Learned 5th Metropolitan Magistrate acted illegally and without jurisdiction in taking cognizance and issuing summons under Section 467 of the Indian Penal Code, Mr. Bhaskar Gupta has drawn my attention to the relevant portions of the petition of complaint and has urged that the petition of complaint on the face of it does not disclose any offence under Section 467 of the Indian Penal Code because it is not prima facie established in the allegations of the petition of complaint that the writ petitioner committed the offence of forgery and even if the allegation that the writ petitioner signed the Affidavits before the High Court in the Civil Proceedings pending against the Respondent No. 3 for and on behalf of the Respondent No. 3 without any legal authority of the Respondent No, 3 be taken on its face value that act did not amount to forgery and it might be at best an unauthorised act but would not amount to forgery and not to speak of forging a valuable security. It is also submitted that the Respondent No. 3 already took suitable action in the Court challenging the authority of the writ petitioner and the taking of possession of the premises bad been stayed by the Court of Law and the act of the petitioner does not. amount to committing any offence of forgery for which a process could be issued under Section 467 of the Indian Penal Code and the Learned Metropolitan Magistrate by taking cognizance of the alleged offence under Section 467 of the Indian, Penal Code and issuing summons upon such complaint acted without jurisdiction because he had no jurisdiction to entertain a petition of complaint if it did not disclose arty offence for which cognizance could be taken and process could be issued.

22. It is urged on behalf of the Respondents that the allegation of the petition of complaint is that the writ petitioner signed the compromise petition in appeal case and the undertaking in Suit No. 482 of 1982 purporting to act under the legal authority of the Respondent No. 3 a Government Company but the Respondent No. 3 did not give him any authority to do the above acts and that he did the same fraudulently and dishonestly and consequently prima facie he makes a false document which under Section 464 is forgery under Section 463 of the Indian Penal Code and when the said documents purport to extinguish the tenancy right of the Respondent No. 3 in the Company flat and in Company Head Office comes within the definition of valuable security and thus the ingredients of the offence punishable under Section 467 of the Indian Penal Code has been established by the complainant and there is no ground for holding that the Magistrate had no jurisdiction to entertain the complaint. Mr. Gupta, however, submits that simply because the writ petitioner executed the documents without legal authority the acts of the writ petitioner do not come within the definition of making false document under Section 464 of the Indian Penal Code. But I am of the view that the definition of making false document indicates that a person makes a false document if he signs a document or part of a document dishonestly or fraudulently with the intention of causing to be believed that such document or part of a document was made signed, sealed or executed by or by the authority of a person by whom or whose authority he knows that it was not signed, sealed or executed or at a time he knows that it was not made, signed, sealed or executed. In the petition of complaint it is alleged that the petitioner signed the documents in question claiming to be have authority to sign those documents for and on behalf of the Respondent No. 3 when he knew that he did not have such authority and that he did it fraudulently and dishonestly. Respondent No. 3 being a Government Company has to act only through its authorised person and no person so authorised has any authority to sign any document and if such a person signs such a document without any such lawful authority he does it with the knowledge that he had no such authority. So, when it is alleged in the petition of complaint that the said making of false document is with a fraudulent and dishonest motive, I am of the view that prima facie the acts of the petitioner come within the definition of "making false document" and as such within the definition of "forgery" under Section 463 of the Indian Penal Code. The documents prima facie have the effect of extinguishing the tenancy right of the Respondent No. 3 in the Company flat and in Company Head Office. So they are a valuable security within the meaning of Section 30 of the Indian Penal Code.