M.Nagasanjeva Reddy vs The State Of Andhra Pradesh
2022 Latest Caselaw 8267 AP

       HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

          CRIMINAL PETITION No.8433 & 8434 of 2022

COMMON ORDER:

     The 2nd respondent/de facto complainant had filed a

complaint registered as Crime No.300 in III Town Proddatur

Police Station for offences under Section 209, 467, 468, 469,

471 of IPC and 156(3) of Cr.P.C. The said crime was registered

upon investigation being referred to the police by the First

Additional Judicial Magistrate of First Class, Proddatur in

C.C.No.1450 of 2021. This complaint was filed against seven

accused.

2. Aggrieved by the said registration of the complaint

and further investigation, Accused Nos.1 to 4 have filed Criminal

Petition No.8433 of 2022 and Accused Nos.5 to 7 have filed

Crl.P.No.8434 of 2022 before this Court, for quashing the said

complaint.

3. The genesis of this complaint is the legal notice

dated 15.08.2021, sent by the advocates of accused Nos.1 and 2

(the parties herein are being referred as they are arrayed in the

complaint). In this legal notice, the petitioners relying upon an

agreement of sale dated 25.12.2017 had called upon the

complainant to accept the remaining sale consideration and

execute a deed of sale conveying certain property belonging to

the de facto complainant. In reply, the counsel of the de facto

complainant, by notice dated 23.08.2021, had taken the defence

that there was no agreement of sale and the said agreement of

sale had been fabricated by Accused Nos.1 and 2. A request was

also made for production of the said agreement of sale. In reply,

the advocates of the accused Nos.1 and 2, by a notice dated

28.08.2021 took the stand that the agreement of sale is not a

fabricated document and attached a copy of the agreement with

the legal notice. After receipt of this notice, the advocate of the

de facto complainant again sent a notice dated 02.09.2021

reiterating the earlier stand of the de facto complainant.

4. Accused Nos.1 and 2 had thereupon filed O.S.No.32

of 2021 in the Court of the II Additional District Judge, Kadapa

at Proddatur, for specific performance of the agreement of sale,

dated 25.12.2017. After filing of the suit, the de facto

complainant had approached the I Additional Judicial

Magistrate of First Class on 30.10.2021, under Section 200 of

Cr.P.C. In this complaint, which was numbered as C.C.No.1450

of 2021, the de facto complainant had alleged that the

agreement of sale dated 25.12.2017 had been fabricated by

Accused Nos.1 and 2 and was shown to have been witnessed by

Accused Nos.3 and 4. Further, the agreement of sale itself had

been created at the behest of accused Nos.5 to 7. The de facto

complaint took the stand that since all the accused were

involved in the fabrication/forgery of the agreement of sale dated

25.12.2017, all of them require to be punished in the said

offences. The Magistrate after recording the sworn statements of

the de facto complainant and other witnesses had referred the

matter for investigation to the Proddatur III Town Police Station.

Upon such reference, Crime No.300 of 2022 was registered on

20.10.2022. One further fact which requires to be noticed is that

the de facto complainant had also filed a written statement in

O.S.No.32 of 2021 dated 27.04.2022.

5. The accused in the above complaint have filed both

the above criminal petitions for quashing the complaint. As the

issues raised in both the complaints are one and the same and

since the petitioners in these petitions are accused in the same

complaint, both the petitions are being disposed of by a common

order.

6. Sri V.Nitesh, the learned counsel appearing for the

accused in both the petitions draws the attention of this Court

to the allegation of the de facto complainant, in the written

statement of O.S.No.31 of 2021, that the agreement of sale

dated 25.12.2017 is fabricated and forged. He submits that once

genuineness of the agreement of sale has become an issue to be

considered by the civil Court, further investigation in the crime,

registered against the petitioners, is not permissible, as any

such investigation would prejudice the rights of the petitioners

in setting out their case in the civil Court. For this preposition,

he relies upon the Judgment of the Hon'ble Supreme Court

reported in Rajeshbhai Muljibhai Patel vs. State of Gujarat

and Another (Paragraphs 20 to 22)1. He also relies upon a

Judgment of the Hon'ble Supreme Court reported in Sardool

Sing and Another vs. Nasib Kaur.,2 to contend that once a

document is the subject matter of civil litigation and the civil

Court is seized of the validity of the said document, criminal

investigation cannot be permitted to go on while the validity of

the document is before the civil Court.

7. He contends that in such a situation, continuation

of the complaint and investigation under the complaint would

not be permissible and the aid complaint would have to be

quashed.

8. Sri P.Veera Reddy, learned Senior Counsel appearing

for Ms.S.Anvesha, learned counsel for de facto complainant

(2020) 3 SCC 794

1987 (supplementary) SCC 146

would submit that the criminal petitions have been filed within

five days of the complaint being registered and stopping

investigation at the very inception would not be permissible. He

relies upon the Judgment of the Hon'ble Supreme Court in

Superintendent of Police, CBI and Others vs Tapan Kumar

Singh3., to contend that an FIR is not an encyclopaedia of all

information and investigation has to be permitted for

ascertainment of facts and for further discovery of facts.

9. He would also rely upon the Judgment of the

Hon'ble Supreme Court in Neeharika Infrastructure Pvt.Ltd.,

vs State of Maharashtra.,4 to contend that the police have the

statutory right and duty to investigate into a cognizable offence

and that the power of quashing should be exercised clearly with

circumspection in the rarest of rare cases. He would further

submit that neither of those situations arise in the present case

and investigation should be permitted to go on.

10. The learned Senior Counsel would also submit that

the views of the Hon'ble Supreme Court in Rajeshbhai

Muljibhai Patel vs. State of Gujarat and Another would be

binding on this Court if a ratio had been lay down in the said

(2003) 6 SCC 175

(2021) AIR SCC 211

Judgment. He submits that paragraphs 20 to 22 did not laid

down any ratio and was only a view expressed by the Hon'ble

Supreme Court in facts of that particular case and no case law

has also been considered. In the circumstances, he would

submit that reliance on the said Judgment would not be proper.

11. A recital of facts set out above would show that the

accused herein had set up an agreement of sale which was

disputed by the de facto complainant. There was an exchange of

notices between the parties in the months of August and

September, 2021. Thereafter, a suit was filed by the Accused

Nos.1 and 2 for specific performance on 09.09.2021. After these

events, the de facto complainant had approached the criminal

Court on 29.10.2021. The written statement disputing the

validity of the agreement of sale was filed on 27.04.2022. The

Magistrate referred the complaint to the police on 23.09.2022

and the case was registered by the S.H.O of the police station on

20.10.2022.

12. A perusal of the Judgment of the Hon'ble Supreme

Court in Rajeshbhai Muljibhai Patel vs. State of Gujarat and

Another reveals that the view taken by the Hon'ble Supreme

Court was that criminal investigation into a matter which is in

issue and especially when the question of validity of a document

is an issue before the civil Court, it would not be permissible to

conduct a criminal investigation as it would prejudice the rights

and interests of the persons propounding the said document.

The observations of the Hon'ble Supreme Court in paragraph

No.20 are as follows:

20. Be that as it may, in the Summary Suit No.105/2015, leave to defend was granted to respondent No.2-Mahendrakumar on 19.04.2016. On the application filed by appellant No.3 in the said Summary Suit No.105/2015, four receipts filed in the suit were sent to the handwriting expert. The handwriting expert has opined that signatures in all the four receipts did not tally with the sample signatures which were of respondent No.2- Mahendrakumar. It was only thereafter, complaint was filed by Mahendrakumar, based on which, FIR No.I- 194/2016 was registered on 28.12.2016 against the appellants for the offences punishable under Sections 406, 420, 465, 467, 468, 471 and 114 IPC. As rightly contended by the learned counsel for the appellants, in the Summary Suit No.105/2015, issue No.5 has been framed by the Court "whether the defendant proved that the plaintiff has fabricated the forged signature illegally and created forged receipts". When the issue as to the genuineness of the receipts is pending consideration in the civil suit, in our view, the FIR ought not to have been allowed to continue as it would prejudice the interest of the parties and the stand taken by them in the civil suit.

13. To the mind of this Court, the Hon'ble Supreme

Court had laid down a principle that when a civil Court is seized

of the question relating to the validity of a document, it would

not be appropriate to permit criminal investigation in to the

validity of the said document. In that view of the matter, the

contention of the learned Senior Counsel that there is no ratio in

this Judgment cannot be accepted.

14. In any event, the Hon'ble Supreme Court in Sardool

Sing and Another vs. Nasib Kaur had taken a similar view in

the following manner.

"A civil suit between the parties is pending wherein the contention of the respondent is that no Will was executed whereas the contention of the appellant is that Will has been executed by the testator. A case for grant of probate is also pending in the Court of learned District Judge, Rampur. The civil Court is therefore seized of the question as regards the validity of the Will. The matter is sub judice in the aforesaid two cases in civil Courts. At this juncture the respondent cannot therefore be permitted to institute as criminal prosecution on the allegation that the Will is a forged one. 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 to permit the respondent to prosecute the appellants on this allegation when the validity of the Will is being tested before a civil Court. We, therefore, allow the appeal, set aside the order of the High Court and quash the criminal proceedings pending in the Court of the Judicial Magistrate, First Class, Chandigarh in the case entitled Smt. Nasib Kaur v. Sardool Singh. This will not come in the way of instituting appropriate proceedings in future in case the civil court comes to the conclusion that the Will is a forged one. We of course refrain from expressing any opinion as regards genuineness or otherwise of the Will in question as there is no occasion to do so and the question is wife open before the lower Courts."

15. In the circumstances, Crime No.300 of 2022 is

quashed, leaving it open to the de facto complainant to initiate

criminal action in the event of the civil Court coming to the

conclusion that the agreement is a forged document.

16. Accordingly, the criminal petitions are allowed.

As a sequel, pending miscellaneous petitions, if any, shall

stand closed.

____________________________ R. RAGHUNANDAN RAO, J.

02.11.2022

RJS

HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

CRIMINAL PETITION No.8433 & 8434 of 2022

02.11.2022 RJS