Mallinath Ambanna Shedjale vs Purushottam Vasudeo Somshetty ...
2001 Latest Caselaw 396 Bom

JUDGMENT

A.S. Bagga, J.

1. This revision has been filed by the original complainant - Mallinath Ambanna Shedjale, challenging the judgment and order dated 5.8.1993 of acquittal of respondent Nos. 1 to 3 (original accused persons) passed by the Judicial Magistrate, First Class, Solapur in Criminal Case No. 27/1990.

2. Facts leading to filing of this revision by the original complainant against the order passed in a case filed by police, briefly stated, are as follows :

The petitioner and original accused No.1 present respondent No. 1, entered into an agreement of partnership on 10.12.1987. The business of the firm was to undertake transport operations by truck. The truck was purchased for Rs.90,000/- and it was alleged that the original accused No. 1, the respondent No.1 herein, was to contribute about Rs.45,000/-. The partnership, however, could not continue and It was allegedly dissolved. The truck subsequently came to be sold. There arose civil dispute between the present petitioner and respondent No. 1. There was exchange of notices and eventually a civil suit came to be filed by respondent No. 1. The suit was registered as Civil Suit No. 1387/1988. The respondent No, 1 sought settlement of accounts and also asked for appointment of Receiver and certain interim reliefs. This suit filed by respondent No. 1, however, was dismissed on 27.2.1989. The suit came to be dismissed, inter alia, on the ground that the respondent had not placed on record the certificate of registration of the firm. It appears that the partnership firm of the petitioner and respondent No. 1, as referred earlier, was not registered. The petitioner apprehended that the respondent No. 1 should approach the Registrar of Firms for getting the firm registered and therefore, the petitioner wrote a letter to the Registrar of Firms, requesting the Registrar of Firms, not to register the firm in question. The petitioner came to know that despite his objection before the Registrar of Firms to the registration of the firm, the firm came to be registered. The petitioner made enquiries and came to know that an application in Form - 'A' for registration of the firm, had been filed before the Registrar of Firms and that Instead of petitioner's signature somebody had forged his signature at the relevant column. The petitioner, therefore, lodged report in the police station against respondent Nos. 1 to 3. On the basis of the petitioner's complaint, an offense punishable under sections 467, 468, 471 read with section 34 of the I. P. C. came to be registered and Investigation followed.

3. During the Investigation, the specimen handwritings of respondents Nos.1 to 3 were obtained by police. The specimen handwriting was obtained and the writings on the Form 'A' which was submitted to the Registrar of Firms, were sent for comparision by handwriting expert. After the investigation, charge-sheet came to be filed by police against respondent Nos. 1, 2 and 3. The respondent Nos. 1, 2 and 3 were tried before the Judicial Magistrate, First Class. During the trial, respondent No. 3 (original accused No. 3) did not dispute his signature below the certificate in Form-A. The handwriting expert also opined that the specimen handwriting of original accused No. 3 tallied with his admitted signature which handwriting marked as 'Q'. The handwriting expert, however, stated that the signature of the petitioner which came to be marked as Q-1 on Form -A, was not the signature of the petitioner. The handwriting expert, however, stated that it was not possible to say as to who had forged the signature. In other words, handwriting expert did not say whether the forgery was committed by any of the accused persons. After recording the evidence, as above, the learned Judge, however, proceeded to hold that no offence was proved against any of the accused persons. Learned Trial Judge acquitted the accused persons by the impugned order. This order of acquittal is under challenge in this revision.

4. Respondent Nos. 1 to 3 came to be tried on a charge-sheet filed by the police. No appeal has been filed against the acquittal by the State. This being the revision, this Court cannot convert the order of acquittal into that of conviction. The record and proceedings, the evidence of witnesses and the judgment and order passed by the learned Trial Judge are perused by me with the assistance of learned counsel for the revisioner petitioner and learned counsel for the respondents. Respondent No. 2 (original accused No. 2) is reported to be dead.

5. On scrutiny of the evidence, I find that original accused No. 3 -Advocate had admitted his signature in Form 'A' below the certificate. The handwriting expert also opined that the signature of Advocate below the certificate identified as 'Q' was in the handwriting of the Advocate i.e. original accused No. 3. The handwriting expert also opined that the signature on the document in Form 'A' identified as 'Q-1' was not that of the petitioner. In other words, the signature of the petitioner has been forged. Only because handwriting expert could not positively say that the forgery was committed by either accused Nos. 1, 2 or 3, the acquittal of all the accused persons of all the charges in this case was not Justified.

6. It would be pertinent to note that the suit filed by respondent No. 1 for settlement of accounts and seeking certain reliefs, came to be dismissed on the ground that the firm of the petitioner and accused No. 1 was not registered. It was after the dismissal of the suit that the registration of the firm was sought. The petitioner had intimated the Registrar of Firms, apprehending that the respondent No. 1 might attempt to get registration of the firm. It is only respondent No. 1, who could have taken interest in getting the registration of the firm. There is evidence on record that the document had been forged. There is no difficulty in holding that the false document/forged document had been submitted/tendered before the Registrar of Firms. Under these circumstances, certain punishable criminal wrong had certainly been committed. Acquittal of all the accused persons under these circumstances, cannot be sustained. The acquittal order deserves to be set aside. The mailer requires to be remanded to the Trial Judge with directions to see on the basis of the established facts and circumstances, what offence had been made out and proved against any of the accused persons. Original accused No. 2 is dead, remaining are accused No. 1, the former partner of the petitioner and accused No. 3, the Advocate who certified that the signature on Form 'A' at 'Q-1' was that of the petitioner. It has been stated that accused No. 3 is the same person who has represented accused No. 1 in the Civil Suit No. 1387 of 1988 filed on behalf of accused No. 1.

7. In the result, the revision petition is allowed. The order of acquittal of the accused persons dated 5.8.1993 is hereby set aside. The matter is remanded back to the Trial Court. Learned Magistrate shall after hearing the parties and the State and uninfluenced by the observations made hereinbefore shall decide the matter afresh on merits.

8. The respondent Nos. 1 and 3 shall remain present before the Judicial Magistrate. First Class. Solapur on 8th June, 2001.

9. The petitioner shall be at liberty to move an application under section 302 of the Cr. P. C. before the Trial Judge for permission to conduct the prosecution. The learned Magistrate shall consider the application, if filed by the petitioner, on merits.

10. Issuance of an ordinary copy of this order duly authenticated by the Sheristedar of the Court is allowed.