Bombay High Court
Sumitrabai Trimbak Khanderay vs While on 5 December, 2011
Bench: A.P. Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPLICATION NO. 1845 /2007
1) Sumitrabai Trimbak Khanderay
Aged about 52 years, household work
2) Trimbak Tukaramji Khandaray
Aged about 62 years, Pensioner.
Both R/o Sawara Manchanpur
Tq. Akot, Dist. Akola.
ig ..APPLICANTS
v e r s u s
Dnyaneshwar Shalikram Bhore,
Aged about 40 years, occu: Business
R/o Umra Tq.Akot Dist. Akola. ..RESPONDENT
............................................................................................................................
Mr. A K Choube, Advocate for applicants
Mr P S Patil, Adv. For Respondent no.1
Mr M K Pathan, APP for Respondent no.2.
.......................................................................................................................
CORAM: A.P.BHANGALE , J.
DATED: 5 December,
th
ORAL JUDGMENT :
1. By this application, the applicants prayed for to quash and
set aside the judgment and order passed by the learned Ad-hoc
Additional Sessions Judge, Akot in Criminal Revision Application
No.45/ 2006 and to restore the order passed by the learned JMFC
Akot in Criminal Compliant Case No.21/2006 on 16.9.2006.
2. The facts in brief, are as under : The complainant- Shri
Dnyaneshwar Shalikram More had lodged a complaint against one Shri
Trimbak Tukaramji Khandaray and his wife Sumitrabai Khandaray.
According to complainant in January 2004 Sanjay ( late son of the
accused persons) was in need of loan in the sum of Rs. 15,000/- which
was given by the complainant. Late Sanjay repaid the hand-loan by
cheque dated 28.2.2004 which complainant had encashed. Sanjay
is no more living since he died as the result of accident on 11.3.2004.
Further, according to the complainant, a false suit was filed by the
accused persons against the complainant taking unfair advantage of
the entry of the cheque in the passbook of late Sanjay. Accused wanted
to recover Rs. 15,000/- by filing a suit bearing No. RCS No.127/ 2004
instituted in the Court of learned Civil Judge, JD, Akot. The
complainant further stated that cock and bull story was made out by
the accused. The accused had also produced and used in evidence
document Exh.29 knowing that it is a forged and fabricated document
but used it against the complainant in judicial proceedings. The learned
Civil Judge, JD, Akot had dismissed that suit filed by the accused.
According to the complainant the document( Exh.29 ) in that suit was a
forged and fabricated document which accused had used in a judicial
proceeding knowingly although it is a false and fabricated. Thus, it is
alleged that the accused committed offence punishable under section
196 IPC. Using the said forged document, they also committed offence
punishable under section 463, 464, 465, 466, 470 and 471 of the IPC.
On this ground, the complaint was instituted for to take action and
punish the accused for the aforesaid offences, It appears that
verification of the complainant was also recorded in support of the
complaint. The learned JMFC who perused the complaint and
documents and also scrutinized the report of police under section 202
Cr. P. C. prima facie observed that it was a civil dispute between both the
parties in the Court and prima facie there was no evidence on record to
show that the accused committed the alleged offence. Thus, the learned
JMFC Akot expressed his opinion that he did not find any ground for
further proceeding and decided to dismiss the complaint by order dated
16.9.2006 in Criminal Compliant Case No. 21/ 2006.
3. Aggrieved by this order, the Revision Application No.45/
2006 was filed by the complainant challenging the validity, legality
and correctness of the same. The learned Ad-hoc Additional Sessions
Judge, Akot found that document labeled as 'Akhiv Patrika' in the
Regular Civil Suit No.127/2004 with a certificate issued by the Nazul
Office, Akot, made it clear that the accused had produced disputed
document Akhiv Patrika in the suit. According to the complainant, there
was no such plot standing in his name and no such record in the Nazul
Office to show that complainant owned plot No. 370 from Akot town.
According to the complainant, the disputed document Akhiv Patrika
had no basis on the Nazul record of Akot town and, therefore, the
accused had prima facie produced a false document using it against
the complainant in the suit. The complainant made a grievance that
no opportunity was given to the complainant to lead evidence at all in
respect of the accusation.
4. The Revisional Court considered the relevant provisions of
law including Section 195 of Cr.P.C. and Section 340 of the Cr.P .C.
and leading case on the subject,namely, Iqbal Singh Marwah vs.
Meenakshi Marwah reported in 2005 All MR (Cri) 1326 (S.C.) in
which the legal position regarding cognizance of the complaint of like
offences is considered and explained with reference to earlier rulings.
In Paragraph 17, the Apex Court observed that any interpretation
which leads to a situation where the victim of a crime is rendered
remedyless has to be discarded while interpreting Section 340 Cr.P.C.
Judicial notice was taken of the fact that the courts are reluctant to
direct filing of criminal complaint and such a course is rarely adopted.
Thus, it was observed it will not be fair and proper to give an
interpretation which leads to a situation where a person alleged to
have committed an offence of the type enumerated in clause (b) (ii) is
either not placed for trial on account of non-filing of a complaint or if
a compliant is filed, the same does not come to its logical end. Learned
Advocate for the revision applicant placed reliance upon the ruling in
All Cargo Movers (India) Povt.Ltd. vs. Dhanesh Jain : (2007 ) 14
SCC 776 in order to submit that whether a civil suit is pending and
complaint is filed one year after filing of that civil suit, the Court can
for the purpose of finding out as to whether the allegations are prima
facie correct, take into consideration the correspondences exchanged
by the parties and other admitted documents. It is further submitted
that criminal proceedings should not be encouraged when it is found
to be mala fide or otherwise an abuse of the process of the Court.
While, on the other hand, the learned Advocate for the respondent
placed reliance upon the ruling in Natural Sugar and Allied
Industries Limited vs. Razzak Hazi Gaffar and others reported in
2006 ALL MR (Cri) 2822, in order to submit that judicial Magistrate
First Class has power to take cognizance of the offence irrespective as
to whether the offence was committed within his jurisdiction or not and
at the stage of taking cognizance the allegations made in the complaint
and the verification are relevant. Reference is also made to Anand
Vaidya vs. State of Maharahstra : 2008 All MR (Cri.) Page 204
which relates to exercise of jurisdiction under section 482 of Cr.P .C. for
to quash the proceedings. The ruling in Nandkishor Mundhada vs.
Dwarkadas Mundhada : 2008 All MR ( Cri) 224 was cited to submit
that complaint if prima facie discloses allegation that the document was
forged complaint, cannot be quashed. Reliance is also placed on ruling
in A.S.Krishnan and another vs. State of Kerala : 2004 Cri.L.J 2833
and ruling in M/s Sri Krishna Agencies vs. State of A.P. And
another : 2009 All MR Crime 266 (SC) in which there can be no bar
to the simultaneous continuance of criminal proceedings and civil
proceedings if the two arise from separate cause of action.
5. Prima facie, looking to the leading case of Iqbalsingh
Marwah (supra) as referred by the revisional Court and interpretation
given to Section 340 read with section 195 Cr.P. C. by the Apex Court
in the light of Section 203 Cr.P. C., I think the learned JMFC had
passed an order in unholy haste without considering the statement on
oath of the complainant in the form of verification. At the stage
when cognizance was taken as understood in Chapter XV :
{Complaints to Magistrate} it is mandatory for the Magistrate who is
taking cognizance of the complaint to examine the complainant
and the witnesses present if any and to note the substance of their
examination in writing which is required to be signed by the
complainant and/ or witnesses and the Magistrate concerned. The
Magistrate concerned, would therefore, require to take precaution to
comply with section 200 Cr.P.C.; while taking cognizance of the
complaint if he decide to postpone the issue of process he may direct
enquiry as contemplated under section 202 (2) Cr.P .C. Thus, before
dismissal of the complaint under section 203 Cr.P.C if Magistrate is
required to consider the statement on oath if any by the complainant
and all the witnesses examined and also after perusal of the result of
the enquiry or investigation ordered under section 202 ( if any), the
Magistrate has to form his opinion as to whether there is sufficient
ground to proceed further and then pass an reasoned order if he
decides to dismiss the complaint. The order which was passed by the
learned JMFC Akot on 16.9.2006 as mentioned below, the aforesaid
order would not indicate that the above-mentioned procedure was
followed. Procedure as contemplated in Chapter XV: Complaints to
Magistrate shall be followed as mentioned according to law. The
impugned order reads thus :-
"Perused complaint and documents. I carefully
scrutinized the report of police under section 202 of
Cr.P.C. and heard the submissions of the learned
counsel for complainant. Prima facie, it appears that
there was a civil dispute in between both the parties
in court and prima facie there is no evidence on record
to show that accused has committed an alleged
offence. I do not find any ground for further
proceeding. Hence complaint is dismissed. "
Learned Magistrate appears to have ignored essential procedure
mentioned in Chapter XV of the Cr.P.C. Under these circumstances, the
learned Ad-hoc Additional Sessions Judge who took into consideration
the ruling in Iqbalsingh's case referred to above, rightly allowed the
Revision Application by the reasoned judgment. The learned Magistrate
is expected to deal with the complaint filed before it in accordance with
law and precautions will have to be taken as mentioned in Chapter XV
of Cr .P.C. read further with section 195 and 340 Cr.P.C. the procedure
as contemplated in accordance with law in the light of interpretation as
observed by the Apex Court in Iqbalsingh's case.
6. For all the above reasons, no ground whatsoever is made
out to interfere with the impugned judgment and order in exercise of
inherent powers by this Court. The Application is dismissed.
ig JUDGE
Sahare
