Smt. Lataben W/O Manubhai Bagdai ... vs Sanjay Gulabchand Gupta
2016 Latest Caselaw 2297 Bom

    sgpp                                     1                               APPLN1292.2010.odt


                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
                               BENCH AT NAGPUR




                                                                               
                      CRIMINAL APPLICATION NO. 1292 OF 2010




                                                       
    1.        Smt. Lataben w/o Manubhai Bagdai,
              Age : 74 years,

    2.        Shri. Deepak S/o Manubhai Bagdai,




                                                      
              Age : 45 years,

    3.        Shri. Pradeep S/o. Manubhai Bagdai,
              Age : 48 years,




                                           
              Sr. No. 1 to 3, all R/o. Khare House,
                                 
              Buty Gadikhana Sitabuldi, Nagpur.                      Applicants..
                                                                     (Orig. accused)
              VERSUS
                                
    Shri. Sanjay Gulabchand Gupta,
    Age : 40 years,
    R/o. 115, Wardhaman Nagar (East),
      

    Nagpur.                                                        Respondent..
                                                              (Orig. Complainant)
   



                                           ........
                      Mr N. A. Vyawahare, Advocate for the applicants
                       B. P. Bhatt, Advocate for the respondent/sole.
                                          ..........





                                        CORAM :       V. L. ACHLIYA, J.

                       RESERVED ON               :    22nd JANUARY, 2016.
                       PRONOUNCED ON             :    5th MAY, 2016.





    PER COURT:

    .                  The applicants (original accused) have preferred this

application u/s 482 of the Cr.P.C. for quashing the Criminal Complaint

Case No. 61 of 2005 filed by the respondent (original complaint) u/s 200

of Cr.P.C. for taking cognizance of an offence u/s 466 of the IPC.

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2. The respondent/complainant herein filed criminal complaint

under Section 200 of the Code of Criminal Procedure before the

Magistrate alleging therein that the applicants/accused have committed

an offence under Section 466 of the Indian Penal Code. It is alleged

that, in the year 1991 the accused persons had purchased three shop

blocks (Block Nos. 4, 5 and 7) in a multi-storied building constructed by

the complainant. As per the bilateral agreement, the accused have paid

total amount of Rs. 8,171/- towards sales tax. Subsequently, the accused

persons lodged complaint with the Sales Tax Department. The said

amount deposited came to be seized by Sales Tax Department. The

accused have filed three separate complaints bearing Nos. 584, 585 and

586 of 2005 before the District Consumer Dispute Redressal Forum,

Nagpur. By order dated 10.09.1998 passed in the matter, the District

Consumer Dispute Redressal Forum directed the respondent to refund

the amount of sales tax collected from the accused. As against the order

passed by the District Consumer Dispute Redressal Forum, the

respondent preferred appeal before the State Consumer Disputes

Redressal Commission, which was registered as Appeal No. 2232/1998.

The appeal was listed for hearing on 19.07.2003. It is alleged that,

taking advantage of the absence of complainant and his counsel, the

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accused shown a letter dated 15.10.1999 addressed to accused persons

by the Sales Tax Office, Nagpur, wherein it was recorded that the

amount of Rs. 8,171/- paid by accused refunded to respondent by

adjusting the amount against certain other dues. According to the

complainant, such letter was never issued by the Sales Tax Department

in favour of accused and the accused have forged the letter and made the

Commission to act upon that letter. It is alleged that, the contents of the

letter which was shown to the Consumer Disputes Redressal

Commission, Maharashtra were different than the contents of letter

which was written by the Sales Tax Department. In the background of

said allegations, the complainant has alleged that the accused have

committed an offence under Section 466 of the Indian Penal code and

liable for punishment.

3. The complaint was filed on 11.04.2005. After perusing the

contents of the complaint, verification and the documents filed by the

complainant, the learned Magistrate was pleased to issue process under

Section 466 of the IPC against the accused vide order dated 22.02.2006

passed in the matter. The case was tried as warrant case. The

complainant adduced the evidence before charge. The accused preferred

application for discharge on the ground that the evidence adduced makes

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out no case to proceed against them. Vide order dt. 16.11.2007, the

learned Magistrate rejected the application for discharge and framed

charge against the accused under Section 466 of the Indian Penal Code.

The said order of rejection was challenged by filing Criminal Revision

Application No. 3 of 2008 before the Sessions Court, Nagpur. The

revision application was heard and decided in favour of accused persons

by judgment and order dated 28.03.2008. The learned Additional

Sessions Judge was pleased to quash the order passed by trial Court and

ordered the discharge of the accused from criminal complaint case No.

61 of 2005. In the meanwhile, the order passed by the State Consumer

Dispute Redressal Commission was challenged before the National

Consumer Dispute Redressal Commission, New Delhi. Vide order dt.

13.09.2004, National Consumer Dispute Redressal Commission

dismissed the Revision Petition and maintained the order passed by the

State Consumer Dispute Redressal Commission. As against the order

dated 28.03.2008 passed by learned Additional Sessions Judge, Nagpur,

the complainant preferred Criminal Revision Application No. 111/2008

before the High Court, Nagpur. Vide judgment and order dated

15.04.2010, the Revision Application No. 111/2008 was allowed and

order dated 20.03.2008 passed in Criminal Revision No. 3/2008 by the

Sessions Court, Nagpur was set aside. So also, the application for

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discharge dated 26.02.2007 filed by the accused came to be rejected.

The trial Court was directed to proceed with trial against the accused

persons and further directed to complete the trial expeditiously. After

the Revision Application No. 111/2008 allowed by this Court, the

accused have preferred this application under Section 482 of the Code of

Criminal Procedure for quashing the Criminal Complaint Case No.

61/2005.

4.

Learned counsel for the applicants strenuously contended

that, filing of such complaint amounts to gross abuse of process of law.

It is contended that, the trial Court has taken cognizance of complaint

without taking into consideration the bar operating under Section 195(1)

(b)(ii) of the Code of Criminal procedure to take cognizance of such

complaint. According to learned counsel for the applicants, the

cognizance of offence under Section 466 of the IPC cannot be taken on

the basis of complaint instituted by individual as that of the

complainant. The cognizance of such an offence can be taken only on

the basis of complaint in writing of that Court or by such officer of the

Court as that Court may authorize in writing in this behalf or of some

other Court to which that Court is subordinate before whom such

offences referred in sub-section (1) of Section 195 has been committed.

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According to learned counsel for the applicants, in absence of complaint

filed at the instance of State Redressal Commission before which the

alleged act of forgery has been committed, the cognizance of offence

under Section 466 of the IPC should not have been taken by the learned

Magistrate. It is contended that, cognizance of such complaint amounts

to gross abuse of process of law as the applicants are unnecessarily

harassed and therefore the impugned order as well as the proceedings

before the learned Magistrate deserve to be quashed. In support of his

contentions, the learned counsel has placed reliance upon the decision of

the Hon'ble Supreme Court in the case of Dr. S. L. Goswami v. The

High Court of Madhya Pradesh reported in AIR 1979 SC 437.

5. On the other hand, the learned counsel for the respondent

has objected the very maintainability of the Revision Application. It is

contended that, in Criminal Revision Application No. 111/2008, the

Single Bench of this Court (Coram : A. B. Chaudhari, J.) has set aside

the order passed by the Sessions Court and rejected the application for

discharge filed by applicants. In the light of decision in Criminal

Revision Application No. 111/2008, the learned Counsel argued that this

Court may not entertain this application. So far as the order passed by

Magistrate to take cognizance by the Magistrate, the learned counsel has

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submitted that the offence of forgery which is alleged in the complaint

not pertains to act of forgery committed during the course of

proceedings but the complaint refers to act of forgery committed outside

the Court and showing such forged document during the course of

hearing of matter before State Consumer Dispute Redressal Forum. It is

therefore contended, that provisions of Section 195 of Code of Criminal

Procedure would not act as a bar in taking cognizance by the learned

Magistrate. It is contended that, as the act alleged in the complaint i.e.

the act of forgery in respect of the letter was committed before said

letter was produced before the State Consumer Dispute Redressal

Commission, the bar u/s 195 of Cr.P.C. would not operate in the matter.

In support of this submission, the learned counsel has placed reliance on

Division Bench judgment of this Court (Coram : D. G. Deshpande and

V. K. Tahilramani) in the case of Jitendra Chandrakant Mehta Vs. M/s.

Shamrock Impex Pvt. Ltd. and others reported in 2006(4) Mh.L.J. 355.

6. I have thoroughly considered the submissions advanced in

the light of the record and proceedings. The first and foremost question

which posed for my consideration is that, in the light of the Criminal

Revision Application No. 111/2008 decided by this Court

(Coram : A. B. Chaudhari, J.), the present application filed u/s 482 of

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Cr.P.C. deserves to be entertained. The fact is not in dispute that, the

application for discharge filed by the applicants was rejected by the trial

Court. Being aggrieved by said order, the applicants have preferred

Criminal Revision which was allowed by Sessions Court. As against the

order of Sessions Court, the respondent preferred Criminal Revision

before this Court which was allowed vide judgment and order dt.

15/4/2010. The order of discharge of the accused was tested before this

Court and this Court upheld the order passed by the trial Court and set

aside the order passed by the Sessions Court. In para 5 of the said order,

this Court has observed as under:

"5. Perusal of the above portion of the judgment clearly shows that the accused persons had shown a letter dated 15-

10-1999 from Sales Tax Officer and after reading it, the appellate forum stated that the said letter showed that the

amount was refunded to the builder i.e. applicant by the Sales Tax Department and though the said amount was refunded to the builder, that was not refunded to the flat owners by him. Therefore, the payment from applicant was ordered to be made to the flat owners. The revisional Court has in its revisional

order for no reasons touched the sanctity of the said appellate judgment and which could be thrashed out only in the full fledged trial. The approach of revisional court, in my opinion, is wholly improper and illegal. The trial Court is entitled to know the case of complainant and defence on evidence and thereafter to marshal the evidence in the light of the

observations of the State Commission and then come to the appropriate conclusion regarding the said finding recorded by the appellate authority. Second aspect is that revisional Court has held that the offence under Section 466 of the Indian Penal Code can be committed only by public servant. I quote Section 466 of the Indian Penal Code as under:-

"466. Forgery of record of Court or of public register, etc. - (Whoever forges a document or an electronic record), purporting to be a record or

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proceeding of or in a Court of Justice, or a register of birth, baptism, marriage or burial, or a register kept by a public servant as such, or a certificate or

document purporting to be made by a public servant in his official capacity, or an authority to institute or

defend a suit, or to take any proceedings therein, or to confess judgment, or a power of attorney, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

(Explanation - For the purposes of this section, "register" includes any list, data or record of any entries maintained in the electronic form as defined in clause (r) of sub-section (1) of section 2 of the

Information Technology Act, 2000 (21 of 2000)."

Reading of section itself shows that it is not necessary that only public servant can commit forgery. Any other person than public servant can also commit forgery. In view of the above discussion, I find that this revision application will have to be allowed and the

impugned revisional order will have to be quashed and set aside. Hence, I make the following order.

                                             Order
      

           (i)    Criminal Revision Application is allowed.

(ii) Impugned order 28-3-2008 in Criminal Revision No.3/2008

passed by the Ad hoc District Judge-9 & A.S.J., Nagpur is quashed and set aside.

(iii) The application for discharge dated 26-2-2007 is rejected. The

trial Court shall now proceed with the trial against the accused persons and shall complete the trial expeditiously.

JUDGE"

7. The above quoted observations recorded by this Court in

Criminal Revision Application No. 111/2008 clearly reflects that, this Court

has considered the merit of the application for discharge filed by the

applicants. On due consideration of the submissions advanced, this Court has

held that the order passed by the Sessions Court allowing the application for

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discharge is not sustainable in law. It is further observed that, the matter

requires consideration and after recording the evidence, the trial Court would

come to the appropriate conclusion. It appears from record that, evidence

before charge was recorded. Thereafter, the trial Court framed the charge.

While deciding the Revision Petition No. 111/2008, this Court has set aside

the order passed by Sessions Court and upheld the order passed by the trial

Court and further rejected the application for discharge. Upholding the order

of rejection of application for discharge leads to inference that this Court has

found case to proceed against the accused. In view of this, it is not proper on

the part of this Court to entertain the application u/s 482 of Cr.P.C. seeking

quashing of proceeding of Criminal Case No. 61/2005.

8. In view of above, I am not inclined to entertain this application

filed u/s 482 of Cr.P.C. Accordingly, the application is rejected. The issue

raised by the applicants that, section 195(1)(b)(ii) of Cr.P.C. operates as bar to

take cognizance of offence U/s 466 of IPC, is kept open to be raised before

the trial Court. Trial Court is directed to expedite the hearing of the case and

decide the same as far as possible within a period of six months from the date

of passing of this order.

[ V. L. ACHLIYA, J. ]

LATER ON :

After pronouncing the judgment, Mr N. A. Vyawahare, learned

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counsel for the applicants makes oral request to stay the order and to continue

the interim order operating in the matter.

2. The request made for stay of the order and continuation of

interim order is rejected.

[ V. L. ACHLIYA, J. ]