Jagdish Prashad Sharma vs C.B.I.
1995 Latest Caselaw 689 Del

JUDGMENT

A.K. Srivastava, J.

1. This is a petition on behalf of one Jagdish Prashad Sharma allegedly involved under Sections 420/467/468/471 IPC read with Section 120B relating to FIR No. RC 1 (S)/95 registered by the Central Bureau of Investigation on 20-1-95.

2. Before dealing with this petition on merits it would be appropriate to state some facts which have emerged during the course of arguments and are relevant for disposal of the petition. The petitioner Jagdish Prashad Sharma came to be a tenant in the first floor of House No. N-224, Greater Kailash Part I of one Smt. Manjit Kaur on 1-1-1981. There was some dispute about rent and the same went to the adjudication of Rent Control Authorities and ultimately the rent was fixed at the rate of Rs. 435/- per month though, according to the landlady Smt. Manjit Kaur, the premises were taken at a rent of Rs. 1,800/- per month. The ground floor of the said house was on rent with some third person but later on it came into possession of the landlady. The second floor of the said house was already in the possession of the landlady. There is no dispute that the landlady Smt. Manjit Kaur resides at Chandigarh.

3. Two documents came into existence one on 16-1-1989 and the other on 25-1-1990. The document dated 16-1-1989 is said to be a Power of Attorney allegedly executed by said landlady Smt. Manjit Kaur in favor of one Mahabir Prashad. The other document dated 25-1-1990 is an agreement to sell allegedly executed by the landlady Manjit Kaur in favor of Jagdish Prashad Sharma, the tenant who is the petitioner here. This document relates to the aforesaid House No. N-224, Greater Kailash Part I. The consideration was Rs. 3,10,000/- out of which Rs. 10,000/- was said to have been paid by Jagdish Prashad Sharma to Smt. Manjit Kaur by cheque. The cheque was deposited in the account of Smt. Manjit Kaur and after clearance an amount of Rs. 9,973/- was credited to the account of Smt. Manjit Kaur on 15-6-90. Thereafter, on 3-8-90 Rs. 10,000/- were debited to the account of Smt. Manjit Kaur on the basis of clearance of a cheque.

4. A suit for specific performance of the aforesaid agreement was filed by Jagdish Prashad Sharma in the High Court of Delhi. Original document of agreement to sell was not filed and instead a photo copy thereof was filed. In that suit one Mahabir Prashad, as attorney of Smt. Manjit Kaur, on the basis of aforesaid General Power of Attorney dated 16-1-1989 in his favor, appeared and contested the suit on the grounds of consideration money. He admitted the copy of the agreement to sell as correct except the consideration but later on absented. The suit was decided ex parte on 7-7-93 in favor of Jagdish Prashad Sharma. Thereafter in execution of that ex parte decree the sale deed was executed in favor of Jagdish Prashad Sharma through court on 10-12-93.

5. Around last week of December 1993 relatives of the landlady, under some agreement with her came in possession of the ground floor in the aforesaid house an wanted to have some constructions made. From that point of time troubles started as the petitioner Jagdish Prashad Sharma was not agreeable to such constructions. He filed a suit No. 75/94 for injunction and obtained an ex parte injunction. Consequent thereupon the landlady Smt. Manjit Kaur got inspections of the file of the injunction suit and came to know that an ex parte decree had already been passed against her in a suit for specific performance of an agreement to sell allegedly executed by her. In such a situation she filed an application under Order 9 Rule 13 and Section 151 of the Code of Civil Procedure in that application in addition to the prayer for setting aside the ex parte decree dated 7-7-93 one prayer was also made for directing an investigation into the fraud played and the forgery done by Jagdish Prashad Sharma. The plea of Smt. Manjit Kaur was that a forgery and fraud had been committed in constructing the alleged false document of agreement to sell and the court was also defrauded in obtaining an ex parte decree. The plea was that the petitioner knew that the landlady was staying at Chandigarh and instead he gave her address of Delhi and in spite of the fact that there was an endorsement on the file of the said suit that the defendant resided at Chandigarh no steps were taken for service on defendant at her Chandigarh address.

6. It appears that the learned single Judge of this High Court did not accede to the aforesaid prayer of Smt. Manjit Kaur regarding direction of investigation into the said fraud an forgery and, therefore, an FAO was filed in this High Court. That FAO came up for hearing before a Division Bench consisting of the Chief Justice and a Puisne Judge.

7. On 8-12-94 the aforesaid Division Bench after observing about the contentions of the appellant (Smt. Manjit Kaur) that her property worth Rupees eighty lacs has been fraudulently acquired by Jagdish Prashad Sharma for a consideration of Rs. 3.10 lacs and about the obtaining of ex parte decree by defrauding the Court without effecting service on the defendant at her Chandigarh address and bringing into the picture falsely One Mahabir Prashad as attorney of Smt. Manjit Kaur, formed an opinion as follows :

"If really the facts mentioned by the appellant in the memorandum of appeal coupled with other circumstances are true it appears to us that a prima facie case of fraud not only the appellant, but also fraud on this Court has been played by the plaintiff/respondent in this behalf"

8. After forming the aforesaid view the aforesaid Division Bench decided to order an effective investigation into the issue and accordingly referred an enquiry to the Director of Central Bureau of Investigation. It was further said in the order that the Director should either conduct the enquiry himself or by the senior officer of the CBI and the said authority will go into the entire matter and submit the report in this case within three months from the date of the order.

9. After receipt of the aforesaid order of the Division Bench the CBI registered a criminal case vide FIR No. RC 1 (S)/95 under Section 420/467/468/471 IPC read with Section 120B against the petitioner and some others. One Padam Chand who had signed the aforesaid agreement to sell as a witness was taken in custody by the CBI. He remained in Jail for some time but thereafter, on technical grounds he has been released on bail by the concerned magistrate.

10. Learned counsel for the CBI has submitted before this Court that though report has been submitted to the said Division Bench for its assistaance but since the CBI is seized of the matter and FIR has been registered, it may file charge sheet in due course after completing the investigation. According to him, the original document dated 25-1-90 viz; the agreement to sell is yet to be recovered from Jagdish Prashad Sharma. He also says that according to the investigation the alleged signature of Smt. Manjit Kaur as appearing in the photo copy of the document were got examined from the experts and the report is that the same are forged.

11. Learned counsel for the petitioner has, at great length, argued the case for the petitioner taking several pleas, such as, that Smt. Manjit Kaur executed the agreement to sell and signed the same; that there is neither any forgery nor any fraud against Smt. Manjit Kaur nor on the Court which passed the ex parte decree; that the Central Bureau of Investigation was only asked by the Division Bench to assist it in the matter of enquiry related to the alleged forgery and fraud and the CBI was not asked to register a case and to investigate; that a photo copy of a document cannot form basis of the offence under Sections 420 and 471 IPC; that no offences under Sections 420/467/468/471 IPC are shown to have been committed in this case as per the essential ingredients thereof; that the CBI was not competent to register FIR and was only to submit an administrative report for the assistance of the Division Bench; that when a question whether a document of agreement to sell is forged one or not is already subjudice with a civil court no prosecution can be launched; that the CBI has already completed the enquiry and has submitted the report to the Division Bench and nothing is left to be enquired and that now when the whole enquiry is over for what purpose the petitioner should be arrested. The learned counsel for the petitioner further submitted that the petitioner has fully co-operated with the enquiry and has joined the same. The plea is that though the CBI is not entitled to register the FIR but still if it has done, arrest of the petitioner Jagdish Prashad Sharma is not needed as the enquiry/investigation is already complete. In order to substantiate that the aforesaid agreement to sell is genuine the learned counsel for the petitioner relies on a fact that Smt. Manjit Kaur withdrew a sum of Rs. 10,000/- from the bank after depositing a cheque of Rs. 10,000/- issued by Jagdish Prashad Sharma in her name. It may be mentioned here that the alleged agreement to sell is dated 25-1-90, and, as per information with the CBI, the amount under the alleged cheque was credited in the bank account of Smt. Manjit Kaur in the month of June 1990 and withdrawal of Rs. 10,000/- from that account was in the month of August 1990.

12. The learned counsel for the petitioner has relied on some reported decisions. I am dealing with some of them which appear to be directly relevant for the disposal of this petitioner. He relies on Shri Gurbaksh Singh Sibbia v. State of Punjab. The gist of this ruling is that the conditions mentioned in Section 437 cannot be read into Section 438 and while dealing with Section 438 relating to anticipatory bail liberal interpretation of the Section is to be made in the light of Article 21 of the Constitution of India and that any statutory provision concerned with personal liberty cannot be whitled down by reading restrictions and limitations into it. 'It has been stressed by the learned counsel for the petitioner on the basis of this ruling that the rule should be of grant of anticipatory bail in order to keep in view the personal liberty of person. I have gone through the aforesaid decision and I find that enough discretion is given to the court dealing with the application for grant of anticipatory bail whether to grant the bail or not. This reported judgment says that the court is free to refuse to grant anticipatory bail in any case if there is material before it justifying such refusal. It also says that the nature and seriousness of the proposed charges, the context of the events likely to be made to making of the charges, a reasonable apprehension that witnesses will be tampered and "a large interest of the public or the State" are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. This judgment further says that no hard and fast rules can be laid down in discretionary matters like the grant or refusal for bail, whether anticipatory or otherwise for the simple reason that a circumstance which, in a given case, turns out to be conclusive, may have not more than ordinary signification in another case. Relevant portion at para 33 of this judgment is quoted below :

"We would, therefore, prefer to leave the High Court and the Court of Session to exercise their jurisdiction under Section 438 by a wise and careful use of their discretion which, by their long training and experience, they are ideally suited to do. The ends of justice will be better served by trusting these courts to act objectively and in consonance with principles governing the grant of bail which are recognised over the years, then by divesting them of their discretion which the legislature has conferred upon them, by laying down inflexible rules of general application.

13. The next case relied upon by the learned counsel for the petitioner is 1988 (2) Crimes (VIII) 882, K. V. R. Iyyengar v. State of Andhra Pradesh. The relevant portion thereof is as under :

"In order to establish an offence of forgery under section 463, IPC, which is punishable under section 465, IPC., the presence of the original document before the court concerned, is necessary. If the original document is not before the court and what is produced is merely a copy albeit a photostat copy, still it cannot be determined as to whether the document has been forged or not. There are many intricacies attached to establish forgery of a document, to mention only a few, for instance, the style of the signature of a person, the alleged pressure on the pen at the time when it was signed, the variation in the ink if there are other portions of ink written in the same document, the quality of the paper used and so forth. All these beings necessitate that the original document should be before the court to establish the offence of forgery. A photostat copy which has come into being as a result of improvement in scientific photography of the document cannot reflect all these matters."

14. The next ruling relied upon by the petitioner is 1995 (2) CC Cases 18 (SC) 18. According to his learned counsel this ruling is on the point that in relation to offences under Section 407 and 471 photo state of a document cannot prove these offences. It may, however, be pertinent to say at this juncture that in this cited case the facts were a bit different. There the prosecution wanted to rely on photostat copy of a carbon copy of the original document and the handwriting expert had considered that photo copy of the carbon copy to be insufficient for giving any expert opinion. Further the original document was admittedly available with the customs and was not produced in the trial. The following were observed therein :

"In the absence of the originals of Ex. P9 and P15 being produced at the trial, which as many as four prosecution witnesses admit were available with the Customs, how could a case of forgery be built up on their photostat copies, punishable under Section 471 of the Indian Penal Code and the sequel offence under Section 420 IPC ? How could in such state of evidence and vacillating views, as recorded by the High Court, be the basis of the conviction of the appellant singularly and substantively, when originally he was not charged for such offences, but with the aid of Section 120B IPC ?"

15. The contention of the learned counsel for the petitioner is that in the present case since original of the aforesaid document of agreement to sell has been lost and no more in existence a charge of forgery is not possible to be proved as photo copy is not sufficient for the proof.

16. The next relevant furling relied upon is , Sharif Khan v. Arun Kumar Saxena. This judgment is a single Bench decision of Delhi High Court wherein the following was observed :

"Having regard to the facts & circumstances of the present case, it seems to me that the proceedings initiated by the first respondent by filing the criminal complaint under Sections 420/464/468/471/474 IPC amounts to an abuse of the process of the Court. In case the Civil Court comes to the conclusion that the application filed by the petitioner with the Food & Supplies Department bears forged signatures and also contains forged endorsement thereon of the first respondent. It will be open to the first respondent to initiate criminal proceedings as against the petitioner."

17. The contention of the learned counsel for the petitioner on the basis of this ruling is that when a civil matter is pending in this Court on a question whether the disputed agreement to sell was executed by Smt. Manjit Kaur or not then there should be no question of any criminal proceeding against the petitioner till a finding is given by civil court that on the disputed document signatures are forged and the petitioner has cheated Smt. Manjit Kaur and has defrauded the court. On this point the petitioner also relies on 1987 SCC (Crl) 672 : Sardool Singh v. Smt. Nasib Kaur.

18. The aforesaid judgment is of the Supreme Court which lays down that when the question regarding the validity of Will is sub judice, criminal prosecution on the allegation of the Will being a forged one cannot be instituted till the civil litigation concludes and a finding comes that the Will is forged. It was observed :

"The Civil Court is therefore seized on 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 a 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 the Civil Court. We, therefore, allow the appeal, set aside the order of the High Court, and quash the criminal proceedings pen dings 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."

19. On the other hand, learned counsel for the C.B.I. relies on certain reported decisions. The first is the Supreme Court decision in 1933 PV AD SC (C) 539, S. P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. In this case the following was observed :

"The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-do doers and other unscrupulous persons from all walks of life find the court - process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation."

20. The next decision relied upon is 1992 Cri LJ 4032, Harshad S. Mehta v. Union of India., This decision is being relied upon to oppose a plea of the petitioner that investigation can still go no even if the accused is granted anticipatory bail. He relies on the following observations :

"Interrogation while he is at liberty will not serve any useful purpose for the petitioner can then take recourse to stone wailing tactics and keep the game going indefinitely. As against this if he is in custody the Officers of the Enforcement Directorate will be better able to force him to concentrate on the issues and put pointed questions to him and extract relevant information. The techniques of interrogation also involves confrontation either with a person or documents and that is possible, and at least more effective, when the person being interrogated is in custody. Liberty of the citizen is desirable but also desirable is the need to detect, investigate and prosecute those guilty of any offence, not excluding economic offences."

21. To meet the objections coming from the said of the petitioner about the authority of the C.B.I. to register FIR against the petitioner, the learned counsel for the C.B.I. relies on the provisions of Delhi Special Police Establishment Act, 1946. Section 2 of this Act deals with the constitution and powers of special police establishment. Under that section the Central Bureau of Investigation has been constituted. This establishment is for investigation of offences notified under Section 3 committed. The learned counsel for C.B.I. says that in the Union Territory of India the C.B.I. can register an offence and investigate by itself and in the States it can do so with the permission of the concerned State. Thus the case of the C.B.I. is that it is fully covered under the aforesaid sections to register the FIR, to investigate and to file a charge sheet in the matter under consideration.

22. I have carefully considered the submissions made on behalf of the petitioner and by the counsel for the C.B.I. and I am of the view that this case does not deserve relief under Section 438 Cr.P.C.

23. I do not wish to enter into detailed reasons for coming to the aforesaid conclusion in order not to prejudice the merits of the case either in the civil litigation or in the criminal prosecution.

24. To me prima facie, the petitioner does not appear to be with clean hands. All the facts of this case as stated in the opening paragraphs of this order indicate towards this prima facie view. It has also been brought to the notice of this Court that in the civil suit against Smt. Manjit Kaur one Kameshwar Gupta had appeared impersonating himself as Mahabir Prashad, allegedly a fictitious attorney for Smt. Manjit Kaur.

25. The Division Bench of this Court had taken the matter so seriously that it asked for enquiry not from an administrative agency but from the Central Bureau of Investigation which deals with serious crimes. The prayer of the petitioner before the Division Bench for de-registering the FIR was not accepted and was refused. The C.B.I. was thus left to its own discretion. The petitioner has successfully, as of today, acquired title over the house in dispute through process of court on the basis of an agreement to sell allegedly executed by Smt. Manjit Kaur who is alive and is disputing such execution and the investigation has an expert report that the signatures on the photo copy are not of Smt. Manjit Kaur. I am conscious of the ruling cited in support of the petitioner's case that photo copy need not be sufficient proof for offences under Sections 420/471 but I may say that at this stage I am not dealing with the proof or disproof of the alleged offences under Sections 420/471 against the petitioner. The original document is yet to be recovered by the investigation which was admittedly in possession of the petitioner. Had it not been he could not have filed a suit for specific performance of the agreement to sell. The petitioner's story appears to be very strange that how he has lost the original document. He can, of course, come out with this statement very safely after getting a sale deed executed in his favor by filing only a photo copy thereof and now being faced with a criminal case in respect of the alleged original document.

26. So far as the plea of pendency of civil litigation is concerned it may be noted that the civil court itself i.e. the Division Bench, had asked the C.B.I. to inquire, and the same Division Bench refused the prayer of the petitioner that direction be given to the C.B.I. to de-register the FIR. The plea of the C.B.I. is that they do not inquire any matter unless they register an FIR. Regarding the plea that Smt. Manjit Kaur had deposited the cheque of Rs. 10,000/- in her bank account and had therefore withdrawn Rs. 10,000/- is concerned the plea of the C.B.I. is that the matter is under investigation as to who deposited the cheque and under what circumstances the money was withdrawn and by whom.

27. In view of the above discussion, I am not inclined to give the relief of anticipatory bail to the petitioner and the petition is, therefore, rejected.

28. However, it is made clear that any observations made herein shall be without prejudice to the merits of the case.

29. The petitioner is disposed of.

30. Order accordingly.