M.S.Yadav vs Om Prakash & Ors.
2010 Latest Caselaw 5051 Del

                * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Date of Reserve: October 26, 2010
                                                 Date of Order: 2nd November, 2010
+ Crl.M.C.No. 2042/2010
%                                                                      02.11.2010

        M.S.Yadav                                               ... Petitioner
                                 Through: Mr. D.C.Yadav, Ms. Ruchi Munjal &
                                 Mr. Vivek Yadav, Advocates

                Versus


        Om Prakash & Ors.                          ... Respondents
                         Through: Mr. Sunil Sharma, APP for the State
                         Mr. Davinder Hora & Mr. Sikander Khan, Advs.
                         for R-1 & R-3


JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?

JUDGMENT

This petition has been preferred against an order dated 30 th

November, 2009 passed by the learned ASJ Rohini whereby he allowed the

revision filed by respondents against the order dated 7th June, 2007 of learned

Metropolitan Magistrate and set aside the order of learned MM summoning

the respondents.

2. Brief facts relevant for the purpose of deciding this petition are

that the petitioner moved an application under Section 340 Cr.P.C. on 26 th

November, 1998 alleging that the photocopy of the compromise filed in

complaint case No. 82/1 by the police was a forged document and he had not

entered into any such compromise with the opposite side and action should

be taken against the IO/SHO and the accused persons for forging the

photocopy of the compromise. No action was taken on this application under

Section 340 Cr.P.C.. He thereafter filed a complaint case making respondent

and others as accused, for registration of FIR against them under Section

465/468/471 read with Section 120-B IPC alleging that the compromise

placed on the record was a forged document. On this complaint of the

petitioner, the learned MM summoned the respondents under Section

465/468/471 IPC and under Section 166/167 read with Section 120-B IPC

vide his order dated 7th June, 2007.

3. The learned ASJ before whom the revision was filed observed

that the only evidence led by the petitioner in this case against the

respondents was his own statement and in his statement regarding offence

alleged in the complaint he stated that the photocopy of the compromise did

not bear his signature and it was concocted and fabricated by respondents

and by Om Prakash (SHO) in collusion with other accused persons. The

original of this was not produced in the Court by the IO despite directions

given by the MM nor did the SHO produce this original document. The

learned ASJ observed that the SI Rohit, who was the IO of the case, had

already died. Mark 'A' which was filed in the Court was only a photocopy; the

original of the same was not traceable. This original was not in custody of the

respondents neither there was any evidence that this document Mark 'A' was

in the handwriting of respondent Om Prakash. Om Prakash was not even a

witness to Mark 'A'. Mark 'A' bore signatures of B.L.Madan and Mukesh, and

SI Rohit (deceased) had attested the same. The learned ASJ observed that a

person is said to have forged a document if he made false document with

intent to damage or cause injury to the public or to any other person. In the

present case there was no evidence that any part of this document Mark 'A;

was even prepared by the respondents. He therefore observed that there

was not sufficient evidence before the learned MM to summon the accused

persons under Section 468 read with Section 120-B IPC which required that a

document must be made with intent to cheat or to fraudulently induce the

victim to deliver some property. Since there was no evidence that this

document was forged by any one of the respondents or it was in the

knowledge of the respondents that it was a forged document, offence under

Section 471 IPC was not made out, he therefore allowed the revision and set

aside the summoning order.

4. Under Section 482 Cr.P.C. the High Court can intervene only if

the order passed by the Court below is patently illegal or beyond jurisdiction.

Section 482 Cr.P.C. is not in the nature of second appeal or second revision

and the jurisdiction under Section 482 Cr.P.C. should be exercised only in

those rare cases where gross injustice has been done to the petitioner or a

patent illegality is reflected from the order of the Court below. It is undisputed

fact that the Investigating Officer who was assigned the complaint of the

petitioner for investigation, reported it to the SHO that the parties had

compromised. All reports in the Court are forwarded through SHO, though

they are prepared and signed by the IOs. SHO is technically responsible to

the Court and he has to forward the reports of the Investigating Officers. But

that does not mean that every document which is sent by the IO to the SHO, if

forwarded by the SHO, results into a criminal conspiracy between the IO and

SHO. It is quite possible that SHO believed the IO and forwarded the report

to the Court hoping that what IO had written was correct. Moreover, the

alleged compromise on the basis of which the learned MM summoned the

respondents is not available on record. If the original is not available on

record and cannot be produced and a report has already been received that

the record has been destroyed, there is no possibility of the original coming on

record or the offence being proved.

5. I consider that under these circumstances it would not be

appropriate for this Court to interfere with the order of learned ASJ. The

petition has no force and is hereby dismissed.

November 02, 2010                        SHIV NARAYAN DHINGRA, J.
vn