Delhi High Court
Naresh Goyal vs State Of Nct Of Delhi & Anr. on 10 July, 2018
$~21
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:- 10th July, 2018
+ CRL. M.C.3224/2015
NARESH GOYAL ..... Petitioner
Through: Mr. Ramesh Gupta, Sr. Adv.
with Mr. Lalit Choudhary, Adv.
versus
STATE OF NCT OF DELHI & ANR. ..... Respondents
Through: Mr. Ravi Nayak, APP for the
State with SI Janak Singh, PS
New Friends Colony.
Mr. Vikas Pahwa, Sr. Adv. with
Ms. Sima Gulati, Ms.
Yashasvika Sharma, Mr.
Anurag Nasiar & Mr. Sachin
Choudhary, Advs. For R-2.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The first information report (FIR) no. 190/2011 was registered
by police station New Friends Colony at the instance of the petitioner.
The case involved offences punishable under Sections 465 and 471 of
Indian Penal Code, 1860 (IPC) allegedly having been committed by
the second respondent. On the report under Section 173 of the code of
Criminal Procedure, 1973 (Cr.P.C) submitted by the investigating
agency, the Metropolitan Magistrate took cognizance and summoned
the second respondent as accused. It appears that on the complaint of
the second respondent, the police had registered another case vide FIR
No. 221/2011 under Section 420 IPC in the same police station.
Charge-sheet in that case was also filed and the Court of Magistrate
which took cognizance summoning the petitioner herein as accused,
the said case being a cross case.
2. While in the criminal case arising out of FIR No. 221/2011,
charge has been framed against the petitioner to put him on trial for
the offence under Section 420 IPC, the Additional Chief Metropolitan
Magistrate, South-East District, by his order dated 24.01.2014, found
the allegations made in the criminal case initiated by the petitioner
through FIR No. 190/2011 to be groundless and, thus, discharged the
second respondent.
3. The petitioner, feeling aggrieved, had assailed the aforesaid
order before the Court of Sessions invoking its revisional jurisdiction
(CR 23/2014) which was dismissed by order dated 29.04.2015. It is
the said orders which are assailed by the petition at hand with the
prayer that this Court, in exercise of its inherent power under Section
482 Cr.P.C., must intervene to secure the ends of justice, the view
taken by the courts below being perverse, against the evidence on
record and in the nature of abuse of the process of the Court.
4. Needless to add, the second respondent resists the petition on
the ground that the view taken by the Metropolitan Magistrate, as
confirmed by the Court of Sessions in revision, is correct and,
therefore, the petition is without substance. The first respondent/State,
however, joins the petitioner in raising the grievance that there was no
occasion for the proceedings to be brought to an end by directing
discharge of the second respondent, there being sufficient material to
show that the second respondent had used the document which was
per se forged.
5. The background facts of the case to which the present
proceedings relate, as also of the cross case arising out of FIR No.
221/2011, are more or less common and, succintly put, are to the
effect that Mrs. Sheela Devi, mother of the second respondent had
sold property described as bearing no. A-271, New Friends Colony,
Delhi for consideration in favour of Gayatri Goyal, wife of the
petitioner herein, the registered sale deed executed on 15.12.2009
indicating the total sale consideration to be Rs. 61 lakhs. Indisputably,
on the same date, i.e. 15.12.2009, another document was executed
named and styled as "memorandum of understanding"(MOU) between
the said Gayatri Goyal and a firm described as M/s Kapil Builders,
represented by the second respondent, referring, inter alia, to the
purchase of the said property by Gayatri Goyal and in terms of which
certain works in the nature of renovation had been entrusted to said
M/s Kapil Builders against total payment required to be made in the
sum of Rs. 1,14,38,000/-.
6. Some disputes had arisen between the parties to the above-said
MOU in the wake of which the second respondent had filed a civil suit
for injunction - prohibitory and mandatory - against the petitioner and
his wife. In the course of proceedings arising out of the said civil suit,
photocopy of the MOU - purportedly executed on 15.12.2009, running
into two sheets, the first prepared and executed on stamp paper of Rs.
50, it bearing no. T-701126 - was filed in the civil court (copy filed
with the petition as annexure „F‟). The petitioner and his wife,
defendants of the civil suit, questioned the genuineness of the said
document and lodged criminal complaint in the court of Metropolitan
Magistrate and pursuant to directions of the Magistrate under Section
156 (3) Cr.P.C. the FIR No. 190/2011 was registered by police station
New Friends Colony. During the investigation evidence was gathered
to the effect that stamp paper bearing no. T-701126 of the
denomination of Rs. 50/- had been issued by stamp vendor Ramesh
Batra on 26.04.2010. The verification of the register of the stamp
vendor was found to contain certain illegible entries. The
investigating agency was unable to trace the original MOU.
7. Noticeably, the second respondent took the position that the
original of the MOU had been retained by the petitioner and its
photocopy only had been given to him (the second respondent). He
also claimed that in the context of the dispute that had arisen between
the parties, the second respondent had contacted the petitioner herein
and in the said meeting it was the petitioner herein who had changed
the first sheet of the MOU, the second respondent being unaware at
the time of filing of the civil suit of such replacement of the first sheet.
8. The second respondent had also applied for a loan from Oriental
Bank of Commerce through its branch at Narwana, Haryana. It
appears that copy of the MOU had been submitted with the application
for loan and, on the basis of photocopy of the said document (the one
submitted with the bank for loan), the cross case FIR No. 221/2011
was lodged with the allegations that the petitioner had committed the
offence of cheating by substituting the first sheet of the photocopy.
Both the documents i.e. the one submitted by the second respondent
with the civil suit and the other submitted with the FIR No. 221/2011
were sent to Central Forensic Laboratory (CFSL). It is claimed that
the report of the CFSL confirmed the signatures appearing on both the
photocopies were of the wife of the petitioner.
9. Though the allegations had been made in the FIR No. 190/2011
of the offence of cheating also committed by the second respondent,
the investigating agency pressed the charge-sheet for his trial for
offences punishable under Sections 465/471 IPC for which he was
summoned. Undoubtedly, there is no evidence showing the second
respondent to be the author of any forgery. The photocopy of the
MOU (Annexure „F‟) which was submitted in the civil suit, at the
same time, concededly, is not a genuine document, the stamp paper on
which the first sheet purports to have been prepared having been sold
by the stamp vendor only on 26.04.2010. Prima facie, such document
could not have come into being on 15.12.2009 as purports to be the
date of its execution. The other photocopy of the same MOU, which
was submitted in the context of the cross case, purports to have been
prepared on stamp paper being no. F 635829. Without doubt,
evidence has been gathered confirming that the said stamp paper had
been issued in the name of the wife of the petitioner herein.
10. The Metropolitan Magistrate found no prima facie case for
putting the second respondent on trial, inter alia, for the reason that he
could not conceivably have an intention to file a forged MOU since he
was in possession of the other photocopy that had been submitted with
the loan application in the bank.
11. In the opinion of the Metropolitan Magistrate, the CFSL report
showing the copy of the MOU filed with the civil suit also bearing the
signatures of the wife of the petitioner, no case for the second
respondent to be put on trial was made out only on the basis of oral
evidence. This view has been affirmed by the revisional court.
12. The learned senior counsel for the second respondent placed
reliance on Mohammed Ibrahim vs. State (2009) 8 SCC 751;
Parminder Kaur vs. State of UP (2010) 1 SCC 322; Radha
Pisharassiar Amma vs. State (2007) 13 SCC 410; Dr. Vimla vs. Delhi
Admin (1963) Suppl. 2 SCR 585 and Shiela Sebastian vs. R. Jawaharaj
& Anr. & etc. 2018 SCC Online SC 522 to argue that mere
preparation of false document with dishonest or fraudulent intention is
not sufficient and that to bring charge of the offence of forgery and
use of a forged document, it must also be shown that the intent was
that the document caused to be believed to have been made or
executed by or under the authority of a person by whom or by whose
authority the accused knew it not to have been made or executed.
13. In Sajjan Kumar vs. CBI, (2010) 9 SCC 368, the Supreme Court
has summarized the law on the subject of charge as under:-
"21. On consideration of the authorities about the scope of
Sections 227 and 228 of the Code, the following principles
emerge:
(i) The Judge while considering the question of framing the
charges under Section 227 CrPC has the undoubted power to
sift and weigh the evidence for the limited purpose of finding
out whether or not a prima facie case against the accused has
been made out. The test to determine prima facie case would
depend upon the facts of each case.
(ii) Where the materials placed before the court disclose
grave suspicion against the accused which has not been
properly explained, the court will be fully justified in framing
a charge and proceeding with the trial.
(iii) The court cannot act merely as a post office or a
mouthpiece of the prosecution but has to consider the broad
probabilities of the case, the total effect of the evidence and
the documents produced before the court, any basic
infirmities, etc. However, at this stage, there cannot be a
roving enquiry into the pros and cons of the matter and weigh
the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court
could form an opinion that the accused might have committed
offence, it can frame the charge, though for conviction the
conclusion is required to be proved beyond reasonable doubt
that the accused has committed the offence.
(v) At the time of framing of the charges, the probative
value of the material on record cannot be gone into but before
framing a charge the court must apply its judicial mind on the
material placed on record and must be satisfied that the
commission of offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, the court is
required to evaluate the material and documents on record
with a view to find out if the facts emerging therefrom taken at
their face value disclose the existence of all the ingredients
constituting the alleged offence. For this limited purpose, sift
the evidence as it cannot be expected even at that initial stage
to accept all that the prosecution states as gospel truth even if
it is opposed to common sense or the broad probabilities of
the case.
(vii) If two views are possible and one of them gives rise to
suspicion only, as distinguished from grave suspicion, the
trial Judge will be empowered to discharge the accused and
at this stage, he is not to see whether the trial will end in
conviction or acquittal".
14. In the considered view of this Court, the approach of both the
courts below at the stage of charge has been misdirected resulting in
miscarriage of justice, necessitating this Court to step in and make the
necessary amends.
15. The copy of the FSL report dated 15.07.2013 on which the
impression was gained by the courts below that the first sheet of the
MOU as per the copy submitted with the civil suit (annexure „F‟) was
also signed by the wife of the petitioner, prima facie, was not a correct
conclusion. The hand writing expert clearly stated in his report that in
the absence of the original document it had not been possible for him
to give any opinion as to whether the questioned signatures were the
result of super-imposition or otherwise with any of the signatures.
Both the photocopies of the MOU, one filed with the civil suit and the
other statedly procured from the bank and submitted with the FIR of
the cross case have come from the possession of the second
respondent. It is, thus, he who alone has to account for the
genuineness or otherwise of the document (annexure „F‟) filed with
the civil suit, the first sheet whereof is of suspect origin. Prima facie,
it cannot be a genuine document inasmuch as, at the cost of repetition,
it could not have been prepared on a stamp paper which had been
issued after the date it purports to have been executed.
16. It may be that no evidence has come forth showing that the
second respondent is the author of the forgery. But there can be no
escape from prosecution on the charge of use of forged document as
genuine as is punishable under Section 471 IPC. Prima facie, forged
copy of the MOU having been submitted with the civil suit, the second
respondent intended that the said document be accepted, believed and
acted upon as copy of a document that had been executed by the wife
of the petitioner herein. It has to be remembered that there is also no
evidence confirming that the wife of the petitioner herein had signed
the first sheet of the original of the questioned copy of the MOU, the
original whereof has not been shown the light of the day. It is, prima
facie, not believable that the original of the said MOU would have
been left in the custody of the wife of the petitioner and only its copy
having been given to the second respondent inasmuch as the
obligation to pay for the works to be carried out in the property in
question had been undertaken by the wife of the petitioner and not by
the second respondent. The original document of such nature would
ordinarily be kept by the creditor and not the debtor.
17. In above facts and circumstances, prima facie charge for
offence under Section 465 read with Section 471 IPC was made out
against the second respondent for which he ought to have been put to
trial.
18. In above context, it must also be added that the trial court, as
indeed the revisional court, should have borne in mind that the cross
case had also been brought the version of the two parties involved in
the case being based essentially on oral word of one against the other.
There was no occasion for the oral explanation of the second
respondent to be treated as the complete truth and the version of the
petitioner and his wife on the other hand being rejected without it
being tested at trial. The basic precaution that cross cases had to be
tried simultaneously and decided on the basis of evidence at the same
time seems to have been ignored. [Sudhir vs. State of M.P.2001 (2)
SCC 688].
19. For the foregoing reasons, the petition is allowed. The
impugned orders are set aside.
20. The respondent no.2 is directed to appear before the concerned
Metropolitan Magistrate on 26th July, 2018 when charge under Section
465 read with Section 471 IPC shall be framed against him for further
proceedings in accordance with law.
R.K.GAUBA, J.
JULY 10, 2018
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