Madhya Pradesh High Court

Manoj Shrivastava vs The State Of Madhya Pradesh on 16 February, 2022

Author: Gurpal Singh Ahluwalia

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          THE HIGH COURT OF MADHYA PRADESH
                     MCRC.18636/2021
               Manoj Shrivatava v. State of M.P


Gwalior, Dated: 16.02.2022

       Shri Suraj Bhan, Counsel for the applicant.

       Shri Lokendra Shrivastava, Counsel for the State.

       This petition under Section 482 of Cr.P.C. has been filed

seeking a direction that alleged signatures of the applicant appended

on certain documents be got examined from FSL. The applicant is

facing investigation in Crime No. 08/2020 registered at Police

Station Sirol Distt. Gwalior for offence under Section 420, 406 of

IPC.

       According to the applicant, the prosecution case in short are

that the complainant Kavita Agarwal made a complaint to the effect

that on 09.11.2013 she had booked a 1700 Sqaure ft. Duplex No. B-5

and an amount of Rs.5,00,000/-was given in advance. On 26.12.2013,

an amount of Rs. 40,00,000/- was given after taking loan from HDFC

bank and the remaining amount of Rs. 8,00,000/- was to be paid at

the time of execution of sale deed. The talks had taken place with the

Project Manager Shri Keshav Upadhyay and an assurance was given

that the possession of the Duplex would be given within two years.

At the relevant time, the complainant was posted in Bhitarwar

College and, therefore, she remained in contact through telephone.

Even after expiry of two years, she was told that some construction
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          THE HIGH COURT OF MADHYA PRADESH
                     MCRC.18636/2021
               Manoj Shrivatava v. State of M.P

work was pending and consequently four years passed. In the month

of July, 2017 she was transferred to Gwalior and when she insisted

that possession of the Duplex should be given and the sale deed may

be executed, but it was avoided by the Builder. The husband of the

complainant is suffering from Kidney disease and he has to undergo

dialysis for eight times in a month, and therefore, she is very disturb

and for the last one year Keshav Upadhyay has stopped picking up

her phone. Thereafter, she came to know that the said Duplex was

sold to one Jitendra Bhadoriya who has inducted one tenant in the

said Duplex. Accordingly, it was alleged that an amount of Rs.

45,00,000/- has been misappropriated by Assotech Infrastructure

Construction Ltd. and in spite of taking more than 85% of the agreed

amount, the Duplex has been sold to Jitendra Bhadoriya, whereas she

is regularly depositing the bank installments also. Accordingly, it was

prayed that the FIR be lodged against the Manager of Assotech

Infrastructure Construction Ltd., Keshav Upadhyay as well as

applicant who is partner in Assotech Infrastructure Construction Ltd.

On the basis of said report, the police has registered Crime No.

08/2020 for offence under Section 420, 406 of IPC.

      Thereafter, the applicant filed an application for grant of

anticipatory bail, which was registered as MCRC. No.19795/2020

and a co-ordinate Bench of this Court by order dated 29/06/2021
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          THE HIGH COURT OF MADHYA PRADESH
                     MCRC.18636/2021
               Manoj Shrivatava v. State of M.P

passed in MCRC No.19795/2020 directed the police authorities to

resort to the extreme steps only when the same is necessary and if the

applicant fails to cooperate in the investigation. It is submitted by the

counsel for the applicant that in fact the applicant has not committed

any cheating with the complainant. Neither he is Director nor Partner

of Assotech Infrastructure Construction Limited. The complainant

had talks with co-accused Keshav Upadhyay and the amount was

also paid to Keshav Upadhyay. The applicant has never met with the

complainant nor had no talks with regard to duplex no. B-5 and he

has been implicated only on the ground that earlier he was Director

of the Assotech Infrastructure Construction Limited. The amount was

directly deposited in the account of the company and the signatories

of the company are Rajeev Shrivastava and Sanjeev Shrivastava. It is

submitted that on 28/08/2020, the applicant was summoned by the

police and notice under Section 91 of Cr.P.C. was given and,

accordingly, the allotment letter and tripartite agreement etc. were

shown to him and it was inquired as to whether those documents

contain his signatures or not, then it was replied by the applicant that

they are not his signatures and somebody else has forged his

signatures and accordingly, the same may be got examined from the

FSL.

       Accordingly, it is prayed that the signatures of the applicant on
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          THE HIGH COURT OF MADHYA PRADESH
                     MCRC.18636/2021
               Manoj Shrivatava v. State of M.P

certain documents may be got examined by the competent authority

as they have been forged by somebody else. On 14/02/2022, the

following question was put to the counsel for the applicant:-

      "The pivotal question involved in the present case is that

whether a suspected accused has any right to seek a direction for

investigation in the particular manner or not."

      It is submitted by Shri Surajbhan that in spite of clear

direction, he has not prepared the case and sought for time.

      Asking for adjournment for no reason, merely on the ground

that in spite of clear direction by this Court, the counsel has not

prepared the case should be voided because unnecessary adjournment

are resulting in piling up of the cases is increasing the pendency in

the Court. When this Court insisted that the matter should be argued,

then it was submitted by Shri Surajbhan that everything has been

written in the application and this Court can decide the application

after going through the same.

      Per contra, the application is vehemently opposed by the

counsel for the State. It is submitted that investigation is pending and

the Court cannot supervise the matter.

      Heard the learned counsel for the parties.

      The present application has been filed on behalf of a suspected

accused. The applicant himself has admitted that earlier he was the
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          THE HIGH COURT OF MADHYA PRADESH
                     MCRC.18636/2021
               Manoj Shrivatava v. State of M.P

Director of    M/s Assotech Infrastructure Construction Limited.

Agreement for selling the Duplex No.B-5 had taken place on

09/11/2013

. The application is beautifully silent as to whether the

applicant was one of the Director of the M/s. Assotech Infrastructure

Construction Limited on 09/11/2013 or not. He has merely stated in

paragraph-4 of his application that the applicant is Ex-Director of

Assotech Infrastructure Construction Limited. It is the defence of the

applicant that the documents does not contain his signatures. It is

well established principle of law that this Court cannot supervise

investigation and cannot dictate the Investigating Officer to

investigate the matter in a particular manner.

The Supreme Court in the case of Romila Thapar Vs. Union

of India reported in (2018) 10 SCC 753 has held as under :

24. Turning to the first point, we are of the considered opinion that the issue is no more res integra. In Narmada Bai v. State of Gujarat, in para 64, this Court restated that it is trite law that the accused persons do not have a say in the matter of appointment of investigating agency. Further, the accused persons cannot choose as to which investigating agency must investigate the offence committed by them. Para 64 of this decision reads thus: (SCC p. 100) "64. ... It is trite law that the accused persons do not have a say in the matter of appointment of an investigating agency. The accused persons cannot choose as to which investigating agency must investigate the alleged offence committed by them."

(emphasis supplied)

25. Again in Sanjiv Rajendra Bhatt v. Union of India, the Court restated that the accused had no right with reference

THE HIGH COURT OF MADHYA PRADESH MCRC.18636/2021 Manoj Shrivatava v. State of M.P

to the manner of investigation or mode of prosecution. Para 68 of this judgment reads thus: (SCC p. 40) "68. The accused has no right with reference to the manner of investigation or mode of prosecution.

Similar is the law laid down by this Court in Union of India v. W.N. Chadha, Mayawati v. Union of India, Dinubhai Boghabhai Solanki v. State of Gujarat, CBI v. Rajesh Gandhi, CCI v. SAIL and Janata Dal v. H.S. Chowdhary."

(emphasis supplied)

26. Recently, a three-Judge Bench of this Court in E. Sivakumar v. Union of India, while dealing with the appeal preferred by the "accused" challenging the order of the High Court directing investigation by CBI, in para 10 observed: (SCC pp. 370-71) "10. As regards the second ground urged by the petitioner, we find that even this aspect has been duly considered in the impugned judgment. In para 129 of the impugned judgment, reliance has been placed on Dinubhai Boghabhai Solanki v. State of Gujarat, wherein it has been held that in a writ petition seeking impartial investigation, the accused was not entitled to opportunity of hearing as a matter of course. Reliance has also been placed on Narender G. Goel v. State of Maharashtra, in particular, para 11 of the reported decision wherein the Court observed that it is well settled that the accused has no right to be heard at the stage of investigation. By entrusting the investigation to CBI which, as aforesaid, was imperative in the peculiar facts of the present case, the fact that the petitioner was not impleaded as a party in the writ petition or for that matter, was not heard, in our opinion, will be of no avail. That per se cannot be the basis to label the impugned judgment as a nullity."

27. This Court in Divine Retreat Centre v. State of Kerala, has enunciated that the High Court in exercise of its inherent jurisdiction cannot change the investigating officer in the midstream and appoint an investigating officer of its own choice to investigate into a crime on whatsoever basis. The Court made it amply clear that neither the accused nor the complainant or informant are entitled to choose their own investigating agency, to investigate the crime, in

THE HIGH COURT OF MADHYA PRADESH MCRC.18636/2021 Manoj Shrivatava v. State of M.P

which they are interested. The Court then went on to clarify that the High Court in exercise of its power under Article 226 of the Constitution can always issue appropriate directions at the instance of the aggrieved person if the High Court is convinced that the power of investigation has been exercised by the investigating officer mala fide.

This Court in the case of Prabal Dongra vs. Superintendent

of Police, Gwalior & State of MP by order dated 30/11/2017 passed

in MCRC 10446/2017 has observed as under:-

(14) The next question for determination is that whether an accused can seek a direction to the investigating officer, to investigate the matter from his angle of defence or not?

The word "Fair" means free from any biases, mala fides, arbitrariness. Thus, unless and until, an allegation of bias, or mala fides is alleged against the investigating officer, pointing out the instances, prima facie proving beyond reasonable doubt, that the investigating officer, is indulged in tainted, biased investigation, it cannot be said that the investigating which is being done by the investigating officer, is not free and fair. The words "free and fair" are relative words. A free and fair investigation for some one, may be a tainted investigation for another. Therefore, it is obligatory on the part of person, alleging tainted investigation, to make out a strong and a case beyond doubt, that the investigating officer for one reason or the other, is biased against the accused or is conducting tainted investigation with mala fides. Merely because the person arraigned as an accused feels that he has been falsely implicated, he cannot seek direction for the police to conduct the investigation from his defence point of view also.

"23. Thus, where a complaint is made disclosing the commission of cognizable offence, then it is mandatory on the part of the police to register the F.I.R. In the present case, the allegations made in the F.I.R., do disclose the commission of cognizable offence. Thus, the police did not commit any mistake by registering the F.I.R. in the matter. Whether the allegations made in the

THE HIGH COURT OF MADHYA PRADESH MCRC.18636/2021 Manoj Shrivatava v. State of M.P

F.I.R. or case diary statements of the witnesses are worth reliable or not, it is for the investigating officer to form its opinion after concluding the investigation. This Court cannot supervise the investigation by issuing directions as to in what manner the investigation is to be done. It is the prerogative of the investigating officer unless and until, it is shown that the investigating officer is doing a biased investigation because of some extraneous considerations or mala fides. This Court in exercise of powers under Section 482 of Cr.P.C. cannot direct the police to investigate the case from a particular point of view also. There is no allegation against the investigating officer with regard to dereliction from duties. Even the investigating officer has not been made a party to this petition. Even the Doctor who had examined the complainant and has given the M.L.C. report, has not been made a party to this application, therefore, the allegations of mala fides against him can not be considered. No allegations of mala fides have been made against the concerning Doctor, except by mentioning that a false M.L.C. Report has been prepared in connivance with the Doctor. Further more, whether the M.L.C. report was right or manipulated, can be proved during Trial while cross examining the concerning witness."

No bias has been alleged by the applicant against the

Investigating Officer. In case, if this Court directs the Investigating

Officer to send the signatures of the applicant to the Hand Writing

Expert, then it would certainly amount to supervising the

investigation which is not permissible. In case, if the prosecution

files the charge-sheet by alleging that the tripartite agreement as well

as other documents contain his signatures, then he would get full

opportunity to defend himself including that of challenging

authenticity of the signatures. He can also move an application before

THE HIGH COURT OF MADHYA PRADESH MCRC.18636/2021 Manoj Shrivatava v. State of M.P

the Trial Court at the appropriate stage for sending the signatures to

Hand Writing Expert.