B.R.Gupta vs Kaushal Kumar

V.S. Aggarwal, J.

This is a petition filed by B.R. Gupta son of Baldev Dass (hereinafter described as ''the petitioner'') for quashing the complaint and the order summoning the petitioner as an accused.

The relevant facts giving rise to the present petition can briefly be delineated.

RespondentKaushal Kumar (complainant), preferred a criminal complaint with the Court of Judicial Magistrate, Chandigarh asserting that he is a coowner of building SCF No. 7, Sector 22D, Chandigarh alongwith the petitioner. Petitioner and late Rikhi Ram were brothers and had purchased the said property in equal share. When Rikhi Ram died, his share was inherited by the complainant and his brother Ved Parkash. Ved Parkash sold his 1/4th share in the property to the petitioner. Thus petitioner became the owner of 3/4th share in the property while the share of the complainant was 1/4th The complainant came to know that some lease deed was executed by the petitioner with the tenant wherein he described that he is the sole proprietor of the building. It is alleged that this tentamounts to creating a fictitious document because the petitioner is not the exclusive sole owner of the property.

With this background, a criminal complaint was filed against the petitioner with respect to the offences punishable under Sections 465 and 467 of the Indian Penal Code.

The learned Judicial Magistrate, Chandigarh after recording the preliminary evidence, concluded prima facie that rent note is a valuable security. There were sufficient grounds to proceed against the petitioner and accordingly he was summoned as an accused. Hence, the present petition.

Learned counsel for the petitioner asserted that reading of the complaint by itself does not disclose any evidence against the petitioner and, therefore, the order summoning the petitioner as an accused should be quashed. The grounds on which a complaint as such, can be quashed are well settled. There indeed can be no controversy with the principles enunciated by the Supreme Court in the case of Janata Dal v. H.S. Chowdhary and others, AIR 1993 SC 892 that inherent powers under Section 482 of the Code of Criminal Procedure can be exercised by the High Court only to give effect to any order passed by the Court, to prevent abuse of the process of any court or otherwise to secure the ends of justice. However, it cannot be utilized when the facts are hazy. In paragraph 135 the Supreme Court held :

"This inherent power conferred by Section 482 of the Code should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a premature decision in a case wherein the entire facts are extremely incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved whether factual or legal are of great magnitude and cannot be seen in their true perspective without sufficient material."

The said principle is based on the decision of the Supreme Court in the case of State of Haryana and others v. Ch. Bhajan Lal and others, AIR 1992 Supreme Court 604. After scanning through various precedents, the Supreme Court had laid down certain guidelines which are reproduced below for the sake of facility :

Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a magistrate as contemplated under Section 155(2) of the Code.

Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

Same view was expressed by the Supreme Court again in the case of Smt. Chand Dhawan v. Jawahar Lal and others, AIR 1992 Supreme Court 1379. The ratio decidendi of the aforesaid, clearly is that High Court can exercise its inherent jurisdiction in quashing of criminal proceedings when the complaint does not constitute an offence. It can also exercise the said powers to prevent the abuse of the process of the Court or to secure the ends of justice.

Learned counsel for the respondent, however, urged that the petitioner has simply been summoned by the court of learned Judicial Magistrate, Chandigarh and he can approach the said Court for recalling the interim order that has been passed. In support of his argument, reliance was placed on the decision of the Supreme Court in the case of K.M. Mathew v. State of Kerala & another, 1992(1) Recent Criminal Reports 232 (SC) : 1992(1) C.L.R. 695. In the said case of K.M. Mathew (supra) a criminal complaint was filed with respect to the offences punishable under Sections 500 & 34, Indian Penal Code. The learned Magistrate after examining the complainant, issued summons to the accused. Before the evidence was recorded, the said accused requested the Magistrate to drop the proceedings against him. The Magistrate after hearing the parties, directed that complaint as it related to the said accused need not be proceeded with. In revision Kerala High Court set aside the order of the learned Judicial Magistrate. The Supreme Court thereupon held that the order passed by the Judicial Magistrate summoning the said accused was an interim order. The accused can approach the said Court for recalling the same. The said order can be varied or recalled by the Magistrate.

It is obvious from the perusal of the facts in the case of K.M. Mathew (supra) that the Supreme Court was concerned with the question as to if the Magistrate after recording preliminary evidence and summoning the accused, can recall or vary the order or not. It was not concerned with the inherent powers of the High Court. The inherent powers of the High Court as referred to above would remain which have been explained in the case of Janta Dal v. H.S. Chowdhary and others and State of Haryana and others v. Ch. Bhajan Lal and others (supra). The principle remains the same and it has to be considered if the complaint discloses any offence against the petitioner or not. Necessarily, therefore, one has to travel to the facts of the case.

It appears that the petitioner was owner of 3/4th share of the said property while respondent has 1/4th share. The petitioner let out the property describing that "the building known as SCF No. 7, Sector 22D, Chandigarh is owned by the first party in full proprietorship rights". There is no controversy that was raised before this Court that 1/4th of the share was being paid as rent to the respondent. The short question, that, therefore, comes up for consideration is as to if when petitioner was only owner of 3/4th share and he let out the property to a third person saying that he is full proprietor, whether it would be an offence of forgery contemplated under the Indian Penal Code. Section 463 Indian Penal Code defines forgery by explaining that whoever makes any false document or a part of a document with intent to cause damage or injury, to the public or to any person or to support any claim or title is said to commit forgery. Section 464 Indian Penal Code further explains as to what is making a false document. The relevant portion is being reproduced below

"464. Making a false document. A person is said to make a false document

First. Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed; or

Second. Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part thereof, after it has been made or executed either by himself or by any other person, whether such person be living or dead at the time of such alteration; or

Thirdly. Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document, knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or the nature of the alteration."

It is crystal clear from the aforesaid that assertion of a false claim in a document does not constitute the document as a false one. If there is no intention of causing a belief that it was executed by another person real or fictitious, then it is not a forgery. It will not be making of a false document. Herein at best, the petitioner described himself as the owner while he was a coowner to the extent of 3/4th share. He had entered into an agreement with a third person. It was merely a statement of fact in the contract between the petitioner and the tenant/third person which may not be wholly correct. The contract made the petitioner a landlord qua the third person and nothing more. No false document was prepared. Consequently, it cannot be taken that in the facts of the case, any offence of forgery was committed. One is constrained to observe that there appears to, however, no dishonest intention because 1/4th share of the rent was being paid to the respondent/complainant.

Reliance by the complainant was being placed on the decision in the case of Krishnarao Baojirao and others v. State of Madhya Pradesh, AIR 1953 Nagpur 165. Herein there was a dispute between one Krishnarao and Bhagwan. A rent note was filed by Krishnarao. It was found that the printed form of the rent note was issued from Rajasthan Press, Akola in 1945 and it could not be used in 1943. It was in this background that it was held that rent note was a valuable security and offence of forgery contemplated had been committed. It shows that the said decision was confined to its peculiar facts. It has no bearing or relevance to the facts of the present case.

The preceding paragraphs clearly show that taking the assertions of the complainantrespondent, it could not be inferred that the offences were committed. It would be an abuse of the process of the Court to permit the complaint to continue.

Consequently, the present petition is accepted and the complaint as well as the order summon the petitioner as an accused are quashed.