Miss. Bandana Mundra vs Srinibas Agrawal ' Niwas Agrawal

L. Mohapatra, J.—Heard Shri Dhal, the Learned Counsel for the Petitioner. None appears for the opposite party though this matter was taken up yesterday and again today. This application u/s 482, Cr.P.C. has been filed challenging the order dated I.O.8.1998 passed by the learned S.D.J.M., Jharsuguda in I.C.C. No. 13 of 1998 taking cognizance of offences under Sections 417, 418, 419, 468, 471, 109 of the Penal Code. The facts leading to the presentation of the complaint are as follows:

Complainant is related to accused No. 1 named in the complaint as well as witness Nos. 2 and 3 named in the complaint. They were living in a joint family. On 29.10.1994 accused No. 1 namely, Madanlal Agrawalla purchased non-judicial stamp papers bearing registration Nos. 4434 to 4438 from a registered Stamp Vendor, Sushil Kumar Sahu, in the name of one Muralilal Agrawalla by way of impersonation. The said stamp papers were used for preparation of a general power of attorney in favour of the said Madanlal Agrawalla accused No. 1. It is also alleged that on the basis of the power of attorney, two sale deeds were executed for a consideration of Rs. 43,500/- and some lands were transferred and the amount collected towards consideration was misappropriated. It is also alleged in the complaint that the power of attorney was drafted and typed in the office of one Rabi Shankar Awasty, an Advocate of Jharsuguda. It is also alleged that the present Petitioner signed as an identifying witness in the said power of attorney and was also a signatory as a witness to the document. On the basis of such allegations, the complaint having been filed and the learned Magistrate, having found prima facie materials, took cognizance as stated above.

Shri. Dhal, the Learned Counsel appearing for the Petitioner submits that the present Petitioner is an Advocate and in course of professional work, he was requested by advocate Rabi Shankar Awasty to identify the person and also sign the document as a witness. Since the Petitioner knew Rabi Shanakar Awasty as an Advocate, he had no occasion to verify the identity of the person to whom he identified and in good faith did the identification as well as signed the document as a witness. According to Shri Dhal, there being no intention of cheating or committing forgery of document and the Petitioner having bona fide identified under the instruction of a brother advocate, the learned Magistrate should not have taken cognizance of the offences so far as the present Petitioner is concerned. In this connection, reference may be made to the decision of the Apex Court in the case of Hiralal Jain Vs. Delhi Administration, . In the said decision the Appellant before the Apex Court was an Advocate. He along with some others had been committed to the Court of Sessions for commission of offences u/s 120-B read with Sections 419, 420, 511, 467 and 471 of the Penal Code. The Appellant approached the High Court for quashing the order of commitment and having failed, approached the Apex Court. The facts leading to the institution of the said case are that a piece of land situated in Delhi was acquired under the Land Acquisition Act. The Land Acquisition Collector made a reference under Sections 30 and 31 of the said Act. The Land Acquisition Collector also sent a cheque for the amount of compensation settled by him to the Court of Additional District and Sessions Judge and the said Court directed payment of Rs. 4726.70. to each of the claimants. It is alleged that in July, 1964 the accused persons entered into a criminal conspiracy to obtain payment of the aforesaid amount by fraud, forgery and impersonation and filed applications through the Appellant. The applications were accompanied by vakalatnama filed by the Appellant. It was alleged that the accused other than the Appellant were the rightful claimants of the amount and the amount should be paid to them. Verification was also done by the Appellant.

On these allegations the Apex Court while quashing the order of commitment observed as follows:

Admittedly, the Appellant has neither impersonated nor committed any forgery. The real charge against him is that of conspiracy u/s 120, B I.P.C. But there is no prima facie evidence in respect of this charge. The documentary evidence only shows that the Appellant made applications on behalf of the other accused, that he filed his vakalatnamas and that he identified them as the real claimants. It is well known that the main income of many lawyers in the District Courts is derived from the work of identifying persons and sureties in the Courts. The other accused must have told the Appellant that they were the real claimants. He believed them and agreed to act for them. It seems to us that he did nothing beyond what a lawyer is authorised to do in a Court of Law. There is no evidence to suggest that he had previous knowledge of the fact that the accused were not the rightful claimants. Again, there is no evidence whatsoever that there was any concert between him and the other accused antecedent to the filing of the applications and vakalatnamas in Court by him. In the absence of such evidence, it cannot be said that there is prima facie evidence for the offence of conspiracy against him.

So far as the present case is concerned, more or less a similar situation arose. Though the power of attorney was drafted, typed and prepared in the office of Rabi Shankar Awasty, a brother advocate, this Petitioner only identified the executant and signed the document as a witness. Considering the observations of the Apex Court in the aforesaid case, I am of the view that no criminal liability can be attributed as the Petitioner was doing his professional work in good faith.

I, therefore, allow the application and quash the proceeding so far as the present Petitioner is concerned.