Naresh Kumar Arora vs State and Another

P.K. Bhasin, J.—This revision petition is directed against the order dated 16th July, 2009 passed by the learned Additional Sessions Judge

whereby the order dated 11th September, 2008 of the learned Metropolitan Magistrate declining to take cognizance of any of the offences for

which the petitioner-accused was charge-sheeted by the police was set aside and the matter was remitted back to the Magistrate with a direction

to proceed with the charge sheet in accordance with law. Factual background of the case is that the petitioner''s Firm by the name of M/s. New

Heaven Color Lab was carrying on its business in a shop in premises no. 29/2, Nangia Park, Shakti Nagar since 1987. Alongwith the shop one

latrine and bathroom were also allegedly taken on rent. Portions of that rented premises had been purchased from time to time by different

persons. Due to some disputes with the original owners/landlords in respect of the extent of the accommodation under the petitioner''s tenancy, he

had filed a suit for permanent and mandatory injunction against the owners/landlords. During the pendency of that suit the respondent no. 2 herein

Nitin Garg (the complainant) purchased that property and so he was also impleaded in the suit as defendant no. 2 and when some other persons

also purchased some portions of the property no. 29/2 they were also impleaded in that suit. During the pendency of that suit, the respondent no.

2-complainant allegedly gave an advance copy of his written statement to the petitioner-plaintiff wherein he had admitted that he had nothing to do

with the latrine and bathroom which also the petitioner-plaintiff was claiming to be included in his tenancy and thereby he virtually conceded to the

claim of the petitioner-plaintiff.

As per the proceedings of that suit, advance copy of the written statement was supplied to the petitioner-plaintiff on 5th August, 2003 by the

respondent no. 2-defendant when the suit was taken up for the second time same day after it had been adjourned in the morning since none had

appeared for respondent no. 2-defendant for filing of written statement. On a subsequent date the respondent no. 2 was directed to place on

record the original written statement of which advance copy had already been supplied to the petitioner-plaintiff on 05.08.2003. He did not do that

and instead filed another written statement strongly refuting the suit claim of the petitioner-plaintiff. The respondent no. 2 denied having supplied

any advance copy of any written statement to the petitioner-plaintiff on 5th August, 2003 and claimed that the petitioner-plaintiff had played some

mischief and had put up some bogus person in Court on 5th August, 2003 after adjournment of the suit as respondent no. 2 and got delivered to

himself advance copy of the written statement purporting to be that of respondent no. 2-defendant admitting the suit claim. That situation led to the

filing of an application u/s 340 Cr. P.C. against the petitioner-plaintiff and also lodging of a criminal complaint in Court u/s 200 Cr. P.C. by the

respondent no. 2 herein against the petitioner-plaintiff for the commission of the offences punishable under Sections 419/ 420/ 463/ 464 IPC.

The learned magistrate vide order dated 30.05.2007 ordered registration of an FIR in the matter which was accordingly registered by the police

and on completion of the investigation charge sheet was filed in Court against the petitioner alleging commission of the aforesaid offences by him.

At the stage of cognizance the learned Magistrate passed an order on 11th September, 2008 to the effect that offences under Sections 463/ 464/

420 IPC were not made out and it was also observed that ""The act of the accused at the most can be covered u/s 419 IPC....."". However no

cognizance was taken for that offence also on the ground that the same was barred by limitation.

The respondent no. 2-complainant then filed a revision petition against the said order of the learned Magistrate and the learned Additional

Sessions Judge disposed of that revision petition vide impugned order dated 16.07.2009. The relevant paras of that order are re-produced

below:-

Perusal of the record shows that the learned MM has taken the view that since the written statement has not been signed by any person, therefore,

the same does not fall within the purview of Sections 463/ 464 IPC. The supply of the advance copy of written statement which is generally

unsigned, whether lies within the purview of making any false document or part of a document, with intent to cause damage or injury, to support

any claim of title or whether the same lies within the purview of Section 464 IPC to execute a document or part of a document is a question which

requires evidence. So far as the ingredients of other sections are concerned, then this is a question which requires evidence as to whether there was

any dishonest inducement on the part of the respondent to the complainant. The learned MM has held that at the most only provisions of Section

419 IPC are attracted.

It may be mentioned that for calculating the period of limitation as to when the same shall start, knowledge on the part of the complainant is

must........................

The question of limitation is a mixed question of law and fact and not of law only. The question requiring the fact cannot be proved without there

being an evidence of both the parties. No presumption can be raised that since the counsel for the complainant was appearing in the Civil Court

regularly, therefore, the complainant had the knowledge of all the proceedings and also of the proceedings dated 05.08.2003............ Furthermore,

in the order sheet dated 05.08.2003, it is mentioned that the advance copy of written statement of defendant Nos. 1 to 4 has been supplied to the

plaintiff (respondent in present complaint) whereas in the order sheet dated 24.11.2003, it is mentioned that the advance copy of written statement

of defendant Nos. 2, 3 and 4 is on record. If the advance copy of written statement of defendants was supplied to the plaintiff (respondent in

present complaint) on 05.08.2003, then how that advance copy came on record as per the order sheet dated 24.11.2003, is a question which

requires evidence of both the parties........................

............... Moreover, the Court is also required to see the contents of that written statement which is the main sours of contention between the

parties but it seems that the learned MM without even going through that written statement has raised the presumption that no offence under

sections 463/ 464/ 420 IPC are made out and only provisions of section 419 IPC are made out. The very basis of the complaint of the

complainant is that written statement but it seems that, that written statement has not been looked into by the learned MM.

.............. Though at the stage of consideration of period of limitation, learned MM was not bound to go through the written statement but at the

same time without going into written statement, no prima-facie view whether ingredient of any section are attracted or not by learned MM can be

formed. When the period of limitation was considered by the learned MM, then it was his duty to go through all the documents and especially the

written statement which is the basis of the complaint to see whether the same prima facie shows the ingredients of section 463/ 464/ 420 IPC or

not.....................

In view of the aforesaid discussions, the order dated 11.09.2008 passed by the learned MM is set aside. Learned MM is directed to proceed with

the charge sheet as per the provisions of the law. Present revision filed by the petitioner is allowed. Parties are directed to appear before the Court

of learned MM on 17.08.2009.........

The petitioner-accused felt that the revisional Court had vide its impugned order taken cognizance of all the offences noted in the order and had

summoned him also by directing the parties to appear before the trial Court which was directed to proceed with the charge-sheet as per the

provisions of the law. Thus, this petition was filed by him.

I have considered the submissions of the learned senior counsel for the petitioner and respondent no. 2 complainant and also perused the

record. After going through the order of the learned Additional Sessions Judge it appears to this Court that as far as the offence u/s 419 IPC is

concerned all that was opined was that the trial Court should not have considered the limitation aspect at the stage of cognizance since that was not

a question of law which could be decided without any evidence as to when the period of limitation would have started to run in the facts of the

present case. Perusal of the order of the learned Magistrate shows that for the offence u/s 419 he had not given a clear finding, like in respect of

other offences of forgery etc., that it was made out. The tenor of the order of the Magistrate would show that it was simply being observed that

even if the offence u/s 419 could be said to be made out no cognizance could be taken because of the bar of limitation and the revisional Court

appears to have asked the Magistrate to consider the case in respect of this offence ignoring the limitation bar. Similarly in respect of other offences

which the learned Magistrate had found to be not made out at all the revisional Court has simply opined in its order that the Magistrate had come

to that conclusion without going through the written statement of respondent no. 2-defendant. Thus, the revisional Court can be said to have simply

asked the learned Magistrate to re-consider the matter on the point of cognizance in accordance with law and for that purpose the case was

remitted back. There is no finding of the revisional Court in respect of the offences of cheating forgery etc. in its order to the effect that these

offences are made out on the basis of the material collected by the police during investigation. Just because in the impugned order it was stated by

the revisional court that parties should appear before the trial Court it cannot be said that the revisional court itself had taken cognizance of any of

the offences alleged to have been committed by the petitioner herein. That direction is really a direction to the complainant/prosecution since at the

stage of cognizance the proposed accused has no role to play. This petition is accordingly disposed of with the clarification that no cognizance can

be said to have taken by any of the courts below and the learned Magistrate at present only stands directed to re-consider the question of

cognizance in accordance with law and the observations of the revisional Court in its impugned order. The Magistrate shall now take up the matter

for consideration afresh on the point of cognizance on 17th January, 2013 at 2 p.m.