Sri Baikunthanath Dehury and Another vs State and Another

L. Mohaptara, J.—This application under Sections 482, Code of Criminal Procedure is directed against the order dated 06.03.1999 passed by the learned S.D.J.M., Dhenkanal in G.R. Case No. 640 of 1995 rejecting the petition of the Petitioners for recalling the order dated 1.10.1996 taking cognizance of commission of offences under Sections 465,471, 474 and 34 of the Penal Code.

From the record, it appears that a complaint was filed in the Court of the learned S.D.J.M., Dhenkanal against the Petitioners alleging commission of offences under Sections 465, 471, 474 and 34 of the Penal Code. The said complaint was sent to the police for investigation u/s 156 (3) of the Code of Criminal Procedure. The allegation made in the complaint is that in a public meeting held on 22.9.1993 the complainant and the accused persons as well as many other villagers decided to have a High School in the name of Nathua High School and formed an Ad hoc Managing Committee wherein the accused Baikunthanath Dehury was to act as President and accused Dasarathi as Secretary. The complainant was taken as a member of the Managing Committee. As proposed, both the accused persons submitted an application to the B.D.O., Dhenkanal for registration of the school on 18.3.1994 and in the said application the names of all the nine members including that of the complainant was filed. After receipt of the said application, the same was sent by the B.D.O. to the AD.M.-cum-Registrar for consideration and issuance of certificate. On 29.3.1994 a certificate was issued in favour of the school. After obtaining the certificate, both the accused started storing materials on a place of their choice to construct the building which was objected to by the other members as well as the villagers and both the accused were removed from the post of President and Secretary. However, on inquiry it was found from the application filed before the B.D.O. that the names of the complainant and one Purusottam Behera had been struck off and two other names who are supporters of accused have been inserted. On these allegations, the complaint having been filed, investigation was made and after submission of charge-sheet, the learned Magistrate by order dated 1.10.1996 took cognizance of the offences as aforesaid.

The Learned Counsel appearing for the Petitioners submitted that earlier after filing of the complaint, the learned Magistrate was of the view that the forged documents are required to be looked into and, therefore, directed the matter to be investigated by the police. Reference is made to the said order quoted in the petition itself. On the basis of the observation made by the learned Magistrate, it is submitted by the Learned Counsel for the Petitioners that during investigation by the police those documents were not taken into consideration and therefore, No. charge-sheet could have been filed without considering those documents. Shri Mishra, the Learned Counsel for the Petitioners also submitted that the offence u/s 465 is not made out as there was No. gain to the accused persons from the alleged forged documents and there is also not loss to the comptainant. The learned Addl. Govt. Advocate, on the other hand submitted that the case diary indicates availability of ample oral evidence with regard to such forgery done by the accused persons and, therefore, on the basis of the same, charge-sheet could have been filed. So far as offence u/s 465 of the Penal Code is concerned, the Learned Counsel for the State further submitted that bare perusal of the allegations made in the F.I.R. clearly makes out a case u/s 465 of the Penal Code.

So far as the first point raised by the Learned Counsel for the Petitioners (s concerned, No. doubt by order dated 31.10.1995 the learned Magistrate observed that when there is specific allegation of forgery of documents, the same cannot be ascertained through oral evidence and on the basis of such observation, he handed over the matter to the police for investigation. During investigation several witnesses were examined who have supported the case of the complainant with regard to forgery. From the charge-sheet it appears that the I.O. had requisitioned the documents from the office of the AD.M., Dhenkanal for seizure but the AD.M. denied to produce the documents and stated that the said documents will be produced before the Court during trial. Since the documents were not produced before the I.O. by the AD.M., there was No. occasion for the I.O. to look into the documents. However, the oral evidence collected during investigation clearly indicates a prima facie case of commission of offence as alleged and, therefore, in my view, non-consideration of the forged documents which were refused to be produced before the I.O. by the AD.M. will not affect the prosecution at this stage and accordingly the submission of charge-sheet for the said offence cannot be questioned. The Learned Counsel for the Petitioner, in this connection relied on a decision of the Apex Court in the case of Manager, Pinjrapole Deudar and Anr Vs. Chakram Moraji Nat and Ors, . There is No. dispute on the proposition of law laid down by the Apex Court in the aforesaid decision. However, the same will be depending on facts of each case and there cannot be any strait jacket formula.

So far as second point is concerned, from the complaint itself it appears that after coming to know about such forgery, the complainant and several others protested before the Collector and an inquiry was directed to be conducted. The inquiry report submitted by Prasanta Kumar Mohanty indicates that the names of Iswar Rout, the complainant, and one Purusottam Behera had been deleted and in their place the names of Banabihari Hota and Prakash Kumar Sahu had been incorporated. It also revealed from the report that signatures in the application before the B.D.O. and the signatures before the A.D.M. do not tally except the signatures of the accused persons and it was opined by the Inquiry Officer that involvement of the accused persons in forging the documents of the accused persons in forging the documents cannot be ruled out. The Learned Counsel for the Petitioners in this connection relied on the decision of the Apex Court in the case of Jibrial Diwan Vs. State of Maharashtra, and submitted that ingredients of the offence having not been made out, the learned Magistrate could not have taken cognizance of the said offence. On bare perusal of the judgment, it appears that the same was decided after conclusion of trial. The consideration of materials at the stage of taking cognizance is different than that of consideration of the materials at the stage of conclusion of trial. At the stage of taking cognizance the Court is only required to see the prima facie case and the Court is not required to see as to whether on the basis of the materials available before it, a conviction can be based whereas at the conclusion of the trial, the Court has to see the materials placed before it pointing at the guilt of the accused beyond all reasonable doubt. In view of this distinction, in my humble view the ratio decided by the Apex Court in the aforesaid case has No. application to the present case. From the allegations made in the complaint and on consideration of the materials available in the case diary, I am of the view that the offence u/s 465 of the Penal Code is made out.

In view of the discussions made above, I do not find any merit in this application and the same stands dismissed.