Vijay Singh vs Dr. Gopal Prasad Shrivastava

This revision under section 401 of the Code of Criminal Procedure

has been filed to assail the order dated 19.6.2015 passed by 8th Additional Sessions Judge, Bhopal, in Criminal Revision No.829/2012, wherein the

order dated 24.8.2012 passed by Judicial Magistrate First Class, Bhopal, in unregistered compliant case [Gopal Prasad Shrivastava vs. Vijay Singh and

others] under sections 419, 420, 467, 468, 201 , and 120-B read with section 34 of the Indian Penal Code has been set aside and directed the learned

Judicial Magistrate First Class to proceed with the case after affording opportunity to the complainants to produce evidence oral and documentary and

to pass order in accordance with law. Aggrieved by this, the accused No.1/Vijay Singh and accused No.2/Prabhat Kumar Gupta, who have been

arrayed in the complaint, have filed this revision.

2 . The factual matrix of the case in brief, is that the complainants, namely, Dr.Gopal Prasad Shrivastava, Surendra Chandra Sood, Satyendra Prakash

Sarvaiya, Smt.Urmila Sarvaiya and Om Prakash Khurana have filed criminal complaint before the Judicial Magistrate First Class, against the present

petitioners and accused No.3/Dr.H.S.Dwivedi and Secretary of the Federation, Theosophical Society and accused No.4/S.Sundaram, General

Secretary, Theosophical Society, Varanasi (UP). It is alleged that Theosophical Society was established long back and the present complainants are

its members since 1961. The petitioner No.1-Vijay Singh taking advantage of serious illness of the then President, namely, S.B.Shukla interfered in the

work of Theosophical Society and changed the documents and submitted fresh registration form. It is also alleged that the petitioner No.1 was running

a Coaching Class and gradually captured the Theosophical Society. Then the complainants/respondents No.1 to 5 lodged a complaint with Dr.Dwivedi,

the Secretary of the Society (respondent No.6). The petitioner No.1 got annoyed with this and had threatened the complainants/respondents No.1 to 5.

On 02.9.2008, on the pretext of meeting with Satyavir Tyagi a meeting of Theosophical Society was called. In which suddenly election was

declared. The petitioner was shown as the Secretary of the Society. The petitioner No.2 declared the petitioner No.1 as the President of the Society

and petitioner No.2 became the Secretary of the Society. He also declared his brother as the Vice President of the Society and his father as the

Treasurer of the Society. The senior members of the Society were not included in the executives. In this general meeting G.R.Belekar was shown to

have attended the meeting and signed the minutes. Whereas the death of G.R.Belekar occurred much prior to that date.

4 . It is also contended in the complaint that the petitioner No.1 h a s cleverly and systematically cancelled the membership of old members. The old

documents and files were removed. The complainants aggrieved by this filed a complaint before the Judicial Magistrate First Class, Bhopal. The

JMFC, Bhopal having considered the preliminary evidence observed the above, but refused to take cognizance of offences under sections 419, 420,

467, 468, 201, 120-B read with section 34 of the Indian Penal Code. It is also observed that the complainants case is not based on any documentary

proof and because they did not deposit membership fee, their memberships have been cancelled. The complainants then preferred Criminal Revision

No.829/2012. The learned 5th Additional Sessions Judge, Bhopal decided the Criminal Complaint on 19.6.2015, wherein it is observed that learned

Judicial Magistrate First Class ought to have given opportunity to the complainants for adducing evidence, allowed the revision and directed the

learned Judicial Magistrate First Class to pass appropriate order.

Aggrieved by this order the accused persons, namely, Vijay Singh and Prabhat Kumar Gupta have filed this revision under section 401 of the Code

of Criminal Procedure ,on the ground, that the averment made in the complaint are vague. No definite averments have been made. No definite

offence can be spelt out from the narration of facts of the complaint. The statement under section 202 of Cr.P.C. alone does not disclose any offence.

The documents filed before the revisional court could not have been taken into consideration at this relevant stage.

Perused the record. Heard the rival contentions. The averments made in the complaint and the oral statements of the complainants witness indicate

that there has been certain irregularities made by the accused persons. These averments are true or not is yet to be disclosed. But, the material placed

before this Court disclose grave suspicion against the accused persons. The test of determining the prima facie case would naturally depend upon the

facts of each case. By and large, if there is grave suspicion against the accused, the Magistrate will be fully within his rights to frame charge. The

Court ofcourse cannot act merely as a Post Office or mouth piece of the prosecution, but has to consider the broad probabilities of the case. It should

also consider the total effect of the evidence and the documents produced before the court, the basic infirmities appearing in the case and the effect of

the evidence. However, the Judge should not make roving inquiry in the pros and cons of the matter and weight the evidence, as if the JMFC was

conducting the trial, as has been held in the case of Rumi Dhar vs. State of West Bengal, AIR 2009 SC 2195.

In the allegations itself, the complainants have stated that the membership have wrongly been cancelled, taking advantage by the petitioners No.1 &

2 and tried to capture the Theosophical Society. It was not proper on the part of the learned Judicial Magistrate First Class to disallow the complaint

only on the ground that complainants' membership have been cancelled, therefore, they are not members of the society.

In the light of above, the learned Additional Sessions Judge, Bhopal by the impugned order dated 19.6.2015 has rightly observed that, at this stage

the complainants are not required to produce all the evidence. The prima facie evidence was to be produced for taking cognizance of the offence. The

complainant prima facie established that there has been certain circumstances whereby the documents have been forged and the trial Court should not

have hesitated to take appropriate action. It would be appropriate at this stage to mention that, whether the allegation made in the complaint are not

absurd or inherently improbable and the conclusion is sufficient for the proceeding against the accused or the discretion should be exercised by the

Magistrate in issuing the process. On the basis of the prima facie evidence available, which are relevant and admissible, the complainant does not

suffer from any legal defect the proceeding ought to have been initiated.

9Â . Learned senior counsel for the petitioner has also argued that dispute between the parties are essentially of civil nature, therefore, criminal

complaint filed is not sustainable. The Criminal Court has to check the abuse of process. In this regard he placed reliance on the case o f Mohammed

Ibrahim and others vs. State of Bihar and another, (2009) 8 SCC 751.

In this regard, opposing the contentions learned counsel for the respondent has argued that no doubt criminal court should interfere with the

criminal proceeding are not misused for settling scores or pressurising parties to settle civil disputes. But, civil disputes in some cases may also contain

ingredients of criminal offences. Such disputes have to be entertained notwithstanding they are also civil disputes. In the case cited by learned counsel

for the petitioner the Apex Court has observed-""This Court has time and again drawn attention to the growing tendency of the complainants

attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the

accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal Courts should ensure that proceedings before it are

not used for settling scores or to pressurise parties to settle civil disputes. But at the same time, it should be noted that several disputes of civil nature

may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes.

11 . A person is said to have made a false document, if (i) he made or executed a document claiming to be someone else or authorised by someone

else; or (ii) he altered or tampered with a document; or (iii) he obtained a document by practising deception, or from a person not in control of his

senses. It is further held that in the first category of false documents, it is not sufficient that the document has been made/executed dishonestly or

fraudulently. There is further requirement that the document should have been made with the intention of causing it to be believed that such document

was made/executed by , or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. Thus, forgery of

a document purporting a valuable security is offence under section 467 of the Indian Penal Code. The use of forged document as genuine is, offence

under section 471 of I.P.C. The forgery as defined under section 463, and forgery, in turn, depend upon the creation of a ""false document"" as defined

under section 464 of I.P.C. If there is false document, as defined under section 464 of I.P.C., offence under sections 467 and 471 of the Indian Penal

Code are made out.

In these circumstances, the order impugned passed by the learned 5th Additional Sessions Judge, Bhopal does not suffer from any irregularity,

illegality or perversity. Therefore, the present revision stands dismissed.