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1986 DIGILAW 152 (PAT)

Harendra Singh v. Radhey Shyam Singh

1986-04-30

NAZIR AHMAD, S.S.SANDHAWALIA

body1986
JUDGMENT : S.S. SANDHAWALIA, J. 1. We are inclined to take the view that this criminal miscellaneous case, seeking the quashing of criminal proceedings against the two petitioners at the threshold stage of cognizance, is hardly well-conceived. It, therefore, suffices to advert to the facts with relative brevity. 2. On the petitioners' showing, the respondent, Radhey Shyam Singh, on the 22.12.1973, preferred a complaint before the Sub-divisional Magistrate, West Sitamarhi, against the petitioners and two others, making detailed allegations therein and alleging commission of offences under Sections 120B, 406, 409, 420, 467 and 471 of the Indian Penal Code. The learned Sub-divisional Magistrate, by his ORDER :dated the 22.12.1973, referred the matter to the Police for investigation and report. It would appear that the Police authorities proceeded tardily and it was not till the 6.9.1976, that a final report was submitted, saying somewhat curiously that the case was one of the mistakes of fact. Meanwhile, the respondent complainant aggrieved by the delay and sketchy investigation being conducted by the Police, had preferred a protest petition before the trial court on the 6.4.1974. However, it was not till as late as the 29.9.1977, that the respondent-complainant was examined on solemn affirmation in the proceeding. Thereafter, admittedly, 3 more witnesses were examined and a number of documents were also placed on the record for consideration. However, by his ORDER :dated the 28.2.1978, the learned Chief Judicial Magistrate proceeded to dismiss the complaint. 3. Aggrieved thereby, the complainant-respondent preferred Criminal Revision No. 41 of 1978, before the Session Judge of Sitamarhi. This was allowed by a detailed ORDER :by the learned Sessions Judge on the 6.7.1978. Therein, he held that a number of documents bearing on the allegations made by the complainant, including a voucher bearing the alleged forged signature of the complainant and the alleged false attestation thereof as also the three dishonoured cheques were not taken into consideration by the learned Chief Judicial, Magistrate. Indeed, he observed as under:– "In my opinion, the statement of the complainant on S.A. in support of the protest petition and the statements of P.W.'s 1 to 3 corroborated by the documents on the record speak a volume." Holding that the learned Chief Judicial Magistrate had not diligently applied his judicial mind to the case, the learned Sessions Judge directed further inquiry in the matter, after considering the oral evidence and the documents on the record. 4. In pursuance of the aforesaid ORDER :, the complainant adduced on the record the evidence of a hand-writing Expert as well, as P.W. 4 (Ranwir Sondhi), who proved on the record his report, holding that the signatures on the documents, purported to be signed by the complainant, did not tally with the specimen and the admitted signatures. By his detailed impugned ORDER :dated the 28.9.1978, the learned Chief Judicial Magistrate took cognizance against the accused persons, after holding as under:– "He has also submitted his report which is Ext. 1, and, in his opinion, the signature in D (Disputed signature) has not been signed by the writer in A, (Admitted signature) and he has come to this finding after a scientific examination of the two signatures. The detail reasonings and grounds have been incorporated in Ext. A, coupled with that, the other evidence on record, i.e., evidence of P.W.1, Radhakrishna Singh, P.W. 2, Kailash Rai and P.W. 3, Rajnandan Prasad Singh, also goes to make out a prima facie case against the accused persons and as such, they are fit to be put on trial." 5. Now, it is manifest from the above that herein cognizance of the offence has been taken after a full and detailed consideration of the oral evidence of as many as 4 witnesses and a number of documents placed on the record. There is no manner of doubt that the learned Chief Judicial Magistrate, in his ORDER :taking cognizance, has gone to the matter in depth and has applied his judicial mind thereto. Even earlier, the learned Sessions Judge had, for detailed reasons, apparently found a prima facie case made out, which impelled him to set aside the ORDER :of dismissal of the complaint and direct further inquiry. In such a context, the claim on behalf of the petitioners to quash the proceedings at the threshold and to short the trial seems to be entirely unjustified. 6. Learned Counsel for the petitioners somewhat curiously, attempted to argue that even accepting the allegations in the complaint as true no offence whatsoever was made out. This submission has only to be noticed and rejected. 6. Learned Counsel for the petitioners somewhat curiously, attempted to argue that even accepting the allegations in the complaint as true no offence whatsoever was made out. This submission has only to be noticed and rejected. In fact, somewhat surprisingly, it had to be admitted by him that the original complaint, which was the corner stone of the prosecution, has not even been annexed to the present petition, nor was any attempt made at any stage to place it on the record. This by itself is fatal to the contention raised on behalf of the petitioners. In the absence of the original complaint itself, any submission that the same did not disclose any offence, cannot possibly be countenanced. In fact, the only inference in this Context is that the same has been designedly with held. The primal submission of the learned Counsel for the petitioners, therefore, must be unequivocally rejected. 7. Apparently, to evade the basic issue of the absence of the complaint petition learned Counsel attempted to say that the protest petition must be deemed to be the complaint and it supplants the original complaint. We are wholly unable to agree. A reference to the protest petition would show that therein the primal grievance of the respondent-complainant was with regard to the delay and the dilatory and perfunctory attitude of the Police in conducting the investigation. This apart, it cannot even be said that the allegations made in Annexure 1 (the protest petition) also do not disclose any offence at all. The submission of the learned Counsel in this context, therefore, with regard to Annexure 1 must also be rejected. 8. Somewhat curiously, it was sought to be contended that the original complaint, unless it was followed by proceedings under Section 203 of the Code of Criminal Procedure, was no complaint in the eye of law. We are unable to appreciate this contention, which, in our view, must be rejected. Neither principle, nor precedent could even remotely be cited for the tall proposition that a regular complaint duly filed in court, would lose that character. We are unable to appreciate this contention, which, in our view, must be rejected. Neither principle, nor precedent could even remotely be cited for the tall proposition that a regular complaint duly filed in court, would lose that character. Indeed, Section 2 (d) of the Code of Criminal Procedure is in the following terms:– "Complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code that some person, whether known or unknown, has committed an offence, but, it does not include a police report." It is manifest from the above that even an oral allegation is within the ambit of a complaint and to hold that a formal written complaint would not be so, appears to us as an argument of desperation. Yet again, a reference to the protest petition (Annexure 1), as already noticed, would show that therein the primal grievance of the respondent-complainant was with regard to the delay and the dilatory and perfunctory attitude of the Police in conducting the investigation. The submission of the learned Counsel in this context, therefore, must also be rejected. 9. It appears to us that in the present context the submissions of the learned Counsel, sought to be rested exclusively on the complaint or the protest petition are some what hyper technical and doctrinaire. Admittedly, the present is a case in which the oral testimony of the complainant and as many as 4 witnesses and documents and expert testimony have been brought on the record. These had been duly appraised and appreciated by the trial court. In the face of all these testimony, the claim to summarily ignore the same for the purpose of quashing the proceeding appears to us as wholly unwarranted. It is more than well settled that it is not for the High Court in the quashing proceeding to appraise evidence and come to its own conclusions. That is the province of the trial court. Learned Counsel's attempt to advert to the evidence on the record in this con• text, is thus patently vain and cannot possibly be acceded to. 10. Lastly, it was sought to be pointed out that the proceeding against two of the co-accused, Kamal Kishore Singh and Thakur Upendar Singh, have been quashed by this Court in Criminal Miscellaneous Cases Nos. 1899 and 3130 of 1980, vide JUDGMENT : dated the 6.5.1981. 10. Lastly, it was sought to be pointed out that the proceeding against two of the co-accused, Kamal Kishore Singh and Thakur Upendar Singh, have been quashed by this Court in Criminal Miscellaneous Cases Nos. 1899 and 3130 of 1980, vide JUDGMENT : dated the 6.5.1981. A perusal of that JUDGMENT : would show that the case of the said two accused persons was entirely different and distinguishable, as they were the Manager and the valuation Officer of the Land Mortgage Bank, Sitamarhi. The learned Single Judge, in very clear terms therein held that it was only as regards those petitioners that their prosecution was unjustified, and the only relief granted was that their summoning was set aside. There is nothing whatsoever in the said JUDGMENT :, either holding that no offence at all as disclosed against the two petitioners or that the original complaint, even if accepted as a wholly true, would not disclose any offence. That being so, it is manifest that the quashing of the proceedings against the two co-accused, whose case is entirely distinct and different, would in no way aid or advance the case of the present petitioners. 11. In the light of the aforesaid discussions, this criminal miscellaneous case is plainly without merit and it is hereby dismissed. Because of the pendency of these proceedings, there has already been considerable delay in the trial of the case. The court below is hence directed to expeditiously dispose of the same.