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1998 DIGILAW 593 (PAT)

Jamil Akhtar Javed v. State of Bihar

1998-08-21

NARAYAN ROY

body1998
JUDGMENT Narayan Roy, J.- Heard learned counsel for the petitioner and learned counsel for opposite party no.2. 2. By this application under section 482 of the Code of Criminal Procedure (the Code) the petitioners have prayed for quashing the entire criminal prosecution launched against them in Trial No. 638 of 1996 under sections 420 and 467 of the Indian Penal Code. 3. Brief facts of the case are required to be noticed for disposal of this application. Opposite party no.2 filed a complaint in the court of the Chief Judicial Magistrate, Motihari on 13.2.1996 alleging therein that on 5.10.1993 he entered into an agreement with petitioner no.1 to act as broker for sale of 5 kathas and 3 dhurs of land bearing R.S. Plot No. 99 at mohalla Khodanagar, Motihari at the rate of Rs. 35,000/- per katha within a period of six months. It has further been alleged in the complaint petition that in the said deed of agreement excess amount of Rs. 35,000/- was to be retained by petitioner no.1 as his remuneration. It is further alleged that the agreement aforesaid expired on 5.4.1994 after six months as the petitioner no.1 could not get the land sold within the stipulated period of six months. It is further alleged in the complaint that the complainant came to know after filing of Title Suit No. 200 of 1995 by petitioner no.1 that petitioner no.1 had made certain interpolations in the deed of agreement which formed part of the complaint in the aforesaid Title Suit. The complainant thereafter obtained certified copy of the deed of agreement and there he found certain interpolations to the extent that in place of the word 'thirtyfive' the word 'ten' has been inserted and in place of figure 6' the word 30' has been inserted. The complainant further alleged that petitioner no.1 in collusion with the staff of the Registry Office has made these interpolations in the deed of agreement. After filing of the complaint petition the same was made over under section 192 of the Code for enquiry and the learned transferee Magistrate examined the complainant on solemn affirmation and he also examined other witnesses produced by the complainant on solemn affirmation and thereafter took cognizance of the offence against the petitioners under sections 420 and 467 of the Indian Penal Code. 4. 4. Learned counsel appearing on behalf of the petitioners submitted that even in the face of the complaint petition it would appear that the deed of agreement which was already copied out by the Registrar and he was the custodian of the same was alleged to have been interpolated by petitioner no.1. Learned counsel further submitted that it would also manifestly appear from the complaint petition itself that there were certain interpolations in the deed of agreement which had formed part of the plaint filed by petitioner no.1 in Title Suit No. 200 of 1995. Learned counsel, therefore, submitted that since the Registrar, Motihari was custodian of the deed of agreement and since certain interpolations were made in the deed of agreement which was part and parcel of the plaint of Title Suit No.200 of 1995, the complaint filed by the complainant was not maintainable. In such circumstances, the complaint, if any, could have been filed either by the Registrar or by Subordinate Judge, Motihari who was seised with the Title Suit aforesaid. 5. Learned counsel for opposite party no.2, however, submitted that the Registrar under the Registration Act is not a court and, therefore, he cannot be treated as a court for filing a complaint under section 195 of the Code and since no interpolation was made in the deed of agreement in the pending record of Subordinate Judge in Title Suit No. 200 of 1995, no complaint could have been filed by the Sub-ordinate Judge. 6. I have perused the complaint petition and also the order impugned. The complainant has categorically stated in the complaint petition that certain interpolations were made in the deed of agreement which was in custody of the Registrar, Motihari and the interpolated deed was also filed in Title Suit No. 200 of 1995 by petitioner no.1. 7. Sub-section 1 (b) (ii) of section 195 of the Code contemplates that no court shall take cognizance of any offence described in section 463, or punishable under sections 471, 475 or 476 of the said Code when such offence is alleged to have been committed in respect of a document produced or given in his evidence in a proceeding in any court except on the complaint in writing of that court, or of some other court to which that court is subordinate. 8. 8. Ex facie I am satisfied from the complaint petition that as per allegation made by the complainant forgery has been committed in the deed of agreement of which the Registrar, Motihari was the custodian. I am further satisfied that the copy of the deed of agreement which was filed along with the plaint by petitioner no.1in Title Suit No. 200 of 1995 was also in custody of the Subordinate Judge, Motihari. Now even assuming that there is no allegation in the complaint petition that any forgery was committed by the accused persons in the record of Title Suit No. 200 of 1995, it is manifestly clear from the averments made in the complaint petition that forgery was allegedly committed by the petitioners in the deed of agreement which was already copied out by the Registrar and was in custody of the Registrar. 9. In that view of the matter, the learned court below could not have taken cognizance of the offence upon the complaint filed by the Registrar, Motihari. So far question as to whether the Registrar is a court within the meaning of section 195 of the Code is concerned, it appears to me that the Registrar has trappings of the court under Chapter XIV of the Registration Act, 1908 and in that view of the matter the Registrar of the Registry office must be held to be a court under Chapter XIV of the Registration Act. Since no complaint has been filed by the Registrar for the alleged forgery committed in the deed of agreement which was in his custody, the learned Chief Judicial Magistrate could not have taken cognizance of the offence on complaint filed by Opposite Party no. 2. 10. Considering the facts and circumstances of the case, therefore, it must be held that the order taking cognizance by the learned Chief Judicial Magistrate against the petitioners is wholly without jurisdiction and liable to be quashed. I accordingly allow this application and quash the entire criminal prosecution launched against the petitioners.