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2005 DIGILAW 724 (RAJ)

Munshi Ram v. State of Rajasthan

2005-03-02

KHEM CHAND SHARMA

body2005
Honble SHARMA, J.–Heard counsel for the parties and perused the orders passed by the courts below. (2). Complainant Iqbal Singh, partner of M/s. Hotel Kohinoor lodged a written report on 20.8.2003 at Police Station, Jalupura, Jaipur against the present petitioners alleging therein that for the purposes of running the hotel and for its management he had entered into license agreement with petitioners Munshi Ram Tutlani, Vijay Tutlani, Pawan Tutlani and Shyam Sunder Tutlani who are partners of M/s. Vijay Kumar & Company. According to the terms and conditions of license, M/s. Vijay Kumar & Company had to pay license fees of Rs. 3,61,000/- per month to the complainant, after deducting income-tax TDS. The said company continued to pay license fee in terms of license agreement till March 2003, and thereafter it paid license fees after deducting TDS to the tune of 20.5%, but the partners of the Company did not deposit with the income tax department the amount payable to it. It was further alleged that for last two months, the partners of M/s Vijay Kumar & Company have completely stopped the payment of license fee to him. On 18.8.2003 the complainant received a letter of M/s Vijay Kumar and Company, stating therein that complainant had entered into an agreement to sale Hotel Kohinoor on 5.10.2002 with the partners of M/s Vijay Kumar & Company and as a consequence thereof he received a sum of Rs. 1,60,00000/- (one crore sixty lacs) and executed a receipt. Having gone through the letter, the complainant came to know that the partners of M/s Vijay Kumar & Company have hatched conspiracy, thereby prepared a forged agreement and a receipt in his name and signatures and that under the garb of forged documents they are trying to swallow up the hotel. Lastly, the complainant alleged that on 19.8.2003 Munshi Ram, Pawan and Vijay Tutlani broke open the lock of his office situated in Hotel Kohinoor and committed theft of some important papers of the hotel, bank papers lying on the table and Rs. 50,000/- kept in the locker of the table. (3). On the basis of above written report,t he police registered a case for offence under Sections 420, 467, 471, 120-B, 453 and 380 IPC vide FIR No. 177/2003 against the present petitioner and proceeded with the investigation. 50,000/- kept in the locker of the table. (3). On the basis of above written report,t he police registered a case for offence under Sections 420, 467, 471, 120-B, 453 and 380 IPC vide FIR No. 177/2003 against the present petitioner and proceeded with the investigation. Having completed investigation, the police submitted a charge sheet against the petitioners, prima facie making out a case for offence under Sections 406, 467, 568, 471 and 120B, 453 and 380 IPC. (4). The petitioners, after taking cognizance of the offence, have filed this Misc. Petition No. 672/2004 under Section 482 Cr.P.C. with the prayer to quash the FIR, investigation and the cognizance taken by the Trial Court. Thereafter the petitioners have filed another Misc. Petition No. 1291/2004 for quashing the charges under Section 420, 467, 468, 471/120B, 453 and 380 framed by the Trial Court on 18.9.2004. Since both the petitioners arise out of the same incident and similar issues are involved in both the petitioners, they are being decided by a common order. (5). The plea of the petitioners is that an agreement to sale was entered into between the complainant and petitioners No. 1 to 4 to sale Hotel Kohinoor for a consideration of Rs. 3 crores and 11 lacs. According to the petitioners, some payment was to be made in cash and by draft and rest of the payment was to be made after getting the loan sanctioned from financial institutions. They applied to the Rajasthan Financial Corporation for grant of loan of Rs. 2 crores. After the RFC sanctioned loan to the tune of Rs. 1 crore 60 lacs, the petitioners wrote a letter dated 16.8.2003 to complainant for getting necessary papers executed and by the time the letter was issued, the petitioners had already paid the above sanctioned amount to the complainant and the complainant had also executed a receipt in tocken of receipt of the said sum. (6). The petitioners averred that the complainant with a view to swallow the huge amount of Rs. 1 crore 60 lacs and in order to pressurize them lodged an FIR. (7). It appears that after an FIR was registered against the petitioners, the petitioners No. 1 to 4 have filed a civil suit on 9.9.2003 in the court of District Judge, Jaipur City, Jaipur for specific performance for agreement to sale. 1 crore 60 lacs and in order to pressurize them lodged an FIR. (7). It appears that after an FIR was registered against the petitioners, the petitioners No. 1 to 4 have filed a civil suit on 9.9.2003 in the court of District Judge, Jaipur City, Jaipur for specific performance for agreement to sale. The suit came to be tried by the learned Additional District Judge No. 2, Jaipur City, Jaipur. In the written statement, complainant Iqbal Singh has denied execution of agreement to sale. The petitioners No. 1 to 4, apprehending dispossession, also filed an application under Order 39 Rule 1 and 2 C.P.C. for grant of temporary injunction, which was granted by the Court below on certain conditions, against which Civil Misc. Appeal is pending in this court. Later on, the Additional District Judge No. 2, Jaipur in whose court civil suit is pending, vide its order dated 17.12.2003 vacated the injunction order dated 8.10.2003. (8). It is also worthy to mention here that in the course of investigation of the case, disputed documents i.e., agreement to sale and receipt were sent to the Forensic Science Laboratory for determination of authorship of the two signatories on the above two documents and the FSL report reflects that the documents were forged. (9). Dr. P.C. Jain appearing for the petitioners has prayed for quashing the FIR so also the investigation carried out by the police and the cognizance taken by the learned Magistrate on the ground that the Trial Court could not have taken cognizance of the offence in view of the bar created by the provisions of Section 195 and 340 Cr.P.C. According to him, the documents already under scrutiny of the civil court cannot be made subject matter of criminal proceedings. In support of his above arguments, learned counsel has relied upon a decision of the Apex Court in Gopalakrishna Menon and Another vs. Dr. Raja Reddy and Another (1), wherein their Lordships have held as under:- ``In view of what we have said above, the prosecution in the instant case on the basis of a private complaint and in the absence of a complaint from the appropriate civil court where the alleged fraudulent receipt has been produced, would not be sustainable. (10). Raja Reddy and Another (1), wherein their Lordships have held as under:- ``In view of what we have said above, the prosecution in the instant case on the basis of a private complaint and in the absence of a complaint from the appropriate civil court where the alleged fraudulent receipt has been produced, would not be sustainable. (10). Thus the two Judges Bench of the Honble Supreme Court came to the conclusion that even in respect of such a document which was forged before filing the same in the court, the bar under Section 195(i)(b)(ii) would apply. The view taken by the Apex Court in Gopalakrishna Menons case (supra), was subsequently reiterated in M.S. Ahlawat vs. State of Haryana (2). (11). Learned Public Prosecutor and the learned Advocate appearing for the complainant have relied upon Sachidanand Singh and Another vs. State of Bihar and Another (3), wherein three Judges Bench considered the decision in Patel Laljibhai Samabhai vs. State of Gujarat (4), and held as under:- ``The scope of the preliminary enquiry envisaged in Section 340 (1) of the Code is to ascertain whether any offence affecting administration of justice has been committed in respect of a document produced in court or given in evidence in a proceeding in that Court. In other words, the offence should have been committed during the time when the document was in custodia legis. ``It would be a strained thinking that any offence involving forgery of a document if committed far outside the precincts of the Court and long before its production in the court, could also be treated as one affecting administration of justice merely because that document later reached the court records. (12). Resultantly, the their Lordship held: ``The sequitur of the above discussion is that the bar contained in Section 195 (1) (b) (ii) of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a court. Accordingly we dismiss this appeal. (13). The law propounded in Gopalakrishna Menons case (supra), stands expressly over ruled. (14). It may also be noted that decision in Sachidanands case (supra), was not placed for consideration before their Lordships of the Supreme Court while deciding M.S. Ahlawats case (supra). Thus, the earlier decision in Sachidanands case delivered by three Judges Bench would still hold the filed. (13). The law propounded in Gopalakrishna Menons case (supra), stands expressly over ruled. (14). It may also be noted that decision in Sachidanands case (supra), was not placed for consideration before their Lordships of the Supreme Court while deciding M.S. Ahlawats case (supra). Thus, the earlier decision in Sachidanands case delivered by three Judges Bench would still hold the filed. The matter again came up for consideration before the Apex Court in Balasubramaniam vs. State by SI Police, T.N. And Another (5), and their Lordships after taking note of the above said decisions and finding apparent inconsistency in the above said two decisions over a legal issue referred to matter to the larger Bench. The learned counsel appearing for either side could not state as to the fate of the matter before the larger Bench. (15). Be that as it may, in view of the decision of the Apex Court in Sachidanands case (supra), the bar created by the provisions of Section 195 and 340 Cr.P.C. does not operate in the facts and circumstances of the case at hand, inasmuch as the matter was reported to the police vide FIR dated 20.8.2003, while the civil suit was filed on 9.9.2003 i.e., subsequent to loding the FIR. For the reasons therefor, the argument advanced by the counsel for the petitioner has no legs to stand and it must be concluded that the Trial Court has rightly taken cognizance because the bar created by Section 195 and 340 Cr.P.C. does not operate in the present case. (16). Dr. P.C. Jain, counsel for the petitioners next contended that petitioner No. 5 is merely a witness to the agreement to sale and the cash receipt and it cannot be said that petitioner No. 5 was aware of the dispute between the parties and therefore, the Trial Court has committed serior error in framing charge against him. In support of his argument, learned counsel has relied upon Haji Shaukat Ali vs. State of Rajasthan (6), and Sarwar Shah vs. Abdullah Shah and Another (7). (17). I have given my anxious consideration to the above argument. According to the prosecution case, petitioners No. 1 to 4 forged an agreement to sale and a cash receipt, while petitioner No. 5 in collusion with them signed the aforesaid two documents as an attesting witness and testified that the executant of the documents signed the documents in his presence. I have given my anxious consideration to the above argument. According to the prosecution case, petitioners No. 1 to 4 forged an agreement to sale and a cash receipt, while petitioner No. 5 in collusion with them signed the aforesaid two documents as an attesting witness and testified that the executant of the documents signed the documents in his presence. As stated herein above, the documents were found forged as per the report of Forensic Science Laboratory. In that view of the matter, it cannot be said that there was no prima facie evidence or material before the Trial Court to frame charges against petitioner No. 5. The cases cited at the bar do not pertain to forged documents and hence the same have no application to the facts of the present case. (18). For the reasons aforesaid, both the petitioners being devoid of merit stand dismissed.