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2011 DIGILAW 431 (RAJ)

Rajendra Prakash v. State of Rajasthan

2011-02-24

GOPAL KRISHAN VYAS

body2011
Hon'ble VYAS, J.—Instant miscellaneous petition has been filed by the petitioners under Section 482, Cr.P.C. with the prayer that order dated 10.1.2007 passed by Addl. Sessions Judge, Sriganganagar, so also, order dated 16.6.2006 passed by Judl. Magistrate, Sriganganagar in Criminal Case No. 93/2006 may be quashed and set aside. 2. As per facts of the case, complainant Bhagwan Singh filed a written report on 16.4.1999 in which it is specifically pleaded that plot No. 3J - 28 at Jawahar Nagar, Sri Ganganagar was allotted to him but he used to reside at 4E Chhoti, Tehsil Sriganganagar and his wife was posted at Padampur as Teacher, therefore, to care for the said plot, a boundary wall was constructed and after putting a gate and lock, the key was given by him to his nephew Kuldeep. 3. It is further stated that after six months when the complainant received a notice from the Court, then, he found that the accused persons sold his allotted plot by way of executing a forged agreement and obtained Rs. 1,60,000/-. Upon the said complaint, an FIR was registered at Police Station Jawahar Nagar, Sriganganagar bearing FIR No. 168 dated 16.4.1999 for alleged commission of offences under Sections 467, 468 and 471 IPC. 4. The police, after investigation, filed FR in the matter; but, later on, trial Court took cognizance vide order dated 16.6.2006. Said order of cognizance was passed after disagreeing with the reasons given by the investigation officer. Further, it is observed in the order that a report of hand-writing expert Gopal Krishan Sharma, was filed, in which, it is found that the signature appearing on the so called agreement of sale does not belong to complaint Bhagwan Singh. While observing the said fact, learned trial Court took cognizance as aforesaid. 5. The order of cognizance was challenged by way of filing revision petition before the revisional Court and finally Addl. Sessions Judge No.1, Sriganganagar decided the said revision petition vide order dated 10.1.2007, by which, revision petition filed by the petitioners was dismissed and order passed by the learned Magistrate upon FR was upheld. 6. 5. The order of cognizance was challenged by way of filing revision petition before the revisional Court and finally Addl. Sessions Judge No.1, Sriganganagar decided the said revision petition vide order dated 10.1.2007, by which, revision petition filed by the petitioners was dismissed and order passed by the learned Magistrate upon FR was upheld. 6. Learned counsel appearing on behalf of the petitioners submits that the whole complaint filed by respondent complainant was investigated by the police and, ultimately, it was found by the police that the case is of civil nature because as per facts a civil suit for specific performance was filed by open Rajjiram S/o Nanak Ram in whose favour the said agreement was executed. the agreement was also filed along with the suit filed by Rajjiram, therefore, he investigating officer gave his finding that if the said agreement is forged, then obviously, the civil Court will take action under Section 195, I.P.C. and Section 340, Cr.P.C. Learned magistrate, however, while disagreeing with the conclusion arrived at by the Investigating Officer took cognizance on the ground that Court can exercise power under Section 195, I.P.C. if any document is fabricated during the course of trial whereas in this case the disputed agreement was admittedly executed prior to filing civil suit. 7. Learned counsel for the petitioners submits that now the position is altogether different because the civil suit for specific performance of the contract has been decreed in favour of Rajjiram, in which, a clear finding has been given by the civil Court in Civil Suit No. 19/1997 vide judgment dated 21.7.2001 that the said document was executed by the complainant and while adjudicating the genuineness of the document held that while adjudicating the genuineness of the document held that the said document was executed by the complainant himself. Therefore, on the basis of he finding of the civil Court, upon which, civil suit was decreed the cognizance taken by the learned Magistrate deserves to be dismissed. 8. In support of his argument, learned counsel for the petitioners drew my attention towards judgment of the apex Court, reported in (1995) 5 SCC 767 , V.M. Shah vs. State of Maharashtra and Another, in which, Hon'ble Supreme Court has held that if conflicting findings of civil and criminal Courts are there, then, finding recorded by the civil Court shall prevail until reversed by the appellate Court. 9. 9. After hearing arguments of both the parties, I have perused the judgment of the apex Court rendered in V.M. Shah's case (supra). There is substance in the argument of learned counsel for the petitioners that in the event of conflicting findings given by criminal and civil Court, finding of civil Court shall have precedence over the finding arrived at by the Criminal Court. Relevant para 11 of the said judgment runs as under : "As seen that the civil court after full-dressed trial recorded the finding that the appellant had not come into possession through the Company but had independent tenancy rights from the principal landlord and, therefore the decree for eviction was negatived. Until that finding is duly considered by he appellate Court after weighing the evidence afresh and if it so warranted reversed, the findings bind the parties. The findings, recorded by the criminal Court, stand superseded by the findings recorded by the civil Court. Thereby, the findings of the civil court get precedence over the findings recorded by the trial Court, in particular, in summary trial for offences like Section 630. Mere pendency of the appeal does not have the effect of suspending the operation of the decree of the trial Court and neither the finding of the civil court gets nor the decree becomes inoperative." 10. In this case, admittedly the suit for specific performance filed by Rajjiram on the basis of disputed agreement was decreed by the civil Court, therefore, both the orders impugned deserve to be quashed. 11. Although, as per learned counsel for the respondent, appeal against said decree passed in civil suit No. 19/1997 dated 21.7.2001 has been filed before this Court which is pending but, fact remains that as on today, there is finding of the civil Court that agreement in question was executed is entitled to grab the fruits of the judgment. 12. In this view of the matter, while following the Apex Court judgment in V.M. Shah's case (supra) instant criminal miscellaneous petition is allowed. Both the orders impugned in this petition dated 10.1.2007 passed by Addl. Sessions Judge, Sriganganagar in revision petition No. 94/2006, so also, order dated 16.6.2006 passed by Judl. Magistrate, Sriganganagar in Criminal Case No. 93/2006 are hereby quashed and set aside. Both the orders impugned in this petition dated 10.1.2007 passed by Addl. Sessions Judge, Sriganganagar in revision petition No. 94/2006, so also, order dated 16.6.2006 passed by Judl. Magistrate, Sriganganagar in Criminal Case No. 93/2006 are hereby quashed and set aside. Further, the complaint will be at liberty to take recourse to law if the finding of the civil Court is reversed in appeal by this Court.