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2011 DIGILAW 506 (UTT)

SANJAY GARG v. STATE OF UTTARAKHAND

2011-08-08

SERVESH KUMAR GUPTA

body2011
JUDGMENT By way of this criminal miscellaneous application, the chargesheet filed against the applicants and pending in the court of C.J.M. Haridwar as case no. 4392 of 2009 for the offence of Section 420 IPC and the cognizance taken thereupon, is under challenge. It has been sought that the said chargesheet as well as the cognizance order dated 11.8.2009 be quashed. 2. After hearing the learned counsel of the applicants and Sri Surendra Kumar Sharma (opposite party in person), it transpires that initially the bone of contention between the parties was a shop based at Haridwar whereof Surendra Kumar Sharma was a landlord and Sri Sanjay Garg along with his brother Anil Garg were the tenants. A suit was filed in the Small Causes Court for the rent and eviction way back in 1999 and it was decreed on 19.10.2002. Sri Garg brothers filed the revision against it wherein an additional issue was framed by the revisional court as to whether any lease deed was executed between the parties in presence of witnesses, if any, and its effect. 3. The writ petition was filed by the landlord against framing of this issue and in that writ petition, this additional issue was quashed and the High Court was of the view that there was no necessity either to frame the said issue or to give finding thereupon. The revision was adjudicated and the same was dismissed on 27.9.2007 by Additional District Judge/IV FTC, Haridwar. It is pertinent to mention here that the alleged lease deed dated 22.7.1987 was filed by tenant Sri Garg brothers during the pendency of the revision. The tenant filed the writ petition against the order dated 27.9.2007 which was dismissed by Hon’ble High Court but the time was granted to the tenant till 27.6.2008 to vacate the shop in question and in compliance of that directions of the High Court, the shop was vacated. 4. After taking the shop in question in his possession, landlord Surendra Kumar Sharma (private opposite party no. 2) did not let Sri Garg brothers to go scot-free and made up his mind to initiate the proceedings against them alleging the lease deed dated 22.7.1987 to have been fabricated and forged just to justify the entire legal process. He ran from pillar to post to get an F.I.R. registered against Sri Garg brothers but that could not be lodged. He ran from pillar to post to get an F.I.R. registered against Sri Garg brothers but that could not be lodged. He ultimately moved an application u/s 156(3) Cr.P.C. on 27.3.2008 and the same was dismissed on 15.5.2008 in non-prosecution. However, Sri Surendra Kumar Sharma did not sit silent and he again strived to lodge an F.I.R. with the same facts and fortunately, this time he could attain the success. The same was lodged bearing crime No. 376/2008 u/s 420/467/468/471 IPC against Sri Garg brothers, as above. The matter was investigated and the chargesheet was submitted by the police only for the offence of Section 420 IPC, whereupon the cognizance has been taken by the Magistrate and this chargesheet and the order of cognizance is the subject matter of challenge in this petition. 5. Learned counsel of the applicant/petitioner has relied upon a precedent of this Court in the case of “Goverdhan Vs. State of Uttaranchal & Others, delivered by the court on 1.7.2010 in Crl. Miscl. Application (C-482) No. 291 of 2005”. The learned Single Judge of this court in that matter, where a medical certificate with a wrong paternity name was filed in the court, an effort was made to take some benefit, then the Court was of the view that no offence of Section 420 IPC was made out, as the ingredients of the said offence were not attracted by this fabrication, if any. Even if the offence of Sections 468/472 IPC was made out, then the chargesheet was barred by Section 195 (1)(b)(ii) Cr.P.C. 6. On the other hand, two precedents of Hon’ble Apex Court has been relied. Fist case is by the Hon’ble Supreme Court in the case of “K. Vengadachalam vs. K.C. Palanisamy and others reported in 2005 S.C.C. (Cri.) 1673”. In this precedent, another case of Iqbal Singh Marwah Vs. Meenakshi Marwah (2005) 4 SCC 370, was followed where the Hon’ble Apex Court considered the scope of Section 195(1)(b)(ii) and Section 482 Cr.P.C. It was held that when a forgery in respect of a document, produced or given in evidence in a proceeding in any court, then the bar of Section 195 Cr.P.C. is not attracted, provided the forgery has been committed, before the document was filed in the court. So, the High Court was not justified in quashing the prosecution launched under Sections 467, 468, 471, 472 and 477-A r/w Section 34 IPC. 7. Similarly, in another precedent in the case of “Iqbal Singh Marwah and another Vs. Meenakshi Marwah and another reported in 2005 SCC (Cri) 1101”, the Five Judges’ Bench of Hon’ble Apex Court again discussed the same issue and it was held that if the forgery has been committed regarding a document before filing of that document in the court or in its proceedings, then the bar of Section 195 Cr.P.C. is not attracted. 8. It has been contended on behalf of learned counsel for the applicants that these precedents of Hon’ble Apex Court are not attracted in the present controversy because the chargesheet was filed against the applicants for the offence of Section 420 IPC and not for the offences of Section 467, 468 and 471 IPC. This Court is unable to agree with this contention for the reason that initially the F.I.R. was lodged against Sri Garg brothers for the offence of Sections 420, 467, 468 and 471 IPC with the facts that these Garg brothers forged the lease deed dated 22.7.1987 before filing the same in the civil litigation pending between the parties at revisional stage. It does not matter even if the investigating officer only has mentioned a particular Section, i.e. Section 420 IPC, while submitting the chargesheet in the court. Even after submission of chargesheet in the court, if the Court’s attention is drawn towards the contents of the case diary and the evidence available therein or even adduced in the court at the time of levelling the charge, then the court is well within its powers to discard the opinion of the investigating officer and to make its own view in levelling the charge against the accused persons. 9. The next contention of learned counsel for the applicants that one of the applicants Sri Sanjay Garg is a witness in a chargesheet in the shape of S.T. No. 165/2008 u/s 307 IPC against Sri Surendra Kumar Sharma, is of no avail in the case. Both the cases are tried in the court of law and they will meet their own fate at their own merits. 10. So, in view of the above, this petition has no force and it is liable to be dismissed C482 petition is dismissed. Both the cases are tried in the court of law and they will meet their own fate at their own merits. 10. So, in view of the above, this petition has no force and it is liable to be dismissed C482 petition is dismissed. Interim order dated 11.9.2009 is vacated. Let a copy of this order be sent to the trial court concerned to proceed in accordance with law.