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2011 DIGILAW 803 (JHR)

Jessop @ Company Ltd v. M. A. Sidiqi

2011-08-23

PRASHANT KUMAR

body2011
JUDGMENT: This application is directed against the order dated 17.12.2003 in C.P. Case No. 275 of 2003 passed by Judicial Magistrate, Bokaro whereby he took cognizance against the petitioners under section 469 and 471 of the IPC. 2. It appears that O.P. No. 2 filed a complaint alleging therein that he entered into an agreement with petitioner no. 1 for supply of workman/ watch-guard. It is further stated that in view of the agreement, a work order issued on 18.2.1994, however, the said work order was amended from time to time lastly on 1.4.1999. It is further alleged that the petitioners/accused unilaterally made variation in the aforesaid work order vide letter dated 26.6.2001. It is further stated that the accused/petitioners have no power to make variation unilaterally in the terms of contract. It is stated that such variation made in the contract with intent to cause financial loss to the complainant and also to harm his reputation. Accordingly, it is alleged that the accused/petitioners committed an offence under section 469 and 471 of the IPC. 3. It appears that complainant examined himself on S.A. and also three witnesses during the enquiry under section 202 of the Cr.P.C.. It further appears that the learned Judicial Magistrate, Vide order dated 17.12.2003 after considering the material prima facie, come to the conclusion that offences under section 469 , 471 of the IPC are made out against petitioners, accordingly, he took cognizance and issued process against petitioners. Aforesaid order challenged in the present application. 4. It is submitted by learned counsel for the petitioners that from the perusal of complaint petition, it is clear that dispute between the parties is of a civil nature. It is further submitted that even if said allegations accepted on their face value and accepted in their entirety do not constitute offences under section 469 and 471 of the I.P.C. Thus, the order taking cognizance is an abuse of the process of court. 5. On the other hand, learned counsel for the complainant .O.P. No. 2 submits that the petitioners/accused unilaterally changed terms and condition of the agreement with a view to cause harm to the reputation of complainant and also by using the said document cause financial loss to the complainant, thus offences under section 469 and 471 of the IPC are made out. 6. Having heard the submission, I have gone through the record of the case. 6. Having heard the submission, I have gone through the record of the case. From perusal of impugned order, I find that learned court below took cognizance under section 469 and 471 of the IPC. Forgery has been defined under section 463 of the IPC, which runs as under:- 463. Forgery.-Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. 7. The words 'making of false documents' as stated in section 463 of the IPC has been further explained under section 464 of the IPC, which runs as follows:- 464. 7. The words 'making of false documents' as stated in section 463 of the IPC has been further explained under section 464 of the IPC, which runs as follows:- 464. Making a false document.-[A person is said to make a false document or false electronic record- First.-Who dishonestly or fraudulently- (a) makes, signs, seals or executes a document or part of a document; (b) makes or transmits any electronic record or part of any electronic record; (c ) affixes any digital signature on any electronic record; (d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or part of document, electronic record or digital signature was made, signed, sealed executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly.-Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly.-Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.] 8. It manifest from aforesiad provisions that condition precedent for an offence under section 469 and 471 is forgery. A forgery is said to have been committed if any person makes false document. Therefore question arose in this case whether petitioners by unilaterally making changes in the terms & condition of agreement vide letter dated 26.6.2001 had made any false document. It manifest from aforesiad provisions that condition precedent for an offence under section 469 and 471 is forgery. A forgery is said to have been committed if any person makes false document. Therefore question arose in this case whether petitioners by unilaterally making changes in the terms & condition of agreement vide letter dated 26.6.2001 had made any false document. Firstly there is no allegation in the complaint that petitioner dishonestly or fraudulently makes a document with the intention of causing it to be believed that such document was made or executed by some other person; Secondly there is also no allegation that petitioners alters material part of an existing document either executed by them or any other person. Thirdly there is also no allegation that petitioners dishonestly or fraudulently causes any person to sign, execute or alter any document knowing that such person could not know content of the document or nature of the alteration due to unsoundness of mind or intoxication or deception practiced upon him. Therefore only by unilaterally changing the terms & condition of agreement by a separate letter it can not be said that petitioners made a false document. Thus I find that the ingredients of the offenses enumerated in section 469 and 471 of the IPC are missing in this case. 9. From perusal of entire complaint petition, I find that the main grievance of the complainant is that the terms and conditions of contract entered in between the complainant and petitioners have been changed unilaterally and because of the said change, the complainant may suffer financial loss. For redressal of such grievance, in my view, complainant may file civil suit. 10. It has been held by their Lordships of Supreme Court in Inder Mohan Goswami and Anr Vs. State of Utranchal and others reported in (2007)12SCC 1 that if the dispute between the parties purely of civil nature and even after taking into account entire averments made in the FIR/complaint to be true, no offence is made out against the accused, then filing of criminal case against the accused is an abuse of the process of court. Under the circumstances, the court is duty bound to quash the criminal proceeding with a view to prevent abuse of the process of the court and to secure the ends of justice. 11. Under the circumstances, the court is duty bound to quash the criminal proceeding with a view to prevent abuse of the process of the court and to secure the ends of justice. 11. In the instant case, as noticed above, from perusal of entire complaint, no offences made out under section 469 or 471 of the IPC. The grievance of the complainant/O.P. No. 2 with respect to unilateral amendment of terms and conditions vide letter dated 26.6.2001, appears to be of civil nature, for that complainant, is so desire, can file a civil suit for damages under the Indian Contract Act. 12. Since, no offence enumerated under section 469 and 471 of the IPC is made out, therefore, I am of the view that impugned order by which the learned court below took cognizance against the petitioner is an abuse of the process of court, therefore, cannot be sustained. 13. In view of the discussions made above, I allow this application. The impugned order is hereby quashed.