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2018 DIGILAW 977 (JK)

Ram Murti Avinash v. State of J&K

2018-12-14

SANJAY KUMAR GUPTA

body2018
JUDGMENT : APPCR No. 02/2018: For the reasons stated in the application, it is allowed and the requirement of filing of certified copy of order dated 23.09.2015 passed by the learned Special Municipal Mobile Magistrate, Jammu, is dispensed with. Disposed of accordingly. CRMC No. 22/2018 & I.A. No. 01/2018: 1. Through the instant petition filed under Section 561-A of the Code of Criminal Procedure (hereinafter for short, Cr.P.C.) petitioner seeks quashing of order dated 23.09.2015 passed by the learned Special Municipal Mobile Magistrate, Jammu; PV No. 119/2015 registered by respondent No. 1 on the basis of the aforesaid order dated 23.09.2016 and judgment and order dated 20.09.2016 passed by the learned 1st Addl. Sessions Judge, Jammu whereby the revision petition filed by the petitioner, has been dismissed. 2. The case of the petitioner is that respondent No. 2 approached the petitioner for purchase of piece of land measuring 3 kanals 16 marlas comprising of khewat No. 1-min, khata No. 42-min and khasra No. 301 situated at village Suketar, Tehsil and District, Jammu. They settled the total sale consideration of Rs. 14,50,000/- in respect of the suit land. The petitioner paid an amount of Rs. 2,00,000/- as advance consideration to the respondent No. 2. An agreement to sell has also been executed on 06.12.2011, which has been attested by Notary Public City, Jammu. As per this agreement, the respondent No. 2 was under a contractual obligation to provide the fard of the land to the petitioner at his own costs for the execution of the sale deed within one month. It is stated that petitioner approached the respondent No. 2 on 04.01.2012 and told him that he had arranged the balance sale consideration of Rs. 12,50,000/- and requested him to provide the fard Intkhab for the execution of the sale deed. However, the respondent No. 2 expressed his inability to obtain the fardintkhab Jamabandi within the stipulated period of one month for the execution of the sale deed The respondent No. 2 expressed the desire to handover the possession of the said land to the petitioner and further stated that the balance sale consideration would be paid at the time of obtaining fard and registration of the sale deed, to which petitioner agreed. Accordingly the respondent No. 2 handed over the possession of the said land to the petitioner on 04.01.2012 and the agreement has also been reduced into writing by the parties on 4.1.2012 itself on the overleaf of the original agreement dated 6.12.2011. The said subsequent agreement has also duly been signed by the petitioner and respondent No. 2. It is stated that since then he is in possession of the said land as owner. Thereafter, respondent No. 2 transferred the said land in favour of the petitioner by handing over the possession. Only formalities of obtaining fard, execution and registration of sale deed were required to be done. The petitioner and his associate Sh. Gopal Singh who is in possession of land under lying khasra No. 302 and khasra No. 305 have decided to construct a big temple complex on the said land. Subsequently, the respondent No. 2 refused to obtain the fard and execute the sale deed in favour of the petitioner. He has also extended threat of dispossession. The petitioner filed a suit for permanent prohibitory injunction in the court of learned Sub Judge, Jammu. An interim order was also passed by the said court in the said suit. The respondent No. 2 has filed the written statement in which he had admitted the execution of the agreement to sell dated 06.12.2011, however, he disputed the execution of supplementary agreement dated 06.12.2011. The learned Sub-Judge, Jammu vide order dated 22.10.2014 vacated the interim order. The petitioner filed an appeal against the said judgment and order in the court of learned 2nd Addl. District Judge, Jammu. It is further stated that petitioner was hoping that good sense will prevail upon the respondent No. 2 and he would obtain the fard and execute the sale deed in respect of the said land in favour of the petitioner. He also approached him a number of times and persuaded him to execute the sale deed as the land was required for a pious purpose. However, he declined the request of the petitioner. In these circumstances petitioner is said to have filed a suit for specific performance and permanent prohibitory injunction in respect of the above described land in the court of learned Addl. District, Judge Jammu. An interim order dated 29.12.2015 has also been passed by the said court. However, he declined the request of the petitioner. In these circumstances petitioner is said to have filed a suit for specific performance and permanent prohibitory injunction in respect of the above described land in the court of learned Addl. District, Judge Jammu. An interim order dated 29.12.2015 has also been passed by the said court. Subsequently, the suit for permanent prohibitory injunction filed before the learned Sub Judge, Jammu and appeal against the interim order have been withdrawn. 3. The contention of learned counsel for the petitioner is that the respondent No. 2 filed an application under Section 156 (3) Cr.P.C. in the court of learned Special Municipal Mobile Magistrate, Jammu alleging therein that the petitioner fraudulently forged his signature on 04.01.2012 which has been written on the over leaf of the original agreement dated 6.12.2012. The learned Magistrate vide order dated 23.09.2015 directed the SSP Crime Branch, Jammu to investigate the matter in respect of the allegations made in the complaint by the respondent No. 1 against the petitioner under law. It is stated that the petitioner challenged the said order in the court of learned Addl. Sessions Judge, Jammu in a revision petition pleading that the application filed by respondent No. 2 was not in conformity with the provisions of Section 156 (3) Cr.P.C. However, the said revision petition has been dismissed by the revisional court vide judgment and order dated 20.09.2016 on the ground that the respondent No. 2 before approaching the learned Magistrate had approached the SSP Crime Branch, Jammu and the condition as laid down under Section 156 (3) Cr.P.C. have been fulfilled. It is further submitted that the revisional court has not recorded any finding regarding swearing the affidavit in support of the said application. The petitioner also specifically pleaded that the matter was civil dispute and no offence was made out, but no finding has been recorded on the said point by the revisional court. 4. It has further been stated that respondent No. 1 has started the preliminary enquiry in the said matter bearing PV No. 119/2015. The petitioner is being summoned by the police officer to whom the matter has been entrusted for conducting the enquiry almost every week and he is being pressurized every time to settle the matter with the respondent No. 2. The petitioner is being summoned by the police officer to whom the matter has been entrusted for conducting the enquiry almost every week and he is being pressurized every time to settle the matter with the respondent No. 2. It is stated that vide SRO 202 dated 3.6.1999, the Government through Home Department in pursuance of the powers conferred by Section 4 (1) of Cr. P.C. has declared the Crime Branch, Jammu (respondent No. 1) to be the police station within the jurisdiction of Jammu Division for the purpose of registration and investigation of the offences as indicated in the annexure annexed to the said notification on the orders of the Head of the Crime Branch and cases which may be referred by the Government or Director General of Police from time to time. As per said annexure to SRO 202 as many as 22 types of offences have been enlisted in respect of which the respondent No. 1 has the jurisdiction to register the case and conduct the investigation. So far as the offence of forgery is concerned, only note forgery cases have been included therein. The aforesaid type of cases has been mentioned at Sr. No. 1 of the said Annexure. It is stated that admittedly, the respondent No. 2 filed a complaint to the effect that his signatures on the said supplementary agreement dated 04.01.2012 and witnessed by 2 witnesses, namely, Sh. Surinder Soni and Sh. Raj Uttam was forged one. Thus, the aforesaid alleged offence of forgery does not fall within the jurisdiction of respondent No. 1 for registration and investigation thereof. Apart from that, admittedly a civil suit is pending in the court of learned Addl. District Judge, Jammu. An interim relief has also been granted. The same is still pending, therefore, the matter is is civil in nature. 5. In the back ground of the aforesaid facts and circumstances of the case, the order dated 23.09.2015 passed by learned Special Municipal Mobile Magistrate, Jammu whereby a direction has been given to the respondent No. 1 to investigate the case PV No. 119/2015 registered by respondent No. 1 on the basis of aforesaid order dated 23.9.2015 and judgment and order dated 20.09.2016 passed by the learned 1st Addl. Sessions Judge, Jammu are being challenged by the petitioners on the following grounds:- (a) That as submitted above, the respondent No. 1 has got the jurisdiction for registration and investigation of the cases only in pursuance of SRO 202 dated 3.6.1999 in respect of the offences mentioned therein. As submitted above, the offence of forgery (except note forgery cases) is not included as the offences for registration and investigation. The respondent No. 1, therefore, has no jurisdiction to investigate the said alleged offence. The respondent No. 1, therefore, lacks the jurisdiction as such, the PV bearing No. 119/2015 registered by the respondent No. 1 deserves to be quashed. (b) That the order dated 23.9.2015 passed by the learned Special Municipal Mobile Magistrate, Jammu whereby the respondent No. 1 has been directed to investigate the said case of alleged forgery is also without jurisdiction. The learned Magistrate has no power to entrust the investigation of the case to a Police Station which has otherwise no jurisdiction for registration and investigation of such an offence. The order dated 23.9.2015, therefore, is also unconstitutional, illegal and without jurisdiction. The said order is liable to be quashed on this ground alone. Consequently the further proceedings initiated by the respondent No. 1 are also liable to be quashed. (c) That it is pertinent to mention here that under the provisions of Criminal Procedure Code, only that Police Station has the jurisdiction to register a case and conduct the investigation in whose jurisdiction the offence has been committed. However, by virtue of the SRO 202, the respondent No. 1 has been declared as Police Station for the purpose of registration and investigation of the cases either which have been included in the annexure or in respect of the cases which has been referred by the Government or Director General of Police from time to time. (d) That under Section 156 (3) Cr. PC the leaned Magistrate can direct only that police station for investigation of the case which has the territorial jurisdiction as defined and determined under the Criminal Procedure Code. The learned Magistrate cannot confer the jurisdiction to the Police Station which has no jurisdiction to register and investigate the case. In these circumstances, the order dated 23.9.2015 deserves to be quashed. The learned Magistrate cannot confer the jurisdiction to the Police Station which has no jurisdiction to register and investigate the case. In these circumstances, the order dated 23.9.2015 deserves to be quashed. (e) That assuming for the sake of an argument though vehemently denying that the respondent No. 1 has the jurisdiction to investigate such type of cases, yet it is submitted that the allegations leveled by the respondent No. 2 are civil in nature. The preliminary enquiry, therefore, initiated by the respondent No. 1, therefore, deserves to be quashed. However, the detail submissions would be made at the time of hearing in this behalf. (f) That admittedly, a civil suit is also pending. An interim order has also been passed. The respondent No. 2 is contesting the said case. In these circumstances the parallel jurisdiction under Criminal Procedure Code is not warranted particularly in the facts and circumstances of the case, on this ground also, the preliminary enquiry initiated by the respondent No. 2 deserves to be quashed. (g) That the respondent No. 2 has admitted the execution of the agreement to sell dated 6.12.2011 and thereby admitted the settlement of total consideration of Rs. 14,50,000/- and receipt of Rs. 2,00,000/- as advance. In the agreement, it was stipulated that the respondent No. 2 was required to obtain the fard within one month for the execution of the sale deed. It is not the case of the respondent No. 2 that he had obtained the fard and petitioner failed to pay the balance amount. On the other hand, he expressed inability to obtain the fard in respect of the said land and consequently handed over the possession of the land with a further promise that as and when fard would be obtained, the sale deed would be executed. The aforesaid fact clearly proves that the respondent No. 2 has subsequently backed out from his promise for extraneous consideration. Be that as it may, the suit is pending in the civil court for specific performance and permanent prohibitory injunction. The right of the parties would be decided in the said case after leading the evidence. In the facts and circumstances of the case, it is clear that the respondent No. 2 has filed the said complaint only to harass the petitioner. The order dated 23.9.2015 and the aforesaid preliminary enquiry, therefore, deserve to be quashed. The right of the parties would be decided in the said case after leading the evidence. In the facts and circumstances of the case, it is clear that the respondent No. 2 has filed the said complaint only to harass the petitioner. The order dated 23.9.2015 and the aforesaid preliminary enquiry, therefore, deserve to be quashed. (h) That even the order dated 20.9.2016 passed by the leaned 1 Addl. Sessions Judge, Jammu whereby the revision petition has been dismissed is also illegal and deserves to be quashed. 6. In objections filed by Crime, it has been stated that the facts of case are that a written complaint was filed by the complainant namely Anil Vaid S/o Chuni Lal Vaid R/o 96 A/D Gandhi Nagar Jammu against (1) Ram Murti Avinash S/o Sh. Ram Lal R/o H. No. 1398/2 Near J&K Board of School Education Green Enclave Rehari, Jammu (2) Surinder Kumar Sana alias Babu S/o Sh. Ram Lal R/o H. No. 108 Mohalla Kumara Purani Mandi Jammu (3) Raju Thomas S/o Sh. Chandu Ram R/o H. No. 39. New Company Bagh Canal Road, before JMIC (Municipal Mobile Magistrate Jammu, who in terms of section 156 (3) Cr.P.C. directed the Crime Branch. Jammu for probe vide order dated 29.03.2015. 7. In the complaint it has been alleged by complainant, that he is owner in possession of an immovable property in form of land measuring 3k 16 m falling under Khasra No. 301 Khewat No. 1 min khata No. 42 min at Suketar Jammu in terms of duly registered sale deed dated 15.10.2005 and mutation with respect to aforementioned land has also been attested in his favour on 16.12.2011. It was further averred that Ram Murti Avinash approached him for the purchase of aforesaid land and in this respect agreement to sell came to be executed between them, but the possession of same was not handed over to the said Ram Murti Avinash. Further that the Ram Murti Avinash did not fulfill the conditions of the agreement to sell and after lapse of one month as stipulated, the said agreement to sell became unenforceable. Further that the Ram Murti Avinash did not fulfill the conditions of the agreement to sell and after lapse of one month as stipulated, the said agreement to sell became unenforceable. It is further alleged that Ram Murti Avinash fraudulently made the endorsement over the backside of the agreement to sell, to the effect, possession of land measuring 03 kanals and 16 marlas, Khasra No. 301, handed over on 04.01.2012 Balance payment will be made at the time of Fard and registration of sale-deed and forged the signatures of the complainant below the aforesaid endorsement and the same has been witnessed by the Surinder Kumar and Raju Thomas with an object of getting undue benefit from the property of the complainant. On receipt of the said order a PV No. 119 of 2015 dated 20.11.2015 was initiated in the Crime Branch, Jammu. 8. On the basis of this order, enquiry was conducted by C/B; During the course of enquiry, the complainant's statement was recorded, where he corroborated the contents of the complaint. Further, it came to fore that a suit titled Ram Murti Avinash vs. Anil Vaid has been filed before the Court of Ld. Additional District and Session Judge Jammu in which Ram Murti Avinash has filed the original agreement to sell. Enquiry officer moved an application before Additional District Judge Jammu for obtaining the original agreement to sell dated 06.12.2011 filed by Ram Murti Avinash in case titled Ram Murti Avinash vs. Anil Vaid for FSL opinion. A letter was written to Branch Manager J&K Bank Gandhi Nagar Jammu to provide the certified copies of KYC and account opening form of account No. 1907 - CD on the name of M/s Vaid Oil Carrier (admitted signatures). A letter was written to DC Jammu and Tehsildar Nagrota to provide the present status/record of land measuring 3 kanal 16 marlas in khasra No. 30 khewat No. 01 Khata No. 42 situated at Suketar Jhajhar Kotli Jammu and nakal Khasra Girdawari of the above said land, specimen signatures of Anil Vaid were taken in the presence of Executive Magistrate 1 class Jammu. A letter was written to manager K Bank Gandhi Nagar Jammu to provide the two original cheques signed (admitted signatures) by Anil Vaid account No. 1907-CD for self-payment in the year 2011. FSL. A letter was written to manager K Bank Gandhi Nagar Jammu to provide the two original cheques signed (admitted signatures) by Anil Vaid account No. 1907-CD for self-payment in the year 2011. FSL. A letter was received from manager J&K Bank Gandhi Nagar with two cheques (admitted signatures) in instant. On 27.09.2017 the original agreement to sell dated 06.12.2017 was received by the order of Hon'ble Additional District Judge Jammu for comparison of Signatures of the executants Anil Vaid on the said document through handwriting expert in Forensic Science Lab Jammu. The expert opinion was also obtained from FSL Jammu. On perusal of record submitted by Tehsildar Dansal it reveals that the nakal Khasra Girdawari of year 2017 of Khasra No. 301 stands in the name of Anil Vaid S/o Chuni Lal Vaid R/o Chenani A/P Gandhi Nagar Jammu and detail report is attached with the file, now it is clear that suspect namely Ram Murti Avinash fraudulently made the endorsement over the back leaf of agreement to sell dated 06.12.2011 and the suspect also forged/got forged signatures of the complainant below the aforesaid alleged forged endorsement on agreement to sell and the same has been witnessed by the other accused persons namely Surinder Kumar and Raju Thomas with an object to get undue benefit from the property of complainant hence the allegation made in the complaint stands “proved" with recommendation for registration of a formal case against the above mentioned suspects for in-depth investigation. 9. I have considered the rival contentions of parties In support of his contention, learned counsel for the petitioner relies upon a judgment of this Court reported in S. Balbir Singh vs. Ishar Dass, 2010 (3) JKJ 180 , whereas counsel for respondents has argued that no FIR has been registered, so petition is pre mature. 10. The argument of counsel for petitioner is two folds. First argument is that dispute is of civil nature, so criminal proceeding is not maintainable. 10. The argument of counsel for petitioner is two folds. First argument is that dispute is of civil nature, so criminal proceeding is not maintainable. This argument at this stage does not hold good as there is specific allegations against petitioner-Ram Murti Avinash, that he fraudulently made the endorsement over the backside of the agreement to sell, to the effect, possession of land measuring 03 kanals and 16 marlas, Khasra No. 301, handed over on 04.01.2012 and balance payment will be made at the time of Fard and registration of sale-deed and forged the signatures of the complainant below the aforesaid endorsement; others petitioners have witnessed the said deed of endorsement. Even PV has proved this aspect of matter. 11. It generally happens that in case of forgery of document, there happens to be civil liability also. When such like position is there, criminal liability cannot be quashed on the ground that, dispute is of civil nature. 12. Second argument is that in terms of SRO 202 dated 03.06.1999, C/B has no power to investigate the matter after lodging of FIR. I have considered this aspect of matter. FIR has yet not been lodged; only PV has been conducted. The Officer-in-charge of a police station cannot refuse to record the FIR on the ground that concerned police station has no jurisdiction. It amounts to dereliction of duty on the part of the Police Officer. The correct way in such like circumstances is to register the FIR and send the same to concerned police station, having jurisdiction over the subject. In present case PV has been started by C/B on the direction of JMIC, who was competent to take cognizance under section 190 of Cr.P.C. Magistrate instead of taking cognizance has directed the C/B firstly to investigate the matter in terms of section 156(3) Cr.P.C. 13. Section 154 Cr.P.C. reads as follows:- “(1) Every information relating to the commission of cognizable offence, if given orally to an officer-in-charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. (2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant. Three copies are to be prepared with the help of carbon papers and one of the copies is received immediately in the court of Judicial Magistrate of the Police Station concerned. (3) Any person aggrieved - by a refusal on the part of an officer-in-charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned, who if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer-in-charge of the police station in relation to that offence.” 14. Section 156 Cr.P.C. reads as under:- “156. Police officer’s power to investigate cognizable case. (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned.” 15. From bare perusal of these sections, it is evident that Magistrate has ample power to ask the police station within his local jurisdiction to conduct investigation in cognizable offences. In term of sub-clause (2) of section 156 Cr.P.C. the proceeding of police officer shall not be called in question on the ground that there was lack of territorial jurisdiction. It is not the case of petitioner that C/B on its own has started PV. It is also a fact that alleged offence of forgery has been committed within the territorial jurisdiction of JMIC for which he was competent to take cognizance. 16. Further, as already held, in present case FIR is yet to be registered and only PV has been conducted. It is also a fact that alleged offence of forgery has been committed within the territorial jurisdiction of JMIC for which he was competent to take cognizance. 16. Further, as already held, in present case FIR is yet to be registered and only PV has been conducted. The purpose of conducting PV is to inquire about truthfulness of allegations levelled in complaint and further to verify as to whether a case of cognizable offence is made out or not. 17. There is no dispute with regard to law cited by counsel for petitioner, but not applicable as FIR is yet to be registered. Admittedly, offences mentioned in complaint does not fall in SRO 202 dated 3.6.1999, so this petition is disposed of with a direction to C/B to act upon SRO 202 before lodging FIR; he may send his PV to concerned police for lodging FIR, if cognizable offences are made out or may send report in this regard to JMIC, who has directed to register the FIR. This petition is disposed of accordingly.