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2019 DIGILAW 1497 (JHR)

Brajesh Kumar Singh v. State of Jharkhand

2019-08-28

ANUBHA RAWAT CHOUDHARY

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JUDGMENT : I.A. No. 1361 of 2015 1. Heard Mr. Mahesh Tewari, counsel appearing on behalf of the petitioner along with Mr. Ankur Anand. 2. Heard Mr. S.K. Laik, counsel appearing on behalf of the son of opposite party no. 2. 3. Heard Mr. Shiv Kumar Sharma, A.P.P. appearing for the State. 4. Mr. S.K. Laik, Advocate submits that this interlocutory application has been filed so as to implead the son of opposite party no. 2, as the opposite party no. 2 has expired during the pendency of this case and the death certificate of opposite party no. 2 has been annexed as Annexure-1 to this petition. He further submits that he has filed Vakalatnama on behalf of the son of opposite party no. 2 which is on record. He also submits that no reply by the petitioner has been filed to this petition. 5. Considering the facts and circumstances of this case, I.A. No. 1361 of 2015, is hereby allowed and the son of the complainant is permitted to be added as opposite party no. 2 after deleting the name of opposite party no. 2. 6. Counsel appearing on behalf of son of opposite party no. 2 is permitted to make necessary correction in the cause title in red ink during the course of day. Cr. M P. No. 2248 of 2013 7. This application has been filed for the following reliefs:- “For quashing the order dated 11.06.2012, passed by Shri P.S. Ghosh, learned Judicial Magistrate, Dhanbad, whereby and whereunder, the learned Judicial Magistrate was pleased to find a prima facie case under Section 417/467/468/471/34 as well as u/s 120B of the Indian Penal Code against the petitioners and accordingly took cognizance of the same and issued summons to the petitioners to face trial in connection with C.P. Case No. 2004 of 2011, this case is now pending in the Court of Shri P.S. Ghosh, learned Judicial Magistrate, Dhanbad.” 8. Counsel for the petitioners, by referring to the complaint petition, submits that no criminal case is made out against the petitioners on the face of the complaint petition. Counsel for the petitioners, by referring to the complaint petition, submits that no criminal case is made out against the petitioners on the face of the complaint petition. He has made specific reference to paragraph 8 of the complaint petition to submit that as per the complainant himself, two development agreements dated 16.04.2008 were executed whereby the land was notionally divided into two parts with 5 kathas shown to be the share of the complainant and his brother Ramesh Singh and remaining 5 kathas in the share of the accused 1 & 2 while 1 katha 3 chhatak was set apart for the road. 9. The learned counsel further submits that it has been mentioned in the complaint petitioner that the dispute cropped up between the complainant and accused no. 3 so the complainant refused to execute power of attorney and/or sign the building plan as well as application for approval of the same and consequently the work could not commence. Counsel further submits that the complainant has taken the entire money so far as his share is concerned and did not execute the power of attorney. He further submits that money suit is also pending in connection with recovery of amount which has been paid to the complainant. Counsel further submits that it has been alleged in the complaint petition that application was filed before the Mineral Area Development Authority (MADA) containing forged signature of the complainant one Dinesh Singh of the same family who had died long before submission of the said application and it has also been alleged in paragraph no. 15 that mutation of 5 kathas of land out of the aforesaid land was actually done in the name of Brajesh Singh but while filing the photocopy of the rent receipts, the names of Basant Singh and Narayan Singh were interpolated through forgery and such forged rent receipts were submitted before MADA for the purposes of passing of the building plan. Counsel submits that when there is clear averment in paragraph no. 8 of the complaint petition that there was notional division of the property involved, the petitioners have distinct right which has nothing to do with the rights of the complainant or other party. Counsel submits that complainant had also filed Title Suit No. 143/2011 against accused no. Counsel submits that when there is clear averment in paragraph no. 8 of the complaint petition that there was notional division of the property involved, the petitioners have distinct right which has nothing to do with the rights of the complainant or other party. Counsel submits that complainant had also filed Title Suit No. 143/2011 against accused no. 1,2, 4 and MADA to restrain them from getting building plan sanctioned on the basis of forged documents which has been clearly mentioned in paragraph no. 20 of the complaint petition. He submits that in totality of the facts and circumstances of this case entire dispute is pure civil dispute between the parties including the builder and no case is made out against the petitioners. 10. Counsel has also referred to judgment passed by the Hon’ble Supreme Court reported in (2009) 15 SCC 429 (Ramesh Dutt and Others vs. State of Punjab and Others); (2010) 1 SCC 322 (Parminder Kaur vs. State of Uttar Pradesh and Another) paragraph no. 25; (2009) 8 SCC 751 (Mohammed Ibrahim and Others vs. State of Bihar and Another); (2008) 5 SCC 668 (Maksud Saiyed vs. State of Gujarat and Others); (2009) 7 SCC 495 (Devendra and Others vs. State of Uttar Pradesh and Another) to submit that under somewhat similar circumstances, the Hon’ble Supreme Court has also held that no criminal case is made out against the accused. He submits that in view of the allegations made in the complaint petition and aforesaid judicial pronouncements by the Hon’ble Supreme Court, the entire criminal proceeding against the petitioners are fit to be quashed. He further submits that by virtue of sanction plan the petitioners are not to gain in any manner whatsoever. 11. Counsel appearing on behalf of opposite party no. 2 on the other hand submits that there are clear allegations made in paragraph nos. 10,11,12,15 and 17 of the complaint petition so as to constitute a prima facie case against the accused. He submits that the application which was filed before the MADA has been obtained by way of Right to Information which has been filed along with the counter affidavit and upon perusal of the application it appears that the same contains the signature of the petitioners Brajesh Singh (petitioner no. 1) and also the forged signature of the complainant and one dead person namely Dinesh Singh. 1) and also the forged signature of the complainant and one dead person namely Dinesh Singh. Counsel submits that it has been clearly stated in paragraph no. 10 that dispute cropped up between the complainant and accused no. 3 due to which the complainant refused to execute power of attorney and/or sign the building plan as well as application for approval of the same and in order to come out of the situation, application containing forged signatures was filed. He also submits that so far as mutation is concerned, it has been specifically stated in paragraph no. 15 of the complaint petition that mutation of 5 kathas land out of the aforesaid land was actually done in the name of Brajesh Singh but while filing the photocopy of the rent receipt, the names of Basant Singh and Narayan Singh were interpolated through forgery and such forged rent receipt was submitted before MADA. He submits that there is clear allegation of forgery and cheating the complainant which is supported by enquiry witness and merely because the title suit is pending between the parties the same does not absolve the petitioners from their criminal liability. Counsel has also referred to the judgment reported in (2014) 3 SCC 389 Vijayander Kumar and Others vs. State of Rajasthan and Another and submits that in a given set of facts the civil wrong as well as criminal offence both can be made out against the accused. 12. After hearing counsel for the parties and after considering the materials available on record, this court finds that it appears from the complaint petition that two development agreements both dated 16.04.2008 were entered into by virtue of notional division of the property into two parts with 5 kathas being or shown to be the share of the complainant and his brother Ramesh Singh and remaining 5 kathas in the share of the accused No. 1 & 2 while 1 katha 3 chhatak was set apart for the road. 13. This court further finds that it has been clearly averred in the complaint petition that on account of certain dispute the complainant had refused to execute the power of attorney and/or signed the building plan for the purposes of approval. 13. This court further finds that it has been clearly averred in the complaint petition that on account of certain dispute the complainant had refused to execute the power of attorney and/or signed the building plan for the purposes of approval. However, allegations have been made in the complaint petition is that in order to get the building plan approved, in the application which was filed before the MADA, the signature of the complainant as well as one Dinesh Singh, who had expired long back, were forged and along with the application for sanction of plan, the mutation receipts were also to be filed, photocopy of which were forged and produced before MADA. 14. This court further finds that the contention of the petitioner that the application, which was filed before MADA, has got nothing to do with the land of the petitioners, is concerned, there is nothing on record to show that the application which was filed before MADA was only in relation to share of the property which belonged to the complainant and the very fact that the petitioner no. 1 was alleged to be the signatory to the application before MADA, it is difficult to assume at this stage, that the said application had nothing to do with the property of the petitioners as well as the complainant. These aspects of the matter cannot be examined by this court in a case filed under Section 482 of the Code of Criminal Procedure. The further case of the petitioners is that the petitioners are not to gain in any manner and accordingly the case should be quashed. The submission has been disputed by the learned counsel appearing for the opposite party No. 2. However, this aspect of the matter also appears to be a point of defence which cannot be appreciated at the stage of cognizance. 15. So far as the pendency of civil suit is concerned, this court is of the considered view that in a given set of facts and circumstance, there can be civil liability as well as criminal liability particularly in the circumstances where the signatures on certain documents are alleged to be forged or containing the signature of dead persons. It has been held by the Hon’ble Supreme court in the judgement reported in (2014) 3 SCC 389 (Vijayander Kumar v. State of Rajasthan) at para 12 as follows:- 12. It has been held by the Hon’ble Supreme court in the judgement reported in (2014) 3 SCC 389 (Vijayander Kumar v. State of Rajasthan) at para 12 as follows:- 12. The learned counsel for the respondents is correct in contending that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may also be available to the informant/complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose a criminal offence or not. This proposition is supported by several judgments of this Court as noted in para 16 of the judgment in Ravindra Kumar Madhanlal Goenka v. Rugmini Ram Raghav Spinners (P) Ltd. So far as the payment of the entire amount to the complainant and not agreeing to execute the power of attorney is concerned, the complainant himself has stated in the complainant petition that due to certain dispute which cropped up the complainant had refused to execute the power of attorney. Accordingly, in such circumstances, this court finds that there could be some dispute which arose between the complainant qua builder and other parties, but the same itself is not sufficient to entitle anybody to forge signature of the complainant or dead person in order to get the map sanctioned as has been alleged in the present case. 16. So far as judgment which has been relied upon by the petitioners reported in (2009) 15 SCC 429 is concerned, this court finds that in the said case, in spite of not having clear title over the property or by suppressing certain facts, application for mutation was filed and the Hon’ble Supreme Court held that it is one thing to say that the accused had committed criminal misconduct while trying to obtain order of mutation but it is another thing to say that only because they filed an application, the same by itself would amount to commission of a criminal offence. In this background the Hon’ble Supreme Court was pleased to quash the criminal proceedings. In the present case the allegations are totally different. It has been alleged inter alia that the application and mutation receipts contained forged signature and accordingly, this judgment does not help the petitioners in any manner whatsoever to impress upon the Court to quash the entire criminal proceedings. 17. In the present case the allegations are totally different. It has been alleged inter alia that the application and mutation receipts contained forged signature and accordingly, this judgment does not help the petitioners in any manner whatsoever to impress upon the Court to quash the entire criminal proceedings. 17. So far as judgment which is reported in (2010) 1 SCC 322 is concerned, the counsel for the petitioners has referred to paragraph 25 of this judgment wherein the Hon’ble Supreme Court has taken into account that the litigation was being fought to wreak vengeance through criminal prosecution and there was total lack of bonafide on the part of the informant of the said case. There is no such corresponding fact involved in this case and accordingly the said judgment does not apply to the facts and circumstances of this case. 18. The third judgment which has been relied upon by the petitioner is reported in (2009) 8 SCC 751 . In the said judgment provisions of Sections 467 and 471 of the Indian Penal Code have been analysed and it has been observed that there is a fundamental difference between a person executing a sale deed claiming the property conveyed as his property and a person executing a sale deed by impersonating the owner or falsely claiming to be authorized or empowered by the owner to execute the deed on owner’s behalf. From perusal of the allegations made in this case, this court finds that there are allegations of forging the signature in the application filed before MADA and in this background it cannot be said that no prima-facie case is made out against the petitioners for the purposes of taking cognizance of the offence. Applying the ratio of the judgment passed by the Hon’ble Supreme Court in the aforesaid case reported in (2009) 8 SCC 751 this court finds that even this judgment does not help the petitioners in any manner whatsoever. 19. So far as judgment reported in (2009) 7 SCC 495 is concerned, in the said case, the co-sharer in joint property lodged F.I.R. against the co-sharer by levelling allegation that they executed a deed of sale in favour of third party stating that they had one-third share in the joint property, although they were not entitled. 19. So far as judgment reported in (2009) 7 SCC 495 is concerned, in the said case, the co-sharer in joint property lodged F.I.R. against the co-sharer by levelling allegation that they executed a deed of sale in favour of third party stating that they had one-third share in the joint property, although they were not entitled. In the present case there are allegations of forgery and cheating and accordingly the aforesaid judgment also does not help the petitioners in any manner whatsoever. 20. So far as judgment reported in (2008) 5 SCC 668 is concerned, the said case related to vicarious liability of the directors and in the said case the Magistrate did not consider the bonafide mistake of the directors in publishing the prospectus of the company. It was also held that under Indian Penal Code there is no vicarious liability. In the instant case, it is not the case of the petitioners before this court at this stage that there was any bonafide mistake in connection with filing of application before MADA or filing of the mutation receipt before MADA for the purposes of sanction of the plan and otherwise also such points can be taken at appropriate stage and cannot be appreciated to quash the impugned order taking cognizance as well as for quashing the entire criminal proceedings against the petitioners. 21. Under the totality of the facts and circumstances of this court is not inclined to exercise power under Section 482 of the Cr. P.C. to quash the entire criminal proceedings against the petitioners considering the allegations which has been levelled against the petitioners. Accordingly, this application is hereby dismissed. 22. It is observed that dismissal of this petition will not prejudice the case of either parties before the learned court below. 23. Interim order, if any, stands vacated. 24. Pending I.A., if any, stands dismissed. 25. Let this order be communicated to the court concerned through FAX.