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2023 DIGILAW 110 (CHH)

Shrimati Anusuiya Dewangan, W/o. Gendram Dewangan v. Shrimati Motim Sahu, W/o. Narendra Kumar Sahu

2023-02-22

RAJANI DUBEY

body2023
JUDGMENT : 1. This acquittal appeal has been preferred against the order dated 23.11.2010 passed by the learned Judicial Magistrate First Class, Gundardehi, District Durg (C.G.) in Complaint Case No.404/2008, whereby the learned Judicial Magistrate acquitted the respondents of the charges punishable under Section 138 of the Negotiable Instruments Act, 1881 and passed stricture against the appellants for institution of criminal proceedings. 2. Brief facts of the case are that the complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 alleging therein that there was agreement between the parties for sale of the land, upon which Rs.2 Lakh was received by the respondents but subsequently the agreement was cancelled by the parties on the ground of registration. Thereafter the cheque of Rs.2 Lakhs was given/returned back by the respondents to the complainant, which she tried to encash in the bank, but the same got dishonored. The complainant intimated the same to the respondents through legal notice, but no heed was paid to the same, which resulted into filing of complaint case before the Trial Court. The complaint filed by the complainants was dismissed by the Trial Court and instead a criminal case was directed to be instituted against the complainant for the reason that the forged and fabricated documents were submitted before the Court, against which the complainant filed criminal revision before this Court bearing Criminal Revision No.127/2011, which was dismissed as withdrawn vide order dated 28.02.2011 with liberty to file acquittal appeal, thereafter the present acquittal appeal has been filed. 3. Learned counsel for the appellant submits that the order passed by the learned Magistrate is illegal and against the provisions of law and also without jurisdiction. In spite of the evidence of PW 1 Ansuiya Dewangan, the complainant, PW 2 Gendlal Dewangan and PW 3 Chandrakishore Sahu, the respondents have been acquitted of the aforesaid charges. The agreement for sale of agricultural land (Ex P- 1) was executed on 18-08-2005 in the presence of both the parties along with witnesses and the appellants had given the advance sale consideration amount of Rupees Two Lakhs to the respondents but they have specifically denied that at the time of execution stamp paper was blank under these circumstance there is no question arise that aforesaid agreement is false and fabricated. Therefore the finding of the learned Court below regarding fabricated document of agreement is illegal and bad in law. The learned Court below completely failed to see that on 15-05-2008 the agreement was cancelled and the respondents had given the cheque (Ex P-2) to the appellants which was submitted by the appellant no. 1 in her account on 13-06-2008 and which was returned back with endorsement that the account has been closed on 25-06-2008 and there is no stigma from the bank that the aforesaid cheque is not proper. Infact the bank returned back the cheque on the ground that the account has been closed. Under these circumstance there is no question arise that the cheque is false and fabricated. Therefore the finding of the court below is perverse and against the provisions of law and liable to be set aside. He further submits that the learned Court below committed grave error by wrongly interpreting the evidence of PW 3 Chandrakishore Sahu though in paragraph 2 he specifically stated that on 18-08-2005 the agreement for sale of agricultural land had been executed and respondents received Rupees Twe Lakhs as advance amount and rest of the amount was to be given to them at the time of execution of the sale deed. In cross examination in paragraph 3 he has specifically denied that it is wrong that after deciding the deal the stamp paper was brought and the contents were recorded on the stamp paper thereafter. Under the these circumstances there is no question arise that the deed of agreement (Ex-P/1) is false and fabricated. Therefore the finding of the learned court below is illegal and bad in law and liable to be set aside. Learned counsel next submits that during pendency of this appeal, the respondent No.2 has died, therefore, he confined his prayer to the finding recorded by the learned trial court against the appellants regarding initiation of criminal proceedings only, therefore, the appeal be decided only for the finding of the trial court against the appellants. Learned counsel next submits that during pendency of this appeal, the respondent No.2 has died, therefore, he confined his prayer to the finding recorded by the learned trial court against the appellants regarding initiation of criminal proceedings only, therefore, the appeal be decided only for the finding of the trial court against the appellants. Learned counsel has placed his reliance upon the judgments rendered by the Supreme Court in the matter of Ratanlal Agrawal vs Sunil Sarawgi reported in (2014) SCC Online Chh 96, B. K. Gupta vs Damodar H. Bajaj and others, reported in (2001) 9 SCC 742 and in the matter of Santokh Singh vs Izhar Hussain and another, reported in (1973) 2 SCC 406 . 4. Learned counsel for the respondents supports the impugned judgment. 5. Heard learned counsel for the parties and perused the record of trial court. 6. 4. Learned counsel for the respondents supports the impugned judgment. 5. Heard learned counsel for the parties and perused the record of trial court. 6. Learned trial Court recorded finding in paragraphs 27 & 28 of the judgment as under:- 27- vr% mRiUu lansg rFkk vuqlwbZ;k nsokaxu ds vLi"V dFku ,oa izeq[k :i ls xSanyky nsokaxu ¼i0lk0 2½ ds feF;k dFku ,ao izMh 1 dh bckjr ds vk/kkj ij fu"df"kr psd izih 2 dh jkf’k ,oa frfFk vkfn dwVjpuk ds izek.k gSaA ,slh fLFkfr esa vfHk;qDrx.k dks ifjoknh ,oa mlds lk{kh xSanyky nsokaxu }kjk fn;s x;s dFku ds vk/kkj ij /kkjk 138 ijdzkE; fy[kr vf/kfu;e ds rgr nks"kh ugh Bgjk;k tk ldrk D;ksafd ;g izekf.kr ugh gS fd vfHk;qDrx.k us izih 2 dk psd vius _.k nkf;Ro ds ,Iekspu ds fy;s fn;k FkkA oLrqr% izMh 1 ds vk/kkj ij vU; fdlh Li"Vhdj.k ds vHkko esa ;g nf’kZr gSa fd vfHk;qDrx.k dk nkf;Ro 2]00000@& #0 dk ’ks"k ugha FkkA vfHk;qDrx.k us ’ks"k jkf’k Hkh nsus dk dFku fd;k gS tks Hkys gh izekf.kr u gks fdUrq lEiw.kZ fu"d"kZ ds rgr tgka ifjoknh us viuk ekeyk lansg ls ijs izekf.kr ugh fd;k gS vkSj feF;k lk{; ds rF; vfHkys[k ij gSa rc izkIr fu"d"kZ ds vk/kkj ij vfHk;qDrx.k dks /kkjk 138 ijdzkE; fy[kr vf/kfu;e 1881 ds vijk/k laca/kh vfHk;ksx ls nks"keqDr ?kksf"kr fd;k tkrk gSA 28- izdj.k esa izkIr fu"d"kZ ls ;g Li"V gSa fd lk{kh xSanyky us dwVjfpr nLrkostksa dk mi;ksx djrs gq, U;k;ky; ds le{k feF;k lk{; fn;k gS vkSj ifjoknh us Hkh lEiw.kZ tkudkjh ds lkFk feF;k nLrkost ds vk/kkj ij izdj.k izLrqr fd;k gSa rc ,slh fLFkfr esa n.M izfdz;k lafgrk 340 ds rgr fofo/k vkijkf/kd izdj.k vuqlwbZ;k nsokaxu ,oa xSanyky nsokaxu ds fo:} ntZ fd;k tkosa D;ksfd vuqlwbZ;k nsokaxu ,oa xSanyky nsokaxu dk d`R; /kkjk 195¼1½¼[k½ nizla dh ifjf/k esa vkrk gSaA^^ ^^ 7. This Court in Ratanlal (supra) in paragraphs 17 & 18 held as under:- 17. In Iqbal Singh Marwah and another Vs. Meenakshi Marwah and another [ (2005) 4 SCC 370 ], the Supreme Court held in para-23 thus:- '23. In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section is conditioned by the words 'court is of opinion that it is expedient in the interests of justice'. In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section is conditioned by the words 'court is of opinion that it is expedient in the interests of justice'. This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the court may not consider it expedient in the interest of justice to make a complaint. The broad view of clause (b)(ii), as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged document remediless. Any interpretation which leads to a situation where a victim of a crime is rendered remediless, has to be discarded.' 18. On the basis of law laid down by the Supreme Court and the facts of the case at hand, the following would emerge:- (a) the affidavit was filed on 10.7.1995; thus more than 19 years have elapsed after filing of the affidavit. (b) while considering the appellant's prayer for cancellation of bail and his affidavit, the Sessions Court did not record a finding that the statement made in the affidavit qua respondent No.1 was false, although it was observed by the Sessions Court that the statement made qua father of respondent No.1 was false. (b) while considering the appellant's prayer for cancellation of bail and his affidavit, the Sessions Court did not record a finding that the statement made in the affidavit qua respondent No.1 was false, although it was observed by the Sessions Court that the statement made qua father of respondent No.1 was false. Thus, there is no finding that because of any statement made qua respondent No.1, his bail was cancelled or affidavit was made to secure his conviction. Ordinarily, the bail is cancelled when the accused has threatened the complainant or his family members. When such threatening is given by any other person, may be relative of the accused, the accused is ordinarily not punished by canceling his bail. (c) While allowing the application under Section 340 CrPC, there is no observation that “it is expedient in the interest of justice” that a complaint should be made against the appellant. In chajoo Ram and Iqbal Singh Marwah (Supra), it has been held by the Supreme Court that powers under Section 340 CrPC should not be readily exercised by the Court. (d) If the complainant or his/her relative is prosecuted for committing perjury, merely on the basis of some incorrect or false statement in the affidavit or in the affidavit in support of application for cancellation of bail, then in such cases despite discreet threatening being given by the accused who is enlarged on bail, the complainant would not dare to move application for cancellation of bail, therefore, in such matters, exercise of powers under Section 340 Cr.PC should not be resorted to on mere asking and without there being any finding that “it is expedient in the interest of justice”. (e) The parties have already entered into MoU/settlement with one of the conditions that after finalization of the present appeal, steps would be taken to withdrawn the pending SLP before the Supreme Court.” 8. (e) The parties have already entered into MoU/settlement with one of the conditions that after finalization of the present appeal, steps would be taken to withdrawn the pending SLP before the Supreme Court.” 8. Adverting to the facts of the present case in light of the aforesaid legal proposition, it is quite vivid that in the case in hand, the learned Trial Court after appreciating the oral and documentary evidence available on record came to the conclusion that the appellant No.1/complainant has failed to prove her case beyond reasonable doubt and directed for initiation of criminal proceedings under Section 340 of CrPC against the appellant No.1/complainant and her husband, the appellant No.2 regarding producing forged and fabricated documents before the Court and recorded a finding that ‘Mithya Sakshya ke Tathya Abhilekh Par Hain', but the respondents/accused admitted in their statements in Question Nos.4 & 9 that they had given blank cheque to the complainant, meaning thereby that the same may have validation or may not be as well, but direction for initiation of criminal case would have been adopted only if the interest of justice requires. The same will normally be judged by the court by weighing the magnitude of injury suffered by the person affected by such forgery or forged document and such document may be just a piece of evidence produced or given in evidence in court. In such circumstances, the court may not consider it expedient in the interest of justice to direct initiation of criminal proceedings against the appellants. 9. In view of the foregoing discussions, this Court is of the opinion that the court below has committed serious error in directing for initiation of the criminal proceedings against the appellants. The impugned finding to the extent of recording of criminal proceedings against the appellants in paragraph 28 is hereby set aside. However, the finding with regard to acquittal of the respondents of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 is affirmed. 10. The appeal is allowed in part.