This court dismissed an application for anticipatory bail in a forgery case where the accused alleged that civil documents forming the basis of possession were forged, rejecting the argument that a pending civil suit negates criminal liability.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO.1133 OF 2013
Hazra Mustak Ahmed Kazi .. Applicant. Vs. State of Maharashtra & Anr. .. Respondents.
Mr. S. R. Chitnis, Sr. Advocate i/b Prakash Naik for the applicant.
Ms. A. A. Mane APP for the State.
Mr. Aaditya Arvind Gore for the intervenor.
CORAM : A. H. JOSHI, J.
DATED : 23RD OCTOBER, 2013.
“(a) This Hon'ble Court be pleased to pass an Order and decree against the Defendant declaring that the
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alleged Deed of Conveyance dated 15th December, 1971 being and alleged Power of Attorney dated 11th April, 1972 both annexed to Exhibit “J” allegedly executed by the Champaklal Kalidas Sayani are forged, fabricated, fraudulent, invalid, inoperative, unlawful and void ab-initio.”
(quoted from page 270 of the paperbook)
The other prayers in said suit are ancillary.
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cognizance the informant filed private complaint in the court of Metropolitan Magistrate, sometime in May 2005. On 2nd November, 2012 the learned Metropolitan Magistrate passed the order on said complaint and directed the police to take cognizance and investigate the matter and complaint reported therein.
(a) The dispute between the parties is admittedly a dispute of purely civil nature.
(b) The dispute being of civil nature is proved from filing of Suit No.3038 of 2011, first in sequence of events.
(c) Whenever any dispute between the parties is purely of civil nature, the filing of criminal
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complaint cannot be seen as bonafide action.
(d) Complainant had approached police by written complaint dated 2nd December, 2011 and police did not take cognizance should weigh in favour of applicant, to mean that there is no merit in the complaint and also that it is a dispute of purely civil nature.
(e) The fact that civil suit is filed, it is pending, and injunction has been granted in favour of the plaintiff, are not disclosed by the respondent in the report lodged before the police as well as in the complaint filed before the Metropolitan Magistrate.
(f) Disclosure of information as regards suit in the complainant filed before Magistrate was necessary and failure to do so be regarded as suppression.
(g) The action of Magistrate in issuing direction itself is liable to be denoted as improper and erroneous exercise of authority in the background of suppression of civil suit and controversy being purely civil nature.
(h) Once it is demonstrated that exercise of powers of the Magistrate was erroneous, the applicant is entitled for relief of anticipatory bail as necessary corollary though documents disclosing civil suit were annexed to the complaint filed before the Magistrate.
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(i) Considering the facts that dispute is of purely civil nature, though it may be legal, but is not imperative to arrest the applicant or do her custodial interrogation. Therefore, the applicant is entitled for anticipatory bail.
When a dispute of purely civil nature is pending between the parties, possible defence of the accused can be taken into account while considering application for anticipatory bail. In such case the act of lodgment of FIR may be improper and application be favourably considered solely on this ground.
(b) Recourse to action in civil law cannot exclude liability under criminal law. Hence it was well within right of the complainant to make report to police, and because police failed to take cognizance, to file complaint, seek an action under section 156(3) of Cr.P.C.
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(c) The report was lodged with police, but police did not take cognizance, therefore, complaint was filed before the Magistrate.
(d) All documents such as copy of plaint order of injunction and relation documents were furnished before the police alongwith first complaint and were also furnished before the Metropolitan Magistrate. Therefore, there is no suppression whatsoever.
(e) Disclosure in complaint before police and Magistrate by way of narration about the fact of suit is thus matter of formality, and said failure is/was not suppression, when seen from any angle.
(f) The objection that suppression is done totally wrong and has merit.
(g) Forgery is a serious offence. The original documents in possession of the applicant.
(h) The application for anticipatory bail, therefore, deserves to be dismissed.
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At this stage learned Senior Advocate Mr.Chitnis states on instructions from advocate for the applicant that applicant would voluntarily produced documents before the Investigating Officer as early as possible.
(a) It is admitted fact that the applicant claims source of title through gift deed dated 15th December, 1971 and Power of Attorney dated 11th April, 1972.
(b) Suit No.3038 of 2011 is filed by the complainant to seek declaration that those documents are forged.
(c) This court (Justice Vazifdar) has heard the parties in notice of motion in said suit and has recorded finding based on what prima facie appears, at interlocutory stage, that the plaintiff's plea of forgery is prima facie aptly demonstrated, therefore, granted injunction in favour of the plaintiff.
(d) The defendant has filed written statement in
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the said suit on 1st April, 2013.
(e) The defendant – present applicant has filed Civil Suit No.881 of 2013 on 1st October, 2013 and has challenged therein title documents in favour of present complainant, namely, Gift Deed dated 5th February, 1974 and 1st October, 1973.
(f) The grievance expressed in the suit as well as complaint is that the documents relied upon by the accused are forged and fabricated.
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technical, and not a legal ground to show that the cognizance itself is bad. Such contentious plea sounds louder, than a the strength therein as a point of law.
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253 itself is adequate enough to justify complainant's act of approach to Magistrate by filing application and prayed for order under section 156(3). Earlier approach to the police will certainly show punctual action on the part of complainant and it can't be considered as a fact adverse to the complainant.
(A. H. JOSHI, J.)
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2 issues framed by the court
Whether an application for anticipatory bail has merit when the accused disputes the authenticity of civil documents alleged to be forged.
,
Colour shows how this judgement treated each authority
Ravindra Saxena v. State of RajasthanDistinguished¶85
Ravindra Saxena v. State of Rajasthan (2010) 1 SCC 648 · Who else cites this
9 provisions across 2 enactments
Hazra Mustak Ahmed Kazi
State of Maharashtra & Anr.
A. H. Joshi
As recorded by the court registry
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