Halli Judicature at Bombay disposed of a writ petition challenging a magistrate's order issuing process in a forgery complaint arising from an agreement to sale dispute. The court held prima facie that the complaint discloses an offence and dismissed the petition.
The writ petition was dismissed. No costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
9-crwp2066-2022.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.2066 OF 2022
Manoj Lachhmandas Jagwani…Petitioner
V/s.
Naresh Manoharlal Vazirani & Anr.…Respondents
Digitally signed by ATUL ATUL GANESH GANESH KULKARNI KULKARNI Date: 2022.11.23 11:02:40 +0530
Mr. Rajiv Patil, Senior Advocate with Mr. Ojas
Kocharekar for the petitioner.
Mr. Vinayak R. Patil for respondent no.1.
Mr. A.R. Patil, APP, for respondent no.2/State.
CORAM :AMIT BORKAR, J.
DATED:NOVEMBER 22, 2022
P.C.:
1.The original accused in a complaint for offence under
sections 464, 465, 467 and 471 of the Indian Penal Code is
challenging the order dated 11th January 2022 passed by the
learned Judicial Magistrate First Class, Ulhasnagar issuing process/
2.The respondent is original complainant who has filed R.C.C.
No.1567 of 2021 alleging that in the year 2009 there was
agreement to sale executed between the complainant and the
accused. Total consideration agreed was Rs.1,90,00,000/- (Rupees
One Crore Ninety Lakh Only), out of which the accused paid
Rs.25,00,000/- (Rupees Twenty Five Lakh Only) as earnest money.
The balance amount of earnest money of Rs.1,65,00,000/- (Rupees
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One Crore Sixty Five Lakh Only) was required to be paid before
31st March 2010. As the accused could not complete the
transaction, the transaction was canceled by executing deed of
cancelation dated 18th July 2013. It is also averred that the
petitioner issued notice for cancelation of agreement to sale and
refunded amount of Rs.25,00,000/- (Rupees Twenty Five Lakh
Only) to the original complainant.
3.The petitioner thereafter filed Regular Civil Suit No.241 of
2018 for permanent injunction restraining the complainant from
creating third party rights over the property which was the subject
of matter of agreement to sale of 2009. The Civil Court granted
temporary injunction in favour of the petitioner restraining the
complainant from creating third party rights.
4.According to the complainant, in the said civil suit the
complainant came to know about the alleged agreement executed
in the month of January 2014. According to the complainant, he
sought report of the handwriting expert and after getting the
report of the handwriting expert filed present complaint. The
learned Magistrate by order dated 11th January 2022 issued
process against the petitioner which was challenged by the
petitioner by way of Criminal Revision Application No.12 of 2022
which has been dismissed by the impugned order. Aggrieved
thereby, the accused has filed present writ petition.
5.Mr. Rajiv Patil, learned senior advocate submitted that the
filing of complaint is nothing but abuse of process of Court as the
same has been filed as a counter-blast to the suit for injunction
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filed by the petitioner. He submitted that in spite of execution of
agreement of 2014, no specific plea was raised in the written
statement disputing the execution of the agreement to sale. He
submitted that the averment in the complaint that the
complainant had taken loan from the accused and towards
repayment of the same cheque dated 14th July 2015 was issued is
unbelievable. He submitted that on reading of the complaint as a
whole the initial ingredients of the offence against the petitioner
are not made out.
6.Per contra, Mr. Vinayak Patil, learned advocate for the
complainant invited my attention to the complaint filed by the
petitioner with the concerned police station on 8th May 2017,
wherein it is stated that cheque of Rs.5,00,000/- (Rupees Five
Lakh Only) bearing No.000590 dated 13th December 2013 drawn
on the Bank of India, Ulhasnagar was issued towards consideration
of agreement of 2009. He submitted that apart from the said fact,
the handwriting expert report supports the contention of the
petitioner that the signature on the agreement to sale of 2014 was
not of the complainant. He invited my attention to the specific
averments made in the complaint which are sufficient to constitute
offence alleged against the petitioner. He submitted that the
learned Magistrate while issuing process has considered in detail
necessary factors and after application of mind has issued process
which has been confirmed by the revisional Court by reasoned
judgment.
7.Having considered the submissions made on behalf of both
sides, in my opinion, prima facie, there appears to be substance in
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the contention raised on behalf of the complainant that there are
specific averments made against the accused which are sufficient
to constitute offence alleged against the petitioner. In so far as the
contention raised on behalf of the petitioner that filing of
complaint is a counter-blast to the suit filed by the complaint, it
needs to be noted that the complaint is based on the handwriting
expert’s report who has opined that the signature on the disputed
agreement is not of the complainant. In paragraph 14 of the
complaint, the reasons for demonstrating difference in signatures
have been quoted. It is mentioned that plasticity of disputed and
admitted signature is different. Line of quality is also different.
Various other factors also stated in the complaint to show that the
signature was not that of the complainant. Apart from the said
circumstance, the complaint filed by the petitioner with the
concerned police station clearly states that cheque no.000590
dated 13th December 2013 drawn on the Bank of India was issued
as a consideration for agreement of 2009. The cheque number
mentioned in the disputed agreement to sale and the date are
same.
8.Ultimately whether the document in question is forged or
not is to be decided by the learned Magistrate after granting both
parties opportunity to lead evidence by holding full-fledged trial.
On the basis of the material available with the learned Magistrate,
the learned Magistrate has issued process by giving plausible
reasons. There is no perversity nor miscarriage of justice.
9.There is no merit in the petition. The petition is, therefore,
dismissed. No costs.
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10. It is made clear that the observations made above are
restricted to the decision of the present petition. The learned
Magistrate shall not be influenced by any of the observations made
above while deciding the complaint on merits.
(AMIT BORKAR, J.)
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2 issues framed by the court
Whether the complaint based on a handwriting expert report disclosing forged signature and cheque details discloses a prima facie case forgery under sections 464, 465, 467 and 471 of the Indian Penal
Whether the filing of the complaint amounts to abuse of process of court as a counter-blast to a civil suit filed by the petitioner.
1 provisions across 1 enactments
Manoj Lachhmandas Jagwani
Naresh Manoharlal Vazirani & Anr.
Amit Borkar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court