Allowed

Gunashekar. N v. Station House Officer

Karnataka HC10 Mar 2023CRL.P/5912/2019

Case brief

AI extract

What is this about?

The High Court allowed a criminal petition under Section 482 CrPC to quash proceedings in a case where petitioners were charged with forgery and cheating arising from a signature dispute in a sale agreement used in a civil suit. The court held that the charge sheet relied solely on handwriting expert opinion based on photocopies and violated Section 195(1)(b) CrPC without court complaint.

What did the court decide?

The impugned criminal proceedings in CC No.3782/2016 pending on the file of the Principal Civil Judge and JMFC, Devanahalli, is hereby quashed.

Gunashekar. N Vs Station House Officer — Cheque Dishonour | Karnataka HC (2023)

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CRL.P No. 5912 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF MARCH, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR

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CRIMINAL PETITION NO. 5912 OF 2019

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BETWEEN:

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GUNASHEKAR N S/O. NARAYANASWAMY, AGED ABOUT 69 YEARS, NO.7 & 8, PAMPA EXTENSION, KEMPAPURA, HEBBALA, BENGALURU-560 024.

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SENTHIL RAJAN

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Digitally signed by R HEMALATHA Location: HIGH COURT OF KARNATAKA

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S/O. GUNASHEKAR N, AGED ABOUT 46 YEARS, NO.7 & 8, PAMPA EXTENSION, KEMPAPURA, HEBBALA, BENGALURU-560 024.

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…PETITIONERS

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(BY SRI. SANDESH J. CHOUTA, SENIOR ADVOCATE FOR SRI. CHANDRASHEKARA K., ADVOCATE)

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AND:

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STATION HOUSE OFFICER BAGALUR POLICE STATION, BENGALURU,

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BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGALURU.

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SMT. SRIDEVI W/O M.N. JAHANATH, NO.108/1, 5TH CROSS,

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III MAIN ROAD, MLA LAYOUT, BOOPASANDRA, BENGALURU-560 094.

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…RESPONDENTS

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(BY SRI. VINAYAKA V.S., HCGP FOR R-1; SRI. PRADEEP C.S., ADVOCATE FOR R-2)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.3782/2016 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC, DEVANAHALLI FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 406, 468, 471, 420 R/W SECTION 34 OF IPC.

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THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The 2nd respondent lodged First Information Report alleging that, she had agreed to purchase the subject property from Zareena Taj for a total sale consideration of Rs.1,50,00,000/out of which, she paid a sum of Rs.37,50,000/- by way of cheque dated 27.6.2007, a sum of Rs.50,00,000/- by way of cheque dated 29.12.2007 and a sum of Rs.62,50,000/- by way of cash. However, the vendor stated that the subject property will be conveyed after finalization of the pending litigation. During the month of December 2011, the vendor stated that he has succeeded in the litigation and the subject property will be conveyed after bifurcation of the subject property which formed part of the larger extent of land and accordingly, registered agreement of sale dated 16.2.2012 was executed in her favour.

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During the month of February, 2015 she received summons from the jurisdictional Civil Court, Bengaluru notifying that, accused No.1 has instituted a suit in OS No.316/2015 for specific performance of the sale agreement dated 27.6.2007 in respect of the subject property.

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The accused No.1 - father has forged her signature on the sale agreement and used the said forged agreement to file the suit. The police after investigation, submitted the charge sheet for the offences punishable under Sections 406, 468, 471, 420 read Section 34 of IPC. The learned Magistrate after accepting the charge sheet took the cognizance of the aforesaid offences. Hence, this petition.

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Mr. Sandesh J. Chouta, learned senior counsel for the petitioners counsel would make the following submissions:

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i) In the absence of any legal injury caused to the 2nd respondent, the registration of the FIR culminating in filing of the charge sheet is impermissible.

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ii) The allegations made in the FIR arises out of civil dispute which is pending consideration in OS No.316/2015, however, given a criminal texture to wreak vengeance and with revengeful intent.

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iii) In the absence of any essential ingredients so as to constitute commission of aforesaid offence, the cognizance taken by the learned Magistrate is impermissible.

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iv) The charge sheet laid is only on the basis of the opinion furnished by the handwriting expert , and the said opinion was furnished after comparing the admitted signature with the alleged forged signature on the certified copy of the agreement of sale which has no evidentiary value. In the absence of any corroborative material, the charge sheet laid only on the basis of the allegations made in the FIR by the respondent No.2 is impermissible. In support, he places reliance on the decision of the High Court of Madhya Pradesh in the case of Abhay Jain and others -vs- State of Madhya Pradesh and another (2018 SCC Online MP 1839).

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v) In the agreement of sale dated 16.2.2012, entered into between the 2nd respondent and the vendor of the subject property, there is a mention with regard to payment of the advance sale consideration of Rs.4,00,00,000/- by the 2nd respondent by cheque dated 27.6.2007 in favour of the vendor which payment was made in favour of the 2nd respondent under the agreement of sale dated 27.6.2007 which is the subject matter of the suit. Hence, FIR was lodged with malice and without probable cause.

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vi) Even accepting the allegation made in the FIR that the accused No.1 by forging the signature of respondent No.2 in the sale agreement dated 27.6.2007 has made use of the said document to file the suit, the same constitutes the offence under Sections 192 and 193 of

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IPC. In view of the specific bar contained in Section 195(1)(b) of Cr.PC, the registration of FIR culminating in filing the charge sheet is one without authority of law. In support, he places reliance on the decision of the Hon'ble Supreme Court in the case of Bandekar Bros. (P) Ltd. -vs- Prasad Vassudev Keni (2020) 20 SCC 1.

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On the other hand, the learned counsel for the respondent No.2 would make the following submissions:

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i) In the absence of any express bar contained in Section 195 of Cr.P.C., the 2nd respondent can lodge a FIR alleging forgery of signature by the petitionersaccused on the agreement of sale which is produced along with the plaint before the jurisdictional Court by the petitioners herein.

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ii) The certified copy of the photo copy of original agreement of sale can also be sent for examination to the hand writing expert. The Trial Court de hors the expert opinion can also compare the signatures under Section 73 of the Indian Evidence Act to come to a conclusion as to whether the signature on the agreement of sale is forged or not, and the opinion of the handwriting expert is only a guiding factor.

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iii) The truth Laboratory which has submitted the report stating that signature of the 2nd respondent on the agreement of sale is forged is recognized by the

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Government of Karnataka. Hence, the report submitted by the private laboratory has evidentiary value.

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iv) He further submits that the allegations made in the FIR discloses commission of the aforesaid offences and the veracity of the allegations cannot be gone into at this stage, and the same can be considered only during trial. At this stage, the cognizance taken by the learned Magistrate does not warrant any interference and sought for dismissal of the petition.

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vi) He further submits that to constitute an offence under Sections 192 and 193 of I.P.C., a person must have forged the document which is in the custody of court of law. In the instant case, the document is forged outside the court and by making use of the said forged document has filed the suit.

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vii. In support, reliance is placed on the following decisions:

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a) The decision of the Hon'ble Andhra Pradesh High Court in the case of Kati Maheswara Rao -vs- Uppati Lalitha and others (CRP Nos.5550/2017, DD 1.3.2018)

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b) Smt. R. Suguna -vs- The State of Hoskote Police & Ors, in Crl.P.No.2094/2013 disposed of on 11.2.2019

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c) Sri Y.N. Sreenivasa & Ors -vs- State of Karnataka & Ors in W.P.No.15451/2019 disposed of on 14.10.2022;

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d) M. Krishnan -vs- Vijay Singh & Another, in Appel (Crl) 1020 of 2001 disposed of on 11.10.2001.

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The learned High Court Government Pleader for the respondent No.1 - State reiterated the submission made by the learned counsel for the respondent No.2.

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Considered the submissions of the learned counsel for the parties and perused the material on record.

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The summary of the charge sheet is that the defacto complainant intended to purchase the subject property from one, Zareena Taj, and after negotiation entered into an agreement of sale registered on 16.2.2012 to purchase the subject property for a sum of Rs.1,50,00,000/- by paying advance sale consideration. During the month of February, 2015, the defacto complainant received summons from the Senior Civil Judge, Bangalore Rural at Bangalore, notifying that her father, accused No.1-Gunashekar has filed a suit in OS No.316/2015. The accused No.1 has used the agreement of sale dated 27.6.2007 by forging the signature of the defacto complainant purportedly to show that the said agreement is also executed in her favour along with accused No.1 to file the suit.

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The charge sheet is laid on the basis of the report submitted by private lab agency after examining the admitted signature of defacto complainant with that of the alleged forged signature on the certified copy of the agreement of sale 27.6.2007.

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The Hon'ble High Court of Madhya Pradesh in the case of Abhay Jain and others -vs- State of Madhya Pradesh and another (2018 SCC Online MP 1839) at paras-28 to 49 has held as follows:

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"28. It is not in dispute that in the present case both the experts have taken photographs of disputed signatures/thumb impression from the photocopy of the Will. Photocopy of document itself is neither primary nor secondary evidence. It is not advisable for experts to take photograph of photocopies and base their opinion on such photocopies. Expert should always base his opinion on original documents. When an expert forms his opinion on the basis of photocopies, I feel that the expert has committed mistake and such report cannot be relied upon in absence of any corroborative evidence, which is not available at all in this case.

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29. The expert should form opinion on the basis of study of original document. The reason being that the pressure points are analyzed by the hand writing expert for which original are required. In the absence of original documents, the analysis of a questioned document is limited to the features that survive the copying process. This is like to identify a person behind a cloudy window; the basics are there, but details are missing. What we call the “three-dimensionality” of the original document is lost. Not to mention that if the copy is a copy of a copy, the details become increasingly difficult to verify.

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30. We can highlight some reasons here as to why the level of certainty of an expert opinion is affected by having only copies to analyze.

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Loss of detail - intricate pen direction

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31. Pen direction is a very critical factor in the evaluation of handwriting. Copies make it difficult and sometimes impossible

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to follow intricate writing movements essential for reaching accurate conclusions. Not only is direction important, but also the pressure of the writing instrument can tell us more about the condition of the writer and the writing surface.

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Overall loss of detail - beginning and ending strokes

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32. Natural writing is frequently demonstrated by the tapered beginning and ending strokes. The copying process can eliminate these tapered strokes and make them appear as blunt or chopped off in an otherwise naturally executed signature. Sometimes, blunt ending and beginning strokes are characteristics of “signatures” produced through simulation (emulation) or tracing process.

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Loss of detail - evaluation of line quality

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33. A photocopy of a genuine signature may show “lumpiness” or lack of smooth, clear-cut strokes, resulting in poor line quality (record of the strokes), when in reality the original document may contain good line quality upon examination. Unexpected visual results

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34. If a genuine signature is written under uncommon circumstances, the copying process may make it appear as containing the “tremor of fraud,” giving the appearance of poor line quality. With the examination of the original questioned document, it may be possible to determine that there is an explanation for what appeared to be poor line quality in the copy.

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Hesitations

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35. Hesitations, a pause in the writing line, generally cannot be detected in copies. Hesitations are common artifacts of “forged” signatures or can be a habit of the true writer. With only copies for evidence, this significant characteristic cannot be determined.

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Patching

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36. Patching is the careful retouching sometimes seen in “forged” signatures as a result of the “forger's” perception that the simulation or tracing needs some mending to pass it off as genuine. It is also seen in some people's natural writing but generally cannot be detected and evaluated in copies.

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Fraudulent manipulations

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37. Evidence of cut-and-paste of a genuine signature from a genuine document onto the questioned document cannot always be detected, especially if the genuine signature was added by using computer software.

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Tracings

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38. Traced signature “guidelines” consisting of pencil, carbon or indentations produced with a stylus which correspond with the outline of the genuine signature cannot be conclusively established via the examination of a copy.

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Writing Instrument

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39. While sometimes it is possible with photocopies to make a preliminary determination as to the type of writing instrument used, a definitive determination cannot be made without the original document.

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Paper

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40. Paper can sometime be dated as to its first date of availability through use of watermarks, but obviously this determination cannot be made based on photocopies. Neither can the document be compared as to any other physical characteristics such as the thickness or colour value of the paper.

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Indentations

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41. Occasionally, “indented writings” can be detected with oblique/side lighting or by using a laboratory device on original documents, revealing key information that could resolve some critical issue. While this technique can be applied to photocopies for other purposes, it will not reveal the indentations that are present in the original document.

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Measurements

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42. Accurate measurements cannot be made on photocopies. As a rule, photocopiers do not precisely reproduce the document being copied. Copies impede the reliability of tests that include measuring lines and spaces to determine alterations or insertions in a document.

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Three-dimensional versus two-dimensional images

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43. Photocopies are two-dimensional representations of original documents, which are three-dimensional. Originals disclose all of the physical and optical features of the printing processes and handwriting features. On the other hand, photocopies are high contrast images which leave out all of the mid-tones present in the original images.

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44. Originals are always the best evidence. For a more productive result, both questioned and admitted documents should be in original.

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45. While considering the question as to whether hand writing expert can give opinion on the basis of photocopy, the Hon'ble High Court of Andhra Pradesh replied in Bheri Nageswara Rao v. Mavuri Veerabhadra Rao, AIR 2006 AP 314 that:

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5. The opinion of a hand writing expert involves the analysis of the slant, which a person uses in the matter of putting his signature, and in some cases, the point of time, at which it may have been subscribed. These analyses would become possible

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only vis-a-vis an original signature; and the signature mark on a xerox copy of a document can never constitute the basis.

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46. In the case of Paramesh Chandra Sen (Deceased) v. Sanjukta Mukherjee, AIR 2017 Cal 254 the Calcutta High Court has taken the same view.

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47. Even otherwise opinion of handwriting or finger print expert is a weak type of evidence. Hon'ble the Supreme Court had an occasion to consider the probative value of opinion of the hand writing expert and as to what weightage should be given to it, the Hon'ble Supreme Court opined in S.P.S. Rathore v. C.B.I. reported in (2017) 5 SCC 817 : AIR 2016 SC 4486 that evidence of handwriting expert is only opinion evidence and not conclusive. It cannot be relied upon, unless corroborated by clear direct evidence or by circumstantial evidence. It is thus clear that uncorroborated evidence of a hand writing expert is an extremely weak type of evidence and the same should not be relied upon either for conviction or for acquittal. The courts, should, therefore, be wary to give too much weight to the evidence of handwriting expert. It can rarely, if ever, take the place of substantive evidence. Before acting on such evidence, it is usual to see if it is corroborated either by clear, direct evidence or by circumstantial evidence.

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48. Thus, the law is clear that the opinion of handwriting expert is relevant but not conclusive. It is a fragile type of evidence. It is only corroborative evidence. It's probative value is that only on the basis of expert opinion no conclusion can be drawn if there is no other supportive evidence. It is to be accepted with good amount of circumspection.

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49. It is also clear that it cannot be ascertained as to whether the testator signed the Will or not only on the basis of expert opinion based on photocopies of the Will and if it cannot

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be established, there is no reason to prosecute the accused persons."

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The Hon'ble Andhra Pradesh High Court in the case of Kati Maheswara Rao -vs- Uppati Lalitha and others (CRP Nos.5550/2017, DD 1.3.2018) at page-10 has held as follows:

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"In view of the aforesaid decisions, not only the original document can be sent for expert examination but photographic copies may also send for examination of handwriting expert. In this case, admittedly, petitioner taken certified copy of Ex.A1 and send the same for obtaining the opinion of handwriting expert. Even in spite of availability of expert evidence, the Court can also compare the signatures under Section 73 of Indian Evidence Act and opinion of expert is only a guiding factor and it is for the Court below to examine the entire evidence on record including the evidence of the handwriting expert and come to a just conclusion. As such, dismissal of the application filed by the petitioner by the Court below on this ground by the Court below is erroneous."

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The opinion of the handwriting expert is only a guiding factor and the Magistrate during the course of trial can compare the signatures to come to a conclusion as to whether the signature is forged or not. The police could not have laid the charge sheet only on the basis of the report submitted by the laboratory by examining the alleged forged signature on the certified copy of the agreement of sale which has no evidentiary value.

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Section 195(1)(b) specifies that no court shall take cognizance of any offence punishable under any of the following sections of the Indian Penal Code viz: Sections 193 to 196,

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199, 200, 205 to 211, 228, 463, 471, 475 and 476 when such offence is alleged to have been committed in, or in relation to any proceeding in any Court, except on a complaint in writing of that Court or by such officer of the Court as that Court may authorize in writing in his behalf, or of some other Court to which that Court is subordinate.

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The Hon'ble Supreme Court in the case of Bandekar Bros. (P) Ltd. (supra) at para- 48 has held as follows:

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"48. Equally important to remember is that if in the course of the same transaction two separate offences are made out, for one of which Section 195 CrPC is not attracted, and it is not possible to split them up, the drill of Section 195(1)(b) CrPC must be followed. Thus, in State of Karnataka v. Hemareddy [State of Karnataka v. Hemareddy, (1981) 2 SCC 185 : 1981 SCC (Cri) 395] , this Court referred to a judgment of the Madras High Court (V.V.L. Narasimhamurthy, In re [V.V.L. Narasimhamurthy v. State, 1953 SCC OnLine Mad 236 : AIR 1955 Mad 237] ) and approved its ratio as follows : (Hemareddy case [State of Karnataka v. Hemareddy, (1981) 2 SCC 185 : 1981 SCC (Cri) 395] , SCC pp. 190-91, paras 7-8)

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………….The effect of the allegations in the complaint preferred by the complainant is that the petitioner has caused this will to come into existence intending that such will may cause the Judge before whom the suit is filed to form an opinion that the will is a genuine one and, therefore, his minor daughter is entitled to the property. The allegation, therefore, in the complaint will undoubtedly fall under Section 192 IPC. It will, therefore, amount to an offence under Section 193 IPC i.e. fabricating false evidence for the purpose of being used in the judicial proceeding. There is no doubt that the facts

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disclosed will also amount to an offence under Sections 467 and 471 IPC. For prosecuting this petitioner for an offence under Sections 467 and 471, a complaint by the court may not be necessary as under Section 195(1)(b) CrPC a complaint may be made only when it is committed by a party to any proceeding in any court.

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Mr Jayarama Ayyar does not give up his contention that the petitioner, though he appears only a guardian of the minor girl, is still a party to the proceeding. But it is unnecessary to go into the question at the present moment and I reserve my opinion on the question whether the guardian can be a party to a proceeding or not, as this case can be disposed of on the other point viz. that when the allegations amount to an offence under Section 193 IPC, a complaint of court is necessary under Section 195(1)(a) CrPC and this cannot be evaded by prosecuting the accused for an offence for which a complaint of court is not necessary.’

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8. We agree with the view expressed by the learned Judge and hold that in cases where in the course of the same transaction an offence for which no complaint by a court is necessary under Section 195(1)(b) of the Code of Criminal Procedure and an offence for which a complaint of a court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in Section 195(1)(b) of the Code of Criminal Procedure should be upheld.”

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In the instant case, it is alleged that the document was created by forging the signature of the defacto complainant for the purpose of filing the suit, which constitutes the offence committed in relation to any proceedings in any Court. Hence, in view of the provisions contained in Section 195(1)(b)(i) of Cr.PC, the registration of FIR culminating in taking cognizance

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of the offence on the basis of final report submitted by the police is held to be one without jurisdiction, and the continuation of criminal proceedings will be an abuse of process of law.

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In relation to the forgery of the document which is in the custody of the Court, the provisions of Section 195(1)(b)(ii) of Cr.PC are applicable. Hence, the contention of the learned counsel for the defacto complainant that Section 195 of Cr.PC is applicable only in relation to the forgery of the document which is in custody of the Court is not acceptable.

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The petitioners have been charge-sheeted for the offence punishable under Section 471 of IPC along with other penal provisions which arise out of the same transaction for which Section 195 of Cr.PC is applicable. The Apex Court in the case of Bandekar Brothers Private Limited and another (supra) has held that it is equally important to remember that if in the course of the same transaction two separate offences are made out, for one of which Section 195 Cr.PC is not attracted and it is not possible to split them up, the drill of Section 195(1)(b) Cr.PC must be followed.

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Perusal of the agreement of sale alleged to have been created by forging the signature of the defacto complainant indicates that the vendor had agreed to convey the subject property in favour of the accused No.1 and the defacto complainant for a sum of Rs.4,00,00,000/- out of which a sum of Rs.37,50,000/- by way of cash was received as advance sale

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consideration and a sum of Rs.37,50,000/- by way of cheque dated 27.9.2007 from the defacto complainant was received towards advance sale consideration.

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In the registered sale agreement dated 16.2.2012 executed by the vendor in favour of the defacto complainant, a sum of Rs.37,50,000/- is said to have been received towards advance sale consideration by way of cheque dated 27.6.2007 out of total sale consideration of Rs.1,50,00,000/- and also a sum of Rs.50,00,000/- by cheque dated 29.12.2007 and Rs.62,50,000/- by way of cash. The payment of Rs.37,50,000/by way of cheque dated 27.6.2007 was also a part of the agreement dated 27.6.2007, which clearly implies that after the execution of agreement of sale in their favour, the relationship of father and daughter strained and as a consequence, the 2nd respondent - daughter lodged the FIR against the petitioners.

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There is no allegation against accused No.2 in the FIR and no material is produced along with the charge sheet to substantiate that the accused No.2 committed the aforesaid offences. The only allegation is that he signed the alleged forged document as a witness.

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