S.v.Ramasamy Vs The Inspector of Police

PRAYER:- To call for the records pertaining to the impugned charge sheet filed by the 1^st respondent under C.C.No.66 of 2016, on the file of the VI Judicial Magistrate, Madurai and to quash the same.

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Crl.OP.(MD)No.3973 of 2023

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ORDER

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The present petition is filed to quash charge sheet filed by the 1^st respondent in C.C.No.66 of 2016, on the file of the Judicial Magistrate VI, Madurai for the alleged offences under sections 468 and 471 of IPC.

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2.1. The brief facts of the case are that the petitioner is a supplier of

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hardware materials used in construction and the defacto complainant is a builder and they have business transactions on multiple occasions from 1996 to 2008. According to the petitioner based on the statement of accounts dated 06.05.2008 a sum of Rs.7,21,460/- was payable by the 2^nd respondent towards the materials supplied and the 2^nd respondent failed to settle the outstanding amount despite repeated demands. Hence, the petitioner filed civil suit in O.S. No. 111 of 2011 on the file of V Additional District Judge, Madurai inter alia praying to recover the said amount and produced statement of accounts and credit statements marked as Exhibits A9 and A10. On the side of the 2^nd respondent, eleven cash vouchers have been produced. During the pendency of the civil suit, the 2^nd respondent approached the Judicial Magistrate under Section 156(3) of the Code of Criminal Procedure for registration of FIR for the allegation that the petitioner had committed forgery in Exhibit A10 by making

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certain interpolations. It was further alleged that in the cash vouchers in the possession of the 2^nd respondent, the petitioner had deliberately affixed his signatures in different styles with an intention to cheat him and the said petition was allowed and FIR was registered by the 1^st respondent police. Subsequently, without conducting a proper investigation, a charge sheet was filed for offences under Sections 406, 420, 468, and 471 of the Indian Penal Code.

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2.2. Aggrieved over the charge sheet, the petitioner preferred quash petition in Crl.O.P.(MD)No.13298 of 2016 on the file of High Court and vide order dated 05.02.2020, this Court partly allowed the petition and quashed the proceedings insofar as the offences under Sections 406 and 420 of the IPC on the ground of lack of sufficient material to establish those charges. However, with regard to the offences under Sections 468 and 471 IPC, the charge sheet was sustained. Insofar as the civil proceedings are concerned, the original suit in O.S.No.111 of 2011 was dismissed on 30.03.2015 on the ground that the petitioner had not properly maintained the accounts. Aggrieved by the same, the petitioner preferred an Appeal Suit in A.S.(MD)No.97 of 2016 on the file of High Court wherein the appellate court set aside the findings of the trial court and remitted the matter back for the limited purpose of examining the genuineness of the disputed vouchers produced by the 2^nd respondent which

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were marked as Exhibits B49 and B52 to B58. Further, this Court has categorically held that Exhibit A9, which was alleged to be a forged document, is in fact a genuine document and inspires confidence. In view of the aforesaid subsequent developments, the present quash petition is filed to quash the other sections 468 and 471 of IPC.

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Heard Mr.M.Saravanan, the Learned Counsel appearing for petitioner and Mr.A.S.Abul Kalaam Azad, Learned Government Advocate (Criminal Side) appearing for the 1^st respondent and perused the records.

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Notice was issued to the 2^nd respondent, vakalat was filed, counter was filed, however had not appeared on the date of hearing. This Court perused the counter and proceeded with the hearing. After hearing the rival submissions, this Court had given it anxious consideration.

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The allegation is under sections 468 and 471 of IPC and the said sections are extracted hereunder:

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"468. Forgery for purpose of cheating. —Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall

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also be liable to fine.

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471. Using as genuine a forged document or electronic record. — Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record."

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The sections would be attracted when a person commits forgery for the purpose of cheating and using the document as genuine for the purpose of cheating. In the present case, the defacto complaint alleges that the accused had forged the statement of accounts as if the defacto complainant ought to pay amount to the accused and also forged the cash vouchers, credit statements and other documents by signing it differently and used the same as genuine for the purpose of cheating. Based on the said documents the petitioner had filed suit inter alia praying for recovery of money in O.S. No. 111 of 2011 and the same was dismissed. By relying on the dismissal of the suit, the complaint under section 156(3) was preferred by the defacto complainant. Aggrieved over the dismissal of the suit the accused / petitioner had preferred A.S.(MD)No.97 of 2016 on the file of High Court and the same was allowed by remanding the case for re-consideration.

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It is seen that Hon’ble High Court in Appeal Suit had held that the alleged forged document i.e. the statement of accounts marked as Ex.A9 inspire the confidence of the Court. Further the Court has not held that the Ex.10 statement of accounts as forged document. It is pertinent to record the present criminal case was filed alleging that the said Ex.A9 and Ex.A10 are forged. Hence it is necessary to refer to the relevant paragraph of the judgment rendered in Appeal Suit and the same is extracted hereunder:

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“4.I carefully considered the rival contentions and went through the evidence on record. The points for consideration arising in this appeal are three fold(s). A) Whether the suit has to fail because the plaintiff failed to maintain the books of accounts in their regular Course of business. B) Whether the second defendant can be fastened with any personal liability. C) Whether the defendants have proved Exs.B49 to B58. I must straightaway uphold the contention of the learned counsel for the respondents that the books of accounts have not been maintained in a proper manner. I find them to be intrinsically unreliable. But the question is whether the suit can be dismissed on that sole ground. If the plaintiff can otherwise establish the defendants' liability, then, failure to maintain proper books of accounts alone cannot result in non-suiting of the plaintiff. In the case on hand, the plaintiff had anchored his entire case more on the defendants' acknowledgement on Ex.A9 and A10 than on his books of account. Ex.A9 inspires my confidence. In Ex.A9 which was received by the defendants on 06.05.2008, the liability of the defendants had been quantified at Rs.6,30,760/-. It is not in dispute that Ex.B49 to B58 are subsequent to 06.05.2008. Ex.B49 is dated

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08.05.2008 while Ex.B58 is dated 20.02.2009. A simple addition of the amounts covered under Exs.B49 and B58 comes to Rs.6,40,500/-. From this I am able to conclude that the plaintiff has proved the liability under Ex.A9. Thereafter, the onus clearly shifted to the defendants to show that through Exs.B49 to Ex.B58, this liability has been liquidated. In fact, that is precisely the stand of the defendant also. Since the plaintiff has been in the habit of receiving payment through open cheque, payment under Ex.B50 and Ex.B51 has been proved. The same cannot be revisited. That leaves us with the payments said to have been made vide vouchers Exs.B49, B52 to B58. The signatures appearing in those vouchers have been specifically denied by the plaintiff.

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5.Therefore, as rightly pointed out by the learned counsel appearing for the appellant, the defendants ought to have got those documents referred for the opinion of the handwriting expert. Admitted signatures of the plaintiff are very much available on record. Such an exercise was not undertaken by the defendants. The court below also failed to invoke its jurisdiction under Section 73 of the Indian Evidence Act. In these circumstances, the counsel on either side submitted that if the matter is remitted to the file of the trial court, the parties may be given one more opportunity to test the genuineness of the aforesaid exhibits. In this view of the matter, the impugned judgment and decree of the court below is set aside. The appeal is allowed and the matter is remitted to the file of the trial court. The defendants shall file an application for referring the aforesaid exhibits for the opinion of the handwriting expert. The disputed signatures will be compared with the contemporaneous admitted signatures of the plaintiff. After getting the opinion of the expert, the court below shall dispose of the matter on merits and in accordance with law. The contention of the defendants as regards the

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second point for consideration is left open. The claim of the plaintiff under Ex.A10 is also left open. The evidence already adduced shall remain on record. Of course, the handwriting expert will have to be examined before the court below after his report is marked. Since the matter is being remitted to the trial court, the appellant will be entitled to refund of the court fees. Since the suit is of the year 2011, the court below shall endeavor to conclude the same within a period of nine months from the date of receipt of copy of this judgement. The first appeal is allowed on the above terms. No costs. Consequently, connected miscellaneous petition is closed.”

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When the High Court had held the plaintiff (the petitioner herein) had anchored his entire case more on the defendants' acknowledgement on Ex.A9 and A10 than on his books of account and the said document in Ex.A9 inspires the confidence of the Court, then the Ex.A9 and A10 cannot be considered as forged documents. Then the very basis of the criminal complaint has lost the ground.

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Further the Hon’ble High Court had held that the plaintiff (the petitioner herein) has proved the liability under Ex.A9 and the onus had shifted to defendant (the defacto complainant herein) to show that through Exs.B49 to Ex.B58, this liability has been liquidated. Based on the above observations the case has been remanded for reconsideration. In such circumstances, the alleged

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document cannot be considered as forged. Therefore, the criminal case has no basis at all and the same ought to be quashed. Accordingly quashed.

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10. For the reasons stated above, the C.C.No.66 of 2016, on the file of the VI Judicial Magistrate, Madurai, for the alleged sections 468 and 471 of IP C is hereby quashed. The Criminal Original Petition is allowed. Consequently, connected miscellaneous petition is closed.

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24.04.2026

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TMG

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TO 1. The Learned Judicial Magistrate No.VI Madurai.

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