Dismissed

Hemachand Gupta v. Harikishan Agarwal

Telangana HC19 Jul 2022CRLP/3063/2019

Case brief

AI extract

What is this about?

The High Court dismissed a Criminal Petition seeking quashing of proceedings for cheque bounce and forgery. The Court held that since the alleged forgery related to a document filed in a civil suit and not produced in the criminal trial, Section 195 Cr.P.C. did not bar the proceedings. The Court rejected the plea to wait for the civil trial's conclusion and directed the trial to proceed.

What did the court decide?

Criminal Proceedings C.C.No.160 of 2018 to proceed against the accused without being influenced by the Court's observations.

Hemachand Gupta Vs Harikishan Agarwal — Quashing and FIR | Telangana HC (2022)

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[^32s9 ]

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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TUESDAY ,THE NINETEENTH DAY OF JULY TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE Dr. JUSTICE D.NAGARJUN

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CRIMINAL PETITION NO: 306 3 0F 2019

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Between:

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!9n1qqng1_a_Cqpta,^{S/o.Late S.M.Gupta, aged about 49 years, Occ Business,} N o.LlG-1 122, Udaynagar Colony, S. R. Nagar, Hyderabad:500038.

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...PETITIONERYACCUSED

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AND

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HarikishanAgarurral, S/o.Late Chandulal Agarwal, aged about 57 years, cJo.19-1 -927 I 1 2, Bahadurpura, Hyderabad.

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The- State of Telangana, Rep.by its Public Prosecutor, High Court of Judicature, Hyderabad

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...RESPONDENTS

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Petition under section 482 of cr.p.c praying that in the circumstances stated in the Memorandum of Grounds of criminal petition, the High court may be pleased to quash the proceedings in c.c.No.160 of 201 g on the file of the court of ll Additional Chief Metropolitan Magistrate at Nampally, Hyderabad.

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l.A. NO: 1 OF 2019

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Petition under section 482 of cr.p.c praying that in the circumstancEs stated in the Memorandum of Grounds of criminal petition, the High court may be pleased to grant stay of all further proceedings including presence of the petitioner in c.c.No.160 of 2018 on the file of the court of ll Additional chief Metropolitan Magistrate at Nampally, Hyderabad.

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t.A. NO: 1 0F 2022

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Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to extend the interim order dated 301912019 granted in Crl.P.No.3063 of 2019 until fu(her orders pending disposal of the above Crl.P. in the interest of justice.

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This Petition coming on for hearing, upon perusing the Memorandum of Grounds of Criminal Petition and upon hearing the arguments of Sri K. Sai Babu, Advocate for the Petitioner and the Assistant Public Prosecutor (TG) on behalf of the Respondent No-2 and of Sri Pawan Kumar Agarwal, Advocate for the Respondent No.1 .

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The Court made the following: ORDER

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THE HON'BLE DR. JUSTICE D.NAGARJUN

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CRIMINAL PETITION N0.3063 of2OL9

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ORDER:

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This Criminal Petition is filed under Section 4g2 of the Code of Criminal Procedure by the petitioner-accused for quash of the proceedings against him in C.C.No. 160 of 2Ol8 on the file of learned IIl Additional Chief Metropolitan Magistrate at Nampally at Hyderabad registered for the offence under Sections 42O,468 and 471 of the Indian Penal Code.

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The facts in brief as can be gathered from the record available before this Court are as under: a) The petitioner-accused and respondent No. 2 - de-facto complainant are the relatives. On 02.O9.20O3 the respondent No. 2 - de-facto complainant has purchased two mulgies (shops) under registered sale deeds from its original owner one Prabhakar Reddy. Those two mulgi shops were leased out in favour of the petitioner on 07.01.2003. On the lease deed the petitioner-accused obtained the signatures of respondent No. 2 -^{de-factocomplainant} and his sons while promising to hand over the original lease deed after signing on each paper. However, the petitioner-accused has signed only on the lirst

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paper and did not sign on rest of the papers of the original lease deed

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b) The petitioner has called the respondent No. 2 - de-facto complainant to the shops and was forced to sign on the Memorandum of Understa.nding without going through its contents in the presence of brother in law of respondent No. 2 - de-facto complainant i.e., LW4 and LWs 2 to 5. The respondent No. 2 - de-facto complainant has paid Rs.6 lakhs by way of cheque and Rs.2 lakhs by way of cash to the petitioner-accused, on which the petitioner has handed over the vacant possession of the shops to him.

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c) The respondent No. 2 - de-facto complainant has leased out shop bearing No.C- 12 to S.Yadava Reddy, who is the Proprietor of M/s. A.R. Enterprises to run Idea Store. Similarly the respondent No. 2 - de-facto complainant has leased out Shop C-13 to one Pankaj Bansal to run mobile accessories. The petitioner-accused stood as one of the witnesses in the lease deed. On 15.01.2017 Pankaj Bansal vacated the shop as he has sustained losses. On which person belonging to A-1 Motors has approached the respondent No. 2 - de-facto complainant and expressed his interest to take the shop on lease. On coming to

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'(r

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know about the same, the petitioner-accused with a dishonest intention has erected a sign boa_rd on the shop as Adarsh Motors. The respondent No. 2 - de-facto complainant has liled a complaint before the S.R.Nagar police Station, for which the petitioner-accused has expressed apologz and again handed over tJle vacant possession of the shop to the respondent No. 2 _ de-facto c-omplainant by removing the sign board and other material.

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d) The petitioner-accused has Iiled civil suit in O.S.No.33l of 2Ol7 on the file of V Junior Civil Judge, City Civil Court, Hyderabad with a forged lease deed, as if the respondent No. 2 - de-facto complainant has leased out the shop to the petitioner_ accused. On the complaint given by the respondent No. 2 _ d.e.,facto^{complainant, the} Police, S.R.Nagar has registered a case in Crime No.187 of 2Ol7 for the offences under Sections 42O,46a and 47I of the Indian^penal Code. During the course of investigation, the Police have not only examined the witnesses but also sent the admitted document along with disputed lease deed to the hand writing expert. The hand writing expert after examining the documents has submitted a report that ttre admitted signatures of the respondent No. 2 - d.e_facto complainant and the signature alteged to have been signed by

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the respondent No. 2 - de-facto complainant on the photocopy of the lease deed are not same. The police have filed charge sheet alleging that the petitioner-accused has committed offence punishable under Sections 420, 46g and 4Z 7 of the Indian Penal Code and the said charge sheet is numbered as C.C.No.160 of 2018 on the f-rle of [l Additional Chief Metropolitan Magistrate at Nampally at Hyderabad.

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Aggrieved by the proceedings in C.C.No. 16O of 20lg on the file of III Additional Chief Metropolitan Magistrate at Nampally at Hyderabad, the petitioner - accused has filed the present criminal petition on the following grounds:

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i) The trial Court should have waited until the trial in civil Court is completed and basing on the finding of t1.e civil Court in respect of forgery or otherwise of the document, the matter should have taken cognizance by the criminal Court.

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ii) The opinion of the hand writing expert is incorrect, as his opinion is based on the photocopy of the lease deed and therefore, prayed the Court to quash the proceedings against him in C.C.No. 160 of 2018 on the Iile of III Additionai Chief Metropolitan Magistrate at Nampally at Hyderabad.

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Heard Mr.K.Sai Babu, learned counsel for the petitioner and also Mr.S.Ganesh, learned Assistant Public Prosecutor. There was no representation on behalf of respondent No. 1. Even after giving time, none has appeared on behalf of the respondent No. 1 and thus, the arguments on behalf of respondent No.l are treated as heard. However, on behalf of State Mr.S.Ganesh, learned Assistant Public Prosecutor has defended the Respondent No. l.

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Now the point for determination is:

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"Whether the proceeding against petitioner/accused in C.C.No. 16O of 2018 on the frle of III Additional Chief Metropolitan Magistrate at Nampally at Hyderabad, can be quashed under Section 482 of the Code of Criminal Procedure?

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The case of the prosecution is that the shops belonging to de-facto complainant were leased out to the petitioner-accused, who has handed over the shops back to the respondent No.2 - de-facto complainant. Later both the shops were leased out to two different persons under the lease deeds, wherein the petitioner-accused has also signed as witness. However, when one of such shops was fell vacant, the petitioner-accused has forcibly put up sign boards and hurriedly hled O.S.No.331 of

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2077 and obtained status,,uo orders basing on the lease deed allegedly executed by de_factocomplainant. On the other hand, the petitioner_accused has submitted that the lease deed, which he has filed in O.S.No.33l of 2OlZ on the Iile of V Junior Civil Judge, City Civil Court, Hyderabad is a forged one.

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On the strength of the complaint by the respondent No.2 _ de-facto complainant, police have registered the case against ttre petitio ner-accused for the offence under Sections 42O,46g and 471of the Indian penal Code. During the course of enquiry, the Police have sent the photocopy of the lease deed and also certain documents, wherein the admitted signatures of the de_ facto complainant are there to Forensic Sci ence Laboratory, who gave report that the signature on the photocopy of the lease deed are not similar to that of the admitted signarure of the de_ facto complainant in other document.

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B. The dispute between the parties revolves around the lease deed. The question is whether the lease deed has been signed by the de-facto complainant or not is the issue. It is submitted by the learned counsel for the petitioner that the finding of the hand writing expert is incorrect as the said report is based on the photocopy of the lease deed. It is to be nobd that it is for

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the hand writing expert alone to explain as to whether it is permissible to glve a finding based on the photocopy of the document as to whether the signature on the photocopy of the document is genuine or not. For that the evidence of expert has to be recorded and expert is expected to explain the method in which he has concluded that the signature on the photocopy of the lease deed is not the admitted signature of the de_facto complainant. Therefore, basing on the submissions made by the learned counsel for tl.e petitioner that the hand writing expert cannot compare the signature of the de_facto complainant on the basis of photocopy, the proceedings against the petitioner in C.C.No. 160 of 2018 cannot be quashed.

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Further, the Poiice have recorded the statements of witnesses alleging that the shops were originally leased out in favour of the petitioner and subsequently he has vacated, on which those shops were leased out to two oth€r persons under the lease agreement, and, when one of the shops was vacated, the petilioner has erected banner and placed other materials and filed a civil suit basing on a forged document. Thus, the facts raised by the de-facto complainant have been denied by the petitioner-accused. Hence, those facts a,lleged by him have to be proved by the d_e-facto complainant by producing

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witnesses and on examination of such evidence, the trial Court will have to conclude as to whether the petitioner has committed the offences as alleged.

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10 Therefore, in view of the disagreement in respect of factual rssues between the parties, this Court in a petilion under Section 482 of the Code of Criminal procedure cannot decide to the effect that there is no case at all against the pedtioner_ accused

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1 1 . The other importaat aspect raised by the petitioner is that since the petitioner has liled O.S.No.33l of 2O7Z on the file of V Junior Civil Judge, City Civil Court, Hyderabad on the strength of lease deed alleged to have been executed by the de-facto complainant, the said Civil Court has to colclude the trial and give a finding as to whether the document produced by the plaintiff therein is a forged one or not.

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Section 195 (b)(ii) of the Code of Criminal procedure imposes a bar for taking cognizance of offencc under Section 47 I of tirre Indian penal Code, in case, if it is alleged that offence is allegedly committed in respect of document produced in evidence. Section 19S (bxii) of the Code of Criminal procedure reads as under:

"795. Proseantion for contempt of lauful authoritg of public seruants, for offences against public justice and for offences relating to doanm-ents giuen in euid.ence.

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(1) No CourT shall take agnizance-

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(a) (4 of ang offence punishable under sections 172 to 188 (both inclusiue) of the Indian Penal Code (45 of 186O ), or

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(ii) of any abetment of, or attempt to commit, such offence, or

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(iii) of ang criminal conspiracg to commit such offence, except on the complaint in uriting of the public seruant concerned or of some other public seraant to tuhom Le is administratiuely sub ordinate ;

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(b) (4 of ang offence punislnble under ang of tlLe follorting^{sections of tlrc IndianPenol} Code (45 of 1860 ),^{namelg, secfions 193} to^{196 (both} inclusiue), 199, 200, 2OS to 211 (both inclusiue) and 228, uhen such offence is alleged to haue been committed in, or in relation to, ang proceeding in ang Court, or

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(ii) of any offence ,described in section 463, or puni.shable under section 471, section 475 or section 476, of the said Code, uhen such offence is alleged to h,aue been committed in respect of a docament produced or giuen in euidence in a proceeding in anA Court, or (iii) of ang criminal conspiracg to commit, or attempt to commit, or the abetment of, ang offence specified in subclause (i) or sub- clause (it), except on tle complaint in witing of that Court, or of some other Court to u_thich tLlat Court is subordinate. "

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Learned counsel for the petiLioner has filed an authoritlr

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reported in K.Anitha vs. G.Subbaiahl, wherein it was held as follows:

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"Section 195 Cr.P.C. prouides for proseantion for contempt of lawful autFaitA including tlw Court for offences punishable unfi.er Sections 172 to 188 IPC. A perusal of sub-section (t)(b) of Section 195 Cr.P.C.

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'^zoos 1o;^{elo ne}

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discloses ttnt a amplaint in this regard ha.s to be made when the offence is alleged to haue been mmmitted. i4 or in relation to, anq proceeding in tlrc Court.

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A conclusion, referable to sttb_section (l)(b) of Section 195 Cr.p.C. can be atriued at only uhen a fullfledged trial takes place and one partg to th.e proceedings proues to the satisfaction of tle Court that a doanment h-as been fabricated or forged. bg tLe other partg. As a matter of fact, the ciuil Court must record_ a finding^to that effect. It is onlg then, tlat an occasion toould arise for initiation of steps und.er Section 195 Cr.P.C., that too, by follouing the procedure prescibedunder Section 340 Cr.p.C. Section 340 Cr.p.C. itself mandates that the ciuil Court must recard. a finding to the effect that an offence, uhich is mentioned. in sub_ section (1)(b) of Section 195 Cr.p.C. Lr.;.s been committed..

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In tLe instant ca.se, no triat uorth its name has taken place, obuiouslg, on account of the nonparticipotion of ttrc respond.ent in it. In cose, the application filed under Order D{ Rule 13 CpC is alloued-, an occasion mag aise for the Court to und.ertake tial. If during tle course of tial, tle respondent is abte to establish that ang documents relied. upon bg tle petitioner are forged, then, the feasibility of directing tLe steps under Sections 1gS and. 34O Cr.p.C. can be examined. In tLe present cirannLstan@s, ttrc ord_er under reui.sion cannot be sustained_ in law. As a matter of fact, the I.A.No.BZ3 of 2OO7 b premature. A retief of tlnt nature can be claimed onty if a tial, with the

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participation of parties taken place, ond finding is recorded by the trial Court to the effect that tLe documents relied upon bg tle parties are forged..

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If an offence is committed before the Court in relation to or in respect of proceedings in a Court, only after full fledged triai, after recording a finding, only then steps under Section 195 of the Criminal Procedure Code have to be initiated after following the procedure prescribed under Section 340 of the Code of Criminal Procedure.

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However, in the case on hand, the allegation of the de_ facto complainant is that the accused has created a document, as if shops were leased and filed before the Court in O.S.No.331 of 2Ol7 on the file of V Junior Civil Judge, Cit5r Civil Court, Hyderabad. It is not the case of the petitioner-accused that forging of the document was done after the document was filed in the Court in O.S.No.33l of 2OlT on the file of V Junior Civil Judge, City Civil Court, Hyderabad. Hence, the bar under Section 195 of the Code of Criminal procedure will not apply in the case on hand.

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In view of the above facts and circumstances, the proceedings against the petitioner-accused in C.C.No. 160 of

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2018 on rhe file of learned III Additional Chief Metropolitan Magistrate at Nampaly at Hyderabad cannot be quashed. Trial Court is directed to proceed with the trial against the petitioner -^accused uninfluenced by the observations and comments made by this Court in this order on merits of the case.

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Accordingly, the Criminal petition is dismissed. As a sequel, pending miscellaneous applications, if any, shall stand closed_

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SD/.B.SATYAVATHI DEPUTY REGIS //TRUE COPY//

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To,

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SECTION FFICER

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The lll Additional Chief Metropolitan Magistrate at Nampally, Hyderabad. 2. The Station House Officer, Sanjeevareddy Nagar police Station, Hyderabad.

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One CC to Sri K. Sai Babu, Advocate tOpUCl

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..^{4. One CC to Sri pawan} Kumar Agarwal, Advocate [OpUC]

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Two CCs to the public prosecutor, High Court for the State of Telangana at Hyderabad. [OUT]

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Two CD Copies gbr

HIGH COURT

DATED: 1910712022

1:i
:i \t
2 0 DEI ?122
.. .. ) '/

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ORDER

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CRL.P.No.3063 of 2019

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DISMISSING THE CRIMINAL PETITION
I
^l/

Hemachand Gupta v. Harikishan Agarwal

Case brief

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Hemachand Gupta v. Harikishan Agarwal

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