1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH : NAGPUR Criminal Revision No. 49 of 2016 Applicant : Smt [ENTITY] wd/o [ENTITY], being L. R. of deceased [ENTITY] (original complainant), aged about 52 years, Occ: Household, resident of Lala's Chawl, Near Railway Station, Amraoti, Versus Respondents: 1. [ENTITY], aged about 42 years, Occ : Business, resident of Ambika Nagar, Amraoti 2. [ENTITY], through City Police Station, Amraoti Shri [ENTITY], Advocate for applicant Shri [ENTITY], Advocate for respondent no. 1 Ms [ENTITY], Addl. Public Prosecutor for respondent no. 2-[ENTITY]
Criminal [CASE NUMBER] Applicant : Smt [ENTITY] wd/o [ENTITY], being L. R. of deceased [ENTITY] (original complainant), aged about 52 years, Occ: Household, resident of Lala's Chawl, Near Railway Station, Amraoti, Versus Respondents: 1. [ENTITY], aged about 55 years, Occ : Advocate, resident of Mangilal Plots, Camp, Amraoti
2. [ENTITY], through City Police Station, Amraoti Shri [ENTITY], Advocate for applicant Shri [ENTITY], Advocate for respondent no. 1 Ms [ENTITY], Addl. Public Prosecutor for respondent no. 2-[ENTITY]
Criminal Application No. 333 of 2014 Applicants : 1) [ENTITY], aged about 59 years, Occ: Business, resident of Paragaon Prints, Basapura, Hyderabad (AP)
2) [ENTITY] s/o Kodumal Khemchandani, aged about 56 years, Occ: Business, resident of Ambika Nagar, Amravati versus Respondents : 1) Smt [ENTITY], aged Major, resident of Lal's Chaul, Station Road, Amravati
2) The [ENTITY] Shri [ENTITY], Advocate for applicants Shri [ENTITY], Advocate for respondent no. 1 Ms [ENTITY], Addl. Public Prosecutor for respondent no.2-[ENTITY] Coram : [ENTITY], J Dated : 22nd February 2018 Oral Judgment
1. These criminal revisions filed under Section 397 of the [ACT] and criminal application filed under [SECTION] of the [ACT] (for short, "[ACT]") are being disposed of by this common judgment as they arise out of the same orders.
2. Before we deal with merits of the case, I find it necessary to clarify that the learned Magistrate who issued process by the order passed on 21.5.2011 in Regular Criminal Case No. 64 of [SECTION]7 committed a mistake by showing that [SECTION] of the [ACT] (for short, "[ACT]") is punishable offence whereas the fact is that [SECTION] [ACT] only defines the offence of forgery which has been made punishable depending upon the acts committed, under [SECTION] [SECTION] [ACT]. But, the issuance of process by the learned Magistrate for an offence punishable under [SECTION] [ACT] shows that the learned Magistrate has not been careful enough in understanding the provisions of law contained in Chapter XVIII of [ACT], which starts with the definition of offence of forgery given in [SECTION] [ACT].
3. A complaint was filed originally by [ENTITY] and after his death during the pendency of complaint, it was prosecuted by his widow [ENTITY] who is revision applicant in Revisions No. 49 of 2016 and 50 of 2016 and respondent no. 1 in APL No. 333 of 2014. The complaint was filed against four persons named as accused. In this complaint, [ENTITY] was made as accused no. 1; [ENTITY] was made accused no. 2; [ENTITY] was made accused no. 3 and one [ENTITY], advocate was made accused no. 4. Accused no. 2 [ENTITY] is respondent no. 1 in [CASE NUMBER] and accused no. 4 [ENTITY] is respondent no. 1 in [CASE NUMBER]. Accused nos. 1 and 2 are the applicants in APL No. 333 of 2014. In all these matters, [ENTITY] is respondent no. 2. For the sake of convenience, parties shall now be referred to as the "complainant"; accused nos. 1 to 4" and the "[ENTITY]".
4. It all started with filing of Regular Civil Suit No. 257 of 1996 before the Court of Joint Civil Judge, Senior Division, Amravati by accused no. 1 through his constituted power of attorney. The suit was for enforcing the specific performance of contract dated 24.7.1995 allegedly executed by complainant as owner and in possession of field survey numbers 125 and 133 situated at mouza Rahatgaon, Pragane Nandaonpeth, Tahsil and District Amravati to sell the same to accused no.
1. The suit was filed by accused no. 1 through his constituted power of attorney (accused no. 3 [ENTITY]). After appearance of complainant in that suit, the complainant filed an application under [SECTION], [SECTION] of the [ACT] seeking better particulars. Reply vide exhibit 14 to this application was filed by accused no. 3 [ENTITY] claiming himself as a special power of attorney holder for accused no. 1. This reply was signed by accused no. 4. Thereafter, there have been several applications filed for grant of adjournment by accused no. 3 acting as constituted attorney for accused no. 1, which were also duly endorsed by accused no. 4.
5. On 8.7.[SECTION]3, a list of documents vide exhibit 61 came to be filed on behalf of accused no. 1. It was accompanied by some documents. One document with which we are concerned in the present case, was the document of power of attorney executed by accused no. 1, originally in favour of accused no. 3. It was marked as exhibit 52. It was noticed by the complainant that name of [ENTITY], appointed as power of attorney by accused no. 1, was scored out and name of accused no. 2 [ENTITY] was inserted. At that time, it appears, the complainant did not make any allegation of forgery against all or any of the accused persons. However, later on, the complainant made these allegations as the trial of the suit proceeded further. The complainant also alleged that this power of attorney (exhibit 62) was a forged document in the sense that it was a false document created intentionally and knowingly by all the accused persons. Accused nos. 1 to 3 were tried to be implicated for the criminal act of forgery by making an allegation that scoring out was made by entering into a conspiracy to cheat the defendant and accused no. 1 was sought to be implicated by alleging that he wilfully assisted accused nos. 1 to 3 in commission of criminal act of forgery knowing it well that the power of attorney was not executed by accused no. 1 in favour of accused no. 2 [ENTITY].
6. The trial of the suit was concluded and the result was that of dismissal of the suit. The suit was dismissed by the Joint Civil Judge, Senior Division, Amravati by his judgment and decree dated 10 th March [SECTION]5. In the judgment, the learned Civil Judge dismissed the claim of forgery made by the complainant against all the accused persons although the learned Civil Judge noted in paragraph 31 of the judgment that there were certain doubtful circumstances. The learned Judge elaborated no further to explain what were exactly the doubtful circumstances in his opinion, but he was clear enough in holding that there was no forgery and he even recorded a finding that there was another document, registered power of attorney vide exhibit 84, which ratified whatever acts were done by accused no. 2 [ENTITY] acting as an agent of accused no. 1 purportedly under the previous power of attorney vide exhibit 52.
7. After the dismissal of suit on 10th March [SECTION]5, the complainant did not raise the issue of commission of offence of forgery and using the forged document for cheating and giving false evidence before the Court for quite considerable period of time. However, on 2nd February [SECTION]7, a complaint was filed by the complainant before the Court of Chief Judicial Magistrate which was registered as Regular Criminal Case No. 64 of [SECTION]7 alleging that all the accused committed offence of forgery by creating false document and using that document, gave false evidence in the civil suit being [CASE NUMBER]. In the list of witnesses, name of the complainant was mentioned. The other witnesses were indicated as one hand-writing expert to be named during the course of proceedings, officers of the court, if required and any other witnesses, as may be revealed during the course of verification. Along with the complaint, copy of the judgment and decree rendered in [CASE NUMBER] on 10 th March [SECTION]5 was also annexed.
8. The learned Magistrate recorded verification statement of the complainant and statement of notary Shri [ENTITY] from Hyderabad. On perusal of these statements and also the documents filed along with complaint, learned Judge was satisfied that a prima facie case was made out to constitute the offences punishable under [SECTION], [SECTION], [SECTION] and [SECTION] read with [SECTION] of the [ACT]. Accordingly, the learned Magistrate issued process for these offences against all the accused persons by the order passed on 21.5.2011.
9. The said order was challenged before the Sessions Court by all the accused persons by filing two criminal revision applications being [CASE NUMBER]. [CASE NUMBER] was filed by accused nos. 1 to 3 while [CASE NUMBER] was filed by accused no. 4. They were decided by a common judgment dated 8.1.2014 by the learned Additional Sessions Judge who held that no prima facie case was made out against accused nos. 3 and 4 and it was made out against accused nos. 1 and 2 and, therefore, he partly allowed [CASE NUMBER] and fully allowed [CASE NUMBER]. Not being satisfied with the same, the complainant as well as accused nos. 1 and 2 are before this Court in the present revisions and application.
10. I have heard Shri [ENTITY], learned counsel for the complainant; Shri [ENTITY], learned counsel for accused nos. 1 to 3 and Shri [ENTITY], learned counsel for accused no. 4. I have also heard Ms [ENTITY], learned Additional Public Prosecutor for respondent no. 2 [ENTITY]. I have gone through the impugned judgment and order as also record of the case.
11. The only point which arises for my determination is :
Whether the order of issuance of process passed by the learned Magistrate against the accused persons is legal and correct, requiring no interference ?
12. The principles governing discretion of the Magistrate to issue process under [SECTION] [ACT] are well settled. They can be summarised in few lines following next. The Magistrate must be satisfied that there are sufficient grounds for proceeding further in the matter. In order to satisfy himself as to whether or not sufficient grounds exist, the learned Magistrate must apply his mind to the facts contained in the complaint and also alleged by the witnesses, if any. The learned Magistrate is also required to read these facts without adding anything therein or without subtracting anything therefrom. If the attached documents are relied upon, the learned Magistrate is also required to look into the same so as to find out, whether or not, prima facie, the ingredients of the alleged offences are found to be present. In the process, the learned Magistrate must not take into consideration the defence of the accused and as a matter of fact, the accused persons do not come into picture at all at the stage of issuance of process. No detailed analysis of the complicated questions of facts must be made and it is not necessary that detailed reasons should be given for reaching a conclusion about making out of prima facie case or otherwise. It is also not necessary that all witnesses named in the list supplied by the complainant be examined subject , of course, to provisions of law contained in proviso to [SECTION] [ACT], and if the Magistrate is satisfied by going through the statements of some of the witnesses that the offences are prima facie constituted by accepting the allegations at their face value, the Magistrate would have no option but to proceed further in the matter by issuing process under [SECTION] [ACT] If some of the witnesses were left out by the complainant, consequence of such non-examination is required to be considered at the trial and not at the stage of issuance of process. These are the principles which are now well entrenched in the criminal jurisprudence of this country. They have been set out in several judgments of the Hon'ble Apex Court some of which have been relied upon by learned counsel for the complainant. These principles have also been followed by the Courts subordinate to the Hon'ble Apex Court whose judgments rendered in some cases have also been referred to me by learned counsel for the complainant. These cases are - (1) [ENTITY] s/o Premraj Bora & ors v. Pandir s/o Ramji Bari & anr 2013 ALL MR (Cri) 3381.
(2) Vinod Raghuvanshi v. Ajay Arora & ors IV (2013) CCR 267 (SC) (3) [PRECEDENT] Mehtab Khan & ors v. Sarfaraz Khan Hussain Khan & ors [SECTION]1 Cri. L. J. 895 (5) [PRECEDENT] Bhumanna Piraji Narod v. The [ENTITY] & anr 2011 ALL MR (Cri) 3324
13. These principles clearly indicate that if the allegations made in the complaint, when taken at their face value and accepted as they are, do not prima facie constitute any offence, no process under [SECTION] [ACT] can be issued. These principles are also laid down in the case of [ENTITY] of Haryana & ors v. Bhajan Lal & ors reported in 1992 SCC (Cri) 426 relied upon by learned counsel for accused nos. 1 to 3. In this case, the Hon'ble Apex Court in paragraphs 101, 102 and 103 has observed that the power to quash the proceedings or the first information report must be exercised when the proceedings are manifestly seen to be in abuse of the process of any court or when it is necessary to secure the ends of justice. The Hon'ble Apex Court has observed that though such power should be exercised very sparingly and with circumspection, it can be exercised when the criminal proceeding is seen to be manifestly attended with malafides or is clearly barred by law.
15. Bearing in mind the well-settled position of law, let us now examine if the allegations made by the complainant against the accused taken at their face value and as they are, without taking into consideration the defence of the accused persons, indicate any sufficient grounds for proceeding in the matter or not.
16. In the present case, what lies at the base of the allegations is the forgery of power of attorney vide exhibit 52 committed by accused nos. 1 to 4, having common intention. In order that an offence of forgery is prima facie constituted, it is necessary that the document alleged to be forged is prima facie shown to be a false document. The falsity of the document would be shown in a prima facie manner if it could be prima facie said that the signature appearing thereon of a person is not of that person, who is the author of the document. The other way of so doing so is to show that prima facie, the contents are not endorsed to and signed by the person whose signature purportedly appears below the document.
17. In the present case, it is not the allegation that the power of attorney (exhibit 52) does not bear the signature of accused no. 1. It is also not the allegation that this document is not executed by accused no.
1. The allegation is that though it was executed by accused no. 1 in the name of [ENTITY] (accused no. 3), his name was scored out and by forgery, name of accused no. 2 [ENTITY] was inserted by accused no. 4 under his own hand. The complainant, however, does not disclose the source of her knowledge about scoring out the name of accused no. 3 and insertion of the name of accused no. 2 by accused no. 4 under his own hand. She does not say that she had seen such scoring out and insertion being made by accused no. 4 himself. Now, if there is no allegation made in the complaint that the complainant himself had seen the act of forgery being committed by accused no. 4 in order to give benefit to the remaining accused persons, the complainant would be required to spell out the circumstances which would indicate that this was prima facie done by accused no. 4 and was done with an intention to cause wrongful gain to the remaining accused persons. These circumstances would also have to be indicative of the fact that the scoring out of the name of accused no. 3 [ENTITY] and insertion of the name of accused no. 2 [ENTITY] was made in a false manner in the sense that it was without any apparent authority given by the principal who had initially appointed accused [ENTITY] as his attorney. However, the complaint maintains complete silence in this regard. On the contrary, the complaint clarifies that such acts of scoring of the name of accused [ENTITY] and insertion of the name of accused [ENTITY] was subsequently ratified by accused no. 1. This ratification has been done by accused no. 1 by executing a registered power of attorney which is at exhibit 84. It was registered on 1.10.[SECTION]4. These are the facts even admitted by the complainant.
18. Even if it is presumed that the acts of scoring out of the name of accused no. 3 [ENTITY] and substituting his name by the name of accused no. 2 [ENTITY] was without authority of the accused no. 1, the principal, who initially appointed accused no. 3 as his attorney, still, it would have to be shown, prima facie, by the complainant that such manipulation with power of attorney (exhibit 52) was done without any authority of accused no. 1 and was not acceptable to accused no. 1. This is a case where these circumstances have not been indicated in any manner in the complaint or the statement of witnesses and what has been indicated in the complaint, on the contrary, are the circumstances which go to show, as per the own case of the complainant, without making any addition to it or subtracting anything from it, that the said manipulation was duly ratified by accused no. 1 through a registered document, which was another power of attorney executed in the year [SECTION]4.
19. Learned counsel for accused nos. 1 to 3 at this juncture has invited my attention to the provisions contained in the [ACT] governing the ratification. These provisions are from [SECTION] to [SECTION]. [SECTION] is about the effect of ratification. It lays down that where the acts are done by one person on behalf of another but without his knowledge or authority, the principal may elect to ratify or to disown such acts and if he does ratify them, the same effect will follow as if those acts have been performed by the authority of the principal. [SECTION] says that such ratification may be express or may be implied in the conduct of the person on whose behalf the acts are done, thereby indicating that the ratification can be construed not necessarily on the basis of a registered document, but also through the conduct of the parties. [SECTION] lays down that when a person ratifying the act of his agent possesses a materially defective knowledge of the relevant facts, any ratification made by him shall not hold good in law. [SECTION] and [SECTION], which are very important from the view point of the complainant must also be seen. [SECTION] lays down that when the principal ratifies any unauthorized act done on his behalf, he ratifies the whole of the transaction of which such act formed a part. [SECTION] prescribes that because of the act not backed by any authority of the person on whose behalf the act is performed, some damage has been caused to a third party, such damage to the third party cannot be said to have that effect, once ratification of that act is done by the person on whose behalf the act was performed.
20. In the present case, the complainant admits that there has been a ratification of the acts performed by accused [ENTITY] for accused no. 1 through a registered document. Once such ratification has been made and has not been shown to be based upon materially defective knowledge of accused no. 1, all the effects in law as are contained in [SECTION] of the [ACT] will follow, which will make not only the alleged unauthorized acts performed by accused no. 2 [ENTITY] for accused no. 1 as the proper and authorized acts, but will also result in removing the effect of damage, if any, caused to a third party by the previous unauthorized acts. If this is the effect of ratification of the acts of accused no. 2 [ENTITY], and also his subsequently being appointed as power of attorney by accused no. 1 vide exhibit 84, it cannot be said that any manipulation done in the document vide exhibit 52 involved any criminal act muchless it made the document at exhibit 52 a false document. Even if it is presumed, although there is no sufficient material available on record to draw such a presumption, just for the sake of argument, that the manipulation was intentionally done by accused no. 4, as alleged, such manipulation cannot be seen to have been done to create a false document which is the basic ingredient constituting an offence of forgery as defined under [SECTION] of the [ACT].
21. I have already pointed out, while discussing the facts of the case, that the judgment and decree in [CASE NUMBER] rendered on 10th March [SECTION]5 was forming part of complaint filed against accused nos. 1 to 4. This document clearly holds that by the subsequent document vide exhibit 84, accused no. 2 was empowered by accused no. 1 to conduct the suit. Of course, in the same paragraph 31, the learned Civil Judge has also noted that there were certain doubtful circumstances. But, I must say, he has not elaborated them. It appears to me that these observations were not considered by the learned Magistrate while issuing process against all the accused, even though he noted that he had perused the documents filed with the complaint. Once it is admitted by the complainant in the complaint itself that there was ratification of the acts of accused no. 2 [ENTITY] performed by him on the basis of power of attorney vide exhibit 52, the effect of [SECTION] and [SECTION] of [ACT] would come into play and would make all the previous acts, though unauthorized, as authorizedly and properly made on behalf of accused no.
1. So, the allegations taken at their face value and without considering anything submitted in defence by the accused persons, clearly show that essential ingredients constituting offence of forgery are absent in this case and as such, prima facie, no offence of forgery has been shown to be made out by the complainant. Besides, no explanation to the inordinate delay occurred in filing of the complaint has been given which only strengthens the conclusion so drawn. The other allegations are only the fall out of the allegations about offence of forgery and, therefore, I find that even the other offences alleged against the accused persons, which are offences punishable under [SECTION], [SECTION] and [SECTION] of the [ACT] are not prima facie made out. There is not present on record any material sufficient for proceeding further in the complaint filed by the complainant against the accused persons. The discretion exercised by the learned Magistrate in issuing process against all the accused persons is arbitrary and perverse, being the result of non-consideration of the material available on record and also ignoring the applicable principles of law set out earlier. Such an order cannot be sustained in the eye of law.
22. It would then follow that the dismissal of revision application filed by accused nos. 1 and 2 by the learned Additional Sessions Judge was illegal requiring interference while allowing of the criminal revision application against accused nos. 3 and 4 was legal and proper. The point is answered accordingly.
23. [CASE NUMBER] are dismissed. [CASE NUMBER] is allowed. The proceedings under Regular Criminal Case No. 264 of [SECTION]7 are hereby quashed and set aside and the complaint stands dismissed against all accused persons. Record and Proceedings be sent back.
[ENTITY], J joshi