HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL PETITION No.5194 of 2010 ORDER:- Petitioners herein are 5th, 6th, 7th, 18th, 19th and 20th accused (A5, A6, A7, A18, A19 & A20) I C.C.No.335 of 2009 on the file of the Court of XII Additional Chief Metropolitan Magistrate, City Criminal Courts, Hyderabad (trial Court). They filed this petition under Section 482 of the Criminal Procedure Code (Cr.P.C) to quash the aforesaid criminal case against them. 2. The point that therefore arises for determination in this petition is whether there are grounds for quashing the said criminal case against petitioners. 3. The point arises in the following circumstances. The first and second respondents herein are the complainants and they are husband and wife. They filed a private complaint against 26 accused including the petitioners alleging against them offences punishable under Sections 120B, 182, 193, 209, 420, 468, 471 and 474 of the Indian Penal Code (I.P.C) and Section 107 of the Trade Marks Act, 1999. It is stated that the trial Court referred that complaint to Nampally P.S for investigation and report. The said police registered it as Crime No.207 of 2008 and took up investigation. Later on the said police filed a final report in the trial Court closing the case on the ground that the dispute is a civil dispute. Thereafter it is represented that the second complainant died and the first complainant filed a protest petition raising objection to the final report and requesting the trial Court to take cognizance of the matter. On that petition, the trial Court took cognizance of it for the offences under Sections 182, 193, 209, 420, 468, 471, and 474 I.P.C and Section 107 of the Trade Marks Act and issued process. Thereafter petitioners have come up with this quash petition. 4. The plea of the petitioners is that earlier the complainants filed a complaint bearing S.R.No.2604 of 2005 against these petitioners and others alleging the very same offences in the trial Court, but the trial Court dismissed it on 19.01.2006 holding that there was no ground to entertain the same and again the complainants filed the present complaint without any basis. It is also their case that though the police filed a final report on the present complaint, the trial Court without giving any reason took cognizance of the case ignoring the final report and also the dismissal of the earlier complaint and therefore the present case should be quashed. It is also their plea that the dispute between them is already pending adjudication in a suit O.S.No.1025 of 1993 on the file of the Court of the VI Senior Civil Judge, City Civil Court, Hyderabad and certain other suits and the dispute is of purely civil nature and consequently this criminal case should be quashed. 5. The learned counsel for the petitioners re-iterated the above pleas and argued for quashing the criminal case in question against the petitioners. He also pointed out that the order passed by the trial Court does not contain any reasons for ignoring the final report filed by the police and that it also ignored the dismissal of the earlier complaint and consequently they are added grounds for quashing the case. The petitioner’s counsel also urged that the second complainant is now dead and that is also a ground for quashing the case. 6. On the other hand the first complainant who is an advocate by himself appearing as party in person argued that a case has been made out in the complaint and that the final report filed by the police is illegal and consequently the case need not be quashed and trial Court should be allowed to deal with the matter and decide it. It is also argued by him that though the second complainant is now dead, he is competent to prosecute it as her husband and the death of the second complainant cannot therefore be a ground to quash the case. The point is now taken up. 7. Regarding the effect of the death of the second complainant, it may be noted that when offences are alleged to have been committed especially serious offences like cheating and forgery, they are treated as the offences committed against the society and insofar as this case is concerned the second complainant’s husband can prosecute the same. Hence the death of the second complainant cannot be a ground by itself to quash the case. Now a perusal of the present complaint would show that the second complainant and many of the accused including the petitioners herein are related to her through her father late Mehamood Ahmad. This Mehamood Ahmad is stated to be one of the five sons of one late Mohammed Hussain who started a Beedi business in or around the year 1930 under the name and style of ‘Azam Jadi Beedi’ with a registered trademark. The other details are not necessary. The version in the complaint is that after the death of the second complainant’s father which is said to have occurred in 1992, the second complainant demanded the partition of properties and the business of Beedi from her senior paternal uncle and her other paternal uncles and when they refused for partition, she also filed a suit i.e. O.S.1025 of 1993 for partition of the properties and that is now pending in the Court of VI Senior Civil Judge, City Civil Court, Hyderabad. It is also seen that except A.12, A.24, A.25 and A.26 all the remaining accused are defendants to the said suit. 8. The version pleaded in the complaint is that all the accused created certain false documents to deny the rights of the second complainant to her share of properties and some of them also filed other suits and criminal cases. It is difficult to discuss the nature of each and every document in this petition but in substance this is the allegation made in the complaint. The trial Court took cognizance of the complaint for the offence under Sections 182 I.P.C (giving false information to a public servant), 193 I.P.C which deals with punishment of giving false evidence or fabrication of false evidence, 209 I.P.C (dishonest making of a false claim in a Court), 420 I.P.C (cheating), 468 I.P.C (forging a document for the purpose of cheating), 471 I.P.C (using as genuine a forged document), 474 I.P.C (possessing a forged document intending to use it as genuine) and also Section 107 of the Trade Marks Act which deals with falsely representing a trademark as a registered one while in-fact it is not. 9. What should thus be noted is that the allegations made in the complaint as such cannot be said to be allegations which even if totally believed do not disclose any offences. The various pleas taken by the petitioners herein regarding the merits of the matter fall within the realm of disputed questions of fact and therefore they cannot be decided in this petition and this becomes a ground for dismissal of this petition so far as the merits in the allegations are concerned. 10. The first contention of learned counsel for the petitioners is that a similar complaint was filed earlier with S.R.No.2604 of 2005 and that it was dismissed on 19.01.2006 by the trial Court at the threshold itself and therefore the present compliant is not maintainable. That dismissal order is not placed before the Court but the petitioners have extracted that order in para 4 of this criminal petition while giving the introductory facts. That order as extracted by the petitioners would show that the trial Court then dismissed the complaint on the ground that various documents in respect of which the offences of forgery, and cheating are alleged have already been filed in two suits and also another suit i.e. C.S.418 of 2004 on the file of the High Court of Madras and consequently unless those documents are found to be forged in those suits and a complaint is filed by the concerned civil Court in respect of the same, the complaint cannot be entertained and holding so the trial Court dismissed the said complaint under Section 203 of Cr.P.C. 11. Regarding the above dismissal, it may be noted that the bar under Section 195(1)(b)(ii) of Cr.P.C that when a document is filed in a judicial proceeding an alleged offence of forgery in respect of that document cannot be taken cognizance of by a criminal court unless there is a complaint from the concerned Court in which that document is filed must have weighed with the trial Court. However in IQBAL SINGH MARWAH vs. MEENAKSHI MARWAH[1] it was held by the Supreme Court that the above bar would be applicable only when the above offences in respect of documents are committed when the documents are in the custody of the Court and not otherwise. It was also held in the said decision that the above bar would not apply when the above offences are committed in respect of documents before they are filed in the Court and in such a case both civil proceedings and criminal proceedings can go on simultaneously. 12. It is clear that the above legal position laid down by the Supreme Court in IQBAL SINGH MARWAH’s case (1 supra) was not in the notice of the trial Court. It therefore dismissed the earlier complaint at the threshold on 19.01.2006. In view of this it can be said that the cognizance of the present complaint which can be said to be consistent with the above legal position by the trial Court cannot be faulted as it cannot be a bar for entertaining the second complaint. It therefore follows that the above contentions raised on behalf of the petitioners have to be rejected and they are accordingly rejected. 13. Then turning to the other contention of the petitioners, it is true that the police have filed a final report before the trial Court closing the case treating it as one of civil nature. It is also true that the cognizance order of the trial Court by which it took cognizance of the complaint on a protest petition filed by the complainants does not show that the trial Court has recorded any reasons for disagreeing with the final report filed by the police. It should however be noted that the present impugned cognizance order must be dated 16.12.2008 but the number given to the criminal case is C.C.No.335 of 2009. The present quash petition is dated 17.06.2010. It is not known why petitioners have taken more than 1½ year to file this quash petition. In view of this delay on their part it follows that this Court should not now exercise any discretion to set aside the cognizance order. 14. It should be mentioned here now that taking cognizance for offences under Ss.182, 193 and 209 IPC may be hit by the bar contained in S.195(1)(a)(i) and S.195(1)(b)(i) of Cr.P.C which specify the authorities on whose complaint cognizance of the said offences can be taken. This aspect can be raised by the petitioners before the trial Court and it can examine the same. As there are other offences for which there cannot be any statutory bar and as they can be taken cognizance on the complaint of complainant it is considered unnecessary in this petition to interfere with the cognizance order. It shall be open for the petitioners to raise their objections regarding the cognizance of the aforesaid three offences by a separate application before the trial Court and the said Court may dispose of that application. 15. It may also be noted that it is always open for the petitioners to make an application for discharge and it has been brought to my notice that no such applications have been made by the petitioners and instead they have straight away rushed to this Court. In the circumstances of this case and having regard to the various pleas taken in the complaint and also the pleas of the petitioners, I am of the view that the pleas of the petitioners can be more effectively decided by the trial Court either in an application for discharge or trial. The petitioners can also pursue their remedies if the order of the trial Court goes against them in their application for discharge. In the above circumstances, it follows that this is not a fit case for interference under Section 482 Cr.P.C on the ground that the trial Court has not given any reasons in its cognizance order for ignoring the police report. 16. For the aforesaid reasons the point is decided against the petitioners and this petition is dismissed. ______________________ N. RAVI SHANKAR, J 28th April 2011 Vjl/CVRK [1] 2006(1) ALT (Crl) (SC) 9 = AIR 2005 SC 2119