IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRD DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No3905 of 2005 Between: Amurtlal, S/o. Ramji Bhai, R/o. Subhashnagar, Nizamabad. ..... PETITIONER AND 1 State of Andhra Pradesh, rep by Inspector of Police, III Town Police Station, Nizamabad. 2 Additional Judicial Magistrate of 1st Class, Nizamabad. 3 Senior Civil Judge, Nizamabad. 4 I. Gopal Sharma, S/o. late I.S. Sharma, R/oD.No. 5-6-475, Pragathi Nagar, Nizamabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an appropriate Writ, Order or direction more particularly one in the nature of Writ of Mandamus by declaring the action of the respondents in not sending the Agreement of Sale dated 16-1-1995 to hand writing expert and based on the same not taking any legal action against the 4th respondent in wholly illegal, arbitrary, unconstitutional and violative of Article 14 and 21 of Constitution of India and consequently direct the 2nd respondent to transfer the Agreement of Sale deed 16-1-1995 filed in O.S. 42 of 2000 to the 4th respondent and further direct the 3rd respondent to send the same to Hand Writing Expert and based on the said report take further action per law in the interest of justice and pass such other order or orders as this Hon'ble Court deems fit and proper in the circumstances of the case Counsel for the Petitioner:MR.PRATAP NARAYAN SANGHI Counsel for the Respondent No.: GP FOR HOME The Court made the following: Form-NIC-OGS/WP{RLD} THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No.3905 of 2005 O R D E R: It is the case of the petitioner that he is the absolute owner of the property admeasuring Ac.4.22 gts. in Sy.Nos.215, 216, 218, 236, 238, 239 and 242, situated at Nizamabad near Phulong bridge, leading to Hyderabad road. It is stated that one Mr.V.Srikanth, represented by his Advocate I.Gopal Sharma, 4th respondent herein and another Advocate filed a suit being O.S.42/2000 against the petitioner herein by creating and forging a document i.e. agreement of sale dated 16.01.1995 for specific performance of the said agreement on the file of the Senior Civil Judge’s Court, Nizamabad. It is stated that the said suit was filed alleging that the defendant therein i.e. the petitioner herein entered into agreement of sale having received Rs.3 lakh out of total sale consideration of Rs.4,50,000/- and later on failed to receive the balance sale consideration and come to execute the sale deed. It is stated that a written statement was filed by the petitioner herein in the said suit O.S.42/2000 on the file of the Senior Civil Judge’s Court, Nizamabad, denying all the allegations made in the plaint and stated that the said agreement of sale is a forged and created document by the plaintiff therein for the purpose of filing of the suit, and the signatures in the said document do not belong to the defendant (petitioner herein) and the defendant (petitioner herein) did not sign the said agreement of sale. It is further stated that having come to know about the sinister design of the plaintiff and others to illegally deprive the petitioner herein from his valuable land with the help of forged and fabricated agreement of sale, the petitioner herein lodged a complaint with the Superintendent of Police, Nizamabad and a case was registered in Cr.No.137/2000 of P.S.Town-III of Nizamabad, dated 05.05.2000 for the offence under Sec.471, 468, 385 and 506 of IPC against three accused, among them the 4th respondent herein is one of the accused. It is stated that the petitioner herein filed I.A.28/2001 in O.S.42/2000 on the file of the Senior Civil Judge, Nizamabad for sending the said agreement of sale dated 16.01.2001 to the hand writing expert for his opinion and report regarding the signature found on the document along with admitted signatures of the petitioner herein. The said petition was allowed by order dated 16.04.2001, observing that the said document i.e. agreement of sale dated 16.01.1995 be sent to the hand writing expert for comparison of the admitted signatures of the defendant (petitioner herein), but the question of sending the document immediately to the hand writing expert or the same is to be sent to the hand writing expert after the plaintiff commences its evidence and gets the document marked as exhibit will be decided later on hearing both the counsels. It is stated that during course of investigation of Cr.No.137/2000 on the file of Town-III P.S. Nizamabad, as the document was required for investigation and for seeking the opinion of hand writing expert, the 1st respondent herein filed Crl.M.P.3670 of 2000 on the file of the Additional Judicial Magistrate of First Class, Nizamabad in Cr.No.137/2000 of P.S.Town-III Nizamabad seeking to call for the disputed document i.e. agreement of Sale dated 16.01.1995 from the Senior Civil Judge, Nizamabad which was filed in O.S.42 of 2000. The learned Magistrate dismissed the said application by order dated 06.12.2000 holding that the Criminal Court cannot call for the document from the Civil Court on the request of the police. It is stated that the plaintiff in the said suit Sri V.Srikanth having realized the forgery in collusion with the other accused, including the 4th respondent herein, he remained absent in prosecuting his own suit and for the obvious reasons, he got the suit dismissed for default. It is stated that the learned Senior Civil Judge by order dated 09.07.2003 dismissed the said suit for default. It is the case of the petitioner that in fact the police investigated the case thoroughly and came to prima facie opinion about the commission of the offence by all the three accused including the 4th respondent herein, and accordingly, filed charge sheet on 20.08.2003 on the file of the Additional First Class Magistrate, Nizamabad, but the same was returned on 05.09.2003 with an endorsement that Xerox copy of the agreement of sale was not sent to Forensic Science Laboratory for comparison of the signature with the admitted signatures. Accordingly, the 1st respondent filed a petition on 20.11.2003 before the Senior Civil Judge, Nizamabad in O.S.42/2000, requesting the Court to send the original agreement of sale to the Court of Additional Judicial Magistrate of First Class, Nizamabad for onward transmission of the same to the Forensic Science Laboratory, but the said petition was returned by the learned Senior Civil Judge on 05.04.2004 on the ground that the suit filed by the plaintiff in O.S.42/2000 itself was dismissed on 09.07.2003. Thus, it is the case of the petitioner that though the forgery/fabrication of the document was established during police investigation, but the case could not be tried for want of original document and the opinion of the Forensic Science Laboratory, and therefore, as he has no other efficacious alternative remedy except invoking the extraordinary jurisdiction of this Court, filed the present writ petition seeking Writ of Mandamus directing the learned Senior Civil Judge, Nizamabad to send the agreement of sale dated 16.01.1995 filed in O.S.42/2000 to the Court of Additional Judicial First Class Magistrate as requested by the Investigating Officer, the 1st respondent. In the instant case, the efforts made by the petitioner for sending the said document in the civil proceedings while the suit was pending could not be materialize, though the application filed by him for sending the forged document was allowed, but the same was not sent to the hand writing expert on the ground that the question of sending the document immediately to the handwriting expert or the same is to be sent to the hand writing expert after commencing evidence and get the document marked as exhibit, to be decided later. So also the efforts made by the Investigating Officer for transfer of the document filed before the learned Senior Civil Judge, Nizamabad to the Additional Judicial Magistrate of First Class, Nizamabad in order to send the same to the Forensic Science Laboratory could not be materialize, as the learned Senior Civil Judge, Nizamabad dismissed the application of the Investigating Officer on the ground that the suit was not pending. As there is prima facie case made out as per the charge sheet said to have been filed by the 1st respondent before the Judicial Magistrate of First Class, Nizambad and which was said to have been returned on 05.09.2003 for want of original agreement of sale and the report of the Forensic Science Laboratory, I am of the opinion that it is a fit and proper case where a direction requires to be issued to the learned Senior Civil Judge, Nizamabad in respect of sending the disputed document i.e. agreement of sale to the Additional Judicial Magistrate of First Class, Nizamabad so as to enable the Investigating Officer to place a requisition for sending the said agreement of sale for the opinion of the Forensic Science Laboratory and to take appropriate action in Cr.No.137 of 2000 of P.S.III-Town, Nizamabad. Having regards to the facts of the case, the Writ Petition is disposed of, directing the 3rd respondent-the learned Senior Civil Judge, Nizamabad to send the original agreement of sale dated 16.01.1995, if it is available as on date in the disposal suit O.S.42/2000, to the 2nd respondent-theAdditional Judicial Magistrate of First Class, Nizamabad within a period of two weeks from the date of receipt of a copy of this order, and soon after receipt of the said document by the 2nd respondent, the 1st respondent-the Inspector of Police, III Town Police Station, Nizamabad may file an application before the 2nd respondent for sending the said agreement of sale to Forensic Science Laboratory for comparison of disputed signatures with the admitted signatures and take appropriate action. No order as to costs. ___________________ V.ESWARAIAH,J Dated: 03.07.2008 Dsr Note: Communicate the order to the concerned immediately. B/o Dsr ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 State of Andhra Pradesh, rep by Inspector of Police, III Town Police Station, Nizamabad. 2 Additional Judicial Magistrate of 1st Class, Nizamabad. 3 Senior Civil Judge, Nizamabad. 4.2CCs to 5.2CD copies