1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR RAM BABU GUPTA VS. BHUVNESHWAR DAYAL GUPTA & ORS. SB Criminal Revision Pet. No.3 OF 2008 under Section 397 Cr.P.C. against the order dated August 4, 2007 passed by Judicial Magistrate First Class Mahawa District Dausa in Criminal Case FR No. 29 of 2007 dismissing the protest petition and allowing the Final Report submitted by the Police in a criminal case FIR No.69 of 2007 registered at Police Station Mandawar for offence under sections 420, 467, 468, 471 and 120 B IPC. Date of Order : February 3 , 2009 PRESENT HON’BLE MR. JUSTICE MAHESH CHANDRA SHARMA Mr. J.K.Singhi for the petitioner Mr. S.C.Gupta for the respondents l to 3. Mr. Ganesh Meena, Public Prosecutor. BY THE COURT : The petitioner Ram Babu Gupta, filed Miscellaneous petition on October 3, 2007 before this Court against the order dated August 4, 2007 passed by Judicial Magistrate First Class Mahawa District Dausa in Criminal Case FR No. 29 of 2007 dismissing the protest petition and allowing the Final Report submitted by the Police in a criminal case FIR No. 69 of 2007 registered at Police Station Mandawar for offence under sections 420, 467, 2 468, 471 and 120 B IPC. The miscellaneous petition was registered as S.B.Criminal Misc. Petition No. 1923 of 2007. The petitioner filed an application under section 482 Cr.P.C. On November 23,2007 for treating the aforesaid miscellaneous petition as criminal revision petition. This Court vide order dated December 12, 2007 allowed the application and the miscellaneous petition was treated as Criminal revision. This court by order dated April 15, 2004 issued notice of this criminal revision petition to the non-petitioners and record of this case was also summoned. 2. Briefly stated the facts of the case are that Rambabu Gupta filed an FIR on May 3, 2007 at Police Station Mandawar against Bhuwaneshwar Dayal, Prabhati Lal, and Shyamsunder under sections 420, 467, 468, 471 and 120 B IPC stating therein that these persons committed forgery in relation to his properties and sold the same by preparing a forged document. 3. Mr.J.K.Singhi, learned counsel appearing for the petitioner canvassed 3 that two different FIRs. were filed. In the instant matter FIR No.69 of 2007 was registered. In another case of similar nature FIR No.168 of 2007 was registered. The Magistrate in FIR No.168 of 2007 (FR No.52 of2007) directed for FSL report and re-investigation in relation to agreement for sale dated Feb.24, 2003 executed by Smt. Kesar Devi. In the FIR No.69 of 2007 Judicial Magistrate accepted FR No.29 of 2007 submitted by the police. Thus the Magistrate adopted two different yardsticks in these two cases registered at the Police Station Mandawar. The learned counsel canvassed that the Magistrate should have sent the matter for reinvestigation instead of accepting the FR and atleast should have given an opportunity to the petitioner to prove his case. The Magistrate failed to see that the signatures on the alleged agreement forged by the accused respondents, the police should have obtained the report from the Handwriting Expert. The learned 4 counsel submitted that the investigation in this matter is incomplete and the Magistrate did not consider it fit for reinvestigation and thus committed serious illegality. The learned counsel averred that there was ample material against the accused respondents to proceed further for investigation. The learned counsel canvassed that the signatures of Keshar Devi, mother of the petitioner and accused respondent Bhuvneshwar Dayal Gupta are forged and the police should have sent the matter to the Handwriting Expert for proper investigation. Mr. Singhi in support of his argument submitted photostat copy of report of Dr.Dinesh Sethi, Documents Examiner and Forensic Consultant dated September 21, 2007 stating that the signatures on “Ikrarnama Vikraya” dated 24.2.2003 Hindi Signatures of Keshar Devi marked as Q1 do not agree with signatures on Balance Sheet Statement of Bank of Baroda dated 31.3.2003 marked as A1, A2. Mr. J.K. Singhi in support of 5 his arguments placed reliance on Reserve Bank of India vs. Ronak Singh and others (2001 Cr.L.R. (Raj. 895) and Central Bureau of Investigation vs. State of Gujrat ((2007) 6 SCC 156). 4. Mr. S.C.Gupta, learned counsel appearing for the accused respondents opposed the arguments raised by the petitioner. The learned counsel filed reply to the query made on January 22, 2009 by this Court regarding two different yardsticks adopted by the Judicial Magistrate in two FIRs. filed by the petitioner in relation to two different agreements in relation to his properties. The learned counsel stated that the learned counsel for the petitioner incorrectly stated on January 22, 2009 that in a similar case the Judicial Magistrate had taken cognizance for offence under sections 420, 467, 468, 471 and 120 B IPC. Mr. Gupta argued that no such cognizance was taken in another case nor that case was similar/ identical to the present one. The instant case arose out of FIR 69 of 2002 dated May 3, 2007 wherein FR was given by the police observing that no criminal case was made out against the petitioner. The 6 allegations in the present case are that the accused forged signatures of the complainant Ram Babu on the alleged agreement. When the matter was investigated and the Magistrate perused the final report, it came out from the agreement that there were no signature of the complainant on the agreement, as such there was no question of any forgery of his signatures on the agreement. When there was no signature of the complainant Rambabu on the alleged agreement then there was no question of getting the same examined through hand writing expert nor could have been examined from the admitted signatures of the complainant Rambabu. In the similar case allegations were that the signature of Kesar Dervi, the mother of accused and the complainant were forged. In that case, the FR was given on the basis of the fact that the dispute was of civil nature. The complainant alongwith the Protest petition filed report of a private hand writing expert according to which the signatures of Smt. Kesar Devi were excepting similar. The Magistrate while considering the FIR opined that before taking into consideration the private hand writing expert's report, it was necessary to get the disputed signature of Kesar Devi examined 7 through the Government Forensic Lab. In that case, the signature of Kesar Devi were there therefore the genuineness of the same could have been examined from the admitted signature of Smt. Kesar Devi in the Bank record and as such the FR was not accepted and the SHO Police Station Mahuwa was directed to do further investigation accordingly. The order of the Judicial Magistrate in that case is of dated September 29, 2007. The learned counsel averred that the hand writing expert report is not relevant in the present matter as in the present matter the signatures of Rambabu is necessary and not that of Smt. Kesar Devi. The learned counsel canvassed that in these circumstances the impugned order under challenge in this petition cannot be set aside and the case should not be remanded back to the Magistrate on the basis of private hand writing expert's report. 5. The learned counsel further raised an argument that the petitioner has an alternative remedy before the Sessions Court under section 397 Cr.P.C. As such instead of rushing to this Court in the petition the petitioner ought to have approached the Sessions Court. The 8 presently is a purely civil nature case and a civil suit to that effect is already pending as observed by the Judicial Magistrate in the impugned order wherein it has to be decided as to whether the petitioner has any right in the property and the alleged agreement is genuine or not and what would be effect thereof in case the same is genuine. The learned counsel placed reliance on State of Haryana and others vs. Bhajan Lal and others (1992 ) Supp. (1)SCC 335 and Inder Mohan Goswami and anr. vs. State of Uttaranchal and others ( AIR 2008 SC 251). 6. I have heard learned counsel for the parties and gone through the material available on record. It is true that the Judicial Magistrate adopted two different yardsticks in two similar cases. In one matter the Judicial Magistrate was of the opinion that the matter should be re- investigated by the police and FSL report in relation to document executed is necessary and in the instant matter the Judicial Magistrate accepted final report. This Court since allowed the application of the petitioner treating the miscellaneous petition as revision petition and the arguments now raised by Mr. S.C. Gupta that alternative remedy is available before the Sessions 9 Judge of filing revision petition, cannot now be adjudicated in the facts and circumstances of this case. 7. For these reasons I allow this revision petition and quash and set aside the order of the Judicial Magistrate dated August 4, 2007 accepting FR and the matter is remanded back to the Judicial Magistrate First Class Mahawa to order for re- investigation in the matter and get the documents examined by the FSL and thereafter rehear the parties and decide it afresh after taking into consideration the arguments raised in this revision petition by both the parties. (Mahesh Chandra Sharma) J. OPPareek/