IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No 399 of 2002 For Approval and Signature: Hon'ble MR.JUSTICE D.P.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- DEPANKUMAR KARTIKCHANDRA BANERJEE Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Revision Application No. 399 of 2002 MR KAMLESHWAR SINGH for Petitioner No. 1 PUBLIC PROSECUTOR for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE D.P.BUCH Date of decision: 26/03/2003 ORAL JUDGEMENT This is a revision application filed by the petitioner, original accused no. 2, in Criminal Case No. 921 of 2002, before the learned Chief Judicial Magistrate at Vadodara, who rejected an application of the present petitioner at Ex. 5 on 03/07/02. 2. The present petitioner along with other accused persons were chargesheeted for having committed offences punishable under Section 406, 408, 465, 466, 467 and 471 read with Section 120(B) of IPC. The petitioner submitted the aforesaid application, Ex.5, stating that there was no case for framing charge against him, for an offence punishable under Section 467 IPC. That there was no direct evidence against him, to show that he had forged the document in question or that he had used the same. 3. After hearing the petitioner, the trial court found that there was prima facie case to show that the petitioner had committed the said offence and therefore, the trial court dismissed the said application of the petitioner on 03/07/02. 4. Feeling aggrieved by the said order of the trial court, the petitioner herein, instead of going to Sessions Court, has directly come to this Court, with this revision application, under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short, "the Code"). It has been contended that there was no material before the trial court to show that the present petitioner was involved in forging the document in question or in using the said forged document, knowing it to be a forged one. That, therefore, the trial court was not justified in rejecting the application of the petitioner. It may be said here that after the dismissal of the said application on 03/07/02, the court below had already framed charge against the present petitioner, for an offence punishable under Section 467 of the said Code, as per the statement made by the learned APP. This was brought to the notice of the learned advocate for the petitioner who also does not dispute this position. He does not find it proper to amend the prayer clause, for challenging the said order of the trial court, framing charge against the petitioner for an offence punishable under Section 467 of IPC. 5. Anyway, the learned advocate for the petitioner has argued at length, saying that there is no material against the petitioner, to show that the present petitioner has forged the document in question or that he has used the forged document. 6. Now, if we go through the statements on record, we find that there are certain witnesses who have shown the involvement of the petitioner, with respect to the document in question. At the outset, it may be stated that it is matter on record of the trial court that the Reserve Bank of India had addressed a letter dated 07/09/97, stating that the RBI had not issued any license or permit to the present petitioner or that no NRI permission was granted to him. 7. The learned APP has drawn my attention to a statement of Hiteshbhai Vaghela - the complainant before the police, at Page 37. This witness along with his brother Pravinbhai, Dr.Prakashbhai and others had met the present petitioner in April, 1999 at "Mass Overseas Financies", Kalkaji, Govindpuri Extension, Delhi. On meeting the present petitioner and on asking him about the sanction, the petitioner informed that the sanction from the RBI has been received and he had shown on his letter head, the code number and informed that the moneys of these companies had been sanctioned and if the witness would pay the money, then the petitioner would deposited it in the Bank Account of the witness directly. That the petitioner also informed about this and for that the witness was required to pay Rupees Seven to Eights Lakhs. 8. The learned advocate for the petitioner states that the reference made by the witness is the reference to a document on the letter head of the present petitioner. At the same time, it is required to be considered that the witness has referred to the sanction of RBI and according to the case of the witness, the present petitioner had told the witness that RBI sanction was received and some code number was shown to the witness, in order to substantiate the said statement of the petitioner. It is true that the said document may be on the letter head of the petitioner. Nevertheless, it goes to show that the petitioner had knowledge about the impugned document and he, definitely referred and thereby used the said document, during the course of the conversation between him and the witness. 9. The "use of document" may not mean that actual physical use of the document should take place. Once a document is shown to the witness in order to get money from him, then it can be said that the petitioner did use the said document, which was a forged one and the petitioner knew or had reason to believe it, to be a forged document. It is not even a defence that the said document was a true and genuine one. 10. Then another statement of Gangaben was also referred by the learned APP, during the course of her argument, at Page 43. The learned advocate for the petitioner has argued that this statement is a hearsay statement and therefore, it cannot be considered for any purpose. Now, after all, charge has already been framed and the value of this document can be considered only in light of the document and other evidence on record. This is not a stage at which this Court would decide as to how much weight should be given to the statement of this witness. This witness also supports the case of the prosecution. Moreover, her statement gets support from the statements of atleast two other witnesses. 11. Then, there is the statement of Pravinkumar Vaghela at Page 46. The learned APP has referred to the statement of this witness at Page 46. There also a reference has been made to a meeting with the present petitioner at his office at Kalkaji, Delhi. There also it has been stated that money was demanded and necessary amount was given for sanctioning the loans of the four projects. He also states that the impugned document was shown to him by the petitioner. 12. Prakashbhai Vaghela has also given a statement at Page 49. There also it has come on record that required money was paid in presence of the present petitioner. 13. It is true that the complainant had submitted application before the police on 23/01/02, which is placed at Page 37, which shows that the parties had settled the dispute and therefore, the declaration was made by the complainant. However, there are certain offences which are not compoundable even with the permission of the Court. Moreover, the police itself could not do anything, even if the parties had settled the dispute. Once a non-compoundable cognizable offence has been registered before a police station, the power of permission to compound offence, cannot be exercised by the police and therefore, the police had nothing to do with the said application. Anyway, looking to the FIR and the statements on record, it cannot be said that no offence punishable under Section 467 IPC has been made out against the present petitioner. This is not a stage at which this Court is required to appreciate the evidence on record. The statements of fact made in the statements of witnesses have to be accepted, as they stand and if the statements are accepted on their face value, it cannot be said that no offece punishable under Section 467 has been made out against the petitioner. 14. It is also required to be considered that apart from the aforesaid offence, it was also alleged that there was a criminal conspiracy between the two accused persons. Therefore, so far the criminal conspiracy is concerned, that offence has to be looked into only in light of other documentary and oral evidence, as well as of the circumstances which may lead to the commission of a particular offence. There may not be any direct evidence with respect to criminal conspiracy. The criminal conspiracy may be required to be inferred from the conduct of the parties, their relationship and other evidence which may come on record at the relevant point of time. 15. In view of the aforesaid position, I am of the opinion that this is not a fit case for exercising revisional jurisdiction and consequently, the revision application fails. 16. For the foregoing reasons, this application is ordered to be dismissed. Notice discharged. 10/03/03 (D. P. Buch, J.) 17. At this stage, Mr.Kamleshwar Singh, learned advocate appearing for the petitioner requests this Court that a Certificate as to Fitness of the matter for preferring appeal to the Supreme Court, may be issued, under Section 134(A) of the Constitution of India. It has been argued that such a Certificate can be issued, even in Criminal matters and it may be issued in view of the fact that the solitary material with the prosecution, is the hearsay statement of witness Gangaben. Hearing was adjourned at the instance of the learned advocate for the petitioner. 18. I have heard Mr.Kamleshwar Singh learned advocate appearing for the petitioner and Ms.N V Joshi learned APP for the State, who has strongly objected to the grant of the said Certificate. On going through the records and orders of this Court, it is very clear that the above criminal revision application has not been dismissed only on the sole consideration of the statement of Gangaben. The Court has also considered two other statements of Hiteshbhai Amrutlal Vaghela and Pravinkumar Amrutlal Vaghela. 19. In above view of the matter, this is not a fit case for issuing Cetificate as has been prayed. Therefore, the said prayer is rejected. 26/03/03 (D. P. Buch, J.) pravin/