* THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY + Criminal Petition No.13024 of 2010 % 23-02-2011 # Smt. Prabha Sharma W/o Sri Kishan Dev Sharma And another …Petitioners Vs. $ State of A.P., rep. by its Public Prosecutor, High Court of AP., Hyd. …Respondents ! Counsel for the petitioners: Sri D.Madhava Rao Counsel for the Respondent No.1: Public Prosecutor Counsel for the Respondent No.2: M/s.Wasim Ahmed Khan < Gist: > Head Note: ? Cases referred: 2009(3) SCC 78 2000(1) ALD (Crl.) 729 (SC) THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.13024 of 2010 (Dated :23-02-2011) Between: Smt. Prabha Sharma W/o Sri Kishan Dev Sharma And another …Petitioners A n d State of A.P., rep. by its Public Prosecutor, High Court of AP., Hyd. …Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.13024 of 2010 ORDER: This criminal petition has been filed under Section 482 Cr.P.C by A-1-Prabha Sharma and A-2-Kishan Dev Sharma in C.C.No.469 of 2010 on the file of X Additional Chief Metropolitan Magistrate, Secunderabad to quash the proceedings therein. 2. Background facts, in a nutshell, leading to filing of this criminal petition by A-1 and A-2 in C.C.No.469 of 2010, are:- The 2nd respondent-Arun Sharma presented a complaint in the Court of X Additional Chief Metropolitan Magistrate, Secunderabad alleging inter alia that he is one of the co-owners and joint possessors of the premises bearing No.5-4-98, 5-4-99, 5-4-99/1, 5-4-99/2, 5-4- 99/3, 5-4-99/4/1, 5-4-4/2 and 5-4-99/4/3 (Old No.8577/A) admeasuring 636 square yards situated at M.G.Road, Secunderabad by virtue of a registered sale deed dated 4.11.1980. The petitioners herein executed an agreement of sale, dated 27.7.2006 in favour of K.Venkat Reddy and K.Lakshmi Rani forging his signature. The petitioners also forged his signature in the affidavit filed before the Estate Officer for securing freehold rights in respect of the property covered under registered sale deed dated 4-11-1980. The petitioners also executed a registered sale deed in favour of K.Venkat Reddy and Smt. K.Laxmi Rani after getting freehold rights. Thereupon, he filed O.S.No.17 of 2008 on the file of I Additional Chief Judge, City Civil Court, Secunderabad for partition and separate possession of his share in the suit schedule property and also for cancellation of the sale deed obtained by K.Venkat Reddy and K.Laxmi Rani. The Estate Officer, Secunderabad was impleaded as one of the defendants in the suit. The Estate Officer filed written statement in the suit. Then, he came to know that the petitioners herein forged his signatures in the affidavit of ‘No Objection’ for securing freehold rights in respect of the suit schedule property. He filed an application dated 28.1.1999 under the provisions of R.T.I Act and obtained certified copy of the affidavit of “No Objection” dated 01.8.2006. He came to know that the petitioners herein forged his signature on the affidavit of “No Objection”. He presented complaint before X Additional Chief Metropolitan Magistrate, Secunderabad on 23.4.2009. The learned Magistrate forwarded the complaint to the Station House Officer, Market P.S under Section 156(3) Cr.P.C. Thereupon, the S.H.O. Market P.S., Secunderabad registered a case in Crime No.80 of 2009 for the offences under Sections 419, 465, 468, 406, 403 and 506 IPC read with 34 IPC and issued F.I.R. During the course of investigation, he examined five witnesses and recorded their statements under Section 161 Cr.P.C. He also secured the opinion of the hand-writing expert with regard to the signatures of the 2nd respondent appearing on the affidavit of “No Objection” and also on the application filed for grant of free hold rights. After completion of investigation, he laid charge sheet before X Additional Chief Metropolitan Magistrate, Secunderabad against the petitioners herein. The learned Additional Chief Metropolitan Magistrate took cognizance of the case for the offences under Sections 419, 465, 468, 406, 403 and 506 IPC read with 34 IPC against the petitioners herein and registered the case as C.C.No.469 of 2010 and issued summons returnable by 13.9.2010. Hence, this criminal petition by A-1 and A-2 in C.C.No.469 of 2010 seeking the relief stated supra. 3. For completion of narration of facts, I deem it appropriate to refer paras 7, 8 and 9 of the complaint filed by the 2nd respondent and they read thus:- “7. The complainant humbly submits, in any case when the Accused No.3 and 4 were aware that the complainant has got 12.5% share in the property and was shown as party in the Agreement of Sale dated 27-7-2006 by Accused No.1 and 2, it is not known why the Accused No.3 and 4 did not insist the Accused No.1 and 2 to bring the complainant for execution of the sale deed, dated 30-1-2008 even though it is clearly mentioned in the original sale deed dated 4-11-1980 that the complainant is also having a share in the above property. From this, it is clear that Accused No.3 and 4 are not at all bonafide purchasers and they are hand in glove with Accused No.1 and 2 and they have deliberately purchased the undivided share of the complainant from the Accused No.1 and 2 in order to cheat and deceive the complainant and to make unlawful gains. The original coy of the Agreement of Sale, dated 27-7-2006 is in the custody of Accused which has to be summoned for verification of the signatures of the complainant and for sending the same for Forensic Expert. 8. The complainant humbly submits, that in fact he came to know about the above fraud and forgery, after the Lw.2 who is the Defendant No.5 in the above suit filed his written statement in the above suit. Hence the complainant filed an application, dated 28-1-2009 under the provisions of R.T.I.Act before Lw.2 and obtained the certified copy of affidavit of No objection, dated 1-8-2006 on 28-1-2009 itself which contains the forged signature of the complainant. Thereafter the complainant approached the Accused No.1 and 2 and questioned them for fabricating the above documents by forging his signatures, but the Accused No.2 criminally intimidated and threatened the complainant with dire consequences by admitting that he has done the above forgery and asked the complainant to do whatever he likes and further informed the complainant that the Accused No.2 and 3 are very politically influential persons knowing several top ranking police officers and Ministers and therefore the complainant cannot do anything to them. 9. The complainant humbly submits that the Accused have therefore jointly committed the above forgery and cheated the complainant in order to knock away his joint interest and share in the above property and in furtherance of their evil desire the Accused No.1 and 2 also illegally alienated and parted with the above property in favour of Accused No.3 and 4 herein as stated supra, who have deliberately purchased even the share of complainant with dishonest intentions. The Accused No.1 and 2 have committed breach of trust by misappropriating the complainant property by illegally selling the undivided share of the complainant”. 4. Notice before admission came to be ordered on 28.12.2010. Interim stay of all further proceedings also came to be issued on the even date for a period of six weeks. Subsequently, the petitioners filed Crl.M.P.No.1570 of 2011 seeking extension of the interim order dated 28.12.2010. 5. When the extension petition came up for consideration, with the consent of the counsel appearing for the parties, the criminal petition itself is taken up for consideration. 6. Heard learned counsel appearing for the parties. 7. Learned counsel appearing for the petitioners submits that the disputes between the petitioners and the 2nd respondent are essentially civil in nature and therefore, invocation of criminal proceedings, in the facts and circumstances of the case amounts to abuse of process of Court and therefore, proceedings in C.C.No.469 of 2010 are liable to be quashed. A further submission has been made that even if the complaint averments are taken into consideration in toto, they do not satisfy the essential ingredients of cheating. He would also submit that a civil suit is pending and the complaint has been filed one year after filing of the civil suit and continuance of criminal proceedings basing on such complaint amounts to abuse of process of Court. Learned counsel laid much emphasis on the date of the complaint and the date of filing of the suit. By referring the two dates, it is contended that initiation of criminal proceedings after about an year of filing the civil suit amounts to abuse of process of Court. In support of his submissions, reliance has been placed on the judgment of the Supreme Court in V.Y.Jose v. State of Gujarat[1], wherein it has been held that where a matter which essentially involves dispute of civil nature should not be allowed to be the subject matter of a criminal offence, the latter being not a shortcut of executing a decree which is non-existent. The superior courts, with a view to maintain purity in the administration of justice, should not allow abuse of the process of Court. It has a duty in terms of Section 483 of the code of Criminal Procedure to supervise the functioning of the trial Courts. 8. Learned counsel appearing for the 2nd respondent-complainant submits that the 2nd respondent-complainant specifically pleaded in the complaint that the petitioners forged his signature on the alleged agreement of sale dated 27.7.2006 and affidavit of “No Objection” submitted before the Estate Officer and therefore, the complaint of 2nd respondent–complainant cannot be thrown out on the ground that a civil remedy is open to him. He would also submit that the Investigating Officer referred the disputed signatures and admitted signatures to handwriting expert and the expert opined that the signature appearing on the affidavit of “No Objection” is not that of the respondent-complainant. He would also contend that the Investigating Officer examined the witnesses and recorded their statements and filed final report and thereupon, the learned X Additional Chief Metropolitan Magistrate took cognizance of the case for the offences under Sections 419, 465, 468, 406, 403 and 506 IPC read with 34 IPC against the petitioners and issued summons returnable by 13.9.2010 and in which case, it cannot be said that there is no prima facie case against the petitioners/accused. In support of his contentions, learned counsel placed reliance on the judgment of the Supreme Court in Medchal Chemicals and Pharma Private Limited v. Biological E.Limited [2], wherein it has been held that it is anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. Para 18 of the cited judgment needs to be noted and it is thus:- “ On careful reading of the complaint, in our view, it cannot be said that the complaint does not disclose the commission of an offence. The ingredients of the offences under Sections 415, 418 and 420 cannot be said to be totally absent on the basis of the allegations in the complaint. We, however, hasten to add that whether or not the allegations in the complaint are otherwise correct has to be decided on the basis of the evidence to be led at the trial in the complaint case but simply because of the fact that there is a remedy provided for breach of contract, that does not by itself clothe the Court to come to a conclusion that civil remedy is the only remedy available to the appellant herein. Both criminal law and civil law remedy can be pursued in divers situations. As a matter of fact they are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence. The object of criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect civil remedies at all for suing the wrongdoer in cases like arson, accidents etc. It is anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred . The two types of actions are quite different in content, scope and impart [vide Pratibha Rani v. Suraj Kumar (supra)].” 9. Exercise of jurisdiction under the inherent power as envisaged in Section 482 of the Code to have the complaint or the charge-sheet quashed is an exception rather a rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the prosecution. With the lodgment of First Information Report the ball is set to roll and thenceforth the law takes its own course and the investigation ensues in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. In the event, however, the court on perusal of the complaint comes to a conclusion that the allegations levelled in the complaint or charge-sheet on the face of it does not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise upto the expectation of the people and deal with the situation as is required under the law. Frustrated litigants ought not to be indulged to give vent to their vindictiveness through a legal process and such an investigation ought not to be allowed to be continued since the same is opposed to the concept of justice, which is paramount. 10. The respondent-complainant specifically pleaded in the complaint that the signatures appearing on the agreement of sale dated 27-7-2006 and the affidavit of no objection are not of him and they are rank of forgery. Indisputably, the respondent-complainant is one of the co-owners and joint possessors of the property detailed supra. The disputed signatures and specimen signatures came to be referred to the handwriting expert during the course of investigation. The opinion of the handwriting expert is that the signature appearing on the affidavit of “No Objection” is not that of the respondent- complainant. It is contended by the learned counsel appearing for the petitioners that the complaint came to be filed after an year of filing of the suit. The respondent-complainant has given explanation in the complaint itself that he came to know of the affidavit of “No Objection” through the written statement filed by the Estate Officer in O.S.No.17 of 2008 in the month of January 2009 and thereupon, secured the document by invoking the provisions of R.T.I Act from the concerned authorities on 28.01.2009. After securing the documents, he presented a complaint in the month of April, 2009. In these circumstances, it cannot be said that there is abnormal delay in filing the complaint by the 2nd respondent. 11. Indisputably, it is the petitioners, who executed the registered sale deed in favour of K.Venkat Reddy and K.Laxmi Rani in respect of the property wherein the 2nd respondnet-complainant has 12.5% undivided share. The 2nd respondent-complainant asserted in the complaint that the signatures appearing on the affidavit of “No Objection” filed before the Estate Officer, Secunderabad and also the signatures appearing on the agreement of sale said to have been executed in favour of K.Venkat Reddy and K.Laxmi Rani are not that of him and they are rank of forgery. Whether the 2nd respondent- complainant is able to prove the accusations leveled against the petitioners is a matter to be considered on full-fledged trial. Therefore, I am of the view that the petitioners failed to make out any valid grounds to quash the proceedings in C.C.No.469 of 2010. 12. In the result, the Criminal Petition is dismissed. _____________________ B.SESHASAYANA REDDY, J Dt.23-02-2011 Note:- L.R copy to be marked (B/o) RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.13024 of 2010 (Dated :23-02-2011) [1] 2009(3) SCC 78 [2] 2000(1) ALD (Crl.) 729 (SC)