1 Appln 1406-2007 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1406 OF 2007 Harish Iyer .Applicant V/s. Prem Mehra & ors .Respondents Mr.Vijay Vaghela with Ms Sheela R. Rao, Advocate, for the Applicant Mr.S.A.Karia, Advocate, for Respondent No.5 CORAM : R.C.CHAVAN, J. DATE : 20TH JULY, 2011 P.C. . Heard the learned Counsel for the respective parties. 2. This is an application for leave to file an Appeal against acquittal of the respondent Nos.1 to 5 for the offences punishable under Sections 420, 467, 468, 471 read with Section 34 or 114 of the Indian Penal Code recorded by the learned Metropolitan Magistrate, 22nd Court, Andheri, Mumbai. The original Complainant was running 2 Appln 1406-2007 a business of manufacturing Soaps and Detergents. Respondent No.1 entered into a partnership with the original Complainant as he was a friend of Complainant's son. Thereafter, respondent No.1 is alleged to have allured the Complainant Ganapathi Subramaniam into believing that there were some attractive business opportunities in Singapore and therefore, took G. Subramaniam on a ride to Singapore. Apart from the fact that there was no business opportunities in Singapore, respondent No.1 is also alleged to have misappropriated amounts of the firm. When G. Subramaniam discovered all this, he allegedly asked respondent No.1 to leave the partnership after settling accounts and refunding the money which had been allegedly swindled. Instead, respondent No.1 introduced respondent No.2 as partner in the partnership ousting G. Subramaniam by preparing a Dissolution Deed dated 12th October, 1988. The respondent Nos.1 & 2 also caused this deed to be sent to 3 Appln 1406-2007 various authorities like Banks etc. and virtually threw out G. Subramaniam from the business. Respondent No.3 was a Chartered Accountant, who provided to the Complainant a xerox copy of the Dissolution Deed which he certified to be a true copy. Thereafter, the Complainant filed a complaint before the Metropolitan Magistrate for various offences. Before the process was issued the learned Magistrate ordered enquiry under Section 202 of the Code of Criminal Procedure from the police. Thereafter, process was issued. Respondent Nos.4 & 5, who were not arrayed as accused in the complaint were also joined as accused. Presumably after recording pre- charge evidence, the learned Magistrate framed charge which order was challenged before superior Courts and eventually the trial proceeded. At the trial the Complainant examined four witnesses including a hand writing expert, who had examined a copy provided by respondent No.3 in support of his 4 Appln 1406-2007 case. The defence had also caused the Dissolution Deed to be sent to hand writing expert, who was examined by the defence before the trial Court as DW-1. Both the experts came to contradictory conclusions about the signature of G. Subramaniam on two copies of the dissolution deed which they had examined. After considering the evidence before him, the learned Magistrate passed the impugned order. Aggrieved thereby, the Complainant's son has now filed this application for leave to file an appeal, since in the mean time, the Complainant expired on 14th February, 1997. 3. I have heard the learned Counsel for the appellant and the learned Counsel for respondent No.5. I have also gone through the written notes of argument submitted by both the learned Counsel at my instance in order to cut short the time to be spent in hearing the arguments. 5 Appln 1406-2007 4. The learned trial Magistrate cannot be faulted for refusing to believe the story about forgery in the face of contradictory reports by two experts. The contention of the learned Counsel for the Complainant is that the document examined by the hand writing expert working with the police department hired by the Complainant was in fact a certified copy issued by respondent No.3 the C.A. of the firm, and therefore, was more reliable. In any case, the original had not been examined by any of the experts, curiously because there was an allegation by the respondent Nos.1 & 2 that the present applicant had committed theft of that document. Whatever may be the reason, since the original was not examined by any expert and the original is not to be found because the respondent Nos.1 & 2 state that it has been stolen by the present applicant and the applicant states that he has not seen that document, in the face of contrary findings by 6 Appln 1406-2007 the experts, it cannot be said that the learned Magistrate erred in acquitting the respondents holding that the forgery was not proved. 5. As far as cheating is concerned, there is nothing to show any details of amount swindled by the respondent Nos.1 & 2 by cheating the Complainant and therefore, it cannot be said that the learned Magistrate erred in acquitting the respondents of the offences charged. 6. The learned Counsel for the applicant submits that the cheating does not necessarily involve making a person part with money but also involve inducing a person like the original Complainant to enroll the respondent as a partner. As far as induction of respondent as partner is concerned, the complaint itself shows that the complainant had involved respondent No.1 as partner and 7 Appln 1406-2007 therefore, to allege that because of subsequent events G. Subramaniam was cheated in inducting respondent No.1 as partner would be permissible. It seems that the Complainant has some different ideas about the evidentiary value of material collected by the investigating officer in course of inquiry under Section 202 of the Code of Criminal Procedure, as also about the evidence of police officer. The police officer merely collects evidence and cannot add to the strength of evidence so collected. He does not provide any evidence of either forgery or cheating by himself. Therefore, his evidence would not have added to the worth of evidence tendered by the Complainant about forgery and cheating. The Complainant also seems to have harboured some misconception about Section 106 of the Indian Evidence Act requiring a person to prove the facts within his special knowledge. This burden is on the accused in very rare cases like ticket less traveller 8 Appln 1406-2007 being required to produce a ticket or to prove that he had purchased a ticket since whether he has purchased the ticket or not is a fact within his special knowledge and he has to prove it. There is nothing to show that the respondents had any fact within their special knowledge or were obliged to provide any evidence to prove the same. The question that arises is whether Judgment indicates any perversity or improbability in the conclusion drawn. And since there is no perversity or improbability, leave refused. Appeal dismissed. 7. Criminal Application stands disposed of. (R.C.CHAVAN, J.)