* THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.7303 of 2009 % 21.03.2011 Between # M. Durga Reddy … Petitioner $ 1. State of A.P., Rep. By Public Prosecutor and 2 others ...Respondents ! COUNSEL FOR PETITIONER: Sri V. Ravi Kiran Rao ^ COUNSEL FOR RESPONDENT Nos.1 and 2: Public Prosecutor ^ COUNSEL FOR RESPONDENT No.3: Sri V. Rama Krishna Reddy < Gist: > Head Note: ? CITATIONS: THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No. 7303 of 2009 Date: 21-03-2011 Between: M. Durga Reddy … Petitioner A n d State of A.P., Rep. by Public Prosecutor and 2 others … Respondents THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No. 7303 of 2009 ORDER: The petitioner is accused of offences punishable under Sections 423, 426, 465, 468 and 471 I.P.C in C.C.No.308 of 2009 on the file of the III Metropolitan Magistrate, Cyberabad at Lal Bahadur Nagar. It is alleged that the 3rd respondent / de facto complainant sold 73 square yards out of 150 square yards by retaining 77 square yards on North-Eastern part in the plan of H.No:1- 10 of Harijana Colony, Habsiguda and that the accused also purchased plot No.9 from its owner during the same time and that the 3rd respondent and owner of plot No.9 jointly executed registered sale deed on 14-09-2005 and that after presentation of the said sale deed for registration, the sale deed was kept pending with the sub- registrar for some time and that during the said period of pending registration, the accused with an intention to grab remaining 77 square yards of the site in plot No.10, changed 73 square yards into 150 square yards with the connivance of the officials of the sub-registrar’s office by replacing page numbers 2, 4 and 5 of the sale deed and by forging signatures of the 3rd respondent on those pages. It is stated that subsequently the 3rd respondent came to know about changing of pages 2, 4 and 5 and forging of his signatures therein, during the course of another litigation with one V.Chandraiah. It is alleged that during investigation, specimen signatures of the 3rd respondent were obtained in the presence of two panch witnesses and they were sent to the Forensic Science Laboratory for comparing the alleged forged signatures of the 3rd respondent and that the forensic expert after making comparison gave report concluding that the signatures did not tally. 2. Even as per complaint of the 3rd respondent, the alleged forgery and replacing of page numbers 2, 4 and 5 of the sale deed took place in the sub-registrar’s office where the document was kept pending registration for some period. At no point of time after execution of the sale deed and before registration of the same, the sale deed was in custody of the accused. Even as per the prosecution case, the offence took place with the connivance of the officials of the sub-registrar’s office. In spite of it, no officials of the sub-registrar’s office were examined during investigation much less cited as witnesses in the charge sheet. It is not the prosecution case that the said officials of the sub- registrar’s office are co-accused along with the petitioner in this case. Admittedly, the sale deed in question was executed not only by the 3rd respondent but also by owners of plot No.9. It is stated that there are total of three executants in that sale deed. If really page numbers 2, 4 and 5 are to be replaced, then not only the officials of the registration department but also the other two joint executants of the 3rd respondent must have colluded with the petitioner. None of those joint executants of the sale deed along with the 3rd respondent is made co-accused along with the petitioner. It is contended by the petitioner’s counsel that not only page numbers 2, 4 and 5 but also plan attached to the sale deed gives the extent sold thereunder as 150 square yards in plot No.10. It is not the prosecution case that the plan was also replaced and the plan also contains forged signatures of the 3rd respondent. 3. The investigating officer is stated to have obtained specimen signatures of the 3rd respondent during investigation. He did not obtain the specimen signatures or handwriting of the accused in order to find out whether the alleged forged signatures of the 3rd respondent were made by the accused. When specimen signatures were obtained during pendency of a case, then there is every possibility of the person furnishing the specimen signatures camouflaging his real signature and simulating a signature which is not his real signature, in order to buttress the claim that his signature is forged. 4. Further, the investigating officer did not follow the procedure prescribed by Section 311-A Cr.P.C which was inserted under the Amendment Act 25 of 2005 and which came into force with effect from 23-06-2006, while collecting specimen signatures of the 3rd respondent. Section 311-A Cr.P.C. reads as follows: “If a Magistrate of the first class is satisfied that, for purposes of any investigation or proceeding under this Code, it is expedient to direct any person, including an accused person, to give specimen signatures or handwriting, he may make an order to that effect and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen signatures or handwriting: PROVIDED that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding.” 5. As per the said provision, specimen signatures are expected to be collected in the presence of a Magistrate of the First Class. Such specimen signatures can be collected from any person including an accused person. The proviso under this Section which contemplates that the person should have been arrested in connection with the investigation or proceeding, refers to the person who is an accused person. In my opinion ‘person’ contemplated under the proviso is the ‘accused person’ and it cannot be referred to ‘any person’. 6. No doubt, the accused is the alleged beneficiary in case there is manipulation or interpolation of the extent from 73 square yards to 150 square yards; but that itself cannot conclude that the accused had committed the forgery. I am of the opinion that the investigation proceeded on the basis that what was agreed to be purchased by the accused from the 3rd respondent was only 73 square yards and not 150 square yards. Proceeding with investigation on the said assumption cuts at root of the prosecution case. It would be a matter for evidence during trial of a civil dispute to find out and decide whether what was sold by the 3rd respondent and what was intended to be purchased by the accused was 73 square yards or 150 square yards. Having regard to absence of officials of the sub-registrar’s office who are the custodians of the documents during the period of pending registration and absence of co-executants of the sale deed along with the 2nd respondent as co-accused in this case, the basis for prosecution of the accused for the alleged forging for the purpose of cheating etc., cannot be proceeded with. There is also no evidence collected by the investigating officer to show that it was the accused who committed the alleged forgery. In those circumstances, this Court is of the opinion that prosecution of the petitioner/accused for the above offences is nothing but abuse of process of the Court. It is a matter of civil litigation between the parties, to be decided in an appropriately framed civil suit by a civil court. 7. In the result, the Criminal Petition is allowed quashing proceedings in C.C.No.308 of 2009 on the file of III Metropolitan Magistrate, Cyberabad at Lal Bahadur Nagar. _____________________________ SAMUDRALA GOVINDARAJULU, J Date: 21st March, 2011 KSM