1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3723 OF 2001 D.I.Desai Applicant versus The State of Maharashtra and others Respondents Mr.P.K.Dhakephalkar, Sr.Counsel and P.D.Desai with V.V.Vashi for applicant. Mr.M.S.Udeshi for respondents 1 and 2. Mr.Y.M.Nakhawa, APP for the State. CORAM : A.S.OKA, J. DATE : 13th July 2009 JUDGMENT:- 1. Heard learned Senior Counsel appearing for the applicant and learned counsel for respondents 1 and 2. The applicant is the original complainant. The applicant filed a private complaint against the first and second respondents alleging commission of offences under sections 467, 468, 471, 120-B and 34 of the Indian Penal Code. By the impugned order passed by the learned Additional Chief Metropolitan Magistrate, the first and second respondents who were accused nos.1 and 3 have been ordered to be discharged. 2. The case made out by the applicant in the complaint is that the 2 applicant was working as a Deputy General Manager (Projects) with M/s.Gammon India Limited. The accused nos.1 to 3 were at the relevant time Directors of M/s.Seth Estate Developers Pvt.Ltd.. The case of the applicant is that M/s.Gammon India Ltd. was awarded a contract for construction. M/s.Seth Estate Developers Pvt.Ltd. was engaged by M/s.Gammon India Ltd. for the purposes of the said project. According to the applicant, on 26th March 1992 a Memorandum of Understanding (MOU) was executed by which the work was allotted on price rate basis to M/s.Seth Estate Developers Pvt.Ltd. (hereinafter referred to as "the said company"). According to the applicant, the said company committed defaults and therefore communication was addressed on 22nd March 1993 to the said company of accused nos.1 to 3 relieving the said company from the responsibilities. The allegation is that the accused nos.1 to 3 entered into a criminal conspiracy and forged and fabricated an agreement described as revised sub-contract containing an arbitration clause. The allegation in the complaint is that the said document is purported to have been signed by Mr.Abhijt Rajan of M/s.Gammon India Ltd.. It is alleged that the signature of Mr.Abhijit Rajan on the said agreement is forged and fabricated. Various allegations have been made in the complaint as regards the said documents. It is alleged that on the basis of the said document, an application has been filed in the Court of Civil Judge, Senior Division, Ahamedabad and a xerox copy of the said document has been produced with the said application. Therefore, the applicant 3 proceeded to file a complaint on which an order was passed by the learned Magistrate of issuing process. 3. An application for discharge was made by the first and second respondents which has been allowed by the impugned order. 4. The learned senior counsel appearing for the applicant submitted that the order of discharge has been passed on the grounds which are not sustainable. He pointed out that the first ground is the order of the Civil Court passed at Ahamedabad by which an arbitrator was appointed. He submitted that in the said order the learned Civil Judge has observed that he has come to a prima facie conclusion regarding existence of the arbitration clause and no finding has been recorded by the learned Judge on the issue of execution of the alleged agreement. He submitted that the second ground on which the order of discharge is passed is that a suit for declaration has been filed by the company of the applicant claiming a declaration that the said document is forged and fabricated. He, therefore, submitted that the order of discharge could not have been passed on the said grounds. 5. Learned counsel for the first respondent fairly pointed out that the order passed by the Civil Court appointing an arbitrator has been set aside by a Division Bench of Gujarat High Court and the application has been remitted to the concerned Court to enable the 4 parties to adduce evidence in support of their contentions. He submitted that the fact that a civil suit for declaration as regards the same document was filed by the applicant (complainant) before filing of the complaint was not disclosed both in the complaint as well as in the verification statement and that is also a ground on which the order of discharge has been passed. Inviting my attention to the decision of the Division Bench of Gujarat High Court he pointed out that both the applicant and the first & second respondents will have to prove their case before the Civil Court by adducing evidence and till there is adjudication made by the Civil Court as regards genuineness and validity of the agreement, the criminal complaint cannot proceed. He submitted that as the applicant had suppressed the fact of filing a civil suit, the criminal complaint filed by the applicant could not have been entertained. He, therefore, submitted that no interference be made with the impugned order. 6. I have carefully considered the submissions. A perusal of the impugned order shows that the order of discharge has been passed on following grounds :- (a) The Civil Judge, Senior Division by order dated 31st March 1998 came to the conclusion that the the alleged revised sub- contract was prima facie believable and therefore, there is a finding of the competent Civil Court that the document is genuine; 5 (b) The Civil Court was seized of the issue of genuineness of the document and as the agreement was on record of the Civil Court, the same can be referred to the handwriting expert to ascertain whether it was genuine and if it is found that the document is fabricated, the Civil Court can take cognizance under section 195 of the Code of Criminal Procedure, 1973; (c) In the Civil Court a suit for declaration is pending claiming a declaration that the said document was forged and as the said issue was pending before the Civil Court, it was not desirable to keep the complaint pending. 7. It is true that the learned Magistrate has referred to the fact that there is no reference in the complaint or in the verification that the civil suit for declaration is already filed. However, the learned Judge has not passed the order of discharge on the ground of suppression of facts. 8. As far as first ground taken by the learned Judge is concerned, a perusal of the order of the Civil Court shows that there was no final adjudication made on the issue of genuineness of the said document in dispute. The only order passed by the Civil Court was of appointing an arbitrator on the ground that the agreement was prima facie believable. The said order cannot be read to mean that the Civil Court has made adjudication upon the genuineness of 6 the said document. In any case, now the said order has been quashed by the Division Bench of Gujarat High Court and the matter has been remanded back to the Civil Court. The allegation of the applicant in the complaint is that the accused conspired and forged and fabricated the document. Merely because a civil suit filed by the company of the applicant is pending claiming a declaration as regards the said document, it is no ground to discharge first and second respondents. 9. The learned counsel appearing for the first and second respondents at this stage submitted that the first and second respondents be permitted to adopt appropriate proceedings including an application for stay of the proceedings of the criminal complaint till disposal of the civil matters. 10. Suffice it to say that the order of discharge passed by the learned Magistrate on the grounds mentioned in the impugned order cannot be sustained and the said order will have to be set aside. It is obvious that all the remedies of the first and second respondents (accused nos.1 and 3) in accordance with law are always open. 11. Hence, I pass following order :- (a) Subject to what is observed above, the impugned judgement and order dated 17th January 2001 passed by the learned Additional 7 Chief Metropolitan Magistrate, 5th Court, Dadar, Mumbai is quashed and set aside and the application for discharge filed by the first and second respondents stands dismissed; (b) As observed earlier, this order will not preclude the first and second respondents from adopting remedies in accordance with law; (c) It is made clear that all contentions of the parties on merits in the pending criminal complaint and the civil suits are expressly kept open; 12. At this stage the learned senior counsel appearing for the applicant seeks a direction for expeditious conclusion of the trial. In earlier order passed by this Court on 13th October 2000 the said direction has already been issued. (A.S.OKA, J.)