Crl M C 1525/2006 Page 1 of 19 IN THE HIGH COURT OF DELHI AT NEWDELHI Reserved on : November 30, 2007 Date of Decision : January 28, 2008 CRL M . C. 1525/2006 & Crl M As 2511-12,8656, 11526/2006, 4896, 5182, 6565-66/2007 RAJEEV SARDA .......PETITIONER Through : Mr. K.K. Sud, Senior Advocate with Mr. Anish Shrestha, Advocate versus STATE & ANR. .... RESPONDENTS Through: Mr. Santosh Kumar, Advocate for Respondent No.2 and Mr.P.K.Behl, APP for the State CORAM: HON'BLE DR. JUSTICE S. MURALIDHAR 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in Yes Digest? Dr. S. Muralidhar, J. 1. By this petition under Section 482 of the Cope of Criminal Procedure, 1973 („CrPC‟) the Petitioner seeks quashing of Complaint Case No. 1357/1 titled Ravinder Kumar v. Amit Kumar & Ors. and the resultant FIR No. 199/2005 dated 17th May, 2005 registered at Police Station („P.S.‟) Tilak Marg, New Delhi against the petitioner under Sections 467/468/471/420 read with 34 IPC. The Petitioner also seeks the quashing of an order dated 15th February, 2005 passed by the learned Metropolitan Magistrate, („MM‟) New Delhi directing the Station House Officer („SHO‟), P.S. Tilak Marg, New Delhi to investigate the matter under Section 202 CrPC for the alleged conspiracy for forgery and submit a report to the court. Crl M C 1525/2006 Page 2 of 19 Background Facts 2. The facts leading to the filing of the petition are that a complaint was filed in the Court of the learned MM on 21st May, 2002 by the Respondent No.2 Shri Ravinder P. Kumar, a Director of M/s. Arcon Electroplast Pvt. Limited against Shri Amit Kumar and five others including the Petitioner here who was arrayed as Respondent No.3 therein. In the complaint, registered as Complaint Case No. 1357/1, it was alleged that the accused 2 to 4 i.e. Shri T.R. Biyani, Shri Rajeev Sarda, the Petitioner here, and Shri Sanjay Sarda were closely related to each other and were common directors of a group of companies which included M/s. Sparrow Technologies Limited, M/s. Adige Computer Service Private Limited and M/s. Sparrow Microelectronics Pvt. Limited. It is alleged that the companies had approached the complainant for supply of goods on short-term credit with the assurance of making payments. The complainant had, pursuant to such assurance, supplied goods and a sum of Rs.3,46,332.25 paise was found outstanding and due from M/s. Sparrow Technologies Limited. It is also alleged that these accused failed to furnish the „C‟ form and when the amount remains unpaid despite several requests, the complainant filed a suit on the Original Side of this Court for recovery of Rs.8,76,000/-. 3. The complaint proceeded to state that accused Shri Amit Kumar acting as Pairokar of accused 2 to 4 filed an application under Section 8 of the Arbitration & Conciliation Act, 1996 („Act‟) read with Section 151 of the Code of Civil Procedure, 1908 („CPC‟) in this Court in the pending suit stating that the dispute should be referred to arbitration in Bangalore and that no cause of action had arisen in Delhi. It is stated that along with the said application, accused 2 to 4 through accused 1 filed a false and fabricated document being a photostat copy of an attested copy of an alleged Memorandum of Understanding („MOU‟) dated 9th January, 1998 purporting to have been executed by the plaintiff/complainant in Bangalore and containing an arbitration clause. It is stated that no such MOU was ever Crl M C 1525/2006 Page 3 of 19 executed by the complainant. It was pointed out that stamp paper on which the MOU was drawn was purchased much prior to the date of execution of the alleged MOU. In fact the date was even prior to the date on which business, even according to the defendants, had been transacted between the parties. It is then stated in the complaint that: “There is no bar of Section 195 Cr.PC since the original document has not been filed and only the photocopy of the same has been filed in the Hon‟ble High Court.” 4. By an order dated 26th February 2003, the learned MM before whom the complaint was presented declined to summon the accused for the following reasons: “In the present case, the complainant has examined himself as a witness and CW-1 and has closed his evidence. The complainant has filed certified the copy of agreement which contains the arbitration clause in the court. The complainant has examined CW-1 Sh. T.K. John in support of his complaint who is the Manager of M/s. Arcon Electro Plast Pvt. Limited. Mere bald statement of CW-1 and CW-2 that the said agreement does not bear their signature is not sufficient to summon the respondents as an accused. The suit for recovery is still pending in the Hon‟ble High Court, Delhi. The present complaint is pre-mature. In my considered view, there are not sufficient grounds to proceed against the respondents and it would not be appropriate to summon them as accused. The facts of the authorities relied upon by learned counsel for the complainant are different and the ratio of the observations made therein are not applicable to the facts of the case. In view of the above reasons the present complaint is not maintainable at this stage. Accordingly, it is dismissed. File be consigned to RR.” 5. Aggrieved by the said order dated 26th February 2003, the Respondent No.2 here Shri Ravinder P. Kumar filed Crl. Rev Nos. 7 and 8 of 2003 in the court of the learned Additional Sessions Judge, (ASJ) New Delhi. During the pendency of the said criminal revision case, the revisionist/complainant filed an application under Section 311 CrPC in which it was prayed that the order dated 26th February, 2003 should be set aside and an opportunity should be afforded to the complainant to place on record before the learned MM, at the pre-summoning stage, a copy of the MOU which was filed before this Court by the accused persons. The learned ASJ thereafter passed an Crl M C 1525/2006 Page 4 of 19 order on 13th August 2003, the material portions of which read as under: “5. Under these circumstances, and in the interest of justice, and to prevent the miscarriage of justice, I am of the opinion that the impugned order of the learned trial court be set aside and an opportunity be afforded to the revisionist, to place on record the additional evidence, as stated herein above. 6. I, therefore, set aside the impugned order of the learned trial court. An opportunity shall be afforded to the revisionist by the learned trial court to enable him to lead further pre-summoning evidence, as desired by the revisionist, and thereafter the learned trial court shall pass order afresh in accordance with law. 7. With this the revision is disposed of. 8. Trial court record be sent back along with copy of this order, for compliance. 9. Revisionist is directed to appear before the learned trial court on 22.8.03 at 10.00 a.m. for further proceedings.” 6. On remand, the learned MM by an order dated 15th February 2005 referred the matter to SHO, P.S. Tilak Marg for investigation and filing a report. Pursuant thereto, an FIR was registered against the named accused including the Petitioner here on 17th May, 2005 at P.S. Tilak Marg, New Delhi under Sections 467/468/471/420 read with Section 34 IPC. 7. The application for anticipatory bail filed on behalf of the Petitioner here was dismissed by the learned ASJ by an order dated 20th December, 2005 after observing that this Court had already opined that the MOU is forged and fabricated. 8. It must be mentioned at this stage that the application filed by M/s. Sparrow Technologies Limited under Section 8 of the Act, i.e. IA No. 4050 of 2002 in CS (OS) NO. 21349 of 2002, was dismissed by this Court on 11th July, 2003. After setting out the respective contentions of learned counsel for the parties, this Court set out the following reasons for dismissing the application: “10. On the aspect of using the stamp paper much earlier to the date when Memorandum of Understanding was executed, the defendant replied that the whole exercise of Crl M C 1525/2006 Page 5 of 19 executing the minutes at Goa and also exercise of executing the Memorandum of Understanding was done at a very short time. The stamp paper which was already available with the defendant was therefore used, I am not impressed by such reasons as the defendant was under legal obligation to purchase the stamp paper for the specific purpose for which it was specifically required to be used. 11. Defendant has also not been able to produce the original Memorandum of Understanding. Since the defendant desired this Court to believe the execution of Memorandum of Understanding which has since been denied by the plaintiff, burden heavily lies on the defendant to prove the execution of such document. He ought to have discharged his obligation by producing the original documents on record which he states has since been lost or misplaced details of which are again missing in the application nor does this application state as to whether the defendant took any step by lodging any report with the authorities about such misplacing of the document. 12. Defendant has further stated that the signatures of the plaintiff on this document can be got verified by sending it to the Handwriting Expert. I may state that unless original document is on record, no authentic report can be executed from the Handwriting Expert as this Court has experienced in so many cases that FSL has expressed their inability to give detailed report in the absence of original documents. I am afraid if FSL would be able to give authentic report on the basis of the Photostat copies of the documents. Even otherwise perusal of the photostat copies of such documents leaves doubt in my mind about authenticity of such document as it is noticed that arbitration clauses has been shown on the last page of the document despite there being sufficient space available on page 3 was left blank. Instead arbitration clause was incorporated on the next page, if one looks to page 1 of this document this would show that this page was completely typed out whereas page 2 was not typed out in the same manner but arbitration clause was carried forward to last page of this document. What made the defendant to do so is not understandable and therefore doubt goes in my mind about the genuineness of this document. Even otherwise defendant has not been able to show as to how he reached Goa on the same date after having signed the Memorandum of Understanding at Bangalore. The defendant was under legal obligation to clear this doubt in the mind of the Court particularly when plaintiff had taken up this plea. The defendant has deliberately concealed this fact from the Court and therefore, inference can be drawn against him that this Memorandum of Understanding was never executed between the parties on 9th January, 1998. 13. For all these the application of the defendant merits dismissal. Dismissed as such.” (emphasis supplied) Crl M C 1525/2006 Page 6 of 19 9. It must also be mentioned at this stage that not satisfied with the order dated 15th February 2005 passed by the learned MM directing the investigation by the police without any specific outer time limit, the complainant filed a petition Crl. Misc. 902/2005 in this Court under Section 482 CrPC. By an order dated 22nd March, 2005 notice was directed to issue to the State returnable on 9th May, 2005. Thereafter when an FIR came to be registered on 17th May 2005, Crl. Misc. No. 902 of 2005 was disposed of on 4th July 2005 as having become infructuous. 10. After the petitioner‟s application seeking anticipatory bail was rejected, the present petition was filed on 14th March 2006. On 21st March 2006, the following order was passed by this Court staying the order dated 15th February 2005 passed by the learned MM: “Crl.M.C.No.1525/2006 Notice to respondents for 20th July, 2006. Crl.M.A.2511/2006 Notice for the date fixed. The Metropolitan Magistrate at the first instance dismissed the complaint of the complainant vide order dated 26th February, 2003 for alleged commission of offence under Section 467/468/471/420/34 IPC as is seen from the order passed by the Metropolitan Magistrate. The said order dismissing the complaint under Section 203 Cr.P.C. was passed as the evidence produced by the complainant/ respondent was not found sufficient for the purposes of summoning the petitioner as an accused. Dissatisfied with the said order complainant preferred a revision petition before the Additional Sessions Judge where the complainant had also made an application under Section 311 Cr.P.C. of the Code of Criminal Procedure seeking permission of the court for leading additional evidence which permission was granted by the Additional Sessions Judge vide order dated 13th August, 2003. Thereafter, the case had been sent back to the Metropolitan Magistrate. The Metropolitan Magistrate instead of adhering to the directions proceeded entirely in a different direction now directing the Investigation Officer to investigate the matter and submit its report before the court on 20th May, 2005. Having gone through these three orders, I am of the opinion that Metropolitan Magistrate seems to have acted contrary to what was directed to him by the Additional Sessions Judge. As is seen from the order of the Additional Sessions Judge the Metropolitan Magistrate was only to confine his judicial function to the extent of recording additional evidence pursuant to the acceptance of the application made under Section 311 Cr.P.C. and not Crl M C 1525/2006 Page 7 of 19 beyond that. Pursuant to passing such orders the police came into action and had obtained non bailable warrants thus necessitating the petitioner to make an application for seeking anticipatory bail which prayer was turned down by the Additional Sessions Judge. Looking to the order passed by the Metropolitan Magistrate on 15th February, 2005, I am of the opinion that it is a fit case where prima facie it appears that Metropolitan Magistrate had acted contrary to the orders passed by the Additional Sessions Judge. Therefore, this order needs to be stayed. Consequently, the impugned order dated 15th February 2005 shall remain stayed. Investigation being carried out by the Investigator pursuant to the passing of the impugned order shall also be kept in abeyance till further order. Dasti.” Submissions of Counsel for the parties 11. The submissions of Mr. K.K. Sud, learned Senior counsel appearing on behalf of the Petitioner are as under: (i) In terms of Section 195 (1)(b)(ii) read with Section 340 CrPC no cognizance could be taken of an offence alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, except on the complaint in writing by the presiding officer of the Court or of such person as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate. It is submitted that in the instant case instead of filing an application in this Court seeking a direction in terms of the above provisions, the Respondent No.2/ Complainant approached the learned MM who, by the order dated 26th February 2003, rightly declined at that stage to issue summons since this Court was still seized of the proceedings in which the document in question was produced. (ii) It is pointed out that in the FIR, against the column titled “occurrence of offence” the column “day” is left blank and columns “Date from” and “Date to” are both filled up with the word “unknown.” Even the columns “Time from” and “Time to” are filled as “unknown.” Reliance is placed on the judgment in Iqbal Singh Marwah v. Meenakshi Marwah (2005) 4 SCC 370 to contend that the only exception carved out for not following the procedure outlined in Section 195 (1)(b)(ii) CrPC is where the forgery of the document has been committed even prior to it being produced in a proceeding in any Court whereas it in the instant case the date of commission of the Crl M C 1525/2006 Page 8 of 19 offence is “unknown”. (iii) In any event the learned ASJ could not have, while exercising the revisional jurisdiction, entertained an application under Section 311 CrPC for producing a document before the learned MM particularly when there was no proceeding pending in the Court of the learned MM. There is no known provision of law for the learned ASJ to have given such a direction. (iv) As regards the order dated 15th February, 2005 it is submitted that the learned MM acted contrary to the directions issued by the learned ASJ asking him to permit the complainant to produce the alleged copy of the MOU filed by the accused in this Court and to examine the document himself. Instead, the learned MM erroneously referred the matter for investigation to the police under Section 202 CrPC. (v) The direction issued by the learned MM to the complainant to file copies with the Ahlmad for transmission to SHO was also illegal. As a result of the said direction, the police mechanically registered the FIR without any investigation whatsoever. (vi) Without prejudice to the above contentions, the petitioner would be satisfied if the matter was remanded to the learned MM with a direction that he should consider the report of the police under Section 202 CrPC before directing the registration of an FIR. He adds that once the cognizance taken by the learned MM, there is no question of acting on an FIR. (vii) Relying upon the judgment of the Supreme Court in Devarapalli Lakshminarayana Reddy v. V.Narayana Reddy 1976 (3) SCC 252, it is submitted that once the cognizance is taken, the Magistrate has to logically proceed to the next stage of examining the pre- summoning evidence and cannot revert to the procedure under Section 202 CrPC by requiring the police to investigate. He has to only proceed in accordance with the procedure embodied in Chapter XV of the Cr.PC by examining the complaint and documents filed by the complainant. In other words, having been directed by the learned ASJ to resume the proceedings at the post-cognizance stage i.e. the stage of examining the pre-summoning evidence, the MM could not have straightway gone to the further stage of calling for a police Crl M C 1525/2006 Page 9 of 19 report under Section 202 CrPC. (viii) Referring to the judgment in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi (1976) 3 SCC 736 it is contended that although in terms of Section 202 Cr.PC the accused is not entitled to be heard on the question whether process should be issued against him or not, the MM is duty bound to examine the case on merits and take into consideration inherent improbabilities, if any, appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations. Reliance is also placed on the judgments in Jamuna Singh v. Bhadai Shah AIR 1964 SC 1541 and Mohd. Yousuf v. Smt. Afaq Jahan 2006 (1) Crimes 81 (SC). 12. Appearing for the Respondent No.2 Mr. Santosh Kumar, learned counsel submits that the inference to be drawn from the order dated 11th July, 2003 of this Court while dismissing the application under Section 8 of the Act by the complainant M/s. Sparrow Technologies Limited is that the copy of the MOU produced was indeed forged. Relying on the judgment in Iqbal Singh Marwah (supra) it is submitted that since the document in question was forged even before its production before this Court, the procedure outlined in Section 195 (1)(b)(ii) CrPC was not required to be followed. Reliance is also placed upon the judgments in Gopalakrishna Menon v. D.Raja Reddy (1983) 4 SCC 240 and Sachida Nand Singh v. State of Bihar (1998) 2 SCC 493 to contend that even if the original of the document in question was not produced, it would make no difference to the MM taking cognizance of the complaint regarding forgery. Mr. Kumar has also placed reliance on the judgments in Rama Shankar Lal v. The State of U.P. 1971 (3) SCC 905 and Budhu Ram v. State of Rajasthan 1963 (3) SCR 376. 13. It is then contended that the power under Section 482 Cr.PC should be exercised sparingly and no case has been made out by the petitioner in the instant case for interference by this Court. Reliance is placed on the judgment of the Supreme Court in Indian Oil Corporation v. NEPC India Crl M C 1525/2006 Page 10 of 19 Limited (2006) 6 SCC 736 and State of Karnataka v. Pastor P. Raju (2006) 6 SCC 728. 14. Notwithstanding the above submissions, it is submitted by the counsel for Respondent No.2 that there would be no objection to the case being remanded to the learned MM to proceed in accordance with the directions issued by the learned ASJ. Issues for determination 15. On consideration of the aforesaid submissions, the following questions arise for determination by this Court: (1) Could Respondent No.2 validly have preferred a complaint before the learned MM in respect of the alleged forgery of the copy of the MOU produced in CS (OS) No. 2349 of 2002 in this Court without resorting to the procedure outlined in Section 195 (1)(b)(ii) read with Section 340 CrPC? (2) Was the learned ASJ justified in entertaining the application filed by the complainant under Section 311 CrPC for producing the document before the MM at the pre-summoning stage and remanding the complaint to the learned MM for that purpose? (3) Was the learned MM justified by directing investigation by the police under Section 202 CrPC by the impugned order dated 15th February 2005 and was such direction contrary to the direction issued by the learned ASJ? (4) Was the consequent registration of the FIR justified in law? (5) Has a case been made out for interference by this Court under Crl M C 1525/2006 Page 11 of 19 Section 482 CrPC and to what relief? Issue No.1 16. The purport of Section 340 CrPC read with Section 195 (1)(b)(ii) is that the offence committed when a document that is forged is produced in judicial proceedings in a Court there is, apart from an offence being committed, an interference with the administration of justice and the offender should not go unpunished only because the party affected may choose not to file a complaint regarding such forgery. The question whether the procedure outlined in Section 340 CrPC read with Section 195 thereof, viz., that the court in whose proceedings the offence is committed should itself give a complaint in writing for registration of a criminal case, would alone apply even where the document in question was forged even prior to its production in the court stood settled in the judgment of the Supreme Court in Sachida Nand Singh (supra). After examining the apparent conflict between the judgments in Patel Laljibhai Somabhai v. State of Gujarat (1971) 2 SCC 376 and Gopalakrishna Menon (supra) it was authentically stated by the judgment in Sachinda Nand Singh (supra) is that bar created by Section 195 (1)(b)(ii) CrPC “is not applicable to a case where forgery of document was committed prior to that document being produced or given in evidence in a proceeding in any court.” 17. The issue came to be referred to a Constitution Bench of the Supreme Court in Iqbal Singh Marwah (supra) on account of a conflict between Sachida Nand Singh (supra) which was by three Hon‟ble Judges and an earlier judgment of a three-Judge Bench in Surjit Singh v. Balbir Singh (1996) 3 SCC 533. In Iqbal Singh Marwah (supra) the Constitution Bench confirmed the