Discharge Application; Vijaysinh Madhavdas Ashar Vs. State [Gujarat High Court, 07-10-2016]

Criminal Procedure Code, 1973 – Section 207 – Discharge Application – Scope of – While considering the discharge application, the Court is required to evaluate the material and documents on record for limited purpose i.e. to find out that whether facts emerged from such material even if taken on their face value, is enough and disclosing the existence of all the ingredients to constitute the alleged offences. The Court may, for this limited purpose, sift the evidence as it cannot be expected at such initial stage to accept all that the prosecution story as gospel truth even if it is opposed to commonsense or the broad probabilities of the case. Therefore, at the stage of framing of the charge, the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.


IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL REVISION APPLICATION

CORAM: HONOURABLE MR.JUSTICE S.G.SHAH

Date : 07/10 /2016

(AGAINST ORDER PASSED BY SUBORDINATE COURT) NO. 725 of 2015

VIJAYSINH MADHAVDAS ASHAR & 7….Applicant(s) Versus STATE OF GUJARAT & 1….Respondent(s) Appearance: MR KS NANAVATI, Sr. ADVOCATE FOR NANAVATI ASSOCIATES, MR VIVEK N MAPARA, ADVOCATE for the Respondent(s) No. 2

JUDGMENT

1. Rule. Learned advocate Mr. Vivek N Mapara waives service of notice of rule for respondent no. 2 and learned APP Mr. K. P. Raval waives service of notice of rule for respondent no. 1 State.

2. Heard learned Senior Advocate Mr. K S Nanavati appearing for Nanavati Associates for the applicants, learned advocate Mr. Vivek N. Mapara for the respondent No. 2 and learned APP Mr. K P Raval for the respondent No. 1 – State being a formal party.

3. I have also perused the record which runs in almost 300 pages and includes relevant documents to decide present application.

4. The petitioners herein are accused whereas respondent no. 2 is original complainant in Criminal Case No. 40 of 2008 before the Court of Chief Judicial Magistrate at Jamnagar. Such complaint is filed under

Sections 258, 259, 260, 261, 262, 465, 468, 471, 474, 120B, 34, and 144 of the Indian Penal Code.

The sum and substance of the complaint is to the effect that the petitioners herein had fabricated and forged an agreement dated 21st May, 2007 alleged to be signed by respondent no. 2- the complainant herein. The agreement in question is related to the disputed property between the parties and for the purpose of selling entire share in the property in favor of the petitioners herein for a consideration of Rs. 60 lakhs, subject to the outcome of First Appeal No. 1313 of 1985, which is pending for consideration before this High Court. It is contended by the petitioners herein that during the dispute regarding partitions of family properties between the petitioners and the respondent no.2 with other co-parciners, the group including respondent no. 2 herein had a desire to dispose of the said property in order to generate funds and therefore when petitioner nos. 1 to 5 herein and husband of petitioner no. 6 and father of petitioner nos. 7 to 8 herein were interested in buying the remaining share of the property which was in their possession since long, negotiations had taken place between the two groups which culminated into an agreement and then it was put on stamp paper of Rs. 100/-, copy of which is produced at Annexure ‘E’ of the petition. The history and details of the dispute and properties between the parties has been well described in para. 2.1 to 2.7 of the petition and therefore at present we are not concerned with the details of the property but are concerned with the genuineness of the agreement dated 21st May, 2007. Therefore, those details are not reproduced herein.

5. It seems that the complainant is quite clear that no such agreement has ever been executed by him and thereby such agreement is a forged document. He has filed Criminal Inquiry No. 40 of 2008 contending that copy of such document dated 21st May, 2007 is filed in the Court, so as to get the possession and ownership of the ancestral joint property, by the present petitioner. The complaint shows that the value of such joint property namely “Laxmi Bhuvan ” in the city of Jamnagar is about Rs. 82,62,000/-. The complainant has disclosed the details in the complaint that how and why such document is forged and therefore, why petitioners have committed the offence as alleged in such complaint. It is categorically stated in such complaint that the stamp paper in question which bears Sr. no. H001023 was never available in the market for use on the day of execution of such agreement i.e. 19th May, 2007, when stamp paper was sold by its vendor and on 21st May, 2007 when it was alleged to be executed by the complainant. As per the confirmation of District Treasury such stamp was released from treasury in favor of the stamp vendor Dhirajlal D Joshi only on 24th January,2008. Thereby, it is alleged that before stamp was available with the stamp vendor for selling to the users, it can never be used for executing any agreement and thereby on 19th May, 2007 and on 21st May, 2007, when stamp paper in question, upon which agreement is typed and endorsed, was not available and therefore it cannot be executed at all. In other words, it is categorically alleged that the stamp paper has been created only after 24th January, 2008, when it was available with the vendor for sale but endorsed back dated on 21st May, 2007 and similarly the signature of the complainant is forged on such document.

6. Said complaint is supported by Affidavit and statement of complainant recorded before the Chief Judicial Magistrate but, after perusal of relevant documents and statement of the complainant on oath before it by a reasoned speaking order, the Court has directed to issue summons upon the petitioners under Sections 465,468, 471, 474, 120B, 34 and 114 of the IPC. Therefore, when the Chief Judicial Magistrate has passed the order dated 28th April, 2011 to issue summons, prima facie it becomes clear that he has applied his mind when summons is not issued under Sections 258,259,260,261,262, though complaint is disclosing such Sections.

7. It seems that after issuing such summons, the Trial Court has recorded pre-charge evidence since case was proceeded under Section 202 of the Code of Criminal Procedure as summons case and after recording such evidence and after hearing both the sides, the Trial Court has; by impugned order dated 9th October, 2015; ordered to frame charges against the petitioners only under Section 426, 468, 471,474, 120B,34 and 114 of the IPC.

8. Being aggrieved by the said order of framing charge, by the impugned order dated 9th October,2015, present petitioners have preferred this revision wherein my predecessor has on 11th January, 2016, stayed the operation of the impugned order which is in force till date.

9. It seems that after initial order dated 28th April, 2011 the Trial Court has assigned a regular Criminal Case No. 1989 of 2011 to the Criminal Inquiry No. 40 of 2008 and therefore impugned order is in Criminal Case no. 1989 of 2011.

10. The sum and substance of the submissions of the petitioners herein is to be considered with reference to the dispute on hand only as the dispute and issue at present is quite limited that whether complaint as such can be continued and charge can be framed against the petitioners in such complaint or not when the alleged forged document is part of the Court proceedings, because it is contended by the petitioner-accused that the document in question is produced in Civil litigation and therefore, if at all it is forged document, then private complaint is not maintainable because of bar to entertain such complaint as per provisions of Section 195 of the Code of Criminal Procedure.

11. It is undisputed fact that the copy of the document in question is produced in a Civil litigation between the parties and such dispute is pending before the High Court in First Appeal. However, though both the sides tried to explain in detail about the property in question and several disputes between the parties, I do not intend to recall all such factual details in detail for the simple reason that such details, issue and disputes are sub-judice in civil litigation and more particularly those details of civil dispute regarding entitlement, right and share of any of the litigant in any property is not relevant and material to decide present controversy.

12. It is undisputed fact that the present controversy is only with reference to the genuineness of the document dated 21st May, 2007 and right of the respondent no. 2-the complainant to file such private complaint directly before the competent Court without any express order to that effect by the Civil Court where such disputed document is filed.

13. It is also undisputed fact that copy of document in question is filed on record of the civil proceeding by the present petitioners.

14. If we peruse the copy of the documents which is produced at Annexure ‘E’, it transpires that it is drafted in the form of an agreement as if it is entered into between the present petitioners with one Ajitsingh Madhavdas who is now no more i.e. expedite on one part as the petitioner who has got such agreement executed by the respondent no. 2-complainant as Power of Attorney holder of (1) Ramesh Morarji, Ashwin Morarji, Hiraben Moraraji and Kusum Chandrakumar as legal heirs of Morarji Ravji. (2) Hansaben Parshotam, Rupali and Kunjal as legal heirs of Parshottam Ratan Singh. (3) Jayaben Vasant, Damayantiben and Kirit as leagl heirs of Vasanji Ravji. (4) Manjulaben Karsandas as leagl heirs of Karsandas Ravji (5) Sunitaben Chabiben as legal heirs of Chabiben Ravji and (6) Kanan Ajay as legal heirs of Pratapsingh Ravji.

The text of the document reads to the effect that the executor i.e. present respondent no. 2- the complainant has executed such agreement in favor of the present petitioner on behalf of all other legal heirs of Ravjibhai as their Power of Attorney holder, that whatever share the executors have in the property in question; being “Lakshmi Bhuvan” in Jamanagar city bearing City Survey No. H/4/348/349 and for partition of such property, Special Civil Suit No. 54 of 1974 was filed and First Appeal No. 1313 of 1985 is pending before the Gujarat High Court; is to be sold by the executor in favor of the present petitioner for Rs. 60,00,000/- and that executor have not entered into any gift, lease, sale or rental agreement of any disputed portion of the property in question and they are not supposed to enter into any such transaction herein after. It is further endorsed that such transaction is to be completed within two months from the date of decision in First Appeal No. 1313 of 1985 and regular register sale deed is to be executed by the respondent. However, one surprising endorsement is there in such agreement in as much as though, agreement is in favor of the petitioners, the endorsement is to the effect that it is executed by free will and by understanding the same and by reading the same and after thoughtful consideration and, it is endorsed to be binding on all heirs of the executor but though the agreement is in favor of the present petitioner, and the original of it is top be kept with the executor and not the beneficiary of the agreement i.e. present petitioner. It is quite clear and obvious that when any document is executed in favor of any individual person then original copy of such document is required and to be kept by the beneficiary and not by the executor. As against such requirement which is otherwise followed universally, it is endorsed in such agreement that original is to be kept with its executor though the contents of the agreement is in favor of the present petitioner. Such agreement is simply shown and signed in the name of the respondent no. 2 without the signature of any witness or any other, person therefore prima facie it seems that whoever has drafted and created such document has tried to create a liability upon the respondent no.2- complainant to see that original document may not be produced on record because it could not be objected by the complainant but in that case liability may be on the complainant as executor of the document to produce its original.

15. The record also shows that in fact on 5th February, 2008, the executor; with his co-parceners for whom it is alleged that he has signed the disputed agreement; has in fact entered into a registered sale transaction of their share in the suit property in favor of Milan Gordhandas Nanda, Harish Keshavji Nanda and Dipak Keshavji Nanda. The copy of such registered sale deed is also produced on record which is signed by respondent no. 2 as power of attorney holder of other co-praceners with him and sale deed also discloses the sale price being paid by purchasers through different cheques to different persons who are concerned with such property and who are shown as executor of agreement dated 21st May, 2007. It is therefore contended by the petitioners that since respondent-complainant has committed the breach of the agreement dated 21st May, 2007, they have produced its copy before the Court but otherwise original agreement is possessed by the complainant and therefore no such complaint can be filed.

16. In support of their submissions learned Senior Counsel for the petitioners has referred several information from the record and relied upon few decisions. However, the fact remains that though petitioners herein have obtained an opinion from handwriting expert and though they have challenged initially order dated 5th April, 2008, in Criminal Inquiry No. 40 of 2008 in Special Criminal Application No. 914 of 2008 by judgment and order dated 31st March, 2009, the co- ordinate bench of this High Court has dismissed such petition and allowed to continue the inquiry under Section 202 of the Code of Criminal Procedure.

17. far as genuineness of the document is concerned the learned advocate for respondent no. 2-complainant has relied upon several depositions recorded during the inquiry under Section 202of the Code of Criminal Procedure. The details of which are summarized as under.

17.1. In His deposition the complainant has categorically stated on oath that the document under question i.e. agreement dated 21.05.2007 does not bear his signature and that he has never signed such original documents. He has been cross examined by the advocate for the present petitioner but they could not rebut the evidence and therefore prima facie it is to be believed that the document does bear the signature of the complainant.

17.2. Bharat Nanalal Rathod the stamp-vendor has stated on oath in his deposition during the inquiry under Section 202 that he has referred the person who was seeking the stamp paper of Rs. 100/- of back date to one Dhirubhai, one another stamp vendor who is dealing with such old stamp papers but he does not confirm the name of the person stating that it was before couple of years. However, he confirms that one Indrasingh Madhavdas has come to him for the purpose. It is undisputed fact that Indrasinh Madhavdas is the petitioner no. 2 herein and accused before the Trial Court. The witness also confirms that he had managed to contact Indrasinh with Dhirubhai, and Dhirubhai has supplied the stamp as per requirement of Indrasinh. He also confirms that Indrasinh has asked him about back dated stamps. This part of evidence confirms the contentions in the complaint and when petitioner could not rebut such evidence even after cross-examining the witness then there is no reason to believe at such interim stage.

17.3. Rajendra Mohanbhai Tank is an employee of Special Treasury office who is dealing with such non-judicial stamp papers, he confirms in his deposition that all such non-judicial stamp- papers are coming from the office of Superintendent of Stamps, Ahmedabad and whenever stamp papers are issued by such office it is being noted in the register. He has brought the register of such noting from which he deposed that the stamp-paper bearing Sr. No H001023 is alloted to vendor only on 23rd August, 2008 and he produced the relevant page no. 46 of such register after attesting which is produced at Exhibit 119. It is quite clear that the stamp number is the same which is used for the alleged execution of agreement dated 21st may, 2007. The petitioner herein could not rebut his evidence though the witness was cross examined, in as much as, only two questions were put to the witness which are practically material i.e. (1) the register does not have the handwriting of the witness and that (2) he has not disclosed such fact to the police. However the fact remains that when the government record is produced from the office person and when it is a record which is kept during regular activity of the government office then there is no reason to disbelieve the same. The relevant document regarding such allotment of stamp paper is also available on record.

17.4. Rajnikant Devasibhai Deputy Mamlatdar of Mamlatdar Office at Lalpur, has also confirmed in his deposition that D.B. Joshi is a stamp vendor working under his office and he has to deposit the account of stamps in the office of the witness. However, he is not personally aware about the stamp in dispute and therefore he could not confirm that the stamp in question was sold to whom. Evidence of this witness is not much material but it is corroborative and supportive to other evidence to complete the chain of sequence and facts.

17.5. Therefore, all above evidence is practically confirming prima facie evidence regarding non-genuineness of the documents in question. In view of the facts, when there is prima facie dispute regarding authenticity of the agreement in question the Trial Court is right in issuing process against the petitioner-accused and also right in passing the impugned order confirming that the petitioner should be charged as aforesaid.

18. It is also undisputed fact that such document is to be used for settling the Civil dispute but it is not used for deciding the Civil dispute between the parties and practically it is not created during the judicial proceedings pending before any Court and therefore there is no need of prior sanction under Section 195 of the Code. There is no bar or ban on the aggrieved person to file such complaint on his own and thereby there is no restriction on the Court to proceed further in such complaint, subject to prima facie evidence disclosing commission of offence by the accused to proceed against such accused in accordance with law. In view of such facts and other details, regarding dispute between the parties with reference to the property in question, are not much material.

19. Learned Senior counsel for the petitioner has referred the core ingredient of Sections 465,468,471, 474,120B, 34 and 114 so as to impress that there is no ingredient of any such offence that might have been committed by any of the petitioners either in the complaint or in the evidence and therefore framing of charge is not proper. However the fact remains that the Trial Court has proceeded further in detailed inquiry under Section 202 and therefore at the time of framing charge what is material is only prima facie evidence and not the full fledged evidence to confirm the guilt of any particular person. It is evident from record that prima facie evidence confirms that offence has been committed and it is settled legal position that if any document is forged then primary aspect would be the persons in whose favor the document is so forged. It is also undisputed fact that the document in question is otherwise in favor of the present petitioner and therefore there is reason to believe that petitioners have forged the same. In addition to such legal presumption, there is prima facie evidence by a witness confirming the name of atleast petitioner no. 2, who had approached the witness to purchase the back dated stamp. It is also clear from record that when complainant had sold their share of the property by registered sale deed, the petitioners have purposely created such documents so as to pressurize the complainant, to settle the dispute in their favor.

20. In support of his submissions learned Counsel for the petitioners has relied upon following decisions:-