SUNIL GUGLANI AND ORS. Vs. STATE AND ANR.

JUDGEMENT

(1.) THIS petition has been preferred by the Petitioners assailing an order dated 10th November 2008 passed by learned MM summoning the Petitioners herein as accused persons under Sections 346/468/471/474/120B/420 IPC observing that the complainant has shown prima facie that these offences were committed by the Petitioners/ accused persons.

(2.) BRIEF facts relevant for the purpose of deciding this petition are that the Respondent No. 2 filed a complainant under Section 156 Code of Criminal Procedure for registration of an FIR under Section 420/463//468/471/474 read with Section 120B alleging therein that the Petitioners herein had fabricated a notice purported to have been issued by Respondent No. 2 whereunder it was shown that the Respondent had offered Petitioners to purchase the property of the company valued several crore of rupees for a meager amount of Rs. 30 lac and this forged notice was filed by the Petitioners in a pending suit along wit h a written statement in the court of learned ADJ. After coming to know of the forged notice, complainant engaged services of a handwriting expert and obtained his opinion who opined that the signatures on the notice had been fabricated with the help of a scanner and a computer. The learned MM did not consider it appropriate to get an FIR registered and instead asked the complainant to lead evidence in the court. The complainant led evidence by way of examining himself and the handwriting expert. The evidence of handwriting expert is to the extent that the alleged notice was a fabricated document since the signatures on the alleged notice were scanned with the help of a scanner and a computer and they were not the original signatures of Respondent No. 2 and the complainant in his testimony testified that this notice was fabricated in order to play fraud and fabricated notice was placed on the court record in the suit filed before Shri Lal Singh, ADJ along with written statement. The forged notice dated 16th November 2005 was not issued by him and was a document created by the accused persons/Petitioners in collusion with some known computer professionals with a motive to grab the property of the company.

(3.) OFFENCE under Section 471 IPC comprises of using a forged document or electronic record as genuine and Section 474 IPC comprises having possession of forged documents with the intention to use it as genuine. Since in the present case, the alleged forged documents had already been used, thus the offence under Section 474 IPC of intending to use could not arise and the only offence made out from the evidence of complainant and hand writing expert was under 471 IPC. I, therefore, consider that the learned MM while passing order dated 10th November 2008 ought not have summoned the accused / present Petitioners under Section 346 (which seems to be a typographical error and instead of 463, 346 seems to have been typed) 468, 474, 120B and 420. Section 120B IPC is also not made out because the complainant had not disclosed ingredients of conspiracy. The complainant in his testimony simply stated that after filing of complaint it came to his knowledge that Sarvesh Mahajan, Mukul Mahajan, Ms. Kavita Mahajan and D.K. Gupta were also involved in conspiracy as they were also parties to Suit No. 1261 of 2006. I consider that somebody cannot be summoned for conspiracy on such a statement. If summoning is done on such casual statement then a complainant can name any number of persons and get them summoned to the Court only on the basis of a bare statement that so and so are involved in a criminal conspiracy. The only offence disclosed from evidence is Section 471 IPC and the Petitioners should have been summoned only under Section 471 IPC. The petition is allowed to that extent.