ISHWAR DAS Vs. RAM DAS GUPTA AND A

JUDGEMENT

(1.) A suit was filed by the first two petitioners Ishwar Das and Massey Das on the 27th May. 1981 against Opp. party No. 1 Ram Dutta Gupta, and three others for specific performance of agreement. The plaintiffs of the suit filed various documents including a receipt alleging that the same had been executed by the contesting (opposite-party No. 1) who after the service of the summons of the case and on coming to know that reliance has been placed by the plaintiffs of the suit on the said receipt, reported I he matter at police station Sardar Bazar Agra in Feburary 1982, asserting that the receipt has been forged by the plaintiffs of the suit. He claimed that it had not been executed by him. The investigation that follow resulted in the submission of a final report to the effect that prima facie no case was made out against these four petitioners who had been arrayed as accused in the report. On the request of the complainant informant the Magistrate directed for further investigation. Again an identical conclusion was recorded by the investigating officer. The informant (Opp. party No. 1) re-appeared before the II Addl. Chief Judicial Magistrate, Agra and moved an application on the 11th of November, 1982 praying that the disputed receipt relied upon by the plaintiffs of the suit be further examined by the Investigating officer and report he submitted. An application was made in the sub by the Investigating officer for giving the disputed receipt which was kept under sealed cover in his custody for examination. This application was rejected by the Munsif. Then this petition under Sec 482 of the Code of Criminal Procedure was moved on the 10. 7. 1984 the matter was on one hand tending in the civil court and un the other, with the Investigating officer who had acquired jurisdiction on the basis of the order passed by the Magistrate on the application given by Opp. party No. 1 on the November 11, 1982. the petitioners have prayed for quashing the entire proceedings arising out of Crime No. 286 of 1982 registered under Sees. 468, 471 and 420 of the Indian Penal Code pending in the court of the IInd Addl. Chief Judicial Magistrate, Agra. I have heard the learned counsel for the parties and have carefully considered the points canvassed before me. Shri Dinesh Chandra Srivastava, represented the State Government ahs also been heard. The contention of the learned counsel for the petitioners is that because the cognizance of the alleged offence cannot be taken by the Magistrate in view of the provisions contained in Sec, 195 (i) (b) (2) of the Code of Criminal Procedure it will be a futile exercise and, therefore, the order passed by the Magistrate for re-investigation the proceedings incidental thereto be quashed. It may be recalled that the question as to whether the receipt relied on by the petitioners in the civil suit is genuine or a forged and fabricated document is to be finally adjudicated upon by the civil court. The document had been produced in the suit and reliance has been placed there on by a party. Cognizance for the offence punishable under Sees. 467 and 471 and identical sections in respect of that document'-cannot be taken by any criminal court unless a complaint to I that effect a filed by the Court in which the document was, produced. This position of law is not disputed on behalf of the contesting Opp. party. The learned counsel, however urged that Sec. 420 of the Indian Penal Code has also been mentioned in the report made by the Opp. party No. 1 and, therefore, the matter in the hands of the police can proceed in that respect. The report Annexure ii was read out before me. It recites only one fact, namely that interpolution had been made in the receipt which is a fabricated document. On this basis it is said that a case under Sec. 420 of the Indian Penal Code has also been made out. In my opinion the provisions of this section ate not attracted. The grievance of Opp. party No. 1 is this much only that the receipt is forged and further that some interpolations had been made therein. It can, therefore, be reasonably concluded that the fact which is investigated under the orders of the court is directly and substantially involved in the civil suit. I have shows above that the police had made an attempt to seize the disputed document but was not successful at that stage. It has submitted final report twice to the effect that no case was prima facie made out against the petitioners. The learned Magistrate, while directing the police to persue that receipt in order to find out whether or not it has been executed by Opp. party No. 1, lost t sight of an important. fact that the same, matter is involved for determination in the civil suit. He also did not apply his mind to the main issue as to whether he can straight away take cognizance of the offences relating to the alleged forgery of the document. He has, therefore, erred in passing an order on the application of Opp. party No. 1 that the matter be further investigated. Learned counsel for Opp. party No. 1 contended that this Court has refused to interfere with the matter if it is at investigation stage. This is true but the position in the instant case is entirely different. Here the primary question is as to whether the order passed by the Magistrate requiring the police to investigate suffers from infirmity. I have already shown above that if all the facts specially the fact that he cannot take cognizance of the offence were before the Magistrate he would not have issued directions exercising his power as a matter of fact. The jurisdiction which vested in the Magistrate has not been properly and legally exercised and, therefore, the matter calls for interference. It is not to case where investigation had not concluded or in which the police dervices statutory power to investigate the crime. On the making of a report of cognizable offence. The Magistrate erroneously conferred that right on the police officer as shown above and, therefore, the order conferring that power can in my opinion be recalled. The apprehension of Opp. party No. 1 that his right to prosecute the applicants on the charges of forgery etc. shall come to an end is not well founded, If in the civil suit his assertion that the document is a forged one or that interpolation had been made in the receipt by the plaintiffs of the suit, Opp. party No. 1 will be within his rights, to press before the civil court for making a complaint against the forgerer. The case presents a peculiar feature where exercise of the inherent powers of the Court is genuinely called for. For the said reasons the order passed by the Magistrate on the application dated November 11, 1982 given by Opp. party No. 1 directing for re-investigation of crime No. 286 of 1982 registered at police station Sadar Bazar, Agra is quashed. The application is disposed of accordingly. Application disposed of. .