BINAY KUMAR MANDAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE two petitioners who have been impleaded as accused in Complaint Case No. 473/2004 are aggrieved by order dated 22.3.2006 passed in Cr. Revision No. 133/ 2004 by the learned Presiding Judge, Fast Track Court No. IV, Katihar, whereby has set aside the order dated 10.9.2004 passed by the learned Chief Judicial Magistrate, Katihar, dismissing the Complaint Case No. 473/2004 under Section 203 Cr.P.C. The learned Presiding Judge, remitted the case back to the learned Chief Judicial Magistrate, Katihar, for taking proper action. An additional prayer has also been made for quashing of the consequential order dated 5.6.2006, whereby the learned Chief Judicial Magistrate, has been pleased to take cognizance under Sections 465, 466, 469, 471 and 120B of the I.P.C. One Birendra Kumar Sinha, an employee of Katihar Nagar Parishad and working as Tehsildar (Tax Daroga) Incharge of settlement of land of Nagar Parishad, Katihar, for shops, impleaded herein as O.P. No. 2, filed the aforesaid complaint alleging inter alia that the two petitioners who are also employees of the Nagar Parishad and were opposed to the complainant and at the election of the Association which took place in the year 1986, petitioner no. 1 was elected as Secretary and petitioner no. 2 as President and ever since they had not taken any steps to hold elections although 18 years had passed and the complainant had raised his voice against the same in the year 2003 by reason whereof they had become inimical to the complainant and started making plans to jeopardize the future prospects of the complainant. It is said that on 26.12.2003 the Executive Officer, Katihar, had entrusted the works of different employees with direction to assume charge of the duty within three days but as it appears the two accused on basis of conspiracy with each other accused no. 2 added two paragraphs below the signature of the Executive Officer for which explanation had been called for from accused no. 1 by the Executive Officer and a letter of division of works bearing no. 837 dated 31.12.2003 was got signed by the Executive Officer and was served to all of the employees including the complainant. This gave occasion to the two accused to take action against the complainant so as to remove him from service as they forged the complainant's signature on token of receipt of the said order contained in letter no. 837. It is said that the forgery would be apparent from the signature and interpolation of the date below the said signature. On the basis of the said letter a show cause was issued by the Executive Officer to the complainant for legal action to which he responded by submitting his show cause clearly indicated that letter no. 837 was never served upon him and if at all service had been shown it must be a forged one. It further appears that the complainant submitted a petition before the Chairman and Executive Officer on 3.2.2004 requesting him to take proper action against the two accused responsible for such forgery or else he would be compelled to take legal action. The complainant also claims to have addressed a letter to the President of the Parishad with a copy to all members and by resolution dated 11.2.2004, the Executive Officer was directed to take proper action whereupon the Executive Officer passed an order directing the complainant to take legal action for forging his signature against the concerned Head Clerk that is accused no. 1 and a show cause notice was also issued against him. However, the aforesaid order of the Executive Officer was not served on the complainant and as such the order was not carried out by the complainant. These go to show the criminal and dishonest intention of accused no. 1. It has been claimed that this is clear case of forgery of the signature of the complainant and the signature of both the accused person and the forgery being in the public register maintained in the Nagar Parishad the same have harmed the reputation of the employee.

(2.) IT has been submitted on behalf of the petitioners that they are innocent and the learned Magistrate at the inquiry under Section 202 Cr.P.C. had rightly dismissed the complaint under Section 203 Cr.P.C. but the Revisional Court set aside the same order and remitted it back to the learned Chief Judicial Magistrate for passing fresh order. He also directed the learned Chief Judicial Magistrate for taking proper action and in accordance with the directions the learned Chief Judicial Magistrate had no other option but to take cognizance and having done so directed for issue of summons against the petitioners for facing trial under Sections 465, 466, 469, 171 and 120B I.P.C. The consequential order of the learned Chief Judicial Magistrate has been assailed as being unwarranted and an abuse of the process of the Court.

(3.) I have had the occasion to peruse the complaint filed as also the order of the learned Chief Judicial Magistrate and the Revisional Court. The learned Chief Judicial Magistrate at the first instance appears to be correct in dismissing the complaint under Section 203 Cr.P.C. since no criminal offence either from the averments in the complaint or the deposition of the witnesses at the inquiry appears to have been made out. Merely stating that the signature is forged is not sufficient and there must be a finding of the competent Court to the effect that forgery had been committed. Without any finding of a Court to that effect prosecution for forgery of the petitioners appears to be unwarranted and has to be set aside. Accordingly, it is so ordered and the impugned order taking cognizance as also the revisional order are set aside and the application is allowed.