CRM(M)/278/2021 of HEM LATA GUPTA AND ANOTHER Vs CHARANJEET KUMAR DUTTA AND ANOTHER on 30 December 2022

ORDER

1. In this petition filed under Section 482 of the Cr.P.C, the petitioners seek quashment of the private complaint titled, “Charanjeet Kumar Dutta and Anr. Vs. Hemlata Gupta” in an offence under Sections 420, 467, 468 and 471 of the IPC”. They also seek quashment of the order dated 19.03.2021 passed by the learned Sub-Judge (Special Mobile Magistrate), Jammu (hereinafter referred to as the “trial Court”), whereby the trial Court has taken cognizance and issued process against the petitioners.

2. The grounds taken in the instant petition are that thecomplaint has been filed with malafide intention to harass the petitioners and to take vengeance with them, as the respondent No.1 wants to increase the rent of the shop taken on rent from him by the petitioner No.1 and further wants to put pressure to the petitioners, as the petitioners on the basis of the complaint filed against them to vacate the premises or to enhance the rent. As per the judgment of the Hon’ble Supreme Court rendered in case titled, “State of Haryana and others V/s Ch. Bhajan Lal and others, reported in AIR 1992 SC 604”, there are certain grounds stated therein, on the basis of which, this Court can extend its jurisdiction u/s 482 Cr.P.C for quashing an FIR as well as the private complaint.

3. A complaint as well as process issued by the trial Court is sought to be quashed on the ground that the allegations are false and frivolous and the complainant in order to pressurize the petitioners has filed the said complaint. It is stated that the criminal proceedings, which have been initiated by the complainant are bad and the same having been initiated with an intention to harass the petitioners, thus, the trial Court has committed illegality in taking cognizance and issuing process thereof. The allegation with regard to the Rent Deed is also false. The necessary ingredients constituting the offence of cheating are missing.

4. It has been pleaded that in the complaint has been filed with malafide intention to take vengeance and further take personal grudge with the petitioners so the Hon'ble Supreme Court held that when the criminal proceedings are manifestly intended with malafide, maliciously and with ulterior motive for taking vengeance on the accused with a view to take personal grudge, the Court has to extend its jurisdiction in terms of section 482 Cr.P.C. The relevant portion of the judgment which speaks of as stated above is reproduced as under:- "7. Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

4. The allegation regarding execution of rent deed is wrong. Thus, there is no question of cheating. The ingredients constituting the offence are missing, as such, commission of offence punishable u/s 420 IPC is not made out. The petitioner no.1 is admittedly a tenant of respondent no.1, as such, there is no question of cheating or inducement of the property. The impugned order is a non-speaking order and against the requirement of law.

5. The Ld. Judicial Magistrate in its earlier Order dated 21.11.2020 directed the Police Station, Bakshi Nagar, Jammu to submit the report in terms of section 202 Cr.P.C and the report was submitted accordingly and when the report was submitted by the Police, the Ld. Judicial Magistrate was under legal obligation to consider the report and has to pass the order in terms of Section 203 Cr.P.C, as no offence was proved against the petitioners. The Ld.

Judicial Magistrate has not made even a whisper about the report submitted by the SHO, Police Station, Bakshi Nagar, Jammu while passing the order dated 19.03.2021.

6. Heard learned counsel for the parties.

7. The complaint was filed by the respondents against the petitioners herein before the learned Chief Judicial Magistrate, Jammu on 20.10.2020 for offences punishable under Sections 420, 467, 468 and 471 IPC and the same was transferred to the learned trial Court and the learned trial Court vide order dated 21.11.2020 while taking cognizance of the offences and after taking into account the preliminary statement of the complainants on oath, ordered that in order to ascertain the truthfulness or falsehood of the case, inquiry under Section 202 of the Cr.P.C is required to be conducted. In pursuance of the aforesaid order of the trial Court, the matter was sent for inquiry to SHO concerned, who after conducting the inquiry, submitted the report. The inquiry was required to be conducted with regard to the allegation, i.e., the offences punishable under Sections 420, 467, 468 and 471 IPC. The inquiry report submitted would show that the SHO concerned has not conducted any inquiry with regard to the commission of the said offences. The allegation was that a false Rent Deed has been executed by the accused, which had not been executed by the complainant, who was the owner of the shop. The inquiry was, therefore, required to be conducted with regard to genuineness or otherwise of the document in question and theInquiry Officer was required to obtain the opinion of the expert with regard to the said document. Without opinion of any expert in regard to examination of the document, no such opinion could be given.The trial Court after having received the report of the investigation has, vide order dated 19.03.2021, issued process to the accused for appearancebefore the Court. The said order reads as under:- “Instant Criminal complaint has been received by way of transfer from the Court of Learned Chief Judicial Magistrate Jammu on 20.10.2020. This Court after perusing the contents of the complaint and preliminary statement of the complainants on oath, forwarded the complaint to SHO P/S Bakshi Nagar, Jammu vide order dated 21.11.2020 for enquiry in terms of Section 202 Cr.P.C. SHO P/S Bakshi Nagar, Jammu conducted the enquiry under Section 202 Cr. PC and submitted the detailed report before this court on 08-02-2021. In this way, this case file came up for consideration today.

Heard the Ld. counsel for the complainants and gone through the enquiry report submitted by SHO P/S Bakshi Nagar, Jammu. Complainants seek prosecution of accused persons for the commission of offence u/s 420/467/468/471 IPC on the grounds that complainant no. 1 is the owner of a shop situated at quarter no, 210, Rehari Colony, Jammu bounded as East; Gate of house of the complainants, West: House no. 209, Rehari Colony Jammu, North: House of complainants. South: Road, duly allotted by the Govt. on 20.03.1974. As per the complainants, shop in question was rented out to Sh. Narinder Gupta, but no formal rent agreement was executed between the complainant no. 1 and Narinder Gupta. Besides this, complainants also alleged that complainant no. l approached before Sales Tax Department with respect to the status and rent agreement of the shop i.e. M/S Khushhal Karyana Store and in response to the said request. Sales Tax Officers, Circle J, Jammu provided the copy of Rent Agreement and copy of the Electricity bill. Complainants further alleged that on receipt of this information, he/complainant no. 1 was shocked to find the forged document, wherein accused no. 1 is shown as tenant of the shop and accused No. 2 has signed the agreement as its witness duly notarised on 26.11.2018. In addition, complainants alleged that both the accused are running the aforesaid shop and are beneficiary by executing the said forged Rent Agreement before the authorities of Sales Tax Department.

According to the complainants, accused persons obtained GST number on the basis of forged Rent Agreement in order to cheat the complainant No. 1 and Sales Department, with criminal intention and also forged the signatures of the complainant no. 1 and complainant no. 2 as landlord and marginal witness respectively in the Rent Agreement. Complainants also alleged that accused with a common intention and knowledge forged the aforesaid Rent Agreement, thereby proposing to transfer a valuable security, i.e., the shop in question and also forged the said Rent Agreement for purpose of cheating the complainants as well as Sales Tax Department, which they knew is forged, before the Sales Tax Department.

After hearing the learned counsel for the complainants and careful perusal of the material placed on record, I find some substances in the averments projected by the complainants. Plain reading of the file available on record as a whole reveals that precise controversy raised by the complainants in the complaint is that accused persons with common intention and knowledge forged the Rent Agreement with respect to the shop in question for the purpose of cheating the complainants as well as Sales Tax Departments and dishonestly used the said Rent Agreement, which they knew is a forged, before the Sales Tax Department. Thus, I am of the considered opinion that prima-facie for the commission of the offence under Sections 420/467/468 and 471 IPC has been established against the accused persons. Therefore, office is directed to issue summons to the accused persons for their appearance before the Court, same shall be accompanied by the copy of the complainant and the documents enclosed.”

8. The said order, whereby process has been issued came to be challenged in this petition. It is evident from the record that at the time when the complaint was presented and cognizance of the offences was taken by the trial Court, the trial Court was not satisfied as to whether the statements of the complainants were true or false. That is why, it ordered inquiry under Section 202 of the Cr.P.C to ascertain the truthfulness or otherwise of the allegations. The main allegation in the complaint was that the accused/petitioners herein had prepared a false document, as they had presented a Rent Deed before the authority, without such Rent Deed having been executed by the owners/complainants. The precise allegation to be enquired was as to whether the document of Rent Deed was forged one or not. The SHO Police Station, Bakshi Nagar, Jammu, who was entrusted the inquiry of the case was required to find out whether such document was forged or not. This could have been ascertained by seeking opinion of an expert of examination of the document and obtained opinion. The said expert could have given opinion regarding the same. The same has not been done in this case and in the absence of any such opinion, it cannot be said as to whether the document alleged is forged or not. There was no such evidence before the trial Court at the time it issued the process. Therefore, the impugned order dated 19.03.2021 passed by the trial Court, whereby the process has been issued against the petitioners being bad is required to be set aside and, accordingly, impugned order is set aside. The matter is remanded back to the Magistrate, who may before proceeding further, obtain the report regarding the document in question by directing the Inquiry Officer, i.e., SHO, Police Station, Bakshi Nagar, Jammu to obtain the opinion of an expert and thereafter, proceed further in the matter.

9. Petition is, accordingly, disposed of alongwith connected application.

10. Complainant to appear before the trial Court on 09.01.2023.

(VINOD CHATTERJI KOUL) JUDGE