1. The present Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure has been preferred by the applicant-original accused no. 2 to quash and set aside the impugned FIR, being C.R. No. I 211/2011, which has been lodged by respondent no. 2 for the offences punishable under Sections 406, 420, 467, 468, 471 and 114 of the Indian Penal Code.
2. Respondent no. 2-original complainant has lodged the impugned FIR against the applicant and one another for the offence punishable under Sections 406, 420, 467, 468, 471 and 114 of the Indian Penal Code alleging interalia that he had some dispute with his employer, which was a civil dispute and, therefore, he wanted to file a petition before this Court and, therefore, in the year 2006 he approached original accused no. 1 and paid her a sum of Rs. 10,000/- and a further sum of Rs. 20,000/- by way of fees for filing the petition. It is also further alleged that at that time he gave some papers to original accused no. 1 to file the petition and thereafter original accused no. 1 informed respondent no. 2-original complainant and gave the number of the Special Civil Application. It is further alleged that thereafter he tried to inquire about the status of the petition from original accused no. 1, however, there was no response from original accused no. 1. It is further alleged that thereafter in the month of September, 2008 again he tried to contact original accused no. 1 in the High Court, however, original accused no. 1 did not meet him and on inquiry, it was found that the aforesaid Special Civil Application has been dismissed by the Division Bench. It is further averred and alleged in the said FIR that thereafter after getting the certified copy of the papers, he came to know that the petition has been filed on forged signature of respondent no. 2-original complainant. It is alleged that he has never signed on the petition. It is further alleged that thereafter he came to know that original accused no. 1 had entrusted the case to the applicant herein-original accused no. 2 to conduct the case without his consent and knowledge. It is further alleged that out of 46 documents given to original accused no. 1 only 11 documents were produced and, therefore, it is alleged that the accused persons have committed the offence as alleged of forging the signature on the petition as well as the Vakaltnama. Being aggrieved and dissatisfied with the impugned FIR the applicant-original accused no. 2 has preferred the present Criminal Miscellaneous Application to quash and set aside the impugned FIR.
3. Shri Manish Patel, learned advocate appearing on behalf of the applicant has submitted that as such the applicant- original accused no. 2 has not committed any offence as alleged. It is submitted that at the most it can be said that there are allegations against original accused no. 1. It is submitted that even as per respondent no. 2-original complainant so averred and alleged in the FIR he engaged original accused no. 1 and handed over the papers to original accused no. 1 for filing the petition and even paid the fees to original accused no. 1 and she was instructed to file the petition. It is submitted that so far as the applicant is concerned, the applicant, who was at the relevant time junior advocate, only tried to help original accused no. 1 and argued out the case bonafidely. It is submitted that the applicant was not aware at the relevant time whether for arguing out a case on behalf of another advocate consent of respondent no. 2- original complainant was required or not. It is submitted that as such the applicant acted absolutely bonafidely and appeared on behalf of another advocate only with a view to help original accused no. 1 as normally she is not appearing in service matter. It is further submitted that even otherwise, the impugned FIR is filed belatedly after respondent no. 2-original complainant lost before the Hon'ble Supreme Court and thereafter also before this Court in other proceedings and, therefore, it is submitted that as such the impugned FIR is filed by a frustrated litigant, who has lost up to the Hon'ble Supreme Court and, therefore, it is requested to exercise the powers under Section 482 of the Code of Criminal Procedure and to quash and set aside the impugned FIR so far as the applicant- original accused no. 2 is concerned.
4. The petition is vehemently opposed by Shri Pratik Barot, learned advocate appearing on behalf of respondent no. 2- original complainant. Even respondent no. 2-original complainant is heard in person. Shri Barot, learned advocate appearing on behalf of respondent no. 2-original complainant has vehemently submitted that on investigation it has been found that the signature on the Vakalatnama is not that of respondent no. 2-original complainant and, therefore, prima facie case is made out against the accused persons. It is further submitted that even on the affidavit on the petition the signature of respondent no. 2-original complainant was forged and the said signature is not that of respondent no. 2-original complainant. It is submitted that so far as the applicant- original accused no. 2 is concerned he appeared on behalf of respondent no. 2-original complainant without his consent and knowledge. It is submitted that as such respondent no. 2- original complainant engaged original accused no. 1 and, therefore, the applicant ought not to have appeared on behalf of respondent no. 2-original complainant without the consent and/or knowledge of respondent no. 2-original complainant. Respondent no. 2-original complainant has also submitted that as such the relevant documents, which were given to original accused no. 1, were not produced while filing the petition and, therefore, respondent no. 2-original complainant lost even before the Hon'ble the Supreme Court. It is further submitted that even respondent no. 2-original complainant was not informed with respect to dismissal of the petition and the relevant papers were not given to him and, therefore, immediately he could not file review application, which he had filed only after dismissal of the SLP by the Hon'ble Supreme Court. It is submitted that when subsequently the review application was filed it is dismissed on the ground that respondent no. 2-original complainant has lost before the Hon'ble Supreme Court. It is submitted that because of the aforesaid, respondent no. 2-original complainant lost and could not get any justice and, therefore, it is requested to dismiss the present petition.
5. Shri K.L. Pandya, learned APP appearing on behalf of the State-Investigating Officer has supported Shri Barot, learned advocate appearing on behalf of respondent no. 2-original complainant.
6. Heard the learned advocates appearing on behalf of the respective parties at length and considered the averments and allegations made in the FIR. It appears that respondent no. 2- original complainant had some dispute with respect to his service and, therefore, he wanted to file a petition before the High Court and, therefore, he approached original accused no. 1 and handed over the entire case papers to original accused no. 1 and even paid the fees to original accused no. 1. It appears that as such original accused no. 1 filed a petition before this Court, being Special Civil Application No. 10355/2007. It appears that as original accused no. 1 is not regularly appearing in service matters and is appearing by and large in criminal matters she requested the applicant to help her and the applicant signed on the Vakalatnama as co- advocate and joint Vakaltnama was filed and he appeared on behalf of respondent no. 2-original complainant. Unfortunately for respondent no. 2-original complainant, the said Special Civil Application came to be dismissed. Having come to know about dismissal of the petition, respondent no. 2-original complainant obtained the copy of the order and approached the Hon'ble Supreme Court by way of SLP, which came to be dismissed by the Hon'ble Supreme Court on dated 06/11/2009. It appears that thereafter after dismissal of the SLP by the Hon'ble Supreme Court, respondent no. 2-original complainant preferred review application before the Division Bench, which also came to be dismissed by the Division Bench on 24/12/2010. Even at that stage also no grievance was made by respondent no. 2-original complainant, which is made now in the impugned FIR. Not only that subsequently one another petition was filed by respondent no. 2-original complainant, being Special Civil Application No. 3317/2011, which also came to be dismissed by the Division Bench dated 22/04/2011. Only thereafter when respondent no. 2-original complainant lost before all the Courts, the impugned FIR has been filed against the applicant making the allegation that on the Vakalatnama and the affidavit on the petition it does not bear his signature. So far as the main allegation against the applicant-original accused no. 2 is concerned, it seems to be that he appeared on behalf of respondent no. 2-original complainant without his consent and/or knowledge and instead of original accused no. 1, who was to file the petition and argue out the matter, the applicant-original accused no. 2 appeared in the matter. It appears that the applicant, who was at the relevant time, junior advocate was not aware about the consequences and only with a view to help original accused no. 1, who is mainly practicing on the criminal side tried to help original accused no. 1 and signed the Vakalatnama alongwith original accused no. 1 and appeared on behalf of respondent no. 2-original complainant. Looking to the averments and allegations made in the FIR, it appears that the main allegations are against original accused no. 1. The other allegation against the applicant is that when respondent no. 2-original complainant engaged original accused no. 1 and gave her approximately 46 documents, out of which, only 11 documents were produced in the Court alongwith the petition. A litigant may give number of documents to the advocate but ultimately it is for the advocate to consider, which are the relevant documents, which are to be produced in the Court. Merely because only few documents were produced in the petition, by that itself, it cannot be said that the applicant has committed the offence.
7. In the aforesaid facts and circumstances of the case and the role attributed to the applicant-original accused no. 2 narrated hereinabove, it cannot be said that the applicant has committed any offence as alleged for the offence under Sections 406, 420, 467, 468, 471 and 114 of the Indian Penal Code. It appears that only as an afterthought and after having lost before the Hon'ble Supreme Court and having lost in the review application as well as subsequent Special Civil Application before this Court, the frustrated litigant-respondent no. 2-original complainant has filed the impugned FIR. In the facts and circumstances of the case narrated hereinabove, it appears that even prima facie case is not made out against the applicant for the offence alleged and the main allegation is against original accused no. 1.
8. Under the circumstances, it appears to the Court that this is a fit case to exercise the powers under Section 482 of the Code of Criminal Procedure and to quash and set aside the impugned FIR so far as the applicant-original accused no. 2 is concerned. However, the same shall be without prejudice to the rights and contentions of the prosecution as well as respondent no. 2-original complainant against original accused no. 1 and the investigation/trial against the said accused shall be considered in accordance with law and on its own merits, without, in any way, being influenced by the present order, which will be qua the applicant-original accused no. 2 only.
9. In view of the above and for the reasons stated hereinabove, the present application succeeds. The impugned FIR, being C.R. No. I 211/2011 against the applicant under Section 406, 420, 467, 468, 471 and 114 of the Indian Penal Code is hereby quashed and set aside so far as the applicant- original accused no. 2 is concerned. However, the same shall be without prejudice to the rights and contentions of the prosecution as well as respondent no. 2-original complainant against original accused no. 1 and the investigation and/or prosecution against original accused no. 1 shall be proceeded further in accordance with law and on its own merits, without, in any way, being influenced by the present order, which will be qua the applicant-original accused no. 2 only.
(M.R. SHAH, J.) siji