IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.6197/2018 BETWEEN:
M. SUBRAMANYAM S/O LATE MUNISWAMY AGED ABOUT 71 YEARS R/A NO.29, 2ND MAIN RAAMACHANDRAPURAM SRIRAMAPURAM BANGALORE – 560 001.
... PETITIONER (BY SRI. M.B. NARGUND SENIOR COUSNEL A/W SMT. SUMATHI., ADVOCATE) AND:
G. MOHAN S/O K. GOVINDARAJU AGED ABOUT 52 YEARS RESIDING AT NO.85, 3RD CROSS SAIBABANAGAR, SRIRAMAPURAM BENGALURU – 560 021.
... RESPONDENT (BY SRI. BALASUBRAMANYA, ADVOCATE FOR SRI M.R.C. MANOHAR., ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE IMPUGNED ORDER DATED:25.07.2018 PASSED BY THE VII ADDL.C.M.M., BENGALURU IN C.C.NO.22661/2009 ON THE APPLICATION FILED BY THE PETITIONER HEREIN U/S 216 OF CR.P.C. BY ALLOWING THIS PETITION.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri M B Nargund, learned Senior counsel appearing for petitioner and Sri.Balasubramanya, learned Advocate appearing on behalf of Sri M.R.C.Manohar for respondent. Perused the records.
2. Petitioner is challenging the order dated 25.07.2018 passed by VI Additional Chief Metropolitan Magistrate, Bengaluru rejecting application filed under Sections 216 Cr.P.C. and 242(2) Cr.P.C. whereunder petitioner – complainant sought for framing of charge under Section 471 IPC against respondent – accused.
3. It is the contention of Sri.Nargund, learned Senior Advocate appearing for petitioner that respondent herein, on the basis of a forged document, is using it as a genuine document and has filed a suit for specific performance. During the course of investigation, forensic examination of the material disclosed that signature found on the disputed document is questionable and as such, learned trial Judge ought to have allowed the application and framed charge under Section 471 IPC.
4. Per contra, Sri Balasubramanya, learned Advocate appearing for respondent would support the impugned order and prays for dismissal of the petition.
5. Respondent herein has filed a suit for specific performance against petitioner in O.S.No.6706/2008 contending interalia that petitioner herein as owner of the immovable property bearing No.39, New Municipal Katha No.52/39, ward No.25, Saibabanagara, Srirampura, Bengaluru – 560 021 had agreed to sell the same to him and had executed an agreement of sale dated 14.03.2008. Said suit came to be instituted on 03.10.2008. Petitioner herein filed a complaint under Section 200 Cr.P.C. on 03.12.2008 alleging that he has not executed any such agreement of sale in favour of the accused. Signature in the sale agreement dated 14.03.2008 is not that of the complainant; document - agreement to sell dated 14.03.2008 is forged; and to knock off the immovable property owned by him which has already been sold in favour of one Sri V Gururaj under sale deed dated 08.09.2008, accused has filed the suit based on a forged document. On the basis of complaint so lodged, it came to be referred under Section 136(3) Cr.P.C. and jurisdictional police after registering the FIR in Crime No.274/2008 took up investigation and have filed charge sheet which is now pending in CC.No.22661/2009 and charge has been framed against accused for the offences punishable under Section 423, 465 and 468 IPC. Contending interalia that Section 471 I.P.C. is also attracted an application to frame the charge for the offence punishable under section 471 I.P.C. came to be filed by complaiannt and learned trial Judge has dismissed the said application on the ground that accused has not used the forged document as a genuine to attract the offence punishable under Section 471 I.P.C. so as to frame charge for the offence punishable under Section 471 IPC. Learned trial Judge has also opined that complainant has alleged that sale agreement dated 14.03.2008 is created by the accused contains a false statement of consideration being passed on from him to the complainant and the document also contains forged signature of the complainant. On these grounds, trial Judge has dismissed the application.
6. As already noticed herein above, contention of Sri M B Nargund, learned senior counsel appearing for petitioner is that propounding of forged document as genuine document would attract Section 471 IPC and as such, learned trial Judge has committed an error in rejecting the application. He would elaborate his submission by contending that forensic expert has opined that disputed signatures found on agreement of sale is questionable or in other words, authorship of the disputed signature is questionable. As such, he is seeking for alteration of the charge to include Section 471 IPC.
7. In the light of the rival contentions, it would be appropriate to extract Section 471 IPC which is pressed into service and it reads thus:
“471. Using as genuine a forged document or electronic record.— Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record.”
8. A plain reading of above provision would clearly indicate, for said Section being invoked against an accused, the ingredients found therein should be attracted or in other words, charge-sheet material should disclose the necessary ingredients found in Section 471 IPC are found. The expression used therein namely “uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record” should be found in the charge-sheet material. Only in such circumstances Court would be empowered to frame charge for the said offence. Primarily two ingredients to be found are (i) fraudulently or dishonest use of a document as genuine by the accused, (ii) person using said document must have had knowledge or reason to believe to be a forged document. Thus, it boils down to the fact that unless these two ingredients are present together, charge for the offence punishable under Section 471 of IPC cannot be framed against an accused.
9. Keeping this in mind, when facts on hand are examined including the charge-sheet material it would disclose that respondent-accused herein has filed the suit O.S.No.6706/2008 for specific enforcement of agreement of sale dated 14.03.2008. The defence set up by the petitioner-defendant- complainant is said document has been forged by defendant. In the light of complaint lodged by petitioner, matter has been investigated by the jurisdictional police and charge-sheet has been filed enclosing the forensic report which discloses that signature found on the disputed document is questionable. It is in this background, petitioner- complainant has sought for charge being framed against the respondent-accused for the offence punishable under Section 471 IPC. Nowhere the propounder of the agreement of sale dated 14.03.2018 i.e., plaintiff has admitted or stated that he was knowing or had reason to believe the said document to be a forged document and yet he has been using the said document as genuine though knowing fully well it is forged document. On the other hand, it is the specific case of plaintiff-accused in the civil suit that agreement of sale has been executed by petitioner in his favour. Any opinion expressed with regard to said document by this court at this stage, would definitely prejudice the rights of both parties in pending civil suit. Trial Court has rightly rejected said application without expressing any opinion on merits and said order would not call for interference as it does not suffer from any infirmity either in law or on facts. Hence, criminal petition stands rejected SD/- JUDGE *sp