[1.0] Present Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred by the applicant – original accused No.1 to quash and set aside the impugned complaint being Inquiry Case No.37/2011 pending in the Court of learned Judicial Magistrate, First Class, Savli filed by respondent No.2 herein – original complainant against the applicant and others for the offences punishable under Sections 465, 467, 468, 471 and 472 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) as well as the impugned order passed by the learned JMFC directing to send the said complaint for police investigation under Section 156(3) of the CrPC. [2.0] That respondent No.2 herein – original complainant has filed the impugned complaint against the applicant and others for the offences under Sections 465, 467, 468, 471 and 472 of the IPC in the Court of learned JMFC, Savli alleging interalia that the applicant herein – original accused No.1 has forged the Power of Attorney dated 13.01.2009 alleged to have been executed by the aunts of the complainant who are residing abroad and original accused Nos.2 and 3 have put their signatures as attesting witnesses and original accused No.4 has signed the same as Before Me. It is further alleged that on the basis of the said forged power of attorney, a bogus sale deed has been executed in favour of original accused Nos.5, 6 and 7 executed by original accused No.1. That in the said complaint, the learned Magistrate has passed an order to send the said complaint for police investigation under Section 156(3) of the CrPC and has directed the PSI, Bhadrva Police Station to investigate the same and submit the report within 60 days. Being aggrieved and dissatisfied with the impugned complaint being Inquiry Case No.37/2011 and the order passed by the learned Magistrate therein directing to send the said complaint for police investigation under Section 156(3) of the CrPC, applicant herein – original accused No.1 has preferred the present Criminal Miscellaneous Application under Section 482 of the CrPC.
[3.0] Shri M.B. Gandhi, learned advocate appearing on behalf of the applicant has vehemently submitted that as such the applicant has not committed any offences as alleged in the complaint. It is further submitted by Shri Gandhi, learned advocate that infact respondent No.2 – original complainant has no locus to file the impugned complaint and in support of his above submission, he has relied upon the decision of the Hon'ble Supreme Court in the case of Mohammed Ibrahim and Ors. v. State of Bihar and Anr. reported in 2010(1) GLH 184.
[3.1] It is further submitted by Shri Gandhi, learned advocate appearing on behalf of the applicant that at the most the buyers who have purchased the disputed land in question can file the complaint and respondent No.2 herein – original complainant being a stranger has no locus to file the impugned complaint. Shri Gandhi, learned advocate appearing on behalf of the applicant has also tried to rely upon some affidavits in form of Letter of Confirmation signed by the executors of the power of attorney dated 13.01.2009 which are affirmed at Middlesex in U.K. by submitting that as per the Letter of Confirmation signed by Kantalaxmi Natubhai Patel; Laxmiben Natubhai Patel; Umakant Natubhai Patel and Vidyaben Natubhai Patel, the executors of the power of attorney dated 13.01.2009, they have stated that they have no dispute about the sale deed executed by the applicant pursuant to the Power of Attorney dated 13.01.2009. The said Letter of Confirmation is alleged to have been signed at Middlesex, U.K. on 26.10.2011. Therefore, relying upon the aforesaid, it is submitted by Shri Gandhi, learned advocate appearing on behalf of the applicant that it cannot be said that the applicant has committed any offence of forging the Power of Attorney dated 13.01.2009.
[3.2] It is further submitted by Shri Gandhi, learned advocate appearing on behalf of the applicant that as such respondent No.2 herein – original complainant is chargesheeted for the offences under Sections 465, 466, 467, 468, 471, 474, 120B and 114 of the IPC with respect to one another Power of Attorney alleged to have been executed by aunts viz. Kantalaxmi etc. who are residing abroad which was with respect to another land bearing survey No.7 Block No.8. Therefore, it is requested to quash and set aside the impugned complaint in exercise of powers under Section 482 of the CrPC.
[3.3] Shri Gandhi, learned advocate appearing on behalf of the applicant has submitted that even the sale consideration has been deposited in the joint bank accounts of Vidyaben Natubhai, Kantalaxmiben Natubhai, Kalavatiben Natubhai, Laxmiben Natubhai and Umakant Natubhai and therefore, there was no malafide intention on the part of the applicant to take undue advantage by forging the Power of Attorney. No other submissions have been made.
[4.0] Application is opposed by Shri Bomi Shethna, learned advocate appearing on behalf of respondent No.2 herein – original complainant. It is submitted that at present the learned Magistrate has passed an order for police investigation under Section 156(3) of the CrPC only and has directed the concerned police officer of the Bhadrva Police Station to investigate the case and submit the report within 60 days and before any further investigation is carried out by the concerned police officer, the applicant has approached this Hon'ble Court. Therefore, it is submitted that when the allegations and averments in the complaint prima facie discloses commission of cognizable offences of forging the Power of Attorney by forging signatures of his aunts who are residing abroad and when the investigation with respect to the same is yet to be carried out, it is requested not to exercise powers under Section 482 of the CrPC and to quash and set aside the impugned complaint at this stage. In support of his above submission, he has relied upon the decisions of the Hon'ble Supreme Court in the case of Dharmatma Singh v. Harminder Singh & Ors. reported in (2011)6 SCC 102.
[4.1] It is further submitted by Shri Shethna, learned advocate appearing on behalf of respondent No.2 – original complainant that as per the settled proposition of law laid down by the Hon'ble Supreme Court, a complaint making out a prima facie case of cognizable offences is not required to be quashed and set aside on the ground of locus of the complainant. It is submitted that as per the settled proposition of law anybody can put the criminal machinery in motion. It is submitted that so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Mohammed Ibrahim and Ors. (Supra) by the learned advocate appearing on behalf of the applicant is concerned, the same would not be applicable to the facts of the present case. It is submitted that the observations by the Hon'ble Supreme Court in the said decision are with respect to offences under Sections 415 and 420 of the IPC and not with respect to the offences alleged in the complaint.
[4.2] It is further submitted by Shri Shethna, learned advocate appearing on behalf of respondent No.2 that even considering the signature of Kantalaxmi Natubhai Patel which is on the Letter of Confirmation dated 26.10.2011 produced by the applicant and considering the signature on the Power of Attorney dated 13.01.2009, it prima facie establishes that both the signatures differ. It is further submitted that forged Power of Attorney is dated 13.01.2009 signed by Kantalaxmiben, the aunt of the complainant who had never visited India during the said period. Therefore, it is submitted that a prima facie case is made out against the applicant and other accused persons for forging the signature of Kantalaxmi and others on the said Power of Attorney dated 13.01.2009, which is further required to be investigated by the I.O. and therefore, it is requested to dismiss the present application.
[5.0] Shri Dabhi, learned Additional Public Prosecutor has supported Shri Shethna, learned advocate appearing on behalf of respondent No.2 – original complainant and has submitted that allegations and averments in the complaint prima facie makes out cognizable offences which are further required to be investigated. It is submitted that before any further investigation could be made by the concerned I.O. and report is submitted to the concerned Magistrate, the applicant has approached this Court and has obtained the order of stay of further investigation. Therefore, it is requested to dismiss the present application.
[6.0] Heard the learned advocates appearing for respective parties at length. At the outset, it is required to be noted that the averments and allegations in the impugned complaint are with respect to the forged signature of Kantalaxmi and others who have alleged to have executed the Power of Attorney dated 13.01.2009. It is required to be noted at this stage that Kantalaxmi and others who have alleged to have signed the Power of Attorney dated 13.01.2009 are residing abroad and except Laxmiben nothing is on record that other signatories to the Power of Attorney were in India at the relevant time. On the contrary, it has come on record by way of statement of Laxmiben which was recorded in another case that Kantalaxmi and others were not in India at the relevant time. Now, the applicant has relied upon some Letter of Confirmation dated 26.10.2011 alleged to have been signed by Kantalaxmi Natubhai Patel; Laxmiben Natubhai Patel; Umakant Natubhai Patel and Vidyaben Natubhai Patel submitting that they have no dispute with respect to the sale deed executed by the applicant as Power of Attorney dated 13.01.2009. The aforesaid is the defence of the applicant which is required to be considered by the I.O. while conducting investigation. During the course of investigation, even the document / Power of Attorney dated 13.01.2009 is required to be send to the FSL for verifying the signatures of the executors of the said Power of Attorney.
[6.1] It is required to be noted at this stage that the learned Magistrate has only passed an order for police investigation under Section 156(3) of the CrPC directing the PSI, Bhadrva Police Station to investigate the case and submit a report within 60 days after investigation is completed, the concerned police officer is required to submit report before the learned Magistrate and learned Magistrate is yet to consider the said report. In the case of Dharmatma Singh (Supra), the Hon'ble Supreme Court in para 22 has observed and held as under:
22. Section 482 CrPC saves the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. It has been held by this Court in R.P. Kapur v. State of Punjab that Section 561A of the Criminal Procedure Code, 1898 (which corresponds to Section 482 of the Criminal Procedure Code, 1973) saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice and such inherent power cannot be exercised in regard to matters specifically covered by the other provisions of the Code and, therefore, where the Magistrate has not applied his mind under Section 190 CrPC to the merits of the reports and passed the order, the High Court ought not to consider a request for quashing the proceedings.
Considering the fact that when the allegations and averments in the impugned complaint prima facie discloses commission of cognizable offences which are further required to be investigated, it appears to the Court this is not a fit case to exercise powers under Section 482 of the CrPC and to quash and set aside the impugned complaint at the threshold and without further investigation. It is required to be noted at this stage that even from the documents produced by the very applicant i.e. Letter of Confirmation signed by Kantalaxmi and the signatures of Kantalaxmi on Power of Attorney dated 13.01.2009, it prima facie appears to be different. However, the aforesaid are required to be investigated by the I.O. while conducting investigation. Now, so far as the contention on behalf of the applicant that the amount of sale consideration was deposited in the bank account of Kantalaxmi and others in their account in Baroda Central Cooperative Bank Ltd. is concerned, it is required to be noted that the same is required to be investigated and it is also further required to be investigated as to who deposited the said cheques; when the aforesaid account was opened; who opened the said bank account and whether the said bank account is in the joint names of Kantalaxmi; Laxmiben; Umakant Patel and Vidyaben Patel as alleged. All the aforesaid aspects are required to be considered while conducting investigation by the I.O.
[6.2] Now, so far as the contention on behalf of the applicant that applicant has no locus to file the impugned complaint and the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Dharmatma Singh (Supra) is concerned, on considering the decision of the Hon'ble Supreme Court relied upon by the learned advocate appearing on behalf of the applicant, on facts the same shall not be applicable to the facts of the present case. The observations of the Hon'ble Supreme Court in the said decision are with respect to offences under Sections 415 and 420 of the IPC and Hon'ble Supreme Court has observed that complaint for cheating can be filed by the concerned person who is cheated. It is to be noted that in the present case, allegations in the present case are with respect to offences under Sections 467, 468 etc. Even otherwise as per the settled proposition of law, on the ground of locus of the complainant, the complaint/FIR disclosing prima facie commission of cognizable offences cannot be quashed and set aside. As per the settled proposition of law anybody can put a criminal machinery in motion.
[7.0] In view of the above and for the reasons stated above, more particularly, when the I.O. is yet to investigate the case pursuant to the order passed by the learned Magistrate and has yet to submit a report before the concerned Magistrate and learned Magistrate has yet to consider the allegations and averments in the complaint prima facie disclosing commission of cognizable offences which are further requried to be investigated, it appears to the Court that this is not a fit case to exercise powers under Section 482 of the CrPC and to quash and set aside the impugned complaint at the threshold without further investigation.
[7.1] In view of the above and for the reasons stated above, present application fails which deserves to be dismissed and is, accordingly, dismissed. Rule is discharged. Adinterim relief granted earlier stands vacated forthwith.
[7.2] At this stage, Shri Gandhi, learned advocate appearing on behalf of the applicant has requested to continue the adinterim relief granted earlier by which the learned Single Judge has directed that till the pendency and final disposal of the present application, applicant – original accused No.1 should not be arrested. As such as per the decision of the Hon'ble Supreme Court, no such adinterim relief of not to arrest be granted in a petition under Section 482 of the CrPC. However, as the same is already granted earlier, the same is directed to be continued for a period of ten days. However, it is observed that as and when any anticipatory bail and/or regular bail application is submitted by the applicant – original accused No.1, the same shall be considered by the concerned Court in accordance with law and on merits and without in anyway being influenced by the present order of continuation of the interim order of not to arrest the applicant.
(M.R. Shah, J.) *menon