Crl. Misc. No. M-3420 of 2009 (O&M) Date of decision: July 6 v. Rakesh Kumar”

court of Ms. Renu Rana, Judicial Magistrate, Ist Class, District Kurukshetra, as well as the summoning order dated 10.1.2009 (Annexure P/2) and all the proceedings emanating therefrom. According to the petitioner, Vijay Kumar-respondent is the son of his brother Kishan Chand and both of them were joint owners in equal share of residential property, bearing House No. 451, Sector-13, Urban Estate, District Kurukshetra, Haryana (hereinafter referred to as 'the property in dispute'), which was allotted to them by the Haryana Urban Development Authority (hereinafter referred to as 'the Crl. Misc. No. M-3420 of 2009 2 HUDA') in their joint name. In addition to that, there was another property, which was commercial one, consisting of Shop No. 14 situated in new Grain Market, Sirhind Road, District Patiala. An oral arrangement/agreement was entered into between them and as per that agreement, he was to get the property in dispute and in lieu thereof was to transfer his share in the said shop and was to retire from the firm M/s Parkash Chand Krishan Chand. That oral agreement was reduced into the writing and was got registered on

4.12.1996. In pursuance thereof he executed dissolution deed dated

31.5.1996 retiring from the firm. The respondent failed to perform his part of the contract and did not transfer the property in dispute in his favour. He took an excuse that there was no permission of HUDA for effecting valid transfer. He repeatedly asked the respondent to perform his part of the contract,but of no avail. Thereafter, he filed civil suit in the court of Civil Judge (Junior Division), Kurukshetra, on 30.11.1999, on the basis of the said agreement. The respondent took up the plea in his written statement that the agreement had already been acted upon. The suit was dismissed by the Civil Judge (Junior Division), Kurukshetra. Aggrieved by that order, he filed an appeal, bearing No. 62 of 2006, before the Additional District Judge, Kurukshetra. At the time of hearing of the appeal, the respondent stated in writing that he would get the required documents from the HUDA and would do all the necessary acts to ensure the transfer of his half share in the property in dispute in favour of the petitioner, after seeking necessary permission. It was stated by the Additional District Judge that all the formalities for the transfer of ownership should be completed within six moths. Instead of obtaining necessary permission from the HUDA for transfer of his share in the property in dispute, the respondent with a Crl. Misc. No. M-3420 of 2009 3 malicious intention and to avoid the performance of his part of the contract filed the above said false and vexatious complaint against him. He falsely alleged therein that his signatures on the documents of ownership lying with the HUDA were forged. Those allegations are false, baseless and unfounded. Those have been made in order to deprive him of his right in the property in dispute. The documents, upon which the signatures of the respondent are alleged to have been forged, are from the year 1991 onwards. There was no occasion for him to commit such a forgery. If he was to forge those documents, there was no need for him to show that the respondent is the joint owner. No such offence is made out from the contents of the complaint. The respondent failed to justify as to why he did not file this complaint for the period of 18 years and is bound by the undertaking given before the Additional District Judge. The existence and legality of the agreement, which was got registered on 4.12.1996, was never challenged by the respondent. The offences are alleged to have committed from the years 1991 to 1993 and, as such, the complaint is barred by time. On notice of motion having been issued, the respondent filed a detailed reply to this petition. He pleaded therein that as per the mandate issued by the Additional District Judge, Kurukshetra, in the appeal, he moved the HUDA and he was required to submit the conveyance deed. No such conveyance deed was taken by him and as such on his demand a copy thereof was supplied to him, vide memo dated 6.4.2007. It was only thereafter that he came to know that his signatures were affixed by the petitioner on various documents viz (i) affidavit dated 18.2.1991, scribed and attested at Patiala, which was submitted to the Estate Officer, HUDA, Kurukshetra; (ii) authority letter dated nill, submitted to the same authority Crl. Misc. No. M-3420 of 2009 4 with a prayer for issuance of conveyance deed; (iii) covering letter to HUDA, vide which the blank stamp papers had been deposited for the preparation of the conveyance deed; (iv) draft conveyance deed; and (v) application dated 21.12.1993, vide which certain amounts had been deposited with the HUDA and the receipts. The petitioner after forging his signatures and without any disclosure, continued concealing these documents which were in his exclusive knowledge. He came to know about the forgery of his signatures only in the month of April 2007. Every time he offered to get the transfer completed in favour of the petitioner and had written a registered letter to him on 14.3.2007 also in that respect. All these forged documents were concealed by the petitioner even in the civil suit. He concealed those documents even at the time his statement was recorded by the Appellate Court. It was only during the inquiry under Section 202 of the Criminal Procedure Code, ordered by the Magistrate in the present complaint, that he made a statement that the alleged forged conveyance deed was with him and was not traceable. In these circumstances, it cannot be said that the complaint is not within the limitation. The offences mentioned in the complaint are clearly made out. It has also been averred in the reply that revision is maintainable against the summoning order and without resorting to that remedy, the petitioner has filed the present petition, which cannot be allowed, when the alternative efficacious remedy is available to him. The grounds mentioned in the petition, at the most, are the defences available to the petitioner which he could take before the trial court by leading his evidence. I have heard the learned counsel for the parties. It has been submitted the learned counsel for the petitioner that Crl. Misc. No. M-3420 of 2009 5 a bare perusal of the complaint shows that dispute between the parties is purely of civil nature and it cannot be said there from that any such offence was committed by the respondent. The complaint is highly belated and is barred by limitation. It is nothing but an abuse of process of the court and, as such, is liable to be quashed. Consequently, the summoning order and the proceedings emanating therefrom are also liable to be quashed. On the other hand, it has been contended by the counsel for the respondent that it cannot be said that the dispute between the parties is only of civil nature. The petitioner prepared false documents by forging the signatures of the respondent and the offences mentioned in the complaint are clearly made out against him. The period of limitation is to be computed from the date of knowledge of the respondent and the forged documents came to his knowledge only in the year 2007. Therefore, it cannot be said that the complaint is barred by limitation. The respondent is resorting to legal means to redress his grievance and it cannot be said that he is abusing the process of the court by filing the complaint. There is no ground for quashing the complaint or the summoning order. For proper appreciation of the matter, the relevant portion of the complaint (Annexure P/1) is re-produced below:- “...Since the conveyance deed was not obtained by the complainant as such, on the request of complainant, the HUDA has, vide memo No. 5011 dated 06.04.2007 supplied copies of following documents:- i) Affidavit dated 18.02.1991, purported to have been signed by the complainant and accused, duly attested by the Executive Magistrate, Patiala on 19.02.1991. Crl. Misc. No. M-3420 of 2009 6 (ii) An authority letter, purported to have been written and handed over by the complainant, authorizing accused to accept conveyance deed from HUDA. (iii) A letter dated Nil purported to have been received by the HUDA on 26.01.1993 issued and purported to have been signed by both the parties, submitting thereby stamp papers of Rs. 4110/- for conveyance deed. (iv) A draft of conveyance deed in form D purported to have been signed by both the parties, on each page, six in number. (v) A letter dated 21.12.1993 purported to have been signed by both the parties (purported to have been signed by the complainant in Hindi and purported to have been signed by the accused in English) vide which a sum of Rs. 12,220/- were deposited by the accused for getting conveyance deed. (vi) A writing deed dated 24.12.1993 issued by the accused on 10.01.1994 vide which he has received signed conveyance deed from the HUDA, Kurukshetra, for registration, which has not yet been represented by him to Sub-Registrar.

5. That in addition to receipt of these documents, the complainant has examined the said original documents and astonished to see that all signatures of the complainant on the aforesaid documents have been affixed by the accused unauthorisedly. These documents seem to have been executed Crl. Misc. No. M-3420 of 2009 7 by the complainant, in fact have been fabricated by the accused solely. The aforesaid documents are valuable security i.e. Deed of conveyance and documents of title relating to house No. 451, Sector 13, Urban Estate, Kurukshetra. There are registers and correspondence including an affidavit dated 19.02.1991 which bore fake signatures of the complainant affixed by the accused thereon at Patiala. Thus the accused has impersonated in HUDA, Kurukshetra himself or by producing his own yes-man in place of the complainant while presenting documents and getting received those from HUDA and committed an offence punishable under Sections 419/410 IPC. He has affixed signatures in English and Hindi for and in place of the complainant on the aforesaid documents of title and gained wrongful benefit, causing wrongful loss to the complainant and thus has committed an offence punishable under Section 467, 468 IPC. He is using those documents here and there and keeping them with himself and has also committed the offence punishable under Sections 471 and 474 IPC within the jurisdiction of this Hon'ble Court.” It is well settled that for the purpose of deciding the petition under Section 482 of the Code, for quashing the complaint, the facts, as averred in the complaint, are to be taken on their face value and nothing is to be added thereto or subtracted therefrom by the Court. There are specific averments in the complaint that when the documents mentioned therein were examined by the respondent, he found that his signatures on those documents had been affixed by the petitioner unauthorizedly and that this Crl. Misc. No. M-3420 of 2009 8 appear to have been fabricated solely by the petitioner. By no stretch of imagination, it can be held that the dispute between the parties is exclusively of civil nature. The same set of facts may give rise to a civil wrong, which is to be redressed by the civil court, and criminal liability also and that is to be adjudicated upon by the criminal court. No doubt, the documents said to have been prepared falsely by the petitioner by forging the signatures of the respondent pertain to the years 1991 to 1993 but it is pertinent to note that according to the respondent, the said forgery came to his knowledge only in the year 2007. The period of limitation is to be computed from the date on which the commission of offence by the petitioner came to the knowledge of the respondent. The complaint cannot be said to be barred by limitation on the face of it. All these are disputed questions of facts, which are to be decided on the basis of the evidence to be produced before the trial court. There is nothing on the record to conclude that the complaint is just an abuse of the process of the court. There is no merit in this petition and the same is hereby dismissed. July 6, 2010 (GURDEV SINGH ) JUDGE