Mohan Kumar Khandelwal vs The State of Bihar and Others

Chandra Mohan Prasad, J.—The petitioner has prayed for quashing of the F.I.R. on the ground that the F.I.R. was instituted falsely and that any offence is not made out from the allegations as made in the F.I.R. The respondent No. 11 Dinesh Kumar lodged Gardanibagh (Sachiwalaya) P.S. Case No. 162 of 2006 dated 13.2.2006 under Sections 420, 467, 468, 471/34 of the I.P.C. against the petitioner and others unknown. Alleging that he being sole proprietor of M/s A.G. Computer & Multimedia Inc. was involved in the business of Information Technology since 1966 and he under took small/large project of data entry/word processing from various clients, private organizations, banks and Government organizations. It was further alleged that the petitioner who was the proprietor of M/s Mohan Enterprises having it''s office at Patna met him in Delhi through his acquaintance and impressed upon him that he had acquaintance with various functionaries of Bihar Government and that he could get large amount of works for him (respondent No. 11) for printing of Electoral Rolls for Bihar State as he (petitioner) had personal dealings with Mr. A.K. Basu, Chief Electoral Officer, Bihar. The informant (respondent No. 11) further stated that the Chief Electoral Officer, Bihar noted tenders in November, 1997 for work of computerization and bringing of more than three crores, which was allotted to him and that he (respondent No. 11) had declared him (petitioner) as his business associate since he had developed confidence in him and was situated at Patna and he had also assured him of investing money and project. He further stated that he authorized Mohan Kumar Khandelwal (Petitioner) proprietor Mohan Enterprises to deal with the then Chief Electoral Officer with respect to the work of his firm and that the Chief Electoral Officer was releasing payments by way of bank drafts in favour of his firm M/s A.G. Computer & Multimedia inc., Delhi, payable at Delhi which were being received by the petitioner as per his direction and was being delivered to him (respondent No. 11) for depositing into his current account at Nainital Branch. The respondent No. 11 further stated in the F.I.R. that his firm executed computerization and printing of electoral rolls in Bihar for more than three crores and out of the total work he received only 33.87 lakhs so he reminded the petitioner to pursue the matter with the then Chief Electoral Officer for releasing the balance payment. The matter was getting delayed, hence, sensing some suspicion he contacted from Mr. A.K. Basu, the Chief Electoral Officer, who informed him that bank drafts/cheques for a sum of rupees one and half crore had already been released by the office of Chief Electoral Officer in favour of his firm M/s A.G. Computer & Multimedia Inc. and have been duly received by Mr. Mohan Kumar Khandelwal the petitioner. The informant (respondent No. 11) further alleged that he inquired from Mohan Kumar Khandelwal (petitioner) regarding the payment so received by him, on which he informed him that he had received the balance payment and got the amounts deposited in one separate account in State Bank of India, Treasury Branch, Secretariat, Patna. Sensing foul play by Mr. Mohan Kumar Khandelwal (petitioner) and Mr. A.K. Basu he (respondent No. 11) sent fax letter dated 20.2.2000 making request for sending the balance payment directly to his firm at Delhi.

It was further alleged in the F.I.R. that in the 1st week of March, 2000 some police personnel of Kotwali Police suddenly reached his residence at Delhi alongwith Mohan Kumar Khandelwal (petitioner) and at his (petitioner''s) behest the police arrested his wife, brother-in-law Sanjay and friend Mr. Birendra Singh since he (respondent) was absent then only he could know that Mohan Kumar Khandelwal (petitioner) had lodged a false and fabricated case, being case No. 88 of 2000 against him and his family members and in connivance with Bihar Police a false chargesheet has been submitted against him and his family members.

The informant (respondent No. 11) further alleged that he filed anticipatory bail application at Patna and petitioner while opposing the bail application submitted one sale-deed with his (respondent No. 11''s) forged signature alleging purchase of his firm M/s A.G. Computer & Multimedia Inc. The informant alleged that he had never sold his firm. It was also alleged by the informant (respondent No. 11) that he filed a suit No. 114 of 2000 in the Court of A.D.J., Tishajari Court, against the petitioner, wherein also the petitioner filed forged and fabricated sale-deed alleging purchase of his firm M/s A.G. Computer & Multimedia Inc. The informant alleged that he took certified copies of both the two sale-deeds containing different contents as filed by the petitioner in two courts. It was also alleged that he got the signatures on the sale-deeds as filed by the petitioners in the two courts examined by forensic expert Mr. V.C. Mishra of 40, Kiran Bihar near Karkardooma Court, Delhi, who opined that the two signatures on the two documents containing different contents had been forged and transplanted. The informant also alleged that the contents of the two documents were also different. On these grounds it was alleged by the informant (respondent No. 11) that the petitioner by forging his signature on two sale-deeds virtually cheated him and the office of Chief Electoral Officer to the tune of Rs. 2.68 crores.

At para-3 of the counter-affidavit of the respondent No. 11 it is stated that on completion of the investigation chargesheet No. 26 of 2007 dated 20.3.2007 for the offences has already been submitted and cognizance for the offence has also been taken against the petitioner. This position is not denied by the petitioner.

Vide Annexure-R/O to the counter affidavit the respondent has annexed the copy of the charge-sheet. Annexure-R/10 to the counter affidavit is the copy of supervision note of the Senior Superintendent of Police who has mentioned the materials as found against the petitioner in the case. He has mentioned that the petitioner says to have purchased the firm of respondent on 25.11.1997, but on the same day the tender was submitted and the work was allotted in the name of the respondent No. 11''s firm M/s A.G. Computer & Multimedia Inc. at Delhi and that in the tender the petitioner was simply shown as business associate. The Senior Superintendent of Police also mentioned in his supervision note that the signature on the documents were sent for examination to Forensic Laboratory, C.B.I., Delhi and the examination report of the forensic expert opined that the signature of Dinesh Kumar, the respondent No. 11 were superimposed on the two sale-deeds by tracing method and thus the forensic experts, C.B.I. opined that the signatures were forged and, therefore, two sale-deeds were forged and fabricated. On these materials the police submitted a charge-sheet against the petitioner. On consideration of these materials finding a prima facie case the learned C.J.M. has also taken cognizance of the offence and now the petitioner to be put on trial. It is informed by the respondent No. 11 that further investigation is pending against some persons related to the Election Commission office.

Learned counsel for the petitioner has submitted that the F.I.R. has been lodged falsely and maliciously and that the facts and circumstances of the case as alleged in the F.I.R. do not indicate a prima facie case against the petitioner. At this stage, this court is not required to look with meticulous examination of facts whether the offence has been committed or not. This is the domain of the trial court. This Court can simply consider the matter with a view to examining the F.I.R. whether on the basis of the facts alleged an offence is indicated or not. in this case there is clear allegation that the petitioner who was appointed to work as business associates of respondent No. 11, to whose firm the tender was allotted and in whose firm name the payments were to be made and it was also being made by the Election Commission. Allegedly, petitioner obtained payment but he is said to have misappropriated the money on the basis that he became the owner of the firm on the basis of the two sale-deeds. The informant (respondent No. 11) alleges that the sale-deeds are forged and fabricated and also his signatures on those two sale-deeds are forged and fabricated. The signatures were examined twice by experts, firstly, by the forensic expert Mr. B.C. Mishra as stated in the F.I.R. and secondly by the C.B.I. forensic expert as stated in the supervision note of the Senior Superintendent of Police. Both these experts have opined that the signatures are forged and fabricated, and thus the sale-deeds become forged and fabricated documents. On these grounds a prima facie case is indicated to put the accused on trial for the offences for which chargesheet has been submitted.

Learned counsel for the petitioner has submitted that respondent No. 11 filed Suit No. 145 of 2002 in the Court of Addl. District Judge, Delhi. Annexure-4 to the petition is the plaint of that suit which shows that it is a suit for rendition of account and injunction. The respondent No. 11 filed the suit seeking rendition of account from the petitioner and also injuncting the petitioner from receiving the contract amount on his behalf. Annexure-7 is the order dated 21.8.2000 of the Addl. District Judge as passed in the suit whereby on the basis of the sale documents as relied on by the petitioner before that Court the petitioner was permitted to withdraw the contract work payment amount from the Election Commission. Annexure-8 is the order dated 21.12.2000 of Delhi High Court, whereby in CR. No. 868 of 2000 the order of the Addl. District Judge was modified to the extent that the petitioner will obtain 70% of the payment in cash and 30% will remained as security. Annexure-9 is the order dated 17.1.2003 of the Addl. District Judge whereby the petitioner was allowed to withdraw the payment as per the direction of the Delhi High Court and the Addl. District Judge framed as many as seven issues including Issue No. 4, "Whether the plaintiffs had sold off his business, goodwill and working right to defendant No. 1 on 25.11.1997 and as such plaintiff has no right to maintain the suit" for the decision of the suit.

Thus, one of the issues as framed in the suit for the rendition of account and injunction was whether the plaintiff i.e., respondent No. 11 had sold his business to the present petitioner or not. On the basis of this issue as raised in the suit before the Addl. District Judge it was argued on behalf of the petitioner that the same issue is already subjudice and under consideration before the Addl. District Judge, hence, a criminal prosecution cannot lie on the similar ground that the sale-deeds are forged and therefore, it was argued that the F.I.R. is fit to be quashed. But the submission of the learned counsel does not hold good in view of the facts that the suit is simply for the purpose of rendition of account. So far as the criminal aspect of the matter is concerned it is an independent matter and the criminality of the matter constituting an offence can be maintained separately under a criminal prosecution despite the maintainability of the suit involving a similar issue. The Hon''ble Supreme Court in the case of Trisuns Chemical Industry Vs. Rajesh Agarwal and others, has held that a criminal prosecution cannot be thwarted merely because civil proceedings are also maintainable. Learned counsel for the respondent No. 11 submitted that so far the suit before the Addl. District Judge, Delhi is concerned it is simply for the purpose of rendition of account and it can simply give a relief to that extend only. It was further submitted that so far the criminal offence as indicated through alleged forgery of the sale-deed is concerned it is a separate matter and it can be dealt with and decided in a criminal proceeding only. In view of what has been held by the Hon''ble Supreme Court as above I find that despite the suit before the Addl. District Judge the criminal prosecution under the said F.I.R. cannot be quashed on this ground alone. So far the prima facie of the material is concerned there is categorical allegation of commission of forgery and which allegation is supported by the two forensic experts who have stated in their report about the commission of forgery in signatures in the sale-deeds.

Learned counsel further referred to Annexure-11. which is Suit No. 84 of 2001 as filed by the respondent No. 11 before the District Judge, Delhi, wherein prayer was made for declaring the sale documents dated 25.11.1997 as null and void. Referring Annexure-10 is order of the District Judge as passed in the suit indicating that the suit was dismissed on default. On the basis of this it was argued that the respondent No. 11 had also filed a suit for declaring the sale-deeds null and void but the suit was dismissed for default. On this point learned counsel for the respondent No. 11 replied that since this issue was already under consideration of the Addl. District Judge in the suit for rendition of accounts, therefore, the respondent No. 11 did not pursue the matter and take step for the restoration of the suit.

Thus, the dismissal of the suit in default does not create any kind of encumbrance in the right of the respondent No. 11 in prosecuting the criminal proceedings on the facts and circumstances of the case as discussed above.

Learned counsel for the petitioner also referred Annexure-3/2, which is the F.I.R. No. 88 of 2000 dated 25.2.2000 under Sections 406, 420, 120B & 379 I.P.C. as filed by the petitioner against the respondent No. 11 and others. In this FI.R. the petitioner had alleged about the commission of theft of some computer and other articles by respondent No. 11 and others stating that he had purchased the firm of respondent No. 11 on the basis of sale-deeds and thus the offence of theft and breach of trust was alleged against respondent No. 11. Learned counsel further submitted that the police had conducted investigation into the case and on completion of investigation charge-sheet was submitted against respondent No. 11 and other accused. In this context the reply of the learned counsel for the respondent No. 11 was that the petitioner has lodged the F.I.R. basing his ownership on the basis of forged sale-deed and had falsely lodged the offence of theft. It was submitted that the matter would be clarified in that trial when the sale-deeds are proved forged. Learned counsel also submitted that in the F.I.R. as filed by the respondent No. 11 which is sought to be quashed by the petitioner, there are categorical allegations supported with the reports of two competent forensic experts who have opined the signatures being forged.

Referring the case of Eicher Tractor Ltd. & Ors, vs. Harihar Singh and Others reported in 2008 (8) SC 559, learned counsel for the petitioner submitted that the F.I.R. lodged by the respondent No. 11 is a counter-blast of the F.I.R. instituted by the petitioner, in which charge-sheet has already been submitted, hence it was argued that the instant F.I.R. is false and malicious. Learned counsel for the respondent No. 11 submitted that in the F.I.R. instituted by the petitioner the point of forgery as committed by the petitioner in the two sale-deeds, which is the basis of his claim was never examined or investigated into and it was accepted without examination. Learned counsel further submits that in the investigation carried on the basis of F.I.R. lodged by the respondent No. 11, the point of forgery was categorically alleged and it found supported with the reports of two forensic experts who examined the signatures.

Thus, hearing and considering that there is categorical allegation of forgery and fabrication of the sale-deeds which allegation find supported with the report of two forensic experts and that on consideration of other supporting material chargesheet have been submitted and cognizance of offence has also been taken, I do not find it a fit case for quashing of the F.I.R. as prayed by the petitioner. In the circumstances, finding no merit in this application, it is hereby dismissed.