P.C.Bundela, Major vs Neera Kumar

Harmohinder Kaur Sandhu, J.

Respondent No. 1 filed a complaint under Sections 198, 199, 463, 468 and 471 IPC against Major P.C. Bundela the present petitioner and Miss Divya v. Shah, respondent No. 2 alleging that her father Shri Surinder Singh Samra divorced her mother on 18.12.1977 and thereafter as he did not keep good health and required medical attention became dependent on one lady Dr. Smt. Satya Chawla. He died in October, 1987 and taking advantage of the same Dr. Satya Chawla got his house No. 3285, situated in Sector 23D, Chandigarh, transferred in her name on the basis of a forged Will dated 7.6.1981 by presenting the same in the Estate Office, Chandigarh, without impleading the complainant and her brother as parties. The father of the complainant also possessed numerous shares of various companies and in order to enough the valuable securities at the earliest she distributed those shares to her relations. Major P.C. Bundela, who was a close relative of Dr. Satya Chawla, also came in possession of share certificates from her. He presented the share transfer forms through his agent on 17.11.1988 and 15.12.1988 by forging the signatures of her father on transfer from and by getting the same attested in connivance with respondent No. 2 who was a Notary Public at Bombay. These share transfer forms were attested as a witness by one Balwinder Singh, a resident of Chandigarh. The petitioner received payment of Rs.1,83,000/ through a cheque with respect to the shares.

Preliminary evidence was recorded in the case and after perusing the same the trial Court concluded that there was no ground to presume the commission of offence by respondent No. 2, who was Notary Public at Bombay and has simply attested some documents about the transfer of shares but there were reasonable grounds to presume the commission of the offence punishable under Sections 199, 420, 468 and 471 IPC by Major P.C. Bundela. Vide JUDGMENT dated 30.4.1991 he was summoned to face trial.

Major P.C. Bundela has filed the present petition under Section 482 Cr.P.C. for quashing of the complaint and summoning order issued against him as well as the proceedings arising out of the same. He alleged that under Section 125 of the Army Act when Criminal Court and Court Martial each have jurisdiction in respect of an offence, it shall be in the discretion of the authorities mentioned in the Section to decide before which Court the proceedings are to be instituted. The Magistrate is not competent to take cognizance of an offence in respect of a person subject to the Army Act unless he is moved thereto by a competent Military Authority. In the instant case the Magistrate had not been moved to take cognizance of the offence by a competent Military Authority nor he had recorded reasons for taking cognizance of the offence without being moved thereto by the Military Authority. He further alleged that the signatures of the transferer had been attested by respondent No. 2 on 2.10.1988 and thereafter the transfer forms were submitted to the Company for transfer. On 2.10.1988 he was not present in India. The previous complaint filed by respondent No. 1 had been dismissed and second complaint on the same facts was not competent without any fresh material. The transfer forms did not contain his signatures and he was not involved in any manner with the transfer of the shares. He also denied having received any payment on the basis of a cheque dated 15.2.1990 and contended that the shares had not been transferred by the company so far.

In the return filed by respondent No. 1 it was maintained that provisions of Section 125 of the Army Act were complied with. She had approached the GOCinCommand on 6.7.1990 to take action against the petitioner as he was the competent authority to decide whether a Criminal Court should proceed against the petitioner or not and he sent letter Annexure R/1 asking the respondent to proceed against the petitioner. The petitioner had been summoned, as primafacie case was made out against him and there was no ground to quash the summoning order. If no offence was made out then the petitioner was likely to be discharged by the trial Court. It was asserted that Dr. Satya Chawla gave shares worth lacs to the petitioner who forged the signatures of Shri Surinder Singh Samra deceased and sold the shares and got a Bank of India, Bombay Stock Exchange Cheque No. 822466 dated 15.2.1990 for Rs. 1,83,000/. He masterminded the operation for the sale of shares and committed offences punishable under the Indian Penal Code.

I have heard the counsel for the parties.

The main contention of the learned counsel for the petitioner was that the petitioner who was an Army Officer was to be tried by a Court Martial. Under Section 125 of the Army Act, 1950 the officer commanding is given the discretion to decide before which Court the proceedings shall be instituted and if he decides that they should be instituted before a Court Martial the accused is to be detained in military custody. But when a criminal Court having jurisdiction is of the opinion that proceedings should be instituted before itself in respect of any alleged offence it may by written notice require the office referred to in Section 125 at his option either to deliver over the offender to the nearest magistrate or to postpone the proceedings pending a reference to the Central Government. It was contended that when Criminal Court and Court Martial have each jurisdiction in respect of an offence then mandatory provisions of Rules 3 and 4 of Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 should be complied with, but the same have not been complied with, in this case and the proceedings are liable to be quashed on that ground. This contention of the learned counsel is, however, without merit. A letter addressed by Col. Madhusudan, Headquarters Western Command, Chandi Mandir, to respondent No. 1 shows that the Army authorities had no intention to try the petitioner for the alleged offences and she was advised to have recourse to the Criminal Court. That is why she filed complaint in the Court of Chief Judicial Magistrate Chandigarh. As per ground ''G'' in the petition the petitioner had moved an application before the learned trial Court that his case may be transferred to the Army authorities and a letter from the Commanding Officer was also produced that the case should be handed over to the Army Authorities, but no decision had been taken on the application. It is not denied that in the instant case though the offences are triable by a Criminal Court as well as by a Court Martial, but the discretion is of the officer commanding of the Army. He is to decide before which Court the proceedings shall be instituted but the proceedings cannot be quashed simply on the ground that the Army authority has not been given an opportunity to exercise that discretion. The application of the petitioner is still pending before the trial Court whereby he has sought transfer of his case to the Army authorities. The trial Court will decide that application in accordance with law.

It was next urged on behalf of the petitioner that on the day when the signatures were attested by respondent No. 2 he was not in India, so he could not be linked with the commission of the offence. This contention is without any merit. The question whether the petitioner was in India on a specified date or he had gone abroad can only be decided on the basis of evidence at the conclusion of trial.

The learned counsel for the petitioner further urged that as per averments made in the complaint, the earlier complaint was dismissed in default on 13.11.1990 and the second complaint was not competent on same facts. It was urged on behalf of the respondent that the complaint was transferred to the Court of Judicial Magistrate Ist Class, Chandigarh, who returned the same to the Court of Chief Judicial Magistrate. Due to some misunderstanding the complainant could not appear and the complaint was dismissed in default. The second complaint was then filed. The circumstances under which the second complaint was filed are given in para No. 11 of the complaint. Copy of the earlier complaint has not been placed on record so it could not be asserted that the second complaint was filed on the same facts and was not maintainable. Rather perusal of Para 11A shows that some additional facts were mentioned therein. Dr. Satya Chawla was alleged to have handed over the shares to the petitioner. When she learnt about the filing of the complaint she moved an application to Food Specialities Limited dated 9.10.1990 alleging that certain shares were missing. The petitioner, therefore, cannot assert that the complaint was liable to be quashed on the ground that earlier complaint was dismissed in default.

As this stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be primafacie satisfied whether there are sufficient grounds for proceeding against the accused. In the present case after perusing the preliminary evidence and taking into consideration the allegations made in the complaint the trial Court did not find sufficient grounds to proceed against respondent No. 2 but primafacie case was made out against the petitioner, so he was summoned to face trial.

As a result of my above discussion, I find no merit in this petition and dismiss the same. The trial Court is, however, directed to comply with the provisions of Rules 3 and 4 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952, before proceedings further with the case. The parties to appear in the trial Court on 12th January, 1994.