Criminal Revn. Appln. No. 303 of 1994 (converted into) Criminal Writ Petn. No. 69 of 1995. Case: Bharat Hiralal Sheth and others Vs Jaysin Amarsinh Sampat and another. High Court of Bombay (India)
| Case Number | Criminal Revn. Appln. No. 303 of 1994 (converted into) Criminal Writ Petn. No. 69 of 1995 |
| Counsel | For Petitioners: Amit Deshmukh with S. H. Marchant and P. N. Dixit i/b M/s. Legal Venture, Advocates and For Respondents: G. S. Hegde, Adv. and For State: I. S. Thakur, A.P.P. |
| Judges | D. G. Deshpande, J. |
| Issue | Indian Penal Code (45 of 1860) - Sections 463, 464, 464(h), 464(1), 464(e) |
| Citation | 1997 CriLJ 2509 |
| Judgement Date | February 17, 1997 |
| Court | High Court of Bombay (India) |
Order:
1. Heard the learned Counsel for the petitioners and the respondents. Respondent No. 2 filed criminal complaint against the petitioners in the Court of the Metropolitan Magistrate, 30th Court, Kurla under Sections 193, 465, 467, 468, 471 r./w. 34 of the I.P.C. This complaint was filed in 1981 and it is pending for the last 16 years undecided apparently on account of the attempts of the accused to challenge interim orders. The Magistrate in 1986 decided to frame charges, that order was challenged by the accused before the Sessions Court in revision. The revisional Court remanded the matter back to the Magistrate for passing a detailed and speaking order. Consequently, the Magistrate passed his speaking order on 12th February, 1993 framing charges against the accused under Sections 465, 468 and 471 r./w. 34 of the I.P.C. This order was again challenged by the petitioners before the Sessions Judge in revision by Revision Application No. 158 of 1993 and the revision was decided on 6th September, 1994 by the Sessions Judge and the same was dismissed. That order is challenged now in this writ petition and in this manner the complaint is pending before the Magistrate since 1981.
2. The learned Counsel for the petitioner firstly urged that this was not a case of forgery because the documents at Annexure "C" was admittedly prepared by the petitioners i.e. in their office in the name of the petitioner and consequently the matter did not come in the definition of the world "forgery". Secondly, according to the learned Counsel for the petitioners, the dispute between petitioners and the complainant-respondent No. 1 was purely of a civil nature, that no criminality involved in it and therefore the Magistrate committed error in framing charges. Thirdly, according to him in the, arbitration proceedings the complainant-respondent No. 1 was present and an award was passed against him and to give counter blow to the said Award being, passed in anticipation, the complainant filed the present complaint. The learned Counsel for the petitioners also relied upon certain authorities and documents in support of his contention.
3. On the other hand, it was argued by the learned Advocate for the respondents that this revision against an order passed by the learned Sessions Judge in revision was not maintainable. Secondly, according to him from the Illustration (h) of Section 464 and from Explanation 1 of Illustration (e) it was clear that preparing a document by the complainant as per Exhibit "C" was a forgery. He also contended that merely because the transaction appears to be of civil nature it cannot be thrown out from the criminal Court if the complainant succeeds in making a case that criminality is involved in the transaction. Thirdly, it was argued that both the Courts below had given concurrent findings on facts against the petitioner and therefore in revision it was not open to this Court to upset those findings on fact. Lastly, it was argued that in the arbitration proceedings the complainant appeared thrice and did not take part in that sense of the term and therefore taking part in arbitration proceedings cannot act as estoppel against the complainant. The learned APP supported the submissions made by the complainant's Advocate.
4. So far as, forgery is concerned, it is the case of the...
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