JAGESHWAR DAYAL TIWARI Vs. NEELESH TIWARI & ANR.

JUDGEMENT

(1.) This Criminal Revision has been filed by the petitioner being aggrieved by order dated 23.8.2012 passed by the Judicial Magistrate First Class, Gwalior, whereby it ordered framing of charges, so also against the order dated 4.10.2012 whereby charges have been framed against the petitioner under the provisions of Section 420 read with Section 120-B of IPC on 5 counts, 467 read with Section 120-B of IPC on two counts, 468 read with Section 120-B of IPC on two counts, 471 read with Section 120-B of IPC on two counts and Section 420 of IPC in

(2.) The revision petitioner submits that in fact petitioner and the complainant are close relative and petitioner is maternal uncle of respondent No.1. It is the contention of the petitioner that there was no valid authorization in favour of respondent No.1 to file the complaint, and therefore, the complaint as such was not maintainable. In this regard, attention of this Court has been drawn to Ex. P/1. Similarly, it is submitted that the allegation on the petitioner is that by showing a forged balance sheet of the company, namely A.P. Foams Pvt. Ltd. for the year 1993-94, respondent No.1 was induced to buy shares of a locked up unit on the insistence of the petitioner, and therefore, petitioner has committed forgery, cheating and misappropriation on various counts. It is petitioner's contention that in fact the complainant had joined the company alongwith the petitioner and he has nothing to do for the balance sheet of 1993-94. In fact, petitioner was also one of the directors of the company A.P. Foams Pvt. Ltd. alongwith the complainant, and therefore, allegations of forgery, cheating and misappropriation are not made out. He further submits that as per Ex.P/33, the complaint made to the police, there is no allegation against the revision petitioner and in fact a civil suit No.7-A/1996 was filed by the respondent which was dismissed. It is submitted that in fact petitioner had filed a case under Section 138 of the Negotiable Instruments Act for dishonour of cheques which were given by respondent No.1/complainant upon withdrawal of the petitioner from the directorship and share holding of the said company and that case was compromised, therefore, now no locus or cause of action survives in favour of the complainant to pursue the complaint on the strength of the charges which have been framed against the petitioner. It is also submitted that charges have been framed against the petitioner for the time period when he was neither in the company nor was related to the company in any manner. He has drawn attention of this Court to Ex.P/17, MOU, and submits that in the MOU there is no mention of the said balance sheet on the basis of which complainant is alleging forgery against the revision petitioner. Petitioner has also submitted that another allegation is of producing a forged receipt of M/s. Alfa Chemical Corporation and petitioner has nothing to do with such forged receipt and has also nothing to do with any other allegation, therefore, this revision deserves to be allowed and the charges which have been framed be quashed.

(3.) Learned counsel for respondent No.1, on the other hand supported the order of framing of charges and submits that revision against the charge has limited scope. It is not to be seen whether a person on the basis of charge can be convicted or not. What is to be seen that whether charges framed are based on the material available on record or not. He has drawn attention of this Court to Article A, which is forged balance sheet and contains signatures of the petitioner Shri J.D.Tiwari. He submits that in fact these signatures will demonstrate that main argument of the petitioner that he had joined the company alongwith the complainant and he has nothing to do with the previous directors becomes falsified. In fact, he was a power of attorney holder of the previous directors and this fact has been mentioned in agreement, Ex.P/34, in para 9 that first party will also renounce the Power of Attorney held by Shri J.D.Tiwari on behalf of Shri Ashok Kumar or any other person or promoter directors or share holders. Drawing attention on such facts on record, he submits that in his capacity as power of attorney holder, petitioner was involved with the company and had inside knowledge of the financial instability of the company, yet with a view to coerce the petitioner to bye shares of the company, a forged balance sheet was prepared, whereas the actual balance sheet shows loss of more than Rs.45 lacs. If actual balance sheet would have been placed in the hands of the complainant, who is a retired personnel from the armed forces, he would not have invested his hard earned money in such company. Similarly, he has drawn attention of this Court to Ex.P/29-A, invoice of Alfa Chemical Corporation, and Ex.P/28, which is a letter addressed to the lawyer of the company, in which it is categorically mentioned that invoice of the company was forged by A.P. Foams Pvt. Ltd. It is further mentioned that Shri C.M.Sharma, who has signed the invoice, is not the partner of M/s. Alfa Chemical Corporation. Learned counsel for respondent No.1 submits that in fact this C.M.Sharma is a close relative of petitioner J.D.Tiwari and they had colluded to defraud the petitioner. He further submits that police report is not an encyclopedia and he had a valid authorization to pursue the case and on the basis of that authorization he has filed the complaint which is maintainable. He further submits that a close look at Ex.D/5 will reveal that cause of action for civil case was different from the criminal case and petitioner cannot escape his criminal liability in the light of the fact that there was a civil case filed against him or there was a compromise in the case pertaining to Section 138 of the Negotiable Instruments Act. In view of such submissions, he prays for dismissal of the revision petition and prays for grant of exemplary cost against the petitioner.