(Under section 482 read with section 483 for quashing the FIR No.261/2012 registered at Police Station Chomu, Jaipur for offence u/ss 420, 467, 468, 471 and 120B IPC.)

Both these petitions have been preferred by the petitioners under section 482 Cr.P.C. for quashing the FIR No.261/2012 registered at Police Station Chomu, Jaipur for offence u/ss 420,467,468,471 and 120B IPC.

Both the petitions are in relation to same FIR, hence are being decided by this common order.

The short facts relevant for disposal of the present petitions are that the complainant-respondent no.2 filed a criminal complaint alleging therein that on partition deed dated 28.3.2012, his signatures have been forged as he never appeared before the authorities. On the complaint, FIR No.261//2012 was registered. The contention of the petitioners is that the report does not disclose commission of offence. Prosecution has been instituted with ulterior motive, dispute is essentially of civil nature. The present petitioners and respondent no.2 have agricultural land situated at village Jahota, Chomu, Jaipur. Complainant had one-third share and petitioners had remaining 2/3rd share jointly all are co-sharer in the land, and they had demarcated respective shares in the land by mutual understanding and are in possession of their respective shares. Respondent No.2 has sold 1/3rd share to Smt Sohni Devi by registered sale deed dated 16.6.2009 and since then she is in possession over the land. It is specifically stated in the sale deed that land has been partitioned between the share holders and actual possession of the land has been handed over to the purchaser which clearly established the fact that partition has been taken place between the parties. The petitioners and respondent no.2 submitted joint application before the Tehsildar for seeking division of holdings by mutual consent. Partition deed was submitted to the Tehsildar and report was called from the Patwari and after following due process of law, Tehsildar has ordered division of holding. Thereafter, all the share holders are in possession of their divided holdings, no forgery has been committed by any of the petitioners. Police is going to file challan on the basis of Forensic Science Laboratory report which is fake one as it has been prepared on 18.3.2012 much prior to filing of FIR. There is no dissimilarity in the signatures of respondent no.2. The document placed before the court clearly reveals that none of the signatures of respondent no.2 on the document are similar to each other as he is illiterate person and could only sign and further contention is that FIR be quashed as it is motivated with malice and a clear abuse of process of law.

Per contra, the contention of learned Public Prosecutor and learned counsel for the complainant is that the matter has been investigated and prima facie it was found on the strength of evidence and Forensic Science Laboratory report that the signatures on the partition deed of respondent no.2 has been forged. Learned Public Prosecutor has also submitted that charge-sheet is ready to be filed and in view of the matter, the FIR could not be quashed.

Heard learned counsel for the petitioners,learned Public Prosecutor and counsel for the complainant and perused the document as well as the impugned FIR.

A bare perusal of FIR reveals that allegation is that forged partition deed has been executed and it was never signed by respondent no.2 and his signatures have been forged. FSL report has also been placed on record which bears the date of 18.3.2012 whereas the FIR has been lodged on 23.5.2012. The learned Public Prosecutor has submitted that by slip of pen, the year has wrongly been mentioned, the FSL report has been prepared on 18.3.2013 hence it is reliable document and it speaks that signatures on the partition deed are dissimilar with the respondent's signatures. The petitioners have rightly stated that none of the signature of the respondent No.2 on the document are similar to one another and special reliance has been placed by the counsel for the petitioners on the sale deed dated 16.6.2009, by which the respondent No.2 has sold his share of the land to Smt. Sohni Devi wherein it has been stated that he owns 1/3 share of the property and possession of specific portion has been handed over to the purchaser. It has also been stated that share of the land of other Khatedars is safe, meaning thereby that property has been demarcated on the spot and shares of the parties have been identified and divided by metes and bounds. The sale deed is admitted document of the parties and even respondent No.2 has not denied the execution of the sale deed. Averments in the sale deed speaks clearly about veracity of the allegation contained in the report filed by the respondent No.2. The narration in the sale deed discarded accusation leveled against the present petitioners. The counsel for the petitioner has relied upon 2011 (7) SCC 59, Josheph Salvaraja vs State of Gujrat and others where it has been held that even if charge sheet has been filed, High Court could still examine whether alleged offences are prima facie made out or not and it has been held that filing of the charge sheet or even framing of charge is not a bar to exercise jurisdiction of the Court because the very purpose of inherent powers is for advancement of justice and filing of charge sheet is not an absolute bar to entertain petition under Section 482. Court must ensure that criminal prosecution must not be used as an instrument of harassing or for seeking private vendetta. There is no doubt about the fact that powers under Section 482 are extraordinary in nature and should be used with caution and care, but the very foundation of the powers is that it should be used for advancement of justice and such powers could be used at any stage or intermediate stage of the trial, hence, the objection of the respondent no.2 that charge sheet has been filed is no bar for entertaining the petition.

The other contention of the respondent no.2 is that for quashing the FIR, the allegations in the FIR has to be looked into, the defence version cannot be considered, but the Apex Court in a case of Rajiv Thapar and ors v Madan Lal Kapoor, 2013 (3) SCC 330 it has been observed:

'To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.'

Looking at the above, it can be safely concluded that defence documents which are uncontroverted and public document could be looked into and material relied by the petitioner in support of their plea for quashing the proceedings should be sound, reasonable and sufficient to reject factual assertion contained in the charges levelled against them, could be looked into. Here, sale deed is the admitted document of the parties wherein specific narration has been mentioned that land has been partitioned and actual possession of the sold land has been handed over to the purchaser, which rules out and discarded the contention of the prosecution that signatures on the partition deed are forged or no such partition deed has been signed by the respondent no.2.

Apart from it, it is not the contention of the respondent no.2 that his share was more than that which has been given to him in the alleged forged partition deed. Hence, no wrongful loss has been caused to the respondent. Much prior to the partition deed, he has sold his property to Smt. Sohni Devi which fortifies the contention of defence. By mutual consent, holdings have been divided and co-sharers are in possession of the specific portion of the land. The contention of the petitioners is that if the prosecution is motivated by malice and complaint has been filed to abuse the judicial process and to harass the petitioners it squarely covers by the law laid down in the case of State of Harayana and ors vs. Ch.Bhajan Lal and ors.,AIR 1992 SC 604., wherein it has been observed in clause 7 of para no.108 as under:

'7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.'

In the facts and circumstances of the present case, it squarely covers under the Clause 7 of the law laid down by the Supreme Court

in the case Harayana and ors vs. Ch.Bhajan Lal and ors. (supra). The counsel for the respondent has placed reliance on 2006(6) SCC 728 State of Karnataka and another vs Pastor P.Raju wherein it has been observed: 'In the concluding paragraph of the judgment under challenge, the High Court has also observed that considering the facts and circumstances and the allegations made in the complaint it could be said that the initiation of criminal proceedings is abuse of process of Court and miscarriage of justice. No reasons in support of the aforesaid observation have been given. As already stated, the case was still under investigation and the police was in the process of collecting evidence. The sweeping remark made by the High Court in the circumstances of the case was wholly unjustified.' There is no quarrel about the same but looking to the factual scenario as stated above, the petitions are allowed and the FIR No.261/2012 registered at Police Station Chomu, Jaipur for offence u/ss 420,467,468,471 and 120B IPC is hereby quashed.