Smt. Kamala Devi Goyal vs The State Of West Bengal & Anr on 10 June, 2025

Calcutta High Court (Appellete Side)

Smt. Kamala Devi Goyal vs The State Of West Bengal & Anr on 10 June, 2025

                                                                          2025:CHC-AS:996
                      IN THE HIGH COURT AT CALCUTTA
                     CRIMINAL REVISIONAL JURISDICTION
                              APPELLATE SIDE


PRESENT:

THE HON'BLE DR. JUSTICE AJOY KUMAR MUKHERJEE

                              CRR 2730 of 2022
                                   With
                               CRAN 2 of 2023
                               CRAN 6 of 2025

                          Smt. Kamala Devi Goyal
                                     Vs.
                       The State of West Bengal & anr.



For the Petitioner                   :       Mr. Pratim Priya Das Gupta
                                             Mr. Aasish Choudhury
                                             Ms. Meera Agarwal


For the Opposite Party No.2          :       Mr. Pawan Kumar Gupta
                                             Mr. Ayan Bhattacharya


For the State                        :       Mr. R.D. Nandy Ld. APP
                                             Mr. Subham Kanti Bhakat




Heard on                             :       02.05.2025


Judgment on                          :       10.06.2025




Dr. Ajoy Kumar Mukherjee, J.

1. This instant prayer for quashing of proceeding relates to GR Case no.

830 of 2020, arising out of Lake Town police station case no. 209 of 2020

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dated 26.11.2020 under section 420/467/468/471/120B of the Indian

Penal code (IPC), presently pending before learned Additional Chief Judicial

Magistrate, Bidhannagar.

2. The allegations as set out in the first information report is that the

opposite party no. 2/FIR maker purchased a property being premises no.

54-A Kali Krishna Tagore Street Kolkata-700007 in the year 2011, wherein

the petitioner herein is a tenant of a shop room situated at the ground floor

allegedly since 1975 -76. The FIR maker after purchasing the said property

filed ejectment suit being 130 of 2017 with a prayer for evicting the

petitioner. The said suit was decreed ex-parte in favour of opposite party

no.2 herein/FIR maker on 28.02.2018. Later on the opposite party no. 2

initiated execution proceeding being no. 72 of 2018 and in execution of the

said decree, vacant khas possession of the said tenanted shop room was

handed over to the opposite party no. 2 in presence of police. However, on

21.12.2018 the said opposite party no. 2 came to know that the petitioner

along with other accused persons unlawfully trespassed into the said shop

room and had taken forceful possession of the same. On enquiry the

opposite party no.2 came to know that the petitioner along with other

accused persons by forging the signature of opposite party no.2 have

procured a letter which they have submitted before Jorabagan police station

stating that both the parties have entered into an amicable settlement,

whereby the opposite party no.2 herein has agreed and has handed over the

possession of the said shop in favour of the petitioner on stipulated terms.

The FIR maker’s specific case is that he neither entered into any kind of

mutual settlement with the accused persons nor have signed any such letter

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to such effect. The complainant immediately on 22.12.2018 wrote a letter to

accused no.4 protesting such forgery. Therefore, the petitioner along with

the other accused persons are guilty of forging the signature of the FIR

maker and also guilty of committing offence for preparing illegal letter dated

20.12.2018, by which they have taken illegal possession of the shop room.

3. Being aggrieved by the said proceeding Mr. Das Gupta learned

counsel appearing on behalf of the petitioner submits that on perusal of the

charge sheet it is evident that there is no reflection as to any report being

obtained from an expert to substantiate the charge of forgery and in absence

of such report offences under section 467/468/471 IPC is not maintainable.

Under the provisions of 463 IPC, which defines forgery makes it clear that

only one who makes false document can be held liable for offence of forgery.

Therefore, the person who is not the maker of false document in question

cannot be said to have committed forgery and in this context he relied upon

the Judgement of Sheila Sebastian Vs. Jawaharaj and another reported

in (2018) 7 SCC 581.

4. Petitioner’s further contention is that it is not in dispute that opposite

party no.2 after executing decree passed in Title Execution 72 of 2018

obtained possession of the shop room but thereafter through intervention of

Posta Bazar Merchants’ Association, the opposite party no. 2/ landlord

entered into an amicable settlement wherein the opposite party no. 2 agreed

to hand over possession to the petitioner herein on condition to clear all

previous outstanding rent, amounting to Rs. 80,519/- till November, 2018

and on further condition to pay agreed enhanced rent of Rs. 4,000/- per

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month from December, 2018 and copy of such settlement letter was

deposited to the nearby Police Station on the self-same date.

5. Petitioner’s further contention is as per aforesaid settlement, he paid

Rs. 80,519/- through cheque no. 000021 dated 20.12.2018 and opposite

party no. 2 duly encashed said cheque on 29.12.2018 and petitioner also

paid agreed enhanced monthly rent of Rs. 4,000/- for the month of

December, 2018.

6. Petitioner alleged that despite receiving rent from petitioner at

enhanced rate for the month of December, 2018, the opposite party no. 2

did not issue rent receipt, for which petitioner lodged complaint at

Jorabagan P.S on 31.12.2018. Thereafter petitioner filed Title Suit no. 105 of

2019 before competent Civil Court for declaration of his tenancy right and

for injunction and learned civil court vide order dated 19.01.2019 passed an

ad-interim injunction in the nature of statues-quo in respect of possession,

nature and character of tenanted suit shop room. Subsequently opposite

party no. 2 herein as defendant appeared and filed one application under

Order XXXIX, Rule 4 of Civil Procedure Code with a prayer for vacating the

aforesaid order of interim injunction, contending that said letter concerning

amicable settlement dated 20.12.2018 is a forged one and complain to that

effect has already been lodged at Jorabagan P.S. However said Civil Court by

it’s order dated 08.02.2019 affirmed the injunction order and thereby

rejected application under order XXXIX, Rule 4 filed by opposite party no. 2,

seeking vacating the injunction order. After more than one and half year of

rejection of prayer for vacating injunction order, present criminal proceeding

has been falsely initiated at the behest of opposite party No.2.

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7. Petitioners counsel further submits that on perusal of the contents of

complaint, it is evident that no averment has been made justifying as to how

the court below assumed territorial jurisdiction to entertain such application

and subsequently to pass a direction upon Lake Town P.S. to register the

purported FIR, when no part of alleged cause of action has taken place

within the jurisdiction of learned ACJM Bidhannagore and also when it is

clear from the said complaint that the address of both the petitioner and the

opposite party no.2 herein does not fall within the jurisdiction of Jorabagan

Police Station and for which learned ACMM-1, Calcutta has only got the

jurisdiction to cause enquiry and trial, if any. In this context he relied upon

the judgment of Y. Abraham Ajith and others. Vs. Inspector of Police

Chennai reported in (2004) 8 SCC 100.

8. He further submits that on perusal of the application filed under

Order XXXIX Rule 4, wherein the opposite party sought for vacating the

order of injunction, it is evident that the opposite party no.2 herein made a

previous complaint on the self-same issue before Jorabagan Police Station

and as such present first information Report is not the first information. In

fact there was a previous complaint made by opposite party no.2, which

should be treated as first information report. In such circumstances the

complaint which has resulted in the registration of instant FIR, cannot be

translated into legal evidence as because the same is barred by the provision

of the Code of Criminal procedure which states that the first information

disclosing a cognizable offence shall be treated as an FIR and any

subsequent information even if disclosing cognizable offence cannot be

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treated as FIR and in this context he relied upon Amit Bhai Anil Chandra

shah Vs. CBI and another reported in (2013) 6 SCC 348.

9. Mr. Das Gupta further argued that there is no dispute that after

execution of said letter dated 20.12.2018, the petitioner duly paid Rs.

80519/- through cheque no. 000021 dated 20.12.2018, which was duly

encashed by the opposite party no.2 on 29.12.2018. Furthermore the

petitioner also paid the enhanced monthly rent of Rs. 4,000/- for the month

of December, 2018 through NEFT and it is not the case of the opposite party

no.2 that they have refunded the said sum and as such the allegation that

the said letter dated 20.12.2018 is a forged document, is an afterthought

and manifestly attended with mala fide.

10. He further contended that the dispute between the parties is

essentially civil in nature, which the FIR maker tried to convert into a

criminal proceeding and such attempt must not be encouraged and in this

context he relied upon the observation made by supreme Court in Indian

Oil Corporation Vs. NEPC India Ltd. and others reported in (2006) 6 SCC

736.

11. It has been further argued on behalf of petitioner that the petitioner is

not conversant with the English language and even in the cheque issued for

payment of arrear rent, she put her signature in Hindi and therefore the

allegation that the petitioner had forged the signature of the opposite party

no.2 appearing to be in English is imaginary and fictitious and the petitioner

has been implicated to wreck vengeance and to put pressure to settle a civil

dispute, since an order of status quo in respect of the said tenanted

property is still prevailing.

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12. Apart from that, the necessary ingredients to constitute an offence

under section 420 of IPC is clearly missing. The existence of dishonest or

fraudulent intention since inception and thereby alluring the other person to

do or omit to do something are sine qua non to make out an offence of

cheating. In the present case there is no dispute that the petitioner duly

paid the outstanding rent as well as enhanced rate of rent and thus the

fraudulent intention since inception is clearly absent. In this context he

further argued that the issue as to genuiness of a document, forgery of

which is the basis of criminal proceeding, which is also pending for

consideration in a civil suit, criminal proceeding ought not to be allowed to

continue.

13. Mr. Gupta Learned Counsel appearing on behalf of the opposite party

no.2 argued that in the instant proceeding seeking quashment, no material

of sterling and unimpeachable quality have been relied on by the petitioner

herein which could safely and sufficiently refute the charges qua the instant

petitioner. The documents like information slip of the bank or the purported

cheque etc. cannot be said to be materials of sterling and unimpeachable

quality to single headedly dispel the prosecution case qua the instant

petitioner. The materials relied upon by the accused is not such as would

persuade a reasonable person to dismiss the actual basis of the acquisitions

as false. In the instant case the petitioner herself pleaded that the opposite

party no.2 did not furnish any rent receipt in favour of the instant petitioner

qua the said shop room at the subject premise and such pleading in fact

admits to a judicial admission which controverts and disputes the purported

stand of mutual settlement at the behest of the instant petitioner. He further

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submits that disputed and controversial issue of facts cannot be made the

basis of exercise of jurisdiction in terms of section 482 of the Cr.P.C. for

quashment of a criminal proceeding.

14. Referring the judgment of Kamala Devi Agarwal Vs. State of West

Bengal, reported in (2002) 1 SCC 555, Mr. Gupta contended that it is trite

law that a criminal proceeding cannot and ought not be quashed on the

ground of mere pendency of a civil suit between the self-same parties. In

reply to the petitioners contention about non acceptability of second FIR,

Mr. Gupta argued that the instant FIR has been registered under sections

420/467/468/471/120B of the IPC and the same is based on the allegation

of manufacturing of a forged and fabricated letter of purported mutual

settlement to symbolize and claim possession of the said shop room at the

subject premises, whereas the earlier application under section 156(3) of the

Cr.P.C. was filed by the opposite party no.2 was about alleging commission

of offence under sections 380/448/341/403/506(ii) of the IPC at the behest

of the four accused persons including the instant petitioner. However, the

said application under section 156 (3) Cr.P.C. was never directed to be

treated as an FIR and there was no investigation in connection therewith.

Therefore, it cannot be said that the instant FIR is a second FIR. The instant

FIR is very much maintainable in law and in facts because the ambit of

offence as alleged in the earlier petition of complaint under section 156(3)

Cr.P.C. is altogether on a different cause of action.

15. In reply to the petitioners argument about territoriality of jurisdiction

of the court below, Mr. Gupta Submits that in the instant case the

investigational proceeding was taken up in consonance with the territorial

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jurisdiction, since the fountain head of the cause of action arose within the

bounds of Lake Town P.S. and as such there is no lack of territorial

jurisdiction whatsoever. Furthermore, it is trite law that an investigational

proceeding ought not be called into question on the ground of lack of

territorial jurisdiction since section 156(2) of the Cr.P,C. engrafts a saving

clause in such respect.

16. He further argued that the petitioner has averred that the original of

the letter dated December, 20th, 2018 was lost even prior to the initiation of

the subject investigation. In the charge sheet the police has alleged that the

petitioner did not even bother to comply with the notice under section 41A of

Cr.P.C. and as such he submits that the petitioner has purposefully not

provided the original of the forged and fabricated letter dated 20th December,

2018 before the investigating officer. Therefore, the petitioner by no stretch

of imagination can take benefit of his own wrong for non-availability of the

original document because under section 61 of the Evidence Act, the

contents of a document may be proved by primary or secondary evidence

and the photocopy of the said letter is a secondary evidence being a copy

made from the original by mechanical process. According to section 65 of

the Evidence Act, secondary evidence can be admitted when the original is

in the possession or in the power of the adversary and secondly when the

original has been destroyed or lost. In the present case the petitioner had

claimed loss of the original letter dated December 20th, 2018 in response to

the notice under section 91 of the Cr.P.C. Therefore, the present case

squarely falls within exceptions of section 65(c) read with Section 65(a) of

the Act and therefore, merely because the original of the letter has been

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allegedly lost by the petitioner, the charges under section 467/468/471 of

the IPC cannot be diluted when the photocopy of such documents is

custodia legis. Moreover the charges of forgery is ordinarily proved by

invoking opinion of expert under section 45 of the evidence Act. A persons

who is acquainted with the handwriting of a person can also testify in terms

of section 45 of the Evidence Act in support of such forgery and in this

context he pointed out the illustration appended to section 47 of the

Evidence Act. Apart from all this a court of law may also invoke the

provision as envisaged in section 73 of the Evidence Act to evaluate the

charge of forgery. Therefore only because the provisions under section 45 of

the Evidence Act was not invoked, it does not mean that the offence of

forgery cannot be determined specially when provisions under section 47

read with section 73 of the Evidence Act are available. Above all the

admissibility of such document can only be considered in a trial which can

take place after framing of charge. Though the petitioner being the

beneficiary and user of the forged document has now conveniently claimed

to have lost such document but still the charges of forgery can very well be

proved by secondary evidence and as such he prayed for dismissal of the

instant Application.

17. Learned Counsel appearing on behalf of the state placed the case

diary and leaves the prayer for quashment to the discretion of the court.

Decision

18. It is not in dispute in the present case that the petitioner was

inducted as a tenant in the said shop room and thereafter in the year 2017,

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the opposite party no. 2 herein filed ejectment suit, which was decreed ex-

parte and thereafter the decree holder/opposite party no. 2 got possession

on 13.12.2018 by executing the said decree through court. The dispute

arises thereafter, where the FIR maker’s case is that the accused person

including the petitioner herein have manufactured a letter dated 20.12.2018

forging signature of the FIR maker and by sending a copy to local P.S. took

forcibly possession of the suit shop room. On the contrary the contention of

the petitioner/accused persons is that on 20.12.2018, opposite party no. 2

herein and the petitioner entered into an amicable settlement wherein

opposite party no. 2 agreed to handover possession of the shop to the

petitioner on condition of clearing previous outstanding rent amounting Rs.

80,519/- and to pay the agreed rent of Rs. 4,000/- per month from

December, 2018.

19. From the case diary I find that during investigation police has

collected copy of the material documents namely the impugned letter dated

20.12.2018 which further reflects that Jorabagan P.S received a copy of that

letter on the self-same date i.e. 20.12.2018. They have also collected the

copy of plaint of aforesaid Title Suit no. 105 of 2019 and the copy of the

cheque by which the arear amount of Rs. 80,519/- was paid and the

document in support of the encashment of the cheque and also recorded

statements of both the petitioner herein and the opposite party no. 2. It

further appeares that the investigating agency also collected a letter dated

22.12.2018, admittedly written by the complainant to the petitioner

wherefrom it appears that he has not alleged the case of forgery in the said

letter but in response to paragraph 2 of petitioner’s letter dated 20.12.2018

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about mutual settlement, the complainant herein has simply denied and

disputed about the mutual talks and his contention is that the contents of

said letter is merely baseless and concocted.

20. Needless to say that to constitute an offence of forgery using a forged

document as genuine for the purpose of cheating the prosecution is required

to establish that particular accused i.e. the petitioner herein has committed

forgery by preparation of a forged documents in the manner provided in

section 463 and 464 IPC and that such forgery is to be made for the purpose

of cheating and in order to constitute offence under section 471 the

prosecution has to show that the accused fraudulently and dishonestly used

such document knowing it to be forged one. Here in the petition of

complaint the complainant has stated that all the accused persons have

forged the signature of the complainant in the letter dated 20.12.2018. Form

the materials in the case diary and also from the written complaint I do not

find any material that the instant petitioner Smt. Kamala Devi Goel has

prepared the allegedly forged letter. Infact during investigation, maker of

alleged false document was not found nor any investigation was done to that

extent. The available document in the case diary and the complaint does not

reveal any relationship between the alleged wrongdoer and the present

petitioner. It is well settled that the charge of forgery cannot be imposed or

sustained against a person against whom prima facie allegation of making

false letter in question has not been established. The essential element of an

offence under Section 464 of the IPC is that the accused must make the

document with the intent of making it to be believed that it was signed by or

under the authority of someone else while he knows that it was not so made

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or authorised to make by that person. In other words to bring the offence

within the four corners of the sections, the letter dated 20.12.2018 must be

shown to have created by the present petitioner with a view to making it

appear that it was made by some person other than the person who the

petitioner knows did not make it. The materials available during

investigation does not suggest that the prosecution could even prima facie

establish that the alleged letter dated 20.12.2018 was procured by the

petitioner or she procured the signature of the complainant.

21. Moreover during investigation the said letter dated 20.12.2018 could

not be seized by the investigating agency nor there was any scope for

investigation or to compare signature of the complainant with the signature

that was appearing in the letter dated 20.12.2018, may be due to the reason

that said alleged document being letter dated 20-12.2018 has been made

part of the record of the Title Suit no. 105 of 2019 where the issue of forging

letter has also been raised by the opposite party herein, before filing of the

instant complaint or because it could not be traced. Since the issue as to

whether the letter dated 20.12.2018 is a forged document containing forged

signature or not is under consideration before the Civil court for

adjudication of petitioner’s tenancy right, the present FIR also ought not to

have been allowed to continue as it would prejudice the interest of the

parties and the stand taken by them in the civil suit. In a similar situation

in a case Rajeshhai Muljibhai Patel & Other Vs. State of Gujarat &

another reported in (2020) 3 SCC 794, the Apex Court quashed the FIR

with the following observation made in para 20 of the judgement:-

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20. Be that as it may, in Summary Suit No. 105 of 2015, leave to defend
was granted to Respondent 2 Mahendrakumar on 19-4-2016. On the
application filed by Appellant 3 in the said Summary Suit No. 105 of 2015,
four receipts filed in the suit were sent to the handwriting expert. The
handwriting expert has opined that signatures in all the four receipts did not
tally with the sample signatures which were of Respondent 2
Mahendrakumar. It was only thereafter, complaint was filed by
Mahendrakumar, based on which, FIR No. I-194/2016 was registered on
28-12-2016 against the appellants for the offences punishable under
Sections 406, 420, 465, 467, 468, 471 and 114 IPC. As rightly contended by
the learned counsel for the appellants, in Summary Suit No. 105 of 2015,
Issue 5 has been framed by the Court “whether the defendant proved that
the plaintiff has fabricated the forged signature illegally and created forged
receipts”. When the issue as to the genuineness of the receipts is pending
consideration in the civil suit, in our view, the FIR ought not to have been
allowed to continue as it would prejudice the interest of the parties and the
stand taken by them in the civil suit.”

22. Materials available in the case record reveals that after about one and

half year of refusal order passed by civil court in respect of opposite party’s

prayer for vacating injunction order, frustrated landlord has initiated the

impugned criminal proceeding which if allowed to continue would be an

abuse of process of law. In Chandanpal Singh and others Vs. Maharaj

Singh and another reported in (1982) 1 SCC 466, Supreme Court made

following observation :-

“…………………………..it is equally true that chagrined and frustrated
litigants should not be permitted to give vent to their frustration by cheaply
invoking jurisdiction of the criminal court. Complainant herein is an
advocate. He lost in both courts in the rent control proceedings and has now
rushed to the criminal court. This itself speaks volumes. Add to this the fact
that another suit between the parties was pending from 1975. The
conclusion is inescapable that invoking the jurisdiction of the criminal court
in this background is an abuse of the process of law and the High Court
rather glossed over this important fact while declining to exercise its power
under Section 482 CrPC.”

23. In this context Mr. Gupta through heavily relied upon the judgment of

Kamal Devi Agarwal Vs. State of West Bengal reported in (2002) 1 SCC

555 but said case is factually distinguishable with present one as in that

case trial court found that the complaint had made out a prima facie case

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against the accused person of forgery of a deed of dissolution of partnership

firm, so it was held that the criminal proceeding should continue, which is

not the case in the present context. There is nothing to show that either the

complainant or the prosecution agency has made out any prima facie case of

criminality against the present petitioner namely Kamala Devi Goyel about

forging of the said letter.

24. Mr. Gupta though argued strenuously referring 64,65 and 73 of

Indian Evidence Act to established that the petitioner’s case is that copy of

that letter can be proved as secondary evidence or by a person who is

acquainted with the signature of the complainant, but I find that such

argument is not tenable in view of the fact that the nature and scope and

standard of proof required in Civil and Criminal proceedings are distinct.

While the said copy of letter may have been made admissible as a secondary

evidence in the civil suit where preponderance of probability is to be judged

but in the absence of the seizure of the original document by the

investigating agency and without sending it for comparison to establish that

the signature and/or handwriting appearing therein is not the signature of

the complainant but has been prepared by the petitioner herein either in the

manner provided in section 463 and 464 of IPC or otherwise, there is hardly

any scope of establishing the charge of forgery as alleged against the present

petitioner and also because a penal statute cannot be expanded by using

implications. In this context the observation of the Apex court in Sheila

Sebastian Vs. R. Jawaharaj and another may be profitably referred:-

“30. Although we acknowledge the appellant’s plight who has suffered due
to alleged acts of forgery, but we are not able to appreciate the appellant’s
contentions as a penal statute cannot be expanded by using implications.

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Section 464 IPC makes it clear that only the one who makes a false
document can be held liable under the aforesaid provision. It must be borne
in mind that, where there exists no ambiguity, there lies no scope for
interpretation. The contentions of the appellant are contrary to the provision
and contrary to the settled law. The prosecution could not succeed to prove
the offence of forgery by adducing cogent and reliable evidence. Apart from
that, it is not as though the appellant is remediless. She has a common law
remedy of instituting a suit challenging the validity and binding nature of the
mortgage deed and it is brought to our notice that already the competent civil
court has cancelled the mortgage deed and the appellant got back the
property.”

25. In view of above I have every reason to believe that further

continuance of instant preceding before the court below against present

petitioner will be a mere abuse of the process of the court as at the end of

trial, conviction of the present petitioner on the basis of aforesaid materials

available in record is bleak.

26. CRR 2730 of 2022 is allowed. The impugned proceeding being G.R

case no. 830 of 2020 arising out of Lake Town P.S case no. 209 of 2020

dated 20.12.2020 presently pending before the court of Additional Chief

Judicial Magistrate, Bidhannagar is quashed, Quo Smt. Kamala Devi Goyal.

The connected Applications are also disposed of accordingly.

Urgent Xerox certified photocopies of this Judgment, if applied for, be given

to the parties upon compliance of the requisite formalities.

(DR. AJOY KUMAR MUKHERJEE, J.)

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