JUDGMENT
Jagjit Singh, J.
(1) By his judgment, dated January 17, 1964, Shri Amba Prakash, Magistrate First Class, Delhi, acquitted Ram Nath Aggarwal and two others who had been tried by him on various charges. An appeal against the acquittal of Ram Nath Aggarwal was filed by State, under provisions of section 417 of the Code of Criminal Procedure (hereinafter referred to as “the Code”). The acquittal of the other two accused was nto challenged.
(2) Six charges were framed against Ram Nath Aggarwal. The first charge was for criminal conspiracy. The third and the fourth charges were for cheating and the fifth and the sixth charges were under section 471 of the Indian Penal Code. The second charge was also under section 471 and specifically mentioned three documents which, on or about July 19, 1954, were alleged to have been fraudulently used as genuine, before the Registrar of Joint Stock Companies, Delhi, knowing or having reason to believe the same to be forged. Out of those documents one was mentioned to be memorandum and articles of association of International Automobiles Limited, containing forged signatures of three merchants of Bombay, namely, M. D. Parekh, Haridass J. Bhatia and Lachhmandass J. Bhatia. The second document referred to was a power of attorney, dated July 19, 1954, also containing the alleged forged signatures of the aforesaid three persons.
(3) Forgery of a power of attorney is punishable under section 466 of the Indian Penal Code and the offence is friable by Court of Sessions. The second charge against Ram Nath Aggarwal in so far as it related to the power of attorney, was nto friable by the Magistrate but by a Court of Sessions. If the memorandum and articles of association is regarded to be a valuable security, as was urged by the learned counsel for State, then the offence of forging that document would fall under section 467 and the offence under section 471 for its fraudulent or dishonest use as genuine knowing or having reason to believe that it was forged would also be friable by Court of Session.
(4) In spite of the fact that one of the allegations against Ram Nath Aggarwal was that he had fraudulently used as genuine a forged power of attorney, knowing or having reason to believe the same to be forged, the learned Magistrate did nto proceed under the provisions of Chapter xviii of the Code, but proceeded to try the case as a warrant case instituted on police report. Even after framing the charges it was nto realised, and unfortunately that was also nto pointed out from either side, that the Magistrate had no jurisdiction to try the case due to one of the charges being exclusively friable by a Court of Session. Section 530 of the Code provides, inter alia, that if any Magistrate nto being empowered by law in that behalf tries an offender the proceedings shall be void. By our order dated October 18, 1968, we had held the proceedings before the Magistrate to be void, but as arguments had then been addressed to us only on the legal aspect of the matter we had directed that before deciding whether re-trial would be expedient or necessary in the ends of justice we would like to hear the learned counsel regarding the facts and the circumstances of the case. The order of October 18, 1968 may be read as part of this order.
(5) The F.I.R.inthe case is based on a report of Shri M. D. Parekh, dated 25-1-1960. Charges against Ram Nath Aggarwal were framed on 27-7-1962. The trial continued up to 17-1-1964, on which date Aggarwal and other two accused, who were tried with him, were acquitted.
(6) It is a common ground between the learned counsel for State and the respondent that the memorandum and articles of association were nto signed by M. D. Parekh, Haridas, J. Bhatia and Lachhmandass J. Bhatia and, similarly, the power of attorney which purported to authorise Ram Nath Aggarwal to represent the above-mentioned three persons in the matter of registration of International Automobiles Limited was as well nto signed by them. They were, however, stated to have signed a printed form of subscribers.
(7) It may be mentioned that on the basis of the memorandum and articles of associations, which purported to be signed by seven persons, including the three whose signatures were alleged to have been forged, and the power of attorney which was also alleged to be forged, a certificate of incorporation was obtained. Later on the name of the Company was gto changed to Cycle Components (India) Limited.
(8) On October 19, 1959, the Assistant Registrar of Companies wrote to the Cycle Components (India) Limited, Delhi, inviting attention to an earlier letter of 30-9-1959 and asked for return of the annual return which had been sent to that Company along with a letter dated 18-2-1957. A copy of that letter was forwarded to M. D. Parekh, who by way of reply requested for being informed in which way he was connected with the matter. On October 29, 1959, Parekh wrote to Aggarwal for getting information as according to him he did nto remember to have any connection with the Company. Ram Nath Aggarwal sent a reply, on 6-11-1959, that the name of International Automobiles Limited with which M. D. Parekh was associated had been changed to Cycle Components (India) Limited but that his name had been deleted as he had nto paid any money towards calls on shares. On November 9, 1959 the office of the Registrar of Companies sent a communication, with a copy to M. D. Parekh, pointing out contravention of the provisions of section 210 of the Companies Act, 1956 and inquired as to why action be nto initiated against the Directors of the Company. On November, 10, 1959, Shri Haribhai P. Desai, a lawyer of Bombay wrote on behalf of M. D. Parekh to Ram Nath Aggarwal that on inquiries made at Delhi it had transpired that in several communications addressed to the Registrar of Companies the signatures of Parekh had been forged and even though he had nto paid anything towards. the purchase of shares his name had been notified as a director to the Registrar of Companies. Afterwards a report, dated January 25, 1960, was made to the Superintendent, Special Police Establishment, New Delhi, on which case F.I.R. No. R.C 5/61-FA, dated 28-6-1961, was registered.
(9) Shri A. S. R. Chari, learned counsel for the respondent, did nto contend that the High Court, on an appeal againt the order of acquittal, had no power to order re-trial. It was, however, submitted that in the circumstances of the case re-trial or inquiry under Chapter xviii of the Code would nto be expedient or necessary for the ends of justice. In that connection stress was mainly laid on the following facts :-
(A)The matter is a very old one, being that of the year 1954.
(B)Sarvashri M. D. Parekh, Haridass J. Bhatia and Lachhmandas J. Bhatia did sign the printed form for subscribers and nto a blank sheet as was alleged by them and it may, therefore, be reasonable to presume that RamNath Aggarwal was given power to complete documents for incorporation of a company which was intended to be floated.
(C)As a result of the entire transaction M. D. Parekh or the other persons whose signatures are alleged to have been forged did nto suffer any loss and Ram Nath Aggarwal did nto gain any advantage and the use of the documents may nto consequently be regarded as fraudulent or dishonest
(D)The respondent has already undergone the harassment of a long and protracted trial and after the lapse of such a long period it would nto be in the ends of justice to again put him to the expense, harassment and botheration of an inquiry and trial.
(10) The learned counsel, however, desired that if the case is to be sent back for inquiry or trial then no opinion may be expressed regarding his submissions on merits so that any observations made by this Court may nto cause any prejudice to the respondent.
(11) It is true that the matter is an old one and there has been a fairly long and protracted trial. These facts alone, in my opinion, do nto justify the contention that it would nto be expedient to re-start proceedings against the respondent in accordance with law when the previous proceedings were void. In Ukha Kolhe v. The State of Maharashtra it was held that an order for re-trial of a criminal case is made in exceptional circumstances and nto unless the appellate court is satisfied that the court trying the proceedings had no jurisdiction to try them.
(12) In the present case the allegations against the respondent are of a very serious nature. Incorporation of a company is alleged to have been obtained on the basis of memorandum and articles of association and a power of attorney on which signatures of M. D. Parekh and two others were forged and that fact was alleged to be known to the respondent. Even a bank account was said to have been opened on the basis of an account opening form containing forged signatures.
(13) The circumstances in the case of R. R. Chari v. The State of Uttar Pradesh, where the Supreme Court took the view that the ends of justice did nto require that the accused should be ordered to face a fresh trial, were different. Nto only the accused had to face a long and protracted criminal trial but though the prosecution began with a charge of comprehensive conspiracy supported by several instances of bribery yet on the finding of the High Court it was reduced to a case of bribery offered by two persons and the only substantial evidence in the case was the evidence of accomplice. The decision in the case of Ramekbal Tiwary v. Madan Mohan Tiwary and another to order re-trial of the accused was based on the particular circumstances of that case. In that case an inquiry under Chapter xviii was started but the Magistrate decided to try the accused under section 251-A of the Code for offences under sections 326 and 338 of the Indian Penal Code because in his opinion the evidence did nto make out an offence under section 307, Indian Penal Code. Thereafter the Magistrate held a regular trial and acquitted the accused. On revision an Additional Sessions Judge set aside the orders of the Magistrate and directed the Magistrate to commit the accused to the Court of Sessions on charges under sections 307 and 148 and 307 read with section 149 of the Indian Penal Code. One of the accused took the matter in revision before the Patna High Court. The High Court maintained the order for the petitioner’s commitment but the order regarding the other accused was set aside. On appeal, by special leave, the Supreme Court held the order of the High Court nto defective in law but observed that in the circumstances of the case it was nto expedient that the appellant should be tried after a long lapse of time before a Sessions Court.
(14) The facts and circumstances of the present case are nto such that even though the trial held by the learned Magistrate was void the respondent should nto be required to face proceedings in accordance with law. I have refrained from expressing any views regarding the merits of the controversy lest that may cause any prejudice to the respondent or the prosecution.
(15) For the reasons given above the appeal is accepted and the order of acquittal against Ram Nath Aggarwal is set aside and the proceedings which were taken against him in the Court of Shri Amba Prakash, Magistrate First Class, Delhi, are quashed. The case shall now be sent to the District Magistrate, Delhi, for proceeding either by himself or by one of the Magistrates subordi- nate to him and who may be competent to inquire into cases friable by the Court of Sessions to hold an inquiry against Ram Nath Aggarwal under the provisions of Chapter xviii of the Code. If the District Magistrate or the Magistrate to whom the case is transferred, on holding inquiry, is of the opinion that the accused should be committed for trial, he shall after following the procedure of Section 207-A of the Code commit the accused for trial by the Court of Sessions.
(16) Ram Nath Aggarwal, through his counsel, is being directed to appear before the District Magistrate, Delhi, on 26-5-1969. The record of the case should be returned immediately.
Hardayal Hardy, J.