1. Heard the learned counsel Sri.Vinod Prasad, appearing for the petitioner, the learned HCGP Smt.K.P.Yashodha for respondent No.1 and the learned counsel Sri.Swarnith Satya Prasad, appearing for respondent No.2.

2. The petitioner is before this Court calling in question an order dated 09.03.2020 passed in Crl.R.P.No.772/2019 rejecting the revision petition where the petitioner had sought his discharge from the array of charges.

3. The facts in brief, germane for a consideration of the lis are as follows:

The petitioner was a counsel who represented a litigant in W.P.No.37558/2009, in which, the claim is that this Court had passed an order directing the petitioner therein not to be dispossessed for fifteen days. When this came to be verified by the respondent, it was noticed that no such order was passed but the communication by fax had emanated from the petitioner to one Mr.Ramesh.

4. A complaint was registered by this Court on 16.11.2012 against the petitioner and the counsel alleging that the record of the Court has been tampered with by addition to the effect that the petitioner should not be dispossess for 15 days. The complaint having been investigated into, the Police have filed a charge sheet against the petitioner for offences punishable under Sections 466, 468, 471, 420 and 201 read with Section 34 of IPC.

5. On filing of the charge sheet and the charges sought to be framed, the petitioner files an application seeking his discharge before the learned Sessions Judge in Crl.R.P.No.772/2019, which comes to be rejected by an order dated 09.03.2020. It is this order that is called in question in the subject petition.

6. The learned counsel appearing for the petitioner submits that he has not appeared before the Court on that date and has not communicated anything, as is alleged, who has done it, is a mystery but would submit that the order of discharge bears no application of mind, as the petitioner is not guilty of any of those offences even prima facie.

7. On the other hand, the learned counsel representing respondent No.2 would take this Court through the compliant and the charge sheet that is filed by the Police to contend that it is a mater of trial, as admittedly there has been tampering of the records of the Court.

8. He would further contend that criminal contempt was initiated against the present petitioner and his client in Crl.C.C.C No.3/2013, which came to be disposed on 08.10.2013 by accepting unconditional apology being tendered by the petitioner and his client and therefore, would contend that it is a matter of trial for the petitioner or his client to come out clean.

9. I have given my anxious consideration to the contentions of respective learned counsel and have perused the material on record.

10. The afore-quoted facts are not in dispute and are therefore not reiterating. The juxtaposition of the two documents would unmistakably demonstrate tampering of the record of the Court, as what is communicated to the client bears the words "NOT TO DISPOSES FOR FIFTEEN DAYS".

11. A perusal at the original records indicates no such order being passed by the leaned Judge in W.P.No.37558/2009. Therefore, the complaint is registered against the petitioner and his client and proceedings have gone on since then. The matter is set for trial, on the discharge application being rejected by the concerned Court.

12. In the teeth of such seriously disputed questions of fact, interference at the hands of this Court at this juncture, is unwarranted, as the petitioner or his client will have to come out clean in the trial, as these disputed questions of fact, if sought to be considered, at this juncture at the hands of this Court would run foul of the judgment of Apex Court in the case of KAPTAN SINGH v. STATE OF UTTAR PRADESH reported in (2021) 9 SCC 35 [LQ/SC/2021/2931 ;] ">(2021) 9 SCC 35 [LQ/SC/2021/2931 ;] [LQ/SC/2021/2931 ;] . The Apex Court in the said judgment has held as follows:

“9.1. At the outset, it is required to be noted that in the present case the High Court in exercise of powers under Section 482 CrPC has quashed the criminal proceedings for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC. It is required to be noted that when the High Court in exercise of powers under Section 482 CrPC quashed the criminal proceedings, by the time the investigating officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent witnesses and even statement of the accused persons, has filed the charge-sheet before the learned Magistrate for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC and even the learned Magistrate also took the cognizance. From the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/inquiry and even the statements recorded. If the petition under Section 482 CrPC was at the stage of FIR in that case the allegations in the FIR/complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in a catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in Dineshbhai Chandubhai Patel [Dineshbhai Chandubhai Patel v. State of Gujarat, (2018) 3 SCC 104 [LQ/SC/2018/6] : (2018) 1 SCC (Cri) 683] in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the investigating agency nor can exercise the powers like an appellate court. It is further observed and held that that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the investigating authority at such stage to probe and then of the court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material.

9.2. In Dhruvaram Murlidhar Sonar [Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 [LQ/SC/2018/1483 ;] ">(2019) 18 SCC 191 [LQ/SC/2018/1483 ;] [LQ/SC/2018/1483 ;] : (2020) 3 SCC (Cri) 672] after considering the decisions of this Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] [LQ/SC/1990/744] , it is held by this Court that exercise of powers under Section 482 CrPC to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 CrPC though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in the section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 CrPC. Similar view has been expressed by this Court in Arvind Khanna [CBI v. Arvind Khanna, (2019) 10 SCC 686 [LQ/SC/2019/1584] : (2020) 1 SCC (Cri) 94] , Managipet [State of Telangana v. Managipet, (2019) 19 SCC 87 [LQ/SC/2019/1834] : (2020) 3 SCC (Cri) 702] and in XYZ [XYZ v. State of Gujarat, (2019) 10 SCC 337 [LQ/SC/2019/1651] : (2020) 1 SCC (Cri) 173] , referred to hereinabove.

10. The High Court has failed to appreciate and consider the fact that there are very serious triable issues/allegations which are required to be gone into and considered at the time of trial. The High Court has lost sight of crucial aspects which have emerged during the course of the investigation. The High Court has failed to appreciate and consider the fact that the document i.e. a joint notarised affidavit of Mamta Gupta Accused 2 and Munni Devi under which according to Accused 2 Ms Mamta Gupta, Rs

25 lakhs was paid and the possession was transferred to her itself is seriously disputed. It is required to be noted that in the registered agreement to sell dated 27-10-2010, the sale consideration is stated to be Rs 25 lakhs and with no reference to payment of Rs 25 lakhs to Ms Munni Devi and no reference to handing over the possession. However, in the joint notarised affidavit of the same date i.e. 27-10-2010 sale consideration is stated to be Rs 35 lakhs out of which Rs 25 lakhs is alleged to have been paid and there is a reference to transfer of possession to Accused 2. Whether Rs 25 lakhs has been paid or not the accused have to establish during the trial, because the accused are relying upon the said document and payment of Rs 25 lakhs as mentioned in the joint notarised affidavit dated 27-10-2010. It is also required to be considered that the first agreement to sell in which Rs 25 lakhs is stated to be sale consideration and there is reference to the payment of Rs 10 lakhs by cheques. It is a registered document. The aforesaid are all triable issues/allegations which are required to be considered at the time of trial. The High Court has failed to notice and/or consider the material collected during the investigation.

11. Now so far as the finding recorded by the High Court that no case is made out for the offence under Section 406 IPC is concerned, it is to be noted that the High Court itself has noted that the joint notarised affidavit dated 27-10-2010 is seriously disputed, however as per the High Court the same is required to be considered in the civil proceedings. There the High Court has committed an error. Even the High Court has failed to notice that another FIR has been lodged against the accused for the offences under Sections 467, 468, 471 IPC with respect to the said alleged joint notarised affidavit. Even according to the accused the possession was handed over to them. However, when the payment of Rs 25 lakhs as mentioned in the joint notarised affidavit is seriously disputed and even one of the cheques out of 5 cheques each of Rs 2 lakhs was dishonoured and according to the accused they were handed over the possession (which is seriously disputed) it can be said to be entrustment of property. Therefore, at this stage to opine that no case is made out for the offence under Section 406 IPC is premature and the aforesaid aspect is to be considered during trial. It is also required to be noted that the first suit was filed by Munni Devi and thereafter subsequent suit came to be filed by the accused and that too for permanent injunction only. Nothing is on record that any suit for specific performance has been filed. Be that as it may, all the aforesaid aspects are required to be considered at the time of trial only.

… … … …

14. In view of the above and for the reasons stated above, the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court quashing the criminal proceedings in exercise of powers under Section 482 CrPC is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. Now, the trial is to be conducted and proceeded further in accordance with law and on its own merits. It is made clear that the observations made by this Court in the present proceedings are to be treated to be confined to the proceedings under Section 482 CrPC only and the trial court to decide the case

in accordance with law and on its own merits and on the basis of the evidence to be laid and without being influenced by any of the observations made by us hereinabove. The present appeal is accordingly allowed.”

(Emphasis supplied)

13. For the aforesaid reasons, finding no merit to entertain the petition, the petition stands dismissed.

The observations made in the course of this order is only for the purpose of consideration of the case under Section 482 of Cr.P.C., the same shall not bind or influence any other proceeding that the petitioner would avail of in law, if available.