Bombay High Court
Rajesh Himatlal Shah And Another vs State Of Maharashtra And Another on 3 October, 2013
Bench: S.C. Dharmadhikari, G.S. Patel
*1* apl.700.11.wp.1792.12
kps
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.700 OF 2011
WITH
CRIMINAL WRIT PETITION NO.1792 OF 2012
Rajesh Himatlal Shah and another. ..Applicants/Petitioners
-Versus-
State of Maharashtra and another. ..Respondents
...........
Mr.V.A.Thorat, Senior Advocate a/w Mr.Prakash Naik, Mr.R.N.Kachare,
Mr.Amit Palkar, for the Applicants in Criminal Application No.700/2011.
Mr.P.K.Dhakephalkar, Senior Advocate a/w Mr.Prakash Naik,
Mr.R.N.Kachare, Mr.Amit Palkar, for the Petitioners in Writ Petition
No.1792/2012.
Mrs.A.S.Pai, APP, for the Respondent No.1/State in both matters.
Mr.Mahesh Jethmalani, Senior Advocate a/w Mr.P.A.Pol, Ms.Sana Usman,
Mr.Siddheshwar Kalel, Mr.Rajesh Darvesh, Mr.Sharad Suryawanshi i/by
Pol Legal Juris, for the Respondent No.2 in both matters.
...........
CORAM: S.C. DHARMADHIKARI
AND
G.S. PATEL, JJ.
DATE :- 03rd October, 2013
ORAL ORDER:
1 Since both matters involve common issues, they are being decided by this common order. For properly appreciating the arguments of parties, the facts in Criminal Application No.700/2011 are referred to.
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2 There was a order to dispose of these Petitions finally and
hence we have heard counsel accordingly. Hence, RULE. The Respondents waive service. By consent, Rule is made returnable forthwith.
3 The Criminal Application No.700/2011 invokes jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 to quash the First Information Report dated 08.07.2011 registered with Dahisar Police Station being C.R. No.220/2011 alleging offences of cheating and forgery punishable under Sections 420, 464, 465, 467 of the Indian Penal Code.
4 The Respondent No.2 (original Complainant) has in his statement alleged that he is residing in Thane district and at the address particularly mentioned by him. He states that he belongs to Adiwasi Warli Community. He made a complaint in writing against the builders Rajesh Himatlal Shah and Mukesh Himatlal Shah. The Complaint is that Rajesh Shah and Mukesh Shah are Managing Directors/ Partners of one M/s Nahalchand Laloochand Private Limited. They have fabricated and forged the Release Deed dated 06.09.2002. It was executed before the Sub Registrar, Borivali on 25.09.2002 on behalf of the dead person Devkubai. In fact, Devkubai expired on 23.07.2000. It is alleged that the complaint was made to the Senior Inspector, Dahisar Police Station on 22.07.2010 immediately after noticing this Release Deed. It is stated that on the basis of the forged documents and more particularly documents prepared in the name of dead person, the immovable property of Adiwasi community is grabbed by these two persons. There is a Power of Attorney dated 03.12.1989 which is prepared in English. That is also alleged to be forged and fabricated. On the strength of this Power of Attorney, but after the ::: Downloaded on - 27/11/2013 20:23:10 ::: *3* apl.700.11.wp.1792.12 death of Devkubai, the said Release Deed is stated to be executed. Such act amounts to not only cheating but forgery. There are references made as to how the immovable property, which is extremely valuable being Survey No.327/3 Hissa No.3 CTS No.1475 admeasuring 9522.2 sq.meters and Survey No.328 Hissa No.11 CTS No.1462 admeasuring 1397.8 sq.meters of village Dahisar, Taluka Borivali, Mumbai Suburban District, is grabbed by the Applicants (Rajesh and Mukesh) on the basis of this fraudulent and fabricated Release Deed. It is on such allegations that the First Information Report has been registered and the original accused have approached this Court seeking quashing of this First Information Report.
5Mr.Thorat, learned Senior Counsel appearing in support of this Criminal Application, submitted that one Marya Govind Gowari/ Warli was, at the relevant time, tenant of this property/ land. He was interested in developing the land. A partnership firm, namely, M/s Raja Constructions was formed on 01.09.1986. Nahalchand Laloochand Private Limited, Himmatlal Laxmichand Private Limited and Marya Govind Warli were shown as partners in the Deed of Partnership. This was duly registered with the Registrar of Firms. On 18.08.1986, Marya Govind Warli executed a declaration that the said Devkubai has been adopted by him as a daughter. The said Marya died on 01.03.1987 leaving behind the said Devkubai as sole successor. On 08.01.1988, an agreement was executed between M/s Raja Constructions and the said Devkubai confirming that an amount of Rs.4.20 lacs is due to Marya Warli. The said Devkubai confirmed that Marya Warli was a partner of M/s Raja Constructions. Devkubai executed the General Power of Attorney on 30.08.1988 appointing the Applicants (Rajesh and Mukesh) as her true and lawful constituted Attorneys. The partnership firm M/s Raja Constructions commenced the construction of internal road and storm ::: Downloaded on - 27/11/2013 20:23:10 ::: *4* apl.700.11.wp.1792.12 water drain on the land. On 04.07.1989, a certificate under Section 32M of the Bombay Tenancy & Agricultural Lands Act, 1948 (for short BTAL Act) was issued in favour of the said Devkubai. The Applicants obtained permission from the Mumbai Municipal Corporation for construction of the compound wall and thereafter, the supplemental agreement was executed between the said Devkubai and M/s Raja Constructions on 31.12.1989. Mr.Thorat submitted that this agreement confirms all prior deeds and documents including receipt of consideration of Rs.2,42,500/- from M/s Raja Constructions and that is how Devkubai agreed to execute an Irrevocable Power of Attorney. Relying upon the said Irrevocable Power of Attorney dated 31.12.1989 and particularly clauses 29 and 37 thereof, Mr.Thorat submits that the power conferred thereby continues even after the death of said Devkubai and the Power of Attorney cannot be said to be revoked. This power would also bind the heirs of said Devkubai. Devkubai in addition also executed a declaration-cum-indemnity confirming all previous transactions. On 05.07.1990, Devkubai then made an application to the Sub Divisional Officer under Section 43 of the BTAL Act for sale of land. She also gave declaration that she is not Adiwasi nor belongs to any Scheduled Tribe. On 23.08.1990, the permission to sell the land was granted in favour of M/s Raja Constructions. The Applicants took various steps for developing the land and obtained various permissions under the Urban Land (Ceiling and Regulation) Act, 1976. The title to the land was perfected by obtaining the Conveyance Deed through the Court Receiver on 19.11.1994.
6 Mr.Thorat submits that while it is true that Devkubai expired on 23.07.2000, but pursuant to irrevocable power of attorney, the Release Deed has been executed on 06.09.2002. Mr.Thorat submits that Section 202 of the Indian Contract Act, 1872 is clear. If the power is coupled with ::: Downloaded on - 27/11/2013 20:23:10 ::: *5* apl.700.11.wp.1792.12 an interest, then, the Power of Attorney is irrevocable. If it creates an interest in favour of the persons nominated, then, their status is not just power of attorney holders but something more than that and on strength of the same, these documents including the Release Deed have been executed.
7 Mr.Thorat has submitted that there are several legal proceedings including a civil suit filed in this Court on the Original Side being Suit No.3675/1998. He submits that an application for interim injunction by way of Notice of Motion No.2948/2000 in this suit was taken out and same was dismissed on 06.02.2000. Later on, the suit itself was dismissed on 08.08.2006. Mr.Thorat then submits that initially one suit was filed being Suit No.2421/1983 in which the Notice of Motion No.2284/1989 was moved by the said Devkubai as Applicant and she filed an affidavit confirming that her father is a partner in M/s Raja Constructions and she confirmed that Nahalchand Laloochand Private Limited has undertaken the work of development. That affidavit was interpreted to her by the Associate, namely, Registry Official of this Court. A Writ Petition was also filed by Nahalchand Laloochand Private Limited being Writ Petition No.2515/2003 against the Complainant Suresh Nankar and others challenging the order passed by the Honourable Revenue Minister and that is how the Release Deed and other documents were disclosed. There were other petitions also filed in this Court. A caste certificate was issued to Devkubai and which act was challenged by filing Writ Petition No.586/2011 by Nahalchand Laloochand Private Limited and that Writ Petition is admitted and the interim relief is granted.
8 Thus, Mr.Thorat submits that when the registered documents are to the knowledge of the Complainant, then, questioning these ::: Downloaded on - 27/11/2013 20:23:10 ::: *6* apl.700.11.wp.1792.12 documents and after decades together is nothing but an afterthought. The Complaint is vitiated by malafides. Mr.Thorat submits that this is nothing but extortion and now by filing such complaint and raising purely civil dispute, the intent is to harass parties like the Applicants and knock out monies from them. Such tendency and particularly in relation to valuable immovable property in Mumbai is on rise and that is how this Court in exercise of its inherent jurisdiction should quash the criminal proceedings. The criminal proceedings are abuse of the process of the Court. In the garb of such allegations, all documents conferring civil rights are being questioned and when the civil proceedings have either been not pressed or dismissed. For all these reasons, Mr.Thorat submits that the Criminal Application be allowed.
9 In support of his submissions, Mr.Thorat relies upon a judgment of the Honourable Supreme Court in the case of Inder Mohan Goswami and another v/s State of Uttaranchal and others reported in (2007) 12 SCC 1.
10 On the other hand, Mr.Jethmalani, learned Senior Counsel appearing for the original Complainant, submits that firstly this is an application under Section 482 of the Code of Criminal Procedure, 1973. That is a power conferred in the Court to quash the criminal proceedings.
That is an inherent power conferred and to do justice. That is for the Court to exercise and sparingly, so also, in exceptional circumstances in order to prevent abuse of the process of the Court or to do complete justice. Such power is not to be exercised to curtail the criminal proceedings as a general rule and on the spacious allegations now made that the underlying dispute is civil in nature. Mr.Jethmalani has taken us through the entire complaint and some of documents and urged that all ::: Downloaded on - 27/11/2013 20:23:10 ::: *7* apl.700.11.wp.1792.12 pleas that have been raised by Mr.Thorat are in the nature of defence. If on these pleas the criminal proceedings are to be quashed, that means this Court is required to enter the arena reserved for a competent criminal court. Without any evidence being recorded, to quash the criminal proceedings and purely on the version of the accused is not permissible in law. None of the documents and events leading to the same are admitted facts. They cannot be unimpeachable either. Mr.Jethmalani submits that prima facie when the complaint discloses commission of a cognizable offence and as serious as forgery and cheating, then, this Court should not interfere in its inherent jurisdiction. Once the land belongs to Adiwasi or Tribal people and in any event the tenants who have rights in agricultural land are duly protected by the BTAL Act, then, their rights cannot be taken away nor can they be deprived of the fruits of their toil by fraudulent means. The builders and developers have obtained the documents in English and on some of them there are thumb impressions. Pertinently, the said Devkubai was not alive on the date on which the Release Deed was executed. The execution is admitted before the Sub Registrar. The Sub Registrar has not satisfied himself nor made any primary or preliminary inquiries with regard to the Power of Attorney Holder and her presence. In such circumstances now urging that Devkubai executed an Irrevocable Power of Attorney which creates an interest in favour of the Applicants is a plea which should not be readily accepted. Ultimately, the Police Machinery must be allowed to go ahead and investigate the crime. The investigations should not be interfered with and when serious allegations are made of depriving the tribals or illiterate poor people of their agricultural lands and in such manner. In these circumstances and when the Irrevocable Power of Attorney allegedly executed and creating interest, is not registered, then, all the more this Court should not interfere in its inherent jurisdiction. For these reasons, the Criminal Application be ::: Downloaded on - 27/11/2013 20:23:10 ::: *8* apl.700.11.wp.1792.12 dismissed.
11 With the assistance of Mr.Thorat and Mr.Jethmalani, we have carefully perused the Criminal Application and all documents annexed thereto.
12 We have also perused the companion Criminal Writ Petition No.1792/2012 which has been filed by the same Applicants in Criminal Application No.700/2011, but in relation to distinct First Information Report at the instance of one Yamuna Ratna Lakhat who is one of the heir and legal representative of one Damu Mhase. Barring distinction in the property and heirs, all aspects of the matter are same. Mr.Dhakephalkar, learned Senior Counsel appearing for the Petitioners in Criminal Writ Petition No.1792/2012, has also submitted that this is a case where Section 202 of the Indian Contract Act, 1872 is clearly attracted and in that behalf he relied upon a judgment of the Division Bench of the Gujarat High Court delivered in First Appeal No.1164/1992 with Civil Application No.3721/1996 decided on 15.06.1998 (Her Highness Shantadevi Pratapsinh Rao Gaekwad v/s Savjibhai H. Patel and others).
13 At the outset, we must clarify that from the time the Honourable Supreme Court delivered a judgment in the case of State of Haryana v/s Bhajan Lal reported in AIR 1992 SC 604, it has, while relying on the principles culled out in this decision, clarified that the powers possessed by the High Court under Section 482 of the Code of Criminal Procedure, 1973 are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution.
::: Downloaded on - 27/11/2013 20:23:10 :::*9* apl.700.11.wp.1792.12 The Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material.
14 We are inclined to follow this course and all the more because the Honourable Supreme Court as early as in the decisions reported in AIR 1996 SC 722 (State of Maharashtra v/s Ishwar Piraji Kalpatri) and AIR 1996 SC 2982 (Mushtaq Ahmad v/s Mohd. Habibur Rehman Faizi) held that quashing of criminal proceedings is not permissible by entering into a debatable area, namely, which of the version is true. That is not a permissible exercise at this stage. In a decision reported in AIR 1996 SC 722 (supra), His Lordship B.N.Kirpal speaking for the Bench held thus:-
"22. In fact, the question of mala fides in a case like the present is not at all relevant. If the complaint which is made is correct and an offence had been committed which will have to be established in a court of law, it is of no consequence that the complainant was a person who was enimical or that he was guilty of mala fides. If the ingredients which establish the commission of the offence or mis-conduct exist then, the prosecution cannot fail merely because there was an animus of the complainant or the prosecution against the accused. Allegations of mala fides may be relevant while judging the correctness of the allegations or while examining the evidence. But the mere fact that the complainant is guilty of mala fides, would be no ground for quashing the prosecution. In the instant case, specific averments of facts have been made whereby it was alleged that the respondent had disproportionately large assets. Mala fide intention of the appellant in launching prosecution against the respondent with a view to punish him cannot be a reason for preventing the court of competent ::: Downloaded on - 27/11/2013 20:23:10 ::: *10* apl.700.11.wp.1792.12 jurisdiction from examining the evidence which may be led before it, for coming to the conclusion whether an offence had been committed or not. Allegations of mala fides were also made in P.P.Sharma's case (1992 Supp (1) SCC 222), (supra) against the informer. It was held by this Court that when an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceedings.
23. This Court has consistently taken the view that the Court should not, except in extra-ordinary circumstances, exercise its jurisdiction under Section 482 Cr.P.C. so as to quash the prosecution proceedings after they have been launched. In K.P.S. Gill's case (1995 AIR SCW 4100) (supra), it was, inter alia, observed, that "we also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the First Information Report or the complaint and that the extra-ordinary or inherent power do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice".
24. The position of law, in this regard, has been very succinctly stated in the abovesaid case that at the stage of quashing an First Information Report or complaint, the High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein. ..... The truthfulness of the allegations and the establishment of the guilt can only take place when the trial proceeds without any interruption.
::: Downloaded on - 27/11/2013 20:23:10 :::*11* apl.700.11.wp.1792.12 There was no justification for the High Court to have exercised its jurisdiction under Article 227 of the Constitution and Section 482 of the Cr.P.C. in quashing the prosecution. ...."
15 Therefore, the conduct of the Complainant and the general and sweeping allegations of malafides are not enough to quash the criminal proceedings which prima facie disclose commission of a cognizable offence. An element of criminality, if apparent and on reading of the allegations as a whole and taken to be true and correct, then, all the more this Court should be cautious in exercising its powers.
16 The argument before us is that all the allegations in the complaint even if assumed to be true, do not constitute forgery at all.
17 Mr.Jethmalani is right in placing reliance on Sections 463, 464 and 465 of the Indian Penal Code in this regard. The forgery means making of false document or false electronic record or part of a document or electronic record with intent to cause damage or injury. This could be to public or to any person. It could also be to support any claim or title or to cause any person to part with property or to enter into any express or implied contract or with intent to commit fraud and all this constitutes forgery.
18 In very early decisions and on two occasions, a very eminent Judge of the Honourable Supreme Court, Honourable Mr. Justice K. Subba Rao (as His Lordship then was) clarified as to what is forgery and in somewhat identical circumstances in the case of Dr.Vimla v/s The Delhi Administration reported in AIR 1963 SC 1572, as under:-
::: Downloaded on - 27/11/2013 20:23:10 :::*12* apl.700.11.wp.1792.12 "5. ...... The definition of "false document" is a part of the definition of "forgery". Both must be read together.
If so read, the ingredients of the offence of forgery relevant to the present enquiry are as follows: (1) fraudulently signing a document or a part of a document with an intention of causing it to be believed that such document or part of a document was signed by another or under his authority; (2) making of such a document with an intention to commit fraud or that fraud may be committed. In the two definitions, both mens rea described in s.464 i. e., "fraudulently" and the intention to commit fraud in s.463 have the same meaning. This redundancy has perhaps become necessary as the element of fraud is not the ingredient of other intentions mentioned in s.463. The idea of deceit is a necessary ingredient of fraud, but it does not exhaust it; an additional element is implicit in the expression. The scope of that something more is the subject of many decisions. We shall consider that question at a later stage in the light of the decisions bearing on the subject. The second thing to be noticed is that in s. 464 two adverbs, "dishonestly" and "fraudulently" are used alternatively indicating thereby that one excludes the other. That means they are not tautological and must be given different meanings. Section 24 of the Penal Code defines "dishonestly" thus :
"Whoever does anything with the intentionof causing wrongful gain to one person or wrongful loss to another person, is said to do that thing dishonestly".
"Fraudulently" is defined in s.25 thus:
"A perosn is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise".
The word "defraud" includes an element of deceit. Deceit is not an ingredient of the definition of the word "dishonestly" while it is an important ingredient of the definition of the word "fraudulently".
::: Downloaded on - 27/11/2013 20:23:10 :::*13* apl.700.11.wp.1792.12 The former involves a pecuniary or economic gain or loss while the latter by construction excludes that element. Further, the juxtaposition of the two expressions "'dishonestly" and "fraudulently" used in the various sections of the Code indicates their close affinity and therefore the definition of one may give colour to the other. To illustrate, in the definition of "dishonestly", wrongful gain or wrongful loss is the necessary ingredient. Both need not exist, one would be enough. So too, if the expression "fraudulently' were to be held to involve the element of injury to the person or persons deceived, it would be reasonable to assume that the injury should be something other than pecuniary or economic loss. Though almost always an advantage to one causes loss to another and vice versa, it need not necessarily be so. Should we hold that the concept of "fraud" would include not only deceit but also some injury to the person deceived, it would be appropriate to hold by analogy drawn from the definition of "dishonestly" that to satisfy the definition of "'fraudulently" it would be enough if there was a non- economic advantage to the deceiver or a non-economic loss to the deceived. Both need not co-exist.
14. To summarize : the expression "'defraud" involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non economic or non- pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied."
Further, clarifying the earlier view in the case of Dr.Vimla v/s Delhi Administration (supra), the Honourable Judge in the judgment ::: Downloaded on - 27/11/2013 20:23:10 ::: *14* apl.700.11.wp.1792.12 reported in AIR 1963 SC 1577 (G.S.Bansal v/s The Delhi Administration), observed thus:-
"9. The conflicting arguments on the application of Dr.Vimla 's case Cri.Appeal No.213 of 1960 D/-
29.11.1962 (reported in AIR 1963 SC 1572) to the facts of the present case can be better appreciated if the facts of the present case are clearly borne in mind. If a person who has given postal certificates as security to a department by taking them in the name of the said department dies, his heir can get the said amount by following two procedures, namely, (1) after obtaining a succession certificate, he can apply to the department concerned to release the security and then apply to the postal department for getting the certificates cashed, and (2) if the current value of the certificates at the time of the death of the holder does not exceed Rs.5,000/- he can, after the expiry of three months from the date of the death of the holder, satisfy the Post Master General that he is the sole heir of the holder and after making the relevant declaration recover the said money. In one case he has to incur expenses for obtaining the succession certificate and in the other he has to wait for three months and thereafter produce evidence to the satisfaction of the Post Master General that he is the sole heir of the deceased holder of the certificates. In the present case, the appellant attested the signature of Janki Pershad on the reverse of the application form, for the transfer of the Post Office National Savings Certificates in the name of his father, got fresh certificates issued in the name of his father, signed the name of Janki Pershad on the back of the three certificates in token of their cancellation, placed his own attestation and stamp of his office thereon, gave a letter of authority in favour of Bhawani Shanker as though it was given by Janki Pershad and received the money from the Post Office. By this process he got not only the certificates which stood in the name of the Ration Department transferred in the name of his deceased father but also received the money payable to his father. Two ::: Downloaded on - 27/11/2013 20:23:10 ::: *15* apl.700.11.wp.1792.12 steps were involved in the process, one was to get the certificates in the name of the Ration Department to be transferred in the name of his father and the second was to receive the money payable to his deceased father. As the father died before the certificates were transferred in his name by the ration Department, the appellant should have taken steps by informing that fact to the said authority and getting an application from the said authority to the Postal authority for transferring the said certificates in his favour. The rationing authority might not have given such an application to the Postal authority unless a succession certificate was produced by him. ........ In regard to the second process, the appellant would not have been able to get the money from the postal department within three months without a succession certificate and thereafter without producing necessary evidence of his heirship to the satisfaction of the Post Master General. This process entails delay, for the appellant can only apply to the postal authority after the expiry of three months and thereafter the payment depends upon the satisfaction of the officer concerned, which may entail further delay or even rejection. Be it as it may, on the facts his intention at the time when he made out the false documents was to shortcircuit the alternative procedure open to him and receive the money without going through the expense and trouble involved therein. ......... On the said facts we have no doubt that the appellant had made the false documents with an intention to cause wrongful gain to himself, for by adopting the aforesaid device he secured for himself a gain as otherwise he would have had to incur some expense for obtaining a succession certificate. Even on the assumption that he would have received the money after satisfying the rationing authority and the Post Master General, he secured an advantage by resorting to the said device, as he was relieved of the trouble of satisfying the rationing authority and the postal authority that he was the sole heir of his father and avoided the risk of their refusal, which would have entailed ::: Downloaded on - 27/11/2013 20:23:10 ::: *16* apl.700.11.wp.1792.12 further delay. In that event he had secured an uneconomic advantage : in the former case he had made the false documents dishonestly and in the latter case fraudulently. In either case he committed forgery, within the meaning of s.463 of the Indian Penal Code.
10. ........... But in the present case, the appellant clearly secured an economic advantage by making the false documents by (i) saving the money which he would have otherwise spent in obtaining a succession certificate, and (ii) getting the money belonging to his father as his heir. Even otherwise he secured a non- economic advantage as he got himself relieved of the trouble of getting the certificate of proof to the satisfaction of the rationing authority and the Post Master General of his credential to receive the money. He was, therefore, guilty of making the false documents both dishonestly and fraudulently."
19 In the present case, the lands held as tenants are agricultural lands. They are held for cultivation. They cannot be alienated save and except after complete compliance with law, namely, Section 43 of the BTAL Act. That they were brought in as an Asset of a partnership firm comprising of non-agriculturists is primarily alleged. That the tenant himself was roped in as a partner for money and as consideration for bringing in the lands is prima facie apparent. The tenants and Petitioners, their companies indulge in all this by keeping the Authorities in dark is further prima facie clear. Thereafter, by Power of Attorneys executed by the heirs of the Tenants there are further dealings. If the lands had already been dealt with, then, why subsequently permissions and approvals for their alienation and transfer are obtained by resorting to Section 43 of the BTAL Act has not been explained at all. Prima facie, the lands were treated as agricultural and that is why such permissions and approvals were ::: Downloaded on - 27/11/2013 20:23:10 ::: *17* apl.700.11.wp.1792.12 sought. If the permission was sought by the heirs after the execution of the alleged Power of Attorney under which the interest was created in favour of the Applicants and in respect of the very lands, then, prima facie on the own showing of the Applicants execution of documents pertaining to the permission and approval of transfer and subsequent thereto, will require deeper probe and investigation. If questionable, doubtful documents in English with thumb impressions are relied upon, then, the Complainants' allegations that they and their predecessors in title so also the State were cheated and deprived of their rights in the immovable properties cannot, prima facie, be termed as afterthought or an extortion attempt. If poor people, illiterate tribals, are made to sign the deeds and documents without their implications and legal consequences being explained to them and such deeds and documents are used for decades together thereafter, so also, against the heirs and successors, then, prima facie there is something more. It is not a civil dispute only.
20 Therefore, once we find that a person indulges in an act of the nature indulged in the present case and which prima facie amounts to supporting the claim or title or to cause the tribals or in any event the agricultural tenants to part with possession, then, we cannot countenance the submissions of the learned Senior Counsel appearing for the Petitioners that the documents themselves are of such nature that they confer the title and absolutely in the Petitioners. In other words, the argument based on Section 202 of the Indian Contract Act, at best, can be said to be argument in defence. But, in this case, reading of the complaint prima facie discloses that the case squarely falls under Sections 463 and 464 and particularly illustrations (g), (h) and (i). This is not something which we can ignore and as urged by the learned Senior Counsel appearing for the Petitioners.
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21 The argument is that the criminal complaint is nothing but
extortion racket and filed belatedly to raise bogus claims and particularly after two decades after execution of the power of attorney, shows the intent of the Complainants, need not detain us. Firstly, the Complainants are heirs of the persons who are deceased. These deceased belonged to tribal community. These deceased apart from their claim to the lands as being allotted to tribals, additionally laid their claim on the footing that the lands are agricultural in nature and covered by the BTAL Act. Once the tenancy created in the tiller of the land and fructifying on the tiller's day, namely, 01.04.1957 is prima facie absolute and no tenant is allowed to deal or dispose of the land unless prior permissions are taken, then, we have grave doubts about the documents which are now put forth. The deceased Marya, for example and illustration, was claiming to be tenant in the agricultural land. Prima facie, how he could have been brought in the partnership and by entering into partnership deed with other two entities including the present Petitioners and in the teeth of Section 43 of the BTAL Act is not clarified at all. That he is stated to have executed the partnership deed and allowed the agricultural lands to be developed by the partnership firm whose primary business activity was construction and development of lands, requires further probe. This document is stated to have been executed in 1986 and it has thumb impression. This document prima facie appears to be in English. There is no endorsement therein that the contents thereof are explained and interpreted in the language known to the deceased Marya. That Marya or successors of Marya are supposed to be explained the contents of the documents in civil proceedings later on is, at best, a matter requiring evidence. Prima facie, each of these documents including the power of attorney are prior to the permission and equally a certificate under Section 32M of the BTAL Act, 1948. If this ::: Downloaded on - 27/11/2013 20:23:10 ::: *19* apl.700.11.wp.1792.12 was an absolute arrangement and there was prior partnership deed, then, we do not see why it was necessary and particularly after the alleged payment made to the heirs of Marya, that further power of attorney is needed. How, a certificate under Section 32M was obtained when the land prima facie has lost its character, according to the Petitioners, as agricultural land, is equally not clarified. These are not matters for us to go into and particularly when there are settled principles that the Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy. More so, when the evidence has not been collected and produced before the Court. We cannot exercise our inherent jurisdiction on the strength of these documents, namely, Power of Attorney and Release Deed and quash the criminal proceedings when they prima facie disclose commission of a cognizable offence.
22 We find that in these matters, a certificate is issued under Section 43 of the BTAL Act. That is an application stated to be made by Devkubai and prior thereto, Devkubai confirmed all arrangements including her irrevocable Power of Attorney. Why M/s Raja Constructions was required to obtain the sale permission and for development of the land when Devkubai has executed all documents creating absolute right in their favour, is equally not clarified. How the Court Receiver comes into picture and how he has been exercising the powers to execute the Conveyance Deed, will have to be explained and it is not for us to probe and investigate the case at this stage. In these circumstances we are of the view that inherent jurisdiction should not be exercised to quash the criminal proceedings.
23 In the above circumstances, the only judgment relied upon by Mr.Thorat in the case of Inder Mohan Goswami and another v/s State of ::: Downloaded on - 27/11/2013 20:23:10 ::: *20* apl.700.11.wp.1792.12 Uttaranchal (supra), is not applicable to the facts of the present case.
24 In fact we would be failing in our duty if we do not invite attention of all concerned to the judgment of the Honourable Supreme Court in the case of Ram Narain Poply v/s Central Bureau of Investigation reported in AIR 2003 SC 2748, where the Honourable Supreme Court has considered ambit and scope of the provisions creating an offence of forgery and emphasised the seriousness of the crimes committed and stated to be economic and white-collared. After referring to the decision in the case of Dr.Vimla (supra), what the Honourable Supreme Court has then observed is as under:-
"372. The expression 'intent to defraud' implies conduct coupled with intention to deceive or thereby to cause injury. In other words, defraud involves two conceptions namely, the deceit and injury to the person deceived, that is infringement of some legal right possessed by him but not necessarily deprivation of property. The term 'forgery' as used in the statute is used in its ordinary and popular acceptation.
373. The definition of the offence of forgery declares the offence to be completed when a false document or false part of a document is made with specified intention. The questions are (i) is the document false
(ii) is it made by the accused and (iii) is it made with an intent to defraud. If at all the questions are answered in the affirmative, the accused is guilty.
374. In order to constitute an offence of forgery the documents must be made dishonestly or fraudulently.
But dishonest or fraudulent are not tautological. Fraudulent does not imply the deprivation of property or an element of injury. In order to be fraudulent, there must be some advantage on the one side with a corresponding loss on the other. Every forgery postulates a false document either in whole or in part, however, small.
375. The intent to commit forgery involves an intent to cause injury. A person makes a false document who ::: Downloaded on - 27/11/2013 20:23:10 ::: *21* apl.700.11.wp.1792.12 dishonestly or fraudulently signs with an intent or cause to believe that the document was signed by a person whom he knows it was not signed.
376. A false description makes a document of forgery when it is found that the accused by giving such false description intended to make out or wanted it to believe that it was not he that was executing the document but another person.
377. The accused persons have tried to take shelter behind what they have described as "market practices". Such practices even if existing, cannot take the place of statutory and regulatory functions. There is no public interest involved in such practices and they cannot be a substitute for compliance with the regulatory or statutory prescriptions. An attempt was made to show that there was subsequent disapproval of the market practices: at the point of time when the transactions took place there was no embargo. It is their stand that the practices were a part of accepted norms. We do not find anything plausible in these explanations. A practice even if was prevailing, if wrong, is not to be approved. The subsequent clarifications do not in any way put seal the approval of the practices adopted on the past on the other hand it contemns it.
382. The cause of the community deserves better treatment at the hands of the Court in the discharge of its judicial functions. The Community or the State is not a persona non grata whose cause may be treated with disdain. The entire community is aggrieved if economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye, unmindful of the damage; done to the National ::: Downloaded on - 27/11/2013 20:23:10 ::: *22* apl.700.11.wp.1792.12 Economy and National Interest, as was aptly stated in State of Gujarat v. Mohanlal Jitamalji Porwal and another, (AIR 1987 1321).
383. Unfortunately in the last few years, the country has seen an alarming rise in white-collar crimes which has affected the fibre of the country's economic structure. These cases are nothing but private gain at the cost of public, and lead to economic disaster."
25 In these circumstances both the Criminal Application and the Writ Petition are devoid of any merit and they are dismissed. We clarify that we have not expressed any opinion on the rival contentions. Our observations should be taken as limited for the purpose of finding out whether a prima facie case is made out for quashing the criminal proceedings and the criminal proceedings are abuse of the process of the Court, as contended by the Senior Counsel. Equally, their argument was that recitals of the Power of Attorney and Release Deed conclude the issues and they would indicate as to how absolute right, title and interest is created in favour of the Petitioners by the predecessors of the present Complainants. It is only to deal with that submission and relying on Section 202 of the Indian Contract Act that we had to clarify the matter and in the above words. Beyond that our order should not be construed as any final opinion or conclusion. The competent court shall proceed with the case in the event brought before it, uninfluenced by our observations.
26 At this stage, Mr.Naik, learned counsel appearing for the Applicants submit that there is an interim order and that order be continued for 12 weeks in order to enable the Applicants to challenge this judgment in a higher court. The Complainants' Advocate Mr.Pol opposes this request. Since the interim order has been continuing for all this time ::: Downloaded on - 27/11/2013 20:23:10 ::: *23* apl.700.11.wp.1792.12 and it has been passed in the year 2011, we are inclined to continue the said interim order for a period of 12 weeks from today. The order is continued as prayed by Mr.Naik, but without prejudice to the rights and contentions of all parties.
27 Both, the Criminal Application and the Writ Petition are dismissed. Rule is discharged.
(G.S.PATEL, J.) (S.C. DHARMADHIKARI, J.)
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