Bombay High Court
APL/388/2011 on 10 April, 2012
Author: A.P. Bhangale
Bench: A.P. Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
Criminal Application (APL) No. 388 of 2011
Indrajitsingh Jogindersingh v. State of Maharashtra
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Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders.
Mr R. P. Joshi, Adv for applicant Mr J. B. Jaiswal, APP for State ig Coram: A. P. Bhangale, J Dated: 10th April 2012
1. Heard learned counsel for the parties at length. Applicant is accused no. 10 in Crime No. 131/2006 registered with Police Station, Gittikhadan, Nagpur, presently being tried as Regular Criminal Case No. 3750 of 2006 before 10th Judicial Magistrate, First Class, Nagpur, for the offences punishable under Sections 420, 468, 471, 447 read with Section 34 of the Indian Penal Code. Applicant preferred application under Section 239 Cr. P. C. for discharge which application came to be rejected by learned Magistrate vide order dated 25.9.2009.
Applicant then moved revision application under Section 397 Cr. P. C. before the Sessions Judge, Nagpur who, by order dated 21.8.2010 dismissed revision with costs imposed in the sum of Rs. 1000/-
::: Downloaded on - 09/06/2013 18:24:43 ::: 2upon the revision-applicant. This is how the applicant has filed present application invoking inherent powers of this Court under Section 482 Cr.
P. C.
2. Applicant has not filed copy of charge- sheet along with his application. Learned counsel for the applicant contends that record is very bulky and it was virtually impossible for him to file copy of charge-sheet. Prosecution case as is gathered from the application, affidavit-in-reply and during the course of argument is that one Rambhau Raghobaji Mahajan lodged complaint stating that one Smt Armiti Jahangir Cama owned land bearing Survey Number 5/1, 5/4, 6/1 admeasuring 3.92 hectares. Complainant Rambhau claimed that he is Secretary of Gruha Laxmi Gruha Nirman Society. Out of that land, Smt Cama, through her power of attorney holder Shamrao Thakare sold 3 acres of land to the said Housing Society and for remaining land, an agreement to sell was executed in the name of Society. Accused Mahendrakumar Badriprasad Rawat prepared forged document of agreement for sale of the year 1972 in the name of Black Diamond Housing Society Not only this, said Mahendrakumar on the pretext of sale deed dated 18.1.1974, obtained mutation entries in the City Survey records on the basis of forged document. Said Mahajan made complaint to the City Survey Officer who called for ::: Downloaded on - 09/06/2013 18:24:43 ::: 3 report from the Sub-Registrars concerned. The Sub-
Registrar, Nagpur-1 and the Sub-Registrar, Nagpur-2 informed that there was no entry of sale deed in respect of the said land in the name of Mahendrakumar Rawat. Upon such reports, mutation entries obtained by Mahendrakumar in his name on the basis of bogus document of sale deed were cancelled by the City Survey Officer. During investigation, it was revealed that on the basis of forged document of sale, Mahindrakumar Rawat had executed Agreement of Development with N. Kumar Group, Kardhar Finance on 1.10.2003. During investigation, number of blank stamp papers and agreements to sell were seized from the office of N. Kumar. It is stated that present applicant deals in automobile business and sale-purchase of plots along with co-accused Surinder Singh Johar. It is further stated that present applicant is involved in preparing forged documents. He also signed as a witness to such documents dated 1.10.2003 and 20.6.2005.
Applicant helped accused Mahendrakumar Rawat to open account with Bank of India (counsel for the applicant stated that it is wrongly written as Bank of Maharashtra in the memo of application).
3. Learned counsel for the applicant strenuously contended that from the totality of charge-sheet, no offence can be said to be made out against the applicant. He contended that introducing ::: Downloaded on - 09/06/2013 18:24:43 ::: 4 somebody for the purpose of opening bank account, is not an offence. He submits that bank account bearing number 5545 was opened on 31.12.2002 whereas the alleged transactions are of the year 2003. Hence, according to him, there is no proximity with the opening of account and withdrawal of Rs. 10 lacs, as alleged. He further contends that there is nothing on record to show that applicant aided any of the co- accused in preparing forged documents. He submits that merely because the applicant signed as a
4. witness, he does not become accomplice or abettor.
Learned counsel for the applicant contended that if prosecution continues against the applicant, it would result in sheer harassment to applicant without any fruitful result. He relied upon Shriram v. State of Maharashtra reported in 2007 All MR (Cri) 3363; Ashok Dedhe v. State of Maharashtra reported in 2007 All MR (Cri) 3188; Arun Gawli v. State of Maharashtra reported in 2007 All MR (Cri) 2562 and Yogesh Joshi v. State of Maharashtra reported in (2008) 10 SCC 394.
5. Learned Additional Public Prosecutor, on the other hand, opposed the application tooth and nail. He submits that orders of both the Courts below are detailed and well-reasoned orders in view of Section 439 of the Criminal Procedure Code and the same need no interference in exercise of extraordinary inherent powers vested with this Court ::: Downloaded on - 09/06/2013 18:24:43 ::: 5 under Section 482 Cr. P. C. He prayed for dismissal of the application.
6. It appears that pursuant to the FIR supplementary statement of complainant Rambhau Mahajan was also recorded on 14.4.2006. He stated that in the year 1983 he founded Gruhalaxmi Gruha Nirman Society. After purchase of 3 acres of land through power of attorney holder, the Society submitted Scheme under Section 20 of the Urban Land Ceiling Act for construction of houses. Smt Cama, original owner, died in the year 2002 and thereafter accused Mahendrasingh Rawat, alleged front man of N. Kumar made application to the City Survey Office for mutation of his name in city survey records. He claimed that there was sale deed executed by Smt Cama in his favour on 18.1.1974. Believing that sale deed as genuine one, the City Survey Officer mutated the name of Mahendrakumar Rawat. After mutation, soon a compound was laid around 4-5 acres of land and boards in the name of "N. Kumar" were displayed on the land. When complainant Mahajan obtained copy of sale deed dated 18.1.1974, he suspected it to be a forged and bogus document since there was Government holiday on 18.1.1974. As aforesaid, the City Survey Officer after receiving reports from the Sub-Registrars concerned, cancelled the mutation entry in the name of Mahendrakumar Rawat. In the year 2003 when N. ::: Downloaded on - 09/06/2013 18:24:43 ::: 6 Kumar Group submitted Layout Plan to the Nagpur Improvement Trust, complainant Mahajan raised objection and the NIT rejected the layout plan. It was further stated that N. Kumar sent one lady by name Sarika Qureshi who threatened to Shri Mahajan not to remove encroachment of N. Kumar. Even N. Kumar threatened him on phone. He pointed out that Mahendrakumar Rawat is mere frontman and not financially sound to make huge investment and it is, in fact, N. Kumar Group behind the entire shady affairs. Complainant Rambhau Mahajan has then narrated many other illegal activities of N. Kumar Group.
7. As far as present applicant is concerned, he was one of the signatories to the agreement which was entered into by and between Mahendrakumar Rawat and Mahesh Sadhwani, a builder. When Builder Mahesh Sadhwani realised that accused Mahendrakumar had created a forged and bogus document of sale, he got his agreement cancelled.
This fact was well within the knowledge of the applicant. Inspite of that, the present applicant signed as a witness to another document executed between Mahendrakumar Rawat and Kardhar Finance of N. Kumar Group. He also introduced accused Mahendrakumar Rawat to the Bank where Rs. 10 lacs were deposited and the same were withdrawn on the very next day. The part of the land ::: Downloaded on - 09/06/2013 18:24:43 ::: 7 having been declared surplus under ULC Act, became vested with the State Government and the common intention of the accused including the present applicant prima facie appears to grab the same for unlawful gains and undue enrichment. Looking to these facts, at this stage it cannot be inferred that applicant is innocent and did not share common intention and did not abet the crime, as alleged.
8. In Shriram v. State of Maharashtra (supra), accused was discharged because neither suicide note nor any statement made out instigation, incitement or harassment on his part. In Ashok v.
State of Maharashtra (supra), it was found that accused did not share common intention and he was merely present throughout the incident. Similarly, in Arun v. State of Maharashtra (supra) while giving discharge to the accused, this Court found that there was no material on record except statement of police official and first-informant which made reference to statement of co-accused and moreso, applicant was not accused of kidnapping or abducting at all in that case. In Yogesh v. State of Maharashtra (supra), the Apex Court has held that if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused.
9. Section 239 Cr. P. C. reads thus :
::: Downloaded on - 09/06/2013 18:24:43 ::: 8"239. When accused shall be discharged. - If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so
10. doing."
The provision will indicate that unless the Magistrate considers the accusation as groundless, he is required to frame charge under Section 240 Cr. P. C.
11. In the present case, however, none of the rulings which are pressed into service, are attracted and none of them offer any help to the applicant. In Yogesh's case, the Apex Court has made it clear that the test to determine a prima facie case depends upon the facts of each case and in this regard, it is neither feasible nor desirable to lay down a rule of universal application. The case in hand is not such where there is no material collected against the applicant. Considering his involvement from the material sought to be relied upon by the prosecution, inherent powers under Section 482 Cr. P. C. cannot be exercised to stifle a legitimate prosecution. Powers under Section ::: Downloaded on - 09/06/2013 18:24:43 ::: 9 482 of the Code of Criminal Procedure cannot be liberally exercised and have to be used sparingly with circumspection where there is dire need to exercise inherent powers if the case appears false, baseless or ill-motivated. The investigating machinery has recorded statements of 121 witnesses and nearly 20 blank stamp papers have been seized from the office of N. Kumar Group. The accusation against the applicant cannot be described as false or groundless so as to drop him from the prosecution 12. case at this stage.
For all the above reasons, there is no merit in the application and the same is accordingly dismissed with costs. Learned Magistrate is directed to expedite the trial and decide it as early as possible.
Judge joshi ::: Downloaded on - 09/06/2013 18:24:43 :::