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(35) Within two days, on 28th June accused No. 1 went abroad on leave.

(36) On his return on 25th August he expressed an anxiety about the developments and tried to project himself as an innocent person and to extract statement of the person on those lines.

(37) The documents thus unequivocally make out a case of forgery since manipulation is apparent even to the naked eyes. All the witnesses categorically say that this was subsequent to the document having been given to accused No. 1, who was in exclusive possession thereof.

24. Some of the features, which harmoniously flow out of this provision make it clear about the procedural structure. In that, in such cases the Magistrate is to satisfy that copies sent under section 173 are handed over to the accused whereafter on consideration of those documents, which include the statements of the witnesses, if he feels that the charge is groundless then order of discharge is to follow or otherwise, if there is a ground for presuming that the accused had committed offence then charge is to be framed. The difference in the terminology reflects the legislative intent. It would also make it clear that what considerations should weigh with the learned Magistrate either under sections 239 or 240 is restricted only to the perusal of police report, documents sent under section 173 and if required the examination of accused. This would, therefore, obviously exclude even remotely empowering the Magistrate to peruse any other document much less to discard the documents produced under section 173 being outweighed by such a document which does not come under the purview of the provision. In other words the affidavit of the complainant in the first instance was not admissible at the stage more so still it was not properly produced, proved and tested in cross-examination. Further this was not a document as contemplated by section 207 and examination of which was contemplated under section 239. If that be so then if could not be even read much less it could be accepted in order to out-weigh all other documents. That in the face of these features, each one of which is atleast in the ex facie, clear, can it be said that it was a case where the charge is groundless. On the contrary, the circumstances, and the evidence collected by the police make out a clear case at least in the prima facie field under section 240 of the Code of Criminal Procedure for presuming that the accused had committed an offence triable under that chapter, in which eventually framing of charge was inescapable, though surprisingly what is inevitable in law has been evaporated by the learned Magistrate almost drawing on his own imagination by distorting the facts and relying on thoroughly inadmissible evidence which ex facie is of highly debatable character and making the entire procedure topsy turvy. The direct involvement of accused Nos. 1 and 3 atleast in the prima facie field squarely fits in with the circumstances and the evidence collected by the police inasmuch as the allegation of conspiracy having been hatched by the said three persons in the prima facie field is acceptable atleast for the purpose of framing of the charge. Similarly, the allegations of cheat and the further allegations of forgery vis-a-vis the said document and commission of the said forgery also for the purpose of cheating as also the forgery of valuable security in pursuance of achieving the object of conspiracy as also in consonance with sharing of the common intention has been fully made out atleast in the prima facie field and that too atleast for attracting the provisions of section 248 of the Code warranting justification for framing of the charge against the three accused on all the counts.

34. Since the discussion so far pertains to the factual aspect, it would be proper to consider the third category of the contentions, which also touches the factual aspect viz., as to whether the acts constitute mere preparation or an attempt as also commission of offence. According to Shri Gumaste, the learned Counsel these acts even taken at the maximum do not travel beyond the stage of preparation. It is seriously contested by the prosecution. The series of acts are indicated in the catalogue already displayed. Restating of those events, therefore, is unnecessary. It is manifestly clear that each of the acts taken individually and if all the acts taken collectively totally exclude any possibility of those being resting merely on the stage of preparation. In facts they had traveled much far away and in some cases the offence is complete. That events are so glaring that it hardly requires any comments to substantiate this point in favour of the prosecution. A few illustrations may suffice the purpose, though in fact many of those have already been considered in the context of the first contention. Thus, as chronological order of events it suggests quite clearly though of course in the prima facie field, that there was an obvious anxiety on the part of the first accused to see that Roshanali's tender is anyhow not only recommended but accepted. This process of "anyhow" accepting the said tender is implicit in the nature of acts. The material documents were placed in exclusive possession of the first accused by Shri Kulkarni on the same evening when the tenders were opened and statement were made. Accused No. 2 was freely visiting the accused No. 1. The learned Magistrate suggests that the fraud might have been committed by accused No. 2 without knowledge and without reference to accused No. 1. Ex facie atleast in the prima facie field it is difficult to uphold the same for obvious reasons. The obvious manipulation was done in some of the statements and original tender form in favour of Roshanali changing the figure from Rs. 1,01,000/- to Rs. 4,01,000/- subsequently to those documents having been handed over in custody of accused No. 1. Accused No. 1 did not want to send any correspondence through despatch and that is how two envelopes were sent with accused No. 2 himself. The draft itself indicates that the highest offer of Roshanali was for Rs. 4,01,000/- and not Rs. 1,01,000/- The mode of making the draft and sending it to Shri Kulkarni is also quite eloquent. It was a ready made draft in the sense that it was to be signed by Shri Kulkarni as Assistant Docks Manager and was to be addressed to the Docks Manager, thus making a show that it was Shri Kulkarni, who on his own, had sent the said recommendation, though in fact it was entirely otherwise. The relevant corrections were obviously in the hand of accused No. 1. Accused No. 2 had blurted out a very significant statement that he was interested in accused No. 3 while accused No. 1 was interested in both and he was installing in accepting the tender of Roshanali. What happened in the cabin of accused No. 1, which is discussed elaborately earlier, is also quite relevant and that assumes sinister significance when examined in association with some other features. Thus, for instance, accused No. 1 made no secrecy in suggesting to Shri Kulkarni to manipulate the statement 'B' to be in consonance with the plan in favour of Roshanali and even he offered a ball pen so that the change could be made in his presence. His anxiety not to call Shri Gadgil and other is relevant. One of the further events has also apparently sinister implication, in that original draft was torn into places by accused No. 1. The intervening circumstances are elaborately discussed hereinbefore. It would thus be manifest that at every stage there was not only a passive assistance or even connivance but there was a positively active involvement and participation on the part of the accused No. 1, which when considered in totality atleast ex facie spells out a sinister intention and the outcome of a planned conspiracy, if of course the prosecution are able to prove the same ultimately. Even the last stage of canceling the tenders and having public auction apparently was engineered by accused No .1 after realising that Shri Kulkarni was not prepared to surrender and significantly accused No. 3 was the highest bidder to the tune of Rs. Six lakhs. That is how as per the allegations right from the beginning to the end there has been an undercurrent of consistency to put forth different moves in pursuance of a pre-planned strategy, which when hooked together brings on the surface the real purport of the same spelling out criminal offence. Really everything was done by accused No. 1 within his control, which has apparent shade of criminality, as per the prosecution allegations and it is not as if that there was merely a desire in his mind and armed with a desire he was as if a passive spectator to the whole show. He was very much involved actively and took every step to translate that desire into action. Some of the acts really speaking are complete. Thus the act of forgery by accused No. 2 is apparently complete and which is not disputed at this stage. It is rightly submitted for obvious reasons that accused No. 1 himself would not change the amount or figure in the document and it is only for that reason that it had to be done by accused No. 2 though it does not mean that accused No. 2 was author thereof exclusively his own without any association with accused Nos. 1 and 3. The series of acts taken together ex-facie would make out a case of criminal conspiracy under section 120-B of the Penal Code and I am not prepared to accept that the prosecution had conceded even inferentially in not pressing this charge. All the shades as reflected through various acts are the outcome atleast apparently of the said conspiracy to achieve the object under the conspiratoral agreement between the three accused persons. In addition or in the alternative the charge of abetment of forgery can justifiable be leveled against accused persons. Even assuming that the forgery was done only by accused No. 2, such abetment as defined in section 107 of the Code can be either by instigation or even by conspiracy or by influentially aiding the same. The abetment by conspiracy can apparently be spelt out on the basis of the allegation of the prosecution. The third alternative also cannot be ruled out atleast in so far as accused No. 1 is concerned that this was also done sharing the common intention with accused No. 2. The definition of making of false document as contemplated in section 464 of the Penal Code can well be made out. The offence of commission of forgery under section 465 is also obvious which is much more than preparation through in fact it is complete by itself and if read along with section 120-B or section 108 or section 114 or section 34 of the Penal Code would make it complete by itself and in any event it would be much more than mere preparation. That the document may fall under section 464 of the Code also prima facie cannot be ruled out. The commission of forgery of the document with intention for its user for the purpose of cheating is also apparent on the basis of the allegations. The contention advanced in that behalf in so far as this offence is concerned has absolutely no means whatsoever.

58. Various events that has been reflected in the catalogue already indicated make it very clear that in reality none of these acts had any direct nexus with the official duty nor could the accused satisfy the test and that it challenged he would proclaim to the world at large that what he was doing was his official duty, though under that veil or clothe he may do the act dishonestly. A mere distinguishing further in Virupaxappa's case, which is very much relied upon, is to the effect that under the Code of Criminal Procedure or Police Manual basically the Sub-Inspector is empowered with the duty to record a panchanama or a statement or make a report. He may do it honestly which may in the discharge of his duty or he may do it dishonestly which may be purported discharge, though in the both cases he may get protection having nexus with the official duty. The foundation, however, is that the main act of recording the panchanama or the statement falls exclusively within the domain and jurisdiction of the officer concerned. Shri Gumaste, the learned Counsel, sought to over-simplify the situation in the submitting that it was within the domain of the accused to call for a report from his subordinate and even to recommend or even to pass an order canceling the tenders and directing public auction. This submission takes into account the only one or two of the acts and that too in isolation. The basic difference is that in the instant case accused No. 1 himself has not made a report or a correction but he was calling for the report from his subordinate with the full knowledge asking them expressly to make a false report. This distinguishing feature makes it clear that the test may not be answered in his favour inasmuch as if challenged in that process could he have satisfied that by asking subordinate to commit the forgery he was doing his official duty. The Sub-Inspector in that case had himself made a panchnama or record statements and that act does not require any vigilant proclamation since the panchnama may not be read at that time when it was scribed by others. However, assuming otherwise if some one questions him as to what he was doing he could have well remained behind the camouflage that he is recording the panchnama as a part of his duty. It could not be extended to mean that he may ask the subordinate to make a false panchnama, and still he can claim to be acting in the purported discharge of his duty. This is not the end of the matter since several other events also cannot satisfy the test successfully. To put it in other form, can accused No. 1 successfully meet the charge and satisfy when challenged that what he was doing was his official duty-when he was allowing accused No. 2 to liberally visit his office without apparently there being any rhyme or reason, in sending the papers not through despatch by through accused No. 2, who was vitally concerned with the same-informing the subordinate through accused No. 2 to make manipulation in order to support the claim of accused Nos. 2 and 3 dishonestly-make a similar suggestion to the officers subordinate directly to make clear forgery and manipulation in the statements and other documents and offer instrument of writing for making that change immediately - sending a draft of a report and thus inviting it from subordinate making it clear that it should contain the said false statement including the forgery-could he have successfully refuted the charge leveled by Shri Kulkarni that this is nothing but criminal offence could he have pressurised subsequently the officers to give statements in a particular manner - could he have forced by situation the subordinate to make a report in a particular manner in order to achieve his object and could he have cancelled the tender under the circumstances and lastly could have even touched the original tender forms and statements and have made correction either by himself or allowed the co-accused to make manipulation and forgery in the original documents without himself touching the papers, which were by then officially lodged in the Department and private party could have no access to them - could he have manoeuvred the entire show in order to see that Roshanali gets a tender manipulated the documents in that behalf and being frustrated thereafter cancelled the tenders. In effect the acts or atleast many of those are such that if challenged accused No. 1 would never have satisfied that those were being done in the discharge or purported discharge of his duty, though the office which he held may have afforded an opportunity or occasion for him to commit those things. The alleged act of forgery or its abetment and entering into a criminal conspiracy in order to achieve the alleged nefarious object can obviously not fall in the category requiring protection. Apparently engaged in the process of writing a statement or recording a panchnama by a Police Office as in Virupaxappa's case or disposal of goods as in Shreekantayya's case by itself may not cause suspicion of any one while it is being done mainly because to deal with such process is usually a part of his duty and at any rate the challenge, if made, could be successfully met with by the respective accused, that he was doing his official duty. This, however, is far from the facts of the instant case and to incorporate this analogy to these facts would absolutely be out of harmony. In my opinion, the position is quite clear requiring no further comments in discarding the various contentions in that behalf. It is the totality of all these events, which must be taken into account since as accepted an offence may contain a series of acts and not necessarily a single unit. The ratio is Virupaxappa's case therefore, cannot have application to the facts of the instant case an the same would be true in respect of the other decision relied upon by Shri Gumaste, the learned Counsel, which have been discussed in that filed.