Ramchandra Radhakrishna Chawla v. Assistant Commissioner of Police & Ors.

Judgment

1. This revision application is directed against the 17-7-2003 passed CAP Special Case No. 15 1986 (State Maharashtra R.R.Chawala Gr,Bombay) rejecting application of the applicant seeking discharge under Section 227 of Criminal Procedure Code (Cr.P.C.). : 2 : THE FACTUAL MATRIX:

2. Factual matrix revealed originally bearing C.S.No.565 Malabar Cumballa i.e. Hill Division, purchased M/s Omprakash Hashmatrai Navani West Coast Builders (P) Ltd. Mr.Dubhash 1978 a Conveyance 27-2-1979. The mentioned conveyance

3143.83 sq.mtrs. The building submitted sanctioned Municipal Corporation of Greater Mumbai. The building was to have ground + 6 floors.

3. It appears that Mr.Om Navani measured through Superintendent City Survey Department demarcated boundaries thereof. The measurement City Survey Department revealed actual

3615.32 sq.mtrs.and

3143.83 sq.mtrs mentioned Conveyance. The Superintendent City Survey Department addressed Builder

confirming a letter 16-5-1981

3615.32 sq.mtrs forwarded demarcation survey demarcated

3615.32 sq.mtrs. This letter Accused no.1 Architect instructions submit amended approved Municipal Corporation Gr.Mumbai 3-10-1981 on the basis of the area measured by City Survey department.

4. The Municipal Corporation Gr.Mumbai issued a notice 4-12-1981 Architect : 3 : representative measurement. Mr.Welling, Asst. Engineer Municipal Corporation Greater Mumbai Mr.Gokhale, Dy.Chief Engineer, measurements presence 7-12-1982 Architect’s representative and that of the builder. The area, during this measurement was found admeasuring 3621.8 sq.mtrs.

5. The builders 14-12-1982 informed Municipal Corporation survey measurement 7-12-1982. The applicant-Architect 18-12-1982 informed Municipal Corporation jointly surveyed 7-12-1982 tallied measured Thereafter, Superintendent, City Survey. 31-1-1983 1-2-1983, Government directed should remeasured Deputy Director, Town Planning Collector’s office. This admesuring

3446.93 sq.mtrs by plane table survey and 3114.27 sq.mtrs by Theodolite Survey.

6. The FIR lodged one Mr.Hazare PI ACB, 24-7-1984 originally, against (1) Mr.Om Prakash Navani (2) Mr.R.R.Chawla, Architect (applicant herein) (3) P.D.Hawal, Supdt. Land Record (4) Mr.Desai, Senior Surveyor mentions "and others". Thereafter, ACB included FIR name of (5) Mr.Pawar, Surveyor and (6) Mr.Ghosh and 7) Mr.Joshi of Municipal Corporation as accused.

7. Mr.Om Navani, account difference : 4 : different agencies, a Revision Revenue Tribunal against Collector, Mumbai. Again, re-measured by the Collector and ACB together and found that the area of the plot was 3557.12 sq.mtrs.

8. The Revenue Tribunal, request Builder, a finality area, direction Collector finalise all, finalised aforesaid. The Builder, ACB different authorities, measured separately every time found variation therein and urged that the contractor has been falsely instigating the ACB.

9. A letter written Revenue Forest Dept. ACB 12-12-1988 saying case. In spite of this, ACB registered criminal case being Case No.15 of 1986.

10. An Application was made Accused except accused no.3 Mr.Hawal discharge, decided by Ld.Judge Mr. Limaye on 4-4-1981, who refused to discharge the accused.

11. The Revision Petition NO.131 1991 NO.202 1991 Mr.Om Navani, accused no.1, Mr.Ghosh Mr.Joshi, (accused nos. 6 7) against aforesaid Court, allowed Court (Palkar J, then was). All aforesaid 3 accused were discharged under the judgment of this Court : 5 : dated 20-2-2002.

12. When matter framing charge, Court, remaining accused no.2 petitioner), Accused no.3 (Mr.Hawal), accused (Mr.Desai) and Accused no.5 (Mr.Pawar), pleaded for discharge. (the no.4

13. The Ld.Judge Mrs.Mridula Bhatkar (as was), hearing parties, application maintainable previous rejection discharge, however merits refused discharge accused nos.2, 3, 4 and 5. Consequently, prayer for discharge was rejected by the trial Court.

14. Being aggrieved aforesaid refusal discharge, accused no.2, applicant herein, Mr.Hawal, accused no.3, separate petitions/revision applications Hon’ble Court. A revision Hawal dismissed abated account demise. The present petition present applicant, challenging the impugned order was heard by this Court. SUBMISSIONS:

15. The learned Counsel appearing applicant submitted detailed written submissions against present applicant out. He submits : 6 : He accused applicant Architect profession. engaged builder - Mr.Om Navani, charged offence alleged Sections 120B, 467, 458, 471, 477 and 420 of IPC. If that be so, how the Architect, engaged by him can be prosecuted.

16. The learned Counsel applicant further submits Court 20-2-2002 pleased Criminal Revision Application NO.131 202 1991 thereby discharged applicant 1991 Special Case NO.15

1986. One applicant - Omprakash H. Navani was discharged, who had engaged the present applicant as his Architect. CONSIDERATION:

17. The prosecution accused conspiracy officers office City Survey others City Survey Record changed respect bearing C.S.No.565 Malabar Cumballa Hill Division. According prosecution, original

3143.83 sq.mtrs. changed

3615.32 sq.mtrs. The prosecution alleges officers City Survey Office changed document pecuniary advantage committed misconduct. The prosecution allege forgery officers. Sum substance therefore prosecution accused entered a conspiracy, furtherance conspiracy, officers City Survey misconducted giving Certificate : 7 : measurement containing higher relating aforesaid property. I through Court passed Justice Palkar (as was) attention was drawn to para 10 of the said judgment which reads thus : "One thing clear record that he ACB measurement occasions results same. However, concerned i.e. accused no.1 accepted

3217.37 sq.mtrs proceedings before Collector, controversy should ended. Another aspect matter City Survey Record

3143.83 sq.mtrs difference figures 74 sq.mtrs only. It admitted position measurements exactly, Government a decision ignore difference 5% difference less. In this, accused Government withdrawal prosecution Government a decision initiate prosecution differences 5%" Para 13 of the said judgment, reads thus : "From stated initially described City Survey : 8 : Record 3718 sq.yds. It measurement carried different result different. Even measurement carried simultaneously different methods disclosed different result. Even result measurement instance ACB different same. The prosecution brought record earlier measurement instance ACB conclusion different. Even measurement carried Deputy Director Town Planning Collector ascertain disclosed different results." In substance, submission revision on the above findings which have become final against the prosecution.

18. The learned APP though counter submissions learned Counsel applicant support impugned out of findings seconded by this Court in earlier round of litigation in the case of Mr. Om Navani.

19. Now, let me examine applicant. The applicant engaged Architect accused Mr.Om Prakash Navani, who has already been discharged along with : 9 : others. The present applicant was acting for and on behalf of Mr.Om Prakash Navani.

20. It dispute on more occasion measurements different authorities In measurement variable found. offence Section 120B, required proved prosecution, a criminal conspiracy entered into, provided Section 120A. There a whisper statement accused much accused no.2 met, agreed illegal act. There a circumstantial evidence accused no.2 accused conspiracy. The possible inference evidence available, taking prosecution value, accused no.2 engaged Architect instructions client accused no.1 (the builder), making applications mentioning officer City Survey Department. Hence ground frame any charge against accused no.2 under Section 120B of I.P.C.

21. 466, Now, coming charges forgery Sections 467, 468 471 I.P.C., foremost, accused no.2 charged sections. Hence the charges cannot be levelled against accused no.2 in this behalf. : 10 :

22. The charge relates Section 420 I.P.C., essential ingredient Section 420 induce accused making person valuable security. The accused no.2, intention dishonestly induced anybody property alteration destroy valuable security anything signed sealed convert a valuable security. On plain reading of Section 420 no offence can be said to have ben made out against the accused no.2.

23. So Section 227 Code Criminal Procedure is concerned, I do not find any sufficient ground for proceeding against the accused.

24. Thus, considering totality circumstances earlier judgment Court, impugned refusing discharge present applicant cannot sustained. The same is liable to be quashed and set aside and revision application is liable to be allowed.

25. In the result, impugned order is quashed and set aside. Rule is made absolute in terms of this order.

26. The applicant is discharged on Special Case NO.15 of

1986. JUDGE