The State of Maharashtra v. Vijay Lahu Raut & Ors.

Mrs. S.D. Shinde, APP for the State. Mr. M.J. Upadhyay, advocate for respondent no.4. Mr. Laxman Kunal, advocate for respondent no.7. Respondent No. 5 present in person. Mr. B.K. Asthana with Mr. Vaibhav Bagade, advocate for respondent no.8. Mr. Girish Kulkarni, advocate for respondents 14,15 and 17. SHRIHARI P. DAVARE, JJ. CORAM: B.R. GAVAI AND 3rd May, 2012. PC: By way of present application the State seeks leave to appeal against the judgment and order passed by the learned Special Judge, Greater Bombay in Sessions Case No. 21/1990 dated 14th January, 2011. Various accused persons who were the employees of the Bombay Municipal Corporation and the Architect were prosecuted for the offence punishable under Section 120-B read with Section 417, 420, 465, 466, 467, 468, 471, 34 and 109 of the IPC. The accused no.2 was also charged for the offences punishable under Section 5(2) read with 5(i)(d) of the Prevention of Corruption Act, 1947. 2 appln288.12.sxw

The Respondent-accused were prosecuted with an allegation that they had indulged in various malpractices as a result of which the area of certain properties in the city of Bombay was increased, further resulting in higher FSI. It is further alleged that the accused who are the officers of the Bombay Municipal Corporation, the staff of the City Survey Department and the Land Record and the Architect and the Builder had with common intention of grabbing higher FSI had done so. The learned trial Court at the conclusion of the trial acquitted the accused. Being aggrieved thereby the State has preferred the present application.

Smt. S.D.Shinde, learned APP submits that when the learned trial Court has come to the conclusion that certain fabrication was done in the City Survey record, it ought to have convicted the accused who were responsible for maintaining the same. She submits that learned trial Court has, therefore, erred in acquitting the accused.

Shri Girish Kulkarni appearing on behalf of the respondents 14, 15 and 17 and Shri Laxman Kunal for respondent no.7 and Mr. B.K. Asthana appearing for respondent no.8 submit that learned trial Court upon appreciation of the evidence rightly acquitted the accused and as such no interference is warranted. 3 appln288.12.sxw

Nodoubt that the learned trial Court has come to a finding that in the City Survey Register No. 241, Volume No.153 page-43 there is an alteration whereby the area of 582 sq. yards is shown as 1585 sq. yards. However, the learned trial Court has found that for establishing the case of forgery against the accused concerned, it is required to be established that there was conspiracy amongst accused nos.1-5 and with common intention they have committed such a forgery. However, the learned trial Court has found that insofar as accused no.2 and 3 are concerned, they were transferred to Survey Branch on 21st February, 1981. It has, therefore, been found that said accused were not in the Survey Department prior to 21st February, 1981. The learned trial Court has, therefore, found that in the absence of evidence on record to establish that the forgery was committed after 21st February, 1981, the said accused could not have been charged for the offence of forgery. Insofar as accused no.4 is concerned, the defence of the accused no.4 was that he had acted under the directions of accused no.1 and his role was only limited to demarcation of the boundaries and that he has nothing to do with the mentioning of area. The prosecution has also failed to prove that accused no. 4 was responsible for changing the entries in the City Survey register. Insofar as accused no.5 is concerned, it has been found that his role was only restricted to writing the details of the property and boundaries area and had no role to play in making 4 appln288.12.sxw the entries in the Survey Register.

The learned trial Court has found that in a criminal case, prosecution is bound to prove the case beyond reasonable doubt. In the absence of any cogent evidence on record that the forgery was committed by a particular accused, we do not find any error in the order of acquittal as recorded by the learned trial Court. There is one more aspect in the present matter. Accused no.13 is a Architect and under the provisions of Section 38 of the Architect Act, 1972 no prosecution could have been lodged against him in the absence of sanction from the Competent Authority. Admittedly, no such sanction was obtained by prosecution prior to his prosecution. In the totality of circumstances no case is made out for interference.

Leave is, therefore, refused. Application rejected. (SHRIHARI P. DAVARE, J) (B.R. GAVAI, J) Panjwani.