High Court
Legal Reasoning
13-*Cri-WP-1033-2018-Judgment.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD13 CRIMINAL WRIT PETITION NO. 1033 OF 2018WITHCRIMINAL APPLICATION NO. 4018 OF 2023 Suryaprakash s/o Tekchandji DembdaAge: 50 years, Occu- Business & Agri.,R/o. Ajinkya Palace, Gurubachan ChowkMantha Road, Jalna, Tq. & Dist. Jalna.… PETITIONER (Ori. Accused)VERSUS1.The State of MaharashtraThrough Police InspectorSadar Bazar Police Station,Jalna 2.Bharatkumar Teckchandji Dembda[Original Complainant]Age- 65 years, Occu. Nil,R/o. Flat No.403, Purple Dream City,Takli Agar Takli Road, NashikMaharashtra – 422 0063.Anita w/o Bharat DembdaAge – Major, Occu. Housewife,R/o. Flat No.501, 502, Raj Heights,Behind Fire brigade office,Opp. MGM Hospital, AurangabadTq. & Dist. Aurangabad4.Amit s/o Bharat DemdaAge – Major, Occu. Business,R/o. Flat No.501, 502, Raj Heights,Behind Fire brigade office,Opp. MGM Hospital, AurangabadTq. & Dist. Aurangabad … RESPONDENTS 1 of 12
Legal Reasoning
(( 2 ))13-*Cri-WP-1033-2018-Judgment.…Mr. Ajay G. Talhar a/w Mr. Darshan D. Sahuji, Advocates for thePetitioner Ms Chaitali Chaudhari – Kutti, APP for Respondent No.1Mr. A. M. Karad, Advocate for Respondent Nos. 2 to 4 .…CORAM: Y. G. KHOBRAGADE, J.DATE:03.03.2025ORAL JUDGMENT :- 1.Rule. Rule made returnable forthwith and with consentof parties heard finally at the stage of admission. 2.By the present Petition under Article 226 and 227 of theConstitution of India, the Petitioner takes exception to the judgmentdated 17.04.2018 passed by the learned Sessions Judge, Jalna, inCriminal Revision Application No.102 of 2013 thereby upheld orderof rejection of application for discharge passed by the learned ChiefJudicial Magistrate, Jalna, below Exh.17 in Regular Criminal CaseNo.891 of 2010 on 16.09.2013.3.The Petitioner is the original accused and the RespondentNo.2 is the original complainant in Criminal Misc. Application No.590of 2009. For the sake of brevity, I would like to refer parties to the 2 of 12 (( 3 ))13-*Cri-WP-1033-2018-Judgmentpresent Petition in their original capacity as the complainant and theaccused. 4.Respondent No.2/complainant filed the Criminal Misc.Application No.590 of 2009 and prayed for investigation underSection 156(3) of the Code of Criminal Procedure for the offenceunder Sections 420, 465, 468, 471, 506(2) of I.P.C. According to thecomplainant, in the year 1990, he purchased the immovable propertybearing C.T.S. No.4700, admeasuring 1394.31 square meter withinthe limit of Municipal Council, Jalna. However, he was out of Jalnacity for education purpose of his children and business. According toRespondent No.2/complainant, he is exclusive owner of said propertyand nobody is shareholder in said property. However, the Petitioner/accused, taking advantage of his absence, had persuaded his father,Tekchandji Dembda, to execute a Deed of Partition in respect of saidproperty. It is further alleged that, on 06.08.1998, thePetitioner/accused executed the false and bogus partition-deed inrespect of property C.T.S. No.4700 by impersonating him and byputting signature of some other person and produced some otherperson before the Sub-Registrar, Jalna in his place and got executeddeed of partition. Therefore, the Petitioner/accused committed an 3 of 12 (( 4 ))13-*Cri-WP-1033-2018-Judgmentoffence punishable under Sections 420, 465, 468, 471, 506(2) ofI.P.C., hence, prayed for investigation under Section 156(3) of Cr.P.C. 5.On 09.12.2009, the learned J.M.F.C. Jalna, passed anorder in Criminal Misc. Application No.590 of 2009 and directed theconcerned Police Station to conduct investigation under Section156(3) of Cr.P.C., for the said alleged offences. In pursuance of saidorder, the Crime M. No. 9 of 2009 registered on 12.12.2009. TheInvestigating Officer conducted investigation, recorded statements ofwitnesses and seized the deed of partition dated 06.08.1998 underseizure panchanama. During the course of investigation, theInvestigating Officer referred seized deed of partition for examinationto the Handwriting Expert with other specimen signatures and thumbimpressions of Respondent No.2/ complainant. Accordingly, on26.08.2010, the Investigating Officer received Expert’s Opinion,wherein, it has opined that, the Thumb Impressions appearing onRegister of the Sub-Registrar office are not matched with thespecimen L.T.P and R.T.P. marked A-(L) A-(R) of the Respondent no.2/complainant Bharatkumar Teckchandji Dembda and specimen L.T.P.and R.T.P. marked X-(L) X-(R) are of petitioner/accused ShriSuryaprakash Tekchand Demada. Accordingly, the Investigating 4 of 12 (( 5 ))13-*Cri-WP-1033-2018-JudgmentOfficer filed the charge-sheet against the Petitioner/accused for theoffence under Sections 420, 465, 468, 471, 506(2) of I.P.C.6.After service of summons, the Petitioner/accusedappeared before the learned Chief Judicial Magistrate. Thereafter, thePetitioner/Accused filed an application (Exh.17) under Section 227 ofCr.P.C. and prayed for discharge in Crime M. Case No. 9 of 2009registered. 7.On 16.09.2013, the learned Chief Judicial Magistratepassed order and rejected the Application for discharge. Beingaggrieved by said order, the Petitioner/accused filed Criminal RevisionApplication No.102 of 2013 before the Sessions Court. On17.04.2018, the learned Sessions Judge, Jalna, passed the impugnedJudgment and order and dismissed said Criminal RevisionApplication. The learned Revisional Court held that, at the stage offraming of charge, the material produced with charge-sheet needs tobe considered and probable defence of the petitioner/Accused cannotbe considered. Moreover, the material produced on record with thecharge-sheet is sufficient to frame charges against thepetitioner/accused. 5 of 12 (( 6 ))13-*Cri-WP-1033-2018-Judgment8.Mr. Talhar, the learned counsel appearing for thePetitioner/accused canvassed in vehemence that, as per sale-deeddated 24.09.1990, the Petitioner/accused, Respondent No.2/complainant, their other brothers with their father Shri TekchandSakhavatramji Demba (deceased) have jointly purchased the landedproperty bearing Municipal No.4515, New No.4194, bearing CTSNo.4700 for valuable consideration. Therefore, the Petitioner/accusedand Respondent No.2/ complainant are joint owners of the saidproperty along with their brothers. Subsequently, on 06.08.1998, theRespondent No.2, Mr. Tekchandji Dembda, the father of thePetitioner and Respondent No.2 executed partition-deed in favour ofthe Petitioner/accused. At the time of registration of deed ofpartition, the Respondent No.2 was personally present before theSub-Registrar office and received amount of Rs. 20,00,000/- (RupeesTwenty Lakh) by four different cheques. The Respondent No.2 hasnot denied about acceptance of said amount but only denied hissignature on the partition-deed. Therefore, the material available onrecord appears about existence of civil dispute between the petitionerand Respondent no. 2, hence, said Civil dispute cannot be adjudicated 6 of 12 (( 7 ))13-*Cri-WP-1033-2018-Judgmentby the learned Chief Judicial Magistrate. However, the learned trialCourt passed the order dated 16.09.2013 below Exh.17 and rejectedapplication of discharge u/s 227 of Cri. P. C., without considering thefact that the material available on record are not sufficient to framecharge against the petitioner/accused, therefore, the learned ChiefJudicial Magistrate could have to discharge the Petitioner/accused. Soalso, the learned Revisional Court totally ignored the materialavailable on record to establish about existence of civil dispute inrespect of the property between the petitioner and Respondent no.2.Therefore, impugned order passed by the learned Revisional Court aswell as order passed by the learned Chief Judicial Magistrate areillegal bad in law, hence, prayed for quash and set aside. 9.Per contra, Mr. A. M. Karad, the learned counsel forRespondents canvassed that, the Respondent No.2/complainantspecifically made averment in complaint that, on 06.08.1998, thePetitioner/accused submitted deed of partition for registration withthe Sub-Registrar, Jalna but at that time, the RespondentNo.2/complainant was not present in Jalna town. The Petitioner/accused falsely personated the complainant and under false signature 7 of 12 (( 8 ))13-*Cri-WP-1033-2018-Judgmentand thumb of Respondent No.2, the petitioner/accused got executedregistered deed of partition. Thereafter, on the basis of said deed ofpartition, the Petitioner/accused got his name mutated in city surveyrecord by playing fraud. The handwriting expert’s report shows that,thumb impression appearing on register of the Sub-Registrar are notmatched with specimen. Therefore, the material available on record issufficient to frame charges against the petitioner/accused. Therefore,on 09.12.2009, the learned Chief Judicial Magistrate passed an orderand directed investigation under Section 156(3) of Cr.P.C. After dueinvestigation, the I. O. filed charge-sheet and handwriting expert’sreport. Therefore, the material produced on record are sufficient toframe the charge against the Petitioner/accused, hence, prayed fordismissal of the Petition. 10.Needless to say that, the Respondent No.2/complainantfiled Criminal Misc. Application No.590 of 2009 alleging that, on06.08.1998, the Petitioner/accused executed deed of partition beforethe Sub-Registrar, Jalna under his false and bogus signature andthumb impression. It is not in dispute that, on 09.12.2009, thelearned Chief Judicial Magistrate, Jalna, passed the order anddirected investigation under Section 156(3) of Cr.P.C. in regard to the 8 of 12 (( 9 ))13-*Cri-WP-1033-2018-Judgmentallegations made in the complaint. The Investigating Officerregistered the crime under M. Case No.9 of 2009 for the offencespunishable under Sections 420, 465, 468, 471, 506(2) of I.P.C. It is amatter of record that, the Investigating Officer recorded statements of19 witnesses and collected specimen signature and thumb impressionof Respondent No.2/complainant as well as from the office of Sub-Registrar. The I. O. sent all specimen signatures/ thumb impressionscollected during investigation to the Handwriting Expert forexamination. The Deputy Director/Deputy Superintendent of Police(FP), Finger Print Bureau, C.I.D., Aurangabad, issued a certificate/opinion No.16 of 2010 certifying that, the specimen of L.T.P and R.T.P,marked A-(L) A-(R) of the Respondent no. 2/complainantBharatkumar Teckchandji Dembda and specimen L.T.P and R.T.P,marked X-(L) X-(R) of accused Suryaprakash Tekchandji Dembda arematched but specimen signature/thumb of Respondent no. 2/complainant Shri Bharatkumar Teckchandji Dembda are not identicalwith the specimen.11.Since Respondent No.2/complainant specifically allegedin complaint that, on 06.08.1998, the Petitioner/accused executeddeed of partition before the Sub-Registrar by producing the dummy 9 of 12 (( 10 ))13-*Cri-WP-1033-2018-Judgmentperson in his place and impersonated. The Respondent no.2/complainant alleged about execution of false and fabricated deed ofpartition in his absence by manufacturing his signature/thumbimpression because he was not available in Jalna city on the day ofexecution of the registered deed of partition. Therefore, the materialplaced on record is sufficient to frame charge as per the provisions ofSection 228 of Cr.P.C., for the offences under Section 420, 465, 468,471, 506(2) of I.P.C.12.Section 227 of Cr.P.C. provides that, if the materialproduced on record and after hearing the submissions, if the judgeconsiders that there is insufficient ground for proceeding against theaccused, in that circumstance, the accused may be discharged afterrecording reasons. In State of Tamilnadu By Inspector of PoliceVigilance and Anti Corruption Vs. N. Suresh Rajan & Ors, (2014)11SCC 709, it is held that, at the stage of consideration of applicationfor discharge, the Court has to proceed with an assumption that thematerials brought on record by the prosecution are true and evaluatethe said materials and documents with a view to find out whether thefacts emerging therefrom taken at their face value disclose theexistence of all the ingredients constituting the alleged offence. At 10 of 12 (( 11 ))13-*Cri-WP-1033-2018-Judgmentthis stage, probative value of the materials has to be gone into andthe court is not expected to go deep into the matter and hold that thematerials would not warrant a conviction. 13.In the case of Yogesh @ Sachin Jagdish Joshi Vs. State ofMaharashtra, 2012 SC 2991, it is held that the words "not sufficientground for proceeding against the accused" appearing in the Sectionpostulate exercise of judicial mind on the part of the Judge to thefacts of the case in order to determine whether a case for trial hasbeen made out by the prosecution.14.Reverting back to the case-in-hand, the RespondentNo.2/complainant specifically alleged that, at the time of execution ofdeed of partition on 06.08.1998, he was not in Jalna city and he wasout of station due to education purpose of his children and due to hisbusiness, however, the Petitioner/accused got executed boguspartition-deed in respect of property CTS No.4700 of Jalna by falselyimpersonating and by obtaining signature of some other person in hisplace before the Sub-Registrar. The Investigating Officer has alreadyfiled the handwriting expert’s opinion, which is sufficient to framecharges against the Petitioner/accused. 11 of 12 (( 12 ))13-*Cri-WP-1033-2018-Judgment15.On 17.04.2018, the learned Sessions Judge, passed theimpugned order and upheld the order dated 16.09.2013 passed bythe learned J.M.F.C. below Exh.17 in Regular Criminal Case No.891 of2010 holding that, the material placed on record are sufficient toframe charge against the accused. Therefore, I find that the findingsrecorded by both the lower courts are just and proper, and do notwarrant any interference from this Court. Therefore, the CriminalWrit Petition is dismissed. Accordingly, Rule is discharged. Theearlier interim relief, if any, granted earlier is hereby vacated. 16.Since the Criminal Writ Petition is dismissed, CriminalApplication No.4018 of 2023 does not survive and therefore it isdisposed off. 17.At this stage, the learned counsel for the petitionerrequested extension of the interim order dated 20.08.2018 passed bythis Court for a period of two weeks, however, said request is herebyrejected because the trial of Crime is pending since last more than 7years and no cogent grounds are set out. [ Y. G. KHOBRAGADE, J. ] SMS 12 of 12