High Court
Legal Reasoning
( 1 ) 901 cri wp 1867.23 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 1867 OF 2023Rajesh s/o Dhanji Zalte,Age 55 years, Occ : Legal Practitioner,R/o Zilla Peth Jalgaon,Taluka and District Jalgaon....PETITIONERV/s.The State of MaharashtraMantralaya, Mumbai. ...RESPONDENT.....Mr. Rajendrraa Deshmukh, Senior Counsel a/w. Ms. Rakshanda Rajan Jaiswali/b. Mr. Devang Deshmukh, Advocates for the PetitionerMs. Ashlesha S. Deshmukh, APP for the Respondent-State..…CORAM : Y.G. KHOBRAGADE, J.RESERVED ON :29.01.2025 PRONOUNCED ON :10.02.2025JUDGMENT:-1.Rule. Rule made returnable forthwith. With the consent of bothsides, heard finally.2.Heard Mr. Rajendrraa Deshmukh, the learned Senior Counselappearing for the Petitioner and Ms. Deshmukh, the learned APP for the Stateat length. ( 2 ) 901 cri wp 1867.23 3.By the present petition under Article 227 of the Constitution ofIndia, the Petitioner/Original Accused No.2 takes exception to the order dated28.07.2022 passed by the Ad-hoc Additional Sessions Judge, Jalgaon in Cri.Revision No. 83 of 2019, thereby affirmed the order dated 22.04.2019 passedby the learned Chief Judicial Magistrate, Jalgaon, in Regular Criminal Case No.494 of 2011, whereby directed to frame charge against the presentPetitioner/Accused for the offence punishable under Section 119, 120, 166,167, 171, 181, 182, 192, 193, 196, 198, 199, 205, 419, 420, 422, 465, 466,467, 468, 471 read with Section 34 and 120-B of the I.P.C.4.Facts giving rise to the present petition are that on 03.12.2010, thelearned Principal District and Sessions Judge, Jalgaon received a writtencomplaint from one Shri Prakash Gulabrao Patil, wherein he alleged that theoriginal claimant Shri Chindna Krishna Mang in land acquisition referenceproceeding bearing Misc. Civil Application No.47/1993, registered as LARNo.262/1993 died on 22.11.1999 but his legal heirs were not brought onrecord, however, but the Accused No.1 impersonated himself as the OriginalClaimant and received the amount of compensation due to acquisition of landof the Original Claimant Shri Chindna Krishna Mang and deprived the legalheirs of Original Claimant to receive the compensation in respect of theacquired land. Therefore, the learned Principal District and Sessions Judgedirected the learned CJSD to conduct an enquiry and to submit it’s report. ( 3 ) 901 cri wp 1867.23 5.Accordingly, the learned Civil Judge Senior Division, Jalgaonconducted an enquiry and examined the record and submitted it’s report. Asper the inquiry report, the Accused No.1- Sukhdeo Krishna Suralkar and thePetitioner/Accused No.2 in connivance with each other committed fraud on theCourt to receive the enhanced compensation. Though, the present Petitionerwas duly served with the show cause notice on 07.03.2011 and was calledupon him to submit his explanation but he failed to submit his reply. So also,the present Petitioner has identified the fictitious person in all the three Courtproceedings. Therefore, act done by the Accused No.1- Sukhdeo KrishnaSuralkar (Mang) and Accused No.2 (present Petitioner) for falsification ofCourt record, playing fraud upon the Court, cheating in the Court proceedingand obtaining the Judgment in the name of a deceased person and gettingbenefits for themselves.6.In pursuance of said report, the Complainant Shri KishorRajeshwarrao Chaudhari, the then CJSD, Jalgaon filed a Regular Criminal CaseNo.494/2011 for the offence punishable under Section 119, 120, 166, 167,171, 181, 182, 192, 193, 196, 198, 199, 205, 419, 420, 422, 465, 466, 467,468, 471 read with Section 34 and 120-B of the I.P.C. After due compliance ofSection 202 of the Cr.P.C., the learned Judicial Magistrate, issued processagainst both the Petitioner as well as Accused No.1 Shri Sukhdeo Krishna ( 4 ) 901 cri wp 1867.23 Suralkar for the said offences. In compliance of service of summons, thepresent Petitioner appeared before the learned Judicial Magistrate.7.The prosecution examined PW1-Kishor Rajeshwarrao Chaudhari(CW1) at Exh.57 and Shri Vilas Wamanrao Jahagirdar (CW2) before framing ofcharge. After recording evidence charge and having been heard both the sides,on 22.04.2019, the learned CJM, Jalgaon passed an order holding that thematerial available on record is sufficient to frame charge against the Petitionerand Accused No.1- Shri Sukhdeo Krishna Suralkar for the offence punishabeunder Section 119, 120, 166, 167, 171, 181, 182, 192, 193, 196, 198, 199,205, 419, 420, 422, 465, 466, 467, 468, 471 read with Section 34 and 120-B ofthe I.P.C. 8.Being aggrieved by the said order, the Petitioner/Accused No.2filed Criminal Revision Application No.83/2019 under Section 397 of the Cr.P.C.before the learned Sessions Judge, Jalgaon. On 28.07.2022, the learnedRevisonal Court passed the impugned order and dismissed the revision petition.Being aggrieved by said order, the Petitioner/Accused No.2 has filed thispetition before this Court.9.The learned senior counsel appearing for the Petitioner canvassedin vehemence that the Petitioner is a Legal Practitioner by profession and ispracticing in entire Jalgaon district as well as in various Courts in the State of ( 5 ) 901 cri wp 1867.23 Maharashtra. The Petitioner-Accused is specifically dealing in Land Acquisitionmatters pertaining to enhancement of compensation. Since, the OriginalClaimant Shri Chindha s/o Krishna Mang had approached the Petitioner,therefore, the Petitioner put his appearance in said land reference afterobtaining Vakalatnama from him. However, the Petitioner was not made awareabout death of Claimant- Shri Chindha s/o Krishna Mang but later on theAccused No.1 attended the Petitioner time to time. Therefore, the Petitionerpresumed that the Accused No.1 is the Claimant- Shri Chindha s/o KrishnaMang and identified him time to time. However, both the learned Courts belowfailed to appreciate that the Petitioner being a practicing lawyer appeared onbehalf of the Claimant in land acquisition proceeding for enhancement ofcompensation and did not make any pecuniary gain out of enhancedcompensation. Therefore, no sufficient material is produced on record to framethe charge against the Petitioner, hence, prayed for quashing and setting asidethe impugned orders.10.It is further canvassed on behalf of the Petitioner that both theCourts below ought to have considered that the Petitioner being an active andleading legal practitioner in Land Acquisition compensation matters and beinga normal human being, he cannot remember each and every client whoapproach him, therefore, the Petitioner cannot be held liable for anymischievous act done by the Accused No.1. ( 6 ) 901 cri wp 1867.23 11.It is further canvassed that the Petitioner is being subjected to anaction initiated by the concerned Judicial Officer on assumptions andpresumptions, when in fact, the then learned Civil Judge, Senior Division in it’senquiry could have taken into account that the Advocate is not expected toremember identity of each and every client, unless legal heirs of Advocate’sclient approached with specific instructions about death of the Claimant, hence,it is not possible for the practicing lawyer to know about death of his client.However, both the Courts below have failed to consider this aspect of thematter and proceeded to frame the charge, hence, prayed for quashing andsetting aside both the orders.12.It is further canvassed by the learned senior counsel that by nostretch of imagination it can be said that the Petitioner has not filed his say inthe inquiry proceeding and avoided to file reply or the Petitioner has chosen toremain silent. Under these circumstance, it is obligatory on part of the learnedCivil Judge Sr. Dn., to gather information regarding conduct of the Petitionerfrom the record of the proceeding and the Petitioner only acted being a legalpractitioner in good faith. However, merely the Petitioner did not file his reply,it cannot be held that the Petitioner has committed any fraud, mischief uponthe Court and obtained the Judgment in the name of a dead person. ( 7 ) 901 cri wp 1867.23 13.It is further canvassed on behalf of the Petitioner that the Petitionernever assisted or identified the fictitious person namely Sukhdeo Krishna Mangbut the Petitioner has genuinely represented his client in the land referenceproceedings as well as in Execution (Darkhast) proceeding. Therefore, both theCourts below ought to have considered the role played by the Petitioner whileconducting legal proceeding and the Petitioner did not receive any fruits fromthe alleged transaction.14.The learned senior counsel further averred that the learnedRevisional Court has committed a great error in holding that the learnedMagistrate is required to consider the question of framing of charge underSection 245 (1) of the Code of Criminal Procedure, is preliminary one and thetest of "prima facie" has to be applied, when the settled position of law isdefinitely otherwise. The learned Revisional Court has miserably failed toconsider that though the Accused No.1 impersonated himself as Chindha Mangin all the events so happened, the Petitioner had put his signature on variousdocuments being a practicing lawyer, it cannot be said that the Petitioner hascommitted the alleged offences in connivance with the co-accused.15.The learned senior counsel appearing for the Petitioner furthercanvassed that on 12.02.2018, the Single Bench of this Court passed an orderin First Appeal No. 442/2004 and other connected matters and observed that ( 8 ) 901 cri wp 1867.23 “the endorsement of the Registry indicates that the Sole-Respondent hasexpired long ago and that is the reason that no service could ever be effectedupon the said Sole-Respondent. Despite the fact that these appeals are of theyear 2004 but till date no steps have been taken to bring on record the legalrepresentatives of deceased Sole-Respondent. Therefore, the appeals standabated as against the LRs of deceased Sole-Respondent. 16.Therefore, it is submitted that the Petitioner only acted as being acounsel and merely identified the Accused No.1 who impersonated himself asOri. Claimant- Shri Chindha Krishna Mang, hence no offences are constituted.Therefore, material placed on record is not sufficient to frame the charge asagainst the present Petitioner. However, the learned Revisional Court failed toconsider the material available on record and recorded perverse findings,hence, prayed for quashing and setting aside the impugned orders passed byboth the Courts below. 17.Per contra, the learned APP canvassed that the Petitioner has notchallenged the enquiry report submitted by the learned Civil Judge SeniorDivision. As per inquiry report submitted by the learned CJSD, Jalgaon, itclearly shows that the Petitioner acted being a legal practitioner for the accusedNo.1 and recorded his examination-in-chief, signed various documents andwhile conducting the trial he has identified the fictitious person as a genuine ( 9 ) 901 cri wp 1867.23 claimant. The Petitioner also represented the fictitious person in executingproceedings after obtaining award in the name of a deceased person. ThePetitioner helped the Accused No.1 for withdrawal of the compensation amountto defraud the legal heirs of Ori. Claimant by playing fraud on the Court. Soalso, the present Petitioner in furtherance of common intention extended all thehelp to the Accused No.1 for withdrawal of compensation of Rs.98,137/-, forsecuring the Bank Guarantee, for withdrawal of the execution proceedings byfiling pursis as well as for cancellation of the Bank Guarantee. Therefore,material placed on record are sufficient to frame the charge against thePetitioner, hence, prayed for dismissal of the petition.FINDINGS18. Having regard to the rival submissions canvassed on behalf of boththe sides, I have gone through the record. It is a matter record that deceased-Chindha s/o Krishna Mang has filed the LAQ/1985 on account of acquisition ofhis land by the State Government, however, the Claimant was not satisfied withthe compensation awarded to him by the land acquisition officer. Therefore, hepreferred the reference before the Civil Court. It is not in dispute that the landreference was registered with the learned District Judge, Jalgaon videLAR/Miscellaneous Civil Application No.47/1993 on 27.01.1993. The learnedDistrict Judge, Jalgaon, passed an order on 27-1-1993, in L.A.Q./SR.No. HP/32of 1985 (Registered as LAR/Misc. Civil Application No.47/1993) and issued ( 10 ) 901 cri wp 1867.23 notice to the Claimant Shri Chindha s/o Krishna Mang with a direction toproduce 7/12 extract, if any, in respect of the acquired land. The notice wasalso issued to the opponent i.e. Land Acquiring Body. The learned DistrictJudge made over said land reference to the learned 5th Additional DistrictJudge, Jalgaon for disposal according to law. As per order passed by thelearned District Judge, Jalgaon, the Misc. Civil Application No.47/1993 wastransferred to the Court of learned 2nd Jt. C.J.S.D., Jalgaon from the file of thelearned 5th Additional District Judge, Jalgaon. Therefore, said Misc. CivilApplication was registered as LAR No.262/1993, wherein the presentPetitioner/Accused represented the Claimant being a legal practitioner.19. It is also not in dispute that during the pendency of said landreference, the claimant Shri Chindha s/o Krishna Mang died on 22.11.1999,however, no legal heirs of the claimant were brought on record. On face ofrecord, it appears that one Shri Sukhdeo s/o Krishna Suralkar (Mang) i.e. theOri. Accused No.1 impersonated himself to be the original claimant ShriChindha Krishna Mang and entered into the witness box. Therefore, hisevidence came to be recorded on 13.01.2000 under the pretext that he is theOri.Claimant- Chindha Krishna Suralkar (Mang). The Petitioner being aCounsel for the Claimant recorded further examination-in-chief of ShriSukhdeo s/o Krishna Suralkar (Mang). The Accused No.1- Sukhdeo KrishnaSuralkar (Mang) has undergone cross-examination. After evidence is over, on ( 11 ) 901 cri wp 1867.23 13.04.2000, the learned 2nd Jt. C.J.S.D., Jalgaon passed the Judgment andAward and partly allowed the Reference No. LAR 262/1993 and grantedcompensation of Rs.98,137/-. 20.Thereafter, Accused No.1-Sukhdeo Krishna Suralkar (Mang) filedan Execution Darkhast No.562/2001 pretending himself to be the Ori.Claimant- Shri Chindha Krishna Mang. The Petitioner represented the AccusedNo.1 in the Award Execution proceedings being a legal practitioner. TheOri.Accused No.1 Shri Sukhedeo Krishna Suralkar (Mang) put his thumbimpression posing himself to be the Ori.Claimant- Shri Chinda Krishna Mang.and the Petitioner/ Accused No.2 allegedly put his signature certifying that heknows the Accused No.1 as Ori.Claimant- Shri Chinda Krishna Mang. It isfurther evident that during the pendency of execution proceeding, theJudgment Debtor/Land Acquiring Body deposited the entire compensationamount and the Petitioner being a counsel for the claimant moved anapplication and sought permission to withdraw the compensation amount.Accordingly, on 11.02.2022 the learned CJSD, Jalgoan passed an order andpermitted to withdraw the compensation of Rs.98,137/- to the decree holdernamely Chindha Krishna Mang on furnishing Bank Guarantee of a NationalisedBank.
Decision
( 12 ) 901 cri wp 1867.23 21.Needless to say that in compliance of said order, thePetitioner/Accused produced Bank Guarantee of the Nationalised Bank on22.02.2022 in the name of Chindha Krishna Mang (Ori. Claimant). Therefore,amount of compensation was made in the name of Ori.Accused No.1 afterbeing identified by Petitioner as a Counsel. Thereafter, on 04.11.2006, theAccused No.1 had allegedly withdrawn amount of compensation from theWestern Bank by impersonating himself as Chindha Krishna Mang (Ori.Claimant) and allegedly moved an application through the Petitioner(Advocate) for cancellation of Bank Guarantee. Accordingly, the Petitioner filedpursis under his signature before the Executing Court for withdrawal of theexecution proceeding, hence, execution proceeding was disposed of. Therefore,there is presumption that being a counsel the Petitioner received monetarybenefits and acted in collusion of the Accused No.1 and did not disclose fact ofdeath of original claimant to the Court. 22.Further, the execution proceedings bearing Regular DarkhastNo.562/2001 was instituted in the name of Ori.Claimant- Chindha KrishnaMang (Suralkar) and the Accused No.1 pretended himself to be theOri.Claimant- Chindha Krishna Mang (Suralkar) put his thumb impression andthe present Petitioner identified the Accused No.1 as being the Ori.Claimant-Chindha Krishna Mang (Suralkar). The material placed on record as well asthe evidence of CW1 and CW2 recorded by the learned CJM before framing of ( 13 ) 901 cri wp 1867.23 the charge itself suggests that the present Petitioner-Accused played an activerole in adjudicating the land acquisition proceedings before the ReferenceCourt while obtaining the award. So also, the Petitioner played a substantialrole in filing the execution proceedings and withdrawal of the compensationamount by depriving the right of legal heirs of Ori. Claimant as well as byplaying fraud on the Court in the Court proceedings. Since the Petitioner-Accused met the original claimant for the first time, who introduced the fileand executed the Vakalatnama, hence, there is presumption that the Petitionerwas well acquainted with the Ori. Claimant but he again identified fictitiousperson i.e. the Accused No.1. It further appears that the Petitioner accused hasalso gained monetary benefits. 23.Therefore, essential ingredients of Section 406 and 420 read withSection 34 is certainly made out to frame the charge. The material available onrecord is sufficient to presume that the Petitioner/Accused along with theAccused No.1 in connivance with each other have committed the above saidoffences. Therefore, considering the material available on record, the learnedCJM passed the order dated 22.04.2019 and proposed to frame the chargeagainst the Present Petitioner and the Co-Accused.24.Section 240 of the Cr.P.C. provides as under:Framing of Charge – 1. If, upon such consideration, examination, if any, andhearing, the Magistrate is of opinion that there is ground for presuming thatthe accused has committed an offence triable under this Chapter, which such ( 14 ) 901 cri wp 1867.23 Magistrate is competent to try and which, in his opinion, could beadequately punished by him, he shall frame in writing a charge against theaccused.2.The charge shall then be read and explained to the accused, and heshall be asked whether he pleads guilty of the offence charged or claims tobe tried.”Section 245 of the Cr.P.C. provides as under:When accused shall be discharged- 1. If, upon taking all the evidencereferred to in Section 244, the Magistrate considers, for reasons to berecorded, that no case against the accused has been made out which, ifunrebutted, would warrant his conviction, the Magistrate shall dischargehim.2. Nothing in this section shall be deemed to prevent a Magistrate fromdischarging the accused at any previous stage of the case if, for reasons to berecorded by such Magistrate, he considers the charge to be groundless.25.The learned Revisional Court considered the scope of Section 240,245 (1) and 246 of the Cr.P.C. and held about existence of sufficient groundsand material to proceed against the present Petitioner-Accused for the offencepunishable under Section 119, 120, 166, 167, 171, 181, 182, 192, 193, 196,198, 199, 205, 419, 420, 422, 465, 466, 467, 468, 471 read with Section 34and 120-B of the I.P.C. and to frame the charge. Therefore, I do not find thatthe Petitioner has set out substantial grounds to interfere with the findingsrecorded by both the Courts below. Therefore, the present petition isdismissed. Accordingly, Rule is discharged. [Y.G. KHOBRAGADE, J.]mub