Criminal Application No. 3584 of 2006,Criminal Application No. 3585 of 2006

6th May, 2008

Petitioner Counsel: Mr. V. N. DAMLE, Mr. A. H. KAPADIA, Mr. HEMANT KUMAR PAWAR
Respondent Counsel: Mr. UMAKANT PATIL,Mr. S. K. KULKARNI

Cases Cited:
Central Bureau of Investigation Vs. Ravi Shankar Srivastava, IAS, AIR 2006 SC 2872 [Para 12]
State of Madhya Pradesh Vs. Awadh Kishore Gupta, 2004 ALL MR (Cri) 824 (S.C.)=2003 AIR SCW 6501 [Para 13]
Shiva Nath Prasad Vs. State of West Bengal, 2006 ALL MR (Cri) 1472 (S.C.)=2006 AIR SCW 828 [Para 13]
Som Mittal Vs. Government of Karnataka, 2008 AIR SCW 1640 [Para 13]
Abasaheb Yadav Honmane Vs. State of Maharashtra, 2008 ALL MR (Cri) 952 (F.B.)=2008(2) Mh.L.J. 856 [Para 14]
M/s. Suryalakshmi Cotton Mills Ltd. Vs. M/s. Rajvir Industries Ltd., 2008 ALL MR (Cri) 1422 (S.C.)=2008 AIR SCW 1956 [Para 14]
Raj Kishor Roy Vs. Kamleshwar Pandey, (2002)6 SCC 543 [Para 15]
Sardool Singh Vs. Smt. Nasib Kaur, 1987 (Supp) Supreme Court 146 [Para 15]
Indian Oil Corportion Vs. NEPC India Ltd., (2006)6 SCC 736 [Para 16]

JUDGMENT

JUDGMENT :- Both these applications filed U/s.482 of the Cr.P.C. are being disposed of together. For, they arise out of same set of fact situation. The applicants seek quashing of F.I.R. dated 14.6.2004 and consequent proceedings initiated by Respondent No.4 at Vazirabad Police Station, Nanded, on the basis of which Crime No.128/2004 is registered against them for offence U/ss.420, 463, 468 and 471 read with Section 34 of the I.P.C..

2. The Respondent No.4 (Yeshwant) lodged F.I.R. against the applicants and T.I.L.R., namely, Shri. P. N. Zalke, alleging that they prepared false and collusive record purporting to indicate ownership of CTS No.2671 with applicant Bakshisingh. There is no dispute about the fact that complainant Yeshwant is owner of property bearing CTS No.2675. The applicant Bakshising owns land which originally bore S. No.11. According to the complainant, land S. No.11 was not divided at any point of time. He alleged that Bakshising, in collusion with the T.I.L.R. and other two officials - Amarsing Kamthekar and Mohd. Nawazkhan, falsely manipulated entries in the City Survey record to show that S. No.11 was divided into two parts. They falsely entered a part of CTS No.2675 owned by the complainant as CTS No.2671 showing that it was S.No.11/2 and originally a part of S. No.11. They attempted to grab the said property shown as CTS No.2671 by preparing forged, false and fabricated City Survey record. Thus, they attempted to divest him of a part of his property bearing CTS No.2675. The case of Bakshising, on the other hand, is that original S.No.11 was divided into two parts, namely S.No.11 and S.No.11/2 (present CTS No.2671). He would submit that the property bearing CTS No.2671 was never part and parcel of CTS No.2675 owned by the complainant. His case is that originally S. No.11 bore S. No.9/5. The ownership of his grand father for S. No.9/5 was judicially recognised by the High Court of Hyderabad in S.A. No.649/1366 F. (1946). He asserted that a tonch map was prepared in 1334 F. (1924 A.D.) wherein S. No.11/1 and S.No.11/2 have been separately shown and demarcated. Thus, according to applicant Bakshisingh, the Respondent No.4 filed a false and mischievous complaint with oblique intention to harass him and the Government officials. Consequently, he urged to quash the F.I.R. and the incidental proceedings arising therefrom.

3. The applicants - Amarsingh and another were the surveyors attached to the City Survey Office, Nanded. They would submit that false complaint is lodged by the Respondent No.4 with ulterior motive to grab a part of S. No.11 which is not owned by him. They would further submit that Sanad is issued in favour of applicant Bakshisingh (accused No.4) in respect of the property bearing CTS No.2671 as per the record available with the Office. They would submit that his predecessor's name was shown in the P.R. card and the Respondent No.4 (complainant - Yeshwant) was well aware of such a fact. They would further submit that they were not officiating in the City Survey Office, Nanded when the process of City Survey was initiated in 1976 till it was completed in 1979. They alleged that sanction to their prosecution is issued by Shri. Sewa Jummaji Sontakke, Deputy Director of Land Records, Aurangabad, without application of mind and is illegal since previous sanction dated 6.5.2006 was issued by the then Deputy Director of Land Records only against other two employees by name Shri. Choundekar and Shri. Qadar. They would submit that they are not at all responsible for the entries in question and the charges levelled against them are unfounded. Consequently, both of them would submit that the Criminal prosecution against them would amount to abuse of process of law. Hence, the application.

4. Heard learned advocates for the parties and learned A.P.P. It appears that the charge-sheet is filed by the Police against the applicants and the T.I.L.R. Shri. P. N. Zalke.

5. Mr. Damle, learned advocate for applicant Bakshisingh would submit that there is no prima facie evidence to show that the property recorded as CTS No.2671 was part of Gauthan land at any point of time. He would point out that the complainant claims the property as plot of Gauthan land allotted to his predecessor. He would point out from tonch map that S. No.11 was divided in two parts as S. No.11/1 and S. No.11/2. He would point out further that the complainant came to know in 1989 as regards the entries which were recorded in City Survey map and record. Mr. Damle, would submit that the complainant tampered with the record and prepared false map of CTS No.2675 to suit his purpose for filing of the F.I.R. He would submit that when the revenue authorities got rectified the error, on application of applicant Bakshisingh, the complainant lodged false F.I.R. alleging that it was a forgery committed by the City Survey officials and Bakshisingh. He would submit that the complainant could not show how his title to the extent of 1960 Sq. M. of land is derived from any lawful source. Mr. Damle, would further submit that there is no iota of evidence regarding preparation of false and forged record, yet, applicant Bakshisingh is likely to be harassed and humiliated due to the prosecution. His contention is that even assuming that there is Civil dispute as regards the ownership of property marked as CTS No.2671 then also the Criminal prosecution is unsustainable. He contended that the F.I.R. has been lodged by the Respondent No.4 with malafide intention to abuse the process of law. Hence, he urged to quash the F.I.R. Mr. Kapadia, learned advocate appearing for other two applicants, would submit that both the applicants have not prepared the record of the City Survey. He would submit that role of the applicants - Amarsingh and another is only to prepare a copy of the Sanad as directed by the T.I.L.R. He would submit that the T.I.L.R. got changed the record and restored original position and thereafter the copy was applied for, which was prepared by the applicants Amarsingh and another. So, neither of them is concerned with fabrication of any document and their prosecution would amount to abuse of the process of law. He contended that the complainant never alleged that area of CTS No.2675 was reduced and, therefore, he was put to any loss as such. Consequently, he urged to quash the proceedings against applicants (Amarsingh and another).

6. Per contra, Mr. Umakant Patil, learned A.P.P. for the State and Mr. Kulkarni, for the Respondent No.4 (complainant) would submit that the investigation carried out in pursuance to the F.I.R. has sufficiently brought on surface, material to infer culpability of the applicants. They would submit that the F.I.R. and the prosecution arising therefrom cannot be quashed at the premature stage. They would further submit that even though, the applicants claim that there is Civil dispute as regards ownership of property bearing CTS No.2671, yet, the Criminal prosecution cannot be stifled when fabrication of the record is prima facie proved during the inquiry held by competent City Survey authorities. Hence, they urge to dismiss both the applications.

7. At the threshold, it is worthwhile to note that there are two sets of documents. One set of document prima facie corroborates case of the complainant (Respondent No.4 - Yeshwant). It can be gathered on perusal of the copies of the documents annexed with the charge-sheet that CTS No.2671 was never entered into the concerned City Survey record as a separate property. This fact is conspicuous from omission of any entry pertaining to CTS No.2671 in the copy of Demand Register (P-18). In between entries of CTS No.2670 and 2672, there was only a blank space. It appears that subsequently entry of CTS No.2671 was interpolated in the Demand Register. Copy of letter dated 29.5.2004 issued by the Tahsil Office, Nanded, prima facie, shows that agricultural land bearing S. No.11 was never divided into separate shares (Pot-hissas). It also appears that an inquiry was conducted by the Deputy Director of Land Records, Aurangabad, into the complaint of the complainant (Yeshwant). The inquiry also revealed that property bearing CTS No.2671 did not exist. It also appears that original tonch map did not show any sub-division as S. No.11/2 being situated over and above S. No.11/1. As against this, copy of tonch map of year 1334 F. (P-49) relied upon by the applicants show that in the north-west corner over S.No.11/1 a part is shown as the property situated on southern side of Gurudwara. The applicants have produced certain documentary evidence to show that claim of the complainant in respect of the property marked CTS No.2671 is incorrect.

8. I have carefully perused the investigation papers appearing from the charge-sheet. The charge-sheet is not based on mere documentary evidence. Copy of affidavit dated 11.12.2002 reveals that applicant Bakshisingh sought mutation of his name as owner of CTS No.2671 as legal heir of his mother. Thereafter his name was mutated as owner of CTS No.2671. The record shows that the complainant (Yeshwant) owns property bearing CTS No.2675. According to him, the disputed property is part and parcel of Gauthan land and a small parcel of land S. No.11. He did not produce any record to prove his concern with S. No.11. He has produced copy of the Sanad (P-39). It is manifest that he and his brothers are owners of CTS No.2675 consisting of 479.1 Sq. mts. It is his contention that the property bearing CTS No.2671 is part and parcel of CTS No.2675 owned by him and has been fraudulently earmarked as CTS No.2671.

9. The clinching question is whether there is prima facie evidence to infer preparation of false record in respect of CTS No.2671 which is shown against name of applicant Bakshisingh. If it is so then whether all the applicants are jointly and severally responsible, prima facie, for the fabrication of such record. There is statement of P.W. Venkatrao Methe, who was attached to the City Survey Office between 1966 till 2000 as T.I.L.R. His version reveals that original map of 1334 F. (1924 A.D.) of the properties situated at Nanded had become old. Therefore, a new map was traced on the basis of old map. The old map and the new map did not indicate any subdivision of S. No.11. His version shows, prima facie, that a square was subsequently interpolated over and above S. No.11/1 and was earmarked as S. No.11/2. His version shows that the interpolation was prima facie effected at instance of applicant Bakshisingh and, therefore, the then T.I.L.R. Shri. P. N. Zalke was suspended. It is his guess work that the other two employees might have erased and interpolated some entries in the City Survey record to favour applicant Bakshisingh. Similarly, P.W. Vinod Singewar, P.W. Purshottam Naikwade and P.W. Jagannath Choundekar have stated in their Police statements that the City Survey map was interpolated to add a square - like portion above S. No.11/2 and false record was prepared in respect of CTS No.2671 with a view to assist applicant Bakshisingh in order to grab the said property. Their Police statements further show that original record of the City Survey was called for by T.I.L.R. Shri. P. N.Zalke on 1.2.2003. The Police statement of Abdul Qadar Mohd. Ibrahim shows that the original record was with the T.I.L.R. Shri. P. N. Zalke till 15.2.2003. According to the witnesses, who are employees of the City Survey Office, Shri. P. N. Zalke might have interpolated the original tonch map of Nanded City, when he was in possession of the original record.

10. Though the allegations in the investigation papers go to show that the other employees might have actively assisted Shri. P. N. Zalke, T.I.L.R., yet, there appears no tangible evidence to infer that the two applicants, namely Amarsingh Kamthekar and Mohd.Nawazkhan, in fact, committed any forgery. There is no prima facie evidence to show that they interpolated the square like portion above S. No.11/1 in the tonch map while tracing new copy on the basis of old map or subsequently at any point of time. The documents on record do not show who actually committed the fabrication of the record. Both the applicants appear to have been charge-sheeted on the basis of strong suspicion against them because they were employees attached to the City Survey office and that they issued relevant copies of the alleged fabricated tonch map and the Sanad of CTS No.2671. They are facing Departmental action on the charges of dereliction in duty and misconduct. The said charges in the Departmental Inquiry may or may not be proved. The subject of Departmental Inquiry against them is altogether different. However, the charge-sheet against them in the Criminal case must be filed on the basis of some material which would spell out their criminal liability. The material collected against them ought to be of such nature which would indicate, prima facie, their complicity in the offence of forgery, preparation of false record and intentional participation in such acts. The Police statements of above referred witnesses do not show, in any manner, as to how applicants Amarsingh Kamthekar and Mohd.Nawazkhan can be made criminally liable to face the charge of fabrication of the documents, forgery and cheating.

11. So far as applicant Bakshisingh is concerned, he is beneficiary of the alleged false entries in the CTS record. He is said to have manipulated the false record with the help of the T.I.L.R. Shri. P. N. Zalke. As stated before, application of Shri. P. N. Zalke, for quashing of the F.I.R. has been dismissed by learned Single Judge of this Court (Kukday, J.). The Police investigation has brought on surface some material to infer manipulation, fabrication and preparation of false record in respect of CTS No.2671 by the T.I.L.R. Shri. P. N. Zalke with oblique intention to bestow title thereof on applicant Bakshisingh. It is true, no doubt, that Bakshisingh has produced some copies of documents which also prima facie show that his claim is based on old documents. Still, however, this is not a stage to scrutinise the evidence of both the sides. The applicant - Bakshisingh cannot claim quashing of the F.I.R. against him on strength of probability of his defence having grain of truth. It is well settled that defence of accused cannot be examined at such a premature stage. The only exercise to be undertaken is to oversee whether the prosecution initiated against the accused is totally unfounded or that there is "some material" to infer the complicity.

12. Mr. Damle, would submit that the F.I.R. lodged by the complainant (Yeshwant) is malafide. He would submit that the purpose of the Criminal prosecution is only to harass applicant Bakshisingh in order to force him to give up the claim for CTS No.2671. He contended that such malafide proceedings may not be allowed to go on since it would amount to abuse of the process of law. I find it difficult to countenance such arguments of Mr.Damle. In "Central Bureau of Investigation Vs. Ravi Shankar Srivastava, IAS and another" (AIR 2006 Supreme Court 2872), the Apex Court held that in the exercise of inherent powers, in an inquiry, whether evidence adduced is reliable or not is outside the pale of Section 482 of the Cr.P.C. It is observed :

"As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material."

The Apex Court further observed :

"When an information is lodged at the Police Station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings."

13. In "State of Madhya Pradesh Vs. Awadh Kishore Gupta and others" (2003 AIR SCW 6501 : 2004 ALL MR (Cri) 824 (S.C.)), the Apex Court held that in exercise of inherent powers, High Court cannot appreciate evidence to conclude whether materials produced are sufficient or not for convicting the accused. In "Shiva Nath Prasad Vs. State of West Bengal and others" (2006 AIR SCW 828 : 2006 ALL MR (Cri) 1472 (S.C.)), the Apex Court held that a complaint cannot be dismissed at initial stage merely on ground of alleged mala fides of the complainant. The Apex Court in "Som Mittal Vs. Government of Karnataka" (2008 AIR SCW 1640), explained the expression "sparingly, with circumspection and in rarest of rare cases" in relation to exercise of inherent powers U/s.482 of the Cr.P.C. The Apex Court observed :

"7. When Sema, J. observed that the power under Section 482, Cr.P.C. was to be used 'sparingly, with circumspection and in rarest of rate cases', he did not lay down any new proposition of law, but was merely reiterating what was stated by this Court in several cases, including Kurukshetra University Vs. State of Haryana, 1977(4) SCC 451 and State of Haryana Vs. Bhajan Lal (1992 Supp [1] SCC 335). In Kurukshetra University (supra), this Court observed "that the statutory power under Section 482 has to be exercised sparingly with circumspection and "in rarest of rate cases". In Bhajan Lal, this Court reiterated the word of caution that the power of quashing a criminal proceeding should be exercised "very sparingly and with circumspection and that too in the rares of rare cases". It may not therefore be correct to say that the words 'rarest of rate cases' are appropriate only when considering death sentence for an offence under Section 302, IPC or that those words are inappropriate when referring to the ambit of the power to be exercised under Section 482, Cr.P.C.."

14. Full Bench of this Court in "Abasaheb Yadav Honmane Vs. State of Maharashtra" 2008(2) Mh.L.J. 856 : [2008 ALL MR (Cri) 952 (F.B.)], dealt with the parameters available for the exercise of inherent powers U/s.482 of the Cr.P.C. The Full Bench took survey of a catena of case law and elaborately laid down various yardsticks to be applied while exercising the inherent powers U/s.482 of the Cr.P.C.. The learned Chief Justice (Swatanter Kumar, C.J.) speaking for the Bench held that inherent powers of the High Court are not unlimited. It is observed that such power should be used only when a clear case for quashing is made out and failure to interfere would lead to miscarriage of justice. The Apex Court in "M/s. Suryalakshmi Cotton Mills Ltd. Vs. M/s. Rajvir Industries Ltd. and others" (2008 AIR SCW 1956 : 2008 ALL MR (Cri) 1422 (S.C.)), observed that questions of fact or of credibility of defence should not be ordinarily considered by the High Court while exercising powers U/s.482 of the Cr.P.C. Though, some times there may appear Civil dispute, yet, that itself cannot be a ground to stifle the prosecution. The Apex Court observed:

"18. Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of the process of Court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal namely to force the accused to pay the amount due to the complainant immediately. The Courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The Courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable."

15. Mr. Kapadia, learned advocate pointed out that initially the sanction to prosecution against applicants Amarsingh Kamthekar and Mohd.Nawazkhan was withheld. He would point out that all of a sudden such permission U/s.197 of the Cr.P.C. is accorded by the Deputy Director of Land Records. It appears that a Confidential report dated 1.12.2005 was submitted by the Superintendent of Land Records, Nanded vide letter bearing No........ dt.1.12.2005 to the effect that the applicants Amarsingh Kamthekar and Mohd.Nawazkhan were not responsible for the fabrication or interpolation of the record in the office of the T.I.L.R. The sanction order issued by the Deputy Director of Land Records on 3l.7.2007 reveals that he did not verify the fact situation and readily accepted the explanation that names of these applicants were erroneously dropped in the previous report of the Superintendent of Land Records. As stated before, they are not shown to be prima facie concerned with the interpolation of the records. Therefore, the sanction order could not be issued against them and if at all it is issued then also it is not a legal impediment in exercise of powers U/s.482 of the Cr.P.C. It may be mentioned that Mr. Kulkarni, referred to "Raj Kishor Roy Vs. Kamleshwar Pandey and another" (2002)6 Supreme Court Cases 543. The Apex Court in the given case held that in certain cases, depending on the nature of the acts complained of, the complaint cannot be quashed at the initial stage itself. It is observed that question of sanction can be raised at any time after the cognizance of offence may be taken, may be even at the time of conclusion of trial. With due respect, it may be made clear that in the present case the F.I.R. and charge-sheet against Amarsing Kamthekar and Mohd. Nawazkhan are not being quashed only on the ground of improper sanction or absence of sanction U/s.197 of the Cr.P.C.. I find no material available on record to say that the charge-sheet for commission of offences alleged against them would stick to them in any manner. Mr. Kapadia, referred to case of "Sardool Singh and another Vs. Smt. Nasib Kaur" 1987 (Supp) Supreme Court 146. In the given case, it is observed that when the question regarding validity of Will is subjudice, Criminal prosecution on the allegation of Will being a forged one, cannot be instituted.

16. There are cases and cases. The fact situation of each case need to be examined before applying parameters which are laid down by the Apex Court for exercising the inherent powers U/s.482 of the Cr.P.C. These parameters are set out in "Indian Oil Corportion Vs. NEPC India Ltd. and others" (2006)6 SCC 736. The Supreme Court culled out the principles as follows :

"(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.

For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.

(ii) A complaint may also be quashed where it is a clear abuse of the process of the Court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.

(iii) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.

(v) A given set of facts may make out :

(a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not."

17. In the present case, there is prima facie evidence collected by the Investigating Officer to show that the original record regarding property bearing CTS No.2671 is interpolated and tampered with. There is prima facie evidence to show that applicant Bakshisingh and the T.I.L.R. (Shri. P. N. Zalke) fabricated such false record in order to grab the property. Whether it is a part and parcel of CTS No.2675 or not is not the prime question involved. The complainant (Yeshwant) may or may not be the owner and title holder of the said property. His claim will be considered in the civil proceedings. The fact remains however, that there is change caused in the record of the City Survey while preparing a new map on the basis of old tonch map of the Nanded city. Thereafter, entry in the name of applicant Bakshisingh, was, prima facie, inserted in the blank space against CTS No.2671. These are tale telling pieces of documentary evidence. Hence, the prosecution against applicant Bakshisingh cannot be quashed. Still, however, the prosecution against applicants Amarsingh Kamthekar and Mohd.Nawazkhan is destitute of tangible material to infer their complicity and connivance with the T.I.L.R. Shri. Zalke. Their application for quashing of the F.I.R. and charge-sheet filed against them, therefore, succeeds.

18. In the result, Criminal Application No.3585/2006 filed by Amarsingh s/o. Shersingh Kamthekar and Mohd. Nawazkhan s/o. Maheboobkhan is allowed. The F.I.R. and the charge-sheet filed against them arising out Crime No.128/2004 is quashed. The Criminal Application No.3584/2006 filed by applicant Bakshisingh s/o. Sahelsingh is dismissed.

Ordered accordingly.