2014 ALL MR (Cri) 2979
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
M.L. TAHALIYANI, J.
Ashok s/o. Gajanan Karale Vs. State of Maharashtra & Anr.
Criminal Application (Apl) No.636 of 2013
30th April, 2014
Petitioner Counsel: Shri S.A. CHAUDHARI, Shri ANAND PARCHURE
Respondent Counsel: Shri S.M. BHAGDE
Penal Code (1860), Ss.418, 465, 468, 415, 420, 471 - Forgery and cheating - Proof - Manipulation of certain revenue record and sale of land - Dishonest preparation of false documents to cheat - Revenue proceedings were pending before Sub-Divisional Officer - However, statement made in sale deed showing that no proceedings of any nature, including revenue proceeding was pending in respect of said land - Prima-facie appears that false statement is made dishonestly - Dismissal of revision, held proper. (Paras 6, 9)
JUDGMENT :- Heard learned Counsel Shri S.A. Chaudhari holding for Shri Anand Parchure for the applicant, learned Additional Public Prosecutor Shri S.M. Bhagde for non-applicant No.1 and non-applicant No.2 in person.
3. The applicant is accused in a private Criminal Complaint Case No.59/2009. He is facing trial for the offences punishable under Sections 418, 465 and 468 of the Indian Penal Code. Non-applicant No.2 Manda Thorat had filed complaint against the applicant for the offences punishable under Sections 415, 420, 468 and 471 of the Indian Penal Code. It appears that complaint was sent to police for investigation under Section 156(3) of the Criminal Procedure Code. The police, after investigation, had submitted "C" summary report. The learned Magistrate did not accept the report and proceeded further to record statement of non-applicant No.2 on oath. Statement of non-applicant No.2 was recorded on oath and process for the offences punishable under Sections 418, 465 and 468 was issued against the applicant.
5. Before I advert to the contentions of rival parties, it is necessary to state, in brief, the facts which gave rise to the complaint filed by non-applicant No.2. It was the case of non-applicant No.2 before the trial Court that non-applicant No.2 and her mother were owners of the land situated at Shegaon, Gat No.251/1, Subdivision No. 1, admeasuring 1 Hectare 27 R. The applicant is cousin of non-applicant No.2. It is alleged that the applicant had manipulated certain records and got the above stated land recorded in his name in the revenue record. Non-applicant No.2 has challenged the mutation by way of filing a revenue appeal, which is pending before the SubDivisional Officer, At Khamgaon. In the meantime, the applicant had sold the above stated land by two separate saledeeds dated 23-6-2009 and 24-6-2009. The allegations against the applicant are that he made false statement in both the saledeeds that no litigation of any nature including the litigation before the revenue authorities was pending in respect of the said land. The grievance of non-applicant No.2 is that the applicant had dishonestly prepared a false document and had committed offence of forgery. The said offence of forgery has been committed in order to cheat the non-applicant No.2. The learned Magistrate in his order has rejected the contention of non-applicant No.2 that offences punishable under Sections 420 and 471 of the Indian Penal Code were also committed. He however was of the view that there was sufficient material to issue process for the offences punishable under Section 418, 465 and 468 of the Indian Penal Code. As already stated, the revision application has been dismissed.
6. It is admitted position that the land in question has been sold by the applicant. Whether the land belongs to the applicant or non-applicant No.2 is not the issue before this Court. The issue before the trial Court as well as before this Court in the present application is as to whether the applicant had dishonestly prepared a false document or not and that too in order to commit an offence of cheating. Since the revenue proceedings were pending before the SubDivisional Officer in a revenue appeal, the applicant could not have made a statement in the saledeeds that no proceedings of any nature including revenue proceedings were pending in respect of the land. As such prima facie the applicant had made a false statement. From the allegations made against the applicant in the First Information Report, it appears that the false statement was made dishonestly.
7. 'Forgery' has been defined under Section 463 of the Indian Penal Code and 'making a false document' has been defined under Section 464 of the Indian Penal Code. Section 464 of the Indian Penal Code runs as under :-
"464. Making a false document - A person is said to make a false document or false electronic record-
First - Who dishonestly or fraudulently :-
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record ;
(c) affixes any electronic signature on any electronic record ;
(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature,
with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed executed, transmitted or affixed by or by any authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or
9. The offence of forgery is punishable under Section 465 of the Indian Penal Code. Section 468 of the Indian Penal Code punishes offence of forgery committed with an intention that the same shall be used for the purpose of cheating. Prima facie there are ingredients of the offences punishable under Sections 465, 468 as well as Section 418 of the Indian Penal Code. I, therefore, do not find anything wrong in the order of the learned Magistrate. The revision application has been rightly dismissed. It follows that the present application will have to be dismissed.