2013 ALL MR (Cri) 2395
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
M.L. TAHALIYANI, J.
Bank Of Baroda Vs. Dnyandeo Sadashiv Gawande & Ors.
Criminal Writ Petition No.118 of 2013
29th April, 2013
Petitioner Counsel: Shri C.S. SAMUDRA
Respondent Counsel: Shri H.R. GADHIA, Shri A.S. FULZELE
Penal Code (1860), Ss.420, 468, 471, 34 - Forgery and cheating - Prima facie case for offences - Property already mortgaged with one bank mortgaged with another bank for loan - Forged document used as genuine document - No material on record to show that the property was free from encumbrances when loan obtained - Order directing issuance of process against respondents by Magistrate would be proper and should be restored. (Paras 5, 6)
JUDGMENT :- Heard learned Counsel Shri C.S. Samudra for the petitioner, learned Counsel Shri H.R. Gadhia for respondent Nos.1 and 2 and learned Additional Public Prosecutor Shri A.S. Fulzele for respondent No.3.
3. Respondent Nos.1 and 2 were summoned by the learned Magistrate to answer the charge for the offences punishable under Sections 420, 468 and 471 read with Section 34 of the Indian Penal Code. It was alleged by the petitioner Bank of Baroda, Akola Branch that respondent Nos.1 and 2 had taken loan from the bank to the tune of Rs.15,00,000/- by mortgaging the property, which was already mortgaged to Akola Urban Co-operative Bank, A.P.M.C. Branch, Akola. The learned Magistrate after hearing the petitioner found prima facie case for the offences of forgery and cheating. He also found prima facie case of using forged document as genuine document and accordingly issued process.
4. The said order of the learned Magistrate was challenged before the Sessions Court in a revision petition filed by respondent Nos.1 and 2. The Sessions Court while deciding the revision petition came to the conclusion that there was no prima facie material on record to issue process. The revision petition was, therefore, allowed. The order directing issuance of process against respondent Nos.1 and 2 passed by the learned Magistrate was set aside.
5. Learned Counsel Shri C.S. Samudra has submitted that it is admitted by respondent Nos.1 and 2 in the letter addressed to the bank, a copy of which is enclosed to the petition at Page No.39, that they had committed a mistake by not disclosing the fact that the property in question was already mortgaged to Akola Urban Co-operative Bank. It is submitted by Shri C.S. Samudra that there was strong prima facie case against respondent Nos.1 and 2 and that the learned Magistrate was absolutely right inasmuch as the process had been issued on the basis of strong material.
6. Learned Counsel Shri H.R. Gadhia for respondent Nos.1 and 2 has submitted that the process of the court is being used by the petitioner to recover the loan amount. It is submitted by Shri H.R. Gadhia that the property was earlier mortgaged to Akola Urban Co-operative Bank but it was later on freed from encumbrances. This fact has been disputed by the petitioner. Learned Counsel Shri H.R. Gadhia is not able to place on record the material to show that the property was free from encumbrances when the loan was obtained from the petitioner by mortgaging the same property. This is a crucial question of fact which can be decided by the trial Court. At the same time, the trial Court will have to decide whether there was an element of dishonesty or not. In my considered opinion, the Additional Sessions Judge has committed mistake by setting aside the order issued by the learned Magistrate. The writ petition is, therefore, allowed. The order passed by the learned Additional Sessions Judge is set aside. The order passed by the learned Magistrate is restored. The parties are directed to appear before the learned Magistrate on 10th July, 2013.
Rule is made absolute in the above terms.