Criminal Revision Application No. 16 of 2013

6th May, 2013

Petitioner Counsel: Mr. N.C. SWAMI
Respondent Counsel: Mr. V.G. SHELKE, Mr. U.S. MALTE

Cases Cited:
Narayandas s/o. Hiralalji Sarda & Ors. Vs. State of Maharashtra & Anr., 2008 ALL MR (Cri) 2737 [Para 4]
Col. B.S. Khatri Vs. State of Maharashtra & Anr., 2003 ALL MR (Cri) 1925 [Para 4]
Father Thomas Vs. State of U.P. and Anr., 2011 CRI. L.J. 2278 [Para 4]
Central Bureau of Investigation and Another Vs. Rajesh Gandhi and another, AIR 1997 SC 93 [Para 4]
Dilip s/o. Ramrao Khedkar & Ors. Vs. State of Maharashtra and Anr., 2012 ALL MR (Cri) 3095 [Para 4]
Rajendra Ramlal Jaiswal and Ors. Vs. State of Maharashtra and Anr., 2011 ALL MR (Cri) 3107 [Para 4]
Rasiklal Dalpatram Thakkar Vs. State of Gujarat and others, 2010 ALL MR (Cri) 342 (S.C.)=2010 (1) Mh. L.J. (Cri.) 204 [Para 6]

JUDGMENT

JUDGMENT :- Admit. The matter was heard finally by consent of both the sides. Revision is filed to challenge the judgment and order of Sessions Court, Nanded, delivered in Criminal Revision No. 110 of 2012. This revision was filed by the respondent No. 2 against the order made by Judicial Magistrate, First Class under section 156 (3) of Criminal Procedure Code. In a private complaint filed by petitioner for offence punishable under section 420, 467, 468 and 471 of Indian Penal Code, aforesaid order is made by J.M.F.C., Nanded.

2. The complainant/petitioner is member of Druggist and Chemist Association, Nanded. Non applicant is in service of Foods and Drugs Office, Nanded. There are allegations made against the accused by petitioner that for getting job in the aforesaid office, the accused created forged experience certificates. It is contended that when one lab which was under control of Sunita Warang had already surrendered the licence, the experience certificate was obtained from Sunita Warang by the accused to show that he was working therein from 1997 to 2003. It is contended that another certificate obtained from Government Medical College, Dhule in respect of year 1996 to 2000 is also forged one and one more forged certificate was also obtained from B.J. Medical College. It is contended that during this period the accused was receiving education and so, there was no question of his employment at other place. It is contended that by using false certificate of experience, the accused got employment in Food and Drugs Department and he has been working at Nanded.

3. The private complaint was filed in the Court of J.M.F.C., Nanded and after considering aforesaid allegations, the order under section 156 (3) came to be made. The Sessions Court has held that the J.M.F.C., Nanded has no jurisdiction as the forgery has taken place at different places like Dhule, Pune, Jejuri etc. The Sessions Court has directed to return the complaint to the complainant for presenting before the appropriate Court. The order made under section 156 (3) of Criminal Procedure Code is set aside by the Sessions Court.

4. This Court has gone through the following cases :-

(i) 2008 ALL MR (Cri) 2737 (Narayandas s/o. Hiralalji Sarda & Ors. Vs. State of Maharashtra & Anr.

(ii) 2003 ALL MR (Cri) 1925 (Col. B.S. Khatri Vs. State of Maharashtra & Anr.)

This Court held that the revision against the order made under section 156 (3) of Cr.P.C. is tenable. On this point the learned counsel for the petitioner relied on the case reported as 2011 CRI.L.J. 2278 Allahabad High Court (Father Thomas Vs. State of U.P. and Anr.). The High Court was discussing the locus standi of the accused to challenge the order made under section 156 (3) of Cr.P.C. The High Court has also held that such order is interlocutory order and revision is barred against such order under section 397 of Cr.P.C. As there are aforesaid two cases of this High Court, the contentions made on this point for petitioner cannot be accepted on the basis of case of Allahabad High Court. Some of the cases were cited on the point of locus standi, which are as under :-

(i) AIR 1997 SC 93 (Central Bureau of Investigation and Another Vs. Rajesh Gandhi and another),

(ii) 2012 ALL MR (Cri) 3095 (Dilip s/o. Ramrao Khedkar & Ors. Vs. State of Maharashtra and Anr.),

(iii) 2011 ALL MR (Cri) 3107 Bombay High Court [Nagpur Bench] (Rajendra Ramlal Jaiswal and Ors. Vs. State of Maharashtra and Anr.).

5. In the present case, the point of jurisdiction is involved and in aforesaid cases, it is held that revision is tenable. In view of these circumstances, this Court holds that the point of locus standi need not be considered.

6. For the petitioner, reliance was placed on the case reported as 2010 (1) Mh.L.J. (Cri.) 204 : [2010 ALL MR (Cri) 342 (S.C.)] [Supreme Court] (Rasiklal Dalpatram Thakkar Vs. State of Gujarat and others). The Apex Court has made following observations :-

"Section 156 (3) contemplates a stage where the Magistrate is not convinced as to whether process should issue on the facts disclosed in the complaint. Once the facts are received, it is for the Magistrate to decide his course of action. The investigation agency was required to place the facts elicited during the investigation before the Court in order to enable the Court to come to a conclusion as to whether it had jurisdiction to entertain the complaint or not. Without conducting such an investigation, it was improper on the part of the investigating agency to forward its report with the observation that since the entire cause of action for the alleged offence had purportedly arisen in the city of Mumbai within the State of Maharashtra, the investigation should be transferred to the police station concerned in Mumbai. In this case, there are materials to show that the appellant had filed his application for loan with the Head Office of the Bank of Ahmedabad and that the processing and the sanction of the loan was also done in Ahmedbad which clearly indicates that the major part of the cause of action for the complaints arose within the jurisdiction of the Chief Metropolitan Magistrate, Ahmedabad. It was not, therefore, desirable on the part of the investigating agency to make an observation that it did not have territorial jurisdiction to proceed with the investigation, which was required to be transferred to the police station having jurisdiction to do so. On the materials before him the Magistrate was fully justified in rejecting the final report submitted by the Economic Offences Wing, State CID (Crime) and to order a fresh investigation into the allegations made on behalf of the Bank. The High Court, therefore, did not commit any error in upholding the views expressed by the trial Court."

These observations also support the petitioner.

7. It is not disputed that the accused was selected through selection process conducted by the Maharashtra Public Service Commission (MPSC). MPSC only prepares list of selected candidates and then concern department makes distribution of the candidates to various districts. When posting is made along with order of posting, the relevant papers are sent to the concern district. In view of these circumstances, this Court holds that when the person like accused joins the duty at the posting, the offence of cheating is completed. Thus, if there is offence of forgery committed and by using forged documents, Government department is cheated, the office from Nanded can take action. As it can be treated that the offence was completed at Nanded, the Court from Nanded can have jurisdiction to take cognizance of said offence. In view of these circumstances, this Court holds that the Sessions Court has committed error in setting aside the order made by the J.M.F.C. Such order cannot sustain in law. So the following order :-

ORDER

(I) Criminal Revision Application is allowed.

(II) Judgment and order of Sessions Court, Nanded delivered in Criminal Revision No. 110 of 2012 is hereby set aside.

(III) The order of J.M.F.C., Nanded made in OMCA No. 409 of 2012 is restored.

(IV) Time of eight weeks is given to respondent/accused and till that time is over, the order of J.M.F.C. will stand stayed.

Application allowed.