Criminal Writ Petition No. 4382 of 2012

20th August, 2013

Petitioner Counsel: Mr. SATISH MANE-SHINDE, Mr. SADANAND SHETTY
Respondent Counsel: Ms. SANDANE VELKAR, Ms. A.T. JAVERI

JUDGMENT

JUDGMENT :- Rule, returnable forthwith. By consent heard forthwith finally.

2. The petitioner herein is the complainant in Criminal Complaint No.1641/P/2000 pending before the Metropolitan Magistrate, 19th Court, Esplanade, Mumbai. It is the case of the petitioner that the petitioner is the tenant in Tejkiran Building. It had taken a godown on rent from the landlord vide letter dated 29.8.1969. Subsequently, the company became a tenant of the said premises. The petitioner had entered into an agreement with M/s. Keshavlal R. Shah on 9.10.1969. The petitioner was paying the rent of Rs.1850/- per month. In the year 1981, the tenants of the said building had formed a Co-operative Housing Society which was registered under the Societies Registration Act. The petitioner had expressed its desire to become the member of the said Society and further that they would buy the said premises since they were occupying the same since August 1969. The members of the Society in the Annual General Meeting held on 8.8.1986 had intimated the petitioner as a member of the Society. The share certificates were issued in favour of the petitioner and as a member, the petitioner was paying the maintenance charges as well as allied charges to the Society. By a letter dated 22.4.1983, it was agreed that in case the petitioner becomes the owner of the said plot, the Society would transfer all the rights of ownership. The accused No.1 was working as an Administrative Officer in the Company from October, 1977 to 1984 and, therefore, it was permitted to use part of the said premises. The present respondent No.2 had joined the petitioner as an accountant and was later appointed as Deputy Manager - Accounts and Finance on 2.4.1981. He was also permitted to use the premises along with father N.T. Rangaswamy i.e. the original accused No.1. On 22.11.1982, the respondent No.2 resigned from the said services in order to reside at his native place at Bangalore. The respondent No.2 and his father had continued to stay in the said premises on compassionate ground. On 12.9.1984, N.T. Rangaswamy retired as an Administrative Officer.

3. The respondent No.2 resigned on 17.6.1991. The petitioner had therefore called upon the respondent No.2 and his father to vacate the premises from 31.7.1991 As they were residing there on a service tenancy contract. However, the respondent No.2 claims to be the tenants of the said premises on the basis of a letter dated 22.4.1983. The letter was addressed to Mr. N.T.Rangaswamy only because he was working as an Administrative Officer of the Petitioner-Company. The said letter was signed by M.M. Kothari i.e. the original accused No.3, who was officiating as a Director of the said Company. In 1991, the accused were not willing to hand over vacant and peaceful possession to the Company. The accused No.3 had forged the letter-head of the Company. It was ante-dated letter purportedly signed by M.M. Kothari transferring the ownership in his favour. The Company in fact had not entrusted the accused No.3 with any authority to issue such a letter as the Board of Directors had not approved of it. In 1991, the accused No.1 had, for the first time, brought it to the notice of the Company that he was in possession of the said premises by virtue of the letter dated 22.4.1983. The accused No.1 had also filed the suit in the Court of Small Causes at Mumbai against the company and the same is disposed of by an order dated 3.2.1995. The petitioner had therefore filed a complaint before the Metropolitan Magistrate, 37th Court, Esplanade, Mumbai. The learned Magistrate had issued an order under Section 156(3) of Cr. P.C. The accused persons were charge-sheeted for the offence punishable under Section 120B read with Sections 465, 467, 468 and 471 of the IPC. Offence punishable under Section 630 of the Companies Act is a non-cognizable offence and, therefore, the same was not investigated by the police.

4. On 8.5.2000, the matter was transferred to the Court of Addl. Chief Metropolitan Magistrate, 19th Court, Esplanade, Mumbai. In respect of Sec. 630 of the Companies Act, the petitioner had filed an application before the Chief Metropolitan Magistrate, Mumbai, on 24.1.2001 seeking permission to file a afresh complaint against the accused. The Magistrate had granted permission and, therefore, the complaint was field in the Girgaum Court.

5. On 3.8. 2001, the accused filed an application seeking transfer of the said matter and hence the matter was transferred to the Metropolitan Magistrate, 19th Court at Esplanade, Mumbai. On 14.12.2006, both complaint were merged as they were arising out of the same cause of action.

6. By an order dated 30.7.2012, this Hon'ble Court (Coram: A.M. Thipsay, J.) was pleased to expedite the trial pending before the Metropolitan Magistrate, 19th Court, Mumbai. The trials were separated. 5 witnesses are examined.

7. On 23.11.2012, the substantive sentence of the Investigating Officer was recorded. The matter was adjourned to 29.11.2012 in order to secure presence of E.T. Abraham or any other witness working in the MTNL office. On 29.11.2012, the original complainant i.e. the present petitoner filed an application seeking permission to secure the presence of witness E.T. Abraham or any other witness from MTNL. It was submitted that the complainant had succeeded in getting the telephone directory for the period 1983 and 1985 along with the extract of register maintained by MTNL at their main office from 1968 to 2001. It was urged by the complainant that it was necessary to examine an officer from MTNL only to prove the telephone directory in order to substantiate that the accused had forged the documents to withhold the premises illegally which are admittedly property of the company. E.T. Abraham had retired from the service of MTNL and, therefore, it was not possible to summon him for recording his evidence. The learned Magistrate had declined to adjourn the matter by two weeks to secure presence of the said witness or any other witness from MTNL. On 29.11.2012 itself the Magistrate rejected the said application on the ground that the said application was not filed by learned APP of this Court and, therefore, it could not be granted. It appears that the application was filed by the original complainant and not the State as the investigation was conducted by the State and the charge sheet was filed. The Magistrate had, therefore, rejected the said application. Hence, this petition challenging the order passed by the Magistrate on 29.11.2012.

8. The learned Counsel for the petitioner submits that the petitioner is the original complainant. According to him, the statement of E.T. Abraham was recorded by the police and formed a part of the charge sheet. It is further submitted that the statement of E.T. Abraham dated 14.8.1993 would show that the letter dated 9.12.1991 issued by MTNL office was addressed to M/s. Dodsal Ltd. Mumbai. The telephone exchange code '24' was changed to '202' and prior to 20.11.1983, the exchange code No.202 was not in existence. It was, therefore, necessary to examine some person from MTNL in the interest of justice that the said telephone number could not be mentioned on a letter dated 22.4.1983 which was allegedly forged by the accused. It is submitted that the letter-head indicated the office telephone number in seven digits, whereas it was six digits at that time. According to the Counsel for the petitioner, unless some officer from MTNL was examined, the original complainant could not prove that the letter-head is forged.

9. The learned Counsel for the respondents submits that the case is a very old one and therefore, the magistrate has rightly rejected the said application as it would amount to protracting the proceedings. The learned Counsel further submits that the telephone directory is a public document and it is not necessary to examine any witness to prove the same. It is further submitted by the respondents that the case was being conducted on the basis of the charge sheet filed by the State and, therefore, the original complainant had no locus to file the said application.

10. Upon hearing the respective Counsel, this Court is of the opinion that it would be expedient in the interest of justice to permit the petitioner to examine an officer from MTNL in order to prove that the letter filed by the accused was forged. It would rather be a technical approach to reject the application on the ground that it was filed by the original complainant. It is true that the application ought to have been filed through the Public Prosecutor. However, the said application cannot be rejected on the sole ground that it is not filed by the learned APP. The question is not whether a directory is a public document, but what seems to be apparent on the face of record is that the complainant intends to prove that letter filed by the accused dated 22.4.1983 was a forged letter. It was ante-dated as the telephone numbers were in six digits. Hence, this Court is of opinion that the Petition deserves to be allowed in terms of prayer clause (a).

11. Hence, the order :-

ORDER

The Writ Petition is allowed. The order dated 29.11.2012 passed by the Metropolitan Magistrate, 19th Court, Esplanade, Mumbai, is hereby quashed and set aside. The Petitioner shall be permitted to examine any officer from the Office of MTNL at the earliest. Rule is made absolute in the above terms.

Petition allowed.