Criminal Application [Apl] No.109 of 2015,Criminal Application [Apl] No.209 of 2015

20th January, 2017.

Petitioner Counsel: Shri A.V. KHARE
Respondent Counsel: Shri A.P. CHORGHADE

Cases Cited:
Mohammad Atullah Vs. Ram Saran Mahto, AIR 1981 SC 1155 [Para 6]

JUDGMENT

JUDGMENT :- Both these applications under Section 482 of the Code of Criminal Procedure take an exception to the judgment and order dated 5.12.2014 passed by the learned Additional Sessions Judge, Nagpur in Criminal Revision No.362/2013 thereby partly allowing the revision and quashing the order of issuance of process passed by the Judicial Magistrate, First Class, Kamptee dated 16.1.2012 in Criminal Case No.176/2009 against accused nos.2 to 9.

2. Criminal Application [APL] No.109/2015 is by original accused no.1 against whom process was issued and the revisional court refused to interfere with the order of issuance of process. Criminal Application [APL] No.209/2015 is by complainant against the original accused nos.2 to 9, as revisional court quashed and set aside the order of issuance of process issued by the learned Magistrate against them.

3. The facts giving rise to the applications may be stated in brief as under :

Ashok Motiramji Admane, resident of Nagpur, is the complainant. He filed Criminal Complaint No.176/2009 against nine persons alleging commission of offences punishable under sections 463, 464, 468, 471 read with 34 of the Indian Penal Code. According to complainant, accused fabricated relinquishment deed in the name of his deceased mother and used the same to get their names mutated in the revenue record.

4. It can be seen from the complaint that Mahadeo Hiraman Masurkar was the original owner of agricultural lands situated at mouza Umri, Tahsil-Kamptee, District-Nagpur. Mahadeo had three sons, Kashinath, Gajanan and Wasudeo and two daughters Vantikabai @ Radhikabai and Shevantabai @ Sulochana. Complainant is son of Sulochanabai, one of the daughters of Mahadeo. It is the case of complainant that in the year 2007-08, an application for mutation was moved before the revenue authority and mutation had taken place on the basis of photocopy of relinquishment deed which bears the thumb impressions of both the daughters and two witnesses. Sulochanabai expired on 29.1.1997 and Radhikabai died on 17.4.2007. Relinquishment deed dated 30.3.1996 was never executed by the daughters and particularly Sulochanabai. It is alleged that accused forged the thumb impressions on relinquishment deed and in collusion with Patwari, got the revenue record mutated in their names.

5. After recording verification of complainant, enquiry under Section 202 of the Code of Criminal Procedure was ordered. Report of enquiry was submitted by investigating agency on 11.11.2012. The report shows that original relinquishment deed was not available and the offences, as alleged by the complainant, were not made out against the accused. On receipt of report, learned Magistrate issued process against all nine persons. The order of issuance of process was carried before the revisional court in Criminal Revision No.362/2013. The learned Additional Sessions Judge quashed and set aside the order of issuance of process against accused nos.2 to 9 and found that against accused no.1 process was rightly issued by the trial court. Accused no.1, being aggrieved of rejection of Criminal Revision filed by him and complainant being aggrieved with the order of setting aside the order of issuance of process against accused nos.2 to 9, have invoked extra-ordinary jurisdiction of this court under Section 482 of the Code of Criminal Procedure.

6. The learned counsel for applicant Wasudeo in Criminal Application No.109/2015, placed reliance on the decision of the Hon'ble Supreme Court in the case of Mohammad Atullah .vs. Ram Saran Mahto, (AIR 1981 SC 1155) and submits that in case of negative report submitted under Section 202 of the Code of Criminal procedure, not disclosing any additional material, it was not permissible for the Magistrate to take cognizance and issue process against the accused. The learned counsel submitted that in the present case, admittedly the report of enquiry under Section 202 of the Code clearly indicates that no offence is made out, civil litigation is pending between the parties and in the absence of original relinquishment deed, no fruitful purpose would be served in continuing with the criminal complaint. It is submitted that original relinquishment deed was in the custody of Kashinath. After the death of Kashinath, search of original deed was made, but it was not found. According to applicant Wasudeo, when a search was made, photocopy of relinquishment deed was found in the box of Kashinath. The said photocopy was produced before Patwari, as original was not available. He submits that in the absence of original and in view of negative report submitted by police, it would be an abuse of process of law if criminal proceedings are allowed to be continued against accused no.1 Wasudeo.

7. Per contra, the learned counsel for the complainant strongly supports the order and submits that for 11½ years, copy of relinquishment deed was not used. Accused did not submit original relinquishment deed and on the basis of forged documents got the lands mutated in their names. The learned counsel for complainant submitted that the circumstances speak for themselves and the learned Magistrate rightly found that there was prima facie case to issue process against all the accused. A grievance is made that the revisional court unnecessarily and without assigning proper reasons interfered with the order of issuance of process passed against accused nos.2 to 9. Complainant, therefore, prays to set aside the order of revisional court to that extent and restore the order passed by the learned Magistrate.

8. It is not in dispute that civil litigation between the parties is pending. It is also an undisputed fact that original relinquishment deed is not available and in the absence of original relinquishment deed, hand-writing expert has expressed his inability to give opinion regarding alleged forged thumb impression of mother of the complainant. The main offence alleged is forgery. In the absence of an expert opinion for want of original, fate of criminal trial is apparent. During enquiry under Section 202 of the Code of Criminal Procedure, it was revealed that demand of original relinquishment deed was made to Wasudeo and he stated that his elder brother Kashinath was in possession of all the documents. After the death of Kashinath, they searched and found a photocopy of relinquishment deed in a box of Kashinath. The same was produced before Patwari, who deleted the names of Shevantabai @ Sulochanabai and Vantikabai from the revenue record. Merely because document was used on 3.9.2007 for mutation, it cannot be inferred that Wasudeo forged the photocopy and got the mutation of the lands done in their favour. So absence of original relinquishment deed, inability expressed by an expert to give opinion and the negative police report are the factors which would clearly indicate that issuance of process even against accused no.1 Wasudeo would not sustain in law. After submission of negative police report, complainant could not place any additional material before the learned Magistrate and in that situation, this court finds that order of issuance of process against accused no.1 was not legal and proper.

9. So far as accused nos.2 to 9 are concerned, this court, with the assistance of the learned counsel for the parties, has gone through the order of revisional court and finds that, on proper appreciation of the material placed on record, revisional court rightly came to the conclusion that process was wrongly issued against accused nos.2 to 9.

10. In the light of above, the order passed by the revisional court rejecting application of Wasudeo warrants an interference and rest of the order concerning accused nos.2 to 9 needs no interference. Hence, the following order is passed :

(i) Criminal Application (APL) No.109/2015 is allowed. Rule is made absolute in terms of prayer clauses (i) and (ii). No order as to costs.

(ii) Criminal Application (APL) No.209/2015 is dismissed. Rule is discharged. No order as to costs.

Ordered accordingly.