apeal450of04.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.450 OF 2004
Wamanrao Narayanrao Bhasme,
Aged 65 years,
R/o. Model Mill Chowk,
Ramaji Wadi, Nagpur ......APPELLANT
...V E R S U S...
The State of Maharashtra,
Through, its State C.I.D.(Crime),
Nagpur ....RESPONDENT
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Shri Abhay Sambre, Advocate for Appellant.
Shri A.M. Kadukar, Advocate for Respondent.
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CORAM: ROHIT B. DEO, J.
DATE: th
13 DECEMBER, 2017.
ORAL JUDGMENT
The appellant is aggrieved by the judgment and order dated 18/19th June, 2004 passed by the Special Judge, in Special Case 3 of 1993, by and under which the appellant is convicted for offence punishable under section 471 of the Indian Penal Code ("IPC" for short) and is sentenced to suffer simple imprisonment for two years and to payment of fine of Rs. 2000/- and is further convicted for offence punishable under section 147(p) of the ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:53:26 ::: apeal450of04.odt 2 Maharashtra Cooperative Societies Act, 1960 and is sentenced to suffer simple imprisonment for three months and to payment of fine of Rs. 500/-.
2 Heard Shri. Abhay Sambre, the learned counsel for the appellant and Shri. A.M. Kadukar, the learned Additional Public Prosecutor for the respondent.
3 The appellant Wamanrao Narayanrao Bhasme faced trial alongwith other accused namely, Wamanrao Somaji Burde, Madhukar Keshaorao Zarkar, Vasant Dadaji Mokashi and Mahadeo Daulatrao Kale. While Wamanrao Burde, Madhukarrao Zarkar and Vasantrao Mokashi were charged for offences punishable under the provisions of Corruption Act, 1947, the appellant - accused and Mahadeorao Kale were charged for having committed offences punishable under the IPC. The appellant (hereinafter referred to as "the accused"), who was the promotor of Chandma Gruhanirman Sanstha was charged with falsification of the accounts of the society by falsely showing debit of Rs.5,000/- in the account of the society without paying the said amount to the owner of land one Sitaram Rangari and of having fraudulently and dishonestly used as genuine a forged document of agreement ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:53:26 ::: apeal450of04.odt 3 purportedly executed between the accused and Sitaram Rangari to facilitate the registration of the cooperative society and thereby having committed an offence punishable under section 471 of the IPC.
4 The learned counsel for the accused Shri. Abhay Sambre submits, that even if the entire evidence is taken at face value, the accused could not have been convicted for offence punishable under section 471 of the IPC. The essential ingredient constituting offence under section 471 of the IPC is that a document which the accused knows or has reason to believe to be forged is used fraudulently or dishonestly. The submission of the learned counsel for the accused is that there is no evidence on record to prove that the agreement to sell dated 21.3.1987 which is held proved by the learned Sessions Judge through the evidence of P.W. 4 is a forged document. Concededly, Shri. Sitaram Rangari, the owner of the agricultural land whose signature the agreement to sell purports to bear expired on 20.4.1991. PW 4 - Darshan Rangari the son of Sitaram Rangari was examined by the prosecution to prove that the said agreement was not signed and executed by the owner of the agricultural land Shri Sitaram Rangari. Surprisingly, the prosecution produced on record only a ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:53:26 ::: apeal450of04.odt 4 photocopy of the agreement and the same is marked as Exh. 116 during the evidence of PW 4. It is elicited in the cross- examination of the said witness, that the original of the agreement was available and produced during investigation. The photocopy clearly could not have been exhibited and must be kept out of consideration as inadmissible in evidence. Having done so, there is absolutely no evidence on record to suggest that the agreement to sell dated 21.3.1987 is forged document. Be it noted, that even if the prosecution were to prove that the agreement to sell did not bear the signature of Sitaram Rangari the mere fact that application for registration of society submitted by the accused as promotor is accompanied by a copy of the agreement may not have been sufficient to bring home the charge. What is necessary to be established by the prosecution is that the accused has used a forged document which he knew or had reason to believe to be forged and that the use is fraudulent or dishonest. Even if arguendo, it is assumed, that Exh. 116 is admissible in evidence, which it certainly is not, the prosecution has not adduced any evidence to further prove that the accused knew that the said document was forged or that he had reason to believe that the document is forged. Be that as it may, since I have held that the agreement to sell, the photocopy of which is marked as exhibit is ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:53:26 ::: apeal450of04.odt 5 not admissible in evidence, I need not further discuss the scope and ambit of section 471 of IPC, any further.
5 It is axiomatic, that the conviction under section 147(p) of the Maharashtra Cooperative Societies Act is recorded on the premise that the agreement to sell is forged and fraudulent. There is no other evidence on record to come to a conclusion that the entry of Rs. 5000/- shown in the accounts of the society is false. Since the conviction of the accused under section 471 of the IPC is unsustainable and must be set aside, the conviction under section 147(p) of the Maharashtra Cooperative Societies Act, must necessarily be set aside.
6 The judgment and order impugned is set aside. The accused is acquitted of offence punishable under section 471 of the IPC and 147(p) of the Maharashtra Cooperative Societies Act. 7 The bail bond of the accused shall stand discharged. Fine paid by the accused, if any, shall be refunded.
8 The appeal is allowed.
JUDGE
RS Belkhede,PA
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