Citation : 2016 Latest Caselaw 7620 Bom
Judgement Date : 23 December, 2016
1 CRI APPLN NO.1596.2005.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 1596 OF 2005
1. Somnath Madhavrao Joshi,
age 76 yrs, Occ. Agril,.
R/o Kuchar Ota, Paithan,
Dist. Aurangabad.
2. Kanhaylal Gotiram Mutha,
age 70 yrs, Occ. Agril,
and Trader, R/o Paithan,
Dist. Aurangabad.
3.
Devidas Rangnath Kulkarni,
age 55 yrs, Occ. Agri,
R/o as above.
4. Satish Biharilal Baldava,
age 45 yrs, Occ. Agril,
and Trader, R/o as above.
5. Balkisan Ramkaran Baheti,
age 55 yrs, Occ. Trader,
R/o as above.
6. Ramchandra Pandurang Kulkarni,
age 65 yrs, Occ. Nil,
R/o Paithan, Dist. Aurangabad. Petitioners.
(orig accused 1 to 3, 5 to 7)
VERSUS
1. Ambadas Digambar Deshpande,
age 57 yrs, Occ. Agril,
R/o Kuchar Ota, Paithan,
Dist. Aurangabad.
2. State of Maharashtra. Respondents
...
Advocate for Applicants : Mr. V J Dixit Sr. Counsel i/b
Mr. A B Kadethankar
::: Uploaded on - 26/12/2016 ::: Downloaded on - 27/12/2016 00:52:42 :::
2 CRI APPLN NO.1596.2005.odt
Advocate for Respondent no.1 : Mr Pradeep Deshmukh
h/f Y.P.Deshmukh
APP for Respondent no.2 : Mr S P Tiwari
...
CORAM : V. K. JADHAV, J.
...
Date of Reserving the Judgment : 20.12.2016 Date of pronouncing the Judgment :23.12.2016
...
JUDGMENT :-
1. By this criminal application, the applicants-
original accused nos. 1 to 3 and 5 to 7 have challenged
the order dated 12.11.2003 passed by the learned
Judicial Magistrate First Class, Paithan District
Aurangabad below Exh.1 in RCC No.158/2003 thereby
issuing process against the applicants for the offences
punishable under sections 465, 468, 471, 474 r/w 34 of
I.P.C. and further also seek to quash prosecution of the
applicants-accused in the form of R.C.C. No.158/2003
pending in the Court of J.M.F.C., Paithan, District
Aurangabad.
2. Brief facts, giving rise to the present application
are as follows :-
a] Respondent No.1-original complainant has filed
complaint bearing R.C.C. No.158/2003 against the
3 CRI APPLN NO.1596.2005.odt
present applicants and one more accused, who, is
presently no more for having committed an offence
punishable under sections 465, 468, 471, 474 r/w 34
I.P.C. Respondent no.1-original complainant was
working as Headmaster in Shri Balaji Vidyalaya,
Nathnagar, Paithan, District Aurangabad, which is a
school run by Dnyan Prabodhini Shikshan Sanstha,
Paithan, District Aurangabad. It has contended that,
the applicants are the office bearer of the Trust, even
they are not accepted by the Assistant Charity
Commissioner as office bearer and trustees of the
Institution.
b] It has alleged in the complaint that, the then
Secretary one Shri G.V.Bharde issued him a charge
sheet on 15.1.1998. In pursuance of Rule 32 of
Maharashtra Employees of Private Schools (Conditions
of Service Regulation) Act, 1977, if, any inquiry is to be
held against the head of an institution, it must be
conducted by the president of the Management and
such a proceeding cannot be initiated by issuing a
charge sheet or statement of allegations signed by the
Secretary. Consequently, respondent-complainant had
4 CRI APPLN NO.1596.2005.odt
challenged the same before the School Tribunal as well
as before Civil Judge J.D, Paithan. It has further
alleged that, all the applicants-accused were aware
about the charge sheet, however, in collusion, it was
decided to issue a supplementary charge sheet and
resolution was also taken to that effect. Accordingly, a
supplementary charge sheet dated 15.2.1999 was issued
under the signature of President (Karyavahak).
Respondent-original complainant had raised a dispute
in appeal No.200/1999 before School Tribunal,
Aurangabad and the said matter was posted on
20.7.2000 for final arguments. The applicants-original
accused were realized that, such charge sheet might not
stand in the Court of law, the applicants prepared a
forged document under the signature of applicant no.1
and behind back of the respondent-complainant
produced the same before the School Tribunal,
Aurangabad. It has thus alleged in the complaint that
the applicants-accused persons in furtherance of their
common intention have committed the offence
punishable under section 465, 468, 471, 474 read with
section 34 of I.P.C. Respondent-complainant has,
5 CRI APPLN NO.1596.2005.odt
therefore, approached to the Police Station, Paithan,
but, he was given understanding to approach the Court.
Accordingly, respondent-complainant has filed the
private complaint before the Judicial Magistrate First
Class, Paithan, which is numbered as R.C.C.
No.158/2003.
c] The learned Magistrate, Paithan, initially by order
dated 28.7.2003 directed the concerned Police Station to
carry out the investigation and submit the report as
provided under section 156(3) of Cr.P.C. After due
investigation, the concerned police station has
submitted report to the effect that no offence is made
out as per the complaint filed by the respondent-
complainant.
d] By impugned order dated 12.11.2003 on perusal of
the complaint and report filed by the police and further
relying on the statements of two witnesses recorded
during the course of said investigation, the learned
Magistrate has issued process against the applicants-
accused for the offence punishable under sections 465,
468, 471, 474 read with 34 of I.P.C. The learned
Magistrate in the impugned order has observed that, the
6 CRI APPLN NO.1596.2005.odt
complainant has prima facie proved that the accused
had prepared another document in order to fill up
lacuna and considering the statement of two witnesses
against them, prima facie case is made out against
accused persons for issuance of process.
e] The applicants-original accused filed an
application Exh.23 for recalling the process on various
grounds. However, the learned Magistrate has rejected
the said application in view of the judgment of the apex
Court in the case of Adalat Prasad Vs. Ruplal Jindal
and others reported in 2004 Vol. VI Supreme 371.
Hence, this Criminal Application.
3. The learned counsel for the applicants-original
accused submits that, first charge sheet dated 15.1.1998
was issued by late Govind Bharde and after taking a
fresh resolution, charge sheet was issued under the
signature of applicant-accused no.1. This fact was well
within the knowledge of the respondent-complainant.
Thus, respondent-complainant has not filed the
complaint forthwith in the police station till 26.10.2002.
Further, the respondent-complainant had filed the
7 CRI APPLN NO.1596.2005.odt
complaint before the Court on 23.7.2003. There is
inordinate delay in filing the complaint for which no
explanation is tendered. Learned counsel for the
applicants submits that, the learned Magistrate has
issued the process on the basis of the statement of
witnesses Chandrakant and Vasant recorded during the
course of the investigation. Learned counsel submits
that, the concerned Investigating Officer has submitted
the report in the negative and thus, the Magistrate
cannot take into account statement of the witnesses
examined by the police during the investigation and take
cognizance of the offence complained of and order issue
of process against the applicants-accused. The learned
Magistrate may take cognizance of the offence under
section 190 (1) (a) on the basis of the original complaint
and proceed to examine on oath the complainant and
his witnesses under Section 200 of Cr.P.C. If he adopts
the third alternative, he may hold or direct an inquiry
under section 202 if he thinks fit. Thereafter, he may
dismiss the complaint or issue process, as the case may
be. The learned counsel for the applicants-accused
submits that, it has alleged in the complaint that the
8 CRI APPLN NO.1596.2005.odt
applicants-accused persons have filed the alleged forged
charge sheet before the School Tribunal. Therefore, as
per the provisions of section 195 read with section 340
of Cr.P.C. only School Tribunal is competent to take
cognizance of the offence and he is empowered to lodge
the complaint on making inquiry as contemplated under
section 340 of Cr.P.C. On the basis of such a complaint,
in terms of provisions of section 195 of Cr.P.C.
cognizance can only be taken and respondent-
complainant has thus no locus standi to file the
complaint.
The learned counsel for the applicants-original
accused submits that, the respondent-complainant had
filed writ petition No.1677/2001 before the learned
Single Judge of this Court wherein dismissal of his
appeal before the School Tribunal against termination
was challenged. The learned Single Judge of this Court
has dismissed said writ petition, and therefore,
respondent-complainant has filed a L.P.A. No.4/2004 in
Review Petition No.7370/2003 in Writ Petition
No.1677/2001. Even though, the Division Bench of this
Court has observed about production of document of
9 CRI APPLN NO.1596.2005.odt
subsequent charge-sheet behind back of the
respondent-complainant, ignored the same without
making any observations about forged charge sheet as
alleged by the respondent-complainant in the present
complaint.
Learned counsel submits that, first charge sheet
dated 15.1.1998 was issued by the then Secretary Mr.
Govind Bharde and, thereafter fresh resolution was
taken and charge sheet was issued under the signature
of President. Thus, the entire complaint is not disclosing
any offence nor the ingredients of the offence for which
process has been issued against the applicants-accused
persons. Thus, continuation of proceedings in R.C.C.
No.158/2003 would be the abuse of the process of the
Court.
4. The learned counsel for the applicants, in order to
substantiate his contentions placed his reliance on
following cases :
1. H.S.Bains Vs. The State (Union of Territory of Chandigarh) reported in AIR 1980 Supreme Court Page 1883.
2. Suresh Chand Jain Vs. State of Madhya Pradesh Reported in 2001 (2) SCC page 628.
10 CRI APPLN NO.1596.2005.odt
3. Manish Vijay Mhashelkar Vs. State of Maharashtra and another reported in 2008 (1)
Bom.C.R. Cri 378.
4. Bhagirathabai Rambhaukar Akotkar Vs. State
of Maharashtra and another, reported in 2007(2) Bom.C.R. Cri 285.
5. Learned counsel for respondent no.1-original
complainant submits that, prima facie, it is proved by
respondent-complainant that both the accused had
forged and prepared another document in order to fill up
the lacuna. On 15.2.1999 charge sheet/statement of
allegations under the signature of the then Secretary
was served on the respondent-complainant, however,
after realizing the mistake that pursuance to the
provisions of Rule 32 of the M.E.P.S., Act, 1977, if
inquiry is to be held against the head of the Institution,
it must be conducted by the President of the
Management, another charge sheet was forged and
prepared under the signature of President and the same
was produced before the School Tribunal after hearing
is completed in appeal. Respondent-complainant has
raised main ground in the said appeal that, charge
sheet was issued by the Secretary and not by the
President. Consequently, false and fabricated document
11 CRI APPLN NO.1596.2005.odt
in the shape of second charge sheet under the signature
of President was prepared and produced. Learned
counsel submits that, respondent-complainant have
given all the details constituting the offence of forgery. It
is not the case of the respondent-complainant that
forgery in respect of the said document charge-sheet
was committed after the document was produced before
the Presiding Officer of the School Tribunal and
therefore, provisions of section 195 would not apply. So
also provisions of section 340 of Cr.P.C. are also not
attracted.
The learned counsel for respondent-complainant
submits that, the Magistrate is not bound by the
opinion of the Investigating Officer. Even if, the
investigating officer submits the report in the negative,
the Magistrate can take into account statements of the
witnesses examined by the police during the course of
investigation and take cognizance of the offence
complained of and order issue of process to the accused.
Learned counsel submits that, the learned Magistrate
has rightly issued the process against the applicants-
accused. Complaint discloses the ingredients of offence
12 CRI APPLN NO.1596.2005.odt
for which process has been issued against the
applicants-accused. No interference is required. There
is no substance in this criminal application and the
criminal application is thus liable to be dismissed.
6. Learned counsel for respondent-original
complainant places his reliance on the following cases :-
1. Fakhruddin Ahmad Vs. State of Uttaranchal
and another reported in 2008 AIR SCW 5881.
2. M/s. India Carat Pvt. Ltd., Vs. State of
Karnataka and another reported in 1989 SC page 885.
3. Jitendra Chandrakant Mehta Vs. M/s
Shamrock Impex Pvt. Ltd., and others reported in reported in 2006 (4) Mh.L.J. 355.
7. I have also heard the learned APP for the
Respondent State.
8. It appears from the allegations made in the
complaint that, initial charge-sheet issued and served
on the complainant signed by the then Secretary. In
terms of provisions of Rule 32 of the M.E.P.S. Act, 1977,
if, any, inquiry is to be held against the head of an
institution, it must be conducted by the President of the
13 CRI APPLN NO.1596.2005.odt
Management. However, another charge sheet of the
same date was prepared under the signature of the
President and it was produced before the School
Tribunal after hearing is completed in the appeal. It
was main ground in the said appeal before the School
Tribunal that charge sheet was issued by the Secretary
and not by the President. Consequently, a false and
fabricated document in the shape of second charge
sheet under the signature of the President was
prepared.
9. It is a matter of record that, after arguments were
over before the School Tribunal, a copy of the charge
sheet signed by the President was produced before the
Tribunal without giving an opportunity to the
complainant-respondent to lead any evidence or to
advance arguments on that document. The Division
Bench of this Court in LPA No.4/2004 observed that
copy of the charge sheet purported to have been signed
by the President was produced before the School
Tribunal and the Presiding Officer of the School
Tribunal did not call upon to the appellant to give his
14 CRI APPLN NO.1596.2005.odt
say on the application for production of the document
and without giving an opportunity to the appellant,
allowed the application seeking production of the said
document. Thus, the application for production was
allowed and further the Presiding Officer has relied on
the said document in his judgment. The Division Bench
has observed that, since the opportunity of hearing at
the stage of production of the said document was not
given to the respondent-complainant herein, it would be
necessary to ignore the production of the said
document. The Division Bench of this court in the
aforesaid L.P.A. has further observed that, the
respondent-complainant herein had failed to discharge
its burden that subsequent charge sheet was not signed
by the President, but by the Secretary. Thus, the
Division Bench has declined to interfere into the order
passed by the learned Single Judge and accordingly,
dismissed the L.P.A. However, there is prima facie case
as alleged in the complaint that the applicants-accused
prepared and submitted another document in order to
fill up the lacuna. Same is also evident from the
statement of two witnesses recorded during the course
15 CRI APPLN NO.1596.2005.odt
of the investigation by the concerned I.O.
10. Learned counsel for the applicants-accused has
vehemently submitted that, it is for the Presiding Officer
of the School Tribunal to take action against the
applicants-accused and in view of the provisions of
Section 195 read with section 340 of Cr.P.C. there is a
clear bar to entertain such a complaint if filed directly
before the Court. In a case of Jitendra Mehta (supra)
relied upon by the learned counsel for the respondent-
original complainant in paragraph no.16 of the
judgment, the Supreme Court by referring the judgment
reported in 2005 (3) Mh.L.J. (SC) 530 [Iqbal Singh
Marwah and another Vs. Meenakshi Marwah and
another] in paragraph no.16 of the judgment has made
following observations :-
16. In view of this judgment, the objection of Mr. Chitnis, is required to be rejected. It is not the case
of the complainant that forgery in respect of the said letter was committed after the document was produced before the Small Causes Court and therefore the bar under Section 195 would not apply and complainant was justified in moving the Magistrate and the Magistrate was justified in passing further order.
16 CRI APPLN NO.1596.2005.odt
11. In the aforesaid case, the complainant had alleged
commission of forgery of certain documents produced
before the small causes court. Accused therein had
taken a plea that if at all document before the small
cause court was forged one or forgery was committed in
respect of any document before the small cause court,
then no complaint can be filed excepting upon the
complaint in writing by that Court in view of the
provisions of section 195 of Cr.P.C. Supreme Court has
observed that, it was not the case of the complainant
that forgery in respect of the said document was
committed after it was produced before the small causes
court and therefore, bar under section 195 wold not
apply.
In a case Iqbal Singh Marwah (supra) in paragraph
no. 6 of the judgment the Supreme Court had an
occasion to discuss the question regarding
interpretation of clause (b) (ii) of Sub section (1) of
Section 195 as above.
"One possible interpretation is that when an offence described in Section 461 or punishable under Section 471, Section 471 or Section 476 IPC is alleged to have been committed in respect of a document which is subsequently produced or
17 CRI APPLN NO.1596.2005.odt
given in evidence in a proceeding in any court, a complaint by the Court would be necessary. The
other possible interpretation is that when a document has been produced or given in evidence in a proceeding in any Court and thereafter an
offence described as aforesaid is committed in respect thereof, a complaint by the Court would be necessary. On this interpretation if the offence as described in the Section is committed prior to
production or giving in evidence of the document in Court, no complaint by Court would be necessary and a private complaint would be maintainable."
12. The Supreme Court held that Sachida Nand Singh
Vs. State of Bihar reported in 1998 (2) SCC Page 493,
was correctly decided and the view taken therein was a
correct view. Section 195 (1)(b)(ii) would be attracted in
respect of the document after it is produced or given in
evidence in proceeding in any court. The Supreme
Court in the facts of the said case, further observed
that, so far as that question is concerned it was
nobody's case that offence enumerated under section
195 (b)(ii) was committed in respect of the said Will
after it was produced in the Court. Thus, the Supreme
Court held that, bar under section 195 (1) (b) (ii) Cr.P.C
would not come into play and there was no embargo on
the power of the court to take cognizance of the offence
on the basis of the complaint filed by the respondent.
18 CRI APPLN NO.1596.2005.odt
13. In the instant case, it is not the case of the present
respondent-complainant that forgery in respect of the
said charge sheet was committed after document was
produced before the school Tribunal. Thus, bar under
Section 195 of Cr.P.C. would not apply and respondent-
complainant has justified in moving the Magistrate and
the Magistrate is also justified in passing further orders.
14.
Learned counsel for the applicants-original
accused has vehemently submitted that, though,
investigating officer has submitted the report in the
negative, the learned Magistrate has erroneously relied
upon the statements of two witnesses recorded during
the course of the aforesaid investigation and issued the
process against the applicants-accused. It is well
settled that, the Magistrate is not bound by the opinion
of the investigating officer and he is competent to
exercise his discretion irrespective of the view expressed
by the police in their report and decide whether offence
is made out.
15. In a case Fakhruddin Ahmad Vs. State of
19 CRI APPLN NO.1596.2005.odt
Uttaranchal and another (reported in 2008 AIR SCW
5881) supra relied upon by the learned counsel for
respondent in paragraph nos. 9 and 10 of the judgment,
the Supreme Court has made following observations :-
9. One of the courses open to the Magistrate is
that instead of exercising his discretion and taking cognizance of a cognizable offence and following the procedure laid down under Section 200 or Section 202 of the Code, he may order an investigation to be made by the police under Section 156 (3) of the Code, which
the learned Magistrate did in the instant case. When such an order is made, the police is obliged to
investigate the case and submit a report under Section 173 (2) of the Code. On receiving the police report, if the Magistrate is satisfied that on the facts discovered or unearthed by the police there is sufficient material
for him to take cognizance of the offence, he may take cognizance of the offence under Section 190 (1) (b) of the Code and issue process straightway to the accused. However, Section 190 (1) (b) of the Code does not lay down that a Magistrate can take cognizance of
an offence only if the investigating officer gives an opinion that the investigation makes out a case against
the accused. Undoubtedly, the Magistrate can ignore the conclusion(s) arrived at by the investigating officer.
10. Thus, it is trite that the Magistrate is not bound
by the opinion of the investigating officer and he is competent to exercise his discretion in this behalf, irrespective of the view expressed by the police in their report and decide whether an offence has been made out or not. This is because the purpose of the police report under Section 173 (2) of the Code, which will
contain the facts discovered or unearthed by the police as well as the conclusion drawn by the police therefrom is primarily to enable the Magistrate to satisfy himself whether on the basis of the report and the material referred therein, a case for cognizance is made out or not.
16. In a case of M/s India Carat Pvt. Ltd., Vs. State of
20 CRI APPLN NO.1596.2005.odt
Karnataka reported in AIR 1989 Supreme Court page
885 (supra) relied upon by the learned counsel for
respondent in paragraph no.16 of the Judgment, the
supreme court has made following observations :-
16.The position is, therefore, now well settled that upon receipt of
a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is
made out against the accused. The Magistrate can take into
account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused.
Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against
the accused. The Magistrate can ignore the conclusion arrived
at by the investigating officer; and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his
powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)
(b) though it is open to him to act under Section 200 or Section 202 also. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him.
21 CRI APPLN NO.1596.2005.odt
17. It is thus well settled that, upon receipt of a police
report under section 173 (2) a Magistrate is entitled to
take cognizance of an offence under section 190 (1)(b) of
the Code even if police report is to the effect that no
case is made out against accused. The Magistrate can
take into account the statement of the witnesses
examined by the police during the investigation and take
cognizance of the offence complained of and order to
issue process against the accused. The Magistrate need
not follow the procedure laid down in section 200, 202
of Cr.P.C. The Magistrate can ignore conclusions arrived
at by the Investigating Officer and independently apply
his mind to the facts emerging from the investigation
and take cognizance of the case.
18. In the instant case, the Magistrate has rightly
done so. He has not accepted the conclusions drawn by
the investigating officer and considered the statement of
the witnesses examined by the investigating officer
during the investigation and taken cognizance of the
offence complained of and further issued process
against the applicants-accused.
22 CRI APPLN NO.1596.2005.odt
19. In a case of H.S.Bains (supra) relied upon by
learned counsel for applicants-accused, the Supreme
Court has observed that a Magistrate on receipt of a
complaint, order an investigation under section 156 (3)
of Cr.P.C. and receives a police report under section 173
(1), may, thereafter, do one of three things : 1)- he may
decide that there is no sufficient ground for proceedings
further and drop action; (2) he may take cognizance of
the offence under section 190 (1) (b) on the basis of the
police report and issue process, this he may do without
being bound in any manner by the conclusion arrived at
by the police in their report; (3) he may take cognizance
of the offence under section 190 (1) (a) on the basis of
the original complaint and proceed to examine upon
oath the complainant and his witnesses under Section
200. If he adopts the third alternative, he may hold or
direct an inquiry under Section 202 if he thinks fit.
Thereafter he may dismiss the complaint or issue
process, as the case may be.
20. In the instant case, it appears that the Magistrate
had taken recourse to second category as aforesaid and
23 CRI APPLN NO.1596.2005.odt
taken cognizance of the complaint on the basis of the
statement of the witnesses recorded during the course
of the investigation by ignoring the conclusions arrived
at by the police in their report.
21. It appears from the allegations made in the
complaint that, there is a prima facie case for
proceeding and issuing process against the applicants-
accused. Prima facie, there is a material to support the
allegations made in the complaint. Learned Magistrate
has relied upon the statement of one Shri Chandrakant
Joshi and another witness Vasant recorded during the
course of the investigation by the police. Both the
witnesses in their statements have stated that
applicants-accused prepared a forged and false
resolution and false documents by way of charge sheet
against respondent-complainant. The learned Magistrate
in his impugned order has observed that, on going
through the documents placed on record, it is crystal
clear that, on the charge sheet dated 15.2.1999
Secretary had signed and again another charge sheet
was prepared which was signed by the President.
24 CRI APPLN NO.1596.2005.odt
22. In view of the above discussion and the views
expressed by the Supreme Court in the case cited and
referred above, I do not find any fault in the order
passed by the learned Magistrate. Consequently, I do
not find any substance in the submissions that the
continuation of the prosecution in form of RCC No.158
of 2003 would be abuse of the court process. Hence I
proceed to pass the following order.
ig O R D E R
I. Criminal Application is hereby dismissed.
II. Rule discharged.
II. Criminal Application accordingly disposed
of.
IV. At this stage, the learned counsel for the
applicants-accused requested for
continuation of interim relief for certain period. Request stands refused.
sd/-
( V.K. JADHAV, J. ) ...
aaa/-
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