Pradeep Dave vs Narendra Harilal Parekh And Anr
2016 Latest Caselaw 107 Bom

    Dixit
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                      
                                 CRIMINAL APPELLATE JURISDICTION

                             CRIMINAL WRIT PETITION NO.5091 OF 2014




                                                              
            Pradeep Dave                                           ]
            Aged : 72 Years,                                       ]
            Managing Director of M/s. Aimco                        ]




                                                             
            Pesticides Ltd.,                                       ]
            R/at Flat No.3, Vibhuti Apartment,                     ]
            Ruia Park, Juhu, Mumbai 400 049.                       ] .... Petitioner
                       Versus
            1. Narendra Harilal Parekh                             ]




                                                 
               Age : 62 Years, Occu. Business,                     ]
               Vibhuti Investment Co. Ltd.,
                                        ig                         ]
               Vibhuti Apartment, 4th Floor,                       ]
               Plot No.359, Shanti Road,                           ]
               Off. Ghandhi Gram Road,                             ] .... Respondent No.1/
                                      
               Ruia Park, Juhu, Mumbai 400 049.                    ]    [Org. Complainant]
                                                                   ]
            2. State of Maharashtra                                ] .... Respondent No.2
              


            Mr. Amrut Joshi a/w. Shavez              Mukri,   i/by
           



            M/s. India Law, for the Petitioner.

            Mr. R.S. Lodhi for Respondent No.1.





            Mrs. A.S. Pai, A.P.P., for Respondent No.2-State.


                                       CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

DATE : 26TH FEBRUARY 2016.

ORAL JUDGMENT :

1. Rule. Rule is made returnable forthwith, by consent. Heard learned

counsel for the parties.

WP-5091-14.doc

2. By this Writ Petition, the Petitioner is challenging the order dated 9 th

April 2014 passed by the Metropolitan Magistrate, 10th Court at Andheri,

Mumbai, in C.C. No.73/SW/2014, thereby issuing process against the

Petitioner for the offence punishable under Section 471 of IPC.

3. Facts of the Petition can be stated, in brief, as follows :-

Respondent No.1 herein has filed private criminal case before the

Trial Court alleging, inter alia, that he is the constituted attorney to the

Builder and Developer M/s. Vibhuti Investments Company Ltd., which was

entrusted to construct Vibhuti Apartment Building and after construction of

the building, he has sold the flats to the flat purchasers. Respondent No.1

further alleged that the flat purchasers have filed registration proposal

before the Registrar of Co-operative Societies and the said proposal was

rejected twice on various grounds on 10th March 2006 and 6th June 2006,

respectively. Respondent No.1 has thereafter executed Condominium on

2nd September 2006 in respect of the flat and car-parking for Vibhuti

Apartment. Thereafter also, the registration proposal for Co-operative

Society was refused by the Deputy Registrar by letter dated 13 th August

2007 informing that Vibhuti Condominium had already been registered.

The flat purchasers thereafter filed complaint before the Consumer Forum

seeking relief. The said complaint was also came to be rejected by

Consumer Forum on 11th December 2009.

WP-5091-14.doc

4. In short, the grievance of Respondent No.1 before the Trial Court is

that, the building is yet not registered under the Maharashtra Co-operative

Societies Act, 1960. Despite that, the Petitioner herein is stating in his

application that, it was registered as Co-operative Society on the basis of

some documents, which Respondent No.1 has not signed. Hence,

Respondent No.1 made complaint to the Commissioner of Police,

Economic Offences Wing, Crawford Market, Mumbai and also to the Juhu

Police Station, Mumbai, to take appropriate action against the Petitioner.

However, Police had not taken any action and hence he approached the

Trial Court for issuance of process against the Petitioner for various

offences punishable under Sections 465, 467, 468, 471 and 420 of IPC.

5. On his complaint, the Trial Court was pleased to hold that, perusal

of the complaint and documents thereto do not make out the commission

of offences punishable under Sections 465, 467, 468 and 420 of IPC. The

Trial Court has, therefore, issued process against the Petitioner for the

offence punishable under Section 471 of IPC only.

6. While challenging this order of the Trial Court, learned counsel for

the Petitioner submits that, in the complaint, Respondent No.1 has not

disclosed the material facts and I find that there is much substance in this

grievance. It is pertinent to note that, in Para No.10 of the complaint filed

before the Trial Court, Respondent No.1 has stated that he had given

WP-5091-14.doc

written complaint to Juhu Police Station and the Commissioner of Police,

Economic Offences Wing at Crawford Market. However, Police has not

taken any action. However, the letter which is filed in this Writ Petition, at

Page No.114, reveals that Police had informed Respondent No.1 that after

obtaining opinion and the Report of the Law Officer, it was found that the

grievance raised in the complaint is of civil nature and hence Respondent

No.1 should initiate appropriate proceedings before the concerned Court.

Now this letter of the Senior Police Inspector, Juhu Police Station is dated

12th December 2013, whereas the complaint is filed before the Trial Court

on 14th February 2014 i.e. much after the letter was received informing

him that dispute in the case is of civil nature. It is pertinent to note that this

fact is, however, not mentioned in the complaint and a bald statement is

made that Police has not taken any action against the Petitioner.

7. Apart from that, in order to make out any offence of forgery, certain

basic ingredients are required to be made out. Section 471 of IPC

contemplates that, whoever fraudulently or dishonestly uses as genuine

any document or electronic record, which he knows or has reason to

believe to be a forged document or electronic record, shall be punished

for the offence of forgery. What is forgery is also laid down. Here in the

case, Respondent No.1 has not spelt out specifically which is the forged

document the Petitioner is using as genuine one. The entire complaint is

WP-5091-14.doc

conspicuously silent about the same. When the Petitioner is charged with

a specific offence of using the forged document as genuine one under

Section 471 of IPC, then it was very much incumbent on Respondent

No.1 to spell out in the complaint itself as to which is the document which

is being used by the Petitioner as forged document. He is relying

simplicitor on certain observations made by the Registrar of Co-operative

Societies to the effect that, as the Developer and Promoter of the

proposed Society are one and same, someone else appears to have

made signature as authorized signatory on the proposal given for

registration of the Society. However, it is too vague an averment, without

even stating that any forgery as such is committed either by the Petitioner

or someone else. In such situation and on bare perusal of the complaint,

the essential ingredients of the offence are not at all made out.

8. Needless to say that, allowing such process to continue is clearly an

abuse of the Court. Moreover, when the Police Report clearly signify that

the dispute is of a civil nature and the said Report was not brought to the

notice of the learned Magistrate, then also it follows that allowing such

civil dispute to be converted to criminal offence is again a sheer abuse of

the process of law. Such practice is deprecated by the Supreme Court in

various of its Judgments, one of which is relied upon by learned counsel

for the Petitioner that of Chandran Ratnaswami Vs. K.C. Palanisamy

WP-5091-14.doc

and Ors., AIR 2013 SC 1952, wherein, after taking note of its earlier

decision, the Supreme Court has held that, any effort to settle civil

disputes and claims, which do not involve any criminal offence, by

applying pressure through criminal prosecution should be deprecated and

discouraged. It was also held that, a court proceeding ought not to be

permitted to degenerate into a weapon of harassment or prosecution.

9. In the instant case, on both these counts, the process issued

against the Petitioner for the offence under Section 471 of IPC needs to

be quashed and hence the Writ Petition is allowed. The impugned order of

the Trial Court issuing process against the Petitioner for the offence under

Section 471 of IPC, is quashed and set aside.

10. Bail Bonds, if any, executed by the Petitioner stand cancelled.

11. Rule is made absolute.

[DR. SHALINI PHANSALKAR-JOSHI, J.]

WP-5091-14.doc