Bombay High Court
Shailendra Sheomurti Mishra And ... vs The State Of Maharashtra And Ors on 26 September, 2016
Bench: Ranjit More
wp-4593/15 gr (j).
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION No. 4593 No. OF 2015
1] Shailendra S. Mishra
2] Rajneeshkumar Anil Dubey. ..Petitioners.
Versus
State of Maharashtra & Others. ..Respondents.
WITH
WRIT PETITION No. 4594 No. OF 2015
Ashok Rajnarayan Pande. ..Petitioner.
Versus
State of Maharashtra & Others. ..Respondents.
ig WITH
WRIT PETITION No. 4595 No. OF 2015
1] Anad Ashok Pande.
2] Sanjay Motilal Prajapati @ Popat. ..Petitioners.
Versus
State of Maharashtra & Others. ..Respondents.
WITH
WRIT PETITION No. 316 No. OF 2016
1] Kekshushru Noshir Tavakkuli.
2] Mrs. Shital w/o Arjun Tadke (Maney) ..Petitioners.
Versus
State of Maharashtra & Others. ..Respondents.
Mr. Shirish Gupte, Senior Advocate along with Mr. B. P. Pandey
i/b Kenny Thakkar for the Petitioner in W.P. No. 4593 of 2015.
Mr. R. A. Thorat, Senior Advocate along with Mr. R. P. Ojha for the
Petitioner in W. P. No. 4594 of 2015.
Mr. V. A. Thorat, Senior Advocate i/b Legal Vision for the
Petitioner in W.P. No. 4595 of 2015.
Mr. A. P. Mundargi, Senior Advocate along with Mr. Bhavesh
Thakur i/b Rahul Arote for the Petitioner in W. P. No. 316 of 2016.
Mr. P. M. Havnur, Ms. Chitra Salunkhe i/b Rizwan Merchant &
Associates for Respondent No. 3 (Complainant).
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Mr. S. K. Shinde, PP with Mrs. M. M. Deshmukh, APP for the State.
Coram : RANJIT MORE &
S. C. GUPTE, JJ.
Date on which Arguments were heard : June 24, 2016.
Date on which Judgment was Pronounced : September 26, 2016.
Oral Judgment [Ranjit More, J.] :
1. The Petitioners in all these petitions are seeking
quashment of an FIR registered against them at the instance of
Haridasan Narayan Keerithodi [Respondent No.3 herein] for the
offences punishable under sections 420, 467, 468 and 471 read
with 34 of the Indian Penal Code, 1860, being FIR No. 132 of 2015
of Colaba Police Station. For the sake of convenience and brevity,
abbreviation "WP No." is used for "Writ Petition No."
2. The Petitioner in WP No.4594 of 2015 is the
practicing advocate. Petitioner No.1 in WP No. 4595 of 2015 is
the Advocate-son of the Petitioner in WP No. 4594 of 2015 and
Petitioner No.2 in WP No.4595 of 2015 is the peon working with
the Petitioner in WP No. 4594 of 2015. The Petitioners in WP No.
4593 of 2015 are the junior advocates attached in the Chambers
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of Petitioner in WP No. 4594 of 2015. Petitioner No.1 in WP No.
316 of 2016 is on the panel of Senior Counsel of the Municipal
Corporation for Greater Mumbai [for short "the MCGM"] and
Petitioner No.2 is the Assistant Law Officer and the advocate
appointed by the MCGM. Respondent No. 3 in all these petitions
is one Haridashan Narayan Keerithodi at whose instance the
subject FIR came to be registered with Colaba Police Station
against the Petitioners herein.
3. Respondent No.3 had his garage at plot of land
bearing Plot No.344, CTS No. 419, Opposite Bezzola Complex, ST
Road, Chembur, Mumbai 400071. The said garage of the
Complainant was demolished by the employees of MCGM on 12 th
June 2014 and 17th June 2014 alleging the same to be
unauthorised structure and they have taken away three cars of
the Complainant from the said garage. Respondent No.3
approached the Petitioner in WP No. 4594 of 2015 to challenge
the actions of the MCGM of demolishing his garage and of taking
away three cars from his garage. Accordingly, the Petitioner in
WP No. 4594 of 2015 filed a suit in the Bombay City Civil Court in
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the name of his son, i.e., Petitioner No.1 in WP No. 4595 of 2015,
being Long Cause Suit No.1705 of 2014. In the said suit, prayer
was made for direction to the MCGM to restore said three cars to
Respondent No.3. A notice of motion was taken out in the said
suit for urgent orders of injunction restraining the MCGM from
taking any further action in respect of the said garage of
Respondent No.3 and also for return of the said three vehicles to
Respondent No.3. On 27th June 2014, the City Civil Court granted
an order of status quo in the notice of motion taken out by the
Petitioner in WP No.4595 of 2015 on behalf of Respondent No.3.
Thereafter another notice of motion was taken out on behalf of
Respondent No.3 by the Petitioner in WP No.4594 of 2015 for
return of vehicles taken away by the MCGM during demolition
work. On 1st August 2014, both the notices of motion were placed
before the City Civil Court. It is the case of the Petitioners that at
the hearing of the notices of motion, Court expressed a prima
facie view that the MCGM could not have taken away said three
cars of Respondent No.3 and the same will have to be returned
back to Respondent No.3. On behalf of the MCGM, at that time
submission was made that Respondent No.3 is not the owner of
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those three vehicles and therefore if Respondent No.3 gives a
indemnity bond to the MCGM that in case any third party claims
the said cars, then, Respondent No.3 shall indemnify the MCGM
for any loss and damages for any civil or criminal action against
the officers of MCGM for return of the said cars to Respondent
No.3. It is further case of the Petitioners that the Court orally
directed the law officer of MCGM to give consent pursis so as to
enable the Court to pass an appropriate order. Accordingly, the
advocate for the MCGM had prepared a pursis wherein it is
written that the MCGM shall return the said cars to the
Complainant [Respondent No.3] on the Complainant's giving
indemnity bond to the effect that if any person claims any right
over the said three cars, then, the officers of the MCGM should be
indemnified for all the actions of the third person which the said
third person may take against the MCGM for return of the said
cars. It is also case of the Petitioners that the consent pursis was
written by the advocate for MCGM which was corrected by the
advocate for Respondent No.3, i.e., the Petitioner in WP No.4594
of 2015 and thereafter the same was signed by Respondent No.
3. Respondent No.3 was asked to annexe the documents of
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these three cars which Respondent No.3 had brought.
Accordingly, Respondent No.3 had annexed the said documents
to the consent pursis. Respondent No.3 was also asked to
annexe the documents about his own identity and accordingly he
provided his PAN card, a copy of which was too annexed to the
said consent pursis. The Court thereafter took the said consent
pursis on record and passed order whereby the said notices of
motion were made absolute in terms of prayer clause (c) wherein
MCGM was directed to restore the possession of the said cars to
Respondent No.3. In terms of the said consent pursis,
Respondent No.3 was required to give indemnity bond to the
MCGM. Thereafter on 5th August 2014, Respondent No.3 came to
the office of the Petitioner in WP No. 4595 of 2015 along with the
stamp paper of Rs.100/- and indemnity bond was prepared on 5 th
August 2014 by the Petitioner in WP No.4595 of 2014. After
preparing the said indemnity bond, Petitioner No.2 in WP No.
4595 of 2015 took Respondent No.3 to the notary public and got
executed the said indemnity bond with the signature of Petitioner
No.1 in WP No.4595 of 2015 as identifying the executant, namely,
Respondent No.3. Despite execution of the indemnity bond on
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5th August 2014, Respondent No. 3 kept the same with himself.
He did not give it to the MCGM. Thereafter suit filed on behalf of
Respondent No.3 came to be adjourned on many occasions. In
April 2015, Respondent No.3 wanted to engage another advocate
to represent him in the said suit. He therefore approached
Petitioner No.1 in WP No.4595 and took "no objection" from him.
Respondent No.3 thereafter engaged another advocate to
represent him in the said suit. On or about 13 th October 2015,
the Petitioners came to know that Respondent No.3 has filed the
FIR in Colaba Police Station against them. The sum and
substance of the FIR is that on 1 st August 2014, he (Respondent
No.3) was not present in the City Civil Court and he has not
signed the consent pursis and said consent pursis was filed
without his instructions/consent by the Petitioner in WP No. 4594
of 2015 and order was taken from the Court with regard to the
return of vehicles to Respondent No.3. On the basis of this
complaint, FIR was registered by Colaba Police Station against the
Petitioners for the offence punishable under sections 420, 467,
468 and 471 read with 34 of the Indian Penal Code, 1860.
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4. The learned Senior Counsel appearing for the
Petitioners submitted that Respondent No.3 was very much
present in the City Civil Court Bombay on 1st August 2014 when
the consent pursis was prepared and filed and on the basis of
which the City Civil Court passed the order directing the MCGM to
return the vehicles to Respondent No.3. They also submitted that
there is no gain to the Petitioners due to filing of said consent
pursis and it is Respondent No.3 alone who was to be benefited
by the orders passed by the City Civil Court. They further
submitted that consent pursis specifically provides that it is filed
without prejudice to the rights and contentions of the
Complainant [Respondent No.3] and the indemnity bond was to
be given only for the purpose of getting the possession of the
cars and therefore no right of Respondent No.3 was curtailed by
the said consent pursis. There was no reason for the Petitioner in
WP No.4594 of 2015 to file consent pursis without instructions
from Respondent No.3 inasmuch as in pursuant of the consent
pursis, order favourable to Respondent No.3 was passed, keeping
open his rights. It was also submitted by the learned Senior
Counsel appearing for the Petitioners that consent pursis
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mentions the chasis numbers of the cars, which were within the
exclusive knowledge of Respondent No.3 only. The documents
annexed to consent pursis were also in the possession of
Respondent No.3 only. These facts show that Respondent No.3
was personally present at the time of filing of the consent pursis
and the same was filed only after Respondent No.3 signed it. It is
further submitted that admittedly Respondent No.3 has signed
the indemnity bond therefore he was aware about the consent
pursis. But, he kept mum for the period of more than one year
and with malafide intentions filed the present FIR. The learned
Senior Counsel appearing for the Petitioners submitted that
action initiated by Respondent No.3 against the Petitioners by
way of FIR is after-thought, malafide and sheer abuse of the
process of law. They lastly submitted that even if the allegations
made against the Petitioners are taken at their face value, the
same do not disclose any offence as alleged and FIR deserves to
be quashed.
5. The learned Counsel appearing for the Respondent
No.3 strongly opposed the petitions. He submitted that inherent
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powers under section 482 of the Code of Criminal Procedure,
1973 read with Article 226 of the Constitution of India has to be
exercised sparingly and in the rarest of rare cases. He submitted
that in normal course, quashment of the FIR should be done as
an exception inasmuch as the genuineness of the averments
made in the FIR cannot be examined and gone into by the Court
while examining the possibility of its qaushment under section
482 of the Code of Criminal Procedure, 1973 read with Article 226
of the Constitution of India. It was submitted that FIR is not the
encyclopedia of the entire events and cannot contain the
minutest details of the events. Since the FIR is not the document
which requires the decision with exactitude, nor is it a document
which requires mathematical accuracy and nicety, but only
requires to communicate or be indicative of disclosure of an
offence, quashment of the same at such a premature stage of
investigation would deprive not only the Complainant but also
the investigating officer of a free and fair chance to investigate
into the allegations of the Complainant.
. The learned Counsel appearing for the Respondent
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No.3 also contended that the Respondent No.3 was not present
in the Bombay City Civil Court on 1 st August 2014 and his
signature on the consent pursis was forged by the Petitioners in
collusion with each other and thereby Respondent No. 3 was put
to loss inasmuch as in the light of said forged consent pursis,
Respondent No. 3 is precluded from taking any action against the
MCGM for causing great injury / loss to him. The learned Counsel
appearing for the Respondent No.3 submitted that petition is
devoid of any merit and the same deserves to be dismissed.
6. We have gone through the petitions and annexures
thereto including the complaint, indemnity bond and consent
pursis. The allegations against the Petitioners in WP No. 4594 of
2015 in the subject FIR are that though Respondent No.3 was not
present in the City Civil Court on 1st August 2014 and he had not
signed the consent pursis dated 1st August 2014, yet his signature
was made on the said pursis and the same was filed in the Court
thereby putting Respondent No.3 into great loss inasmuch as
because of the said consent pursis, Respondent No.3 was unable
to challenge the actions of MCGM. The allegations against the
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Petitioners in WP No.4595 of 2015 in the subject FIR are that the
indemnity bond which was prepared on 5th August 2014 was not
signed by the said Petitioner but in fact it was signed by
Petitioner No.2 in WP No. 4595 of 2015 who is clerk of Petitioner
No.1 in WP No. 4595 of 2015. The allegations against the
Petitioners in WP No.4593 of 2015 are that they are the juniors of
the Petitioner in WP No. 4595 of 2015 and they were attending 3 rd
Respondent's suit in the City Civil Court, Bombay and therefore
they have also participated in the said offence which was
registered with Colaba Police Station. The allegations against the
Petitioners in WP No.316 of 12015 are that they in collusion with
the Petitioners in WP No.4594 of 2015, prepared the bogus
document and submitted the same before the Court on 1 st August
2014 with the knowledge that the same are bogus document.
7. There is no dispute that on 12th June 2014 and 17th
June 2014, garage of 3rd Respondent was demolished by the
MCGM employees and three vehicles were towed away by the
demolition squad and Respondent No. 3 thereafter filed a suit in
the City Civil Court, Bombay and took out two notices of motion
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through the Petitioner in WP No.4595 of 2015. There is also no
dispute that the said notices of motion were placed before the
City Civil Court on 1st August 2014 and during the course of
hearing, consent pursis was prepared and filed in the Court and
on the basis of that pursis the City Civil Court directed the MCGM
to return the said vehicles to Respondent No.3. The fact that
Respondent No.3 thereafter signed the indemnity bond on 5 th
August 2014 is also not in dispute. The consent pursis contains
the description of the chasis number of the said vehicles. The
record also discloses that along with the said consent pursis, copy
of the PAN card of Respondent No.3 was annexed as and by way
of proof of his identity. Respondent No.3 however alleges that he
was not present in the Court on 1st August 2014 and consent
pursis was prepared by the Petitioners in collusion with each
other by forging his signature and have thus put him to
irreparable loss inasmuch as he now cannot sue the MCGM for
the damages.
8. We are conscious about the settled position of law
that powers under section 482 of the Code of Criminal Procedure,
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1973 and Article 226 of the Constitution of India are to be
exercised sparingly and in very rarest of rare cases. We are also
aware about the position that veracity of the allegations made in
the FIR cannot be gone into at the stage of quashment of FIR.
Equally it is the settled position of law that if the allegations made
in the FIR are taken at their face value and accepted in their
entirety do not prima facie constitute any offence, in that case,
the High Court in exercise of its inherent powers can quash the
FIR. The High Court in order to prevent the abuse of the process
of any Court or otherwise to secure the ends of justice can also
exercise the inherent powers to quash the FIR. Reference can be
made to Bhajanlal v/s State of Harayana [1994 AIR 604]
9. In the light of above settled position of law, let us
consider the allegations made by Respondent No.3 in the subject
FIR. As stated above, FIR is registered for the offence punishable
under sections 420, 465, 468 and 471 read with 34 of the Indian
Penal Code, 1860. The first section of the Indian Penal Code,
1860 alleged against the Petitioners is section 420. Upon
carefully going through the record, we really fail to understand as
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to how the offence under section 420 IPC could be alleged
against the Petitioners on the basis of so called forgery. It is not
even allegation of Respondent No.3 that there is any
representation made to him by any of the Petitioners. There is
no allegation in the entire FIR that any of the Petitioners induced
Respondent No.3 to do any act. Therefore in our opinion, the
applicability of section 420 of IPC is out of question.
10. This takes us to consider the allegations made by
Respondent No.3 in the subject FIR against the Petitioners for
offence under sections 465, 468 and 471 of IPC. Section 465 of
IPC provides the punishment for committing of forgery. Section
468 lays down punishment for committing of forgery intending
that the document shall be used for the purpose of cheating.
Section 471 provides that whosoever fraudulently or dishonestly
uses as genuine any document or electronic record which he
knows or has reason to believe to be forged document or
electronic record shall be punished in the same manner as if he
had forged such document or electronic record. The present
case does not relate to making of false electronic record.
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Therefore, the question is whether the Petitioners in filing
consent pursis as alleged by Respondent No.3 can be said to have
made and executed false document in collusion with each other.
11. In order to allege that a person has made false
document, it must be shown that it is done dishonestly or
fraudulently. The word "dishonestly" is defined in section 24 of
IPC to mean whoever does anything with the intention of causing
wrongful gain to one person or wrongful loss to another person,
is said to do that thing dishonestly. In the present case, reading
of the entire allegations in the FIR makes it abundantly clear that
there is no wrongful gain to any of the Petitioners or wrongful
loss to the Complainant-Respondent No.3 herein. Under the
consent pursis, the Complainant was to get back three vehicles /
cars mentioned therein on his giving indemnity to the MCGM that
in the event of any claim / action, civil or criminal being filed
against the employees or agent of MCGM in connection with the
possession of three vehicles, he [Respondent No. 3] shall
indemnify the MCGM. The consent pursis also shows that it was
without prejudice to the rights and contentions of either parties.
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Reading of the consent pursis, makes it clear that indemnity was
to be given in connection with the return of the cars and that too
only in the event any claim / action against the employees /
agents of MCGM is filed. It is also clear that the pursis was filed
without prejudice to the rights and contentions of either parties.
Thus, Respondent No. 3 was not prevented under the said
consent pursis from taking action for damages against the
corporation or its employees for any loss or damages that may
have been caused to him by the demolition of his garage and/or
taking away of the said vehicles. Respondent No. 3 was merely
required to give indemnity regarding the claim / action in
connection with the possession of said three cars. It is clear that
indemnity was necessitated and clause to that effect was inserted
in the consent pursis as the corporation claimed that Respondent
No. 3 is not the owner of those three vehicles and in the event
real owners come forward to claim the said vehicles, the
corporation should be indemnified by Respondent No.3. In these
circumstances, we do not find that there is any wrongful gain to
any of the Petitioners or wrongful loss to Respondent No. 3 and
therefore it cannot be said that the consent pursis was made
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dishonestly.
12. The Apex Court in the case of Dr. Vimla v. Delhi
Administration [AIR 1963 SC 1572] considered the definitions of
"forgery" as mentioned in section 463 of IPC, "making of false
document" as defined in section 464 of IPC and "fraudulently" as
defined in section 25 of IPC, and observed thus :
"The word "defraud" includes an element of deceit.
Deceit is not an ingredient of the definition of the
word "dishonestly" while it is an important
ingredient of the definition of the word
"fraudulently". The former involves a pecuniary or
economic gain or loss while the latter by
construction excludes that element. Further, the
juxtaposition of the two expressions "'dishonestly"
and "fraudulently" used in the various sections of
the Code indicates their close affinity and therefore
the definition of one may give colour to the other.
To illustrate, in the definition of "dishonestly",
wrongful gain or wrongful loss is the necessary
enough. So too, if the expression "fraudulently'
were to be held to involve the element of injury to
the person or persons deceived, it would be
reasonable to assume that the injury should be
something other than pecuniary or economic loss.
Though almost always an advantage to one causes
loss to another and vice versa, it need not
necessarily be so. Should we hold that the concept
of "fraud" would include not only deceit but also
some injury to the person deceived, it would be
appropriate to hold by analogy drawn from the
definition of "dishonestly" that to satisfy the
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definition of "'fraudulently" it would be enough if
there was a non-economic advantage to the
deceiver or a non-economic loss to the deceived.
Both need not co-exist.
....
.....
To summarize, the expression "'defraud" involves
two elements, namely, deceit and injury to the
person deceived. Injury is something other than
economic loss that is', deprivation of property,
whether movable or immovable, or of money, and it
will include any harm whatever caused to any
person in body, mind, reputation or such others. In
short, it is a non economic or non- pecuniary loss. A
benefit or advantage to the deceiver will almost
always cause loss or detriment to the deceived.
Even in those rare cases where there is a benefit or
advantage to the deceiver, but no corresponding
loss to the deceived, the second condition is
satisfied."
13. Recently in Mohammed Ibrahim vs. State of Bihar
[(2009) 3 SCC (Cri) 929], the Apex Court has reiterated the above
principles.
14. If the observations of the Apex Court are considered
in the light of facts of the present case, then, it is clear that the
Petitioners are not guilty of any deceit nor they have secured any
advantage to themselves nor caused economic loss or injury to
Respondent No.3. Therefore, in our considered opinion the
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consent pursis dated 1st August 2014 cannot be said to have been
made fraudulently also. The consent pursis cannot be said to be
covered within the definition of "false document". If that be so, it
is also not covered by the definition of "forgery". Therefore, the
FIR does not disclose any of the offence punishable under
sections 465, 468 and 471 of IPC.
15. Before parting with this judgment, it must be
mentioned that the offence is alleged to have been committed by
the Petitioners on 1st August 2014. Respondent No.3 admittedly
thereafter signed the indemnity bond. Apart from the fact that
consent pursis contains the information which was within the
exclusive knowledge of Respondent No.3, the fact that the
Respondent No. 3 was aware about the same at least on 5 th
August 2014 is clear. Long Cause Suit No.1705 of 2014 thereafter
appeared on board on many occasions and was adjourned from
time to time for the period of one year. Respondent No.3 also
obtained "no objection" from the Petitioner in WP No.4595 of
2015 and engaged another advocate to represent him and the FIR
ultimately came to be filed in the month of October 2015.
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Though the delay itself is not the ground to quash the FIR, the
same coupled with the observations made hereinabove speak
volumes. Since we find that the FIR does not disclose any
offence, the same deserves to be quashed. The continuation of
the proceedings against the Petitioners, in our opinion, will
amount to the abuse of the process of law. Hence, writ petitions
are allowed. The subject FIR, being FIR No.132 of 2015 registered
with Colaba Police Station for the offence punishable under
section 420, 465, 467 and 471 read with 34 of the Indian Penal
Code, 1860 is hereby quashed.
[S. C. GUPTE, J.] [RANJIT MORE, J.]
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