Bombay High Court
Wamanrao Narayanrao Bhasme vs State Of Mah.Thr. State Cid Nagpur on 13 December, 2017
Bench: R. B. Deo
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
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
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
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
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
