Mushtaque Alam Khurshid Alam vs The State Of Maharashtra And Anr
2017 Latest Caselaw 4917 Bom

                                          1        Cr WP 691 of 2008

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                  Criminal Writ Petition No. 691 of 2008


     *       Mustaq Alam s/o Khurshid Aalam,
             Age 48 years,
             Occupation : Business,
             R/o Marathwada Plot, Juna Mondha,
             Parbhani.                       ..                 Petitioner.

                      Versus

     1)      The State of Maharashtra,
             Through Nanalpeth Police
             Station, Parbhani.

     2)      Mohd. Nasaruddin s/o Mohd.
             Qutubuddin Khatib,
             Age 75 years,
             Occupation: Business,
             R/o Kazi Mohalla, Partur,
             Taluka Partur, District Jalna.              .. Respondents.

                                      ----

     Shri. Anil H. Kasliwal, Advocate, holding for Mrs. Netrali
     Gangwal Jain, Advocate, for petitioner.

     Shri. S.W. Munde, Additional Public Prosecutor, for
     respondent No.1.

     Shri. R.V. Gore, Advocate, for respondent No.2.

                                      ----

                               Coram:         T.V. NALAWADE &
                                              SUNIL K. KOTWAL, JJ.

                               Date   :       24 July 2017




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                                             2         Cr WP 691 of 2008

     JUDGMENT (Per T.V. Nalawade, J.) :

1) The petition is filed for quashing of the First

Information Report bearing M. Case No.5/2008 registered

in Nanalpeth Police Station, Parbhani for offences

punishable under sections 406, 420, 464, 465, 467, 468,

471 of the Indian Penal Code. Both the sides are heard.

2) The petitioner is a son of sister of respondent

No.2. The respondent No.2 was holding a CL III licence

which was granted in the year 1973. In the year 1980

respondent No.2 allowed the petitioner to run the shop as

the petitioner was not having any job and as he was

relative of respondent No.2. Allegation is made by

respondent No.2 in the private complaint which is

referred for investigation that behind his back present

petitioner, accused, created some false record of

applications purportedly given by respondent No.2 to the

Excise Department and also produced one person to pose

himself as respondent No.2 for giving statement and by

using that modus operandi he got transferred the licence

in his name. It is the contention of the respondent No.2,

3 Cr WP 691 of 2008

complainant that when he realised this mischief of the

petitioner, he made representations to the officers and

higher authorities of the Excise Department but they did

not take any action against the petitioner and the licence

is continued in the name of present petitioner, accused.

3) Respondent No.2 challenged the said decision

of the Excise Department of transfer of licence in favour

of petitioner by filing proceeding before the Commissioner

but the said proceeding was dismissed. That decision was

challenged by filing a writ petition in this Court in the

year 2008 but the petition is dismissed by the High Court

as questions of facts were involved in the matter. After

that, private complaint came to be filed in the Court of the

Judicial Magistrate, First Class on 31-1-2008 by making

aforesaid allegations.

4) Learned counsel for the petitioner submitted

that proper inquiry was made by the officers and the

authorities of the Excise Department and only after that

they had given decision that application was given by

respondent No.2 and he has also given statement before

4 Cr WP 691 of 2008

the officers. The learned counsel submitted that when the

change was made in the year 1981, the Judicial

Magistrate ought not to have entertained the complaint in

the year 2008.

5) The allegations as they are show that

respondent No.2 who was admittedly holding the licence

is not admitting his signatures appearing on the

applications and the statement. It appears that on two

occasions separate applications were made. In the first

occasion it was informed that the petitioner was added as

partner in the business so prayer was made to add him in

the licence as partner. Then this first application was not

pressed and another application was given to inform that

by way of gift, the respondent had given everything of his

shop to the petitioner and then the licence was

transferred in the name of the petitioner. There is nothing

on record to show that there was any consideration which

is ordinarily taken by the licence holder. He did not get

anything from the business. This circumstance cannot be

ignored. The complainant is asking only to compare his

contemporary signatures appearing on some admitted

5 Cr WP 691 of 2008

record with the disputed signature and that can be done

through handwriting expert. That can help police to

ascertain the truth. Then there will be subjective

satisfaction of the investigating agency and it will decide

as to whether charge-sheet needs to be filed or report

needs to be filed under section 169 of the Code of

Criminal Procedure. Thus, there are both possibilities and

there are aforesaid circumstances. There is no need to be

afraid to the petitioner that he will be arrested as the

aforesaid things can be done by giving proper directions.

6) In the result, the petition is dismissed. Rule

discharged. Interim relief, if any, stands vacated. However,

it is made clear that after receipt of the report of hand

writing expert, the investigating agency will give time of

72 hours to the petitioner and before that no coercive

action is to be taken against him. For the investigation

there is no need to call the petitioner up to that stage.

                     Sd/-                                 Sd/-
     (SUNIL K. KOTWAL, J.)                       (T.V. NALAWADE, J.)

     rsl