Prafulla Purushottam Gadge vs Buldana Urban Co-Operative ...
2017 Latest Caselaw 9214 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
              Criminal Application [APL] No. 182 of 2012


 1.      Ratnakar Dinkarrao Bohate,
         aged about 37 years,
         occupation service,
         resident of Ravindranath
         Tagore Ward, Bhandara.

 2.      Chandrakant Hariji Balbudhe,
         aged about 47 years,
         occupation service,
         resident of C/o Laxman Bawankule,
         Pandharabodi Road,
         Shukrawari Bhandara.

 3.      Shyam Devrao Tembhare,
         aged about 42 years,
         occupation service,
         resident of Milk Chilling Centre's
         Quarter, Sindpuri,
         Post -Bhendala,
         Tq. Pauni, Distt. Bhandara.

 4.      Maroti Yelleyya Bongoniwar,
         aged about 45 years,
         occupation nil,
         resident of New Friends Colony,
         Khat Road, Bhandara.

 5.      Omprakash Chaturam Padole,
         aged about 48 years,
         occupation NIL
         resident of Shraddha Peth,



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         New Friends Colony,
         Khat Road, Bhandara.                   .....           Applicants


                                   Versus


 State of Maharashtra,
 through Police Station Officer,
 Bhandara Police Station,
 Bhandara.                                      .....     Non-applicant


                              *****
 Mr. Anil Mardikar, Senior Adv., with Mr. S.G. Joshi, Adv., for the
 applicants.

 Mr. A. Madiwale, Addl. Public Prosecutor for the non-applicant.

                                     *****


                                CORAM :        A.S. CHANDURKAR, J.

                                Date       :   14th November, 2017

 ORAL JUDGMENT:

01. By this application filed under Section 482 of the Code of

Criminal Procedure Code, 1973, a challenge is raised to the order

dated 6th January, 2012 in Criminal Revision No. 64 of 2010 whereby

the said proceedings filed on behalf of the present applicants have

been dismissed and the order passed by the learned Magistrate

refusing to discharge the applicants has been confirmed.

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02. Facts, in brief, are that according to the Administrative

Officer of the Bhandara District Milk Producers' Co-operative

Federation, the present applicants had filed proceedings before the

Industrial Court, Bhandara, being ULP No. 82 of 2001. It was stated

that a letter dated 9th April, 2007 was received in the matter of filling

various posts. In view thereof, as per Resolution No.6 dated 11th April,

2007, it was informed that work should be allotted as per the

entitlement of the employees. However, in the proceedings before the

Industrial Court, a forged letter was got prepared and filed so as to

make a show that, that letter had Outward No. 49/2007 dated 11trh

April, 2007. According to the complainant, the signature, seal and

outward number was not of the Federation. On that basis, a report

came to be lodged on 9th May, 2007. According to the complainant,

the applicants herein were in the employment of the Federation and

they were responsible for preparation of that document. In view of

that report, offence under Sections 468 and 471 read with Section 34

of Indian Penal Code [for short, "the Penal Code"] came to be

registered against the applicants.

03. The applicants herein moved an application below Exh.13

seeking discharge. This application was rejected by the learned

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Judicial Magistrate on 20th October, 2010. The Revision Application

filed by the applicants was also dismissed. Being aggrieved, the

present Application has been filed.

04. Shri Anil Mardikar, learned Senior Counsel for the applicants,

submitted that the learned Magistrate as well as the learned Judge of

the Sessions Court failed to take into consideration the effect of the

provisions of Section 195 of the Code. According to the learned Senior

Counsel, on a reading of the complaint, it was clear that the grievance

of the complainant was with regard to offence being committed under

Section 193 of the Penal Code. If an offence under said provision was

alleged to have been committed as the alleged document had been

filed in the proceedings before the Industrial Court, in view of

provisions of Section 195 (1) (b) (1) of the Code, cognizance of that

offence at the instance of the complainant could not be taken. The

prescribed procedure was required to be followed. It was submitted

that this ground was specifically urged before the Courts, but by

observing that offence was made under Sections 468 and 471 of the

Penal Code, said contention was not considered. He referred to the

order passed by the Industrial Court dated 29th August, 2007, in

which, on the basis of evidence of the Managing Director, it was

observed that the documents filed in Complaint No. 82 of 2007 were

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genuine. This aspect of the matter was also not considered, thereby

causing prejudice to the rights of the applicants. Relying upon the

judgments of Honourable Supreme Court in Durgacharan Naik &

others Vs. State of Orissa [AIR 1966 SC 1775] and Kailash Mangal

Vs. Ramesh Chand (dead) through legal representative [ (2015)

15 SCC 729] , it was submitted that the provisions of Section 195 of

the Code could not be evaded by seeking to apply some other Section

when such offence was not made out. It was, therefore, submitted

that on an overall consideration of the matter, the applicants were

entitled for being discharged.

05. Shri A. Madiwale, learned Addl. Public Prosecutor for the

non-applicant, supported the impugned order. According to him, no

offence under Section 193 of the Penal Code was made out and

Process had been rightly issued with regard to offence punishable

under Sections 467 and 468 of the Penal Code. He submitted that

provisions of Section 195 of the Code did not come into picture and

both the Courts had rightly refused to discharge the applicants herein.

He further submitted that it was rightly observed by the Sessions Court

that unless evidence was led by the parties, the applicants were not

entitled to seek discharge on the basis of the material on record. He

relied on the judgment of learned Single Judge in Dadasaheb

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Shankar Yadav Vs. Chandrakant Jijaba Yadav & another [1999

(1) Mh.L.J. 34 ] to urge that unless the Court found the document to be

fabricated, the bar under Section 195 of the Code was not attracted. It

was, therefore, submitted that the application deserves to be rejected.

06. I have heard the learned counsel for the parties at length

and I have perused the documents placed on record.

07. According to the complaint dated 9th May, 2007, it was the

grievance of the complainant that in Complaint No. 82/2007 filed

before the Industrial Court, a forged letter bearing a false outward

number and not having the signature or seal of the authorized person

came to be filed. That document was sought to be shown as having

been issued by Federation. After the Process was issued against the

present applicants for offences punishable under Section 468 and 471

read with Section 34 of the Penal Code, they had applied for discharge

as per application below Exh.13. According to the applicants, the

offence related to fabrication of documents and bringing on record

false evidence. Same was punishable under Section 193 of the Penal

Code and, therefore, the proceedings could not have been initiated on

the basis of a private complaint. The learned Chief Judicial Magistrate,

Bhandara, merely by observing that the application moved by the

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applicants was without any substance rejected the same. A specific

ground, being Ground No.5 was raised by the applicants before the

Sessions Court on the count that the offence alleged to have been

made out was under Section 193 of the Penal Code and, therefore,

the bar under Section 195 of the Code was attracted. However, said

contention does not appear to have been specifically considered even

by the Sessions Court.

08. In Durgacharan Naik & others [supra], it has been held by

the Honourable Supreme Court that the provisions of Section 195 of

the Code cannot be evaded by changing the nature of offence,

especially when the offence as alleged does not apply. This position

has been reiterated in the subsequent decision in Kailash Mangal

[supra]. I find that this ground having been specifically raised before

the learned Chief Judicial Magistrate as well as before the Sessions

Court, the same was required to be considered as it went to the

jurisdiction of the Court while proceeding with the complaint. The

impugned orders do not reflect consideration of this challenge though

the same was specifically raised. On this count, I, therefore, find that

the matter deserves to be remitted to the Sessions Court for re-

consideration of these aspects. In so far as reliance sought to be

placed on the decision in Dadasaheb Shankar Yadav [supra] is

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concerned, its application or otherwise would be a matter to be urged

before the Sessions Court. I find, the impugned orders are vitiated on

account of failure to consider the challenge as specifically raised.

09. In view of aforesaid, the following order is passed:-

[a] The order dated 6th January, 2012 passed by learned Sessions Judge, Bhandara, in Criminal Revision No. 64 of 2010 is set aside.

[b] The proceedings are remitted to the Sessions Court for their re-consideration in accordance with law. It is clarified that the observations made in this order are only for deciding the present proceedings and the Sessions Court shall decide the Revision Application on its own merits without being influenced in any manner by any observations made in this order. Respective contentions are kept open. The Revision Application shall be decided expeditiously.

10. Application is partly allowed in aforesaid terms. No costs.

Judge

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