Purushottam Jaynarayan Harkanth vs Mayur Shamsunder Harkanth And ...
2018 Latest Caselaw 209 Bom

Cri.W.P. No.374/2017                          1

    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              NAGPUR BENCH, NAGPUR

               CRIMINAL WRIT PETITION NO.374 OF 2017

Petitioner               :         Purushottam Jaynarayan Harkanth,
                                   Aged about 60 years, Occupation : Business,
                                   R/o. Rajde Plots, Akot,
                                   Tahsil Akot, District Akola.

                                   -- Versus --

Respondents              :      1] Mayur Shamsunder Harkanth,
                                   Aged about 30 years, Occupation: Cultivator,
                                   R/o. Ganesh Colony, Akola Road, Akot,
                                   Tahsil Akot, District Akola.

                                2] State of Maharashtra,
                                   Through Collector, Akola.

             =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
               Shri J.R. Kidilay, Advocate for the Petitioner.
             Shri J.B. Gandhi, Advocate for Respondent No.1.
               Mrs. Ritu Kaliya, A.P.P. for Respondent No.2.
             =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

                         CORAM : S.B. SHUKRE, J.

                         DATE         : 9th JANUARY, 2018.


ORAL JUDGMENT :-

Rule. Rule made returnable forthwith. Heard finally by

consent.

02] The impugned order issuing process against the

petitioner, on the face of it, does not state or give any specific

reason for proceeding against the petitioner for the offences

punishable under Sections 420, 468 and 471 of the Indian Penal

Code.

03] On the contrary, the inquiry report filed by the

concerned police station after the learned Magistrate decided to

postpone the issuance of process and proceed in the matter under

Section 202 of the Code of Criminal Procedure, specifically states

that the signature alleged to be forged was made by deceased

Shamsunder, the father of respondent no.1 in the presence of one

of the attesting witnesses, whose statement came to be recorded

during the course of inquiry. The significance of such evidence of

an attesting witness need not be emphasized any further. The

evidence of an attesting witness to a document is material and

would have its own significance for arriving at a conclusion as to

whether disputed signature is genuine or forged. There is of course

a handwriting expert's opinion, which appears to have been filed

along with the complaint. But as a decision was taken by the

learned Magistrate to postpone the issuance of process, it could be

said that in the opinion of the learned Magistrate, handwriting

expert's opinion was not sufficient to proceed against the petitioner

in this case. If it was not so, instead of postponing the issuance of

process, the learned Magistrate after examining the complainant-

respondent no.1 would have passed an order of issuance of

process. But that was not the case. The learned Magistrate, rather

chose to postpone the issuance of process and direct an inquiry to

be conducted in the allegations made against the petitioner by a

Police Officer. Such inquiry was also conducted by the Police

Officer and the report was filed before the learned Magistrate. It

was, therefore, incumbent upon the learned Magistrate to consider

the inquiry report, which was based upon the statements of

witnesses including that of attesting witness and express an

opinion about the correctness of the conclusion drawn therein or

otherwise. It was also expected of the learned Magistrate to record

his reasons as to why did he not agree with the inquiry report. This

was all the more necessary in the present case, as the learned

Magistrate himself thought that the opinion of the handwriting

expert was not sufficient by itself to proceed further in the matter.

04] Then, there is also another aspect of the case which

required consideration by the learned Magistrate. It is of pendency

of civil suit, in which a specific issue has been framed, which issue

is the only point involved in the present complaint. It is about the

alleged partition-deed dated 12/05/ 2005, being a forged document

containing forged signature of deceased Shamsunder. The Civil

Court has already made it as one of the issues to be tried in the

civil suit. This aspect of the case has not received any

consideration from the learned Magistrate.

05] In the circumstances, I find that the impugned order

directing issuance of process against the petitioner is illegal and

arbitrary. It does not give any reason and it ignores the material

placed on record by the Inquiry Officer. Such an order, therefore,

cannot stand the scrutiny of law. It deserves to be quashed and set

aside with a direction to reconsider the point of issuance of process

or otherwise in accordance with law. Hence, the following order :

i. The writ petition is allowed.

ii. The impugned order is quashed and set aside.

iii. The trial Court is directed to reconsider the point of

issuance of process or otherwise in accordance with law.

iv. Respondent no.1 to appear before the trial Court on

22nd January, 2018.

v. It is clarified that the learned Magistrate shall have

liberty to call for fresh inquriy report under Section 202

of the Code of Criminal Procedure, if felt necessary.

vi. Rule is made absolute in the above terms.

(S.B. SHUKRE, J.) *sdw