Haresh Motiram Aswani Alias ... vs Tulijo Narayandas Lakhani And Anr
2021 Latest Caselaw 11555 Bom

                                                            wp-4707-2019.doc




             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CRIMINAL APPELLATE JURISDICTION

                       WRIT PETITION NO.4707 OF 2019

Haresh Motiram Aswani
@ Haresh Motiram Khatri                             ...Petitioner
           vs.
Tulijo Narayandas Lakhani and Another               ...Respondents

Mr. Niranjan Mundargi a/w. Mr. Keval Mehta, for the Petitioner.
Mrs. S.D. Shinde, APP for the Respondent-State.

                                 CORAM : S.S. SHINDE &
                                         N.J. JAMADAR, JJ.

JUDGMENT RESERVED ON : 16th JULY, 2021 JUDGMENT PRONOUNCED ON : 23rd AUGUST, 2021

---------------

JUDGMENT : (Per N.J.Jamadar, J.)

1. Rule. Rule made returnable forthwith and, with the consent

of the counsels for the parties, heard fnally.

2. This petition takes exception to continuation of the Criminal

Case being CC No.1014/PW/2016 pending on the fle of learned

Judicial Magistrate First Class at Pimpri Chinchwad, Pune arising

out of frst information report No. 218 of 2015 lodged on 3 rd April,

2015 by Mr. Tulijo Narayandas Lakhani-respondent No. 1 for the

offences punishable under sections 465, 467, 468, 471 of Indian

Penal Code, 1860 (the penal code).

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3. The petitioner has invoked the extraordinary and inherent

jurisdiction of this Court seeking quashment of the above

numbered proceeding on the basis of the settlement arrived at

between the petitioner and respondent No. 2.

4. We have heard Mr. Mundargi, learned counsel for the

petitioner, and Mr. Shinde, learned APP for the State.

5. With the assistance of the learned counsel for the parties, we

have also perused the material on record, including the report

under section 173 of the Code of Criminal Procedure, 1973 (the

Code) and the documents annexed with it.

6. An affdavit is sworn by respondent No. 2 giving no objection

for quashment of the said proceeding. Paragraph Nos. 2 to 4 of the

affdavit read as under:

2] I say that I had preferred the said complaint in a ft of range and I am no longer keeping good health. I will not be able to prosecute the matter any further due to old age and ill-health and I now have no complaint, objection against the said Mr. Haresh Motiram Aswani @ Haresh Motiram Khatri for quashing of the said complaint as styled by me and I also do hereby state that I have to withdraw all allegations made against him in my pleading, correspondence before any legal forum and shall not cause to prosecute the same in

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view of the said settlement/compounding.

3] I crave leave to refer to and rely upon the said complaint as if the same is forming part of my present affdavit. I further state that I shall not press for any compensation and/or claim any damages against the said Haresh Motiram Aswani @ Haresh Motiram Khatri in the future over the said cause and so also I have given this affdavit on being assured that the same act will be reciprocated by the petitioner.

4] I say that I have no complaint against the petitioner and I do hereby cause to withdraw all allegations, complaint/s made against the petitioner before any forum in writing or otherwise.

7. In the backdrop of the amicable resolution of the dispute, Mr.

Mundargi, learned counsel for the petitioner, urged that the

continuation of the criminal proceeding would serve no fruitful

purpose and the ends of justice would be secured by quashing the

said proceeding.

8. In opposition to this, Mr. Shinde, learned APP stoutly

submitted that having regard to the nature of the accusation, the

cause of justice would not be advanced by quashing the proceeding

on the basis of the settlement between the parties.

9. To begin with, it may be apposite to consider the gravamen of

indictment against the petitioner. In the frst information report

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dated 3rd April, 2015 lodged by the respondent No. 1, it was alleged

that while contesting the election of the Committee of Seva Vikas

Cooperative Bank Limited, Pimpri, Pune, a society registered under

the Maharashtra Co-operative Societies Act, 1960, for the term

2014-15 and 2019-20, the petitioner had flled nomination form as

Haresh Motiram Aswani instead of Haresh Motiram Khatri and also

claimed to have acquired graduate qualifcation. The respondent

No. 1 entertained suspicion as the petitioner had in the past

claimed to have passed 12th standard examination only. Upon

scrutiny, it transpired that the petitioner in support of his claim

that he was a graduate submitted a Provisional Certifcate

(No.2KI139536) with the registration number BC10UCM15960114

dated 17th October, 2011 purported to be issued by the Controller of

Examinations, Periyar University, Salem, Tamilnadu certifying that

the petitioner has qualifed for the degree of "Bachelor of

Commerce", having passed the said degree examination held in

June, 2011. The respondent No. 2 addressed a letter to the said

University to ascertain the genuineness and correctness of the said

Provisional Certifcate. Vide communication dated 26 th February,

2015, the Controller of Examinations informed the bank that the

above referred Provisional Certifcate was not issued by the Periyar

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University. Thereupon, respondent No. 2 lodged the frst

information report leading to registration of C.R.No. 218 of 2015.

10. During the course of the investigation, it was re-affrmed by

the Periyar University that the Provisional Certifcate dated 17 th

October, 2011 was not issued by the said University. However, it

was confrmed that the petitioner had appeared for the

examination of Bachelor of Commerce in May/June, 2011 and the

statement of marks bearing number 2K1A043615 for the

registration number B1OUCM15960114 in the name of Khatri Hari

for Bachelor of Commerce in May/June, 2011 was issued by the

said University.

11. Mr. Mundargi, learned counsel for the petitioner strenuously

urged that there is no controversy over the fact that the petitioner

has acquired degree qualifcation from Periyar Univeristy. In this

backdrop, the continuation of the prosecution against the

petitioner on the basis of communication that the provisional

certifcate dated 17th October, 2011 was not issued by the Periyar

University would amount to abuse of the process of the Court. As

the petitioner and respondent No. 2 - the frst informant have

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amicably resolved the dispute, it would be futile to continue the

prosecution and make the petitioner undergo the rigours of trial.

12. We have given careful consideration to the aforesaid

submission. Ordinarily, where a prayer for quashment of the

prosecution is rested on an amicable settlement of the dispute,

such request receives a favourable consideration as the

continuation of the prosecution, in such a situation, would serve

no meaningful purpose and the quashment of the prosecution may

foster lasting peace. Inherent power of the Court to quash the

proceeding is therefore couched in wide terms. If Court comes to

the conclusion that the ends of justice would be met and the abuse

of the process of the Court would be obviated by quashing the

prosecution, the fact that the offences are non compoundable does

not operate as an impediment. Much turns upon the nature of the

offences. Though every offence is an offence against the society at

large, yet certain offences which arise out of commercial disputes

and have predominantly civil favor may not affect society at large

with equal measure. In contrast, prosecution for offences of serious

and heinous nature which have prejudicial effect on the society as

a whole do not deserve to be scuttled even if the victim may not be

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interested in the prosecution.

13. A proftable reference in this context can be made to the

judgment of the Supreme Court in the case of Gian Singh vs. State

of Punjab1, wherein the Supreme Court elucidated the nature of

the inherent powers of the Court and the circumstances in which it

can be exercised. It was inter alia observed as under:

"61. ............ But the criminal cases having overwhelmingly and predominatingly civil favour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, fnancial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in the affrmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."

(emphasis supplied)

1 (2012) 10 Supreme Court Cases 303.

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14. Reverting to the facts of the case, the frst task is to ascertain

the nature of the offence and its impact on the society.

Indisputably, at this juncture, there is material to indicate that

Periyar University has repeatedly asserted that the Provisional

Certifcate dated 17th October, 2011, allegedly submitted by the

petitioner while flling nomination form, was not issued by it. Such

communications were made on 26th February, 2015, 25th March,

2015 and 10th June, 2015, upon being requisitioned by the bank

and the investigating agency. Thus, at this stage, there is adequate

material to substantiate the indictment that a false document was

tendered in support of the claim that the petitioner is a graduate,

prima facie.

15. Mr. Mundargi, attempted to salvage the position by

canvassing a submission that even if it is assumed that the

Provisional Certifcate is not a genuine, or for that matter, a false

document, yet, in the backdrop of the fact that the petitioner has,

in fact, passed the B.Com examination held in May/June, 2011,

the prosecution for the offences punishable under sections 465,

467, 468, 471 of the Penal Code is wholly unsustainable. No beneft

of whatsoever nature can be said to have been derived by the

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petitioner by placing on record the alleged false document and,

therefore, the continuation of the prosecution amounts to the

abuse of the process of the Court.

16. To bolster up the aforesaid submission Mr. Mundargi placed a

strong reliance on the judgment of the Supreme Court in the case

of Parmindar Kaur vs. State of U.P.2. In the said case the appellant

therein was prosecuted for having allegedly altered the dates from

"6" to "16" and "7" to "27" on the certifed copies of the revenue

record. In the peculiar facts of the said case, where the appellant

was a 75 year old woman, the Supreme Court held that, even by

the said alternation and forgery, the appellant could not have

derived any beneft nor it caused any damage or injury to the

public or anybody. It was further observed that even if it is

presumed that the fgure was altered in the document in question,

it cannot be said that the document became false for the simple

reason that the appellant /accused had nothing to gain from the

same and she was not going to save the bar of limitation. Evidently,

the aforesaid pronouncement turned on its own peculiar facts.

2 AIR 2010 Supreme Court 840.

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17. In the case at hand, the nature of the document assumes

critical signifcance. The document in question is a Provisional

Certifcate purported to have been issued by the statutory

university certifying the fact that the petitioner had passed the

examination. There is material to indicate that the University has

categorically asserted, on multiple occasions, that said certifcate is

not genuine. The matter, therefore, does not rest in the realm of a

private dispute. The fact that the petitioner had, in fact, passed the

examination does not efface the factum of making a false

document. It is a different matter that it may dilute the gravity of

the offence.

18. From the aforesaid stand point, the fact that the respondent

No. 2 has given no objection for quashing the proceeding is of little

signifcance. The role of respondent No. 2 was merely that of setting

the law in motion. It was essentially an offence against the society

at large. The interest of public justice would be a casualty if the

offence, wherein the allegation is of forgery of a certifcate

purported to have been issued by the statutory university, goes

untried, if not unpunished. In the backdrop of the nature of the

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document, the question as to whether the petitioner derived any

beneft therefrom is not of determinative signifcance.

19. There is another factor which dissuades us from exercising

the inherent jurisdiction. During the course of submissions, the

Court was informed by Mr. Mundargi that the petitioner had

already fled an application for discharge and it came to be rejected

by the learned Magistrate. In view of the aforesaid development,

which reinforces the prima facie fnding that there is adequate

material which warrants the prosecution of the petitioner for the

alleged offences, the ends of justice may not be secured by

quashing the prosecution.

20. Resultantly, we are not inclined to exercise the extra ordinary

and inherent jurisdiction. Hence, the following order.

                                     ORDER

           a]      The petition stands dismissed.

           b]      Rule stands discharged.

           c]      It is, however, made clear that the consideration is

confned to the justifability of the prayer for quashment

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and learned Magistrate shall decide the CC No.1014/PW/

2016 on its own merits and in accordance with law

uninfuenced by any of the observations made

hereinabove.

         (N.J. JAMADAR, J.)                     (S.S. SHINDE, J.)




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