Girish S/O Padmakar Girdhar vs State Of Maharashtra Thr. Pso Ps ...
2021 Latest Caselaw 12154 Bom

                                          1   Cri.APL No.381.20 & .439.20-J.odt

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

             CRIMINAL APPLICATION (APL) NO. 381 OF 2020
                               AND
             CRIMINAL APPLICATION (APL) NO. 439 OF 2020


 CRIMINAL APPLICATION (APL) NO. 381 OF 2020

 Sandeep S/o. Purushottam Bansod,
 Aged about 47 years, Occ. Business,
 R/o. Plot no.22, Railway Colony,
 Pratap Nagar, Nagpur.                                 ......APPLICANT

               ----VERSUS----

 1.     The State of Maharashtra,
        Through Police Station Officer,
        Police Station, Pachpaoli,
        Nagpur, Tah. & Distt. Nagpur.

 2.     Shashank S/o. Natthuji Choudhari,
        Aged about 35 years, Occ. Doctor,
        R/o. Shegaon (Gotade),
        Tah. Samudrapur, District Wardha.       ......NON-APPLICANTS

                      AND

 CRIMINAL APPLICATION (APL) NO. 439 OF 2020

 Girish S/o. Padmakar Girdhar,
 Aged about 32 years, Occ. Business,
 R/o. Plot no.82, Sahakar Nagar,
 Khamla Road, Nagpur.                                  ......APPLICANT

               ----VERSUS----

 1.     The State of Maharashtra,
        Through Police Station Officer,
        Police Station, Bajaj Nagar,
        Nagpur, Tah. & Distt. Nagpur.

 2.     Shashank Natthuji Choudhari,
        Aged about 35 years, Occ. Doctor,
        R/o. Shegaon (Gotade),
        Tah. Samudrapur, District Wardha.       ......NON-APPLICANTS


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                                                     2    Cri.APL No.381.20 & .439.20-J.odt

 -------------------------------------------------------------------------------------------
 In Both Applications :
 Shri Bhushan Dafle, Advocate for the Applicants.
 Shri V. A. Thakare, Additional Public Prosecutor for the Non-applicant No.1.
 Shri A. B. Patil, Advocate for the Non-applicant No.2.
 -------------------------------------------------------------------------------------------
          CORAM :          V. M. DESHPANDE AND
                           AMIT B. BORKAR, JJ.

DATE : 31.08.2021.

JUDGMENT : (PER AMIT B. BORKAR, J.)

1. Heard.

2. Rule. Rule is made returnable forthwith.

3. By these applications under Section 482 of the Code of

Criminal Procedure, both the applicants have challenged

registration of the First Information Report No.169/2020 dated

18.07.2020 registered with the non-applicant No.1 - Police Station

against the applicants for the offences punishable under Sections

120-B, 364-A, 386, 420, 467, 468, 471, 504 and 506 of the Indian

Penal Code, Section 135 of the Maharashtra Police Act, 1951 and

Section 3/25 of the Arms Act, 1959.

4. The First Information Report came to be registered

against the applicants and others with the accusations that the

property in dispute was owned by one Sadashivrao Bansod who

bequeathed entire property at Surendra Nagar in favour of the

non-applicant No.2 by registered will-deed dated 29.07.2015. The

applicant in Criminal Application (APL) No.381/2020 is the

accused No.3 and the applicant in Criminal Application (APL)

No.439/2020 is the accused No.2. It is alleged that Sadashivrao

Bansod was admitted in Hospital on 22.03.2018 and after his

death accused No. 3 and his other relatives called non-applicant

No.2 and pressurized him to vacate the house which was

bequeathed to the complainant/non-applicant No.2. It is alleged

that non-cognizable offence was registered with the non-applicant

No.1 - Police Station in that regard. It is alleged that Sandeep

Bansod and other relatives made several applications with the

Banks where the name of the non-applicant No.2 was entered as a

nominee. It is also alleged that Sandeep Bansod and other

relatives filed a complaint on 03.05.2018 against the

non-applicant No.2 that he has taken all documents pertaining to

the properties of deceased Sadashivrao Bansod. It is alleged that

the complainant/non-applicant No.2 along with his Advocate

visited the Police Station and shows them the relevant documents.

It is alleged that on 22.10.2018 at around 9.30 a.m., when the

non-applicant No.2 completed his duty at Life Care Hospital and

when he came out of the Hospital, he saw the applicants and other

persons standing in front of the Hospital in Creta car bearing

No.MH-40/BE-9990. It is alleged that the non-applicant No.2 left

the Hospital on his motorcycle, but the applicants and others

followed him. But the non-applicant No.2 managed to escape from

the clutches of the applicants and others and went to his village

Shegaon. It is alleged that on 24.10.2018, when the non-

applicant No.2 went to attend his duties at 9.30 p.m., he saw Sahil

Sayyad at the parking of the Hospital. Sahil Sayyad approached

the non-applicant No.2 and forcibly took the non-applicant No.2

in the same Creta Car. The applicants were already present in the

Creta Car. It is alleged that the applicants along with others took

the non-applicant No.2 near Pratap Nagar Square. At that time,

one unknown person took out a gun and pointed on the head of

the non-applicant No.2. The accused No.1 threatened the non-

applicant No.2, but the non-applicant No.2 initially refused to sign

the documents, but when the non-applicant No.2 was assaulted,

he under fear of his life signed the compromise-deed and some

blank papers. It is also alleged that the accused No.1, thereafter,

snatched Wallet of the non-applicant No.2 and forcibly took out

Passport photographs and Adhar Card. It is alleged that on the

same day, the accused No.1 made a phone call from his number to

complainant's cell phone and threatened him with dire

consequences and told him to come to Setu Office, Nagpur on

25.10.2010. The complainant/non-applicant No.2 therefore, went

to the Setu Office, Nagpur where the accused No.1 and 2 were

already present and the non-applicant No.2 was forced to sign the

documents. The non-applicant No.2 therefore filed the First

Information Report bearing Crime No.169/2020 against both the

applicants and others. The applicants have therefore, challenged

registration of the First Information Report by filing present

applications.

5. This Court issued notice to the non-applicants. The

non-applicant No.1 - Investigating Agency has filed reply in

Criminal application No.381/2020. It is stated in the reply of the

non-applicant No.1 that the Investigating Agency has so far

conducted the investigation and recorded statement of four

witnesses. It is stated that the applicant was frequently visiting the

house of the non-applicant No.2 and used to threaten him with

dire consequences in respect of the disputed will executed in

favour of the non-applicant No.2. The Investigating Officer has

recorded statement of one Akshay Bagde, who had signed as a

witness in respect of will executed in favour of the non-applicant

No.2. It is stated that the Investigating Agency has collected voice

sample of the accused No.1 and has sent the same to the Forensic

Expert to ascertain authenticity of call record. The Investigating

Officer has seized couple of documents bearing signature of the

late Sadashivrao in order to verify the signature on the disputed

will. It is stated that the material collected so far by the

Investigating Officer would prima facie shows that the present

applicant has played an active role along with other accused and

hatched a criminal conspiracy in order to commit the aforesaid

offences.

6. The non-applicant No.2 has filed his reply and has

stated that mere perusal of the First Information Report discloses

ingredients of the offence alleged against the applicants. The

non-applicant No.2 has given details as to how will executed in his

favour is genuine and how the applicants have prepared forged

will. It is pointed out that the applicant Sandeep Bansod has

already filed Regular Civil Suit No.884/2018 seeking declaration

and permanent injunction against the non-applicant No.2.

7. Having carefully considered the allegations in the First

Information Report, it appears that the First Information Report

gives detailed account of alleged commission of offences by the

applicants. The reply filed by the non-applicant No.2 prima facie

shows that the Investigating Agency is having prima facie material

to satisfy the ingredients of the offences alleged against the

applicants. Prima facie, it appears that the will in relation to the

disputed property executed in favour of the non-applicant No.2 is

a registered will. On the contrary, the alleged will executed in

favour of the applicants is unregistered will. In the First

Information Report, the non-applicant No.2 has provided sufficient

details of incident occurred on 24.10.2018. The Investigating

Agency has already sent the evidence collected against the

applicants and others to the experts to ascertain authenticity of it.

As regards delay in registration of the First Information Report is

concerned, the Hon'ble Apex Court in the case of P. Rajagopal and

others Vs. State of Tamil Nadu reported in 2019(5) SCC 403, has

held thus :

"12. Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of the possibility of concoction of evidence by the prosecution. However, if the delay is satisfactorily explained, the Court will decide the matter on merits without giving much importance to such delay. The Court is duty bound to determine whether the explanation afforded is plausible enough given the facts and circumstances of the case. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the accused falsely."

8. The Hon'ble Apex Court in the case of State of Madhya

Pradesh vs. Chhaakki Lal and another reported in 2019(12) SCC

326, has held thus:

"26. Delay in setting the law in motion by lodging the complaint or registration of FIR is normally viewed by courts with suspicion because there is possibility of concoction of the case against the accused. But when there is proper explanation for the delay, the prosecution case cannot be doubted on the ground that there was delay in registration of FIR. In this case, the delay in FIR has been properly explained and the same is not fatal to the prosecution case."

9. We are, therefore, of the opinion that the prosecution

needs to be given an opportunity to explain delay, if any, in filing

the First Information Report and at this stage, it may not be

proper to quash the proceedings at its threshold. On over all

consideration of the allegations in the First Information Report, we

are satisfied that if the allegations in the First Information Report

are accepted in their entirety, it prima facie disclose the offences

alleged against the applicants.

10. We are of the view that for the purpose of quashing the

First Information Report, it is necessary to consider whether the

allegations in the First Information Report prima facie makes out

an offence or not. In our opinion, it is not necessary to scrutinise

the allegations for the purpose of deciding whether such

allegations are to be accepted in the trial. Any action by way of

quashing the First Information Report is an action to be taken at

the threshold before evidence are led in support of the First

Information Report. It is well settled that the inherent power of

this Court under Section 482 of the Code of Criminal Procedure

should not be exercised to stifle a legitimate prosecution and

should be exercise sparingly with great care and caution.

11. In our view, the allegation against the applicants is that

the applicants have prepared forged will-deed of deceased

Sadashivrao in relation to the property of which the non-applicant

No.2 has become owner by virtue of registered will executed in his

favour by the deceased Sadashivrao in the year 2015. In our

opinion, therefore, prima facie, the allegations in the First

Information Report do prima facie constitute the offences under

Sections 420, 467, 468 and 471 of the Indian Penal Code.

12. In our opinion the allegations in the First Information

Report along with the reply filed by the non-applicant No.2 in

relation to the incident allegedly occurred on 24.10.2018

disclosed fulfillment of the ingredients of offence under the

provisions of the Arms Act and Section 364-A, 386, 120-B, 504

and 506 of the Indian Penal Code.

13. This Court has already rejected Criminal Application

(APL) No.715/2020 filed by Sahil Sayeed, which raised challenge

to the First Information Report No. 305/2020. This Court while

rejecting application of the applicant in Criminal Application

(ABA) No.106/2021 in relation to Crime No.381/2020 registered

by Ravishankar Sahare has made prima facie observations that

attempt to grab property on the basis of forged and fabricated

document does not appear to be an isolated incident and there

appears to be a crime syndicate which is actively involved in such

offences.

14. Taking over all view of the matter and the material

placed on record, we are satisfied that this is not a fit case to

exercise power under Section 482 of the Code of Criminal

Procedure, 1973.

15. Hence, Criminal Application (APL) No.381/2020 and

Criminal Application (APL) No. 439/2020 are dismissed.

16. Rule is discharged. Pending application(s), if any,

stand(s) disposed of.

                              JUDGE                                     JUDGE




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