Bombay High Court
Madhusudan Badridas Damani vs State Of Maharashtra Thr. P.S.O., ... on 24 September, 2021
Bench: V.M. Deshpande, Amit B. Borkar
Judgment 1 apl968.18+.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO. 968/2018
WITH
CRIMINAL APPLICATION (APL) NO. 951/2018
CRIMINAL APPLICATION (APL) NO. 968/2018
Madhusudan Badridas Damani,
Aged about 57 years, Occ. Agriculturist,
R/o. Ward No. 16, Nandura,
Dist. Buldhana
.... APPLICANT(S)
// VERSUS //
1] State of Maharashtra,
Through Police Station Officer,
Police Station Nandura,
Tq. Nandura, Dist. Buldhana
2] Mohammad Irfan Abdul Razzak,
Aged about 48 years, Occ. Business,
R/o. Taj Chowk, Nandura,
Tq. Nandura & Dist. Buldhna
.... NON-APPLICANT(S)
*******************************************************************
Shri A. Deshpande, Advocate for the applicant(s)
Shri V.A. Thakare, APP for the non-applicant/State
Shri S.V. Sirpurkar, Advocate for the non-applicant no. 2
*******************************************************************
ANSARI
::: Uploaded on - 28/09/2021 ::: Downloaded on - 14/10/2021 10:15:33 :::
Judgment 2 apl968.18+.odt
CRIMINAL APPLICATION (APL) NO. 951/2018
1] Sau. Anjanabai W/o Panditrao Ekde,
Aged about 75 years, Occ. Household
2] Sau. Savita W/o Rajesh Ekde,
Aged about 51 years, Occ. Household
3] Rajesh S/o Panditrao Ekde,
Aged about 54 years, Occ. Business,
All R/o. Malkapur Road, Nandura,
District Buldhana
.... APPLICANT(S)
// VERSUS //
1] State of Maharashtra,
Through Police Inspector, Nandura,
Tq. Nandura, Dist. Buldhana
2] Mohd. Irfan Abdul Razzak,
Aged about 48 years, Occ. Business,
R/o. Taj Chowk, Nandura, Tq. Nandura,
Dist. Buldhana
.... NON-APPLICANT(S)
*******************************************************************
Shri Anil S. Mardikar, Sr. Adv a/b Shri D.I. Jain, Adv for the applicant(s)
Shri V.A. Thakare, APP for the non-applicant/State
Shri S.V. Sirpurkar, Advocate for the non-applicant no. 2
*******************************************************************
CORAM : V.M. DESHPANDE & AMIT B. BORKAR, JJ.
SEPTEMBER 24, 2021
ANSARI
Judgment 3 apl968.18+.odt
JUDGMENT : (PER:- AMIT B. BORKAR, J.)
1] Heard.
2] RULE. Rule made returnable forthwith.
3] By these applications under Section 482 of the Code of
Criminal Procedure, the applicants are challenging registration of F.I.R.
No. 514/2018 dated 05/10/2018 lodged by the non-applicant no. 2
registered with the non-applicant no. 1 - Police Station for the offences
punishable under Sections 420, 464 & 34 of the Indian Penal Code.
4] The applicant in Criminal Application (APL) No. 968/2018
is accused no. 1 and the applicants in Criminal Application (APL)
No. 951/2018 are accused nos. 2 to 4. The first information report came
to be registered against the applicants with the accusations that Plot
No. 223/3 owned by Nagar Parishad, Nandura had been sold by one
Sundarabai in favour of the accused no. 1 on 26/04/1989 by bogus sale-
deed. It is alleged that after 12 years of the execution of the sale-deed, the
accused no. 1 filed R.C.S. No. 09/2001 when the accused no. 2 was the
ANSARI
Judgment 4 apl968.18+.odt
President of the Municipal Council. With the result, the Municipal
Council did not appear in the said suit and the said suit was decreed on
14/03/2002 passing the decree of possession in favour of the accused
no. 1. It is alleged that the accused in collusion with each other did not
file appeal against the decree for possession. It is alleged that the seller
Sundarabai was not the owner of the property. The accused no. 1 got the
bogus sale-deed in his favour and his name has been mutated in revenue
records by the accused persons in collusion with each other and has
grabbed the property of the Municipal Council. The non-applicant no. 2
therefore filed the said first information report. The applicants therefore
filed the present applications to challenge registration of the first
information report against them.
5] This Court on 10/10/2018 issued notices to the non-
applicants. The non-applicant no. 1 - Investigating Agency has filed
reply stating that the accused no. 1 has constructed commercial building
and shops over the said land and has sold the same to various persons. It
is stated that Sundarabai had no right to transfer any document in favour
of any person. It is stated that the decree had not been deliberately
ANSARI
Judgment 5 apl968.18+.odt
contested by the Municipal Council and the accused no. 1 has derived
huge profit out of it. The non-applicant no. 2 has not filed reply.
6] We have carefully considered the allegations in the first
information report and the material produced by the applicants and the
reply filed by the non-applicant no. 1. On perusal of the allegations in the
first information report and the material produced by the applicants, it
appears that Madhya Pradesh Government had transferred the property
in question in favour of the Municipal Council, Nandura. The Municipal
Council, Nandura closed down the veterinary dispensary and therefore
Sundarabai issued notice to the Municipal Council to hand over the
possession. The accused no. 1 purchased the said property from
Sundarabai on 26/04/1989. The accused no. 1 on 04/09/1991 sent a
letter to the Municipal Council to hand over possession of the property
on the basis of sale-deed executed in his favour. Since the Municipal
Council failed to deliver possession, the accused no. 1 filed R.C.S.
No. 09/2001 seeking possession of the suit property on the basis of
ownership. The said suit was not contested by the Municipal Council.
Learned Civil Judge Junior Division, Nandura by the judgment and order
dated 14/03/2002 directed the Municipal Council, Nandura to deliver
ANSARI
Judgment 6 apl968.18+.odt
vacant possession of the suit property to the accused no. 1 within two
months. It is pertinent to note that the accused no. 1 in the said suit had
sought possession on the basis of ownership. It is undisputed fact that the
Municipal Council had not filed appeal against the judgment and decree
dated 14/03/2002 in R.C.S. No. 09/2001. Though in the said suit
specific issue as regards the ownership of the accused no. 1 was not
framed and there is no specific finding recorded by the learned Civil
Judge Junior Division that the accused no. 1 has become the owner of
the property, in the present proceedings, we are not concerned about the
ownership of the accused no. 1. The allegations in the first information
report are in respect of the commission of the offences punishable under
Sections 420 & 464 of the Indian Penal Code. Section 464 of the Indian
Penal Code reads thus :-
"464. Making a false document. -- [A person is said to make a
false document or false electronic record-- First --Who
dishonestly or fradulently--
(a) makes, signs, seals or executes a document or part of a
document;
(b) makes or transmits any electronic record or part of any
electronic record;
(c) affixes any [electronic signature] on any electronic record;
ANSARI
Judgment 7 apl968.18+.odt
(d) makes any mark denoting the execution of a document or
the authenticity of the [electronic signature],
with the intention of causing it to be believed that such
document or part of document, electronic record or [electronic
signature] was made, signed, sealed, executed, transmitted or
affixed by or by the authority of a person by whom or by whose
authority he knows that it was not made, signed, sealed,
executed or affixed; or
Secondly --Who, without lawful authority, dishonestly or
fraudulently, by cancellation or otherwise, alters a document or
an electronic record in any material part thereof, after it has
been made, executed or affixed with [electronic signature]
either by himself or by any other person, whether such person
be living or dead at the time of such alteration; or
Thirdly --Who dishonestly or fraudulently causes any person
to sign, seal, execute or alter a document or an electronic record
or to affix his [electronic signature] on any electronic record
knowing that such person by reason of unsoundness of mind or
intoxication cannot, or that by reason of deception practised
upon him, he does not know the contents of the document or
electronic record or the nature of the alteration.]"
ANSARI
Judgment 8 apl968.18+.odt
7] An analysis of Section 464 of the Indian Penal Code shows
three categories which need to be satisfied (i) where a person dishonestly
or fraudulently makes or executes a document with the intention of
causing it to be believed that such document was made or executed by
some other person, or by the authority of some other person, by whom
or by whose authority he knows it was not made or executed; (ii) where a
person dishonestly or fraudulently, by cancellation or otherwise, alters a
document in any material part, without lawful authority, after it has been
made or executed by either himself or any other person; and (iii) where a
person dishonestly or fraudulently causes any person to sign, execute or
alter a document knowing that such person could not by reason of
(a) unsoundness of mind; or (b) intoxication; or (c) deception practiced
upon him, know the contents of the document or the nature of the
alteration.
8] In the facts of the present case, the sale-deed executed by
Sundarabai in favour of the accused no. 1 does not fall into 2 nd and 3rd
categories of false documents. It is not necessary for us to consider as to
whether Sundarabai was the owner of the land or not.
ANSARI
Judgment 9 apl968.18+.odt
9] In our opinion, Sundarabai while executing the sale-deed in
favour of the accused no. 1, did not impersonate herself as the person
authorized or empowered by the Municipal Council to execute the sale-
deed on behalf of the Municipal Council. There is no intention of
Sundarabai making the accused no. 1 to believe that the said sale-deed
was made by her with the authority of Municipal Council. When the
sale-deed was executed by Sundarabai claiming to be the owner of the
property, she is not claiming to be the Municipal Council or authorized
person on behalf of the Municipal Council. Therefore, the execution of
such sale-deed is not the execution of a false document as defined under
Section 464 of the Indian Penal Code. If the sale-deed executed by
Sundarabai is not a false document, then there is no forgery as
contemplated under Section 464 of the Indian Penal Code.
10] Insofar as the offence under Section 420 of the Indian Penal
Code is concerned, to constitute an offence under Section 420 of the
Indian Penal Code, there should not only be cheating but as a
consequence of cheating, the accused should have dishonestly induced
the person deceived (i) to deliver any property to any person, or (ii) to
make, alter or destroy wholly or in part a valuable security (or anything
ANSARI
Judgment 10 apl968.18+.odt
signed or sealed and which is capable of being converted into a valuable
security).
11] When a sale-deed executed by Sundarabai conveying a
property claiming ownership thereto, it may be possible for the accused
no. 1 to allege that Sundarabai had cheated him by making a false
representation of ownership and fraudulently induced him to part with
the sale consideration. But in the present case, the purchaser is not the
complainant but he is the accused no. 1.
12] We are therefore satisfied that from the material placed on
record including the allegations in the first information report, the
essential ingredients of the offences punishable under Sections 420 &
464 of the Indian Penal Code are not at all fulfilled. Hence, we are of the
opinion that continuance of the present proceedings against the
applicants would amount to abuse of process of the Court.
13] Hence, the following order:-
ANSARI
Judgment 11 apl968.18+.odt
(a) The criminal applications are allowed.
(b) F.I.R. No. 514/2018 registered with the non-
applicant no. 1 - Police Station against the
applicants in both the applications for the offences
punishable under Sections 420, 464 & 34 of the
Indian Penal Code is quashed and set aside.
Rule is made absolute in the above terms. Pending
application(s), if any, stand(s) disposed of.
(JUDGE) (JUDGE)
ANSARI
