Matin Ahmad S/O Abdul Gani Qureshi ... vs State Of Mah. Thr. Pso Ps Jarawandi ...
2022 Latest Caselaw 4295 Bom

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

               CRIMINAL APPLICATION (APL) NO. 969 OF 2021

1. Matin Ahmad S/o. Abdul Gani Qureshi,
   Proprietor of M/s. Aakar Construction
   Company, Bhandara
   Aged about 68 years, Occ. Contractor,
   R/o. Shop No. 02, Ganga Sankul Apartment,
   Raj Gopalachari Ward, Bhandara,
   Tah. & Dist. Bhandara.

2. Manoj S/o. Naktuji Bagade,
   Aged about 50 years, Occ. Contractor,
   R/o. Sahakar Nagar, Bhandara,
   Tah. & Dist. Bhandara.                                                . . . APPLICANTS

                       ...V E R S U S..

1. The State of Maharashtra through
   P.S.O., P. S. Jarawandi,
   Tah. Etapalli, Dist. Gadchiroli.

2. Babbu Sheikh S/o. Nannumiya Sheikh,
    Aged about 52 years, Occ. Circle Inspector,
   Jarawandi, R/o. Khumbhar Ward No. 5,
   Cherapalli Road, Aheri,
   Tah. Aheri, Dist. Gadchiroli.                . . NON-APPLICANTS

------------------------------------------------------------------------------------------------
Shri R. M. Daga, Advocate for applicants.
Shri T. A. Mirza, APP for non-applicant no. 1/State.
None for the non-applicant no. 2.
-----------------------------------------------------------------------------------------------
                 CORAM :- V. M. DESHPANDE AND
                          AMIT B. BORKAR, JJ.

DATED :- 25.04.2022

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

1. Heard.

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2. Rule. Rule made returnable forthwith. Heard finally by

consent of the parties.

3. By this application under Section 482 of the Code of

Criminal Procedure, the applicants are challenging registration of the

First Information Report (FIR) No. 6/2020, dated 06.11.2020 registered

with the non-applicant no. 1-Police Station for the offence punishable

under Sections 468, 471, 379 of the Indian Penal Code (IPC).

4. The FIR came to be registered against the applicants with

accusations that the applicants prepared bogus Transit Passes and

illegally transported sand worth ₹ 37,74,275/-. It is alleged that when 37,74,275/-. It is alleged that when

the possession of the sand sought to be justified by the applicants on the

basis of Transit Passes, the Investigating Agency sent the Transit Passes

for verification to Mining Officer/Deputy Collector, Rajnandgaon

(Chattisgarh). It was reveled that the Transit Passes were forged. The

transportation of the sand was on the basis of the forged Transit Pass.

The applicant have therefore challenged registration of the FIR on the

ground that the applicants are bonafide purchasers of the sand from one

Vishal Deshmukh, who had sold the said sand to them.

5. This Court on 22.09.2021 issued notice to the non-

applicants. The record revels that inspite of service of notice, the non-

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applicant no. 2 choose not to appear before the Court. Hence, we are

decided the present application on its own merits. The learned APP has

produced the entire case papers for perusal of the Court.

6. In pursuance of the said notice, the non-applicant no. 1 filed

reply stating that during the course of the investigation, it is reveled that

Transit Passes issued and supplied by the applicants were forged. It is

also stated that the applicants in their statement stated that one Vishal

Deshmukh brought building material and the sand and he is absconding.

7. We have carefully considered the allegations in the FIR

alongwith the reply and the documents produced on record by the

applicants. The document at Annexure-2, which is the document issued

by Assistant Collector & Sub-Divisional Officer, Ettapalli and other

documents on record, which are public documents, having

unimpeachable nature show that Vishal Deshmukh has accepted the fact

that it is he, who has procured the Transit Passes, and sold the sand to

the applicants. On the basis of the material produced on record in the

form of case diary, it appears that the applicant are bonafied purchasers

of the sand from Vishal Deshmukh. The applicants have also produced

on record Tax invoices showing purchase of the sand. It is also appear

that the amount of consideration has been paid after deducting Goods 4 36-apl-969-21j-1.odt

and Service Tax (GST). The documents produced on record are

unimpeachable and can be relied upon at this stage.

8. The offences alleged against the applicants are under

Sections 468 and 471 of the Indian Penal Code. Section 467 of the

Indian Penal Code defines forgery of valuable security, will etc. To

attract ingredients of Section 468, it is necessary to consider the

definition of forgery defined under Section 463 and making of a false

documents as defined under Section 464 of the Indian Penal Code.

Sections 463 and 464 of the Indian Penal Code are read as under :

"463. Forgery -- Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."

464. Making a false document -- A person is said to make a false document or false electronic record --

First -- Who dishonestly or fraudulently -

(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;

(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 5 36-apl-969-21j-1.odt

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."

9. Section 468 of the Indian Penal Code is a forgery for the

purpose of cheating, which reads as under :

"468. Forgery for purpose of cheating -- Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

10. The analysis of Section 463 of the Indian Penal Code shows

that it is necessary that a person should make false documents with

intention to cause damage or injury to a person in support of his claim

or title with an intention to commit fraud.

11. The analysis of Section 464 of the Indian Penal Code shows

that a person is said to have made a false documents if,

1] He makes or executes a document claiming to be someone else or

authorised by someone else or;

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2]      He has altered or tampered with a document or;


3]       He obtains a document by practicing deception or from a person

not in control of his senses.

12. From the material produced on record and the reply filed by

the Investigating Agency, we are satisfied that the applicants are

bonafide purchaser of the sand. The offence, which are alleged against

the applicants are under Sections 468, 471 and 379 of the Indian Penal

Code. The material on record shows that applicants have not forged

the Transit Passes.

13. Theft is defined in Section 378 of the Indian Penal Code as

follows:

"378. Theft.- Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit, theft."

The essential ingredients of the offence of theft are :

(i) moving a movable property of a person out of his possession

without his consent;

(ii) the moving being in order to taking of the property with a

dishonest intention;

(iii) the absence of the person's consent at the time of moving, and;

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(iv) the presence of dishonest intention in so taking and at the time.

14. On the basis of material produced on record, there is no

dishonest intention, nor they have moved the sand from the possession

of owner. Therefore, we are satisfied that essential ingredients for the

offence under Sections 468, 471 and 379 of the IPC are not satisfied and

therefore, continuance of proceedings against the applicants would

amount to abuse of process of Court.

15. We therefore pass the following order:-

Rule is made absolute in terms of prayer clause (a), which

reads as under:-

"a) Quash F.I.R. dated 06.11.2020 registered against Applicants by P. S. Jarawandi, Dist. Gadchiroli for offences punishable U/s. 468, 471, 379 of I.P.C. vide C.R. No. 06/2020;"

                                    (AMIT B. BORKAR, J.)                     (V. M. DESHPANDE, J.)


  RR Jaiswal
          Digitally signed
          by JAISWAL
JAISWAL   RAJNESH
RAJNESH   RAMESH
          Date:
RAMESH    2022.04.26
          15:20:04 +0530