Chitra Wd/O Shriram Ghongade And 3 ... vs The State Of Maharashtra, Thr. ...
2022 Latest Caselaw 9043 Bom

                             1



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


       CRIMINAL WRIT PETITION NO. 110 OF 2022

1.   Chitra wd/o Shriram Ghongade, aged 62
     years, Occ. Household,

2.   Amol s/o Shriram Ghongade, aged
     about 34 years, occ. : Agriculturist,

     Both R/o At Post Alangaon, Tq. Bhatkuli,
     Dist. Amravati.

3.   Prashant s/o Shriram Ghongade, aged
     about 37 years, occ : Service, R/o
     Navjivan Colony, Behind Rangoli Lawn,
     Kathora Road, Amravati, Tq. & Dist.
     Amravati.

4.   Sarika w/o Rupesh Junghare, Aged 32
     years, Occ.:Household, R/o Ward No.5,
     Pusada, Tq.& Dist. Amravati.
                                                ... PETITIONERS
                          VERSUS
1.   State of Maharashtra, through Police
     Station    Officer,  Bhatkuli,  Tq.
     Bhatkuli, Dist. Amravati.

2.   Pravin s/o Vasantrao Ghongade,
     Aged about 34 years, Occ. :
     Agriculturist.

3.   Vasantrao s/o Wamanrao Ghongade,
     aged about 62 years, Occ. :
     Agriculturist,
                                    2

          Both R/o At Post Alangaon, Tq.
          Bhatkuli, Dist. Amravati, Pin - 444
          801

                                                 ... RESPONDENTS
_____________________________________________________________
       Shri P.R. Agrawal, Advocate for the petitioners.
       Shri I.J. Damle, A.P.P. for the respondent no.1.
       Shri Ram Karode, Advocate for respondent nos. 2 and 3.
______________________________________________________________

                 CORAM                  : VINAY JOSHI, J.
                 CLOSED FOR JUDGMENT ON : 06.09.2022.
                 JUDGMENT PRONOUNCED ON : 12.09.2022.

JUDGMENT :

RULE. Rule is made returnable forthwith. Heard finally by

consent of learned Counsel appearing for the parties.

2. The challenge in this petition is to the order of issuance of

process. The petitioner nos. 1 to 4 are accused nos. 1 to 4 of private

complaint bearing No.676 of 2019, filed by respondent nos.2 and 3.

The learned Magistrate by taking cognizance of the complaint directed

to initiate an inquiry in terms of Section 202 of the Code of Criminal

Procedure (the Code). After assessing the entire material, the

Magistrate has issued process in terms of Section 204 of the Code vide

order dated 26.09.2019. The process was issued against all petitioners

for the offence punishable under Sections 193, 199, 200, 420, 468 and

471 read with Section 34 of the Indian Penal Code. Being aggrieved,

the petitioners have preferred the Criminal Revision No.121 of 2019 in

which the order of issuance of process was upheld except process under

Section 193 of the Indian Penal Code. The petitioners have impugned

herein both orders by invoking inherent jurisdiction of this Court with

an urge to dismiss the complaint by setting aside both the impugned

orders.

3. The litigation backs a checkered history. The respondent

nos. 2 and 3 (Complainants) have filed private complaint alleging that

the petitioners (accused) have filed a false affidavit before the Land

Acquisition Officer thereby stating that no litigation was pending in

between the parties. It was a case that a certain piece of land was in the

name of father of accused namely Shriramji Ghongade, which came to

be acquired. The Award was passed by the competent authority in the

name of Shriramji, who died in the year 2017. The accused in the

capacity of legal representatives of Shriramji, applied to the Land

Acquisition Authority for receipt of compensation. In said proceedings,

they have filed an affidavit stating that no civil or criminal litigation

relating to acquired land, was pending in the Courts of law.

4. It is the complainants case that at the time of filing said

affidavit dated 30.04.2019, Regular Civil Appeal No.59 of 2019 was

pending in between the parties and thus, by suppressing the said fact,

the accused have filed a false and misleading affidavit, therefore,

committed the offence. The Police have conducted an inquiry stating

that the affidavite was in usual standard format. The learned

Magistrate prima facie found that the material is sufficient to issue a

process and accordingly, passed the impugned order. The Revisional

Court held that process under Section 193 of the Indian Penal Code is

untenable and thus, reversed the order of issuance of process to that

extent only but upholded the order of issuance of process as regards to

rest of the penal provisions.

5. Learned Counsel appearing for the accused has seriously

assailed the order of issuance of process by contending that though

such affidavit was filed, it was in a standard format provided in the

Land Acquisition Office. He would submit that virtually no litigation

was pending, as already the rights of the parties were crystallized in

earlier litigation. It is submitted that the accused never intended to

suppress the litigation nor it has any consequences. According to him,

mere incorrect statement ipso facto does not make accused liable for

criminal prosecution. It is submitted that, the Land Acquisition Officer

is not a judicial authority and therefore, Section 199 and 200 of the

Code would not apply. He would submit that the essential ingredients

to constitute the office of forgery and cheating, are totally missing and

thus, continuation of criminal prosecution is abuse of process of Court.

6. Per contra, learned Counsel appearing for the complainant

would submit that, it is a matter of record that though Regular Civil

Appeal No.59 of 2019 was pending in between the parties, still the

accused have filed an affidavit dated 30.04.2019 making a positive

statement that no litigation relating to the acquired land, was pending.

It is submitted that by making such incorrect and false statement, the

accused have withdrawn the compensation amount and thus, the

offence is committed.

7. The learned Counsel appearing for the accused has taken

through factual aspect for which the otherside has no dispute. The

certain piece of land was initially owned by one Abhiman Sakharam

Ghongade. He has bequeath the said piece of land in favour of

predecessor of the accused namely Shriramji by executing of document

of Will dated 15.04.1959. The testator Abhiman died in the year 1960,

and thus, by virtue of testamentory document, Shriramji became

exclusive owner of the said land. The name of Shriramji was mutated

to the revenue record in close proximity. The accused are wife, two sons

and daughter of deceased Shriramji. During lifetime of Shriramji,

complainant Vasant Ghongade along with others had filed a Regular

Civil Suit No.358 of 1977 against Shriramji seeking declaration,

possession and injunction. In said suit, he has disputed testamentary

dispossession by Abhiman in terms of Will dated 15.04.1959. After

recording the evidence, the competent Civil Court has recorded the

categorical findings that Shriramji (predecessor of accused) has proved

that title of disputed land vests with him by virtue of document of Will

dated 15.04.1959 and accordingly, dismissing the suit vide judgment

and decree dated 31.08.1985. It is informed that the said judgment and

decree was not challenged, meaning thereby ownership of Shriramji,

has attained finality.

8. During the course of time, some portion of the said land has

been acquired by the State. The Award was passed determining the

compensation. In the meantime, complainant Vasant once-again filed

another suit bearing Regular Civil Suit No.335 of 2018 against the

accused as well as Special Land Acquisition Officer seeking declaration

of joint ownership and injunction restraining disbursement of the

compensation amount to the accused. Though temporary injunction

was sought, it was not pursued. In said suit, the accused appeared and

raised preliminary objection in terms of Order VII Rule 11(a) and (d) of

the Code of Civil Procedure. The Civil Court upheld the objection and

thereby rejected the plaint vide order dated 16.02.2019. Being

aggrieved by the said rejection of plaint, the complainant Vasant has

filed Regular Civil Appeal No.59 of 2019 on 14.03.2019. In said appeal,

accused No.1 Chitra and accused no. 2 Amol appeared on 22.04.2019.

These state of affairs were existed on the date of filing of disputed

affidavit dated 30.04.2019. In real sense, the entire controversy

revolves around the affidavit dated 30.04.2019 of accused no. 2 Amol

and accused no. 3 Prashant stating that no civil litigation was pending

relating to the acquired land. The main thrust of the complainant is on

the point that on the date of filing of affidavit i.e. on 30.04.2019,

Regular Civil Appeal No. 59 of 2019 was very much pending, and thus,

it is a deliberate false statement made to the authority inducing them to

disburse the compensation amount.

9. Learned Counsel appearing for the accused has primely

contended that though it is a matter of record that such affidavit was

filed during the pendency of the appeal, however, it was totally

unintentional. He would submit that already the rights of ownership

have been concluded finally in Regular Civil Suit No.358 of 1977 way-

back in the year 1985. The complainant by suppressing said fact has

filed subsequent suit bearing No.335 of 2018 in which he has not

pressed for temporary injunction as well as the plaint was rejected

under Order VII Rule 11 (a)(d) of the Code of Civil Procedure. Having

regard to the said factual aspect, the affidavit cannot be termed as an

intentional one to mislead the authority.

10. The Revisional Court has rightly considered that the Land

Acquisition Officer before whom the affidavit was filed, cannot be

termed as a "Court" and therefore, Section 193 would not apply. In

order to constitute the offence punishable under Section 199 and 200

of the Indian Penal Code, essentially the statement made in declaration

must be to the authority, who is bound or authorized by law to receive

the same as an evidence. Moreover, the declarant must know or believe

that it is a false declaration which touches to the material point, for

which such a declaration is made. In this regard, the learned Counsel

appearing for the accused would submit that the Land Acquisition

Authority i.e. Deputy Collector (Acquisition) is not empowered by law

to receive the affidavit as an evidence. Besides Section 60 of the Right

to Fair Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013 (for short 'the Act) the

learned Counsel for the complainant is unable to point out any

provision which authorizes the Deputy Collector to require the party to

file affidavit. In fact, Section 60 of the Act pertains to the powers of

'authority' which is established under Section 51 of the Act. Disbursing

Authority cannot be termed as an authority clothed with the powers

under Section 60 of the Act. Already an Award has been passed by

determining the amount of compensation. The Deputy Collector was to

disburse the amount of compensation, which does not include the

process of adjudication. In case of any dispute about the disbursement,

he has to refer the same to the 'authority' constituted under the Act in

terms of Section 76 of the Act.

11. Apart from that the affidavit dated 30.04.2019, appears to

have been in the format which was commonly used in the Land

Acquisition Office. The Police Authority in their report stated that the

said format was commonly used by the farmers as prepared at the

office of Maha Setu. Moreover, the affidavit was sworn only by the

accused nos. 2 and 3. The statement made in the affidavit no longer

binds accused nos. 1 and 4, who were consenting party to the extent of

disbursement of amount to rest of the accused.

12. In order to constitute the offence of cheating and forgery,

the act must be an intentional one, which appears to be totally absent.

Learned Counsel appearing for the accused by relying on the decision

of the Supreme Court in case of Sh. Narendra Kumar Srivastava vs.

State of Bihar and ors. 2019 AIR (SC) 2675 would submit that mere

incorrect or false statement does not make it incumbent on the Court to

initiate prosecution. Though the said decision pertains to Section 340

of the Code, however, principally to initiate the prosecution, the Court

shall take into consideration all relevant circumstances to decide the

question of expediency. The Criminal prosecution cannot be launched

to gratify the feelings of personal revenge or vindictiveness.

13. Further reliance is placed on the decision of the Supreme

Court in case of Amarsang Nathaji vs. Hardik Harshadbhai Patel and

ors. (2017) 1 SCC 113 to contend that mere contradictory statement in

judicial proceedings is not by itself always sufficient to justify a

prosecution. Section 195(1)(b) of the Code creates a bar for Court to

take cognizance, if a false evidence is given in the judicial proceeding.

Though herein the question of tenability of private complaint arose,

however, the same analogy can be considered. Unless it is satisfy that

there is propriety in initiating criminal prosecution and it is expedient

in the interest of justice, unmeritorious criminal prosecution shall not

be allowed to prevail. The learned Sessions Court went on technicalities

without considering the necessity to continue such prosecution in the

canvass of peculiar facts of the case. The complaint nowhere discloses

that it was a deliberate and an intentional act of the accused. The act of

filing affidavit was in the nature of completing the formality before the

Deputy Collector. Already, the issue about title of the father of accused

was concluded in Civil Suit of the year 1977. The Second suit was also

thrown out by the Court as untenable. The complainant could not get

any relief of temporary injunction in the second suit. Moreover, it is

informed that pending appeal was also dismissed in default. Therefore,

it cannot be said that intentionally accused nos. 2 and 3 have sworn the

affidavit to mislead the authority.

14. Facing the criminal prosecution is a serious affair. The

Supreme Court in case of State of Haryana vs. Bhajan Lal AIR 1992 SC

604 has ruled that if a criminal proceeding manifestly attended with

mala fide and the proceeding is instituted with an ulterior motive for

wreaking vengeance then it shall not be continued. It is apparent that

the complainant failed in Civil Court to establish his title as well as to

restrain the authority from disbursing the amount of compensation. On

successive failure, the complaint has been lodged, which cannot be

termed as bona fide one. Moreover, the complainant failed to point out

any provision under which the Land Acquisition Authority is bound and

require to obtain affidavit while disbursing the amount of

compensation. In the wake of such position, continuation of criminal

prosecution is nothing but abuse of the process of Court as well as it

would be exercise in futility. The peculiar fact persuades to invoke the

inherent jurisdiction to prevent the misuse of the process of Court.

Therefore, the order of issuance of process is untenable in the eyes of

law.

15. In view of above, the petition is succeeds. The impugned

order dated 04.01.2022 passed by the Sessions Judge, Amravati in

Criminal Revision Application No. 121 of 2019 and order dated

26.09.2019 passed by the Judicial Magistrate First Class, Amravati in

Regular Criminal Case No.676 of 2019 are set aside and the private

complaint No.676 of 2019, is hereby quashed and set aside.

16. Rule is made absolute in the aforesaid terms with no order

as to costs.

(VINAY JOSHI, J.)

Trupti

TRUPTI SANTOSHJI AGRAWAL

12.09.2022 16:58