Indrajit Shankarrao Nageshkar vs The State Of Maharashtra And Anr
2022 Latest Caselaw 9646 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             CRIMINAL APPELLATE JURISDICTION

           CRIMINAL WRIT PETITION NO.2727 OF 2018

Indrajit Shankarrao Nageshkar                  ....Petitioner
            Versus
1. The State of Maharashtra, &
2. Samit Jaising Nageshkar.                    .... Respondents

                                .....
Mr. Shirish Gupte, Senior Advocate a/w. Tejas Hilage, Supriya
Kak, Karl Rustomkhan, for the Petitioner.

Smt. M.R. Tidke, APP, for the Respondent No.1-State.

Mr. Venkatesh Dhond, Senior Advocate i/b. Kuldeep S. Patil, for
the Respondent No.2.
                            .......

                           CORAM : SARANG V. KOTWAL, J.

                           DATE     : 22nd SEPTEMBER, 2022

ORAL JUDGMENT :

1. This is a Writ Petition challenging the order dated

16.3.2018 passed in Criminal Revision Application No.70/2017 by

the Additional Sessions Judge, Kolhapur. The petitioner was the

original accused No.1 in Regular Criminal Case No.480/2016 on

the file of the Chief Judicial Magistrate, Kolhapur. The petitioner

had filed an application for discharge under Section 239 of Cr.P.C.

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from that case. The allegations against him were commission of

offences punishable under Sections 406, 418 and 420 read with

34 of IPC. Learned Chief Judicial Magistrate, Kolhapur vide his

order dated 29.3.2017 had allowed that application and had

discharged the petitioner from the case. Respondent No.2, who

was the original complainant, challenged that order before the

Sessions Court at Kolhapur. That Revision Application was

allowed. The order passed by the Chief Judicial Magistrate,

Kolhapur was set aside and, therefore, now the petitioner is facing

the trial. He has challenged the order passed in Criminal Revision

Application No.70/2017 passed by the Additional Sessions Judge,

Kolhapur, as mentioned earlier.

2. Heard Shri Shirish Gupte, learned Senior Counsel for

the petitioner, Smt. M.R. Tidke, learned APP for the respondent

No.1-State and Shri Venkatesh Dhond, learned Senior Counsel for

the respondent No.2.

3. The complaint was lodged by the respondent No.2

herein. For the sake of convenience, it is clarified that the

respondent No.2 and the petitioner would be referred to by their

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status in the present Writ Petition. The respondent No.2 is the

original complainant and the petitioner is the original accused

No.1.

4. The respondent No.2 had filed the complaint praying

for order under Section 156(3) of Cr.P.C. The allegations, in brief,

in the complaint are as follows :

i. The respondent No.2 is having a business of hotel and he

is Director of Nageshkar Memorial Hotel Management

Institute. On 24.4.1990, the respondent No.2 through his

father as his guardian along with the petitioner, Swapna

Kulkarni, K. Madhavrao and Asha Golwalkar purchased a

land at village Kandalgaon, Taluka-Karveer, District-

Kolhapur at R.S. No.14, Hissa No.13B admeasuring 25

Ares from one Satish Pawar. At the time of execution of

the sale deed, the respondent No.2 was a minor and,

therefore, the documents were signed on his behalf by his

father as his guardian.

ii. The respondent No.2, his family and other relatives have

other properties in different places in Karveer Taluka. His

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relatives are staying at different places in Kolhapur and

outside Kolhapur. Therefore, to complete the formalities

regarding those properties in Karveer Taluka, the

respondent No.2 and other relatives executed a Power of

Attorney in favour of the petitioner on 10.2.2000. It is

the specific case of the respondent No.2 that in that

document of Power of Attorney, the respondent No.2 had

not given any rights in respect of the land R.S. No.14,

Hissa No.13B. Inspite of that, the petitioner took

dishonest advantage of that Power of Attorney and caused

division of the said land at village Kandalgaon bearing

R.S. No.14, Hissa No.13B. This was done without the

respondent No.2's permission or consent. Then the

petitioner had got this particular property attached to his

other land. In that behalf, no information or notice was

given to the respondent No.2.

iii. When the respondent No.2 came to know that his

property was misappropriated by the petitioner, he

obtained documents under the Right to Information Act.

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At that time, the respondent No.2 came to know about

these facts. The respondent No.2 then gave a complaint to

Gokul Shirgaon police station, Kolhapur but the police did

not take cognizance of his complaint and, therefore, he

filed a complaint before the Judicial Magistrate, First

Class, Kolhapur on 6.3.2012.

5. The in-charge Judicial Magistrate, First Class vide his

order dated 15.3.2012 directed registration of FIR and

investigation into the offence as per Section 156(3) of Cr.P.C. In

that order, the brief allegations in the complaint were mentioned.

It was also observed that it appeared that the allegations made by

the respondent No.2 were well founded. The offences were

serious and cognizable. The offences needed to be investigated by

the police and, therefore, based on these reasons, the order was

passed.

6. Pursuant to this order, FIR was lodged vide C.R.

No.4/2012 at Juna Rajwada police station, Kolhapur on 19.3.2012

under Sections 406, 418, 420, 465, 468 of IPC. The investigation

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was carried out and the charge-sheet was filed. The charge-sheet

is annexed to this Writ Petition. The statements of the witnesses

are also part of the charge-sheet besides the important documents

and copies of the extracts regarding different properties. The gist

of all this investigation is mentioned in the charge-sheet under the

column "brief facts of the case".

7. During investigation, the statements of the respondent

No.2 and other important witnesses viz Asha Golwalkar, Jitendra

Shirodkar, Vrushali Naik etc. were recorded. Some important

features of the documents in question were also mentioned in the

charge-sheet. The sale deed of R.S. No.14/13B admeasuring 25

Gunthas by which both the parties became owners, did not

mention exactly how much share was owned by them.

8. Asha Golwalkar, who was also a co-owner, did not

have any grievance against the petitioner, as according to her, the

petitioner had shown his willingness to give her share of the land.

Swapna Kulkarni, Vrushali Naik, Jitendra Shirodkar, however,

supported the respondent No.2's allegations against the petitioner.

The investigation revealed that vide Mutation Entry dated

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4.7.2003 R.S. No.14, Hissa No.13B was shown to be divided into

sub-divisions 14/13C(1) to (6). Those entries were made in form

No.6. In those entries, the respondent No.2 and other three co-

owners were shown to have rights in Hissa No.13C(5)

admeasuring 0.14 i.e. 14 Ares. The petitioner was shown to have

his rights in Hissa No.13C(3).

9. Thus, the investigation revealed that the petitioner

had obtained three gunthas land from the common land of the

respondent No.2, the petitioner and other co-owners causing loss

of three gunthas to the respondent No.2 and other co-owners. As

per the shares, he could have claimed ownership for 8 Guntha

land from R.S. No.14, Hissa No.13B, but, out of that land instead

of 8 Gunthas, he has obtained 11 Gunthas by taking help of the

division of R.S. No.14/13B. It is alleged that in his efforts accused

No.2 Jondhalekar, who was an officer in the City Survey Office,

had helped him.

10. In this connection another document i.e. application

for division of the land is important. That application is dated

31.3.2001 signed by the petitioner, Subhash Babu Sanpkal,

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Hindurao Ramu Sankpal and also bears thumb impression of

Dadu Ramu Sanpkal. In that application, request was made for

dividing Survey No.14/13B and 14/13D into three parts. This

document is important and significance of that document shall be

discussed at appropriate place in this order.

11. The Chief Judicial Magistrate mainly observed that

though the Power of Attorney did not specifically mention R.S.

No.14/13B, in paragraph-12 of his order he held that the said

power-of-attorney 'impliedly' authorises the petitioner to record

names of the informant and other co-sharers as per their shares in

property bearing R.S. No.14/13/B at Kandalgaon. Mainly based

on this reasoning, the petitioner's application for discharge was

allowed. This very observation was held to be improper by the

learned Additional Sessions Judge in his order whereby the trial

Court's order was set aside. This particular discussion is made in

paragraph-11 of the Sessions Court's order.

Submissions on behalf of the petitioner :

12. Learned Senior Counsel Shri Gupte made following

submissions :

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(a) The original complaint was not supported by an affidavit

of the respondent No.2. The provisions of Section 154(3)

of Cr.P.C. were not complied with before approaching the

Magistrate's Court and, therefore, as per the ratio of the

judgment of the Hon'ble Supreme Court in the case of

Priyanka Srivastava and another vs. State of Uttar Pradesh

and others1, the complaint itself was not maintainable

and, therefore, the entire further proceedings were

vitiated.

(b) He submitted that in the 7/12 extract in respect of

R.S.No.14/13D, the name of the respondent No.2 is also

mentioned as a co-owner. Similarly even the petitioner's

name is mentioned as a co-owner. This property was held

as a joint family property which includes names of the

petitioner and the respondent No.2's uncle and other

family members. The respondent No.2 has not suffered

any loss in respect of the land.

    (c)    He, then referred to the important document Power of


1    (2015) 6 SCC 287


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Attorney dated 10.2.2000. He submitted that this

particular Power of Attorney gives full rights to the

petitioner to carry out all the procedure mentioned in the

Power of Attorney. The Power of Attorney mentions that

the joint-owners had properties at Kandalgaon and the

petitioner was the owner of the properties in Gokul

Shirgaon. After discussion it was decided to exchange the

properties so that the petitioner would be owner of

Kandalgaon property and the executors of the Power of

Attorney i.e. co-owners of the property in Kandalgaon

would become owners of the properties at Gokul Shirgaon

and for that purpose the petitioner was given power to

take steps to make changes in the revenue record.

(d) He submitted that the recitals of this Power of Attorney

show that the petitioner has not committed any offence by

exercising his powers which he derived from that Power of

Attorney. Using this particular Power of Attorney, he

applied for division of the property on 31.3.2001. Even

the uncle of the parties, who was head of the family in the

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year 1994, had applied for measurement of the said

property and the petitioner had only continued such

applications and, therefore, no offence was committed by

him.

(e) Shri Gupte further submitted that the sale deed dated

24.4.1990 in respect of R.S. No.14, Hissa No.13B does not

specify the area which the co-owners were entitled to,

however, the sale-deed does mention the amounts paid by

the five co-owners. The petitioner had paid Rs.29,450/-

out of Rs.89,830/-. The respondent No.2 had paid only

Rs.18,890/- and as per the provisions of Sections 37 and

44 of the Transfer of Property Act, the petitioner was

entitled to his proportionate share and he was also

entitled to alienate his share or deal with that share.

Considering his ownership rights, there was no necessity

or requirement in law for him to have taken consent from

the co-owners for division of this property.

(f) In any case it was the duty of the Government Officers to

issue notices to the co-owners before effecting the division

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and for that lapse, if any, the petitioner cannot be held

liable.

(g) Just by making an application for such division cannot fall

within the ambit of the definition of 'cheating' or

'misappropriation' or even 'criminal breach of trust'. To

what exact share the co-owners are entitled to could only

be decided by a Civil Court and the respondent No.2 has

wrongly invoked the criminal jurisdiction.

(h) Shri Gupte then relied on the following judgments

(i) Yogesh @ Sachin Jagdish Joshi Vs. State of Maharashtra2;

(ii) Dilawar Balu Kurane Vs. State of Maharashtra3; and

(iii) P. Vijayan Vs. State of Kerala and another4

to contend that if two views are equally possible and if the

Judge is satisfied that the evidence produced before him

gives rise some suspicion but not grave suspicion against

the accused, then he will be fully justified to discharge the

accused in exercising jurisdiction under Section 227 of the

Code of Criminal Procedure. The Judge cannot act merely

2 (2008) 10 SCC 394 3 (2002) 2 SCC 135 4 (2010) 2 SCC 398

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as a post-office or a mouthpiece of the prosecution but has

to consider the broad probabilities of the case, the total

effect of the evidence and the documents produced before

the Court. The Court is bound to decide whether there is

sufficient ground to proceed against the accused.

Submissions on behalf of the respondent No.2 :

13. Shri Dhond, learned Senior Counsel appearing for the

respondent No.2 made following submissions :

(a) He submitted that the petitioner has not informed the

Court that the order passed under Section 156(3) of Cr.P.C.

was upheld by the Additional Sessions Judge vide his order

dated 21.6.2014. This order was passed in Criminal

Revision Application No.113/2012 preferred by the

petitioner herein. The fact of dismissal of this revision was

not brought to the notice of this Court. He submitted that

said order was passed on 21.6.2014 and it was not

challenged further. Thus, it had attained finality and,

therefore, it was not open for the petitioner now to canvass

that the order under Section 156(3) of Cr.P.C. suffered

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from any infirmity.

(b) Shri Dhond relied on the judgment of the Hon'ble Supreme

Court in the case of State by the Inspector of Police,

Chennai Vs. S. Selvi and another5 that explained the scope

of the power to discharge the accused. It was observed in

that judgment in paragraph-10 as follows :

"10. If on the basis of the material on record, the Court would form prima facie opinion that the accused might have committed the offence, it can frame charge, though for conviction it is required to be proved beyond reaqsonable doubt that the accused has committed the offence. At the time of framing of charges, the probative value of the material on record has to be gone into and the Court is not expected to go deep into the matter and hold that the materials would not warrant conviction. The Court is required to evaluate the material on record at the stage of Sections 227 or 239 of the Code, as the case may be, only with a view to find out if the facts emerging therefrom taken at the face value discloses the existence of all the ingredients constituting the alleged offence. It is trite that at the stage of consideration of an application for discharge, the Court has to proceed with the presumption that materials brought on record by the prosecution are true and evaluate such material with a view to find out whether the facts emerging therefrom 5 (2018) 13 SCC 455

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taken at their face value disclose existence of the ingredients of the offence."

He submitted that in this particular case not

only a prima facie case was made out, but as per this ratio

there is a presumption that the materials brought on

record are true.

(c) On merits of the matter, he submitted that the petitioner

has basically mixed-up two issues deliberately. The

property i.e. R.S. No.14/13B admeasuring 25 Ares was

purchased in the year 1990 and it had five owners

including the petitioner and the respondent No.2, whereas

the property i.e. R.S. No.14/13D had 27 owners and it was

purchased in 1993. Those two properties are separate and

their owners are different. The petitioner had very cleverly

in his application before the Revenue Authorities had

projected himself to be holder of Power of Attorney in

respect of both the properties whereas his power was

restricted only to the property R.S. No.14/13D. The co-

owners of R.S. No.14/13B had not given him any authority

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to effect any partition or deal with that property. The

application dated 31.3.2001 does not disclose that other

co-owners of R.S. No.14/13B had not consented to any

such division.

(d) He submitted that as per his share in R.S. No.14/13B, he

was entitled to only 8 Ares of the land but he had taken 11

Ares thus causing loss of 3 Ares. He had used that property

to consolidate his other land which was adjoining to these

properties. Thus he had obtained dishonest financial gain

to a much higher value than he was actually entitled to. He

has also caused loss to the respondent No.2 and other co-

owners. He, therefore, submitted that all the ingredients of

the offences are clearly made out and, therefore, there was

no scope to hold that the petitioner was entitled for

discharge from the case. The reasoning of the Sessions

Court is proper and it cannot be interfered with.

Reasons and conclusions :

14. I have considered these submissions. As is laid-down

by the Hon'ble Supreme Court, the scope for consideration of

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discharge of an accused is well formulated. If the allegations give

rise to suspicion but not grave suspicion the Court can discharge

the accused but in the process the Court is not required to make a

roving enquiry into the pros and cons of the matter and weigh the

evidence as if he was conducting a trial. As held in the case of S.

Selvi (supra), the Court will have to find out if the facts emerging

from the material, at the face value, disclose the existence of all

the ingredients constituting the alleged offence. The Court has to

proceed with the presumption that the material brought on record

by the prosecution are true and evaluate such material with a

view to find out whether the facts emerging therefrom taken at

their face value disclose existence of the ingredients of the

offence. Based on these guidelines, I am considering this Writ

Petition.

15. As far as the challenge to the order under Section

156(3) of Cr.P.C. is concerned, that issue stood concluded long

back in the year 2014 itself and that order was not challenged by

the petitioner further. It had attained finality. After that the

investigation was completed. Charge-sheet was filed. The

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discharge application was decided. Even Revision Application was

decided. In none of these proceedings, this point was raised.

Therefore, at this late stage, the petitioner cannot contend that the

order passed under Section 156(3) of Cr.P.C. suffers from any

infirmity. Moreover now that the investigation is carried out and

since there is material against the petitioner that material will

have to be tested on merits.

16. The basic feature of this case depends on the Power of

Attorney in question. As mentioned earlier, it was executed on

10.2.2000 by 27 co-owners of R.S. No.14, Hissa No.13D

admeasuring 1 Hectare 32 Ares situate at village Kandalgaon,

Taluka-Karveer, District-Kolhapur; out of which the subject matter

of the Power of Attorney was 1 Hectare 23.75 Ares. The recital is

specific and it is restricted to R.S. no.14, Hissa No.13D. It makes

no reference to R.S. No.14, Hissa No.13B. Except for the

petitioner and the respondent No.2 the owners of these properties

are different. The description of the property is interesting. It

describes the other properties which are surrounding R.S. No.14,

Hissa No.13D. Out of which, on the South there is a property of

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R.S. No.14, Hissa No.13B owned by Ramu Ganu Sankpal, on the

North also there is a land owned by Ramu Ganu Sankpal and the

petitioner jointly, and on the West there is a land of Subhash Babu

Sankpal. The names of these owners of the adjoining surrounding

lands are important because the application in question bear

signatures of Subhas Babu Sankpal and sons of Ramu Sankpal.

Thus, it is clear that R.S. No.14, Hissa No.13B is a large piece of

land. Some portion is co-owned by the petitioner, the respondent

No.2 and three other co-owners who had purchased that portion

in the year 1990 vide sale deed dated 24.4.1990. The area owned

by these people was 25 Ares. What the application dated

31.3.2001 made to the City Survey Office projects is that all the

signatories of that application i.e. the petitioner, Subhash Babu

Sankpal, Hindurao Ramu Sankpal and Dadu Ramu Sankpal are

the co-owners of R.S. No.14/13B and R.S. No.14/13D. The

petitioner has described himself as the Power of Attorney Holder

of the 26 co-owners. His Power of Attorney was in respect of R.S.

No.14/13D. The other signatories were part co-owners of R.S.

No.14/13B. Thus, the other co-owners of the portion of the land

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i.e. R.S. No.14/13B i.e. the respondent No.2, Swapna Kulkarni, K.

Madhavrao and Asha Golwalkar had not consented for any such

division; and yet, false representation was made that the

petitioner and other signatories to that application had full rights

to seek division of those properties. The request in that

application was for dividing those two lands into three parts.

There was no separate request for two different lands i.e. R.S.

No.14/13B and 14/13D. Using this particular application

ultimately the land i.e. R.S. No.14/13B was divided and the

petitioner gained unfair advantage for himself to the extent of 3

gunthas land, as is reflected from the investigation.

17. Thus, prima facie there is a strong case against the

petitioner. It is not merely a civil dispute. The investigation based

on all these documents does reveal a definite intention and

execution of offence on the part of the petitioner at least prima

facie. Therefore, the trial is required to proceed further. The

petitioner can explain all these allegations only during trial. At

this stage, there is sufficient material against him prima facie

requiring the Court to frame charges against him for the offences

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mentioned hereinabove. In this view of the matter, there is no

infirmity in the order passed by the Sessions Court in Revision

Application. Consequently the Writ Petition is dismissed. It is

clarified that these observations are prima facie in nature, the trial

Court shall decide the trial in accordance with law.

(SARANG V. KOTWAL, J.)

Deshmane (PS)

Digitally signed by PRADIPKUMAR PRADIPKUMAR PRAKASHRAO PRAKASHRAO DESHMANE DESHMANE Date:

2022.09.23 17:31:46 +0530

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