Sangita W/O. Vijayprakash ... vs The State Of Maharashtra And Anr
2023 Latest Caselaw 3310 Bom

                                        1                    Cr. WP / 439 / 2020


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                  CRIMINAL WRIT PETITION NO. 439 OF 2020

1. Smt. Sangita W/o Vijayprakash Thombre
   Age : 43 years, Occu : Social Work,

2. Vijayprakash S/o Kishanrao Thombre
   Age : 56 years, Occu : Agriculture and
   Chairman of Loknete Gopinathrao Mundhe
   Magasvargiya Sahakari Soot Girni Maryadit,
   Kaij, Tq. and Dist. Beed                                      .. Petitioners

          Versus

1. The State of Maharahtra,
   Through Police Inspector,
    Kaij Police Station,
   Tal : Kaij, Dist. : Beed

2. Shri. Ganpati S/o Sainappa @ Sonappa Kamble
   Age : 71 years, Occu : Agriculture,
   R/o : Ladegaon, Tq. : Kaij,
   Dist. : Beed                                                  .. Respondents

                                       ...
Mr. V.D. Sapkal, Sr. Advocate i/b.Mr. Amol B. Chalak, Advocate for petitioners
           APP for the respondent - State : Mr. G.O. Wattamwar
           Advocate for the respondent no. 2 : Mr. S.G. Jadhavar
                                       ...

                                CORAM       : MANGESH S. PATIL &
                                              ABHAY S. WAGHWASE, JJ.

                                DATE        : 3 APRIL 2023



JUDGMENT (MANGESH S. PATIL, J.) :

Heard.

2. Rule. Rule is made returnable forthwith. At the joint

request of the parties, the petition is heard finally at the stage of

admission.

2 Cr. WP / 439 / 2020

3. By invoking the powers of this Court under section 482 of

the Code of Criminal Procedure read with Article 226 of the

Constitution of India, the petitioners who are the husband and wife are

seeking quashment of crime no. 410 of 2019 registered with Kaij Police

Station, Taluka Kaij, District Beed for the offences punishable under

section 199, 200, 420, 466, 467, 468, 471, 477 r/w. 34 of the Indian

Penal Code.

4. The respondent no.2 approached the Magistrate soliciting

the order under section 156(3) of the Code of Criminal Procedure and

on the basis of the order passed by the learned Judicial Magistrate

First Class, the crime was registered.

5. The FIR in substance is to the effect that the petitioner

no. 1 is the member of legislative assembly of the State and as a chief

promoter, set up a spinning mill under the chairmanship of petitioner

no. 2 in the year 2015. It is alleged that without consent of the

respondent no. 2 and couple of other individuals whose statements

were subsequently recorded under section 161 of the Code of Criminal

Procedure even when they had never applied for becoming members

and without having paid necessary membership fees, by indulging in

forgery and by putting forged signatures a proposal was submitted to

the Regional Deputy Director (Textiles), Aurangabad and Nagpur while

3 Cr. WP / 439 / 2020

registering the society. After realizing about such forgery when he

approached the petitioners on 03-06-2019 the petitioners turned him

away. It is alleged that rampant misdeeds are occurring in the society

and since he has been shown as a member and director without his

consent and by resorting to forgery, he is likely to be roped in such

misappropriation. It is also mentioned that even before approaching

the Court he undertook examination of his genuine signatures and the

signatures appearing against his name in the proposal submitted to the

Textile department. It was certified that the signatures were bogus.

6. Learned Senior Advocate Mr. Sapkal would submit that the

petitioners are being roped in due to politics. There are no sufficient

and cogent circumstances revealing their complicity much less making

out the ingredients for constituting all the afore-mentioned offences.

It would be abuse of the process of law if they are made to face the

prosecution. It is not that there was a mere proposal for formation of

the spinning mill. The subsequent conduct of the election and

constitution of new managing committee and smooth running of the

society for a considerable period was indicative of the fact that the

respondent no. 2 himself even admitted his status as a member of the

managing committee which elections took place in the year 2016.

Since the respondent no. 2 could not get caste validity certificate, his

name was automatically deleted since it was a society wherein as per

the Government guidelines 70% members were expected to be

4 Cr. WP / 439 / 2020

belonging to the scheduled caste category to receive the Government

grants. Aggrieved thereby, he has concocted the allegations.

7. The learned APP and the learned advocate for the

respondent no. 2 submits that there is prima facie material revealing

complicity of the petitioners in commission of the crime. Without there

being any consent, application for membership or payment of any

membership fees, a proposal was submitted mentioning the names of

the respondent no. 2 and couple of other individuals while getting the

society registered. It is a clear case of forgery. The respondent no. 2

has obtained opinion of a handwriting expert which corroborates his

version. Statements of not only the respondent no. 2 but few other

witnesses have also been recorded who have clearly stated their

names having been included without their knowledge or consent and

without being the members. At this juncture, there is enough material

to make out the ingredients for the offences. The chargesheet has

been filed and the prosecution deserves to be extended fair opportunity

to establish the charge.

8. Learned advocate for the respondent no. 2 would also

tender across the bar communication addressed by the Assistant

Commissioner, Social Welfare, Beed to the Divisional Deputy

Commissioner of the Social Welfare Department, Aurangabad dated

24-12-2019 expressly informing about having undertaken the enquiry

5 Cr. WP / 439 / 2020

into the allegations of registration of the society by resorting to forgery

on a complaint filed by one Mahadeo Balasaheb Gholve wherein it has

been specifically mentioned that the list of board of directors and the

list of members was solicited from the office of the Regional Deputy

Commissioner (Textiles) Aurangabad but it has informed that no such

list of directors and members was ever certified by it.

9. It is necessary to bear in mind that the powers of this Court

to quash a criminal case are circumscribed by several consideration.

The law is trite. State of Haryana and others Vs. Ch. Bhajan Lal and

others; AIR 1992 SC 604 is often quoted judgment which lays down the

parameters.

10. Recently in the matter of Mahendra K.C. Vs. State of

Karnataka and another; (2022) 2 SCC 129 the scope of the powers to

quash a crime and criminal case are reiterated stating that those are to

be used sparingly and in rare cases. Referring to the earlier decisions

in the matter of State of Orissa Vs. Saroj Kumar Sahoo; (2005) 13 SCC

540, State of M.P. Vs. Surendra Kori; (2012) 10 SCC 155, the following

observations have been made :

"19. The High Court has the power under Section 482 to issue such orders as are necessary to prevent the abuse of legal process or otherwise, to secure the ends of justice. The law on the exercise of power under Section 482 to quash an FIR is well settled. In State of Orissa v. Saroj Kumar Sahoo, a two-Judge Bench of this Court, observed that:

"8. ... While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent

6 Cr. WP / 439 / 2020

jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the report, the court may examine the question of fact. When a report is sought to be quashed, it is permissible to look into the materials to assess what the report has alleged and whether any offence is made out even if the allegations are accepted in toto."

20. These principles emanate from the decisions of this Court in State of Haryana v. Ch. Bhajan Lal and State of M.P. v. Surendra Kori. In Surendra Kori (supra), this Court observed:

"14. The High Court in exercise of its powers under Section 482 CrPC does not function as a Court of Appeal or revision. This Court has, in several judgments, held that the inherent jurisdiction under Section 482 CrPC, though wide, has to be used sparingly, carefully and with caution. The High Court, under Section 482 CrPC, should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of wide magnitude and cannot be seen in their true perspective without sufficient material."

Pertinently, even the decision in the matter of State of Bhajan Lal

(supra) has been relied on in paragraph no. 21.

11. If we proceed bearing in mind these principles, it is clear

from the chargesheet that the allegations being levelled by the

respondent no. 2 are prima facie corroborated by the material which is

7 Cr. WP / 439 / 2020

sufficient to reveal the fact that the petitioners have indulged in forgery.

It is not that the respondent alone is putting up the grievance but even

there are statements of other witnesses as well. Apart from the

respondent no. 2, statement of Sachin Bhimrao Chavan clearly

mention that proposal was submitted for registration of the society

promoted by the petitioners mentioning their names but without their

consent and signatures and without there being any application moved

by them or even paying any membership fees.

12. Conspicuously, statements of several other persons who

were similarly shown to be directors and members in the same

proposal have been recorded under section 161 of the Code of

Criminal Procedure. Though they have stated that their signatures are

genuine and in spite of having stated that they were aware that the

respondent no.2 was raising a dispute and alleging that his signature is

forged one, none of these directors or members have expressly stated

about the respondent no.2 having placed his signature on the proposal

or that the signature appearing against his name is his genuine

signature. They have also not stated about the respondent no. 2

having by his subsequent conduct participated in the affairs of the

society at any point of time.

13. Apart from the above state-of-affairs, the respondent no. 2

has expressly mentioned about having obtained an expert opinion

8 Cr. WP / 439 / 2020

regarding his genuine signature and the signature appearing on the

proposal. It is necessary that the matter is allowed to be tried by the

Magistrate which would enable recording of the evidence and reaching

a conclusion objectively.

14. In our considered view, the above mentioned

circumstances are relevant and cogent enough to prima facie show

that there is substance in the allegations regarding the alleged forgery

and using of forged document to get the society registered which are

necessary ingredients for constituting the offences. The case does not

fit in any of the parameters laid down in Bhajan Lal (supra).

15. The writ petition is dismissed. Rule is discharged.

  [ ABHAY S. WAGHWASE ]                              [ MANGESH S. PATIL ]
         JUDGE                                             JUDGE

arp/