Bombay High Court

Dr. Nirmala Jaywnat Patil vs Ajitsingh Dattajirao Ghatge And ... on 20 October, 2023

Bench: Prakash Deu Naik

2023:BHC-AS:31544
                                                   CRIR-477-2019.doc


               Andreza



                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CRIMINAL APPELLATE JURISDICTION
                    CRIMINAL REVISION APPLICATION NO. 477 OF 2019

               Dr. (Mrs.) Nirmala Jaywant Patil, Adult, retired
               Indian Inhabitant, Residing at 201, Gagangad, IIT
               Bombay Staff CHS., Ltd., Powai, Mumbai - 400 ... Applicant
               076.
                                 Versus
               1. Mr. Arjitsingh Dattajirao Ghatge, Adult, farmer
               Indian Inhabitant, Residing at Ranmala, Kagal,
               Dist. Kolhapur.
                                                                    ... Respondent nos. 1
               2. Mr. Sakharam Ganpati Nikam, Adult, retired            and 2 (Original
               Indian Inhabitant, Residing at shahu Colony, Plot Accused Nos. 1 and 2)
               no. 89, Behind Police Line. Kagal, Tal. Kagal, Dist.
               Kolhapur.

               3.    The State of Maharashtra, Laxmipuri Police ... Respondent no. 3
               Station, Kolhapur.                               (Orig. Complainant)


               Dr. N. J. Patil, Applicant in person.

               Mr. Manoj J. Patil, Advocate for Respondent nos. 1 and 2.

               Mr. S. R. Agarkar, APP for Respondent-State.

                                  CORAM:           PRAKASH D. NAIK, J.

               RESERVED ON   :                     27th JUNE, 2022
               PRONOUNCED ON :                     20th OCTOBER, 2023
                                                ( THROUGH V.C. )
               ORDER

1. The applicant has challenged the Judgment and Order dated

26.07.2019 passed by the learned Sessions Judge, Kolhapur, in

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Criminal Appeal no. 74 of 2017 and Criminal Appeal no. 128 of 2018

and has prayed for setting aside the said Judgment and direct the

learned Principal District Judge and Sessions Judge, Kolhapur to

decide the matter as per evidence and law under Sections 406, 420,

465, 468 and 471 read with Section 34 of the Indian Penal Code (IPC).

2. The applicant is the informant in complaint dated 11.09.2016,

forwarded to the District Superintendent of Police of Kolhapur. On the

basis of the said complaint, Crime bearing no. 38 of 2007 was

registered with Laxmipuri Police Station for offences under Sections

467, 468, 471 and 420 read with Section 34 of IPC. The respondent

nos.1 and 2 are original accused nos. 1 and 2.

3. The accused were chargesheeted for the offences punishable

under Sections 181, 420, 465, 468 and 471, read with Section 34 of IPC.

Initially, charge was framed under Section 181, 420 and 465 of IPC

against accused no.1. Subsequently, additional charge was framed

against accused nos. 1 and 2 for offences punishable under Sections

468 and 471 read with Section 34 of IPC.

4. Briefly stated, prosecution case is as under :

The applicant made a complaint to the Superintendent of Police

on 11.09.2006. According to the applicant-complainant, she is residing

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at Mumbai. She is having four brothers namely, Abasaheb, Nanasaheb,

Vijaysingh and Ajitsingh and three sisters namely, Vimlabai, Lilabai

and Mrs. Vijaymala. Her elder brother Abasaheb died in 1993. Her

father Dattajirao Ghatge, expired in 1987. Her father had some

properties, out of which City Survey no. 2123, C ward, Kolhapur, is one

of them. It is alleged that in March 2006, the complainant collected

papers from City Survey Officer under Right to Information Act and

came to know that her brothers namely, Nanasaheb and Ajitsingh

fraudulently by making use of Power of Attorney of her mother

Durgabai, transferred some properties in their name. In that regard,

they made applications, affidavits, before the City Survey Office,

Kolhapur, with intent to cheat the informant. FIR was registered. On

completing investigation, chargesheet was filed.

5. The accused were tried before the Court of learned 9 th Joint

C.J.J.D. & J.M.F.C., Kolhapur.

6. Prosecution examined Nirmala J. Patil (Pw.1), Abutalib Rahim

Nadaf (Pw.2), Mahanmadhanif Abbas Maldar (Pw.3), Anil Dattatray

Kudalkar (Pw.4), Sakharam Ganpati Nikam (Pw.5), Shivaji Hanmant

Bhosale (Pw.6), Vanita Dilip Gune (Pw.8), Baburao Sadashiv Jadhav

(Pw.9) and Arun Laxman Salunkhe (Pw.10).

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7. The learned Magistrate vide Judgment and Order dated

15.03.2017, acquitted accused nos. 1 and 2 for offences punishable

under Sections 181, 420, 465, 468 and 471 read with Section 34 of IPC.

8. The State of Maharashtra preferred Criminal Appeal no. 128 of

2018 challenging the impugned Judgment and Order dated 15.03.2017

passed by the learned J.M.F.C. in Regular Criminal Case no. 722 of

2007. Whereas, the applicant-informant filed Criminal Appeal no.74 of

2017, challenging the judgment of trial Court.

9. The learned Sessions Judge, Kolhapur, vide Judgment and Order

dated 26.07.2019, partly allowed the appeals. The appeals qua

respondent no.2-Sakharam Ganapati Nikam, were dismissed and the

judgment and order of acquittal of the the offences punishable under

Sections 181, 420, 465, 468 and 471 of IPC passed by the trial Court was

confirmed. The judgment and order dated 15.03.2017 passed by the

learned J.M.F.C., Kolhapur, as against respondent no.1, was set aside

on the terms that the charge under Section 406 of IPC is framed against

respondent no.1 and case is remanded back to the Chief Judicial

Magistrate, Kolhapur with a direction to try and decide the case against

respondent no.1 for the offence punishable under Section 406 of IPC

only afresh in view of the observations enumerated in the judgment.

The prosecution was granted liberty to rely upon the same evidence.

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The accused-respondent no.1 was at liberty to recall the witnesses for

cross examination in respect of offence punishable under Section 406

of IPC. Respondent no.1 was directed to appear before the Chief

Judicial Magistrate, Kolhapur, on 19.08.2019 for re-trial. The Chief

Judicial Magistrate, Kolhapur, was directed to make an endeavour to

complete proceedings preferably within six months. The trial Court

was directed not to be influenced with the observations made by the

Court in the said judgment. Records and proceedings were directed to

be sent to the trial Court. The learned Sessions Judge, Kolhapur, had

observed that the respondent no.1-accused no.1, with dishonest

intention, is making submission of documents at exhibits 156 and 157.

He was claiming it for himself and on behalf of Durgabai. The trial

Court while concluding on this part has stated that accused no.1 has

acted as an Agent on behalf of Durgabai and, therefore, he is not guilty.

This is not acceptable. Ajitsingh was beneficiary of the entire exercise

committed by him on behalf of Durgabai. He acted beyond the scope of

Power of Attorney. His act on remaining silent on the statement that

Dattajirao had only three legal heirs itself is indicative of attracting

dishonest intention. However, such an act is neither punishable under

Sections 465, 468 and 471 of IPC. Dattajirao was holding ancestral

properties as well as self acquired properties and the legal course to

divide these properties is partition and separate possession and file a

civil suit in the Court of law. Every co-sharer is open to follow such law.

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It is clear from the record that instead of pursuing such law, the

accused opted to prefer application at exhibits 154 to 164 before City

Survey Officer, Kolhapur, on the strength of statements. Firstly,

properties are partitioned and secondly that there are only three heirs

of this Dattajirao. It is further observed that the trial commenced

firstly against respondent no.1 for the offences punishable under

Sections 181, 420 and 465 of IPC and later on respondent no.2 was

added as an accused under Section 319 of Cr.P.C., wherein charge

under Sections 468 and 471 of IPC was framed against him. The

learned Magistrate acquitted both the accused for the offences

punishable under Sections 181, 420, 465, 468 and 471 read with Section

34 of IPC. The learned Sessions Judge held that the said acquittal does

not require interference. However, there was no charge under Section

406 of IPC in the trial before the Magistrate and there was an error

apparent on record. The said error needs to be corrected. In the light

of Section 386-(a) of Cr.P.C., it would be appropriate to correct the

error to frame charge under Section 406 of IPC and the case is required

to be committed for re-trial before the learned Magistrate and it be

tried as per the provisions of law. Charge under Section 406 of IPC

would be applicable only against the accused no.1 and not against

accused no.2. The act of respondent no.2 is only in terms of documents

at exhibit 157, wherein he makes a statement and submitted before the

lawful authority for which Section 181 of IPC is attracted. It was

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required to be a separate proceeding at the instance of lawful authority

which is not in present proceeding and his acquittal is accordingly

justified. The learned Sessions Judge called upon the accused no.1 to

explain to him the charge under Section 406 of IPC and directed him to

appear before the learned Chief Judicial Magistrate for re-trial to the

extent of that charge. The learned Sessions framed a charge against

respondent no.1 under Section 406 of IPC stating that he had a

dominion over the property CTS no. 2123, C Ward, Kolhapur, by virtue

of it being ancestral and self acquired property 0f late Dattajirao. He

was legally bound to state names of all legal heirs before City Survey

Officer by concealing names of all legal heirs. He along with

Nanasaheb mutated his name by giving false information to City Survey

Officer that property is already partitioned amongst himself and

converted the property for his use with dishonest intention and thereby

committed the offence under Section 406 of IPC.

10. The applicant submitted that the impugned judgment and order

dated 26.07.2019 confirming acquittal is required to be set aside as the

Appellate Court has not considered evidence on record. It is submitted

that the applicant filed complaint with the police. She obtained

certified copies of the documents from the City Survey Office under

Right to Information Act and she recognized the signatures of her

brother Nanasaheb and Ajitsingh who fraudulently submitted

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documents and gave false statements before the City Survey Officer,

Kolhapur, and transferred the properties stating that there are no legal

heirs of Dattajirao except Nanasaheb, Ajitsingh and Durgabai.

Dattajirao Yashwantrao Ghatge, died on 15.04.1987, leaving behind

nine legal heirs. Durgabai Dattajirao Ghatge, is the mother of the

applicant. She died on 13.01.1994. After the demise of Durgabai

Dattajirao Ghatge, the applicant filed Special Civil Suit No. 482 of 1994

in Civil Court, Kolhapur, for her share in all properties of Dattajirao

since he had no income except from the ancestral property. The

applicant collected documents. Suit was decided on 31.01.2014.

Dattajirao had no income other than the income from the properties

and hence part of two-third property of CTS no. 2123/1 to 6, 2123/10A

and 2123/11 purchased by Dattajirao from his brothers is also ancestral

property. Appeals were filed by the parties against orders passed in

the suit. On the basis of complaint of the applicant, Crime no.

38/2007 was registered with Laxmipuri Police Station, Kolhapur.

Durgabai Dattajirao Ghatge prepared Power of Attorney in the name of

Ajitsingh Dattajirao Ghatge on stamp paper of Rs.20/-. It was

purchased by Tukaram Shankar Ghorpade. The Power of Attorney was

notarised on 20.07.1978. On the basis of statement of Dattajirao

Ghatge, the City Survey Officer, Kolhapur, passed Order dated

07.01.1983. Names of Nanasaheb and Ajitsingh Dattajirao Ghatge were

recorded on the property. On 26.10.1989, Ajitsingh Ghatge gave

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application to City Survey Officer, Kolhapur, as Power of Attorney of

Durgabai Dattajirao Ghatge, stating that her husband died on

15.04.1987 and on his name is the house at CTS No. 2123, C Ward,

Kolhapur. In this property CTS no. 2123/1 to 6, 2123/10A and

2123/11, the applicant's husband has 5 Anna 4 Pai share and her shares

each have 5 Annas 4 Pai per share. Ajitsingh made a statement before

the City Survey Officer on 17.01.1990 as Power of Attorney of Durgabai

stating that to the property at CTS 2123/1,2, 2123/3, 4, 5, 6, 11, 10A,

Ward, Kolhapur, his father Dattajirao Ghatge's name was recorded.

Dattajirao Ghatge had legal heirs. Nanasaheb Ghatge and Ajitsingh

Ghatge gave statement before City Survey Officer that the property CTS

no. 2123/1, 2, 3, 4, 5, 6, 11, 10A, C Ward, Kolhapur, his father Dattajirao

Ghatge's name is recorded to one-third share. The applicant-

complainant gave several such instances about false statements and

fabrication of documents by the respondent. It is submitted that the

order of the learned District Judge has resulted in miscarriage of

justice. The respondent nos. 1 and 2 are wrongly acquitted by the Court

although the Sessions Court had appreciated as the documents

exhibited as L, N, P, R, T, U, Y, AA and AC are admissible and that their

contents can be read in the evidence. The accused were acquitted.

Exhibit L to this application is application of respondent no.1 to the

City Survey Officer, Kolhapur, as Power of Attorney of Durgabai

Dattajirao Ghatrge stating that her husband died on 15.04.1987. As per

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exhibit N, the respondent no.1, as Power of Attorney of Durgabai, gave

statement on oath before the City Survey Officer Mr. Mahammadhanif

Abbas Maldar, relating to property CTS no. 2123/1 to 6, 10A and 11,

where the father's name was recorded. The property was partitioned.

The Sessions Judge failed to appreciate that being son of Durgabai and

Dattajirao, accused was aware about their heirs but deliberately gave

the application to transfer the property in the name of Durgabai so that

after her death, respondent no.1 and Nanasaheb to whom police had

not made accused and died during the hearing of the application of the

petitioner to make them accused. The Power of Attorney was illegal.

Durgabai had signed it on 17.07.1978. Notary had signed it on

20.07.1978. There is no witness neither there is an acceptance of

Ajitsingh Dattajirao Ghatge to act as Power of Attorney. Statement of

the witness shows the involvement of the accused. There is voluminous

evidence in the nature of documentary as well as oral evidence adduced

before trial Court. Several documents of admission have been ignored

by the Appellate Court. The trial Courts Judgment is contrary to

evidence. All the offences were made out against the accused. The

Sessions Judge failed to look into the evidence given by the informant.

It ought to have been considered that on the basis of the application

and statements, the property was transferred. The Sessions Judge is

silent about the documents at exhibits T, U, W, Y, AA, AC and AD.

These documents are not analysed for coming to the proper decision

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which has resulted in acquittal of the respondents. The stamp paper

was purchased by respondent no.1 and signed partitioning the property

by making forged document which was used for his benefit. Exhibit W

is a forged document and witnessed by Sakharam Ganapati Nikam i.e.

respondent no.2, who acted in connivance with respondent no.1 and

involved in the offence. The learned Sessions Judge has not

appreciated the documents on record in proper perspective which has

resulted in error in judgment. The Appellate Court is silent about the

documents viz Exhibits 160/C, Article A, Exhibit 161/C, 162/C, 163/C

and 164/C. The learned Sessions Judge has committed an error in

confirming the acquittal. The case relates to ancestral properties of the

father late Dattajirao Yashwantrao Ghatge. The finding of prima facie

commission of offence under Section 406 of IPC is correct. The other

offences charged against accused are also proved through evidence.

The applicant had preferred an application on 25.08.2008 to make

Nanasaheb Ghatge as accused. The application was decided on

06.04.2011. Nanasaheb Ghatge expired. The respondent no.2 was

added as additional accused, which order was confirmed by the

Sessions Court and the High Court. Dattajirao Yashwantrao Ghatge

died on 15.04.1987. The respondent no.1 gave application dated

26.10.1989 as Power of Attorney holder of Durgabai to the City Survey

Officer, Kolhapur for transferring one-third share of Dattajirao in her

name by falsely stating by her that it is given to her for maintenance.

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The applicant had identified the signature of respondent no.1. On

17.01.1990, respondent no.1 as Power of Attorney holder of Durgabai,

gave statement to the City Survey Officer that Dattajirao died on

15.04.1987 and is survived by three heirs namely Durgabai, Nanasaheb

and respondent no.1 and one-third share of Dattajirao be transferred to

Durgabai. There were several aspects on record in the nature of

evidence which were overlooked by the Sessions Court. The learned

Sessions Judge has ignored the law and various judgments on the

principles of law.

11. Learned Advocate for respondents submitted that no case is

made out for interfering in the impugned judgment. There is no

evidence against the respondents to convict them for the offence

punishable under Sections 181, 420, 465, 468 and 471 read with Section

34 of IPC. The learned Sessions Judge and the learned Magistrate has

appreciated the evidence and held that the accused deserves to be

acquitted. The respondent no.2 was initially examined as a witness and

subsequently he was impleaded as an accused by invoking Section 319

of Criminal Procedure Code. The prosecution had failed to establish

any offence against the accused. The trial C0urt has rightly acquitted

both the accused and decided that the acquittal has been rightly

confirmed by the Sessions Court. The learned Sessions Judge has given

a finding that the evidence on record does not make out the offences

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under Sections 181, 420, 465, 468 and 471 of IPC against the accused.

Section 195 of Cr.P.C. provides for the manner in which prosecution for

contempt of lawful authority of a public servant has to commence. No

cognizance under Section 181 of IPC can be taken unless complaint in

writing of the public servant is filed. When there is no complaint of the

concerned public servant i.e. City Survey Officer, Kolhapur, cognizance

of the said Act cannot be taken. To constitute the offence under Section

415 of IPC, there has to be dishonest intention to induce the person to

deliver property. The documents at exhibits 156 and 157 were in

respect of mutation of names of Durgabai, Nanasaheb and Ajitsingh. It

would not construe the offence of cheating under Section 415 of IPC.

Section 465 of IPC defines forgery by making any false document

within the meaning of Secti0n 464 of IPC. The person making such

document wanted another person or authority to believe that the

person making such document has proved it to sh0w that he is the

same person. For the purpose of scrutiny of documents at exhibits 156

and 157, if Section 463 and 464 of IPC is perused, it is clear that the

same is not attracted. Late Dattajirao Ghatge died on 15.04.1987. Smt.

Durgabai died on 13.01.1994. Late Dattajirao Ghatge died leaving legal

heirs as wife Durgabai, sons Abasaheb, Nanasaheb, Vijaysingh and

Ajitsingh and four daughters Vimlabai, Lilabai, Vijaymala and Nirmala.

Abbasaheb died in 1993, Nanasaheb died in 2009 and Vimlabai died in

2007. Prosecution examined the witnesses but could not prove the

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charges. The trial Court has analyzed all the documents and gave a

finding of acquittal. Durgabai Ghatge, through Power of Attorney

holder Ajitsingh Ghatge, preferred application to the City Survey

Officer, Kolhapur to mutate her name to the property bearing CTS no.

2123. The application was preferred to mutate her name in the place of

her husband. The application was not for mutating legal heirs of

Dattajirao Ghatge. Ajitsingh had signed the said application as

Attorney of Durgabai. Power of Attorney was not challenged by

Durgabai. The statement before City Survey Officer mentioned that

Durgabai through Attorney Ajitsingh stated that her husband is having

5 Anna 4 pai share in the property bearing CTS no. 2123/1 to 6,

2123/10A and 2123/11. The properties are partitioned and names of

Nanasahed and Ajitsingh are mutated. She requested to mutate her

name in place of name of her husband. Statement of Nanasaheb

Ghatge and Ajitsingh Ghatge before City Survey Officer, exhibit 158,

shows that Nanasaheb and Ajitsingh stated that their father Dattajirao

was having 5 Annas 4 Pai in the properties bearing CTS No. 2123/1 to

2123/6, 2123/10A and 2123/11. Name of Durgabai was mutated on

18.01.1990 to the CTS extract. The City Survey Officer has mutated the

name of Durgabai on the basis of application exhibit 154 and not as a

legal heir of deceased Dattajirao. Joint statement of witnesses dated

29.08.1990 show that they stated that the names of Durgabai,

Nanasaheb and Ajitsingh are mutated to the said property. The

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properties were partitioned vide Partition Deed. It was executed by

Durgabai, Ajitsingh and Nanasaheb. Ajitsingh had signed for himself

and as attorney of Durgabai. The trial Court has observed that the

allegation of the informant in complaint, exhibit 55, that in the month

of March 2006, after receiving the information under Right to

Information Act, she came to know about fraudulent acts of accused

no.1 and Nanasaheb by making use of Power of Attorney of Durgabai,

transferred some properties on their names, is afterthought. The

documentary evidence shows that the informant was conscious about

mutation entries in 1994 in respect of CTS no. 2123. The Power of

Attorney executed by Durgabai in favour of accused no.2 was executed

on 17.07.1978. Durgabai died in 1994. The Power of Attorney was not

challenged by the complainant. Ajitsingh, the accused no.1, had signed

the application, exhibit 154, as attorney of Durgabai. In her cross

examination, the informant admitted that she does not know as to any

sub-division in CTS no. 2123, C Ward, Kolhapur. City Survey extract

no. 2123 and sub division exhibits 78 to 89 were shown to her. She

admitted that she moved an application to enter the names of all legal

heirs. The said application was moved in 1994. The informant had

admitted that as per mutation entry no. 551 from exhibit 83, names of

all legal heirs were entered to the property CTS no. 2123/1 to 2123/6.

The informant also admitted that after receiving relevant documents

relating to CTS no. 2123, she filed partition suit. She was not aware as

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to what orders were passed regarding CTS no. 2123. She admitted that

CTS no. 2123 was ancestral property of Dattajirao Ghatge. Mutation 0f

names of her uncle along with Dattajirao as owners of CTS no. 2123/1

were made in 1975. In 1979, Dattajirao Ghatge had purchased shares of

Shankarrao and Jaysinghrao in CTS no. 2123/1. She also admitted that

she had perused all the documents at the time of filing partition suit.

Portion of property purchased by Dattajirao was his self acquired

property. The informant has not alleged in the complaint exhibit 55

that Ajitsingh and Nanasaheb cheated her by preparing illegal Partition

Deed. Informant admitted that after demise of her father, one-third

share was mutated in the name of her mother. It was illegally mutated.

She admitted that as per exhibit 109, her father had given two-third

share to Nanasaheb and Ajitsingh. The said mutation entries were not

challenged by the informant. She did not file any complaint against her

mother during her lifetime. The evidence of all the other witnesses

would also indicate that there is no substance in the allegations made

by the complainant. Several documents were seized during

investigation. The prosecution failed to prove the charges beyond

doubt. There are two concurrent findings of acquittal which need not

be interfered by this Court. The revisional Court has limited

jurisdiction. The prayer sought in this application cannot be granted

No element of forgery or cheating is involved. It is the imagination of

the complainant to allege that the accused had committed the said

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offences. The respondent no.2 has no role to play in the transactions

relating to mutation of properties. The accused cannot be subjected to

prosecution repeatedly. They have been facing the proceedings since

long. Both the Courts have acquitted the accused. The case need not be

remanded back to the Sessions Court as prayed by the applicant.

Hence, the application may be rejected.

12. Learned Additional Public Prosecutor submitted that the

prosecution had adduced sufficient evidence before trial Court to prove

the offences. The evidence was ignored.

13. It is not in dispute that the trial Court has acquitted the accused

of the offences under Secti0ns 181, 420, 465, 468 and 471 read with

Section 34 of IPC. The acquittal has been confirmed by the Sessions

Court. The judgment of the trial Court was challenged by the informant

in accordance with Section 372 of the Code of Criminal Procedure and

by the State vide Section 378 of the Code of Criminal Procedure. The

Appellate Court however found that prima facie case is made out

against accused no. 1 for facing prosecution under Section 406 of IPC

and remanded the case back to the trial Court by framing charge

against accused no.1 for offence under Section 406 of IPC. The Order

of remand for offence under Section 406 of IPC is not challenged by

accused. The prayer that has been sought in the revision application is

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to set aside the judgment dated 26.07.2019 passed by the Appellate

Court and direct the said Court to decide the matter as per the evidence

in law under Sections 406, 420, 465, 468 and 471 read with Section 34

of IPC. This Court had granted interim stay to the appellant of this

order during the pendency of this application. The question is whether

this case can be remanded back to the Appellate Court for its

consideration by setting aside the judgment dated 26.10.2019.

14. It is pertinent to note that the trial Court vide judgment dated

15.03.2017, has acquitted the accused. This Court is conscious of the

fact that the trial Court as well as the Sessions Court has concurred with

the acquittal of the accused for the offence as stated herein above and

the reasoning for remanding back the case to the Sessions Court, will

have to be restricted only for considering whether the Sessions Court

has not appreciated the evidence in proper perspective as contended by

the applicant in this revision application. The grievance of the

applicant is that there is sufficient evidence before the Court to convict

the accused for all the offences which is not taken into consideration by

proper perspectives by the Sessions Court.

15. The revision-applicant is the first informant. She filed police

complaint on 11.09.2006. Dattajirao Ghatge is father and Durgabai

Ghatge is the mother of the applicant. Abasaheb, Nanasaheb,

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Vijaysingh and Ajitsingh are brothers of applicant and Vimlabai, Lilabai

and Vijaymala are her sisters. Dattajirao Ghatge died on 15.04.1987.

Durgabai Ghatge died on 13.01.1994. The informant filed a suit for

partition. The suit was decided by judgment and order dated

31.01.2014. The prosecution examined several witnesses including

informant and others. Accused no.2 was examined as Pw.5. he did not

support the prosecution case. Application under Section 319 was filed

and he was summoned as an accused in the proceedings. He was tried

as accused no.2.

16. The revision-applicant was examined as Pw.1. Her evidence has

been discussed in paragraph 27 of the trial Court's judgment. The

investigating officer had collected several documents. Panchanama,

exhibit 175 was recorded. Thirteen documents were seized vide

panchanama. The documents comprise applications made to City

Survey Officer, statements recorded by City Survey Officer, Orders and

documents produced before the Officer. They are pertaining to

mutating legal heirs of Dattajirao Ghatge. Accused no.2 was examined

as Pw.5. He admitted his acquaintance with Ajitsingh (accused no.1).

He admitted that he might have signed document as witness. Partition

Deed was shown to him. He admitted that signature resembles to his

signature, which appears on the Deed. He is not sure whether he

signed it or not. He denied the contents of Partition Deed and

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statement made before the City Survey Officer and signature on it. He

was working as Peon in Kagal Municipality. He was declared hostile

and the prosecution was permitted to put leading questions in the form

of cross-examination to him. He admitted that he knows Dattajirao

very well. His son is working at Gokul Dudh Sangh. Pw. 4 was

examined to prove that accused no.1 has given job to son of accused

no.4. His evidence discloses that Satish Sakharam Nikam is working in

their Milk Sangh as Chemist. Satish Nikam was the son of accused

no.2. The trial Court observed that though due to recommendation of

accused no.1, son of accused no.2 was appointed, the evidence of the

witness does not show that he was not eligible. The trial Court had also

observed that there is no expert evidence on record whether the

accused no.2 had signed Partition Deed as witness or has given

statement before the City Survey Officer. Accused no.2 denied his

signature on Partition Deed and fact of giving statement before City

Survey Officer. He was previously mentioned by police as a witness.

He has admitted that signature on Partition Deed resembles with his

signature. Accused no. 1 and he are acquainted with each other's

signature since long. On comparing signature of accused no.2 and

signature appearing on Partition Deed and statement, it appears that

the same are of accused no.2.

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17. The Appellate Court in paragraph 11 of the impugned Judgment

had given a finding that the documents brought on record at exhibits

154 to 164 and 176 are admissible and their contents can be read in

evidence. However, the documents at exhibits 156 and 157 cannot be

termed as making false documents within the meaning of Section 464

or forgery under Section 465 of IPC by respondent nos. 1 and 2 and

cheating under Section 420 of IPC. The Appellate Court however gave

a finding that Section 406 of IPC has been made out against respondent

no.1. The Court also opined that the impugned judgment and order

dated 15.02.2017 requires interference and reversal of the finding.

Application exhibit 154 was preferred by respondent no.1 as Power of

Attorney holder of Durgabai Ghatge to mutate her name to the property

CTS no. 2123. In paragraph 15 of the judgment passed by the Appellate

Court, it was observed in a statement on oath, City Survey Officer,

Kolhapur, dated 17.01.1990, the Respondent no.1 appears to have

stated on oath that his father Dattajirao Ghatge was having share of 5

Anna 4 Pai to the property CTS No. 2123/1 to 2123/6, 2123/10A and

2123/11. It is stated that Dattajirao died on 15.04.1987 leaving behind

his heirs Durgabai, Nanasaheb and Ajitsingh as sons. It is further

stated that the properties are already partitioned and accordingly

names of Nanasaheb and Ajitsingh are mutated. This appears to be a

statement indicative of the intention of respondent no.1 that he wanted

the City Survey Officer to believe that the partition has already been

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partitioned. Another joint statement of Nanasaheb and Ajitsingh at

exhibit 158 dated 17.01.1990, repeated the same intention which is

requesting to mutate name of their mother Durgabai in place of their

father Dattajirao Ghatge.

18. In paragraph 16, it is observed that the joint statements of

witnesses Nabiso Maldar and Sakharam Ganpati Nikam dated

17.01.1990, exhibit 157, on oath before City Survey Officer, makes out

statement that deceased Dattajirao Ghatge left behind him heirs i.e.

wife and two sons and except them there is no other legal heirs. The

learned Magistrate termed this application only for the purpose of

mutating names based upon earlier mutation entries. However, true

glaring factors out of these statements at exhibits 156 and 157 that

firstly representing before the City Survey Officer that partition had

already been taken place and secondly Dattajirao is surviving by only

three legal heirs, wife and three sons. This is the crux of the entire

allegation where the prosecution attributed dishonest intention on the

part of respondent no.1. In paragraph 17 of the judgment, the learned

Sessions Judge has observed that the copy of Power of Attorney of

Durgabai, at exhibit 176, is perused. This Power of Attorney nowhere

indicates that intention of Durgabai to assign the task of partition to

respondent no.1 nor he had authority to make such a statement. It is

further clear from such contents that she had not even asked

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respondent no.1 to make statement on her behalf that Dattajirao had

only three legal heirs. Therefore, it is a false statement by respondent

nos. 1 and 2 before the City Survey Officer, Kolhapur, wherein

Dattajirao had four sons and four daughters. In paragraph 21, further

the learned Sessions Judge held that Section 415, 463, 464, 465, 468

and 471 of IPC are not attracted.

19. In paragraph 26 of the judgment, it was observed that there

cannot be any doubt that respondent no.1 with dishonest intention is

making submission of documents at exhibit 156 and 157. The trial

Court had observed that respondent no.1 was acting as an agent on

behalf of Durgabai, hence, he is not guilty. This is not acceptable.

Ajitsingh was beneficiary of entire exercise conducted by him on behalf

of Durgabai. He acted beyond the scope of the Attorney. Therefore,

his act of remaining silent on the statement that Dattajirao had only

three legal heirs itself indicated the act of dishonest intenti0n. Such act

is neither punishable under Section 465, 468 and 471 of IPC.

Respondent no. 1 had dominion over the property and acted in

violation of law with dishonest intention to convert the property for its

own use by making to believe false statement.

20. The evidence on record and the observati0ns of both the Courts

and observation of the Appellate Court would indicate that the

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documents collected by the Investigating Officer referred to herein

above were admissible. The Appellate Court has also referred to

incriminating evidence against respondent nos. 1 and 2. The Appellate

Court had also observed that there was dishonest intention on the part

of respondent no.2, however, acquitted them for the offences relating to

forgery and cheating. The Appellate Court also framed charge under

Section 406 of IPC and remanded the case back to the trial Court as

against accused no.1. The Appellate Court did not find any reason to

convict respondent no. 2. Taking into consideration the observations of

the Appellate Court and the evidence on record, without expressing or

giving opinion or giving finding on judgment of acquittal and since the

relief sought in this application is only to remand the case back to the

Appellate Court for re-consideration, I find that the prayer sought in

this application can be granted. The Appellate Court is requested to

take into consideration all the documents on record. The evidence in

the nature of oral and documentary in nature and re-considered

whether the offences for which the accused were charged are made out

against the respondent nos. 1 and 2. Apart from that, the Appellate

Court has already given a finding that the offence under Section 406 of

IPC is made out against accused no.1, which is not disturbed by this

Court.






                                  20th October 2023





                                 CRIR-477-2019.doc


                                  ORDER

           (i)     Criminal Revision Application no. 477 of

           2019 is allowed.


           (ii) The impugned Judgment and Order dated

           26.07.2019 passed by the learned Sessions

Judge, Kolhapur, confirming the acquittal under

Sections 181, 420, 465, 468 read with Section 34,

is set aside.

(iii) The learned Sessions Judge is directed to re-

hear the appeals afresh for considering the

evidence on record and law for deciding the

offences under Sections 406, 420, 465, 468, 471,

read with Section 34 of IPC.

(iv) The parties are directed to appear before the

Appellate Court on 4th December, 2023.

(v) The Appellate Court shall decide the appeals

within a period of six months from the first date