Bombay High Court
Suryaprakash S/O. Tekchand Dembda vs The State Of Maharashtra And Another on 3 March, 2025
2025:BHC-AUG:6507
13-*Cri-WP-1033-2018-Judgment.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
13 CRIMINAL WRIT PETITION NO. 1033 OF 2018
WITH
CRIMINAL APPLICATION NO. 4018 OF 2023
Suryaprakash s/o Tekchandji Dembda
Age: 50 years, Occu- Business & Agri.,
R/o. Ajinkya Palace, Gurubachan Chowk
Mantha Road, Jalna, Tq. & Dist. Jalna. ... PETITIONER
(Ori. Accused)
VERSUS
1. The State of Maharashtra
Through Police Inspector
Sadar Bazar Police Station,
Jalna
2. Bharatkumar Teckchandji Dembda [Original Complainant]
Age- 65 years, Occu. Nil,
R/o. Flat No.403, Purple Dream City,
Takli Agar Takli Road, Nashik
Maharashtra - 422 006
3. Anita w/o Bharat Dembda
Age - Major, Occu. Housewife,
R/o. Flat No.501, 502, Raj Heights,
Behind Fire brigade office,
Opp. MGM Hospital, Aurangabad
Tq. & Dist. Aurangabad
4. Amit s/o Bharat Demda
Age - Major, Occu. Business,
R/o. Flat No.501, 502, Raj Heights,
Behind Fire brigade office,
Opp. MGM Hospital, Aurangabad
Tq. & Dist. Aurangabad ... RESPONDENTS
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....
Mr. Ajay G. Talhar a/w Mr. Darshan D. Sahuji, Advocates for the
Petitioner
Ms Chaitali Chaudhari - Kutti, APP for Respondent No.1
Mr. A. M. Karad, Advocate for Respondent Nos. 2 to 4
....
CORAM : Y. G. KHOBRAGADE, J.
DATE : 03.03.2025
ORAL JUDGMENT :-
1. Rule. Rule made returnable forthwith and with consent
of parties heard finally at the stage of admission.
2. By the present Petition under Article 226 and 227 of the
Constitution of India, the Petitioner takes exception to the judgment
dated 17.04.2018 passed by the learned Sessions Judge, Jalna, in
Criminal Revision Application No.102 of 2013 thereby upheld order
of rejection of application for discharge passed by the learned Chief
Judicial Magistrate, Jalna, below Exh.17 in Regular Criminal Case
No.891 of 2010 on 16.09.2013.
3. The Petitioner is the original accused and the Respondent
No.2 is the original complainant in Criminal Misc. Application No.590
of 2009. For the sake of brevity, I would like to refer parties to the
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present Petition in their original capacity as the complainant and the
accused.
4. Respondent No.2/complainant filed the Criminal Misc.
Application No.590 of 2009 and prayed for investigation under
Section 156(3) of the Code of Criminal Procedure for the offence
under Sections 420, 465, 468, 471, 506(2) of I.P.C. According to the
complainant, in the year 1990, he purchased the immovable property
bearing C.T.S. No.4700, admeasuring 1394.31 square meter within
the limit of Municipal Council, Jalna. However, he was out of Jalna
city for education purpose of his children and business. According to
Respondent No.2/complainant, he is exclusive owner of said property
and nobody is shareholder in said property. However, the Petitioner/
accused, taking advantage of his absence, had persuaded his father,
Tekchandji Dembda, to execute a Deed of Partition in respect of said
property. It is further alleged that, on 06.08.1998, the
Petitioner/accused executed the false and bogus partition-deed in
respect of property C.T.S. No.4700 by impersonating him and by
putting signature of some other person and produced some other
person before the Sub-Registrar, Jalna in his place and got executed
deed of partition. Therefore, the Petitioner/accused committed an
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offence punishable under Sections 420, 465, 468, 471, 506(2) of
I.P.C., hence, prayed for investigation under Section 156(3) of Cr.P.C.
5. On 09.12.2009, the learned J.M.F.C. Jalna, passed an
order in Criminal Misc. Application No.590 of 2009 and directed the
concerned Police Station to conduct investigation under Section
156(3) of Cr.P.C., for the said alleged offences. In pursuance of said
order, the Crime M. No. 9 of 2009 registered on 12.12.2009. The
Investigating Officer conducted investigation, recorded statements of
witnesses and seized the deed of partition dated 06.08.1998 under
seizure panchanama. During the course of investigation, the
Investigating Officer referred seized deed of partition for examination
to the Handwriting Expert with other specimen signatures and thumb
impressions of Respondent No.2/ complainant. Accordingly, on
26.08.2010, the Investigating Officer received Expert's Opinion,
wherein, it has opined that, the Thumb Impressions appearing on
Register of the Sub-Registrar office are not matched with the
specimen L.T.P and R.T.P. marked A-(L) A-(R) of the Respondent no.
2/complainant Bharatkumar Teckchandji Dembda and specimen L.T.P.
and R.T.P. marked X-(L) X-(R) are of petitioner/accused Shri
Suryaprakash Tekchand Demada. Accordingly, the Investigating
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Officer filed the charge-sheet against the Petitioner/accused for the
offence under Sections 420, 465, 468, 471, 506(2) of I.P.C.
6. After service of summons, the Petitioner/accused
appeared before the learned Chief Judicial Magistrate. Thereafter, the
Petitioner/Accused filed an application (Exh.17) under Section 227 of
Cr.P.C. and prayed for discharge in Crime M. Case No. 9 of 2009
registered.
7. On 16.09.2013, the learned Chief Judicial Magistrate
passed order and rejected the Application for discharge. Being
aggrieved by said order, the Petitioner/accused filed Criminal Revision
Application No.102 of 2013 before the Sessions Court. On
17.04.2018, the learned Sessions Judge, Jalna, passed the impugned
Judgment and order and dismissed said Criminal Revision
Application. The learned Revisional Court held that, at the stage of
framing of charge, the material produced with charge-sheet needs to
be considered and probable defence of the petitioner/Accused cannot
be considered. Moreover, the material produced on record with the
charge-sheet is sufficient to frame charges against the
petitioner/accused.
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8. Mr. Talhar, the learned counsel appearing for the
Petitioner/accused canvassed in vehemence that, as per sale-deed
dated 24.09.1990, the Petitioner/accused, Respondent No.2/
complainant, their other brothers with their father Shri Tekchand
Sakhavatramji Demba (deceased) have jointly purchased the landed
property bearing Municipal No.4515, New No.4194, bearing CTS
No.4700 for valuable consideration. Therefore, the Petitioner/accused
and Respondent No.2/ complainant are joint owners of the said
property along with their brothers. Subsequently, on 06.08.1998, the
Respondent No.2, Mr. Tekchandji Dembda, the father of the
Petitioner and Respondent No.2 executed partition-deed in favour of
the Petitioner/accused. At the time of registration of deed of
partition, the Respondent No.2 was personally present before the
Sub-Registrar office and received amount of Rs. 20,00,000/- (Rupees
Twenty Lakh) by four different cheques. The Respondent No.2 has
not denied about acceptance of said amount but only denied his
signature on the partition-deed. Therefore, the material available on
record appears about existence of civil dispute between the petitioner
and Respondent no. 2, hence, said Civil dispute cannot be adjudicated
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by the learned Chief Judicial Magistrate. However, the learned trial
Court passed the order dated 16.09.2013 below Exh.17 and rejected
application of discharge u/s 227 of Cri. P. C., without considering the
fact that the material available on record are not sufficient to frame
charge against the petitioner/accused, therefore, the learned Chief
Judicial Magistrate could have to discharge the Petitioner/accused. So
also, the learned Revisional Court totally ignored the material
available on record to establish about existence of civil dispute in
respect of the property between the petitioner and Respondent no.2.
Therefore, impugned order passed by the learned Revisional Court as
well as order passed by the learned Chief Judicial Magistrate are
illegal bad in law, hence, prayed for quash and set aside.
9. Per contra, Mr. A. M. Karad, the learned counsel for
Respondents canvassed that, the Respondent No.2/complainant
specifically made averment in complaint that, on 06.08.1998, the
Petitioner/accused submitted deed of partition for registration with
the Sub-Registrar, Jalna but at that time, the Respondent
No.2/complainant was not present in Jalna town. The Petitioner/
accused falsely personated the complainant and under false signature
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and thumb of Respondent No.2, the petitioner/accused got executed
registered deed of partition. Thereafter, on the basis of said deed of
partition, the Petitioner/accused got his name mutated in city survey
record by playing fraud. The handwriting expert's report shows that,
thumb impression appearing on register of the Sub-Registrar are not
matched with specimen. Therefore, the material available on record is
sufficient to frame charges against the petitioner/accused. Therefore,
on 09.12.2009, the learned Chief Judicial Magistrate passed an order
and directed investigation under Section 156(3) of Cr.P.C. After due
investigation, the I. O. filed charge-sheet and handwriting expert's
report. Therefore, the material produced on record are sufficient to
frame the charge against the Petitioner/accused, hence, prayed for
dismissal of the Petition.
10. Needless to say that, the Respondent No.2/complainant
filed Criminal Misc. Application No.590 of 2009 alleging that, on
06.08.1998, the Petitioner/accused executed deed of partition before
the Sub-Registrar, Jalna under his false and bogus signature and
thumb impression. It is not in dispute that, on 09.12.2009, the
learned Chief Judicial Magistrate, Jalna, passed the order and
directed investigation under Section 156(3) of Cr.P.C. in regard to the
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allegations made in the complaint. The Investigating Officer
registered the crime under M. Case No.9 of 2009 for the offences
punishable under Sections 420, 465, 468, 471, 506(2) of I.P.C. It is a
matter of record that, the Investigating Officer recorded statements of
19 witnesses and collected specimen signature and thumb impression
of Respondent No.2/complainant as well as from the office of Sub-
Registrar. The I. O. sent all specimen signatures/ thumb impressions
collected during investigation to the Handwriting Expert for
examination. The Deputy Director/Deputy Superintendent of Police
(FP), Finger Print Bureau, C.I.D., Aurangabad, issued a certificate/
opinion No.16 of 2010 certifying that, the specimen of L.T.P and R.T.P,
marked A-(L) A-(R) of the Respondent no. 2/complainant
Bharatkumar Teckchandji Dembda and specimen L.T.P and R.T.P,
marked X-(L) X-(R) of accused Suryaprakash Tekchandji Dembda are
matched but specimen signature/thumb of Respondent no. 2/
complainant Shri Bharatkumar Teckchandji Dembda are not identical
with the specimen.
11. Since Respondent No.2/complainant specifically alleged
in complaint that, on 06.08.1998, the Petitioner/accused executed
deed of partition before the Sub-Registrar by producing the dummy
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person in his place and impersonated. The Respondent no.2/
complainant alleged about execution of false and fabricated deed of
partition in his absence by manufacturing his signature/thumb
impression because he was not available in Jalna city on the day of
execution of the registered deed of partition. Therefore, the material
placed on record is sufficient to frame charge as per the provisions of
Section 228 of Cr.P.C., for the offences under Section 420, 465, 468,
471, 506(2) of I.P.C.
12. Section 227 of Cr.P.C. provides that, if the material
produced on record and after hearing the submissions, if the judge
considers that there is insufficient ground for proceeding against the
accused, in that circumstance, the accused may be discharged after
recording reasons. In State of Tamilnadu By Inspector of Police
Vigilance and Anti Corruption Vs. N. Suresh Rajan & Ors, (2014)11
SCC 709, it is held that, at the stage of consideration of application
for discharge, the Court has to proceed with an assumption that the
materials brought on record by the prosecution are true and evaluate
the said materials and documents with a view to find out whether the
facts emerging therefrom taken at their face value disclose the
existence of all the ingredients constituting the alleged offence. At
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this stage, probative value of the materials 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 a conviction.
13. In the case of Yogesh @ Sachin Jagdish Joshi Vs. State of
Maharashtra, 2012 SC 2991, it is held that the words "not sufficient
ground for proceeding against the accused" appearing in the Section
postulate exercise of judicial mind on the part of the Judge to the
facts of the case in order to determine whether a case for trial has
been made out by the prosecution.
14. Reverting back to the case-in-hand, the Respondent
No.2/complainant specifically alleged that, at the time of execution of
deed of partition on 06.08.1998, he was not in Jalna city and he was
out of station due to education purpose of his children and due to his
business, however, the Petitioner/accused got executed bogus
partition-deed in respect of property CTS No.4700 of Jalna by falsely
impersonating and by obtaining signature of some other person in his
place before the Sub-Registrar. The Investigating Officer has already
filed the handwriting expert's opinion, which is sufficient to frame
charges against the Petitioner/accused.
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15. On 17.04.2018, the learned Sessions Judge, passed the
impugned order and upheld the order dated 16.09.2013 passed by
the learned J.M.F.C. below Exh.17 in Regular Criminal Case No.891 of
2010 holding that, the material placed on record are sufficient to
frame charge against the accused. Therefore, I find that the findings
recorded by both the lower courts are just and proper, and do not
warrant any interference from this Court. Therefore, the Criminal
Writ Petition is dismissed. Accordingly, Rule is discharged. The
earlier interim relief, if any, granted earlier is hereby vacated.
16. Since the Criminal Writ Petition is dismissed, Criminal
Application No.4018 of 2023 does not survive and therefore it is
disposed off.
17. At this stage, the learned counsel for the petitioner
requested extension of the interim order dated 20.08.2018 passed by
this Court for a period of two weeks, however, said request is hereby
rejected because the trial of Crime is pending since last more than 7
years and no cogent grounds are set out.
[ Y. G. KHOBRAGADE, J. ]
SMS
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