[Cites 10, Cited by 0]
Bombay High Court
Arpan Ashok Murarka vs State Of Maharashtra Through Station ... on 3 February, 2026
2026:BHC-NAG:1731
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO. 901 OF 2025
Arpan Ashok Murarka
Aged about 40 years,
Occupation : Business,
R/o Plot No.5, Ganesh Nagar,
Great Nag Road, Nagpur-440024
// V E R S U S //
The State of Maharashtra,
Through Station Officer, NON-APPLICANT
Immamwada, Police Station,
Immamwada, Nagpur
-------------------------------------------------------------------------------------------
Mr. Ashok Raghute, Advocate for the applicant.
Mr. A.M. Kadukar, APP for non-applicant /State.
-----------------------------------------------------------------------------------------
CORAM : URMILA JOSHI PHALKE, J.
Judgment reserved on:- 29.01.2026
Judgment pronounced on:- 03.01.2026
JUDGMENT :
1. Heard.
2. ADMIT. Taken up for final disposal with the consent
of learned counsel for the parties.
8 apl 901.25.odt..odt
3. The present application is preferred by the applicant
challenging the order passed by the Judicial Magistrate First
Class, (Corporation Court-1) in RCC No.145/2019 dated
21.03.2024 rejecting the discharge application and the order of
Additional Sessions Judge-10 in Criminal Revision Application
No.101/2024 decided on 13.01.2025 by which the order passed
by the learned Judicial Magistrate is confirmed and the
application for discharge is rejected.
4. Brief facts which are necessary for the disposal of the
application are as under:-
On 29.09.2018, one Vishal Nagrare has lodged a
report to the effect that the applicant and his sister (Pooja
Agrawal) have represented him that he is intending to sell a plot
(Bearing No.44, Khasra No.115(2), Patwari Halka No.44 of Mouza
Somalwada, Nagpur situated in the layout of Prerna Co-operative
Housing Society Limited). An agreement of sale dated 09.06.2017
was executed between him, his wife and the applicant for
consideration of Rs.35 Lakhs. At the time of execution of
agreement of sale he paid an amount of Rs.1 lakh in cash to the
applicant. The applicant has handed over documents pertaining
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to the said plot to the informant. The informant made an inquiry
with the Nagpur Improvement Trust and it revealed to him that
the documents handed over to him by the applicant are forged
and fabricated. On further inquiry it reveals that original owner of
said plot is one Suresh Matade and said Suresh Matade has never
sold out the plot to the present applicant. Thus, the sale deed
which is shown to the informant by the present applicant to show
his ownership that said Suresh Matade has sold the said plot to
him is forged and on the basis of the forged document the
applicant entered into an agreement with the informant and
obtained the amount and thereby deceived him. On the basis of
the said report police have registered the crime against the present
applicant.
5. After registration of the crime due investigation was
carried out. During investigation the various statements of the
witnesses were recorded and after recording of the statements the
charge-sheet was filed against the present applicant.
6. After filing of the charge-sheet the present applicant
has preferred an application for discharge under Section 239 of
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the Cr.P.C. before the Court of Judicial Magistrate First Class on
the ground that the revenue record shows his name as owner of
plot No.44 Khasara No.115/2. Accordingly his name was also
entered in the revenue record. As far as forged letter of NIT is
concerned, at the relevant time he was not owner of the said
property and therefore, he is not concerned with the said forged
letter. Therefore, no prima-facie case is made out against him and
there is no sufficient material to frame the charge against him.
Therefore, he be discharged from the charges. The learned
Magistrate after considering the entire investigation papers and
the principles laid down for considering the application for
discharge and thereafter rejected the application.
7. Being aggrieved and dissatisfied with the order
passed by the learned Judicial Magistrate First Class the present
applicant preferred Criminal Revision bearing No.101/2024, in the
said revision, the Additional Sessions Judge No.10, Nagpur had
considered the entire charge-sheet and also considered the various
statements recorded during the investigation and observed that at
this stage, prima-facie case against present applicant revealed and
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there is sufficient evidence to frame the charge and thereby
dismissed the revision.
8. Being aggrieved and dissatisfied with the same,
present application is preferred by the applicant on the ground
that both the courts below have not considered that the revenue
record shows the ownership of the present applicant regarding the
property in dispute. The registered document sale deed which is
executed by the original owner in favour of the present applicant
shows his ownership. On the basis of said sale deed his name is
also entered in the revenue record. Thus, as far as ownership of
the present applicant over the said plot is concerned, which is not
in dispute. He further submitted that considering the fact that the
entire prosecution relies upon one letter issued by NIT showing
that the earlier communication dated 24.01.2014 is not issued
from NIT regarding the regularization of the construction and
thus, said document is forged one. At the relevant time the
present applicant was not owner of the said property. He
purchased the said property subsequent to 24.01.2014. Therefore,
he is not at all concerned with the forgery of the said document.
Being he is owner entered into an agreement with the present
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applicant. At the most, it is a civil dispute and no intention can be
gathered from the circumstances. In view of that, application
deserves to be allowed by setting aside the orders passed by the
Judicial Magistrate First Class, Nagpur and the Additional Sessions
Judge, Nagpur.
9. Per contra learned APP and learned counsel for the
non-applicant No.2 strongly opposed the said contention and
invited my attention towards the various statements of the
witnesses and including the statements of the original owner
Suresh Matade and submitted that the statement of Suresh
Matade itself shows that he never got acquaintance with the
present applicant and he never sold out the said plot to the
present applicant. Sale deed itself is forged one on the basis of
which, applicant has entered his name in the revenue record.
Thus, on the basis of the forged document the present applicant
entered into the agreement with the present informant and
thereby obtained money and deceived him. Thus, considering the
prima-facie material at this stage, learned Court below rightly
rejected the application and therefore, the present application
being devoid of merits and liable to be dismissed.
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10. Upon hearing both the sides and on perusal of the
entire investigation papers it reveals that applicant is seeking
discharge on the ground that he is a legally owner of the plot
No.44 out of Khasara No.115 as he has purchased it from the
original owner Suresh Matade. During investigation the
Investigating Officer has collected the relevant documents and
also recorded the relevant statements of the witnesses. From the
documents which are collected, during the investigation it
revealed that initially, the said plot was owned by Prerna
Cooperative Housing Society Limited, Nagpur. The original owner
Suresh Matade and Secretary Ganpatrao Bhauraoji of Prerna
Cooperative Housing Society Limited Nagpur entered into an
agreement to purchase the said plot No.44 out of Khasra
No.115(2) and thereby sell deed was executed in favour of said
Ganpat Bhauraoji on 03.04.1986. By way said registered sale deed
said Suresh Matade became owner of the said plot No.44. As per
contention of the applicant that he purchased the said plot from
Suresh Tukaram Matade on 30.07.2016 by way of registered sale
deed and on the basis of said registered sale deed, he entered his
name on the revenue record. Admittedly, the sale deed which
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placed on record shows that when sale deed is executed between
Suresh Tukaram Matade and Arpan Ashok Morarka i.e. present
applicant on that basis the name of the present applicant is also
entered on the revenue record. But during investigation the
Investigating Officer has recorded the statements of said Suresh
Matade. The statement of Suresh Matade specifically said that he
was owner of plot No.44 out of Khasara No.115(2) owned by
Prerna Cooperative Housing Society. He has sold out the said plot
in the year 2014 itself to one Arati Sandip Sabnish and Vijay
Narayan Deshpande for the consideration of Rs.20 Lakhs. He
specifically stated that he has not acquainted with the present
applicant and there was no transaction took placed between him
and the present applicant. He has not entered into any agreement
of sale or sale with the present applicant. The statements of the
various witnesses wife of the informant, one Javed Israel Khan,
Prakas Madhavrao Hande and so on specifically stated that Suresh
Matade was the owner of the said plot No.44. Thus, as far as sale
deed executed by Suresh Matade in favour of the present
applicant allegedly is in question. The original owner himself
specifically denied that he has not executed any sale deed in
favour of the present applicant. Therefore, there is substance in
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the contention of the learned counsel for the complainant that on
the basis of forged sale deed the applicant entered into an
agreement to sale.
11. By way of this application the applicant is seeking
discharge. It is settled principle of law that at the stage of
considering an application for discharge, the Court must proceed
on the assumption that material which has been brought on
record by the prosecution is true and evaluate the material in
order to determine whether the facts emerging from the material,
taken on its face value disclose the existence of ingredients
necessary of the offence alleged.
11. The Hon'ble Apex Court in the case of State of
Gujarat vs. Dilipsinh Kishorsinh Rao, reported in MANU/ SC/1113
2023, adverting to the earlier propositions of law in its earlier
decisions in the cases of State of Tamil Nadu vs. N.Suresh Rajan
and ors, reported in (2014) 11 SCC 709 and The State of
Maharashtra vs. Som Nath Thapa, reported in (1996) 4 SCC 659
and The State of MP Vs. Mohan Lal Soni , reported in (2000) 6
SCC 338, has held as under:
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"10. It is settled principle of law that at the stage of
considering an application for discharge the court
must proceed on an assumption that the material
which has been brought on record by the
prosecution is true and evaluate said material in
order to determine whether the facts emerging
from the material taken on its face value,
disclose the existence of the ingredients necessary
of the offence alleged. This Court in State of Tamil
Nadu vs. N.Suresh Rajan and ors, (2014) 11 SCC
709 adverting to the earlier propositions of law laid
down on this subject has held:
"29. We have bestowed our consideration to the rival
submissions and the submissions made by Mr. Ranjit
Kumar commend us. True it is that at the time of
consideration of the applications for discharge, the
court cannot act as a mouthpiece of the prosecution
or act as a post office and may sift evidence in
order to find out whether or not the allegations made
are groundless so as to pass an order of discharge.
It is trite that at the stage of consideration of an
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 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. In our opinion, what needs
to be considered is whether there is a ground for
presuming that the offence has been committed and
not whether a ground for convicting the accused has
been made out. To put it differently, if the court
thinks that the accused might have committed the
offence on the basis of the materials on record on its
probative value, it can frame the charge; though for
conviction, the court has to come to the conclusion
that the accused has committed the offence. The law
does not permit a mini trial at this stage."
12. Thus, the defence of the accused is not to be
looked into at this stage when the application is filed
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for discharge. The expression "the record of the case"
used in Section 227 of the Code of Criminal
Procedure is to be understood as the documents and
materials, if any, produced by the prosecution. The
provisions of the Code of Criminal Procedure does
not give any right to the accused to produce any
document at the stage of framing of the charge. The
submission of the accused is to be confined to the
material produced by the investigating agency. The
primary consideration at the stage of framing of
charge is the test of existence of a prima facie case,
and at this stage, the probative value of materials on
record need not be gone into. At the stage of
entertaining the application for discharge under
Section 227 of the Code of Criminal Procedure, the
court cannot analyze or direct the evidence of the
prosecution and defence or the points or possible
cross examination of the defence. The case of the
prosecution is to be accepted as it is.
13. In the case of Union of India vs. Prafulla Kumar
Samal and anr, reported in (1973)3 SCC 4, the
Hon'ble Apex Court considered the scope of Section
227 of the Code of Criminal Procedure. After
adverting to the various decisions, the Hon'ble Apex
Court has enumerated the following principles:
"(1) That the Judge while considering the question of
framing the charges under section 227 of the Code
has the undoubted power to sift and weigh the
evidence for the limited purpose of finding out
whether or not a prima facie case against the accused
has been made out.
(2) Where the materials placed before the Court
disclose grave suspicion against the accused which
has not been properly explained the Court will be,
fully justified in framing a charge and proceeding
with the trial.
(3) The test to determine a prima facie case would
naturally depend upon the facts of each case and
it is difficult to lay down a rule of universal
application. By and large however if two views are
equally possible and the Judge is satisfied that the
evidence produced before him while giving rise to
some suspicion but not grave suspicion against the
accused, he will be fully within his right to
discharge the accused.
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(4) That in exercising his jurisdiction under section
227 of the Code the Judge which under the present
Code is a senior and experienced Judge cannot act
merely as a Post office or a mouth-piece 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, any basic infirmities appearing in the
case and so on. This however does not mean that
the Judge should make a roving enquiry into the
pros and cons of the matter and weigh the
evidence as if he was conducting a trial."
Thus, the catena of decisions explains the scope of
Sections 227 and 228 of the Code of Criminal
Procedure from which following principles
emerge:
1. While considering the question of framing the
charges under section 227 of the Code, the court
has the undoubted power to sift and weigh the
evidence for the limited purpose of finding out
whether or not a prima facie case against the
accused has been made out: The test to
determine prime facie case would depend upon
the facts of each case.
2. Where the materials placed before the Court
disclose grave suspicion against the accused which
has not been properly explained the Court will be,
fully justified in framing a charge and proceeding
with the trial.
3. The court cannot act merely as a Post office or a
mouth-piece 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, any basic
infirmities appearing in the case and so on.
However, at this stage, there cannot be a roving
enquiry into the pros and cons of the matter and
weigh the evidence as if he was conducting a trial.
4. If on the basis of the material on record, the Court
could form an opinion that the accused might have
committed offence, it can frame the charge, though
for conviction the conclusion is required to be
proved beyond reasonable doubt that the accused
has committed the offence.
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5. At the time of framing of the charges, the probative
value of the material on record cannot be gone into but
before framing a charge the Court must apply its judicial
mind on the material placed on record and must be
satisfied that the commission of offence by the accused
was possible.
12. With the above principles, if the material in the
present case collected during the investigation is discussed there is
no dispute as to the fact that the documents on record shows that
the original owners statement specifically denies any transaction
with the present applicant. The allegations levelled against the
present applicant to be looked into in the light of provision under
Section 420 of IPC. As far as the offence under Section 420 of IPC
is concerned, there has to be an intention since inception. The
ingredients of offence of cheating described in Section 415 of the
IPC requires deception of any person, (a) inducing that person to
(b) to deliver any property to any person, (c) to consent that any
person shall retain any property and (d) intentionally inducing
that person to do or omit to do anything which he would not do or
omit if he were not so deceived and which act or omission causes
or is likely to cause damage or harm to that person, anybody's
mind, reputation or property.
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13. In the light of the above definition admittedly there is
material on record to show the dishonest intention of deception
on the part of present applicant. Considering the principles laid
down in catena of decisions that at this stage, the defence of the
accused not to be looked into. If the material collected during the
investigation is sufficient to frame the charge or even strong
suspicion is also sufficient to frame the charge. In view of that the
prima-facie material is available in the present case and at this
stage, the Court is not expected to go deep into the matter and
hold that the materials would not warrant conviction. In my
opinion, what needs to be considered is whether there is ground
for presuming that the offence has been committed or not and not
whether a ground for convicting the accused has been made out.
To put it differently the material on record on its probative value if
examined there is sufficient material to frame the charge. The law
does not permit a mini trial at this stage. More over the defence of
accused is not looked into at this stage. The expression "the
record of the case into" used in Section 227 or 239 of the Code of
Criminal Procedure is to be understood as the documents and
material if any produced by the prosecution and by examining the
said material the test of existence of prima-facie case is available
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in the present case, in view of that, the order passed by the
Judicial Magistrate First Class rejecting the discharge application
and confirmed by Additional Sessions Judge, Court No.10, Nagpur
is proper, legal and no interference is called for.
14. The application being devoid of merits and liable to
be dismissed.
15. Hence, I proceed to pass the following order:-
ORDER
(i) The Criminal Application is dismissed.
16. The criminal applications stand disposed of in
the above said terms.
Pending applications, if any, also stand disposed of.
(URMILA JOSHI PHALKE, J.)
manisha
Signed by: Mrs. Manisha Shewale
Designation: PA To Honourable Judge
Date: 03/02/2026 17:52:32
