1 mss IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL WRIT PETITION NO. 213 OF 2010 RAJASHREE VISHNU MAHADIK @ RAJASHREE BHAUSAHEB VIKHE PATIL .. PETITIONER Vs. THE STATE OF MAHARASHTRA & ORS. .. RESPONDENTS WITH CRIMINAL WRIT PETITION NO. 214 OF 2010 VISHNU RAMCHANDRA MAHADIK .. PETITIONER Vs. THE STATE OF MAHARASHTRA & ORS... RESPONDENTS Mr. V. Shekhar, Sr. Counsel i/b Sameer Vaidya for the petitioner Mr. V. B. Konde-Deshmukh, APP CORAM: SMT. RANJANA DESAI & SMT MRIDULA BHATKAR, JJ. DATED : 21st January, 2010 2 ORAL JUDGMENT:-(Per Smt. Ranjana Desai, J.) Both these writ petitions can be disposed of by a common order because they are based on the same facts. The petitioners in both the petitions are related to each other. The petitioner in Writ Petition No. 213 of 2010 is the wife of the petitioner in Writ Petition No. 214 of 2010 and both are arraigned as the accused in C.R. No. 225/M/2008 filed by the 3rd respondent under Sections 465, 467, 468, 471, 420, 406 and 506(ii) of the Indian Penal Code (“IPC” for short). The petitioner in Writ Petition No. 214/2010 is accused 1 and the petitioner in Writ Petition No. 213/2010 is accused 2. In both the petitions the petitioners have prayed that the proceedings and the charge-sheet bearing C.C. No. 795/PW/2009, pending on the file of learned Addl. Chief Metropolitan Magistrate, 24th Court, Borivali, Mumbai be quashed and set aside. These cases arise out of C.R. No. 225/M/2008. 2. It is necessary to give the gist of the complaint because the complaint is sought to be quashed basically on the ground that ex facie it does not disclose any offence at all. The complainant claims to be a businessman dealing in real estate. In or around March, 2007 the petitioners were introduced to him by one Mr. James Lobo. Accused 1 introduced himself as close relative of Shri Balasaheb Vikhe Patil, 3 Member of Parliament. He stated that Shri Balasaheb Vikhe Patil is his wife’s uncle. Accused 2 is stated to have introduced herself as wife of accused 1 and daughter of Bhausaheb Vikhe Patil, the elder brother of Shri Balasaheb Vikhe Patil, M.P. Accused 1 and 2 represented that they had acquired all right, title and interest in respect of agricultural property bearing Survey No. 147, Hissa No. 1, C.T.S. No. 2042 of village Erangal, Taluka Borivali, Mumbai Suburban District, admeasuring 9 Acres and 30 Gunthas. The accused told the complainant that they had acquired rights by virtue of Agreements of Sale dated 2/2/2007 and 13/2/2007. They showed to the complainant a Special Power of Attorney dated 2/2/2007 executed by one of the original vendors and made them to believe that accused 1 had got right, title and interest in the said property. They represented to the complainant that being close relatives of Mr. Balasaheb Vikhe Patil and the Collector of Thane, Mr. Madhukar Zende, they would clear the property from all hurdles. 3. According to the complainant the accused persuaded them to purchase the property for a lumpsum consideration of Rs.7 Crores 51 lacs. They showed him 7/12 extract which showed the name of Pyarali Hasanali Kasam, Smt. Zarina Ibrahim Ratnani and Gulzar Salim as owners of the said property. They also showed him Power of Attorney of the original owners. According to the complainant in view of the above 4 representations on 29/4/2007 they entered into a Memorandum of Understanding (“M O U” for short). At the time of execution of the M O U the complainant paid 50 per cent of the consideration price i.e. Rs. 3.75 Crores to the accused by cheque and cash as desired by them. 4. It is further the case of complainant that in May, 2007 he took search in respect of the said property which revealed that the said property was taken over by the Mamlatdar, Taluka Borivali. He, therefore, carefully perused the copy of 7/12 extract given to him by the accused and realised that it was a colour photostat print of the original 7/12 extract in which the accused had deleted particular noting indicating that the Mamlatdar Borivali, had taken over the said property. The complainant thereafter called both the accused and confronted them with it. The complainant has given details about how the accused evaded meeting him and whiled away time. According to the complainant he met Shri Balasaheb Vikhe Patil M.P., who told him that the accused were not related to him at all. The complainant then went to Pune and met the accused. The accused offered to give him cheque of Rs. 5 Crores towards full and final settlement for cancellation of M O U. The complainant insisted that the cancellation should be notorized. They agreed to come to Mumbai for that purpose. 5 5. On 11/3/2008 the complainant received a call on his mobile demanding Rs.50 lacs from him and threatening him of dire consequences. He lodged a complaint at Malad Police Station. Thereafter the complainant and the accused met in the office of Advocate Mr. D’Mello and Deed of Cancellation dated 19/3/08 was prepared. It was notorized. At the time of execution of the Deed of Cancellation the 1st accused issued 15 cheques from the account of his firm totally amounting to Rs.5 Crores. When the said cheques were presented for encashment they were returned unpaid/dishonoured for the reason “insufficient funds”. 6. On the basis of these facts the complainant has filed the instant complaint stating that both the accused forged and fabricated 7/12 extract, in that it did not have the noting of the Mamlatdar, Borivali about acquisition of land by him. According to the complainant the accused won his trust and confidence by making false representation and making him to believe that they had right to enter into deal with him and thus made him to agree to buy the said property under M O U dated 29/4/2007 and further made him to part with payment of Rs.3.75 Crores. 7. On this complaint on 21/5/2009 learned Metropolitan Magistrate, 26th Court, Borivali, Mumbai, passed an order directing investigation 6 under Section 156(3) of the Code of Criminal Procedure (“the Code”). Being aggrieved by this order the petitioners have approached this court. 8. We have heard at considerable length Mr. Shekhar, learned Senior Counsel appearing for the petitioners. Mr. Shekhar took us through the M.O.U., the Deed of Cancellation, the complaint and also through the order passed by learned Metropolitan Magistrate. He drew our attention to the judgment of the Supreme Court in State of Haryana & Ors., Ch. Bhajan Lal & Ors., AIR 1992 SC 604 and submitted that if this case is examined in the light of the guidelines laid down by the Supreme Court in the said judgment, the complaint will have to be quashed because even if the contents of the complaint are taken at their face value and accepted in their entirety they do not prima facie constitute any offence or make out a case against the accused. 9. Learned counsel submitted that the complainant has lodged cognizable as well as non cognizable offences against the accused. Learned Counsel urged that the order passed by learned Magistrate shows non-application of mind inasmuch as an order directing investigation is passed without noticing the fact that several of the offences are non-cognizable offences. 7 10. Learned counsel further submitted that the complainant claims that he carries on his business in the name and style of M/s. Rajput Realtors Pvt. Ltd. Learned counsel submitted that with this company the accused have no privity of contract. In any case no Resolution is filed by the complainant indicating that he was authorized by the said company to file a complaint. Learned counsel submitted that learned Magistrate has overlooked this important aspect. 11. Learned counsel relied on the judgment of the Supreme Court in Dharmeshbhai Vasudevbhai & Ors. v. State of Gujarat & Ors., (2009) 6 SCC 576 to canvas the proposition that in the event for some reasons or the other the First Information Report (FIR) is not recorded in terms of sub-Section (1) of Section 156 of the Code, the Magistrate is empowered under sub-Section (3) of Section 156 thereof to order an investigation into the allegations contained in the complaint . Learned Counsel submitted that power to direct investigation could be exercised only when FIR is refused to be lodged or when the statutory power of investigation for some reason or the other is not exercised. Learned counsel submitted that there is no indication anywhere in the record or in the order passed by learned Magistrate that he has applied his mind to this vital principle laid down by the Supreme Court in Dharmeshbhai’s case. He routinely passed an order under Section 8 156(3) of the Code. 12. Learned counsel then relied on judgment of the Supreme Court in Devendra & Ors. v. State of Uttar Pradesh & Anr., (2009) 7 SCC 495 to canvas the proposition that if a complaint merely discloses a civil dispute it may be liable to be quashed. Learned counsel submitted that the complaint is malafide inasmuch as it is filed after the cheques were dishonoured. Learned counsel submitted that in fact talks of settlement of civil dispute were going on , however it is only when the cheques were dishonoured that the complainant lodged the complaint. 13. Learned counsel drew our attention to a bail order passed by learned Single Judge of this court in respect of accused 2 i.e. the wife of the 1st accused and pointed out that learned Single Judge has observed that allegations are mainly against the 1st accused. He submitted that the name of the 2nd accused does not figure in any of the documents and she has been unnecessarily involved in this case. Learned counsel submitted that it is true that charge-sheet is filed in this case, however, he urged that powers of this court are wide and are not fettered by the fact that charge-sheet is filed. He submitted that in a given case this court can quash the proceedings even after the charge-sheet is filed. He submitted that the present case warrants such exercise. 9 14. In Bhajan Lal’s case the Supreme Court has laid down principles underlying the exercise of powers of this court under Section 482 of the Code. Following are the categories of cases in which the FIR can be quashed. “(1). Whether the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2). Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a magistrate as contemplated under Section 155(2) of the Code. 10 (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and / or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 15. We have on purpose given the gist of the complaint. It is the complainant’s case that the accused represented that they were related to Mr. Balasaheb Vikhe Patil, M.P. The accused represented that being relatives of Mr. Balasaheb Vikhe Patil and Collector of Thane Mr. Zende they would clear the property in question from all hurdles. On the basis of this representation the accused persuaded the complainant to enter into a M O U pursuant to which he paid 50 per cent of the consideration 11 price i.e. 3.75 Crores. When the complainant took search of the documents he found that the property stood acquired by the Government. He then realized that the 7/12 extract given to him was fabricated i.e. the accused had given 7/12 extract to him without having the noting indicating that Mamlatdar, Borivali had acquired the said land. The 7/12 extract given to him was forged and fabricated. The accused gave cheques in the sum of Rs.5 Crores purportedly to return the amount paid by the complainant. However, those cheques when presented for encashment were dishonoured. These allegations, in our considered opinion, do prima facie constitute an offence and it is impossible to accept the submission of learned counsel for the petitioners that they do not disclose any offence at all. Keeping in mind the principles laid down by the Supreme Court in Bhajan Lal’s case, we find it difficult to accede to learned counsel’s request to quash the FIR. 16. We are also not inclined to accept the submission that because the name of the 2nd accused allegedly does not figure in any of the documents, the complaint against her should be quashed. There is a clear averment in the complaint that accused 2 has played important role by representing that she is the daughter of elder brother of Balasaheb Vikhe Patil, M.P. In fact it is possible that this connection inspired confidence in the complainant and he entered into this deal. 12 The observation made by learned Single Judge of this court while granting bail, cannot come to her rescue in these proceedings. FIR cannot be quashed on the basis of bail orders. It is well settled that bail orders are of interim nature. Exact role of accused 2 would come to light only when evidence is led. 17. We are also not impressed by the contention of learned counsel that the dispute is of a civil nature. Undoubtedly there is huge amount involved in this case but, in our opinion, this complaint has also a criminal profile. Devendra’s case has no application to this case. This submission is, therefore, rejected. 18. An attempt was made to suggest that because of the Deed of Cancellation the offence of forgery gets erased. We have no hesitation in rejecting this argument. Parties may enter into various deeds but they cannot by their mutual arrangement persuade the court to hold that the allegation of forgery be overlooked because subsequently there is a Cancellation Deed. We are also not inclined to hold that the order passed by learned Magistrate indicates no application of mind. Learned Magistrate has given the crux of the complaint and has directed that matter be investigated under Section 156 (3) of the Code. Undoubtedly there are cognizable as well as non cognizable offences alleged 13 against the accused. When grave cognizable offences are involved there are no fetters on the power of a Magistrate to issue order of investigation under Section 156(3) of the Code. Merely because some non-cognizable offences are involved it cannot be held that his order suffers from the vice of non-application of mind. It is true that if FIR is not recorded in terms of Section 156(1) of the Code, the Magistrate can pass order under Section 156(3) (Dharmeshbhai’s case). Assuming there is nothing on record to show that there was any such refusal by the police, the facts of the case are prima facie so gross that, we feel that the Magistrate was justified in issuing the order. On account of this alleged irregularity complaint cannot be quashed. 19. So far as the submission of learned counsel that the complainant was not authorized by the company to file complaint is concerned, he would be free to agitate this issue at the trial. We do not think that on this ground complaint could be quashed. It is also important to note that charge-sheet is already filed. In our prima facie opinion, the offences alleged are serious. This is not one of those cases where, we would exercise our powers under Section 482 of the Code to quash the FIR after charge-sheet is filed. In the ultimate analysis, therefore, we are of the opinion, that examined in the light of the guidelines laid down by the Supreme Court in Bhajan Lal’s case the instant complaint cannot be 14 quashed because it prima facie discloses a cognizable offence. 20. Petitions are dismissed. (SMT. RANJANA DESAI, J.) (SMT. MRIDULA BHATKAR, J.) 15