1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2281 OF 2008 Arvind Kadam …Applicant. Vs. The State of Maharashtra …Respondent. Mr.A.P. Mundargi, Sr.Advocate i/b Mr.Subodh Desai, for the Applicant. Mr.Y.S. Shinde, APP for the State. CORAM: A.S. OKA, J. DATE: 9TH JULY, 2009. JUDGMENT: 1. The submissions of the the learned Counsel for the applicant and learned APP for the State were heard on the earlier date. By an order dated 26th August, 2008, this court directed that this application for quashing under Section 482 of the Code of Criminal Procedure, 1973(hereinafter referred to as ‘the Code of 1973’) will be decided finally at the stage of admission. 2 2. The Assistant Manager of the Corporation Bank lodged F.I.R. alleging commission of the offence s punishable under sections-465,467, 468, 471, 420 read with 120 B of the Indian Penal Code. It will be necessary to refer the allegations made in the F.I.R. The case is that certain persons approached the said Bank for grant of housing loans for acquiring flats. The request was made for grant of loan for acquring flats in Vikrant Apartment at Diva Village, Navi Mumbai, District-Thane. One Ganpat Babu Salunkhe is alleged to be the developer of the said building. In the complaint it is stated that the documents regarding title were forwarded by the Bank to one S.N. Acharya, Advocate for legal opinion. After the receipt of report issued by the said advocate, the loan was disbursed by issuing pay orders in favour of the developer. Afterwards it was realised that the persons to whom loan was issued were not residing in the said Apartments and flats were found in closed condition. It was realised that some of the flats were sold by the developer to other parties who had obtained loan from another bank. 3. In so far as the applicant is concerned, it is stated that he was working as a search clerk and at the instance of Mr.Acharya, Advocae, he had taken search in the office of Sub-Registrar of 3 Assurances. The allegation in short against the present applicant is that though there were encumbrances on the flats in question when he had taken search, in the search report submitted by him these encumbrances were not disclosed. 4. The learned Senior Counsel appearing for the applicant has invited my attention to various documents on record forming part of the charge sheet. It must be noted that the application made by the applicant for discharge was rejected by the trial court. A revision application was preferred by the applicant which came to be dismissed. Whille dismissing the revision application, the learned Session Judge observed that the role of the Advocate and search clerk cannot be separated. 5. The submission of learned Senior Counsel for the applicant is that search reports submitted by the applicant after taking search in the office of the Sub-Registrar are on record along with the receipts of payments made by way of fees of search. He submitted that there is no material placed on record forming part of the charge sheet showing that either the search reports are incorrect or that on the day the search was taken by the applicant, in the index maintained by the office of the sub-registrar of 4 assurances, certain encumbrances were shown on the flats. He submitted that the only role paid by the applicant is of taking search in the office of the sub-registrar of assurances and submitting a report on the basis of the search. When a query was made, the learned APP for the State submitted that the concerned index register of which inspection taken by the applicant for preparing the search reports or the extracts thereof are not part of the charge sheet. He, however, placed on record the extracts of index register which are not the part of the charge sheet which according to him show that when search was purportedly taken by the applicant, the encumbrances were already shown in the index register. He submitted that the said extracts of index clearly shows the complicity of the applicant. 6. I have carefully considered the submission. It is not in dispute that one Mr. S.N. Acharya, Advocate was engaged by the bank (first informant) for obtaining a report on title of the said flats. He has submitted title reports to the bank on the basis of search taken by the applicant. The receipts of payment of fees for search are on record. Perusal of the search reports submitted by the applicant shows that the search was taken in respect of certain flats on the building constructed on Plot No.D/53-54 in Sector-9, 5 Village Dive, Navi Mumbai, District Thane. The search reports clearly mention the name of the village as Dive in Navi Mumbai, District-Thane. The reports of title submitted by Advocate Shri S.N. Acharya also relate to flats in Vikrant Apartments, Plot No.D.53-54, in Sector 9 at village Dive, Navi Mumbai. The receipts of payment of search fees on record show that the search was taken of flats in a building situated in village Dive. As stated earlier, the index II or extracts thereof showing encumbrances on the flats are not forming part of the chargesheet which could have shown that though certain encumbrances were shown in the index register, the same are not reflected in the search reports submitted by the applicant. The reliance is placed by the learned APP for the State on certified extracts of index II to show that there were encumbrances registered prior to the date on which the search was taken by the applicant. The said extracts tendered by the learned APP for the State show the name of village as ‘Airoli’. The learned APP for the State submitted that village ‘Airoli’ is no different from the village “Dive”. Again on this aspect there is no material placed in that behalf in the charge sheet. The title opinion submitted by Advocate Shri Acharya mentions the village as “Dive” and not “Airoli”. Therefore, the said extracts do not help the case of the 6 prosecution. The search reports submitted by the applicant relate to the property at village Dive. 7. In this circumstances, even if the material forming part of the charge sheet is taken as true, there is absolutely no material to proceed against the applicant. 8. Hence, the application must succeed and I pass the following order: : O R D E R : . The impugned orders are quashed and set aside and the applicant is discharged from the C.C.No.1047/PW/2007 arising out of C.R.No.39/2007 registered with M.H.B Colony Police Station, Borivali, Mumbai. (A.S.OKA, J)