(1) CRI. APP. 102.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 102 OF 2010 Bajrang Sambhu Kakade .. Applicant VERSUS Vaijanath Yadarao Ghuge and anr. .. Respondents Mr. S.R. Choukidar, Advocate for the applicant Mr. R.N. Dhorde, Advcoate h/f. Mr. S.B. Jadhav, Adv.for the respondent no.1 Respondent no.2-deleted as per the Court’s order Mr. N.H. Borade, APP for the respondent no.3-State ... CORAM : A.V. NIRGUDE, J. DATED : 23RD MARCH, 2010 ORAL ORDER:- 1] The applicant seeks special leave to file Appeal against the judgment and order of acquittal passed by the learned Judicial Magistrate First Class, Parali Vaijanath in Criminal case no. 123 of 1993 in which the applicant was the complainant. The applicant alleged that the respondent no.1 and the deceased respondent no.2 changed the revenue record vide mutation entry no. 742 of 1975-1976 exhibit 38 and thereby caused injury to his interests of land survey no. 239 hissa no.6 admeasuring 9 Acre 19 Guntha. (2) CRI. APP. 102.2010 2] Having gone through the record and extensively heard Shri Choukidar, learned Advocate appearing for the applicant, I have noticed that the respondent no. 1 can not escape his responsibility and liability for taking the mutation entry no. 742 but having gone through the mutation entry, I am of the considered view that the respondent no.1 did not commit offence under section 218 of the Indian Penal Code which is alleged against him. Section 218 of the Indian Penal Code reads as under:- 218. Public Servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture - Whoever, being a public servant, and being as such public servant, charged with the preparation of any record or other writing, frames that record or writing in a manner which he knows to be incorrect, with intent to cause, or knowing it to be likely that he will thereby cause, loss or injury to the public or to any person, or with intent thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment, or with intent to save, or knowing that he is likely thereby to save, any property from forfeiture or other charge to which it is liable by law, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both." (emphasis supplied) 3] The most important lapse on the part of the complainant and the evidence which he led against the applicant no.1, is the absence of proof of intention to cause injury to the applicant. There is no doubt and the record clearly shows that the mutation entry no.742 of 1975-1976 was taken by the respondent no.1 and before taking such entry, he did not give notice to the applicant and (3) CRI. APP. 102.2010 other concerned persons. It appears that he placed reliance only on the application moved by the two owners of other hissas of land survey no. 239. I am aware that these two persons came before the Court and deposed that they did not make an application for seeking mutation in the record but having regard to the contents of the mutation entry, it is clear that the grievance in the application seeking mutation, was genuine. The mutation entry even records that the entry taken in respect of the applicant’s land in the previous year was erroneous and the applicant does not deny this error of the record, prior to the mutation entry. The respondent no.1 therefore, on perusal of the record, corrected the revenue record. While doing so, he probably also took into account that the applicant had purchased the land survey no. 239/A to the extent of half share, which was mentioned in his sale deed, as admeasuring 8 Acre 13 Guntha. The respondent no.1, it appears that took note of this and mentioned in the revenue record that the applicant was owner of land admeasuring 8 Acre 13 Guntha. However, the respondent no.1 also made an error further and recorded that the land which the applicant owned was not cultivated by the applicant, but by some other person by name Prabhakar. 4] There is no doubt in my mind that the mutation entry no. 742 was not only erroneous, but it was illegal because it was taken without giving notice to (4) CRI. APP. 102.2010 the necessary parties. But the question is whether such entry was taken with an intention to cause injury to the applicant? I carefully perused the record but it does not show any where that the respondent no.1 entertained mens-rea, to cause injury to the applicant before he recorded the mutation. There is nothing on record that the respondent had any concern or enmity with the applicant. That is not even the case of the applicant. The ld. judge of the lower court ignored this aspect but in the impugned judgment, but having regard to the fact that this criminal case was pending since 1993 and was disposed of recently in 2003, I am of the view that this litigation should now come to an end. For the reasons mentioned above, I hold that the judgment and order of acquittal cannot be disturbed. Hence, the Criminal Application stands rejected. Special leave refused. Sd/- (A.V. NIRGUDE, J.) arp/