1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH NAGPUR Criminal Application No. 3563/2006 Jitendra Surendra Kapoor, aged about 33 years, Occ. Business, r/o Industrial Estate, Mul Road,Chandrapur, Tq. Dist. Chandrapur. .. APPLICANT .. Versus .. 1. State of Maharashtra. 2. Sau. Sangeeta Swaroop Kapoor, aged 34 years,Household, r/o Balveer Ward, Chandrapur, Tq. Dist.Chandrapur. ..NON APPLICANTS --------------------------------------------------------------------------------- Mr. M. P. Khajanchi, Advocate for applicant. Ms. T. D.Khade, A.P.P. for non applicant no.1 Mr. Amol Mardikar, Advocate for non applicant no.2. --------------------------------------------------------------------------------- With Criminal Revision Application No. 282/2006 Sau. Sangeeta Swaroop Kapoor, aged about 34 years, Household, r/o Balveer Ward, Chandrapur, Tq. Dist.Chandrapur. .. APPLICANT .. Versus .. 1. The State of Maharashtra, thr. Its Police Station Officer, Police Station, Ramnagar, Chandrapur, Tq. Dist. Chandrapur. 2. Jitendra Surendra Kapoor, aged about 33 years, Occ. Business, r/o Industrial Estate, Mul Road, Chandrapur, Tq. Dist. Chandrapur 2 3. Kuldeep s/o Amaranthji Kalda, aged about 34 years, Occ. Business, r/o Industrial Estate,Mul Road, Chandrapur, Tq. Dist. Chandrapur. 4. Narendrasingh Amarnathji Kalda, aged about 39 years, Occ. Business, r/o Shastri Nagar, Chandrapur, Tq. Dist. Chandrapur. 5. Bharat Dhondbaji Waghide, aged about 45 years, Occ. Service, (Manager Jaika Motors), r/o Civil Lines, Nagpur Road, Chandrapur, Tq. Dist. Chandrapur. 6. Vivek Vasnatrao Tulankar, Aged about 42 years, Occ. Service in Tata Finance, r/o 164 Shankar Nagar, Police Station, Ambazari, Nagpur, Tq. Dist. Nagpur. ..NON APPLICANTS --------------------------------------------------------------------------------- Mr. Amol Mardikar, Advocate for applicant. Ms. T. D.Khade, A.P.P. for non applicant no.1 Mr. M. P. Khajanchi, Advocate for non applicant no.2. --------------------------------------------------------------------------------- CORAM :- R. Y. GANOO, J. DATED :- 8 th September,2009 J U D G M E N T 1. For the sake of convenience, applicant in Criminal Revision No. 282/2007 who is non applicant no.2 in Criminal Application No. 3563/2006 by name Sau. Sangeeta Swaroop Kapoor shall hereinafter be referred to as ‘complainant’. The applicant in Criminal Application 3 No. 3563/2006, who is non applicant no. 2 in Criminal Revision No. 282/2007 by name Jitendra Surendra Kapoor shall hereinafter be referred to as ‘accused no.1’. 2. Few facts necessary for disposal of the present matter are as under:- The complainant purchased a Truck bearing No. MH-34-4755 (hereinafter referred to as the ‘said truck’) and loan from Tata Finance was obtained. It is the case of the complainant that accused contacted the complainant and persuaded her to hand over the said truck to him so that accused would arrange to ply the truck, pay loan installments and pay some amount by way of compensation to the complainant. It is the case of the complainant that this arrangement went on smoothly from 1997 to December-1999 and some time prior to May-2000, the Tata Finance, who had lent money to the complainant, managed to seize the said Truck on the ground that the loan installments were not paid. The said truck was kept within the control of Tata Finance. According to the complainant, when this fact came to the 4 knowledge of the complainant, the complainant deputed her brother-in-law by name Dilip Kapoor. According to the complainant, the said Dilip Kapoor visited the site and observed that a truck of different colour is in the custody of the Tata Finance. According to the complainant, services of the Regional Transport Officer, Police Authorities were sought and the impression regarding Engine number, Chassis number of the truck, which was in the custody of the Tata Finance were taken and it was noted that the said engine number and chassis number pertain to the truck owned by accused no.1 being Truck No. MH-34-4955. According to the complainant, the truck owned by accused no.1 of the aforesaid number was not in good condition and, therefore, in order to see that the said truck is plied as if it is the truck of the complainant, the registration number MH-34-4755 came to be scribed on the body of the truck so that if at all the truck is to be seized, it would be the truck which was not in good condition and the truck of the complainant, which was with Chassis number 3730906 SQ 725175 would be run by accused no.1 without any disturbance that is to say 5 according to the complainant, accused no.1 wanted to represent the world at large that truck of the Accused No. 1 is being plied on the road though, in fact, truck of complainant was being plied. The complainant, after seizure of the truck by Tata Company instituted a regular Criminal Complaint No. 2/2003 in the Court of Chief Judicial Magistrate, Chandrdapur alleging therein that offence under Section 420, 465, 468, 471 read with Section 34 of the Indian Penal Code are committed. The complainant had also joined four other persons in the said complaint on the ground that accused nos. 2 and 3 are friends of accused no.1 and they had joined with accused no.1 in the matter of forgery. Accused no. 4, who was in service of Jaika Motors, a dealer of Tata Truck was also shown as an accused. Accused no. 5-Vivek Tulankar, who was in the employment of Tata Finance was shown as accused. After lodgment of the complaint, the complainant rendered verification and certain documents in the nature of xerox documents were placed before the learned Chief Judicial Magistrate, Chandrapur with a view to request the said Court that offences as set out in the 6 complaint are made out. The learned Chief Judicial Magistrate, Chandrapur recorded verification. Perused the complaint as well as verification, the documents and passed the following order on 13.02.2003:- “Perused complaint & documents filed on record. Heard counsel for complainant. From documentary material placed on record. Prima facie offence u/s 420, 465, 468 & 471 r/w 34 I.P.C. are made out against the persons. Hence issue process against accused nos. 1 to 5 on P.F. ” Accused no. 1 felt aggrieved by this order dated 13.02.2003 and filed Criminal Revision No. 78/2003 in the Sessions Court at Chandrapur and the learned Additional Sessions Judge by his judgment and order dated 14.07.2006 came to the conclusion that grant of process so far as Section 420 of the Indian Penal Code was not proper and while confirming issuance of process for Section 465, 468, 471 read with Section 34 of the I.P.C. set aside order by which process came to be issued under Section 420 of the Indian Penal Code. 7 3. Being aggrieved by judgment and order dated 14.07.2006 passed by learned Sessions Judge, Chandrapur in Criminal Revision No. 78/2005 accused no.1-Jitendra Kapoor filed present Criminal Application No. 3563/2006. 4. The complainant also felt aggrieved by order dated 14.07.2006 by which, process under Section 420 of the Indian Penal Code was negatived and, therefore, the said complainant Sau. Sangeeta Kapoor filed present Criminal Revision No. 282/2007 praying that the process should be issued for offence under Section 420 of the Indian Penal Code. It is, in these circumstances, the aforesaid proceedings came to be taken up for final hearing as Rule was already issued on the criminal application as well as criminal revision. 5. I have extensively heard learned Advocate Mr. Khajanchi, appearing on behalf of accused no.1 and Mr.Mardikar, Advocate appearing on behalf of the complainant. Nobody appeared on behalf of accused nos. 8 2,3,4 and 5 in the revision filed by accused no.1 as even they were not made parties. Same is the position so far as the Criminal Revision Application No. 282/2007. 6. After having considered the entire record, it is required to be noted that the learned Chief Judicial Magistrate, accepted the verification done by the complainant. He also perused the various documents and issued process. The learned Advocate Mr. Khajanchi has submitted that verification rendered by the complainant can be conveniently divided into two parts. First part refers to the allegations as regards accused no.1 being permitted to ply truck and accused no.1 not paying the loan installments and compensation amount to the complainant and second part which relates to the offence as regards forgery whereby it was alleged that on the truck owned by accused no.1, number MH-34-4755 was painted/written so as to make representation to the world at large that the said truck owned by accused no.1 was the truck of the complainant so that it could be seized by Tata Company for non payment of loan installments. The 9 learned Advocate Mr. Khajanchi had submitted that later part of the verification is based on the information supplied by Dilip Kapoort to the complainant. Said Dilip Kapoor, claimed that he visited the site, observed the truck and informed the factual aspects to the complainant, who accepted those facts as correct and met them with at the time of verification. Learned Advocate Mr. Khajanchi had submitted that the second part of verification should not have been accepted by learned Chief Judicial Magistrate as the complainant had not visited the site and the opinion received by her from Dilip Kapoor will have to be treated as something in the nature of hearsay evidence. He had also submitted that the learned Chief Judicial Magistrate while issuing process perused various documents. He submitted that the complainant had not placed before the Court documents in original wherever the originals could have been placed and the complainant had not produced xerox copies of the documents in appropriate manner as can be understood as per chapter 15 of Code of the Code of Criminal Procedure and, therefore, reliance placed by learned Chief 10 Judicial Magistrate on the entire compilation on the basis of which, order of issuance of process came to be passed was not proper. According to the verification rendered by complainant along with xerox documents was not appropriate material on the basis of which the concerned Chief Judicial Magistrate could have gone into question whether process should be issued or not. 7. Learned Advocate Mr. Khajanchi, had alternatively submitted that the verification rendered by the complainant and documents relied upon by the complainant did not make out prima facie case of forgery and other related offences as claimed by the complainant. He had submitted that the learned Additional Sessions Judge had rightly dropped the process against accused no.1 for charge under Section 420 of the Indian Penal Code as no material in that behalf was placed before the Court. He had submitted that looking to the case from any angle, the process issued by learned Chief Judicial Magistrate is required to be quashed. 11 8. Mr. Mardikar, appearing on behalf of the complainant, submitted that if one reads verification as it is, the complainant has rendered complete information about the commission of offence by accused no.1 and his associates and that learned Chief Judicial Magistrate had perused the documents and after satisfying the correctness of the case put up by complainant in terms of those documents, learned Chief Judicial Magistrate was convinced that the process is required to be issued. He had further submitted that the claim of accused no.1 that the process was wrongly issued was negatived by learned Sessions Judge and, therefore, this Court should not interfere in the order of issuance of process. He submitted that based on the material available at the relevant time the learned Judge was satisfied about offence being committed by accused no.1 and, therefore, process came to be issued. In support of this argument, he had taken me through the compilation (xerox) of the various documents which made efforts to show that prima facie case is made out for an offence for which complaint was filed. He had reiterated his argument that case under 12 Section 420 of the Indian Penal Code is made out and the learned Additional Sessions Judge erred in declining to issue process under Section 420 of the Indian Penal Code. He had, therefore, submitted that application filed by accused no.1 should be dismissed and revision filed by complainant should be granted. 9. After having considered rival contentions, I am inclined to accept the arguments advanced by learned Advocate Mr. Khajanchi that acceptance of verification rendered by complainant in toto was an error on the part of learned trial Judge because the complainant had not visited the site, she had not seen what was factual situation at the site qua truck which was seized by Tata Finance. She had received information from Dilip Kapoor and the said information was narrated by by her by way of evidence and, therefore, evidence of complainant by itself was not properly made out. Why the said Dilip Kapoor has not been examined as per Chapter 15 of the Code of Criminal Procedure has not surfaced anywhere on the record. In the normal course, it was easily possible for 13 the complainant to put Dilip Kapoor before the Court as her witness. Calling upon Dilip Kapoor to show something as part of material to persuade the Court to issue process, to that extent, I am inclined to accept arguments of learned Advocate Mr. Khajanchi that later part of verification should not have been accepted by learned trial Judge to hold that the case is made out in support of charges levelled against the complainant/accused no.1. 10. So far as use of xerox copies of various documents, arguments learned Advocate Mr. Khajanchi will have be accepted. Learned Advocate Mr. Mardikar having replied to these submissions contended that as compilation was made available to learned Judge, he perused it. He was satisfied about the genuineness of those documents and, therefore, he thought it fit to pass an order. After having seen the provisions of Section 190 of Code of Criminal Procedure as well as Chapter 15, I am inclined to observe that it was not appropriate for the learned trial Judge to consider the xerox copies of various documents as sufficient material to read it for the purpose 14 of deciding whether any process is required to be granted. If at all the complainant intended to rely upon a documents, the complainant ought to have produced original documents or if original documents were not available appropriate explanation ought to have been given as to why xerox copies are being produced and it is only after recording appropriate explanation said xerox compilation could have been used in the course of completing the procedure under chapter 15 of the Code of Criminal Procedure. In my view, reliance placed on the xerox compilation was not proper and, therefore, the ultimate decision arrived at by learned trial Judge also will have to be looked into as something which was not proper. 11. If this is the view required to be taken, then question is what is to happen insofar as complaint which is filed by complainant. In normal course, if Courts come to the conclusion that there is no material to come to conclusion that offence is made out and if still process has been issued by the Courts below, the said process is 15 required to be quashed. In the present case, I have already observed that the material on the basis of which the learned trial Judge relied upon was not appropriate material for deciding whether process should be issued or not. This being the case where process issued by learned trial Judge was on the basis of improper material, this is not a case where complaint filed by the complainant is required to be quashed. But the process issued by learned trial Judge will have to be quashed and an opportunity will have to be given to the complainant to take steps as per Chapter 15 of Code of Criminal Procedure namely to examine some more witness if she wants to examine in support of the case that the process should be issued for various sections on the ground that accused has committed an offence. If this course is adopted, the error committed by learned Chief Judicial Magistrate will stand rectified and an opportunity will be provided to the complainant to put her case in proper perspective and in appropriate manner. In my view, this course would meet the ends of justice. 16 12. If the process issued by learned Chief Judicial Magistrate by order dated 13.02.2003 is quashed and the complaint is restored to the file of Chief Judicial Magistrate for proceeding further as per Chapter 15 of the Code of Criminal Procedure, the question whether process could have been rejected for charge under Section 420 of the Indian Penal Code need not be gone into and to that extent, order passed by learned Additional Sessions Judge, Chandrapur will not come in the way of the complainant in the matter for a process under Section 420 of the Indian Penal Code, of course, if appropriate material in that behalf is pointed out before the learned trial Judge. This will obviate any kind of objection which may be raised in future by relying upon order dated 14.07.2006 by which learned Additional Sessions Judge had declined to confirm issuance of process under Section 420 of the Indian Penal code. Keeping in view the aforesaid discussion, I am inclined to pass order so as to quash the order dated 13.02.2003 as regards issuance of process and restore the complaint to the file of Chief Judicial Magistrate, Chandrapur for proceeding further in 17 the light of aforesaid discussion. Once the said order is passed, Criminal Revision No. 282/2007 shall stand disposed of accordingly. 13. For the reasons mentioned aforesaid, I pass the following order. (a) Order dated 14.07.2006 passed by learned Sessions Judge, Chandrapur is set aside. Order dated 13.02.2003 passed by learned Chief Judicial Magistrate in Criminal Complaint Case No. 2/2003 under Section 420, 465, 468, 471 read with Section 34 of of the Indian Penal Code is set aside. Criminal Complaint Case No. 2/2003 filed by the complainant Sou. Sangeeta Swaroop Kapoor is restored to the file of Chief Judicial Magistrate, Chandrapur. (b) Record and proceedings in this case as well as writ be sent to the Court of Chief Judicial Magistrate, Chandrapur as expeditiously as possible. On receipt of record, complainant Sou. Sangeeta is free to prosecute 18 her case and if she wants to examine some other person as provided under Chapter 15 of the Code of Criminal Procedure in support of her complaint, she is free to do so. If she wants to rely upon certain documents, she will have to produce those documents in original before Chief Judicial Magistrate. If she wants to rely upon certain documents, which cannot be produced in original, but it could be produced by way of carbon copy or true copy, learned Chief Judicial Magistrate shall adopt the procedure for that prescribed in accordance with provisions of law and after the complainant is fully satisfied that she has placed all necessary material before the learned Chief Judicial Magistrate in support of her complaint, she will be free to argue that process for particular section should be issued and then learned Magistrate shall pass an appropriate order after considering arguments and entire record. (c) It is required to be clarified that this order shall also operate for the benefit of original accused nos. 2, 3, 4 and 5 also though they have not participated 19 in the aforesaid two proceedings because this Court has observed that the very order of issuance of process namely dated 13.02.2003, was not properly passed. (d) In view of the aforesaid order, bail bonds of accused nos. 1,2,3,4 and 5 who are shown as accused in Criminal Complaint Case No. 2/3003 are cancelled. (e) It is clarified that this Court has not expressed any views on merits of the matter either way and learned Chief judicial Magistrate shall apply is mind independent of what has happened in the past and pass appropriate order. Rule accordingly. JUDGE kahale