1 3614.10 SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.3614 OF 2010 Chandubhai N.Patel & Ors. ...Petitioners Versus The State of Maharashtra & Ors ...Respondents ...... Mr.Subhash Jha a/w Mrs.Mallika Ingale for Petitioners. Mr.P.A.Pol, P.P. a/w Mrs.A.S.Pai, A.P.P. for Respondent No.1. Mr.S.H.Mishra for Respondent No.2. ...... CORAM:- A.M.KHANWILKAR AND R.G.KETKAR, JJ. DATED:- DECEMBER 12, 2011. P.C. 1. Heard Counsel for the parties. This Petition is for quashing MECR No.2/2010 which has been registered on the basis of order passed by the Additional Chief Metropolitan Magistrate, 24th Court, Borivali, Mumbai dated 18th August, 2010 in CC No.58/SW/2010 issuing direction under Section 156(3) of the Criminal Procedure Code. The Magistrate relied on paragraph Nos.5 and 10 of the complaint to hold that, prima facie, allegations contained therein disclose commission of cognizable offence punishable under Sections 468, 471 and 420 of the Indian Penal Code. Paragraphs 5 and 10 of the complaint read thus: 2 3614.10 “5. The Complainant state that in furtherance of their common intentions and conspiracy the Accused after prepared various documents such as bogus receipt of consideration dishonestly. The cause of action to file present complaint is that Accused No.1 filed suit simpliciter for injunction suit and first time produced a false receipt purported to be signed by the complainant for the delivery of physical possession of the plot of land of 1000 sq.yard to Accused. And also stated that an amount of Rs.15 Lacs and Rs.7.50 Lacs, were paid to the complainant in case aggregating together Rs.22.50 Lacs. The Complainant never delivered possession either legal or physical. The disputes were already going on, complaints and cross complaints were filed between parties at court and Police Station. Now after six years or so, the Accused produced a possession receipt on Revenue tickets purported to be signed by the complainant. The complainant never signed the receipt, it is false, forged and bogus it is used by the Accused No.1 to claim the valuable property of lacs of Rupees, in conspiracy of other accused who is related as sons and father.” “10. The complainant state that the accused is first time in the month of October, 2009 came with the false evidence that possession receipt were signed by complainant and also by Accused No. 2 & 3 and payment is made of Rs.22,50,000/-. The Accused have committed offence of preparing false receipt of consideration and possession to cheat the complainant, by fabricating, making and using complainant’s false signature on purported receipt dated 12/03/2004 inspite of having knowledge that the said receipt are false and not signed by complainant. On the basis of said receipt the Accused No.2 & 3 also prepared 2nd receipt on 24/02/2005. The complainant referred the matter for opinion of expert examination and Report state that the disputed signature is not tally with other admitted signature. Copy of the primary report by expert of document examination is attached for the perusal of the Hon’ble Court. It is case of prima facie of commission of cognizable offence.” 2. The petitioners who have been named as accused in the MECR as registered by the Charkop Police Station have approached this Court by way of present Writ Petition under Article 227 of the Constitution of India r/w Section 482 of the Criminal Procedure Code interalia on the ground 3 3614.10 that the relevant and material fact has not been disclosed by the respondent No.2 in the complaint which itself disentitles the respondent No.2 for any relief whatsoever in law. According to the petitioners, the allegation contained in the complaint referred to in paragraphs 5 and 10 is in respect of execution of possession receipt. The respondent No.2/complainant asserts that he has not executed the said receipt at all and that document has been fabricated by the petitioners herein. The petitioners, on the other hand, assert that the document in question has been executed by the respondent No.2 himself. That matter has been specifically put in issue in the civil proceedings filed between the parties in respect of the property in relation to which the said document has been executed. However, the prima facie finding recorded by the Civil Court in favour of the petitioners who are plaintiffs in the said Civil Suit has not been adverted to at all in the complaint. The Civil Court after examining the controversy at the interlocutory stage in Notice of Motion No.1726/2009 in S.C.Suit No. 2150/2009 held in favour of the petitioners in the following words : “28. Regarding the dispute of handing over possession the plaintiff has produced on record the copy of possession letter alleged to be signed by the defendant. The defendant has denied his signature thereon but at this juncture on comparison of said signature of the defendant with admitted 4 3614.10 signatures on other documents under provisions of Sec.73 of Evidence Act, it can be said that the said possession letter dated 12.03.2004 is signed by the defendant. By such document the defendant has admitted the handing over the possession of the suit premises to the power of attorney holders.” 3. This material fact has been consciously omitted by the respondent No.2 from the complaint even though the complaint is of subsequent date i.e. 11th March, 2010, whereas, the decision of the Civil Court as referred to above is dated 5th February, 2010. Besides, the respondent No.2 had filed complaint in respect of the same allegations before the same Court which was numbered as 2400016/SW/10 dated 19th January, 2010 which was disposed of by order dated 19th January, 2010 with liberty to the respondent No.2 to approach the police officials for invoking remedy under Section 154 of the Code in the first place. However, the subject complaint as filed vaguely mentions in Paragraph No.9 that the respondent No.2 had approached Charkop Police Station by way of complaint dated 20th January, 2010 but no action has been taken by the said police station. However, no reference is made to the previous complaint filed by the respondent No.2 or for that matter, the order passed the same Court on 19th January, 2010. Even if earlier complaint filed by the respondent No.2 or the order passed by the same Court on 19th January, 2010 was to be held as not crucial fact, however, as observed earlier, non mentioning of the finding recorded by the 5 3614.10 Civil Court in favour of the petitioner, to which proceedings, even the respondent No.2 was party, is fatal to the respondent No.2. On account of that omission, he has disentitled himself for any relief from the Court of law and his complaint deserves to be dismissed at the threshold on this count alone. In other words, we are of the considered opinion that the respondent No.2 has abused the process of law. The petitioners have justly relied on the decision of the Supreme Court in the case of Chandrapal Singh & Ors. vs. Maharaj Singh & Anr. reported in (1982) 1 SCC 466 to buttress this submission. Notably, the respondent No.2 has not filed any proceedings for declaration that the possession receipt in question is bogus and not binding on him thus far. 4. The Counsel for the respondent No.2, however, submits that the fact that Civil Court had made observation in favour of the petitioner was brought to the notice of the Magistrate, who passed the impugned decision on 18th August, 2010 which is noticed in paragraph 2 thereof. In the said order, however, it is observed that according to the Counsel for the complainant, the receipt was used in Suit No.2150 of 2009 of the accused persons against the applicants from where he came to know about said document. However, there is no reference to the fact that copy of the order 6 3614.10 dated 5th February, 2010 was brought to the notice of the concerned Magistrate who entertained the complaint on 18th August, 2010. In our opinion, the Petition ought to succeed in terms of prayer clause (b). Accordingly, the same is made absolute in terms of prayer clause (b). 5. At this stage, Counsel for the respondent No.2 submits that the Civil Suit was filed only by petitioner No.1 i.e. accused No.1 and other accused Nos.2 and 3 had no concern with the said Civil Suit. Even so, mentioning of the said proceedings in the complaint which was filed posterior to the passing of the order dated 5th February, 2010 in Civil Suit between respondent No.2 and petitioner No.1 was imperative. Besides, it is surprising to note that the same Advocate appeared in the Civil Suit for the respondent No.2, as also proceeded to file the criminal compliant against the petitioners soon thereafter. The same Advocate is appearing even in the present Writ Petition. Suffice it to observe that non mentioning of the crucial fact is fatal to the respondent No.2. Hence, we find no reason to change the operative order noted in the preceding paragraph. 6. Counsel for the respondent No.2 now submits that at least observation be made that dismissal of the complaint filed by the respondent 7 3614.10 No.2 should not come in the way of respondent No.2 to pursue his remedy before the Civil Court or other forums including to file Suit for declaration that the possession receipt dated 12th March, 2004 is not binding on the respondent No.2. That limited request of the respondent No.2 deserves acceptance. (R.G.KETKAR, J.) (A.M.KHANWILKAR, J.)