1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIIMINAL WRIT PETITON NO.32 OF 2011 Mr.Nilesh Jagannath Patil .. Petitioner V/s Rakesh Kumar Wadhawan & Anr. .. Respondents Mr.N.G.Chhatre for the petitioner. Ms.Rohini Salian for Respondent No.1. Ms.U.V.Kejriwal, APP for the State-Respondent No.2. CORAM: R.G.KETKAR, J. DATE: 13th October, 2011. P.C.: 1. Heard Mr.Chhatre, learned counsel for the petitioner and Ms.Rohini Salian, learned counsel for Respondent No.1 and Mrs.Usha Kejriwal, learned APP for the State- Respondent No.2. 2. By this petition, the original complainant has challenged the judgment and order dated 23.12.2009 passed by the learned Judge, Designated Court, Bomb Blast Cases, Gr.Mumbai in Cr.Revision Application No.971 of 2009. By that order, the learned Judge has allowed the revision application filed by the 1st Respondent and set aside the order of issue of process under sections 464, 465, 467, 468 Indian Penal Code, 1860 (for short 2 I.P.C.) dated 21.10.2008 passed by the learned Metropolitan Magistrate 53rd Court, Mulund in CC No.43/SW/08 and dismissed the said complaint under section 203 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.). 3. In support of this petition, Mr.Chhatre strenuously contended that the petitioner had lodged complaint against the 1st Respondent accused on the basis that he has entered into the agreement of sale with the 1st Respondent. Subsequently he came to know that the 1st Respondent has forged the said agreement by making alterations. The alterations are two fold. The first page of the said agreement was substituted. Earlier it was on 100/- rupee non- judicial stamp paper, however at the time of registration it was replaced and the plain paper was affixed. The other alteration is in clause 13 of the said agreement. The following words were added “and have 12.5% share in the joint family of Mahadu Patil” 4. He submitted that admittedly, no initials are made by the petitioner on that alterations. If that be so, the learned Magistrate was justified in issuing the process against the 1st Respondent under sections 464, 465, 467, 468 and 471 I.P.C. He further 3 contended that the learned Magistrate is empowered to take cognizance of the offence even if the police report is to the effect that no case is made out. In support of this proposition, he relied upon the judgment of the Apex Court in the case of India Cara Pvt.Limited V/s.State of Karnataka, AIR 1989 SC 885. He also criticized the impugned judgment passed by the learned Judge on the ground that the learned Judge committed serious error in exercising the powers under section 397 of the Cr.P.C. The learned Magistrate having applied his mind before issuing the process, the learned Sessions Judge was not justified in interfering with the order of issue of process. 5. On the other hand, learned counsel for the 1st Respondent supported the impugned order. She submitted that under section 397 of the Cr.P.C., the Sessions Court is entitled to examine the record of any proceeding before any inferior Criminal Court situate within its jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding. She submitted that the learned Metropolitan Magistrate had called for the report from the Investigating Officer. The Investigating Officer had submitted the report after recording the statements of 4 the concerned persons. The learned Magistrate without applying his mind, has mechanically issued the process. 6. I have considered the rival submissions made by learned counsel appearing for the parties. It is not in dispute that in so far as clause 13 of the agreement of sale is concerned, the words extracted hereinabove are added and the same do not bear initials of the petitioner complainant. However, that does not mean that the 1st Respondent accused intended to grab the property of the complainant. It is relevant to note that the agreement was registered in the year 2004 and the present complaint is lodged on 11.08.2006. The enquiry papers indicate that the Investigating Officer has recorded the statements of the concerned persons and found that no offence was committed. The learned Magistrate should have applied his mind to the material on record to arrive at the conclusion whether any offence is made out against the 1st Respondent. The learned Sessions Judge has perused the entire material on record, as also has considered the genealogy of the original tenant Mahadu Patil. Considering the material on record, in paragraph 15 of the impugned order, he came to the conclusion that Jagannath had 12.5% share in the estate of the Mahadu Patil. 5 In paragraph 18 of the impugned order, the learned Sessions Judge has also considered the material collected by the Investigating Officer and came to the conclusion that prima-facie no case is made out to proceed either under section 463 or section 464 I.P.C. 7. After considering the material on record and after hearing the learned counsel appearing for the parties, I do not find that the learned Sessions Judge committed any error in passing the impugned order. The report of the Investigating Officer dated 23.03.2007 concluded that there was no material to show that additions or alteration were made in the document after its registration. The complainant and his relatives were present before the Sub-Registrar at the time of registration of the agreement. They accepted the correctness of the contents of the said agreement and signed that document. In paragraph 21 the learned Sessions Judge observed that the added portion in clause 13 is merely a clarificatory/ explanatory clause and does not vary material term of the agreement. As far as reliance upon the decision of the Apex Court in the case of India Cara Pvt.Ltd. (supra) is concerned, the proposition of law is well settled that 6 the Magistrate is empowered to take cognizance of the offence even if the police report is to the effect that no case is made out. Under Section 397 of the Cr.P.C., the Sessions Judge has power to call for and examine the record of any proceeding before the Metropolitan Magistrate. Under Section 399, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub-section (1) of Section 401. I therefore do not find any merit in the submission of the petitioner that the learned Sessions Judge exceeded the jurisdiction in passing the impugned order. No case is made out for interference. Hence, petition fails and the same stands dismissed. (R.G.KETKAR, J.)