( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 1115 OF 2009 Sanjay s/o. Nilkanth Lakhe .. Petitioner Versus The State of Maharashtra and another .. Respondents Shri V.D. Gunale, Advocate for the petitioner. Mrs. B.R. Khekale, A.P.P. for respondent No.1. Shri S.G. Thombare, Advocate for respondent No.2. CORAM : P.R. BORKAR,J. DATED : 09.03.2010 P.C. :- 1. Heard Adv. Shri V.D. Gunale for the petitioner, A.P.P. Mrs. B.R. Khekale for respondent No.1/State and Adv. Shri S.G. Thombare for respondent No.2. 2. This is a petition filed against the order of issuance of process passed by the learned Chief Judicial Magistrate, Beed, in M.A. No. 606 of 2008, wherein process ( 2 ) was issued against the petitioner for committing offences punishable under sections 420, 468 and 471 of the Indian Penal Code, which order is further confirmed by the learned Sessions Judge, Beed, in Criminal Revision Application No. 23 of 2009, decided on 30.11.2009. 3. It is case of the petitioner that respondent No.2 was Chairman of Navchaitannya Shikshan Sanstha, Wadjari, Tal. Patoda, Dist. Beed, which is a public trust bearing registration No. 1497/Beed, registered with the Assistant Charity Commissioner, Beed. It is stated that though the petitioner and one Suresh Bahekar were not members of the trust, they were shown to be members. Suresh Bahekar was shown to be Secretary. Not only their presence was shown at various meetings, but even their signatures were forged and thus false & fabricated record was prepared of various meetings of the board of trustees. It is stated that names of some fictitious members were added and their signatures were made by the petitioner. All these offences are said to have been committed between 1993-1994. Thereafter, Change Report was filed bearing Enquiry No. 95 of 1994, before the Assistant Charity Commissioner, Beed and said Change Report ( 3 ) was sanctioned on 31.08.1994. Thus, forged record was prepared and it was utilised for obtaining order from the Assistant Charity Commissioner. It is further said that respondent No.2 came to know of said forgery, use of forged documents and cheating of the Assistant Charity Commissioner in the year 2005 when he had applied for certain documents under the Right to Information Act. 4. Rule. Rule made returnable forthwith. With consent of learned advocates appearing for the parties, the petition is heard finally at the stage of admission. 5. It is argued by Adv. Shri Gunale for the petitioner that the prayer of the present respondent No.2 below his complaint was for sending the complaint for enquiry to police under section 156(3) of the Cr.P.C. Even, name of the police station is mentioned as Shivaji Nagar Police Station. So even at the time of filing complaint further enquiry by police was necessary and the complainant requested for the same. The complainant did not pray for issue of process immediately without enquiry, but it appears that the Magistrate recorded statement of verification of respondent ( 4 ) No.2 on 11.02.2009, in which he summarised the complaint given in detail and thereafter without any attempt to get further evidence, the order of issue of process was passed on 07.03.2009. From the order of issue of process, it does not appear that the statement of any other witness was recorded or documents were really perused by the Magistrate or that he tried to compare disputed signatures with the admitted signatures. 6. The learned advocate Shri V.D. Gunale for the petitioner drew my attention to Exh. “D”, which is judgment in R.C.C. No. 555 of 2003, delivered by 5th Judicial Magistrate (F.C.), Jalna, on 28.11.2008, whereby present respondent No.2 and Suresh Bahekar, whose signatures were alleged to have been forged by the petitioner, are convicted of offences punishable under sections 420, 465, 468 and 471 read with section 34 of the I.P.C. and sentenced to suffer rigorous imprisonment for six months and to pay fine of Rs. 2000/- for each of the offence. It is argued by Adv. Shri Gunale relying on the judgment that present complaint was lodged by respondent No.2 on 08.12.2008 about 10 days after the order of conviction and sentence was passed. In this ( 5 ) case the fact remains that the alleged forgery was committed in the year 1993-1994. The complaint for the first time was lodged in December, 2008. As per the complaint para 2, the knowledge was received by the petitioner regarding forgery, somewhere in 2005. So, question arises why there was no complaint prior to 2008. As per para 3 of the complaint, the complaint was lodged first to P.I. Beed, on 13.02.2008, but no cognizance was taken. Respondent No.2 also made complaint to the Assistant Charity Commissioner, Beed, on 15.03.2008 and filed reminder on 18.10.2008, but the Assistant Charity Commissioner did not take any cognizance. 7. It is worth considering the factual aspect of R.C.C. No. 555 of 2003, decided by the 5th Jt. Judicial Magistrate, First Class, Jalna, in which present respondent No.2 and Suresh Bahekar were convicted. It was prosecution lodged at the complaint of present petitioner at Kadim Jalna Police Station, Jalna. He stated that he was founder president of Mahatma Phule Sanskrutik Krida Prasarak Mandal, Jalna. Present respondent No.2 and Suresh Bahekar prepared false resignation letter in the name of present petitioner thereby showing resignation of the petitioner from both ( 6 ) Membership and the post of President. The signature of present petitioner was forged by them and said resignation letter was submitted to the Assistant Charity Commissioner, who on the basis of same sanctioned Change report of removal of the petitioner from the post of President. Thereafter, the petitioner approached the Assistant Charity Commissioner and the Assistant Charity Commissioner, Jalna, by his order dated 11.07.2001, restored him as president. Then present petitioner lodged complaint for committing forgery, cheating and using forged documents. Said complaint was registered as C.R. No. 268 of 2001 against present respondent No.2 and Satish Bahekar and said matter resulted in conviction. 8. After considering totality of the circumstances it appears that the learned Chief Judicial Magistrate, Beed, inspite of specific prayer for holding enquiry under section 156 (3) of the Cr.P.C., proceeded to simply record statement of verification of respondent No.2 and proceeded to issue process. It does not appear that the revisional court has applied its mind to see whether there was really any evidence regarding the forgery or cheating. ( 7 ) 9. In my opinion, present case purely falls under some of the clauses referred in para 108 of the case of State of Haryana V/s. Bhajanlal, AIR 1992 S.C.604. Before issuance of process for offences, which are said to have been committed 15 years ago, there ought to have been further enquiry. The Magistrate ought to have, in-fact, considered the prayer of respondent No.2 for enquiry under section 156 (3) of the Cr.P.C., which itself shows that the complainant also wanted further collection of evidence before issuance of process. But, that was not done by the Magistrate. Since the verification statement is recorded by the Magistrate, the only way open for the Magistrate is to ask the complainant to lead further evidence under section 202 of the Cr.P.C. In my considered opinion, the Magistrate has committed error in issuing process without there being sufficient material before him. There should have been some evidence to show that the alleged forgery was really forgery and that such documents were used by the present petitioner for cheating the Assistant Charity Commissioner. So, the judgment of the Charity Commissioner should have been also before the Trial Court to ascertain if any of the forged documents was referred to and relied upon by the Assistant Charity ( 8 ) Commissioner. Absolutely, no application of mind appears to have been made by the learned Magistrate, while issuing process on 07.03.2009. 10. In these circumstances, this writ petition is allowed partly. The order passed by the Chief Judicial Magistrate, issuing process on 07.03.2009, is hereby set aside. The Chief Judicial Magistrate is directed to hold further enquiry under section 202 of the Cr.P.C. Respondent No.2 is at liberty to lead further evidence, produce documents, if necessary, seek opinion of hand-writing expert on the disputed documents and consider whether it is a case fit for issuance of process. 11. With above directions the writ petition is disposed of. Rule made partly absolute. [P.R. BORKAR,J.] snk/2010/MAR10/crwp1115.09