- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.74 OF 1999 WRIT PETITION NO.74 OF 1999 WRIT PETITION NO.74 OF 1999 Kanyalal C.Makhija ...Petitioner vs. Omdev K. Mishra State of Maharashtra ...Respondents Mr.A.P.Mundargi i/b Mr.N.L.Makhijani & Co. for the petitioner Mr.J.P.Yagnik A.P.P. for State Mr.Prakash Naik for the Respondent No.1. CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : SEPTEMBER 23,2008 : SEPTEMBER 23,2008 : SEPTEMBER 23,2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The submissions of the learned counsel for the parties were heard on the last date. 2. This petition under Article 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure, 1973 has been filed by the accused No.2. The challenge is to the order dated 27th October 1998 passed by the learned Additional Sessions Judge by which the order dated 2nd September 1997 passed by the learned Magistrate has been confirmed by which it was held that a prima facie case of an offence under section 471 of the Indian Penal Code was made out as against the petitioner. 3. The first Respondent filed a private complaint against the petitioner (second accused) and one A.D.Jamsadekar (first accused alleging commission of offences under section 447, - 2 - 465, 468, 474 read with section 34 of the Indian Penal Code. The case made out in the complaint is that the first Respondent is the owner of the hotel by name ‘Shrikrishna Hindu Hotel’ which he is running from 1952. He stated that a land admeasuring 40’ X 67 ’ on which the said hotel was located was in possession of his father many years prior to 1938. According to the first Respondent two sheds enclosing the area of 40’ x 48’ were erected by his father and an extension of 19’ x 40’ was made which was originally objected to by the Mumbai Municipal Corporation. It is alleged that the said extension was regularised by the Municipal Corporation. The case of the first Respondent is that the said area admeasuring 40’ x 67’ forms a part of the land held by Bombay Port Trust. According to the first Respondent, Bombay Port Trust had put M/s.Rupji Kanji in possession of the larger area of which the area admeasuring 40’ x 67’ forms a part. It is stated that the said area was subsequently transferred to the new licensee i.e. the Bombay Bullock Carts Owners Association by the Bombay Port Trust. The said Association acknowledged the continued occupation and enjoyment of the area of 40’ x 67’by the family of the 1st respondent complainant. Reliance is placed by the first Respondent on the certificate acknowledging the receipt of rent issued by the said Association. Reliance is also placed on the licence granted to the first Respondent by the local authority. According to the case of the first Respondent, he - 3 - agreed to let out in favour of the petitioner a portion on the the rear side of the hotel on oral understanding that the petitioner shall withdraw, vacate and hand over the vacant possession of the said area as and when called upon to do so. In fact, an access was also made available to the said portion from the front side of the hotel. It is stated that the said portion was in possession of the petitioner in the year 1976. 4. According to the case of the first Respondent, he called upon the Petitioner to vacate the said portion in the year 1982, but the Petitioner refused to shift and vacate. A suit for eviction was filed by the first Respondent against the petitioner in the Court of Small Causes. According to the first Respondent, he was shocked to note that the petitioner contended that the first Respondent had nothing to do with the petitioner. It is alleged that by declaring that the first respondent was not concerned with the said portion, the petitioner committed an offence punishable under section 447 of the Indian Penal Code. It is alleged that in the civil suit, the petitioner sought to establish that he had independent right over the said portion and in fact, he relied upon two rent receipts issued by the accused No.1. The allegation is that accused No.1 issued two rent receipts in favour of the petitioner with common intention to fraudulently and illegally cause wrongful loss to the property of the first Respondent by using false documents. The first receipt for - 4 - rent was for the period June 1971 to December 1975 and the second receipt was for the period from January 1972 to August 1978. It is alleged that the receipts have been fraudulently issued with common intention to cause wrongful loss to the petitioner and false documents have been made by the first accused at the inducement of the petitioner who stands to benefit most out of the said documents. The allegation is that accused no.1 committed forgery in respect of the said two receipts. It is alleged that the receipts were forged with common intention to cause loss to the 1st respondent. On the said private complaint, the learned Magistrate had called for the report under section 156 (3) of the Code of Criminal Procedure,1973. After perusing the report, the learned Magistrate directed the first Respondent to adduce evidence. Accordingly, the evidence was adduced by the first Respondent by examining the witnesses. By order dated 2nd September 1997, the learned Metropolitan Magistrate held that a primafacie case was made out for offences under section 465, 469, 460 of the Indian Penal Code against the accused No.1 and not against the petitioner. He held that a prima facie case under section 471 of the Indian Penal Code was made out against the petitioner. A revision application was filed by the petitioner for challenging the said order. By the impugned Judgment and Order dated 27th October 1998, the Revision Application has been dismissed. - 5 - 6. It must be stated here that during the pendency of this petition, the first accused expired. The learned senior counsel for the applicant has invited my attention to the allegations made in the complaint and the relevant portion of the notes of evidence. He submitted that the first respondent issued rent receipts in his capacity as the Secretary to the Bombay Bullock Carts Owners Association and by no stretch of imagination a case was made out for proceeding against the petitioner under section 471 of the Indian Penal Code. He submitted that even going by the averments made in the complaint filed by the first Respondent, the said Association was the licensee of the Bombay Port Trust in respect of the entire area of 40’ x 67’. He submitted that even by taking what is stated in the evidence as correct, no case is made out of an offence under section 471 of the Indian Penal Code against the petitioner. The learned counsel for the first Respondent-complainant invited my attention to section 463. He submitted that on plain reading of the complaint and the material on record, a case was made of an of offence under section 463 of the Indian Penal Code. He submitted that at this stage, a detailed scrutiny of evidence is not required and what is necessary to be seen is whether there was sufficient material available against the petitioner to proceed against the accused. He submitted that no interference was called for at the hands of this court. - 6 - 7. I have given careful consideration to the submissions made by the learned counsel appearing for the parties. In paragraph 14 of the complaint, it is stated that the Bombay Port Trust had put M/s.Rupji Kanji in possession of the area of 40’ x 67’and M/s.Rupji Kanji were the licensees of the Bombay Port Trust. It is asserted that the possession of the area of 40’ x 67’ was transferred by M/s.Rupji Kanji to the new licensee i.e. the Bullock Carts Owners Association. Thus, in the complaint itself the first Respondent accepted the status of the said Association as the licensees of the Bombay Port Trust of the property in dispute. The material allegations as regards the offence under section 471 are found in paragraph 12 of the complaint. The first accused in his capacity as the secretary of the said Association had issued rent receipts in favour of the petitioner. It will be necessary to refer to the evidence of the first Respondent. The relevant portion of the said evidence recorded in the complaint reads thus : "....I filed a suit for eviction against accused No.2 in the Court of Small Causes being suit No.L.E.139/155 of 1982. The defence of accused No.2 in the suit to my surprise was that he claimed that he had nothing to do with me and he was the tenant of the Bombay Bullock Cart Association. Accused No.1 gave forged receipt in favour of accused No.2 disclosing that accused No.2 was the tenant of - 7 - accused No.1. Accused No.2 produced two copies of receipts in the suit issued by accused No.1. Shown 2 xerox copies of rent receipt. The original of its are produced in Small Causes Court. These 2 receipts are received by Bullock Carts Owners Association signed by accused No.1. The two receipts are dated 3.2.76 for Rs.2477/-. The receipt for the period of June 1971 to December 1975. The receipt dated 1.8.1986 for Rs.840/- was for period January 1972 to August 1978. Both these receipts are signed by accused No.1. The receipts are marked as X-4 collectively for identification, subject to proof. Accused No.1 had accepted rent from me for the period from June 1971 to December 1975 and January 1972 to August 1972." It will be necessary to refer to sections 463 and 471 of the Indian Penal Code which read thus : 463. Forgery - . [Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or inquiry], to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intend to commit fraud or that fraud may be committed, commits forgery. - 8 - 471. Using as genuine a forged [document or electronic record] . Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record]. On plain reading of the averments made in the complaint and the deposition of the first Respondent, ingredients of an offence under section 463 of the Indian Penal Code have not been made out. The first accused was admittedly the secretary of the licensees of the Bombay Port Trust in respect of the area of 40’ X 67’ and there was no contractual relationship between the first Respondent and the Bombay Port Trust in respect of the said area. The allegation against the first accused is of issuing rent receipts in favour of the petitioner. After taking material averments made in the complaint and the deposition of the first Respondent for its face value, it is impossible to come to the conclusion that a prima facie case of the commission of an offence under section 463 of the Indian Penal Code was made out either in the complaint or in the deposition of the first Respondent. Moreover, it is pointed out that the civil suit filed by the 1st respondent has been decided in favour of the Petitioner. - 9 - Hence, no case was made out for proceeding against the Petitioner. The first accused had issued rent receipts in his capacity as the secretary of the said association which was admittedly the licensee of the Bombay Port Trust. The first respondent admitted in his evidence that the said port trust is the owner of the property in question. No case was made out against the petitioner to proceed under section 471 of the Indian Penal Code. Hence, the petition must succeed and the same deserves to be allowed. 8. Hence, I pass the following order : i) The impugned order dated 2nd September 1997 passed by the learned Metropolitan Magistrate, 13th Court, Dadar, Mumbai in Criminal Case No.334/S/87 is quashed and set aside in so far it directs that the charge against the petitioner under section 471 of the Indian Penal Code shall be framed. The Petitioner stands discharged. The other part of the order is confirmed. ii) Parties and the concerned Court to act upon an authenticated copy of this order. JUDGE JUDGE JUDGE