IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REN.APPLICATION NO.394 OF 2003 Ramchandra Radhakrishna Chawla ... Applicant vs 1. Assistant Commissioner of Police 2. State of Maharashtra ... Respondents Sari Y.T.John for Applicant Sari S.R.Shined PAP for Respondents CORAL : V.C.DAGA,J. DATED : 22nd July, 2008 JUDGEMENT:- 1. This revision application is directed against the order dated 17-7-2003 passed in CAP Special Case No. 15 of 1986 (State of Maharashtra vs R.R.Chawala Gr,Bombay) rejecting application of the applicant seeking discharge under Section 227 of Criminal Procedure Code (Cr.P.C.). : 2 : THE FACTUAL MATRIX: 2. Factual matrix revealed that originally one plot i.e. plot bearing C.S.No.565 of Malabar and Cumballa Hill Division, was purchased by M/s Omprakash Hashmatrai Navani of West Coast Builders (P) Ltd. from Mr.Dubhash in the year 1978 under a Conveyance dated 27-2-1979. The area of the plot mentioned in the conveyance was 3143.83 sq.mtrs. The building plans were submitted and sanctioned by Municipal Corporation of Greater Mumbai. The building was to have ground + 6 floors. 3. It appears that Mr.Om Navani got the plot measured through the Superintendent of City Survey Department and demarcated boundaries thereof. The measurement of the said plot by City Survey Department revealed that actual plot area was 3615.32 sq.mtrs.and not 3143.83 sq.mtrs as mentioned in the Conveyance. The Superintendent of City Survey Department addressed a letter dated 16-5-1981 to the Builder confirming the area of 3615.32 sq.mtrs and forwarded demarcation survey plan with demarcated the area of 3615.32 sq.mtrs. This letter was given by the Accused no.1 to the Architect with instructions to submit amended plans which were approved by the Municipal Corporation of Gr.Mumbai on 3-10-1981 on the basis of the area measured by City Survey department. 4. The Municipal Corporation of Gr.Mumbai issued a stop work notice on 4-12-1981 and asked the Architect to send the : 3 : representative to the site for measurement. Mr.Welling, Asst. Engineer of Municipal Corporation of Greater Mumbai and Mr.Gokhale, Dy.Chief Engineer, on 7-12-1982 took measurements in the presence of the Architect’s representative and that of the builder. The area, during this measurement was found admeasuring 3621.8 sq.mtrs. 5. The builders on 14-12-1982 informed the Municipal Corporation about the said survey and measurement taken of 7-12-1982. The applicant-Architect on 18-12-1982 also informed the Municipal Corporation that the plot was jointly surveyed on 7-12-1982 and that the area tallied with the area measured by the Superintendent, City Survey. Thereafter, again on 31-1-1983 and 1-2-1983, the Government directed that the plot should be remeasured by the Deputy Director, Town Planning and staff of the Collector’s office. This was done and the plot was found admesuring 3446.93 sq.mtrs by plane table survey and 3114.27 sq.mtrs by Theodolite Survey. 6. The FIR was lodged by one Mr.Hazare PI of ACB, on 24-7-1984 originally, against (1) Mr.Om Prakash Navani (2) Mr.R.R.Chawla, Architect (applicant herein) (3) P.D.Hawal, Supdt. Land Record (4) Mr.Desai, Senior Surveyor and FIR mentions "and others". Thereafter, the ACB included the name of (5) Mr.Pawar, Surveyor and (6) Mr.Ghosh and 7) Mr.Joshi of Municipal Corporation as accused. 7. Mr.Om Navani, on account of difference in area by : 4 : different agencies, filed a Revision in the Revenue Tribunal against the order of Collector, Mumbai. Again, the plot was re-measured by the Collector and ACB together and found that the area of the plot was 3557.12 sq.mtrs. 8. The Revenue Tribunal, on the request of the Builder, in order to give a finality to the area, gave direction to the Collector to finalise the area once for all, which was finalised as aforesaid. The Builder, wrote to ACB about the different authorities, who measured the area separately and every time found variation therein and urged that the contractor has been falsely instigating the ACB. 9. A letter was written by the Revenue and Forest Dept. to ACB on 12-12-1988 saying that there is no prima facie case. In spite of this, ACB registered criminal case being Case No.15 of 1986. 10. An Application was made by all the Accused except accused no.3 Mr.Hawal for discharge, which was heard and decided by Ld.Judge Mr. Limaye on 4-4-1981, who refused to discharge the accused. 11. The Revision Petition NO.131 of 1991 and NO.202 of 1991 were filed by Mr.Om Navani, accused no.1, Mr.Ghosh and Mr.Joshi, (accused nos. 6 and 7) against the aforesaid order in this Court, which was heard and allowed by this Court (Palkar J, as he then was). All the aforesaid 3 accused were discharged under the judgment of this Court : 5 : dated 20-2-2002. 12. When the matter came up for framing of the charge, in the trial Court, the remaining accused no.2 (the petitioner), Accused no.3 (Mr.Hawal), accused no.4 (Mr.Desai) and Accused no.5 (Mr.Pawar), pleaded for discharge. 13. The Ld.Judge Mrs.Mridula Bhatkar (as she then was), after hearing the parties, held that such an application was very much maintainable and did not hit by previous order of rejection to discharge, however sue on merits refused to discharge accused nos.2, 3, 4 and 5. Consequently, prayer for discharge was rejected by the trial Court. 14. Being aggrieved by the aforesaid order of refusal to discharge, the accused no.2, applicant herein, and Mr.Hawal, accused no.3, filed two separate petitions/revision applications in this Hon’ble Court. A revision filed by Hawal came to be dismissed as abated on account of his demise. The present petition filed by the present applicant, challenging the impugned order was heard by this Court. SUBMISSIONS: 15. The learned Counsel appearing for the applicant has submitted detailed written submissions and urged that no case against the present applicant is made out. He submits : 6 : that the accused applicant is an Architect by profession. He was engaged as such by the builder - Mr.Om Navani, who has been charged of the offence alleged under Sections 120B, 467, 458, 471, 477 and 420 of IPC. If that be so, how the Architect, engaged by him can be prosecuted. 16. The learned Counsel for the applicant further submits that this Court vide its order dated 20-2-2002 was pleased to allow the Criminal Revision Application NO.131 of 1991 and 202 of 1991 and thereby discharged the applicant from Special Case NO.15 of 1986. One of the applicant - Omprakash H. Navani was discharged, who had engaged the present applicant as his Architect. CONSIDERATION: 17. The prosecution story is that the accused in conspiracy with officers from the office of the City Survey and others got City Survey Record changed in respect of plot bearing C.S.No.565 of Malabar and Cumballa Hill Division. According to the prosecution, the original area was 3143.83 sq.mtrs. which has been changed to 3615.32 sq.mtrs. The prosecution alleges that the officers of the City Survey Office changed document for pecuniary advantage and thus committed an act of misconduct. The prosecution does not in this case allege any forgery by the officers. Sum and substance therefore of the prosecution story is that the accused entered into a conspiracy, and in furtherance of such conspiracy, officers of the City Survey misconducted in giving Certificate of : 7 : measurement containing higher area relating to the aforesaid property. I was taken through the order of this Court passed by Justice Palkar (as he then was) and my attention was drawn to para 10 of the said judgment which reads thus : "One thing clear from the record is that he ACB has taken measurement twice and on both the occasions results were not the same. However, since the concerned party i.e. accused no.1 had accepted the area to be as 3217.37 sq.mtrs in the proceedings before the Collector, the controversy should have ended. Another aspect of this matter is that as per the City Survey Record the area is 3143.83 sq.mtrs and the difference in these two figures is about 74 sq.mtrs only. It is an admitted position that if the two measurements shown do not tally exactly, the Government has taken a decision to ignore difference upto 5% and in this case the difference is less. In view of this, the accused has also moved the Government for withdrawal of prosecution as Government has taken a decision not to initiate prosecution in case the differences upto 5%" Para 13 of the said judgment, reads thus : "From the above stated facts it is clear that initially the area described in the City Survey : 8 : Record was 3718 sq.yds. It is clear that the measurement was carried out at different times and every time result was different. Even the measurement carried out simultaneously by two different methods disclosed different result. Even the result of measurement at the instance of ACB at different times was not the same. The prosecution has not brought on record the fact that earlier also there was measurement taken at the instance of the ACB are conclusion of which was different. Even the joint measurement carried out by the Deputy Director of Town Planning and the Collector in order to ascertain the area disclosed different results." In substance, the submission is to allow this revision based on the above findings which have become final against the prosecution. 18. The learned APP though tried to counter all the submissions made by the learned Counsel for the applicant and tried to support the impugned order but could not come out of findings seconded by this Court in earlier round of litigation in the case of Mr. Om Navani. 19. Now, let me examine the case of the applicant. The applicant was engaged as an Architect by main accused Mr.Om Prakash Navani, who has already been discharged along with : 9 : others. The present applicant was acting for and on behalf of Mr.Om Prakash Navani. 20. It is not in dispute that on more than one occasion measurements were taken by the different authorities and at the time of each measurement variable plot area was found. In order to bring home an offence under Section 120B, it is required to be proved by the prosecution, that a criminal conspiracy was entered into, as provided under Section 120A. There is not even a word or whisper in the whole statement that any of the accused much less accused no.2 met, or agreed to do any illegal act. There is not even a circumstantial evidence to infer that accused no.2 must have or may have met any of the other accused to hatch conspiracy. The only possible inference that can be drawn from the evidence available, taking the prosecution case at its face value, is that the accused no.2 was engaged as an Architect and under the instructions of his client accused no.1 (the builder), he acted by making an applications mentioning area of the plot as found by the officer of the City Survey Department. Hence there is no ground at all to frame any charge against accused no.2 under Section 120B of I.P.C. 21. Now, coming to the charges of forgery under Sections 466, 467, 468 and 471 of I.P.C., first and foremost, the accused no.2 is not charged under the said sections. Hence the charges cannot be levelled against accused no.2 in this behalf. : 10 : 22. The next charge relates to Section 420 of I.P.C., the essential ingredient of Section 420 is that there must be an induce on the part of the accused making an other person to part with valuable security. The accused no.2, had no intention nor did he dishonestly induced anybody to part with his property or to make alteration or destroy the whole or any part of the valuable security or did anything which is signed or sealed to convert it into a valuable security. On plain reading of Section 420 no offence can be said to have ben made out against the accused no.2. 23. So as far as Section 227 of Code of Criminal Procedure is concerned, I do not find any sufficient ground for proceeding against the accused. 24. Thus, considering the totality of the circumstances and the earlier judgment of this Court, the impugned order refusing to discharge the present applicant cannot be sustained. The same is liable to be quashed and set aside and revision application is liable to be allowed. 25. In the result, impugned order is quashed and set aside. Rule is made absolute in terms of this order. 26. The applicant is discharged on Special Case NO.15 of 1986. JUDGE