1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO. 392 OF 1997 ------------------------------------------------ Jagdish Digambar Mokashi, age 22 yrs, Occ. Agri, r/o Khed, Tq. Osmanabad at present Kot Galli, Dist. Osmanabad. Appellant. V e s u s 1. Narendra Vasudeorao Markandya, age 35 yrs, Occ. Service Talathi, r/o Khed, Dist. Osmanabad. 2. The State of Maharashtra (copy to be served on the Public Prosecutor High Court, Bench at Aurangabad.) . Respondents. Mr. R.Dhas Advocate h/d for Shri A.M. Dabir, Advocate for appellant. Shri M.D.Shinde, Advocate for respondent No.1. Mrs. R.D. Reddy, Learned APP for the state respondent No.2. CORAM : V R. KINGAONKAR, J. DATE : 27 th JULY, 2009 2 ORAL JUDGMENT :- 1. This appeal is directed against the judgment of acquittal rendered by the learned Additional Sessions Judge, Osmanabad in Criminal Appeal No.13/1993. 2. The appellant is original complainant. He had filed a private complaint case for offence punishable under section 465 r.w section 109 of the Indian Penal Code and also offence under section 166 and 167 r.w. 34 of Indian Penal Code. The learned Judicial Magistrate framed charge against the respondent No.1 and deceased accused by name Shri S.N.Zade. Said Shri S.N.Zade was working as village Talathi. He died during pendency of the proceedings and therefore the criminal charge against him stood abated. The respondent No.1 was working as village Talathi as a successor of Shri S.N.Zade. The respondent No.1 took charge of the office of village Talathi in the year 1987. 3. Substance of the averments in the complaint filed by the appellant is that, his grand father by name Shripad Rangnath Mokashi 3 was the manager and Archak of Harinarayan Devsthan Ashta Dist. Beed. His grand father used to look after agricultural lands of the Devthan. After his death, his two sons by name Digambar and Bhalchandra became the successors of hereditary rights qua the Devsthan lands. The agricultural lands were recorded in the name of their grand father as a cultivator and manager of the Devthan. The respondent No.1 along with deceased accused Shri S.N.Zade manipulated false entries in the 7/12 record. The appellant alleged that false entries were recorded in the 7/12 register in 1984-1985 onwards in respect of the lands bearing Gat No.42,32,137 and 436. The names of original accused No.3 to 20 were recorded without following any procedure which ought to have been followed while recording the entries in the cultivation column. The appellant further alleged that such fabricated record was prepared by the respondent No.2 and deceased Shri S.N.Zade. 4. The learned Judicial Magistrate (F.C.) held that the charge for offence punishable under section 465 of the Indian Penal Code was 4 duly proved against the respondent No.1. The respondent No.1 was therefore sentenced to suffer S.I. till rising of the Court and to pay fine of Rs.300/- and in default to suffer Simple Imprisonment for 15 days. Feeling aggrieved, the respondent No.1 preferred appeal (criminal appeal No.13/1993). The learned Additional Sessions Judge allowed the appeal and acquitted the respondent No.1 of the charge. 5. Heard learned counsel for the parties and learned A.P.P. 6. Before I proceed to consider rival submissions, it is important to note that the respondent No.1, was not in charge of the relevant 7/12 record of village Ashta or Mauje Khed, prior to the year 1987. It is an admitted fact that the entire record was with the deceased accused No.1 i.e Shri S.N.Zade until the respondent No.1 was transferred to Sajja Mauje Khed. It is also pertinent to note that the deceased accused and respondent No.1 were having duty to record names of the cultivators who were found in possession of the agricultural lands. The charge for offence under section 465 of the Indian Penal Code requires intention to cause injury or damage to the 5 complainant and preparation of the document with dishonest intention to cause wrongful gain to some one and wrongful loss to another. Charge for offence u/s 465 of the Indian Penal Code may be leveled where there is dishonest intention to commit forgery. It is important to note that offence under section 464 of the Indian Penal Code is punishable under section 465. The expression “forgery” is defined in section 463 of the Indian Penal Code. The offence under section 464 of the Indian Penal Code requires presence of dishonest or fraudulent intention of an accused, preparation of record with intention of causing one to believe that such document or part of the document was correctly prepared knowing it was not so correct. In fact, the charge ought to have been framed for offence u/s 218 of the Indian Penal Code instead of section 465. Needless to say entire trial proceeded in wrong direction due to improper charge framed by the learned Magistrate. 7. It has come on record that father of the appellant had filed a civil suit against the original accused Nos.3 to 20. That suit was pending before the Civil Court when the entires were recorded in the 6 7/12 register. It emerges from the record that, the entires which were already recorded had been carried forward by the respondent No.1. There is no reliable evidence on record to show that respondent No.1 himself took the disputed entires in the 7/12 record. There is no tangible evidence to infer that respondent No.1 was having ill-intention to cause loss to the appellant/complainant. It need not be reiterated that the respondent No.1 took charge of the post of Talathi in the year 1987 whereas the entries were recorded for the first time in 1984-1985. The learned Sessions Judge has observed that custody of the relevant record is also not proved to be with respondent No.1. Unless it is proved that respondent No.1 was the custodian of the entire record and he himself prepared false record in order to cause loss to the appellant, the charge for offence u/s 218 of the Indian Penal Code or even for offence u/s 465 of the Indian Penal Code could not be slapped o n him. The learned Sessions Judge gave sufficient reasons in support of the judgment of acquittal. Moreover, the appellant came up with a case before the learned Magistrate that main culprit was deceased Shri 7 S.N.Zade who was original accused No.1 and that respondent No.1 abeted commission of the offence, by his active assistance. There is no evidence to show that the respondent No.2 aided preparation of the false record which was drawn by deceased accused No.1 Shri S.N.Zade. Considering these aspects, the impugned judgment of acquittal cannot be faulted with. 8. In the result, I am of the opinion that there is no substance in the appeal. Hence, the appeal is dismissed. The impugned judgment rendered by the learned Sessions Judge is confirmed. ( V. R. KINGAONKAR, J. ) aaa/392.97 ******