- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.398/1996 Vishnu Vasudeo Narsiker, age 56 yrs., occu.at present pensioner and Advocate r/o Mitranagar, Aurangabad. ...Petitioner.. Versus The State of Maharashtra. ...Respondent... ..... Shri A.H. Kapadia and V.N. Damle, Advocates for petitioner. Shri K.M. Suryawanshi, APP for respondent. ..... CORAM: K.U. CHANDIWAL, J. DATE: 31.08.2009 ORAL JUDGMENT : 1] Heard learned counsel for the parties. 2] The petitioner has prayed that criminal proceedings initiated against him in RCC No.128/1992 pending before learned Chief Judicial Magistrate, Jalgaon, and the F.I.R. be quashed and set aside. At the same time, it is - 2 - prayed that the order below Exhibit 1 dated 4.1.1994 in said RCC No.128/1992 passed by learned CJM, Jalgaon, and as confirmed by the order dated 21.5.1996 by the 3rd Additional Sessions Judge, Jalgaon, in Criminal Revision Application No.149/1994 be quashed and set aside. 3] The counsel representing the petitioner – accused made elaborate submissions. He canvassed that the petitioner is now aged 75 years plus, virtually confined to bed and suffers the prosecution. The counsel submits that he had controversies with the officials in the department, his bills were stalled, several objections were raised. The matter was taken by him to the Civil Court. He has the decrees in his favour and as a counter to his civil litigation, an innovative approach of lodging prosecution on 29.10.1990 by Crime No.100/1990 is activated by the concerned authorities. 4] Before adverting to the submissions, the crucial aspects in the matter need to be taken into consideration. The petitioner was a contractor at the relevant time. In the year 1983, for the purposes of construction of Hatnur Right Bank Canal, he was eligible for receiving advances. It has been alleged that the petitioner prepared false bills showing that he has purchased machineries worth Rs.14.60 lakhs from A. Raj of Aurangabad and of Rs. 3,00,000/- from Pankaj Auto, Jalgaon for the purpose of completion of Government contract and thereby the petitioner obtained advance of Rs.11.87 lakhs from the Government. It revealed that the petitioner prepared and produced false and forged document and cheated the Government. Consequently, the report dated 29.10.1990 was lodged with the Police at Chopada Police Station, as stated hereinabove. 5] The record displays that offence was registered in terms of Sections 420, 467, 468, 471 and 475 of the Indian Penal Code. After the investigation, chargesheet came to be filed before the learned Judicial Magistrate at Chopada on 27.1.1992. There were controversies. Consequently, the matter came to be - 3 - transferred to Chief Judicial Magistrate at Jalgaon and since the learned CJM found that there was sufficient material and reasonable grounds to frame charge against the petitioner, he fixed the case for framing charge. 6] Though elaborate submissions, as stated earlier, are advanced by Shri Damle and more particularly on Clause 21.6 appearing at page 20 of the compilation (Exh.A), it is in the fitness of situation that the said clause is reproduced, which is as under: “The machinery and equipment on which the advance is granted shall be hypothecated to Government and also insured till the advance granted in full is recovered. The insurance shall be made in the name of Government and the policies and premium receipts from time to time shall be deposited, with the Engineer in charge, who shall in the event of the failure on the part of the contractor to do so, have the unquestioned power to keep the policies alive and recover from the contractor the expenses incurred in this behalf. The insurance shall be effected with such company or companies or the Government Insurance Pool, individually or jointly as may previously approved by the Government.” 7] According to the counsel, since the hypothecation to Government was the moot point and it was only based on the insurance cover, the advances were to be given, no question of the petitioner tendering the bills of purchases to the department arise. He stressed, at no time, the petitioner has tendered the bills of purchases allegedly from A. Raj or the other company as the department asserts. 8] During the course of submissions, counsel took recourse to the judgment - 4 - of the Apex Court in the matter of Jibrial Diwan V/s State of Maharashtra ( AIR 1997 Supreme Court, 3424) to stress on forgery. Letters prepared on letter head of Minister by itself will not amount to cause harm to any person in body or mind. It was a case wherein the accused prepared false letters on the Letter Head of Minister. Invitations were written to invite actors for cultural show. The letters did not bear signature of Minister. Consequently, the Apex Court observed that there was no gain to anyone nor any wrongful loss to another by way of delivery of letter. These parameters will not be applicable to the facts of the case at hand. 9] In the matter of Dr.Vimla V/s Delhi Administration (AIR 1963 Supreme Court, 1572), the case was revolving for infraction of Sections 467, 468, 24 and 25 of the Penal Code. The Lordships observed that the expression “defraud” involves two elements, namely, deceit and injury to person deceived. Injury is something other than economic loss that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. In the said case, the accused purchased a motor car with her own money in the name of her minor daughter N, had the insurance policy transferred in the name of her minor daughter by signing her (minor’s) name and also received compensation for the claims made by her in regard to the two accidents to the car. The Lordships found that the claims were true claims and she received the moneys by signing in the claim forms and also in the receipts as N. The Lordships recorded that the accused in fact and in substance put through her transactions in connection with the said motor car in the name of her minor daughter. N was in fact either a benamidar for the accused, or her name was used for luck or other sentimental considerations. However, the Lordships in the end observed that the accused was certainly guilty of deceit, for though her name was V, she signed in all the relevant papers as N and made the - 5 - insurance company believe that her name was N, but the said deceit did not either secure to her advantage or cause any non-economic loss or injury to the insurance company. 10] During the course of submissions, it transpired that the goods - tractors, trailors, dozers, loader or scrappers, etc. which were hypothecated against which advances, as referred above, were availed by the petitioner, were required to be put on auction by the department and since they did not fetch a reasonable value, the department was forced to sell them, at a very inadequate or throw away price like a scrap. 11] It is prima facie noticed by the department that the bills produced by the petitioner to get advances were forged, based on such bills only, the department parted with the advance to the tune of Rs.11,80,000/-. Production of such forged bills is the crucial aspect in the matter. The petitioner may claim that he did not produce such bills to the department, however, there is an endorsement dated 31.10.1983 by the Executive Engineer to the effect “Verified from original bills”. Prima facie, it is not open for the petitioner to canvass that he never produced the bills, because the very scheme for getting the advances has an inbuilt situation to comply the price under which the goods were purchased, in order to assess the advances in the percentage thereof. Without there being production of such bills, even applying Clause 21.6, to which reference is given, the department could not nor the petitioner could receive the advances. The contention that he did not produce the bills is prima facie incorrect and wrong statement. 12] Taking stock of all the facts, I do not see any error on the part of the learned Chief Judicial Magistrate while passing order below Exhibit 1 not to act upon the request of the petitioner and the learned Revisional Court in not accepting the contention of the petitioner. There is no merit in the petition. Consequently, the writ petition is dismissed. Interim relief - 6 - stands vacated. The request to transfer the case from the learned Chief Judicial Magistrate, Jalgaon, to Aurangabad on health ground, in the present proceedings can not be considered. It is for the petitioner – accused to apply to the learned CJM, who will independently consider the same on its own merits. (K.U. Chandiwal, J.) ndk/cr318092