sat 1 wp 2160-2011 and 2176-2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2160 OF 2011 Maruti Nivrutti Navle ...Petitioner vs. The State of Maharashtra & Anr. ...Respondent WITH CRIMINAL WRIT PETITION NO. 2176 OF 2011 Pavan Gandhi Charity Trust & Ors. ...Petitioners vs. Maruti Nivruti Navale & Ors. ...Respondents Mr.A.P. Mundargi, Senior Counsel with Mr.Vineet B. Naik i/b. Mr.Sukand R. Kulkarni, Advocate for the Petitioner in Writ Petition Nos.2160/2011 and for Respondent Nos.1 and 2 in Writ Petition No.2176/2011. Mr.S.B. Shetye, Advocate for the Petitioner in Writ Petition No.2176/2011 and for Respondent No.2 in Writ Petition No.2160/2011. Ms.M.H. Mhatre, APP for the State in both the petitions. CORAM : B.H. MARLAPALLE & U.D. SALVI, JJ. AUGUST 5, 2011 P.C. :- 1 Heard Mr.Mundargi, the learned Senior Counsel with Mr.Naik and Mr.Kulkarni for the petitioner in Writ sat 2 wp 2160-2011 and 2176-2011 Petition No.2160/2011 and Mr.Shetye, the learned Counsel for the petitioners in Writ Petition No.2176/2011. Ms.Mhatre, the learned APP appears for the State in both the petitions which are interconnected. 2 The petitioner in the first petition is a Founder President and Managing Trustee of an education society by name Sinhgad Technical Education Society (the Society for short) whereas the petitioners in the second petition are the trustees of Pavan Gandhi Charity Trust (the Trust for short) which has filed a complaint initially with the Paud Police Station and subsequently, with the Shivaji Nagar Police Station, Pune. On the basis of the said complaint with the Shivaji Nagar Police Station, CR No.168/2011 for the offences punishable under Sections 420, 465, 468 and 471 read with 34 of IPC has been registered. The petitioner in the first petition has, therefore, prayed for quashing and setting aside the said CR (FIR No. 168/2011) registered on 20th July, 2011. Whereas in the second petition, prayer clause (a) does not survive and as per prayer clause (b), the petitioners pray for directions to take strict and suitable action against the police sat 3 wp 2160-2011 and 2176-2011 officers for their high-handed, malafide and arbitrary actions for not registering the offence at the first instance on receipt of the complaint transferred from the Paud Police Station. 3 The Trust was registered sometimes in the year 1987 and it started a school for the children coming from economically marginalised class. Shri Chainsukh Shobhachand Gandhi retired from the post of Vice-President of a private firm by name Sudarshan Chemicals Limited in the year 1988 and before his retirement, his elder son Pavan died in an accident on 12.1.87. Therefore, the family decided to start a charity trust in the name of the deceased and purchased about 11.5 acres of land in village Sutarwadi (Ambadvet) Taluka Mulshi, District Pune. On part of the said property i.e. Survey No.154/6/1 admeasuring about 57 Ares, a school building admeasuring about 650 sq.mtrs was constructed and in the year 2005, an English Medium school was started with the help of Loila School. Sometimes in March 2008, there were negotiations between the Trust and the Society and it was agreed that the school along with the land admeasuring 57 Ares will be sat 4 wp 2160-2011 and 2176-2011 leased out to the Society for running the very same school for poor children and a Lease Deed was signed and registered on 13th May, 2008. Lease period agreed was 35 months. Few days prior to this Agreement dated 13th May, 2008, two Memorandums of Understanding and one Lease Agreement were signed on or about 7th or 10th May, 2008. The first MOU was in respect of the first part on which the school was running i.e. 57 Ares land and the second MOU was for the sale of the remaining land. Whereas the Lease Agreement was for a period of 87 years and 1 month in respect of the first part of the property. These Agreement of Lease as well as MOUs were not registered. 4 On expiry of the lease period of 35 months, the Trust issued Advocate’s notice to the Society on 19th February, 2011 to take over the lease property i.e. the school along with the land admeasuring 57 Ares. This notice was replied and the disputes between the parties commenced. The Society claimed that the Lease Deed signed for 35 months was only a temporary arrangement or a stopgap arrangement and the Lease Deed signed for 87 years has come into effect after the expiry of the Lease Deed sat 5 wp 2160-2011 and 2176-2011 for 35 months and therefore, the Society will continue to run the schools and the Trust could not ask for the return of the property. It appears that some advertisements were also published by the Society in some local newspapers and it is under these circumstances, Shri Chainsukh Gandhi approached the Paud Police Station on 18th May, 2011 with a complaint of forgery and cheating. This complaint was transferred for investigation to the Shivaji Nagar Police Station and it is alleged that no CR was registered by the said police station purportedly on account of the interference by higher ups. 5 Be that as it may, we are required to consider whether the first petitioner has made out a case for quashing of FIR No.168/2011. So far as the second petition is concerned, Mr.Shetye, the learned Counsel in his arguments before us has not pressed for directions to take action against the police officers, as of now. 6 As per the complainant, though two MOUs were signed on 10th May, 2008 along with the Lease Deed for 87 years, it was subsequently decided between the parties and sat 6 wp 2160-2011 and 2176-2011 more particularly, at the instance of Shri Navale that Sinhgad Education Society would be interested only in taking the school building and the adjoining land admeasuring 57 Ares on lease for a period of 35 months and it was not interested in purchasing the property or taking it on lease for 87 years. On registration of the Lease Agreement for 35 months, on 13th May, 2008 it was agreed that the two MOUs and the Lease Agreement for 87 years were not to be acted upon, returned to the trust and were superseded. However, when the Society received the quit notice, these documents, which were not returned despite reminders from time to time, were manipulated/forged and sought to be used so as to retain the entire property or the property under Lease Agreement. The complainant also pointed out that on the basis of the very same documents which were agreed to be only drafts and superseded, the Society has filed civil suits for Specific Performance. 7 It was submitted by Mr.Mundargi, the learned Senior Counsel that signing of the two MOUs on 10th May, 2008 along with the Agreement for lease for the period of 87 years has not been disputed and therefore, there is no sat 7 wp 2160-2011 and 2176-2011 case even for investigation on the charge of fabrication of documents or use of fabricated documents. He further submitted that the parties had agreed right on 10th May, 2008 itself that on expiry of 35 months, the agreement for 87 years of lease could be effective and therefore, there is neither a case of forgery nor cheating. He also submitted that the property under lease has been in possession of the Society, it has constructed some more buildings and developed further infrastructure as a result of which the strength of students has gone up. The purpose for which the property was leased out has not been diluted in any way and therefore, the commitments made in the lease agreement have been maintained. In any case, the Society has filed civil suits on or around 1st July 2011 and the disputes between the parties are entirely of civil nature. Under these circumstances, the investigation undertaken on registration of CR No.168/2011 is motivated, under duress and on account of the outside influence, the police have registered the CR. It was, therefore, urged to quash and set aside the CR. 8 Mr.Shetye, the learned Counsel for the sat 8 wp 2160-2011 and 2176-2011 complainant-trust, on the other hand, he invited our attention to the purported lease agreement dated 7th March, 2011 and the blank portion subsequently written in black ink as well as the letter dated 18th April, 2011 from the Society to the Trustees of the Trust. It was pointed out by Mr.Shetye that this letter though was dated 18th April, 2011, has been received by the trust only on 19th May, 2011. It has been alleged in the letter that on 7th March, 2011, Mr.Chainsukh Gandhi and other trustees have signed the lease agreement dated 7th March, 2011 at Pune. Mr.Shetye has also submitted that on 7th March, 2011, Mr.Chainsukh Gandhi was not at Pune and instead he was hospitalised at Delhi. He also referred to the handwriting made in the lease agreement dated 7th March, 2011 and pointed out that it was nothing short of forgery to use the said document to the advantage of the Society so as to retain the property in its own possession. He alleged that the handwritten details amounted to forgery as they were intended to rob the property on the ground that a fresh lease agreement was signed between the parties recently. 9 Ms.Mhatre, the learned APP also submitted that sat 9 wp 2160-2011 and 2176-2011 the complaint registered is required to be investigated and during the course of investigation till now, it has been noticed that the first petitioner made false declarations to obtain permission for the school for the academic year 2008-2009, in as much as he claimed that as on 5/5/2008 he had purchased the land where the school building is standing and admeasuring 57 ARs. 10 We have given our anxious considerations to the arguments advanced by all the parties before us and we have also perused the documents and more particularly, the purported Lease Deed dated 7th March, 2011. We have also considered the scheme of Sections 463, 464, 465, 468, 471 and 420 of IPC. It is well settled that to investigate a complaint registered under Section 154 of Cr.P.C., it is the duty of the police and its statutory duty cannot be stiffled or interfered with lightly or in casual manners. It is only when a case is made out that even on the face of the complaint, no offence could be made out for investigation, that the power to investigate under Section 154 could be taken away. In the instant case, we are satisfied that a prima facie case to undertake the sat 10 wp 2160-2011 and 2176-2011 investigation has been made out. It is well settled that for the purpose of quashing the complaint, it is necessary to consider whether the allegations in the complaint, prima facie, make out an offence or not. It is not necessary to scrutinise the allegations for the purpose of deciding whether such allegations are likely to be upheld at the trial. For quashing the complaint by way of action at the threshold, it is, therefore, necessary to consider whether on the basis of the allegations a criminal offence is constituted or not. Having regard to this position in law, we are satisfied that the complaint submitted by the Trust and on the basis of which FIR No.168 of 2011 has been registered requires to be investigated by the police and, there is no case made out to quash and set aside the said FIR at the threshold. 11 Hence, Criminal Writ Petition No.2160/2011 is dismissed and Criminal Writ Petition No.2176/2011 is disposed as not pressed. 12 We make it clear that this order of dismissal of writ petition is without prejudice to the rights and sat 11 wp 2160-2011 and 2176-2011 contentions of the parties in the proceedings before any subordinate courts. (U.D. SALVI, J) (B.H. MARLAPALLE, J)