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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 422 OF 2009
WITH
CRIMINAL WRIT PETITION NO. 423 OF 2009
WITH
CRIMINAL WRIT PETITION NO. 424 OF 2009
WITH
CRIMINAL WRIT PETITION NO. 454 OF 2009
* * * * *
CRIMINAL WRIT PETITION NO. 422 OF 2009
WITH
CRIMINAL WRIT PETITION NO. 423 OF 2009
WITH
CRIMINAL WRIT PETITION NO. 424 OF 2009
Mahendra s/o. Kanhaiyyalal Jain .. Petitioner
Age 47 years, Occ. Business,
R/o. 176, Ponam Peth,
Jalgaon, Dist. Jalgaon.
Versus
1. Vivek s/o. Manohar Jagtap .. Respondents
Age. 40 years, Occ. Service,
Residing at Mahavir Nagar,
Near Milk Federation,
Jalgaon.
2. Suresh s/o. Bansilal Jain,
Age. 43 years, Occ. Business,
Residing at 16, Ponam Peth,
Jalgaon.
3. The State of Maharashtra
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Shri K.C. Sant, Advocate for the petitioner.
Shri V.B. Patil, Advocate for respondent No.1.
Shri Vijay Sharma, Advocate for respondent No.2.
Shri B.V. Wagh, A.P.P. for respondent No.3/State.
WITH
CRIMINAL WRIT PETITION NO. 454 OF 2009
Mahendra s/o. Kanhaiyyalal Jain .. Petitioner
Age 47 years, Occ. Business,
R/o. 176, Ponam Peth,
Jalgaon, Dist. Jalgaon.
Versus
1. Vivek s/o. Manohar Jagtap .. Respondents
Age. 40 years, Occ. Service,
Residing at Mahavir Nagar,
Near Milk Federation,
Jalgaon.
2. Suresh s/o. Bansilal Jain,
Age. 43 years, Occ. Business,
Residing at 16, Ponam Peth,
Jalgaon.
3. Surendra s/o. Nathumal Lunkad,
Age. 60 years, Occ. Business,
R/o. Lunkad Tower,
Pandey Dairy Square (Chowk),
Jalgaon, Tal. & Dist. Jalgaon.
4. The State of Maharashtra
Shri K.C. Sant, Advocate for the petitioner.
Shri V.B. Patil, Advocate for respondent No.1.
Shri Vijay Sharma, Advocate for respondent No.2 & 3.
Shri B.V. Wagh, A.P.P. for respondent No.4/State.
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CORAM : P.R. BORKAR,J.
DATED : 14.01.2010
ORAL JUDGMENT :-
1. Rule. Rule made returnable forthwith. With
consent of learned counsel appearing for the parties, these
writ petitions are taken up for final hearing.
2. These four writ petitions are filed by original
complainant Mahendra Kanhaiyyalal Jain being aggrieved by the
decisions of Sessions Judge dated 05.03.2009 in Criminal
Revision Application Nos. 187, 185, 186 and 188 of 2008
respectively, whereby he allowed the Revision Applications
and set aside the order of issuance of process passed by the
Chief Judicial Magistrate, Jalgaon, on 15.04.2008, in R.C.C.
Nos. 179, 177, 178 & 180 respectively, thereby the learned
Chief Judicial Magistrate issued processes against the
respondents other than the State of Maharashtra, for
committing offences punishable under sections 465, 467, 471 &
474 all read with section 34 of the Indian Penal Code
(“I.P.C.”).
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3. Some of the facts regarding which there was no more
dispute before me are that the complainant was member of Shri
Mahavir Urban Co-operative Society Limited, Jalgaon
(hereinafter referred to as “credit society”). The credit
society is doing banking business at Jalgaon. Respondent
Suresh Jain was President (Chairman) of said credit society
and he resigned on 02.01.2007 and thereafter respondent No.1
– Vivek Jagtap was appointed as an Administrator. He took
charge on 15.01.2007. All these four writ petitions pertain
to four complaint lodged by same complainant i.e. present
petitioner, who is common in all four writ petitions. Thus
writ petition No. 422 of 2009 relates to minutes of meeting
of Board of Directors held on 03.07.2006, writ petition No.
423 of 2009 relates to minutes of meeting of Board of
Directors held on 25.03.2006, writ petition No. 424 of 2009
relates to minutes of meeting of Board of Directors held on
22.04.2006 and writ petition No. 454 of 2009 relates to
minutes of meeting of Board of Directors held on 03.08.2006.
It is case of the petitioner that his brother Jitendra was
also member of the credit society and as against Jitendra
several proceedings such as complaint for offence punishable
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under section 138 of the Negotiable Instruments Act, so also
for recovery of loan and other civil matters were filed by
the credit society. The petitioner and his brother had
doubts regarding genuineness and correctness of the document
and transparency of the administration from time to time.
Jitendra Jain, brother of the petitioner applied for getting
copies of minutes of above said four meetings of Board of
Directors on 18.01.2007. Just prior to that on 15.01.2007
respondent Vivek Jagtap had taken over charge as an
Administrator and the copies were supplied to Jitendra and
respondent Vivek Jagtap signed those copies as true copies.
Thereafter, on 13.02.2007 present petitioner also made
application for getting copies of minutes of above said
meetings and also some other documents and he also received
copies. On comparison of the copies received by Jitendra and
the petitioner, it was found that in the copies of minutes
supplied to Jitendra Jain, there were no signatures made by
respondent No.2 Suresh Jain – Chordiya, but same were
appearing in the copies supplied to the petitioner. There
were signatures of respondent No. 2 – Suresh Jain – Chordiya
made for showing his presence at the meetings and also as a
Chairman of the credit society. In the copy of minutes of
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meeting on 03.08.2006 supplied to the petitioner, respondent
Surendra Lunkad was seen to have signed showing his presence
but there was no signature of respondent – Suresh Lunkad on
the copy supplied to Jitendra Jain. This according to
present petitioner amounted to commission of various offences
for which the learned Chief Judicial Magistrate has issued
processes.
4.
It may also be noted that before issuing process,
after verification of complaints, the learned Chief Judicial
Magistrate passed order directing inquiry under section 202
of the Cr.P.C. and report of the police was received.
Thereafter, on consideration of complaint, verification and
police report, said orders of issuance of processes were
issued by the learned Chief Judicial Magistrate. As against
said orders of issuance of processes in all four complaints,
criminal revision applications were filed in the Sessions
Court, Jalgaon. The learned Sessions Judge came to a
conclusion that necessary ingredients of the offences were
not disclosed and issuances of processes was not proper and
he allowed the revision applications and set aside orders of
issuance of processes. As against the same, these writ
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petitions are filed.
5. Before we go to the actual discussion of the
arguments and the law relevant for decision, it is necessary
to reproduce other contents of the complaint, which are
identical in all complaints, besides the things stated above.
In para 6 of the complaint, it is stated that there were
signatures of respondent No.2 Suresh Jain – Chordiya for
remaining present at the meetings and also as a Chairman of
the credit society on the copies of minutes of meetings
supplied to present petitioner. In para 7 it is stated that
after 15.01.2007 onwards the proceeding book of the credit
society was in possession of respondent No.1 – Vivek Jagtap
as an administrator of the credit society and without his
consent, connivance or aid, respondent No.2 – Suresh Jain –
Chordiya or Surendra Lunkad could not have signed. It is
also argued that the very fact that there was no signatures
of respondent No. 2 – Suresh Jain – Chordiya or of Surendra
Lunkad on the copies supplied to Jitendra Jain, but they were
there on the copies supplied to the petitoner indicates that
those were made in between 18.01.2007 to 02.03.2007 when the
petitioner received copies and this shows sharing of common
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intention. It is also stated in para 8 of the complaint that
subsequent signatures were made in regularizing the
proceedings. It is stated in para 9 of the complaint that
the proceedings are valuable documents and making false
entries therein is a forgery. In para 10 of the complaint it
is stated that the complainant has proved that signatures
were made later on and forgery need not be for causing
wrongful loss to the complainant. Then it is said that there
is no bar of Section 197 of Cr.P.C.
6. The processes were issued for offence punishable
under section 465, 467, 471, 474 read with section 34 of the
I.P.C. and these are all offences related to forgery and
aggravated form thereof. Thus, section 465 of the Indian
Penal Code provides punishment for forgery. Section 467 of
the I.P.C. relates to offence of forging documents which are
valuable, security or will etc., while Section 471 of the
I.P.C. relates to using forged documents as genuine. Section
474 of the I.P.C. deals with possessing any document knowing
it to be forged and intending to use it is as genuine.
Section 463 of the I.P.C. defines forgery as follows:-
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“S. 463. Whoever makes any false document
or false electronic record or part of a document orelectronic record, with intent to cause damage or
injury, 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 intent to commit fraudor that fraud may be committed, commits forgery.”
7. Section 464 of the I.P.C. defines making of false
document and for our purpose following portion of section 464
of the I.P.C. is relevant.
“464. A person is said to make a false
documenr or false electronic record –
First – who dishonestly or fraudulently –
(a) makes, signs, seals or executes a document or
part of a document;
(b) makes or transmits any electronic record or
part of any electronic record;
(c) affixes any digital signature or any electronic
record;
(d) makes any mark denoting the execution of a
document or the authenticity of the digitalsignature,
with the intention of causing it to be believed
that such document or part of document, electronic
record or digital signature was made, signed,
sealed, executed, transmitted or affixed by or by
the authority of a person by whom or by whose
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( 10 )sealed, executed or affixed; or
Secondly. – Who, without lawful authority,
dishonestly or fraudulently, by cancellation or
otherwise, alters a document or an electronic
record in any material part thereof, after it has
been made, executed or affixed with digitalsignature either by himself or by any other person,
whether such person be living or dead at the time
of such alteration; orx x x x x x
Explanation 1 – Signature of his own
name may amount to forgery.
x x x x x x”
8. The analysis of above said sections 463 and 464
clearly indicates that a person is said to make false
documents if he dishonestly or fraudulently signs or without
lawful authority, dishonestly or fraudulently alters a
document. The words “dishonestly” and “fraudulently” are
defined under section 24 and 25 of the I.P.C. The word
“dishonestly” is defined as “whoever does anything with the
intention of causing wrongful gain to one person or wrongful
loss to another person, is said to do that thing,
‘dishonestly'”. “Fraudulently” is defined as “a person is
said to do a thing fraudulently if he does that thing with
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intent to defraud but not otherwise”. So, “dishonestly” and
“fraudulently” are essential ingredients of offences for
which orders of issuance of processes were passed by the
learned Chief Judicial Magistrate.
9. In this case the learned advocates for the
petitioner and the respondents have taken me through the
complaint, report of police under section 202 of the Cr.P.C.
and its accompaniments. Police have given report under 202
of the Cr.P.C. that no offence of forgery was disclosed. It
is rightly argued by the learned advocate Shri K.C. Sant that
the learned Chief Judicial Magistrate was not bound by the
report of Police and he could have formed his own opinion on
the material placed before him. The learned advocate Shri
Vijay Sharma stated that absolutely there is no whisper how
the act of signing minutes, may be belatedly, was dishonest
or fraudulent. It is not case of the complainant that at the
concerned meetings of the Board of Directors, respondent No.2
Suresh Jain – Chordiya or Surendra Lunkad was not present.
It is not his case at any stage that any of the resolution
mentioned in the meetings was added, deleted, changed or
altered. So, merely signing a document in absence of proof
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that act was done dishonestly or fraudulently, does not
amount to any offence.
10. The learned advocate Shri K.C. Sant for the
petitioner stated that signatures on the minutes of meetings
were put long after meetings. Respondent No.2 – Suresh Jain
– Chordiya and Surendra Lunkad made signatures when the
documents were in possession of respondent No.1 – Vivek
Jagtap, who was an Administrator. Respondent No.1 should not
have given access of the document to any one without
authority. So, under these circumstances, there is some
dishonest intention. It is difficult to believe that one
would make signature without absence of any dishonest
intention. In my considered opinion it is one thing to say
that there might be some dishonest intention and it is
another thing to say that the complaint, verification or the
material collected by Police in inquiry under section 202 of
the Cr.P.C. disclose such intention.
11. On the other hand it is argued by Adv. Shri Vijay
Sharma that this complaint is filed with ulterior and mala
fide intention. He produced on record report of police
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submitted under section 202 of the Cr.P.C. and its
accompaniments, which are taken on record today. He referred
to letter dated 11.12.2006 addressed by the Special Recovery
Officer of the credit society to the District Deputy
Registrar, Co-operative Societies, Jalgaon. Therein, it is
stated that present complainant and members of his family
have taken loans of lakhs of rupees. He gave details of the
amounts owed and it is stated that total amount of Rs.
2,27,57,441/- were due. Allegations are made against the
petitioner of blackmailing the credit society on the basis of
information collected under the Right to Information Act etc.
Adv. Shri Vijay Sharma also stated that as per police report,
police made inquiry with the Dy. Registrar, Co-operative
Societies, Jalgaon and as per letter dated 04.01.2007 it was
informed that there was no period mentioned in bylaws or any
other provisions of law within which signatures of the
Chairman or other members should be obtained on the minutes
of meetings.
12. Several authorities are cited by both sides. Adv.
Shri Vijay Sharma cited case of Vaidya Kuldip Raj Kohil V/s.
She State of Maharashtra, 2002 Vo. 104 (2) Bom.L.R.418. In
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that case this Court has observed that where in a private
complaint investigation by police was directed and the report
discloses no offence, Magistrate issues process without
application of mind, it would be misuse of process of law.
It is argued by Adv. Shri Sharma that while passing order of
issuance of process, the magistrate ought to have stated what
new material has come before him, which made him to think
that this was a case of issuance of process. Earlier the
Magistrate has observed while passing order on 26.07.2007
that investigation was required to be done by the concerned
police for the purpose of deciding whether or not there is
sufficient ground for proceeding and therefore he directed
inquiry under section 202 of the Cr.P.C. by the concerned
police. Therefore, in the order of issuance of process, the
Magistrate ought to have mentioned what new material was
there, on the basis of which he felt that prima facie case of
issuance of process was made out. Adv. Shri Sharma has
referred to para 18 of the judgment passed by the Sessions
Judge.
13. The learned advocate Shri K.C. Sant for the
petitioner cited case of U.P. Pollution Control Board V/s.
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Dr. Bhupendra Kumar Modi and Another, (2009) 2 S.C.C.147. In
paras 39 to 41 of the said case, following observations are
made:-
“39. It is our endeavour to point out
that the High Court has quashed the complaint
arising in an environmental matter in a casual
manner by exercising power under Section 482Cr.P.C. This Court has held that exercise of power
under Section 482 of the Code is the exception andunder the rule there are three circumstances under
which the inherent jurisdiction may be exercised
i.e. (a) to give effect to an order of the Court;
(b) to prevent abuse of the process of the Court;
(c) to otherwise secure the ends of justice.
40. It is true that it is neither possible nor
desirable to lay down any inflexible rule which
would govern the exercise of inherent jurisdiction.
While exercising inherent powers either on civil or
criminal jurisdiction, the Court does not functionas a Court of Appeal or Revision. The inherent
jurisdiction though wide has to be exercised
sparingly, carefully and with caution. It should be
exercised to do real and substantial justice and ifany attempt is made to abuse that authority so as
to produce injustice, the Court has power to
prevent abuse. When no offence is disclosed by the
complaint, the Court may examine the question of
fact. When complaint is sought to be quashed, it is
permissible to look into the materials to assesswhat the complainant had alleged and whether any
offence is made out even if the allegations are
accepted in toto.
41. When exercising jurisdiction under Section
482 of the Code, the High Court could not
ordinarily embark upon an enquiry whether the
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( 16 )on a reasonable appreciation of it the accusation
would not be sustained. To put it clear, it is thefunction of the trial Judge to do so. The Court
must be careful to see that its decision in
exercise of its power is based on sound principles.
The inherent power should not be exercised to
stifle a legitimate prosecution. If the allegationsset out in the complaint do not constitute offence
of which cognizance has been taken by the
Magistrate, it is open to the High Court to quash
the same in exercise of the inherent powers under
Section 482 of the Criminal Procedure Code. x x x xx x x ”
13.
In the case of M/s. India Carat Pvt. Ltd., V/s.
State of Karnataka and Another, AIR 1989 S.C. 885, the
Supreme Court has observed in para 16 that the Magistrate can
take into account the statements of the witnesses examined by
the police during the investigation and take cognizance of
the offence complained of and order the issue of process to
the accused. Section 190 (1) (b) does not lay down that a
Magistrate can take cognizance of an offence only if the
investigating given an opinion that the investigation has
made out a case against the accused. The Magistrate can
ignore the conclusion arrived at by the investigating officer
and independently apply his mind to the facts emerging from
the investigation and take cognizance of the case. Adv. Shri
Vijay Sharma argued that no new material was placed before
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the Magistrate to hold that there was sufficient ground to
proceed against the accused.
14. In the case of Mahendra Saw alias Mahendra Kumar
Sahu V/s. State of Bharkhand, 2006 Cri.L.J. 1974, Single
Bench of Jharkhand High Court has laid down that at that
stage of enquiry, magistrate is expected to see only whether
there are sufficient grounds for proceeding against accused
for an offence. He cannot go into truth or otherwise of
allegation made in complaint. Order dismissing complaint by
giving a finding that evidence of witness found to be
unbelievable was set aside. In the present case dishonest or
fraudulent intention in making signature is not spelt out by
material on record.
15. Case of Soma Chakravarty V/s. State (Th. CBI), 2007
AIR SCW 3683 was cited. In para 21 of the said case it is
observed that appellant’s advocate contended that in view of
the earlier decisions no charge could be framed against the
appellant as there was no material to show that she was prima
facie guilty or had any mens rea. The Court disagreed. In
the facts of the case, it is held that there was mens rea and
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prima facie evidence.
16. In People’s Union for Civil Liberties and Another
V/s. Union of India, 2003 AIR SCW 7233, paras 25 and 27 would
be relevant. That was case under POTA and there is
presumption regarding knowledge of terrorist act for
possession as can be seen from para 27. Section 4
presupposes conscious possession. In para 25 it is observed
that “Mens rea” element is sine qua non for offences under
I.P.C.
17. Another case cited by the learned advocate Shri
Sharma is Mohammad Atullah V/s. Ram Saran Mahto, AIR 1981
S.C. 1155. In that case it is laid down that in case the
Magistrate directed investigation in to a complaint under
section 202 of Cr.P.C. and when the report merely stated that
prima facie case is made out against some persons, but not
against others and no details were given, unless there is
additional material before the Magistrate, taking cognizance
of order of issuance of process is illegal.
18. In the case of Mahindra & Mahindra Financial
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Services Limited and Another V/s. Rajiv Dubey (2009) 1 S.C.C.
706, in para 19, case of State of Haryana V/s. Bhajan Lal,
AIR 1992 SC 604 is cited. Adv. Shri Sharma submitted that
the case falls under cluase 1 and 7 of para 102 of case of
Bhajanlal. He argued that allegations made in the complaint,
even if they are taken on the face value and accepted in its
entirety do not constitute any offence of forgery as main
ingredients of the offence are missing. He also argued that
criminal proceedings are initiated by the petitioner with
ulterior motive. They are maliciously instituted with
ulterior motive to bring pressure on respondent Nos. 1 and 2
to take back proceedings for recovery of loans initiated
against the petitioner and members of his family and
therefore this Court should not interfere with the orders
passed by the Sessions Judge.
19. Last case cited before this Court is Jagdish Ram
V/s. State of Rajasthan and another, 2004 AIR SCW 1342. In
that case it is laid down that at the stage of taking
cognizance of offence, Magistrate is required to consider
whether there are sufficient grounds exist or not for further
proceeding in the matter.
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20. After considering arguments advanced before this
Court and considering the complaints and verification and
police enquiry papers, in my opinion, it is not proved that
in making signatures on minutes of meetings of Board of
Directors, there was any dishonest or fraudulent intention.
It is not that decisions taken in the meetings were in any
way altered or changed or any resolution was added or
deleted. It is not case of the petitioner that at said
meetings, respondent No.2 was not present. It is also not
case that respondent No.3 in Writ Petition No. 454 of 2009
was not present at the meeting held on 03.08.2006. In the
circumstances, in my opinion, these writ petitions deserve to
be dismissed.
21. In the result, the writ petitions are dismissed.
Rule discharged. sd/-
[P.R. BORKAR,J.]
snk/2010/JAN10/crwp422.09
"AUTHENTICATED COPY"
(S.N. KULKARNI)
P.A. TO HON'BLE JUDGE
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