{"id":72862,"date":"2010-01-14T00:00:00","date_gmt":"2010-01-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mahendra-vs-vivek-on-14-january-2010"},"modified":"2019-01-07T14:21:45","modified_gmt":"2019-01-07T08:51:45","slug":"mahendra-vs-vivek-on-14-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mahendra-vs-vivek-on-14-january-2010","title":{"rendered":"Mahendra vs Vivek on 14 January, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Mahendra vs Vivek on 14 January, 2010<\/div>\n
Bench: P. R. Borkar<\/div>\n
                                    (1)\n\n\n\n\n                                                                     \n              IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                         BENCH AT AURANGABAD\n\n\n\n\n                                             \n                CRIMINAL WRIT PETITION NO. 422 OF 2009\n                                 WITH\n                CRIMINAL WRIT PETITION NO. 423 OF 2009\n\n\n\n\n                                            \n                                 WITH\n                CRIMINAL WRIT PETITION NO. 424 OF 2009\n                                 WITH\n                CRIMINAL WRIT PETITION NO. 454 OF 2009\n\n\n\n\n                                   \n                               * * * * *\n                      \n                CRIMINAL WRIT PETITION NO. 422 OF 2009\n                                 WITH\n                CRIMINAL WRIT PETITION NO. 423 OF 2009\n                     \n                                 WITH\n                CRIMINAL WRIT PETITION NO. 424 OF 2009\n\n\n    Mahendra s\/o. Kanhaiyyalal Jain                   ..       Petitioner\n       \n\n    Age 47 years, Occ. Business,\n    R\/o. 176, Ponam Peth,\n    \n\n\n\n    Jalgaon, Dist. Jalgaon.\n\n                                    Versus\n\n\n\n\n\n    1.   Vivek s\/o. Manohar Jagtap                    ..       Respondents\n         Age. 40 years, Occ. Service,\n         Residing at Mahavir Nagar,\n         Near Milk Federation,\n         Jalgaon.\n\n\n\n\n\n    2.   Suresh s\/o. Bansilal Jain,\n         Age. 43 years, Occ. Business,\n         Residing at 16, Ponam Peth,\n         Jalgaon.\n\n    3.   The State of Maharashtra\n\n\n\n\n                                             ::: Downloaded on - 09\/06\/2013 15:30:57 :::\n                                     (2)\n\n\n\n\n                                                                     \n    Shri K.C. Sant, Advocate for the petitioner.\n\n\n\n\n                                             \n    Shri V.B. Patil, Advocate for respondent No.1.\n    Shri Vijay Sharma, Advocate for respondent No.2.\n    Shri B.V. Wagh, A.P.P. for respondent No.3\/State.\n\n                                    WITH\n\n\n\n\n                                            \n                CRIMINAL WRIT PETITION NO. 454 OF 2009\n\n\n    Mahendra s\/o. Kanhaiyyalal Jain                   ..       Petitioner\n\n\n\n\n                                    \n    Age 47 years, Occ. Business,\n    R\/o. 176, Ponam Peth,\n                      \n    Jalgaon, Dist. Jalgaon.\n\n                                    Versus\n                     \n    1.   Vivek s\/o. Manohar Jagtap                    ..       Respondents\n         Age. 40 years, Occ. Service,\n         Residing at Mahavir Nagar,\n       \n\n         Near Milk Federation,\n         Jalgaon.\n    \n\n\n\n    2.   Suresh s\/o. Bansilal Jain,\n         Age. 43 years, Occ. Business,\n         Residing at 16, Ponam Peth,\n         Jalgaon.\n\n\n\n\n\n    3.   Surendra s\/o. Nathumal Lunkad,\n         Age. 60 years, Occ. Business,\n         R\/o. Lunkad Tower,\n         Pandey Dairy Square (Chowk),\n         Jalgaon, Tal. & Dist. Jalgaon.\n\n\n\n\n\n    4.   The State of Maharashtra\n\n\n    Shri K.C. Sant, Advocate for the petitioner.\n    Shri V.B. Patil, Advocate for respondent No.1.\n    Shri Vijay Sharma, Advocate for respondent No.2 & 3.\n    Shri B.V. Wagh, A.P.P. for respondent No.4\/State.\n\n\n\n\n                                             ::: Downloaded on - 09\/06\/2013 15:30:57 :::\n                                         (3)\n\n\n\n\n                                                                           \n                                              CORAM :       P.R. BORKAR,J.\n<\/pre>\n
                                              DATED :       14.01.2010\n\n    ORAL JUDGMENT :-\n\n\n\n\n                                                  \n    1.          Rule.     Rule   made   returnable   forthwith.     With \n\n<\/pre>\n
    consent  of   learned   counsel   appearing   for   the   parties,   these <\/p>\n
    writ petitions are taken up for final hearing.\n<\/p>\n
    2.          These   four   writ   petitions   are   filed   by   original <\/p>\n
    complainant Mahendra Kanhaiyyalal Jain being aggrieved by the <\/p>\n
    decisions   of   Sessions   Judge   dated   05.03.2009   in   Criminal <\/p>\n
    Revision   Application   Nos.   187,   185,   186   and   188   of   2008 <\/p>\n
    respectively,   whereby   he   allowed   the   Revision   Applications <\/p>\n
    and set aside the order of issuance of process passed by the <\/p>\n
    Chief Judicial Magistrate, Jalgaon, on 15.04.2008, in R.C.C.\n<\/p>\n
    Nos.   179,   177,   178   &   180   respectively,   thereby   the   learned <\/p>\n
    Chief   Judicial   Magistrate   issued   processes   against   the <\/p>\n
    respondents   other   than   the   State   of   Maharashtra,   for <\/p>\n
    committing offences punishable under sections 465, 467, 471 & <\/p>\n
    474   all   read   with   section   34   of   the   Indian   Penal   Code <\/p>\n
    (“I.P.C.”).\n<\/p>\n
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\n                                          (4)<\/span><\/p>\n
    3.          Some of the facts regarding which there was no more <\/p>\n
    dispute before me are that the complainant was member of Shri <\/p>\n
    Mahavir   Urban   Co-operative   Society   Limited,   Jalgaon <\/p>\n
    (hereinafter   referred   to   as   “credit   society”).     The   credit <\/p>\n
    society   is   doing   banking   business   at   Jalgaon.     Respondent <\/p>\n
    Suresh   Jain  was  President   (Chairman)   of  said   credit  society <\/p>\n
    and he resigned on 02.01.2007 and thereafter respondent No.1 <\/p>\n
    – Vivek Jagtap was appointed as an Administrator.     He took <\/p>\n
    charge on 15.01.2007.   All these four writ petitions pertain <\/p>\n
    to   four   complaint   lodged   by   same   complainant   i.e.   present <\/p>\n
    petitioner, who is common in all four writ petitions.   Thus <\/p>\n
    writ petition No. 422 of 2009 relates to minutes of meeting <\/p>\n
    of Board of Directors held on 03.07.2006, writ petition No. <\/p>\n
    423   of   2009   relates   to   minutes   of   meeting   of   Board   of <\/p>\n
    Directors held on 25.03.2006, writ petition No. 424 of 2009 <\/p>\n
    relates to minutes of meeting of Board of Directors held on <\/p>\n
    22.04.2006     and   writ   petition   No.   454   of   2009   relates   to <\/p>\n
    minutes of meeting of Board of Directors held on 03.08.2006.\n<\/p>\n
    It   is   case   of   the   petitioner   that   his   brother   Jitendra   was <\/p>\n
    also   member   of   the   credit   society   and   as   against   Jitendra <\/p>\n
    several proceedings such as complaint for offence punishable <\/p>\n
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\n                                          (5)<\/span><\/p>\n
    under section 138 of the Negotiable Instruments Act, so also <\/p>\n
    for   recovery   of   loan   and   other   civil   matters   were   filed   by <\/p>\n
    the   credit   society.     The   petitioner   and   his   brother   had <\/p>\n
    doubts regarding genuineness  and correctness of the document <\/p>\n
    and   transparency   of   the   administration   from   time   to   time.\n<\/p>\n
    Jitendra Jain, brother of the petitioner applied for getting <\/p>\n
    copies   of   minutes   of   above   said   four   meetings   of   Board   of <\/p>\n
    Directors   on   18.01.2007.     Just   prior   to   that   on   15.01.2007 <\/p>\n
    respondent   Vivek   Jagtap   had   taken   over   charge   as   an <\/p>\n
    Administrator   and   the   copies   were   supplied   to   Jitendra   and <\/p>\n
    respondent   Vivek   Jagtap  signed   those   copies  as   true  copies.\n<\/p>\n
    Thereafter,   on   13.02.2007   present   petitioner   also   made <\/p>\n
    application   for   getting   copies   of   minutes   of   above   said <\/p>\n
    meetings and also some other documents and he also received <\/p>\n
    copies.  On comparison of the copies received by Jitendra and <\/p>\n
    the   petitioner,   it   was   found   that   in   the   copies   of   minutes <\/p>\n
    supplied to Jitendra Jain, there were no signatures made by <\/p>\n
    respondent   No.2   Suresh   Jain   –   Chordiya,   but   same   were <\/p>\n
    appearing   in   the   copies   supplied   to   the   petitioner.     There <\/p>\n
    were signatures of respondent No. 2 – Suresh Jain – Chordiya <\/p>\n
    made for showing his presence at the meetings and also as a <\/p>\n
    Chairman   of  the  credit   society.     In  the  copy   of  minutes  of <\/p>\n
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\n                                        (6)<\/span><\/p>\n
    meeting on 03.08.2006 supplied to the petitioner, respondent <\/p>\n
    Surendra Lunkad was seen to have signed showing his presence <\/p>\n
    but there was no signature of respondent – Suresh Lunkad on <\/p>\n
    the   copy   supplied   to   Jitendra   Jain.     This   according   to <\/p>\n
    present petitioner amounted to commission of various offences <\/p>\n
    for   which   the   learned   Chief   Judicial   Magistrate   has   issued <\/p>\n
    processes.\n<\/p>\n
    4.<\/p>\n
               It   may   also   be   noted   that   before   issuing   process, <\/p>\n
    after verification of complaints, the learned Chief Judicial <\/p>\n
    Magistrate   passed   order   directing   inquiry   under   section   202 <\/p>\n
    of   the   Cr.P.C.   and   report   of   the   police   was   received.\n<\/p>\n
    Thereafter,   on   consideration   of   complaint,   verification   and <\/p>\n
    police   report,   said   orders   of   issuance   of   processes   were <\/p>\n
    issued by the learned Chief Judicial Magistrate.   As against <\/p>\n
    said orders of issuance of processes in all four complaints, <\/p>\n
    criminal   revision   applications   were   filed   in   the   Sessions <\/p>\n
    Court,   Jalgaon.   The   learned   Sessions   Judge   came   to   a <\/p>\n
    conclusion   that   necessary   ingredients   of   the   offences   were <\/p>\n
    not disclosed and issuances of processes was not proper and <\/p>\n
    he allowed the revision applications and set aside orders of <\/p>\n
    issuance   of   processes.     As   against   the   same,   these   writ <\/p>\n
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\n                                          (7)<\/span><\/p>\n
    petitions are filed.\n<\/p>\n
    5.          Before   we   go   to   the   actual   discussion   of   the <\/p>\n
    arguments and the law relevant for decision, it is necessary <\/p>\n
    to   reproduce   other   contents   of   the   complaint,   which   are <\/p>\n
    identical in all complaints, besides the things stated above.\n<\/p>\n
    In   para   6   of   the   complaint,   it   is   stated   that   there   were <\/p>\n
    signatures   of   respondent   No.2   Suresh   Jain   –   Chordiya   for <\/p>\n
    remaining present at the meetings and also as a Chairman of <\/p>\n
    the   credit   society   on   the   copies   of   minutes   of   meetings <\/p>\n
    supplied to present petitioner.  In para 7 it is stated that <\/p>\n
    after   15.01.2007   onwards   the   proceeding   book   of   the   credit <\/p>\n
    society was in possession of respondent No.1 – Vivek Jagtap <\/p>\n
    as   an   administrator   of   the   credit   society   and   without   his <\/p>\n
    consent, connivance or aid, respondent No.2 – Suresh Jain –\n<\/p>\n
    Chordiya   or   Surendra   Lunkad   could   not   have   signed.     It   is <\/p>\n
    also argued that the very fact that there was no signatures <\/p>\n
    of respondent No. 2 – Suresh Jain – Chordiya or of Surendra <\/p>\n
    Lunkad on the copies supplied to Jitendra Jain, but they were <\/p>\n
    there on the copies supplied to the petitoner indicates that <\/p>\n
    those were made in between 18.01.2007 to 02.03.2007 when the <\/p>\n
    petitioner   received  copies   and   this  shows   sharing   of   common <\/p>\n
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\n                                         (8)<\/span><\/p>\n
    intention.  It is also stated in para 8 of the complaint that <\/p>\n
    subsequent   signatures   were   made   in   regularizing   the <\/p>\n
    proceedings.     It   is  stated   in   para   9   of  the  complaint   that <\/p>\n
    the   proceedings   are   valuable   documents   and   making   false <\/p>\n
    entries therein is a forgery.  In para 10 of the complaint it <\/p>\n
    is   stated   that   the   complainant   has   proved   that   signatures <\/p>\n
    were   made   later   on   and   forgery   need   not   be   for   causing <\/p>\n
    wrongful loss to the complainant.  Then it is said that there <\/p>\n
    is no bar of Section 197 of Cr.P.C.\n<\/p>\n
    6.          The   processes   were   issued   for   offence   punishable <\/p>\n
    under section 465, 467, 471, 474 read with section 34 of the <\/p>\n
    I.P.C.   and   these   are   all   offences   related   to   forgery   and <\/p>\n
    aggravated   form   thereof.     Thus,   section   465   of   the   Indian <\/p>\n
    Penal Code provides punishment for forgery.   Section 467 of <\/p>\n
    the I.P.C. relates to offence of forging documents which are <\/p>\n
    valuable,   security   or   will   etc.,   while   Section   471   of   the <\/p>\n
    I.P.C. relates to using forged documents as genuine.  Section <\/p>\n
    474 of the I.P.C. deals with possessing any document knowing <\/p>\n
    it   to   be   forged   and   intending   to   use   it   is   as   genuine.\n<\/p>\n
    Section 463 of the I.P.C. defines forgery as follows:-\n<\/p>\n
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\n                                      (9)<\/span><\/p>\n
                        “S. 463. Whoever makes any false document
\n             or false electronic record or part of a document or <\/p>\n
             electronic   record,   with   intent   to   cause   damage   or
\n             injury,   to   the   public   or   to   any   person,   or   to
\n             support any claim or title, or to cause any person
\n             to part with property, or to enter into any express
\n             or implied contract, or with intent to commit fraud <\/p>\n
             or that fraud may be committed, commits forgery.”\n<\/p><\/blockquote>\n
    7.       Section   464   of   the   I.P.C.   defines   making   of   false <\/p>\n
    document and for our purpose following portion of section 464 <\/p>\n
    of the I.P.C. is relevant.\n<\/p>\n
                       “464.   A   person   is   said   to   make   a   false
\n             documenr or false electronic record –\n<\/p><\/blockquote>\n
             First – who dishonestly or fraudulently –\n<\/p><\/blockquote>\n
             (a) makes, signs, seals or executes a document or <\/p>\n
             part of a document;\n<\/p><\/blockquote>\n
             (b) makes   or   transmits   any   electronic   record   or
\n             part of any electronic record;\n<\/p><\/blockquote>\n
             (c) affixes any digital signature or any electronic
\n             record;\n<\/p><\/blockquote>\n
             (d) makes   any   mark   denoting   the   execution   of   a
\n             document   or   the   authenticity   of   the   digital <\/p>\n
             signature,<\/p>\n
             with   the   intention   of   causing   it   to   be   believed
\n             that such document or part of document, electronic
\n             record   or   digital   signature   was   made,   signed,
\n             sealed,   executed,   transmitted   or   affixed   by   or   by
\n             the   authority   of   a   person   by   whom   or   by   whose
\n             authority   he   knows   that   it   was   not   made,   signed, <\/p>\n
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\n                                         ( 10 )<\/p>\n
                sealed, executed or affixed; or<\/p>\n
                Secondly.   –  Who,   without   lawful   authority,
\n                dishonestly   or   fraudulently,   by   cancellation   or
\n                otherwise,   alters   a   document   or   an   electronic
\n                record   in   any   material   part   thereof,   after   it   has
\n                been   made,   executed   or   affixed   with   digital <\/p>\n
                signature either by himself or by any other person,
\n                whether such person be  living or dead at the  time
\n                of such alteration; or <\/p>\n
                x x x x x x<\/p>\n
                          Explanation   1  –     Signature   of   his   own <\/p>\n
                name may amount to forgery.\n<\/p><\/blockquote>\n
                x x x x x x”\n<\/p><\/blockquote>\n
    8.          The   analysis   of   above   said   sections   463   and   464 <\/p>\n
    clearly   indicates   that   a   person   is   said   to   make   false <\/p>\n
    documents if he dishonestly or fraudulently signs or without <\/p>\n
    lawful   authority,   dishonestly   or   fraudulently   alters   a <\/p>\n
    document.     The   words   “dishonestly”   and   “fraudulently”   are <\/p>\n
    defined   under   section   24   and   25   of   the   I.P.C.     The   word <\/p>\n
    “dishonestly”   is   defined   as  “whoever   does   anything   with  the <\/p>\n
    intention of causing wrongful gain to one person or wrongful <\/p>\n
    loss   to   another   person,   is   said   to   do   that   thing, <\/p>\n
    ‘dishonestly'”.     “Fraudulently”   is   defined   as   “a   person   is <\/p>\n
    said   to  do   a   thing   fraudulently  if   he   does   that  thing   with <\/p>\n
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\n                                        ( 11 )<\/p>\n
    intent to defraud but not otherwise”.   So, “dishonestly” and <\/p>\n
    “fraudulently”   are   essential   ingredients   of   offences   for <\/p>\n
    which   orders   of   issuance   of   processes   were   passed   by   the <\/p>\n
    learned Chief Judicial Magistrate.\n<\/p>\n
    9.          In   this   case   the   learned   advocates   for   the <\/p>\n
    petitioner   and   the   respondents   have   taken   me   through   the <\/p>\n
    complaint, report of police under section 202 of the Cr.P.C.\n<\/p>\n
    and its accompaniments.   Police have given report under 202 <\/p>\n
    of the Cr.P.C. that no offence of forgery was disclosed.  It <\/p>\n
    is rightly argued by the learned advocate Shri K.C. Sant that <\/p>\n
    the   learned   Chief   Judicial   Magistrate   was   not   bound   by   the <\/p>\n
    report of Police and he could have formed his own opinion on <\/p>\n
    the   material   placed   before   him.     The   learned   advocate   Shri <\/p>\n
    Vijay Sharma stated that absolutely there is no whisper how <\/p>\n
    the act of signing minutes, may be belatedly, was dishonest <\/p>\n
    or fraudulent.  It is not case of the complainant that at the <\/p>\n
    concerned meetings of the Board of Directors, respondent No.2 <\/p>\n
    Suresh   Jain   –   Chordiya   or   Surendra   Lunkad   was   not   present.\n<\/p>\n
    It is not his case at any stage that any of the resolution <\/p>\n
    mentioned   in   the   meetings   was   added,   deleted,   changed   or <\/p>\n
    altered.   So, merely signing a document in absence of proof <\/p>\n
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\n                                        ( 12 )<\/p>\n
    that   act   was   done   dishonestly   or   fraudulently,   does   not <\/p>\n
    amount to any offence.\n<\/p>\n
    10.         The   learned   advocate   Shri   K.C.   Sant   for   the <\/p>\n
    petitioner stated that signatures on the minutes of meetings <\/p>\n
    were put long after meetings.   Respondent No.2 – Suresh Jain <\/p>\n
    –   Chordiya   and   Surendra   Lunkad   made   signatures   when   the <\/p>\n
    documents   were   in   possession   of   respondent   No.1   –   Vivek <\/p>\n
    Jagtap, who was an Administrator.  Respondent No.1 should not <\/p>\n
    have   given   access   of   the   document   to   any   one   without <\/p>\n
    authority.     So,   under   these   circumstances,   there   is   some <\/p>\n
    dishonest   intention.     It   is   difficult   to   believe   that   one <\/p>\n
    would   make   signature   without   absence   of   any   dishonest <\/p>\n
    intention.   In my considered opinion it is one thing to say <\/p>\n
    that   there   might   be   some   dishonest   intention   and   it   is <\/p>\n
    another thing to say that the complaint, verification or the <\/p>\n
    material collected by Police in inquiry under section 202 of <\/p>\n
    the Cr.P.C. disclose such intention.\n<\/p>\n
    11.         On the other hand it is argued by Adv. Shri Vijay <\/p>\n
    Sharma   that   this   complaint   is   filed   with   ulterior   and   mala <\/p>\n
    fide   intention.     He   produced   on   record   report   of   police <\/p>\n
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\n                                       ( 13 )<\/p>\n
    submitted   under   section   202   of   the   Cr.P.C.   and   its <\/p>\n
    accompaniments, which are taken on record today.  He referred <\/p>\n
    to letter dated 11.12.2006 addressed by the Special Recovery <\/p>\n
    Officer   of   the   credit   society   to   the   District   Deputy <\/p>\n
    Registrar,   Co-operative   Societies,   Jalgaon.   Therein,   it   is <\/p>\n
    stated   that   present   complainant   and   members   of   his   family <\/p>\n
    have taken loans of lakhs of rupees.  He gave details of the <\/p>\n
    amounts   owed   and   it   is   stated   that   total   amount   of   Rs.\n<\/p>\n
    2,27,57,441\/-   were   due.     Allegations   are   made   against   the <\/p>\n
    petitioner of blackmailing the credit society on the basis of <\/p>\n
    information collected under the Right to Information Act etc. <\/p>\n
    Adv. Shri Vijay Sharma also stated that as per police report, <\/p>\n
    police   made   inquiry   with   the   Dy.   Registrar,   Co-operative <\/p>\n
    Societies, Jalgaon and as per letter dated 04.01.2007 it was <\/p>\n
    informed that there was no period mentioned in bylaws or any <\/p>\n
    other   provisions   of   law   within   which   signatures   of   the <\/p>\n
    Chairman or other members should be obtained on the minutes <\/p>\n
    of meetings.\n<\/p>\n
    12.        Several authorities are cited by both sides.   Adv.\n<\/p>\n
    Shri Vijay Sharma cited case of  Vaidya Kuldip Raj Kohil V\/s.\n<\/p>\n
    She State of Maharashtra, 2002 Vo. 104 (2) Bom.L.R.418.   In <\/p>\n
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\n                                         ( 14 )<\/p>\n
    that   case   this   Court   has   observed   that   where   in   a   private <\/p>\n
    complaint investigation by police was directed and the report <\/p>\n
    discloses   no   offence,   Magistrate   issues   process   without <\/p>\n
    application of mind,   it would be misuse of process of law.\n<\/p>\n
    It is argued by Adv. Shri Sharma that while passing order of <\/p>\n
    issuance of process, the magistrate ought to have stated what <\/p>\n
    new   material   has   come   before   him,   which   made   him   to   think <\/p>\n
    that   this   was   a   case   of   issuance   of   process.   Earlier   the <\/p>\n
    Magistrate   has   observed   while   passing   order   on   26.07.2007 <\/p>\n
    that investigation was required to be done by the concerned <\/p>\n
    police   for   the   purpose   of   deciding   whether   or   not   there   is <\/p>\n
    sufficient   ground   for   proceeding   and   therefore   he   directed <\/p>\n
    inquiry   under   section   202   of   the   Cr.P.C.   by   the   concerned <\/p>\n
    police.   Therefore, in the order of issuance of process, the <\/p>\n
    Magistrate   ought   to   have   mentioned   what   new   material   was <\/p>\n
    there, on the basis of which he felt that prima facie case of <\/p>\n
    issuance   of   process   was   made   out.     Adv.   Shri   Sharma   has <\/p>\n
    referred   to   para   18   of   the   judgment   passed   by   the   Sessions <\/p>\n
    Judge.\n<\/p>\n
    13.         The   learned   advocate   Shri   K.C.   Sant   for   the <\/p>\n
    petitioner   cited   case   of  U.P.   Pollution   Control   Board   V\/s.\n<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 15:30:57 :::<\/span><\/p>\n
                                     ( 15 )<\/p>\n
    Dr. Bhupendra Kumar Modi and Another, (2009) 2 S.C.C.147.  In <\/p>\n
    paras 39 to 41 of the said case, following observations are <\/p>\n
    made:-\n<\/p>\n
                         “39.       It is our endeavour to point out
\n             that   the   High   Court   has   quashed   the   complaint
\n             arising   in   an   environmental   matter   in   a   casual
\n             manner   by   exercising   power   under   Section   482 <\/p>\n
             Cr.P.C.  This Court has held that exercise of power
\n             under Section 482 of the Code is the exception and <\/p>\n
             under the rule there are three circumstances under
\n             which   the   inherent   jurisdiction   may   be   exercised
\n             i.e. (a) to give effect to an order of the Court;\n<\/p><\/blockquote>\n
             (b) to prevent abuse of the process of the Court;\n<\/p><\/blockquote>\n
             (c) to otherwise secure the ends of justice.\n<\/p><\/blockquote>\n
             40.         It is true that it is neither possible nor
\n             desirable   to   lay   down   any   inflexible   rule   which
\n             would govern the exercise of inherent jurisdiction.\n<\/p><\/blockquote>\n
             While exercising inherent powers either on civil or
\n             criminal jurisdiction, the Court does not function <\/p>\n
             as   a   Court   of   Appeal   or   Revision.   The   inherent
\n             jurisdiction   though   wide   has   to   be   exercised
\n             sparingly, carefully and with caution. It should be
\n             exercised to do real and substantial justice and if <\/p>\n
             any attempt is made to abuse that authority so as
\n             to   produce   injustice,   the   Court   has   power   to
\n             prevent abuse. When no offence is disclosed by the
\n             complaint,   the   Court   may   examine   the   question   of
\n             fact. When complaint is sought to be quashed, it is
\n             permissible   to   look   into   the   materials   to   assess <\/p>\n
             what   the   complainant   had   alleged   and   whether   any
\n             offence   is   made   out   even   if   the   allegations   are
\n             accepted in toto.\n<\/p><\/blockquote>\n
             41.        When exercising jurisdiction under Section
\n             482   of   the   Code,   the   High   Court   could   not
\n             ordinarily   embark   upon   an   enquiry   whether   the
\n             evidence in question is reliable or not or whether <\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:30:57 :::<\/span>
\n                                        ( 16 )<\/p>\n
                on   a   reasonable   appreciation   of   it   the   accusation
\n                would not be sustained. To put it clear, it is the <\/p>\n
                function   of   the   trial   Judge   to   do   so.   The   Court
\n                must   be   careful   to   see   that   its   decision   in
\n                exercise of its power is based on sound principles.
\n                The   inherent   power   should   not   be   exercised   to
\n                stifle a legitimate prosecution. If the allegations <\/p>\n
                set out in the complaint do not constitute offence
\n                of   which   cognizance   has   been   taken   by   the
\n                Magistrate, it is open to the High Court to quash
\n                the   same   in   exercise   of   the   inherent   powers   under
\n                Section 482 of the Criminal Procedure Code. x x x x <\/p>\n
                x x x ”\n<\/p><\/blockquote>\n
    13.<\/p>\n
                In   the   case   of  M\/s.   India   Carat   Pvt.   Ltd.,   V\/s.\n<\/p>\n
    State   of   Karnataka   and   Another,   AIR   1989   S.C.   885,   the <\/p>\n
    Supreme Court has observed in para 16 that the Magistrate can <\/p>\n
    take into account the statements of the witnesses examined by <\/p>\n
    the   police   during   the   investigation   and   take   cognizance   of <\/p>\n
    the offence complained of and order the issue of process to <\/p>\n
    the accused.   Section 190 (1) (b) does not lay down that a <\/p>\n
    Magistrate   can   take   cognizance   of   an   offence   only   if   the <\/p>\n
    investigating   given   an   opinion   that   the   investigation   has <\/p>\n
    made   out   a   case   against   the   accused.     The   Magistrate   can <\/p>\n
    ignore the conclusion arrived at by the investigating officer <\/p>\n
    and independently apply his mind to the facts emerging from <\/p>\n
    the investigation and take cognizance of the case. Adv. Shri <\/p>\n
    Vijay   Sharma   argued   that   no   new   material   was   placed   before <\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 15:30:57 :::<\/span>
\n                                         ( 17 )<\/p>\n
    the   Magistrate   to   hold   that   there   was   sufficient   ground   to <\/p>\n
    proceed against the accused.\n<\/p>\n
    14.         In   the   case   of  Mahendra   Saw   alias   Mahendra   Kumar <\/p>\n
    Sahu   V\/s.   State   of   Bharkhand,   2006   Cri.L.J.   1974,   Single <\/p>\n
    Bench   of   Jharkhand   High   Court   has   laid   down   that   at   that <\/p>\n
    stage of enquiry, magistrate is expected to see only whether <\/p>\n
    there   are   sufficient   grounds   for   proceeding   against   accused <\/p>\n
    for   an   offence.     He   cannot   go   into   truth   or   otherwise   of <\/p>\n
    allegation made in complaint.   Order dismissing complaint by <\/p>\n
    giving   a   finding   that   evidence   of   witness   found   to   be <\/p>\n
    unbelievable was set aside.  In the present case dishonest or <\/p>\n
    fraudulent intention in making signature is not spelt out by <\/p>\n
    material on record.\n<\/p>\n
    15.         Case of Soma Chakravarty V\/s. State (Th. CBI), 2007 <\/p>\n
    AIR SCW 3683  was cited.   In para 21 of the said case it is <\/p>\n
    observed that appellant’s advocate contended that in view of <\/p>\n
    the earlier decisions no charge could be framed against the <\/p>\n
    appellant as there was no material to show that she was prima <\/p>\n
    facie guilty or had any mens rea.   The Court disagreed.   In <\/p>\n
    the facts of the case, it is held that there was mens rea and <\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 15:30:57 :::<\/span>
\n                                           ( 18 )<\/p>\n
    prima facie evidence.\n<\/p>\n
    16.         In  People’s   Union   for   Civil   Liberties   and   Another <\/p>\n
    V\/s. Union of India, 2003 AIR SCW 7233, paras 25 and 27 would <\/p>\n
    be   relevant.   That   was   case   under   POTA   and   there   is <\/p>\n
    presumption   regarding   knowledge   of   terrorist   act   for <\/p>\n
    possession   as   can   be   seen   from   para   27.     Section   4 <\/p>\n
    presupposes conscious possession.   In para 25 it is observed <\/p>\n
    that   “Mens   rea”   element   is   sine   qua   non   for   offences   under <\/p>\n
    I.P.C.\n<\/p>\n
    17.         Another   case   cited   by   the   learned   advocate   Shri <\/p>\n
    Sharma   is  Mohammad   Atullah   V\/s.   Ram   Saran   Mahto,   AIR   1981 <\/p>\n
    S.C.   1155.     In   that   case   it   is   laid   down   that   in   case   the <\/p>\n
    Magistrate   directed   investigation   in   to   a   complaint   under <\/p>\n
    section 202 of Cr.P.C. and when the report merely stated that <\/p>\n
    prima   facie   case   is   made   out   against   some   persons,   but   not <\/p>\n
    against   others   and   no   details   were   given,   unless   there   is <\/p>\n
    additional material before the Magistrate, taking cognizance <\/p>\n
    of order of issuance of process is illegal.\n<\/p>\n
    18.         In   the   case   of  Mahindra   &   Mahindra   Financial <\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 15:30:57 :::<\/span>
\n                                        ( 19 )<\/p>\n
    Services Limited and Another V\/s. Rajiv Dubey (2009) 1 S.C.C.\n<\/p>\n
    706,   in   para   19,   case   of   State  of  Haryana  V\/s.   Bhajan  Lal, <\/p>\n
    AIR  1992   SC  604  is  cited.    Adv.   Shri   Sharma   submitted   that <\/p>\n
    the case falls under cluase 1 and 7 of para 102 of case of <\/p>\n
    Bhajanlal.  He argued that allegations made in the complaint, <\/p>\n
    even if they are taken on the face value and accepted in its <\/p>\n
    entirety   do   not   constitute   any   offence   of   forgery   as   main <\/p>\n
    ingredients of the offence are missing.   He also argued that <\/p>\n
    criminal   proceedings   are   initiated   by   the   petitioner   with <\/p>\n
    ulterior   motive.     They   are   maliciously   instituted   with <\/p>\n
    ulterior motive to bring  pressure on respondent Nos. 1 and 2 <\/p>\n
    to   take   back   proceedings   for   recovery   of   loans   initiated <\/p>\n
    against   the   petitioner   and   members   of   his   family   and <\/p>\n
    therefore   this   Court   should   not   interfere   with   the   orders <\/p>\n
    passed by the Sessions Judge.\n<\/p>\n
    19.         Last   case   cited   before   this   Court   is  Jagdish   Ram <\/p>\n
    V\/s. State of Rajasthan and another, 2004 AIR SCW 1342.   In <\/p>\n
    that   case   it   is   laid   down   that   at   the   stage   of   taking <\/p>\n
    cognizance   of   offence,   Magistrate   is   required   to   consider <\/p>\n
    whether there are sufficient grounds exist or not for further <\/p>\n
    proceeding in the matter.\n<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 15:30:57 :::<\/span><\/p>\n
                                          ( 20 )<\/p>\n
    20.         After   considering   arguments   advanced   before   this <\/p>\n
    Court   and   considering   the   complaints   and   verification   and <\/p>\n
    police enquiry papers, in my opinion, it is not proved that <\/p>\n
    in   making   signatures   on   minutes   of   meetings   of   Board   of <\/p>\n
    Directors,   there   was   any   dishonest   or   fraudulent   intention.\n<\/p>\n
    It   is   not   that   decisions   taken   in   the   meetings   were  in   any <\/p>\n
    way   altered   or   changed   or   any   resolution   was   added   or <\/p>\n
    deleted.     It   is   not   case   of   the   petitioner   that   at   said <\/p>\n
    meetings,   respondent   No.2   was   not   present.   It   is   also   not <\/p>\n
    case   that   respondent   No.3   in   Writ   Petition   No.   454   of   2009 <\/p>\n
    was  not  present  at   the   meeting   held  on   03.08.2006.    In   the <\/p>\n
    circumstances, in my opinion, these writ petitions deserve to <\/p>\n
    be dismissed.\n<\/p>\n
    21.         In   the   result,   the   writ   petitions   are   dismissed.\n<\/p>\n
    Rule discharged.                                            sd\/-\n\n                                                     [P.R. BORKAR,J.]\n\n\n\n\n\n    snk\/2010\/JAN10\/crwp422.09\n                                   \"AUTHENTICATED COPY\"\n\n\n\n                                      (S.N. KULKARNI)\n                                   P.A. TO HON'BLE JUDGE\n\n\n\n\n                                                     ::: Downloaded on - 09\/06\/2013 15:30:57 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Mahendra vs Vivek on 14 January, 2010 Bench: P. R. Borkar (1) 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-72862","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nMahendra vs Vivek on 14 January, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mahendra-vs-vivek-on-14-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mahendra vs Vivek on 14 January, 2010 - 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