Anil Trilokchand Jain and Ors v. State of Maharashtra

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 2584 OF 2023

¶1Shri. Anil T. Jain

¶2Shri. Ram H. Wadhwani

¶3Shri. Narendrakumar K. Jain

¶4Shri. Kamleshkumar Parmar

¶5Shri. Manojkumar G. Jain

¶6Smt. Chhaya C. Fajal

¶7Smt. Suman A. Jain

¶8Smt. Anita A. Jain

¶9Shri. Sharad G. Vallal

¶10Shri. Satish G. Asvale

¶11Smt. Laxmi M. Agarwal

¶12Smt. Harsha V. Shah

¶13Smt. Sangeeta C. Jain

¶14Shri. Ashok J. Badaliya

¶15Shri. Mahesh V. Gupta ...Petitioners Versus

¶1The State of Maharashtra

¶2Smt. Aarti M. Kalekar ...Respondents Mr. Pranil Sonawane a/w. Ms Ruchi Rajput, Ms Varsha Gangawane and Mr. Raj Chaurasia i/b Mr.Nikhil Shinde for the Petitioners. Ms Rutuj Ambekar, APP for the Respondent /State. Mr. R. V. Govilkar, Senior Advocate a/w. Ms Shaba Khan i/b. Mr.Mihir Govilkar for the Respondent No.2. CORAM : SMT ANUJA PRABHUDESSAI & N. R. BORKAR, JJ. RESERVED ON : 04 JANUARY 2024. PRONOUNCED ON : 05 FEBRUARY 2024. ORDER (PER N.R. BORKAR, J.)

¶1This petition under Section 226 of the Constitution of India read with Section 482 of Code of Criminal Procedure is DINESH SADANAND SHERLA by DINESH SADANAND SHERLA Date: 2024.02.07 13:23:03 +0500 filed to quuash the First Information Report No.104 of 2023 dated 23 March 2023 registered at Nizampur Police Station, Thane city for the ofences punishable under Sections 420, 465, 467, 468 and 471 read with 34 of the Indian Penal Code (I.P.C.) at the instance of respondent No.2.

¶2Respondent No.2 has alleged that her father Late Shri. Shashikant J. Wadke, who died on 8 October 1998, was the owner of Municipal House No.203 at City Survey No.1051 ad-measuring 299 squ. mt., Kasarali, Tal. Bhiwandi, Dist. Thane. According to her, her father, during his life time had executed development agreement in respect of the said property in favour of the petitioner No.15, who pursuant to it, constructed thereon, ground plus three foor building consisting of 6 shops and 12 fats. The petitioners are the owners of some of the fats/shops in the said building.

¶3According to Respondent No.2, in January 2023, she came to know that the petitioners, without obtaining their consent had formed the society and got it registered as housing society under the provisions of Maharashtra Cooperative Societies Act, 1960. According to respondent No.2, pursuant to the application made by her, the documents filed along with application for registration of society were made available to her and on verification of the said document, she found that false and forged documents were filed along with the application, purportedly executed by her father. Hence, she filed the above mentioned FIR.

¶4We have heard learned counsel for the petitioners, learned senior advocate for respondent No.2 and learned APP for the respondent/State.

¶5The learned counsel for the petitioners submits that the petitioners are bona fid purchasers of fats / shops. It is submitted that the application was made in view of Section 10 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management & Transfer) Act, 1963 and while preparing the Form -Z, which according to respondent No.2 is forged document, inadvertently the name of the father of respondent No.2 came to be mentioned therein. It is submitted that admittedly the said Form-Z is signed by petitioner No.15. It is submitted that the FIR is filed with ulterior motive and the dispute, if any, between the parties is of civil nature.

¶6On the other hand, learned senior advocate for respondent No.2 submits that the act of the petitioners is not that innocent as they are trying to portray. It is submitted that respondent No.2 and other heirs are the owners of fats/shops on the ground foor and the 2nd foor of the building in quuestion. It is submitted that without their consent application was made and though they are land owners they were not made party to the application. It is submitted that forged documents were prepared with mala fid intention as in the record of rights the name of father of respondent No.2 is there as land owner. It is submitted that the petition may, therefore, be dismissed.

¶7Undisputedly, the original landlord had assigned development rights in favour of the petitioner No.15 vide Development Agreement dated 17 June 1991. In pursuance thereof, petitioner No.15 constructed a building and sold the residential premises/shops/galas to various persons, including petitioner Nos.1 to 14 herein. The owners of the premises resolved to form a cooperative housing society and petitioner No.15 was entrusted to complete the process. Petitioner No.15 had submitted Form -Z, a declaration to be given by the builder/developer. The only allegation that the said form mentions the name of the father of respondent No.2. It is not in dispute that the said declaration is signed by petitioner No.15. It is not the case of the respondent No.2 that the petitioner No.15 had forged the signature of her father.

¶8In Mariam Fasihuddin & Anr. vs. State by Adugodi Police Station and Anr.1, the Apex Court has observed thus:

¶23It is thus paramount that in oridr to attract thd provisions of Sdction 420 IPC, thd prosdcution has to not only provd that thd accusdi has chdatdi somdond but also that by ioing so, hd has iishondstly iniucdi thd pdrson who is chdatdi to idlivdr propdrty. Thdrd ard, thus, thrdd compondnts of this ofdncd, i.d., (i) thd idcdption of any pdrson, (ii) frauiuldntly or iishondstly iniucing that pdrson to idlivdr any propdrty to any pdrson, ani (iii) mdns rda or iishondst intdntion of thd accusdi at thd timd of making thd iniucdmdnt. Thdrd is no gainsaii that for thd ofdncd of chdating, frauiuldnt ani iishondst intdntion must dxist from thd incdption whdn thd promisd or rdprdsdntation was maid.

¶24It is wdll known that dvdry idcditful act is not unlawful, just as not dvdry unlawful act is idcditful. Somd acts may bd 2024 SCC OnLine SC 58 tdrmdi both as unlawful as wdll as idcditful, ani such acts alond will fall within thd purvidw of Sdction 420 IPC. It must also bd unidrstooi that a statdmdnt of fact is iddmdi 'idcditful' whdn it is falsd, ani is knowingly or rdckldssly maid with thd intdnt that it shall bd actdi upon by anothdr pdrson, rdsulting in iamagd or loss. 'Chdating' thdrdford, gdndrally involvds a prdcdiing idcditful act that iishondstly iniucds a pdrson to idlivdr any propdrty or any part of a valuabld sdcurity, prompting thd iniucdi pdrson to unidrtakd thd saii act, which thdy wouli not havd iond but for thd iniucdmdnt.

¶25Thd tdrm 'propdrty' dmploydi in Sdction 420 IPC has a wdll idfndi connotation. Evdry spdcids of valuabld right or intdrdst that is subjdct to owndrship ani has an dxchangdabld valud - is oriinarily unidrstooi as 'propdrty'. It also idscribds ond's dxclusivd right to possdss, usd ani iisposd of a thing. Thd IPC itsdlf idfnds thd tdrm 'movdabld propdrty' as, "intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth." Whdrdas immovdabld propdrty is gdndrally unidrstooi to mdan lani, bdndfts arising out of lani ani things attachdi or pdrmandntly fastdndi to thd darth. **** **** ****

¶33Thd ofdncd of 'forgdry' unidr Sdction 468 IPC postulatds that whodvdr commits forgdry, intdniing that thd iocumdnt or dldctronic iocumdnt forgdi, shall bd usdi for thd purposd of chdating, shall bd punishdi with imprisonmdnt of dithdr idscription for a tdrm which may dxtdni to sdvdn ydars, ani shall also bd liabld to fnd. Whdrdas Sdction 471 IPC statds that whodvdr frauiuldntly or iishondstly usds as gdnuind any iocumdnts which hd knows or has rdason to bdlidvd it to bd a forgdi iocumdnt, shall bd punishdi in thd samd manndr as if hd hai forgdi such iocumdnt.

¶34Thdrd ard two primary compondnts that nddi to bd fulflldi in oridr to dstablish thd ofdncd of 'forgdry', namdlye

(i) that thd accusdi has fabricatdi an instrumdnt; ani (ii) it was iond with thd intdntion that thd forgdi iocumdnt wouli bd usdi for thd purposd of chdating. Simply put, thd ofdncd of forgdry rdquirds thd prdparation of a falsd iocumdnt with thd iishondst intdntion of causing iamagd or injury."

¶9In the instant case, there are no allegations that the petitioners have deceived any person, or induced any person to delivers any property or valuable security. There are no allegations of damage or injury caused to respondent No.2. Resultantly, the allegations in the FIR even if taken at face value do not disclose essential ingredients of 'chdating' within the meaning of Section 415 of the IPC or 'forgery' within the meaning of Section 468 of the IPC.

¶10Apart from above, according to respondent No.2 herself, she had filed the appeal against the order allowing the application of petitioners for registration of the society. We are told that said appeal is allowed. According to us, the dispute between the parties is essentially of civil nature.

¶11The Hon'ble Supreme Court in Paramjeet Batra v. State of Uttarakhand & Ors.2 has held :- "12. Whild dxdrcising its jurisiiction unidr Sdction 482 of thd Coid of Criminal Procdiurd thd High Court has to bd cautious. This powdr is to bd usdi sparingly ani only for thd purposd of prdvdnting abusd of thd procdss of any court or othdrwisd to sdcurd dnis of justicd. Whdthdr a complaint iisclosds a criminal ofdncd or not idpdnis upon thd naturd of facts alldgdi thdrdin. Whdthdr dssdntial ingrdiidnts of criminal ofdncd ard prdsdnt or not has to bd juigdi by thd High Court. A complaint iisclosing civil transactions may also havd a criminal tdxturd. But thd High Court must sdd whdthdr a iisputd which is dssdntially of a civil naturd is givdn a cloak of criminal ofdncd. In such a situation, if a civil rdmdiy is availabld ani is, in fact, aioptdi as has happdndi in this casd, thd High Court shouli not hdsitatd

(2013) 11 SCC 673 to quash thd criminal procddiings to prdvdnt abusd of procdss of thd court."

¶12Considering overall facts and circumstances, in our considered view, this is a fit case to exercise powers under Article 226 of the Constitution of India read with Section 482 of Cr. P. C. to quuash the FIR. In the result, following order is passed. ORDER

(i) Writ Petition is allowed in terms of prayer clause "a".

(ii) The C.R. No. 104 of 2023 dated 23 March 2023 registered at Nizampura Police Station, Thane city for the ofences punishable under Sections 420, 465, 467, 468 and 471 read with 34 of the I.P.C. is hereby quuashed and set aside.

(iii) The Petition stands disposed of. (N.R. BORKAR, J.)

(SMT. ANUJA PRABHUDESSAI, J.)