Interim Order 1

Order Details: Order Below EX 1
Pdf Text: C. C. No. 1253 PW 2021 State Vs. Narendra and ors.
CNR No.MHMM18-003241-2021
ORDER BELOW EXH.6
1. The present application is filed under Section 239 of Code of
Criminal Procedure, by Accused No.2, Mr. Bhaskar Ramchet Mishra,
hereinafter referred as applicant, for discharge.
2. Perused record. Heard Ld. Advocate Shri Akash Kavade, for the
applicant. Heard Ld. A.P.P.
3. The prosecution case, can be summarized, as follows -
On 24.11.2009, the land developer, Mr. Vijay Thakkar, director of a
company M/s. Dev Land and Housing Limited, filed a proposal with local
authority for proposed construction of residence building through
architect, Mr. Narendra Parpudi. On 01.02.2010, Intimation of
Disapproval (I.O.D.), for stilt + three storied building was issued. Then on
18.03.2011, Commencement Certificate, for construction upto height of
2.94 meter was issued. Then on 28.03.2011, amended plan was approved.
While submitting documents for obtaining these approvals, No Objection
Certificate of Airports Authority of India, dated 23.09.2010, permitting
the developer to carry out construction upto the height of 56.27 meter
from the sea height was produced before the local authority, with proposal
for permission for construction.
Then while obtaining Commencement Certificate as per approval
dated 28.03.2011, the architect Mr. Narendra Parpudi, submitted before
local authority No Objection Certificate of Airports Authority of India,
dated 23.09.2010, permitting the developer to carry out construction upto
the height of 64.27 meter from the sea level. On its basis amended map
and Commencement Certificate (C.C.) was issued for the construction
upto said height.
Later on the Manager, Airport Operation Services, Mumbai
International Airport Pvt. Ltd., Mumbai, vide its letter dated 29.07.2015,
informed to local authority that permission for construction was granted
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only upto 56.27 meter from sea level as per no objection certificate, dated
23.09.2010 and not for the height of 64.27 meter, as mentioned in the no
objection certificate bearing same date.
Vide his another letter dated 18.08.2015, he also informed to local
authority that no such certificate is in existence having its no objection to
construct upto the height of 64.27 meter and as per its record the no
objection was granted to construct the building only upto the height of
56.27 meter. Thus, the architect, Mr. Narendra Parpudi and developer Mr.
Vijay Thakkar, committed forgery in the portion relating to height in no
objection certificate, dated 23.09.2010 and mislead the local authority and
fraudulently obtained permission to construct the building above the
permissible height.
After receiving this letter the local authority issued notice to
developer and directed them to decrease the height of the building. The
Commissioner, Municipal Corporation of Greater Bombay, vide his letter
dated 24.09.2015, directed the concerned authorities to lodge complaint
against developer and architect of the building.
4. Therefore, as per directions Mr. Pritam Narayan Satardekar, Junior
Engineer (Civil), Building Proposals, Western Suburbs-1, Bandra West,
Mumbai, lodged First Information Report against two persons i.e. Mr.
Vijay Thakurdas Thakkar and Mr. Narendra Madhav Parpudi (present
Accused No.1).
5. The investigation started. During investigation, Investigating
Officer recorded the statements of various witnesses including persons,
arrayed as accused in the First Information Report, i.e. Mr. Vijay
Thakurdas Thakkar and Mr. Narendra Madhav Parpudi, (present Accused
No.1). He also prepared panchanama of the unauthorized construction. He
collected all the relevant documents. He recorded the statements of
witnesses including Mr. Mahesh Narayan Lotalikar, Junior Engineer, of
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local authority. In his statement the said witness stated the procedure for
submitting proposal and obtaining sanction for construction. In his
lengthy statement he made a stray statement to the effect that some
correspondence was also made by unknown person on behalf of Accused
No.1, Mr. Narendra Parpudi. He expressed suspicion that some
correspondence might had been made by two other persons, including
Accused No.2, Mr. Bhaskar Ramchet Mishra. Some other witnesses also
mentioned same fact in their statements in the same manner.
6. As stated above, the Investigating Officer also recorded the
statement of developer Mr. Vijay Thakurdas Thakkar, who also was
accused in the First Information Report. He stated that all the activities
were done by Accused No.1, Narendra Madhav Parpudi, as per
authorization given by him and he is unaware of the forgery and
construction made as per forged record.
7. Then Investigating Officer after collecting all relevant evidence and
relying on these statements came to conclusion that there is no evidence
found against Mr. Vijay Thakurdas Thakkar, whose name is mentioned in
the First Information Report and he is not responsible for the forgery and
cheating. Relying on the statement of said witness Mr. Vijay Thakurdas
Thakkar, he came to conclusion that the architect appointed by him Mr.
Narendra Madhav Parpudi, is mainly responsible for the act. Relying on
the statement of Mr. Mahesh Narayan Lotalikar and other witnesses, he
added two other accused, i.e. present applicant/Accused No.2, Mr.
Bhaskar Ramchet Mishra and Accused No.3, Mr. Sachin Waman Parab.
8. On the basis of the above conclusions, Investigating Officer
dropped name of Mr. Vijay Thakurdas Thakkar and filed charge
sheet/final report in this court, against Mr. Narendra Madhav Parpudi, Mr.
Bhaskar Ramchet Mishra and Mr. Sachin Waman Parab.
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9. Then matter was fixed for framing of charge. At this stage now
Accused No.2, Mr. Bhaskar Ramchet Mishra, filed present application
mainly on the grounds that, there is absolutely no role attributed to him,
either in First Information Report or in whole final report. There is no
connection noticed in the charge sheet which will connect him with the
alleged forgery of no objection certificate. He is falsely implicated and
statement of one of the witness Mr. Manoj Joshi, is completely in favour
of applicant. No offence of either cheating or forgery made out against
him as basic requirements are not satisfied, besides other grounds.
10. Submissions of the Ld. Advocate for applicant/accused are in tune
with the above contentions. Ld. Advocate also relied on following
citations -
i. Union of India Vs Prafulla Kumar Samal and anr. ((1979)3 SCC 4)
ii. Sajjan Kumar Vs C.B.I. ((2010)9 SCC 368)
iii. Deepakbhai Vs State of Gujarat and anr. ((2019)16 SCC 547)
iv. Sheila Sebastian Vs P. Jawaharraj and anr. ((2018)7 SCC 581)
v. Vikarmjit Kakati Vs State of Asam (2022 SCC OnLine 967)
11. In reply Ld. A.P.P. in tune with his say objected to application
stating that accused/applicant was working for Accused No.1. He applied
for various permissions and N.O.C.s. The offence is in respect of forgery
of valuable document of Airport Authority, for benefit of Accused No.1.
The fit case to frame charge made out, therefore, application shall be
rejected.
12. After perusal of whole final report, the allegations can be
summarized in a way that the Accused No.1, Mr. Narendra Parpudi, an
architect, employed by Mr. Vijay Thakurdas Thakkar, while obtaining
sanction forged description relating to height permitted by Airport
Authority, in no objection certificate issued by it. As per statement of Mr.
Mahesh Lotalikar, the present applicant suspected to be made some
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correspondence on his behalf. Some other witnesses also made such stray
statements.
13. Thus, the whole charge sheet reflects that only role attributed to
present applicant is that he is suspected to be made some correspondence
on behalf of Mr. Narendra Parpudi, Accused No.1. In support of this fact,
except the bare/stray statements of some witnesses, expressing suspicion
only about the making of said correspondence, there is nothing on record.
The charge is in respect of offences punishable under Sections 420 and
467, etc. of Indian Penal Code, relating to cheating and forgery. Except
these stray sentences in the statements of respective witnesses and that too
only about correspondence there is no evidence to connect the present
applicant/accused with the basic allegations of cheating and forgery or
common intention on his part to commit these acts.
14. The Ld. Advocate for the applicant relied on definition of forgery
provided in Sections 463 and 464 of Indian Penal Code, as -
Sec.463. Forgery.—Whoever makes any false document or false
electronic record or part of a document or electronic 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
fraud or that fraud may be committed, commits forgery.
Sec.464. Making a false document.—A person is said to make a false
document 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 electronic signature on any electronic record;
(d) makes any mark denoting the execution of a document or the
authenticity of the electronic signature, with the intention of causing it to
be believed that such document or part of document, electronic record or
electronic 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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authority he knows that it was not made, singed, 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 electronic signature either by himself or by any other person,
whether such person be living or dead at the time of such alteration; or
Thirdly.—Who dishonestly or fraudulently causes any person to sign,
seal, execute or alter a document or an electronic record or to affix his
electronic signature on any electronic record knowing that such person
by reason of unsoundness of mind or intoxication cannot, or that by
reason of deception practised upon him, he does not know the contents of
the document or electronic record or the nature of the alteration.
.
.
Explanation 1.-A man's signature of his own name may amount to
forgery.
.
.
Explanation 2.- The making of a false document in the name of a fictious
person, intending it to be believed that the document was made by a real
person, or in the name of a deceased person, intending it to be believed
that the document was made by the person in his lifetime, may amount
to forgery.
And submitted that for invoking any of these punishing provisions,
the ingredients of these Sections must be satisfied and the act must be
covered by any of the four acts described in them. He further relied on the
judgment of Supreme Court in case of Sheila Sebastian Vs P. Jawaharraj and
anr. ((2018)7 SCC 581), and submitted that no role is attributed to the
applicant, which will satisfy the any of the constituent ingredients of
Sections 463 and 464 of Indian Penal Code. Therefore, accused is bound
to be discharged.
15. From the said judgment of Sheila Sebastian Vs P. Jawaharraj and anr.
((2018)7 SCC 581), the following observations are important, wherein
Supreme Court, after considering Section 463 and 464 of Indian Penal
Code, observed in Para. No.25, as follows -
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“Keeping in view the strict interpretation of penal statute i.e., referring
to rule of interpretation wherein natural inferences are preferred, we
observe that a charge of forgery cannot be imposed on a person who is not
the maker of the same. As held in plethora of cases, making of a document
is different than causing it to be made. As Explanation 2 to Section 464
further clarifies that, for constituting an offence under Section 464 it is
imperative that a false document is made and the accused person is the
maker of the same, otherwise the accused person is not liable for the
offence of forgery.”
16. In the present matter, as observed above, neither any allegations of
forgery made against present applicant nor any direct role is attributed to
him to connect, even remotely, with any of the act of the preparation of
false document. Therefore, there is substance in the contentions
forwarded by Ld. Advocate for the applicant.
17. In addition to it Ld. Advocate for the applicant also relied on other
judgments, mentioned above wherein the law pertaining to discharge of
accused, is summarized. The summary of those judgments and principles
of law pertaining to discharge of accused, laid down in those judgments,
are summarized in one of those judgments, i.e. latest judgment of
Supreme Court, passed in Vikarmjit Kakati Vs State of Asam (2022 SCC OnLine
967). Those postulates are as follows -
10. Before we proceed to examine the matter on merits any further, it
will be apposite to take note of the legal principles applicable seeking
discharge, for which we may refer to a judgment of this Court in P.
Vijayan v. State of Kerala & Another, which has been further reiterated
by this Court in the recent judgment in M.E. Shivalingamurthy v.
Central Bureau of Investigation, Bengaluru and discerned the following
principles:
“17.1. If two views are possible and one of them gives rise to suspicion
only as distinguished from grave suspicion, the trial Judge would be
empowered to discharge the accused.
17.2. The trial Judge is not a mere post office to frame the charge at the
instance of the prosecution.
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17.3. The Judge has merely to sift the evidence in order to find out
whether or not there is sufficient ground for proceeding. Evidence
would consist of the statements recorded by the police or the documents
produced before the Court.
17.4. If the evidence, which the Prosecutor proposes to adduce to prove
the guilt of the accused, even if fully accepted before it is challenged in
cross-examination or rebutted by the defence evidence, if any, “cannot
show that the accused committed offence, then, there will be no
sufficient ground for proceeding with the trial”.
17.5. It is open to the accused to explain away the materials giving rise
to the grave suspicion.
17.6. The court has to consider the broad probabilities, the total effect of
the evidence and the documents produced before the court, any basic
infirmities appearing in the case and so on. This, however, would not
entitle the court to make a roving inquiry into the pros and cons.
17.7. At the time of framing of the charges, the probative value of the
material on record cannot be gone into, and the material brought on
record by the prosecution, has to be accepted as true.
17.8. There must exist some materials for entertaining the strong
suspicion which can form the basis for drawing up a charge and
refusing to discharge the accused.”
18. If we considered these principles and the evidence produced in the
charge sheet against the present applicant it is clear that accused is
arrayed in the matter only on the basis of stray statements of witnesses,
stating that present applicant had done the physical correspondence of
some documents between Accused No.1, Mr. Narendra Parpudi and local
authority. Investigating Officer formed suspicion on the basis of those
stray statements unconnected with the alleged main act of cheating and
forgery, which can not be said to be grave suspicion. The whole charge
sheet even if fully accepted by the present applicant before it is
challenged in cross examination or rebutted by the defence evidence it
can not be said that accused has committed any offence. Therefore,
accused is bound to be discharged. Page 8/9
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19. In view of above factual and legal aspects and observations made
above, following order -
ORDER
a. Accused No.2, Mr. Bhaskar Ramchet Mishra, is discharged under
Section 239 of Code of Criminal Procedure.
b. Cash security, if any, deposited be refunded to the accused, after
appeal period is over.
MUMBAI (KOMALSING RAJPUT)
DATE – 15.07.2023 M.M., 12TH COURT, BANDRA, MUMBAI
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