Interim Order 2

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.9
1. The present application is filed by Accused No.3, Mr. Sachin
Waman Parab, hereinafter referred as applicant, under Section 239 of
Code of Criminal Procedure, who is standing on the same footing, as that
of original Accused No.2, Mr. Bhaskar Ramchet Mishra, who has already
been discharged by this court vide its order dated 24.07.2023.
2. Perused record. Heard Ld. Advocate Shri Akash Kavade, for the
applicant. Heard Ld. A.P.P.
3. At the cost of repetition, it is necessary to reproduce the facts. The
prosecution case, is 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 was issued for construction.
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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
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
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CNR No.MHMM18-003241-2021
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
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. Accused No.2, Mr. Bhaskar
Ramchet Mishra (who has already been discharged) and present
applicant/Accused No.3, Mr. Sachin Waman Parab (applicant).
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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 Mishra and Mr. Sachin Waman Parab (present applicant).
9. When matter was fixed for framing of charge, initially the original
Accused No.2, Mr. Bhaskar Ramchet Mishra, filed application under
Section 239 of Code of Criminal Procedure, for discharge, 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. No offence of
either cheating or forgery made out against him as basic requirements are
not satisfied, besides other grounds. This court after hearing both the sides
by its order dated 24.07.2023, allowed the said application and said
accused was discharged.
10. So far as the present application is concerned, the Ld. Advocate for
him, relied on the same contentions and same judgments as that off
previous application. The Ld. A.P.P. also maintained same objections.
11. 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 statements of
some witnesses, as that of discharged accused, about the present applicant
also some other witnesses made such stray statements informing that the
present applicant also made some correspondence.
12. Thus, the whole charge sheet reflects that only role attributed to
present applicant is that he is suspected to be made some correspondence
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on behalf of Mr. Narendra Parpudi, Accused No.1, as that of discharged
accused. 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 absolutely 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.
13. The Ld. Advocate for the applicant relied on definition of forgery
provided in Sections 463 and 464 of Indian Penal Code (which is already
quoted in previous order), 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.
14. 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 -
“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
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maker of the same, otherwise the accused person is not liable for the
offence of forgery.”
15. 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, as that of discharged accused. Therefore, there is
substance in the contentions forwarded by Ld. Advocate for the applicant.
16. At the cost of repetition it is also necessary to mention that, the Ld.
Advocate for the applicant also relied on several judgments describing the
law developed, pertaining to discharge of accused. Those principles of
law are mainly summarized in latest judgment of Supreme Court, in
Vikarmjit Kakati Vs State of Asam (2022 SCC OnLine 967), 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.
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.”
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17. 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, as that of discharged accused. 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. On the basis of these observations one of the accused has already
been discharged. The present applicant also deserves parity on the same
footing as that of discharged accused. Therefore, applicant is also bound
to be discharged.
18. In view of above discussed factual and legal aspects and
observations made above, following order -
ORDER
a. Accused No.3, Mr. Sachin Waman Parab, 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 – 09.08.2023 M.M., 12TH COURT, BANDRA, MUMBAI
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