Order 2

Order Details: Order Below EX 1
Pdf Text: C. C. No. 2272 PW 2021 State Vs Tejas and anr.
CNR-MHMM18-005443-2021
ORDER BELOW EXH.9
1. Perused record. Heard Ld. Advocate for the accused/applicant Mr.
Ashish Solanki.
2. The present application is filed under Section 239 of Code of
Criminal Procedure, for discharge.
3. The brief facts leading to filing of this application are as under -
The informant Mr. Shaikh Asif Musa, is serving as Junior
Engineer, Building Proposals (Western Suburbs-1), Jogeshwari East,
Mumbai. He is holding the charge of K/South Ward, Vile Parle East,
Mumbai. His office controls the construction and sanctions the layout
plans of new constructions.
On 01.12.2020, he received a complaint of one Mr. Satish Dubey,
activist and social worker, sent by Municipal Commissioner, Mumbai. In
the said complaint it is alleged that present applicant and the partners of
M/s Disha Constructions, used forged No Objection Certificate of
Aviation Authority, bearing No. BT-1/N.O.C.MUM/12/NOCAS/013, for
sanctioning an old building proposal bearing No.CE/9697/WS/AK for their
commercial site situated at C.T.S. No.458-A, Vile Parle East, Mumbai – 400
057.
He had gone through the record of that building proposal of year
2009, bearing No.CE/9697/WS/AK. In the said record he found that on
16.10.2009, the power of attorney of the land owner Mr. Mahendra J.
Shah, has presented/filed that proposal, for construction of commercial
site. Mr. Tejas Mahendra Shah, was appointed as Licensed Surveyor.
Both of them Mr. Mahendra and Mr. Tejas, signed said proposal.
On 20.01.2010, I.O.D. was issued in the name of Mr. Mahendra
Shah. Sanction letter was issued on it’s basis on 23.03.2010. Then
commencement certificate was issued on the basis of various documents
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CNR-MHMM18-005443-2021
produced, including disputed document i.e. No Objection Certificate of
Aviation Authority, bearing No. BT-1/N.O.C.MUM/12/NOCAS/013. He
found that the present applicant/accused Mr. Ashish Solanki, attested said
no objection certificate as true copy of the document that means it’s
contents are true as per original one. After it’s verification he found that
said certificate was issued only for the construction upto the height of
19.17 meters, however in the said attested copy the height mentioned as
19.77 meters. Thus, the relevant portion of the said certificate pertaining
to height was forged.
Therefore, on 26.04.2021, informant Mr. Shaikh Asif Musa, lodged
report on behalf of his office at C. R. No.246 of 2021, for offences
punishable under Sections 465, 468 and 471 f Indian Penal Code, only
against Mr. Tejas Shah.
The investigation started. All the documentary evidence was
collected. Only on the basis of First Information report and these
documents the Investigating Officer came to conclusion that besides Mr.
Tejas Shah, against whom First Information Report is lodged, the present
applicant is also responsible for the act of forgery in the no objection
certificate. Therefore, he filed charge sheet against both these accused
persons.
4. Both the accused persons appeared. Then present accused Mr.
Akash Solanki filed this application mainly on following grounds that -
i. There alleged absolutely no role to the accused, either in the F.I.R. or in
the whole charge sheet.
ii. All the allegations are against Accused No.1, Mr. Mahendra Shah, who
has did all the acts and communications to concerned department.
iii. There is no material on record to connect the accused with the
allegations.
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iv. The acts is impossible so far as accused/applicant is concerned as
the forgery, if accepted, it is only for 60 Cms. Such act is not possible as
applicant is not going to benefit anyway.
v. The role attributed is only in respect of attestation and not in
respect of forging document, which act can be said to be done in good faith
after showing original one to the applicant, which he bonafidely believed
to be true.
vi. The concerned department already issued occupational certificate
since long back. Somebody falsely induced department to initiate action to
harass the applicant.
vii. None of the offences as alleged made out.
viii. Applicant also relied on several judgments of Supreme Court and
contended that no prima facie case made out against accused to proceed
further.
5. Ld. A.P.P. by filing his separate say objected to application and
contended that active role of the accused transpired in the matter. He is
the partner of the firm which completed the construction. There is enough
material to proceed further. Accused has forged public document and
cheated public office. The evidence can not be marshaled in details at this
stage. Therefore, application shall be rejected.
The prosecution case -
6. The summary of the prosecution case is that complaint was made to
the Municipal Commissioner alleging that certain forged documents were
used while obtaining sanction from informant’s office for construction of
commercial site at C.T.S. No.458-A, Vile Parle East, Mumbai – 400 057.
Then informant gone through the record and in the said record he found
that no objection certificate of Aviation Authority, bearing No.
BT-1/N.O.C.MUM/12/NOCAS/013, produced with it is forged. The said
forgery is only in respect of height. It is changed from 19.17 meters to
19.77 meters. Only allegation against accused is that the said certificate
was attested by applicant to be true before it’s production to the
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informant’s office by Accused No.1. Therefore, at the instance of
informant the offence was registered only against Accused No.1, Tejas
Shah and then accused was added in the matter while filing final report.
7. It means though the F.I.R. was registered only against Accused
No.1, after completion of investigation charge sheet was filed against
present applicant as well, only on the basis of the First Information
Report and attested copy of No Objection Certificate.
Surprisingly, the charge sheet also shows that the F.I.R. was
registered on 26.04.2021, only against Accused No.1, Mr. Tejas Shah.
However, prior to that on 20.04.2021, the statement of the informant was
recorded, in which it is mentioned that the present applicant being partner
is also responsible for the act of forgery. It is not clarified in the charge
sheet on which basis such inference has been drawn by informant. So also
not any evidence except copy of No Objection Certificate, is produced.
Role attributed to accused -
8. From the above contents of the material produced with the charge
sheet, it can be inferred that two fold role is attributed to accused, first,
that he attested the disputed no objection certificate to be true copy of the
original one. Second, that he is the partner of the firm which carried out
the construction.
9. Regarding first allegation that accused attested the disputed no
objection certificate to be true copy of the original one, such act can not
be said to be forgery. Any person having authority or capacity to do so
can attest any document to be true copy under bonafide belief that it’s
copies are true copies if contents are same in both the copies. Merely
because those copies has been attested it can not be said that accused is
responsible for the forgery and he himself attested that forged document
to be true, without any cogent basis to draw such inference.
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10. Regarding second allegation that accused is the partner of the firm
and therefore, responsible for the act of forgery also there is no material
on record to connect him with the allegations. There is absolutely no
evidence on record to draw the inference that accused was the partner of
the firm which carried out the construction. Even if it is presumed that he
was the partner of such firm at relevant time there is no evidence on
record to connect him with the alleged act of forgery.
11. The whole case is based on documentary evidence. The whole
record reflects that all the activities from the filing of the proposal upto
the obtaining of Occupancy Certificate was carried out by Accused No.1,
Mr. Tejas Shah. In absence of any such documentary evidence accused
can not be connected with the allegations.
No connection noticed -
12. Thus, from the above discussion it is clear that applicant can not be
connected with the allegations on the basis of two basic facts on which
prosecution is relying. In addition to it after further detailed scrutiny of
the charge sheet also there found not even remote connection of the
accused with the allegations. In the F.I.R. and the subsequent
correspondence repeatedly name of the accused/applicant mentioned. In
this charge sheet image was tried to be created that accused is the main
person responsible for the act by making some bald and clumsy
statements. But there is absolutely no oral or documentary evidence found
to connect the applicant with the allegations.
No offence made out -
13. The documentary evidence produced, particularly the disputed or
forged certificate, shows that it was attested by the applicant. The said
fact of attesting the said document to be true or it is to be as per original,
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by no stretch of imagination can be said to be forgery. Therefore, the
consequent act of cheating on the part of accused, is also not possible.
Basic legal aspects of the application -
14. The Ld. Advocate for the accused relied on several citations in
support of his contentions. There seems no need to reproduce all those
citations. The law pertaining to precautions to be taken while framing
charge and about the discharge of the accused from the criminal case is
now settled.
15. In this regard the observations of Supreme Court, in following two
cases are very important, in first case i.e. in case of Vikarmjit Kakati Vs State
of Asam (2022 SCC OnLine 967), Supreme Court after considering catena of
judgments summarized certain principles pertaining to law of discharge
of accused in criminal trial, as -
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
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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.”
16. About the seriousness of the role of the court while considering any
matter at the stage of framing of charge, recently in case of State of Tamil
Nadu Vs S. Saundirarasu and ors. ((2023) 6 SCC 768), Supreme Court observed
that there must exists grounds for presuming that offence has been
committed by accused persons, as follows -
Para.61. Section 239 envisages a careful and objective consideration of the
question whether the charge against the accused is groundless or whether there
is ground for presume that he has committed an offence. What Section 239
prescribed is not, therefore, an empty or routine formality. It is a valuable
provision to the advantage of the accused, and its breach is not permissible
under law. But if the Judge, upon considering the record, including the
examination, if any, and the hearing, is of the opinion that there is “ground for
presuming” that accused has committed the offence triable under the Chapter,
he is required by Section 240 to frame in writing a charge against the accused.
The order for the framing of charge is also not an empty or routine formality.
It is of a far-reaching nature, and it amounts to a decision that the accused is
not entitled to discharge under Section 239, that there is, on the other hand,
ground for presuming that he has committed an offence triable under Chapter
XIX and that he should be called upon to plead guilty to it and be convicted
and sentenced on that plea, or face the trial. (See : V. C. Shukla Vs State, 1980
Supp SCC 92).
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Para.62. Section 239 of Cr.P.C. lays down that if the Magistrate considers the
charge against the accused to be groundless, he shall discharge the accused.
The word “groundless”, in our opinion, means that there must be no ground
for presuming that the accused has committed the offence. The word
“groundless” used in Section 239 of Cr.P.C. means that the material placed
before the court do not make out or are not sufficient to make out a prima facie
case against the accused.
17. If we applied above tests laid down in case of Vikramjit and
scrutinized this matter with serious scrutiny as required in case of
Saundirarasu, from the above discussed factual aspects of the matter
transpired from the record of charge sheet it can be easily inferred that
there found no connection of accused with the allegations, no role
attributed to him and no offence made out. It can be said that there is no
point in proceeding against the accused as even if he accepts the whole
final report as it is, no conviction is warranted. Therefore, application is
bound to be allowed and hence, following order -
ORDER
a. Accused No.2, Mr. Ashish Ramniklal Solanki, 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.
Sd/-
MUMBAI (KOMALSING RAJPUT)
DATE – 22.02.2024 M.M., 12TH COURT, BANDRA, MUMBAI
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