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2018 Supreme(Bom) 1553
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
S. B. SHUKRE, J.
SUDHA wd/o PAWANKUMAR SARRAIYA - Applicant
Versus
OMPRAKASH KODUMAL KHEMCHANDANI and another - Respondents
Cri. Rev. Nos. 49, 50 of 2016 with Cri. Appln. No. 333 of 2014
Decided on : 22-02-2018
Advocate Appeared:
For the Applicant : D. P. Jaiswal.
For the Respondent: H. D. Dangre, R. M. Daga, Ms. Ritu Kaliya, Additional Public Prosecutor
Headnote:
Contract Act – Section 196 and section 200 – Code of Criminal Procedure, 1973 – Section 482, 397 – Indian Penal Code – Section 463 – Criminal Case committed - Forgery - Criminal revisions filed under section 397 of the Code of Criminal Procedure and criminal application filed under section 482 of the Code of Criminal Procedure are being disposed of by this common judgment as they arise out of the same orders – Before we deal with merits of the case, Court find it necessary to clarify that the learned Magistrate who issued process by the order passed in Regular Criminal Case committed a mistake by showing that section 463 of the Indian Penal Code is punishable offence whereas the fact is that section 463, Indian Penal Code only defines the offence of forgery which has been made punishable depending upon the acts committed, under sections 468 and/or 471, Indian Penal Code. But, the issuance of process by the learned Magistrate for an offence punishable under section 463, Indian Penal Code shows that the learned Magistrate has not been careful enough in understanding the provisions of law contained in Chapter XVIII of Indian Penal Code, which starts with the definition of offence of forgery given in section 463, Indian Penal Code – Held, Court have already pointed out, while discussing the facts of the case, that the judgment and decree in Special Civil Suit rendered was forming part of complaint filed against accused – This document clearly holds that by the subsequent document vide exhibit 84, accused was empowered by accused to conduct the suit – Of course, in the same paragraph 31, the learned Civil Judge has also noted that there were certain doubtful circumstances – But, court must say, he has not elaborated them – It appears to me that these observations were not considered by the learned Magistrate while issuing process against all the accused, even though he noted that he had perused the documents filed with the complaint – Once it is admitted by the complainant in the complaint itself that there was ratification of the acts of accused Wasudeo performed by him on the basis of power of attorney vide exhibit 52, the effect of section 196 and section 200 of Contract Act would come into play and would make all the previous acts, though unauthorized, as authorizedly and properly made on behalf of accused – So, the allegations taken at their face value and without considering anything submitted in defence by the accused persons, clearly show that essential ingredients constituting offence of forgery are absent in this case and as such, prima facie, no offence of forgery has been shown to be made out by the complainant – Order accordingly.
1. These criminal revisions filed under section 397 of the Code of Criminal Procedure and criminal application filed under section 482 of the Code of Criminal Procedure (for short, “Cr.P.C.”) are being disposed of by this common judgment as they arise out of the same orders.
2. Before we deal with merits of the case, I find it necessary to clarify that the learned Magistrate who issued process by the order passed on 21-5-2011 in Regular Criminal Case No. 64 of 2007 committed a mistake by showing that section 463 of the Indian Penal Code (for short, “IPC”) is punishable offence whereas the fact is that section 463, Indian Penal Code only defines the offence of forgery which has been made punishable depending upon the acts committed, under sections 468 and/or 471, Indian Penal Code. But, the issuance of process by the learned Magistrate for an offence punishable under section 463, Indian Penal Code shows that the learned Magistrate has not been careful enough in understanding the provisions of law contained in Chapter XVIII of Indian Penal Code, which starts with the definition of offence of forgery given in section 463, Indian Penal Code.
3. A complaint was filed originally by Pawankumar Sarraiya and after his death during the pendency of complaint, it was prosecuted by his widow Sudha Sarraiya who is revision applicant in Revisions No. 49 of 2016 and 50 of 2016 and respondent No. 1 in APL No. 333 of 2014. The complaint was filed against four persons named as accused. In this complaint, Mohd. Kanisuddin was made as accused No. 1; Wasudeorao Kodumal Khemchandani was made accused No. 2; Omprakash Kodumal Khemchandani was made accused No. 3 and one Ashok Mulchand Jain, advocate was made accused No. 4. Accused No. 2 Omprakash is respondent No. 1 in Revision No. 49 of 2016 and accused No. 4 Ashok Jain is respondent No. 1 in Revision No. 50 of 2016. Accused Nos. 1 and 2 are the applicants in APL No. 333 of 2014. In all these matters, State of Maharashtra is respondent No. 2. For the sake of convenience, parties shall now be referred to as the “complainant”; accused Nos. 1 to 4” and the “State”.
4. It all started with filing of Regular Civil Suit No. 257 of 1996 before the Court of Joint Civil Judge, Senior Division, Amravati by accused No. 1 through his constituted power of attorney. The suit was for enforcing the specific performance of contract dated 24-7-1995 allegedly executed by complainant as owner and in possession of field survey numbers 125 and 133 situated at mouza Rahatgaon, Pragane Nandaonpeth, Tahsil and District Amravati to sell the same to accused No. 1. The suit was filed by accused No. 1 through his constituted power of attorney (accused No. 3 Omprakash). After appearance of complainant in that suit, the complainant filed an application under Order 6, Rule 5 of the Code of Civil Procedure seeking better particulars. Reply vide exhibit 14 to this application was filed by accused No. 3 Omprakash claiming himself as a special power of attorney holder for accused No. 1. This reply was signed by accused No. 4. Thereafter, there have been several applications filed for grant of adjournment by accused No. 3 acting as constituted attorney for accused No. 1, which were also duly endorsed by accused No. 4.
5. On 8-7-2003, a list of documents vide exhibit 61 came to be filed on behalf of accused No. 1. It was accompanied by some documents. One document with which we are concerned in the present case, was the document of power of attorney executed by accused No. 1, originally in favour of accused No. 3. It was marked as exhibit 52. It was noticed by the complainant that name of Omprakash, appointed as power of attorney by accused No. 1, was scored out and name of accused No. 2 Wasudeo was inserted. At that time, it appears, the complainant did not make any allegation of forgery against all or any of the accused persons. However, later on, the complainant made these allegations as the trial of the suit proceeded further. Th
