The High Court exercised its discretion to reject the application for leave to appeal. The Special Judge found no conspiracy, citing bona fide mistakes in area calculation as the explanation for discrepancies, a view the High Court deemed correct.
Application for leave to appeal is rejected.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.1267 OF 2005
The State of Maharashtra ... Appellant
V/s.
Shri Prabhakar Tukaram Pokle & Ors. ... Respondents
Dr.F.R. Shaikh, APP, for Appellant
Mr.Prashant Nagure for Respondent No.2
Mr.Girish Kulkarni for Respondent No.3
Mr.Shashi Pandey for Respondent No.5
Mr.Avinash Rasal with M.J Shetty for Respondent No.6
CORAM: D.G. DESHPANDE &
SMT.NISHITA MHATRE,JJ.
DATED: JUNE 21, 2007
P.C.:
. The State has filed this application for leave
to appeal against the judgment dated 13.2.2001 of the
Special Judge of Greater Bombay in Special Case No.5 of
1988. Six accused in this case were charged with
offences punishable under sections 465, 466, 467, 468,
471, 420 r/w 120B of the IPC r/w sections 5(2), 5(1)(d)
of the Prevention of Corruption Act, 1947. The case of
the prosecution is that accused Nos.1 to 5 conspired
with accused No.6 to increase the area of the properties
bearing C.S. No.D113, 114, 1128, 1136 for the benefit
of accused No.6.
2. The Special Court after considering the entire
evidence on record which was mainly documentary in
: 2 :
nature, came to the conclusion that there was no
conspiracy between the accused. The learned Judge has
held that there was no evidence on record to show that
even an attempt was made to claim additional FSI as
alleged by the prosecution. The learned Judge was of
the view that a bonafide mistake had been made by the
accused in calculating the area and the explanation
given by accused No.1 was probable.
3. It has been observed that the prosecution
witnesses admitted that the plan drawn by accused No.1
showing certain measurements was correct and tallied
with the original map (review sheet). Admittedly, the
original map was not placed on record by the prosecution
as it was lost. The prosecution witness Patwardhan has
admitted during his cross-examination that the plans
prepared by accused No.1 and those prepared by
Prosecution witnesses Deshmukh and Shirwadkar tallied.
The learned Judge has found that mistakes were made
while calculating the area on Vaslewar basis. According
to the prosecution, encroachments were shown in several
places on the land in question which had not been
accounted for while recording the area of the plots.
Admittedly, the external boundaries of the site were
correct. The learned Judge has held that no effort was
made by the accused to obtain additional FSI and on the
contrary the FSI which was available was not fully
utilised. It has been held that mistakes were made by
: 3 :
the officers attached to the FSI cell.
4. Considering the impugned judgment, we find that
the learned Judge has accepted a possible view in the
matter, that accused No.1 had committed bonafide
mistakes while calculating the area. There is no
perversity in the findings recorded by the learned
Judge. There is therefore, no need to grant leave in
the present matter.
5. Application is therefore rejected.
(D.G. DESHPANDE, J.)
(SMT.NISHITA MHATRE, J.)
1 issue framed by the court
Whether leave to appeal should be granted against the Special Judge's finding of no conspiracy between the accused.
2 provisions across 2 enactments
The State of Maharashtra
Shri Prabhakar Tukaram Pokle
D.G. Deshpande
Nishita Mhatre
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court