Allowed

Shyamrao Govindrao Shinde and Ors. v. Nayan Padmakar Aravade and Anr.

Bombay HC25 Apr 2012APPLN/1014/2010

Case brief

AI extract

What is this about?

The High Court of Bombay, Criminal Side, denied that a bona fide administrative error resulting in a temporary property attachment, subsequently corrected, amounts to cheating, forgery, or using a forged document. The court quashed criminal proceedings and issued process against bank officials.

What did the court decide?

The impugned order directing issuance of process and the criminal proceedings in Regular Criminal Case No.279 of 2007 are quashed and set aside.

Shyamrao Govindrao Shinde and Ors. Vs Nayan Padmakar Aravade… — Quashing and FIR | Bombay HC (2012)

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APPLN-1014.2010

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE – CRIMINAL
CRIMINAL APPLICATION NO.1014 OF 2010

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1. Shyamrao Govindrao Shinde,
 Aged 70 years, residing
 at 2721, “D” Ward, Juna
 Budhwar Peth, Kolhapur.
2. Balaso Ramchandra Mohite,
 Aged 52 years, residing
 at 1072, “E” Ward, Baga
 Chowk, Kolhapur.
3. Vasant Pundlik Chougule,
 Aged 58 years, residing
 at 134, “E” Ward, Vikram
 Nagar, Kolhapur..... Applicants
- Versus -
1. Smt. Nayan Padmakar Aravade,
 residing at Flat No.9,
 Green View Apartment,
 Raman Mala, Kolhapur
 (Original complainant).
2. The State of Maharashtra.... Respondents
Shri M.K. Kocharekar for the Applicants.
Shri S.S. Patwardhan for Respondent No.1.
Shri A.S. Shitole, Additional Public
Prosecutor, for the State.

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Page 1 of 14

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APPLN-1014.2010

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CORAM: R.C. CHAVAN, J.

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DATED: APRIL 25, 2012

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ORAL JUDGMENT:

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1.This application seeks quashing of

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proceedings in Regular Criminal Case No.279 of
2007 pending before the learned Chief Judicial
Magistrate, Kolhapur, initiated on a complaint
filed by respondent No.1.

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matter was directed to be listed for final
disposal at the admission stage. Hence, Rule.
Shri S.S. Patwardhan and the learned Additional

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Public Prosecutor (for short, “APP”) waive
notice on behalf of the respective respondents.
By consent, rule is made returnable forthwith

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and taken up for hearing. Heard the learned
counsel for the parties and the learned APP.

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3.The applicants are the Chairman,

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Page 2 of 14

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APPLN-1014.2010

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General Manager and Special Recovery Officer of

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the Commercial Co-operative Bank, Kolhapur.
Respondent No.1 owned property bearing Survey
No.568 at Village Halaswade, Taluka Karvir,
District Kolhapur. Her husband had stood surety
for a loan taken by one Kishor Shinde. Kishor
Shinde defaulted in repayment of the loan and
in the recovery proceedings the applicants seem
to have attached the property of respondent
No.1 and caused an entry in the Bank's name to
be made in the 7x12 extract of the property.
Respondent No.1 wanted to sell the property for
securing money for her daughter's marriage. The
prospective purchaser published a notice and
then came to know that there was an attachment
of the property by the Bank. This caused loss
to respondent No.1 and therefore she filed a
complaint for offences punishable under
Sections 419, 420, 441, 442, 463, 464, 465 r/w
Section 34 of the Indian Penal code (for short,
“IPC”) against the applicants on 23-9-2005.

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Page 3 of 14

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APPLN-1014.2010

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Initially on 1-10-2005 respondent No.1 was

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examined before a Magistrate and all that
respondent No.1 had stated before the
Magistrate was that the charge of the loan
taken by Kishore Shinde was kept on her
property which prevented her from selling the
property and therefore she should be given
permission to sell the property. The learned
Magistrate seems to have ordered investigation
under Section 156(3) of the Code of Criminal
Procedure. This order was questioned by one of

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the applicants by filing a revision. This
revision application bearing No.96 of 2007 was
allowed by the learned Additional Sessions
Judge, Kolhapur, who set aside the order
directing investigation under Section 156(3).
On 4-5-2007 itself the learned Magistrate seems

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to have ordered issuance of process for
offences punishable under Sections 420, 441,
464 and 465 r/w Section 34 of the IPC. This
order was challenged by filing Revision

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Page 4 of 14

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APPLN-1014.2010

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Application No.147 of 2008 which was rejected
by the order dated 2-1-2010. The learned
Additional Sessions Judge however modified the
order passed by the learned Chief Judicial
Magistrate and process was ordered to be issued

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for offences punishable under Sections 420,
465, 468, 469 and 471 r/w Section 34 of the
IPC.

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4.The Recovery Officer and the Bank
having realised their mistake had already
passed an order on 13-12-2005 removing the
charge on the property of respondent No.1. The
learned counsel for the applicants submits that
the applicants have also tendered an apology to
respondent No.1 for creating such a charge.

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5.The learned counsel for the applicants
submits that there was absolutely no intention
of defrauding respondent No.1 of her property
and that it was a bona fide mistake on the part

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Page 5 of 14

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APPLN-1014.2010

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of applicant No.3 who created a charge on the

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property which did not belong to the borrower

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or the guarantor and that the mistake was
promptly rectified even before the order
directing issuance of process was passed and
therefore he submitted that the impugned order

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may be quashed and set aside. He also submitted
that ingredients of the offences for which
process has been issued are not made out in
these circumstances. The learned counsel for
respondent No.1, on the other hand, submitted
that subsequent removal of charge or an apology
does not wash out the fact that the applicants

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had created a charge on the property of a
person who had nothing to do with the loan and
had thus inconvenienced respondent No.1. He,
therefore, submitted that the applicants ought
to be put to trial. He placed reliance on a
Judgment of the Supreme Court in Ram Narayan

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Popli v. Central Bureau of Investigation,
reported in (2003) 3 SCC 641 and particularly

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Page 6 of 14

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APPLN-1014.2010

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the discussion in paragraphs 372 to 376 thereof
which read as under:

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“372. The expression “intent to defraud” implies conduct coupled with an intention to deceive or thereby to cause injury. In other words, defraud involves two conceptions, namely, the deceit and injury to the person deceived, that is infringement of some legal right possessed by him but not necessarily deprivation of property. The term “forgery” as used in the statue is used in its ordinary and popular acceptation.

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The definition of the offence of forgery declares the offence to be completed when a false document or false part of a document is made with specified intention. The questions are (i) is the document false, (ii) is it made by the accused, and (iii) is it made with an intent to defraud. If at all the questions are answered in the affirmative, the accused is guilty.

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In order to constitute an offence of forgery the documents must be made dishonestly or fraudulently. But dishonest or fraudulent are not tautological. Fraudulent does not imply the deprivation of property or an element of injury. In order to be fraudulent, there must be some

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Page 7 of 14

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APPLN-1014.2010

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advantage on the one side with a corresponding loss on the other. Every forgery postulates a false document either in whole or in part, however, small.

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The intent to commit forgery involves an intent to cause injury. A person makes a false document who dishonestly or fraudulently sings with an intent or cause to believe that the document was signed by a person whom he knows it was not signed.

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A false description makes a document of forgery when it is found that the accused by giving such false description intended to make out or wanted it to believe that it was not he that was executing the document but another person.”

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6.Since in this case process has been
issued only for offences punishable under
Sections 420, 465, 468, 469 and 471 of the IPC,

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it would be necessary to find out whether the
ingredients of these offences are made out by
the complainant. The applicants could have been
proceeded against for cheating had they

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Page 8 of 14

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APPLN-1014.2010

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indulged in activity which is defined as

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cheating under Section 415 of the IPC. There is

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no deception by the applicants of any person or
inducing a person to delivery any property.
Therefore, offence under Section 420 of the IPC

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is not at all made out. Section 465 provides

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for punishment for forgery. Section 468
provides for punishment for forgery for the

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purpose of cheating. Since there is no

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cheating, offence punishable under Section 468
of the IPC is not at all made out. Section 469
speaks of forgery for the purpose of harming
reputation.WhetherrespondentNo.1's

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reputation was harmed because of creation of a
charge on her property would depend on whether

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the creation of such a charge amounted to

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forgery or not. Section 471 makes using as
genuine a document which the accused knows or
has reason to believe to be forged. Whether the
activity which is attributed to the applicants

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amounts to forgery? Forgery is defined under

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Page 9 of 14

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APPLN-1014.2010

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Section 463 of the IPC as making a false
document with the intent to cause damage or
injury 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. This would require a reference to what
amounts to making a false document which is
defined under Section 464 of the IPC. This
reads as under:

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“464. Making a false document.- A
person is said to make a false
document or false electronic record-
First-Whodishonestlyor
fraudulently-

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(a) makes, signs, seals or executes a
document or part of a document;

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(b) makes or transmits any electronic
record or part of any electronic
record;

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(c)affixes any electronic signature
on any electronic record;

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(d) makes any mark denoting the
execution of a document or the
authenticity of the electronic
signature,

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APPLN-1014.2010

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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
authority he knows that it was not
made, signed, sealed, executed or
affixed; or

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Secondly- Who, without lawful
authority,dishonestlyor
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 can
be living or dead at the time of such
alteration; or

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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.”

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There is nothing to show that any of the

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Page 11 of 14

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APPLN-1014.2010

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applicants had dishonestly or fraudulently made

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any document. Their creating a charge by an
order passed by applicant No.3 may be wrong.
But that does not amount to creation of a false
document because the document is not shown to
have been created with the intention of causing

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it to be believed that such a document was
made, signed, sealed and executed by the
authority of some other person than the person
who actually made it. Therefore, since there is
nothing to show that any false representation
was made out by preparing a document to show

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that it was in fact made by some other
authority, there is no question of the
applicants attracting the charge of making a
false document. There is no question of the
applicants altering any document or causing any
person to sign a document which such person
could not have made. Therefore, if there is
nothing to show that the applicants had made
any false document, there would be no question

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Page 12 of 14

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APPLN-1014.2010

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of their having forged any document and if
there is no forgery, there could be no question
of such forgery resulting in harming
reputation.

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7.In view of the above, this seems to be
simply a case of mistake on the part of the
authority which was rectified in good time in
the year 2005 itself. No offence is made out
and therefore there is no warrant to put the
applicants to trial. The application is,
therefore, allowed. The impugned order dated 4-
5-2007 passed by the learned Magistrate in
Regular Criminal Case No.279 of 2007 issuing
process against the applicants for offences
punishable under Sections 420, 441, 464 and 465
r/w Section 34 of the IPC, so also the
proceedings in Regular Criminal Case No.279 of
2007 pending before the learned Chief Judicial
Magistrate, Kolhapur, initiated on a complaint
filed by respondent No.1, are quashed and set

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Page 13 of 14

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APPLN-1014.2010

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aside. Rule is made absolute in above terms.

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 Sd/-
 (R.C. CHAVAN, J.)

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s.suresh

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Page 14 of 14

Shyamrao Govindrao Shinde and Ors. v. Nayan Padmakar Aravade and Anr.

Case brief

What is this about?

What did the court decide?

Shyamrao Govindrao Shinde and Ors. v. Nayan Padmakar Aravade and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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