Allowed

Dr. Nilesh Vinayak Marathe v. the State of Maharashtra and Anr.

Bombay HC8 Mar 2018APPLN/244/2018

Case brief

AI extract

What is this about?

The High Court allowed the constitutional writ petition filed by a medical practitioner challenging his criminal prosecution. The court found insufficient evidence to prove forgery or fabrication of documents regarding the allotment of municipal properties. Consequently, the discharge application was deemed to be correctly dismissed by the lower judiciary, and the petitioner was discharged.

What did the court decide?

Orders of Judicial Magistrate and Additional Sessions Judge are set aside; petitioner is discharged.

Dr. Nilesh Vinayak Marathe Vs the State of… — Criminal Trial and Appeal | Bombay HC (2018)

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WP 521 17.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO. 521 OF 2017
WITH CA/244/2018 IN WP 521/2017.

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Dr. Nilesh Vinayak Marathe,
Age 34 years, Occ. Medical
Practitioner, R/o. Vivekanand ...Petitioner.
Nagar, Bhadgaon Road, Pachora
Tq. Pachora, Dist. Jalgaon.
VERSUS.

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1 The State of Maharashtra.

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2 Vishnu Mahadu Sonar, Age 55 years, Occ. Agril. & Business, R/o. Gandhi Chowk, Pachora, Tq. ... Respondents . Pachora, Dist. Jalgaon.

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...

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Learned Senior Counsel for Petitioner : Mr. V.D. Hon,
h/f Mr. A.V. Hon.

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APP for Respondent No. 1 : Mr. G.O. Wattamwar.
Advocate for respondent No. 2 : Mr. Rajendra Dayma.

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CORAM: K. L. WADANE, J.
Reserved on :01st March, 2018.
Pronounced on :08th March, 2018.

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JUDGMENT

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1. Rule. Rule made returnable forthwith. By

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consent of the learned counsel for both parties, this
petition heard finally.

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2. The present petition is filed by the petitioner

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being aggrieved with the order passed by the learned

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Additional Sessions Judge, Jalgaon, in Criminal

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WP 521 17.odt

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Revision Application No. 289/2013, dated 13.12.2016, by
which the revision application of the present
petitioner is rejected and the order passed by the
Judicial Magistrate, First Class, Pachora in Reg.
Criminal Case No.57/2011 dated 23.10.2013 is confirmed.
3.Petitioner is a medical practitioner. The
respondent No. 2 filed a private complaint in which
directions were issued under section 156(3) of the Code
of Criminal Procedure. The investigation was conducted
and charge-sheet has been filed for the offences
punishable under section 409, 406, 420, 467, 468 read
with section 34 of the Indian Penal Code. The
petitioner preferred an application for discharge
before the trial court which is also dismissed.

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4. The petitioner is happened to be the son of Ex-
Municipal councilor and it is alleged that Municipal
Council is having its commercial complex at Pachora,
known as 'Supdu Bhadu Patil Shopping Complex'. The
Municipal Council lent Gala No. 104, 105, 108 and 109
to Shri. Agrasen Urban Co-Operative Credit Society,
Pachora (hereinafter referred as 'the Society') on rent
basis, on certain terms and conditions. It is further

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alleged by the prosecution that taxes of said Galas
were remained due. As a result of which Pachora

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WP 521 17.odt

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Municipal Council had sealed all the four Galas. It is
further alleged that the Society had gone in
liquidation and a liquidator is appointed on it.

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5.It is further alleged that accused No. 2 Sunil
Mor in the capacity of Chairman of the Society had
unauthorizedly given no objection certificate of said
Galas by preparing forged documents.

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6.I have heard the arguments of Mr. Hon, learned
senior counsel for petitioner, Mr. Wattamwar, learned
APP for respondent No. 1 and Mr. Dayma, learned counsel
for respondent No. 2.

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7.Mr. Hon, learned senior counsel for petitioner
argued that petitioner is a doctor by profession and he
obtained four Galas No. 104, 105, 108 and 109 in the
Municipal Council complex Pachora, after following due
process of law. He deposited the rent/fess levelled
by the Municipal Council for the allotment of the
aforesaid Galas. Mr. Hon, learned senior counsel,
further argued that basically the above said Galas are
belonging to the Municipal Council Pachora. Initially,
those Galas were lent to the Society on rent basis.
The Society failed to abide the terms and conditions
of the contract took place between it and the Municipal

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Council and after resolution of the Municipal Council,

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WP 521 17.odt

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the Galas were allotted/transferred to the petitioner.

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8.Mr. Hon, learned senior counsel for petitioner
further points out that father of the petition and the
original complainant i.e. respondent No. 2 were the
councilors of the Municipal Council, Pachora. The
father of the petitioner filed a complaint before the

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District Magistrate, Jalgaon. On the basis of the
complaint filed by the father of the petitioner, the
respondent No. 2, who was councilor of the said
Municipal Council was disqualified on the ground that
he has not followed the whip. Mr. Hon, learned senior
counsel for petitioner has produced on record the copy
of the order passed by the District Magistrate,
Jalgaon, dated 02.04.2011, which is taken on record.

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9.Mr. Hon, learned senior counsel, by referring
the above documents submitted that there is political
rivalry between the petitioner, his father and the
original complainant/respondent No. 2. So the present
complaint is out-come of the political rivalry. Mr.
Hon, learned senior counsel, further argued that the
allegations against the petitioner are that he along
with accused No. 2 Sunil Mor in furtherance of their

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common intention have forged certain documents
particularly no-objection certificate issued by accused

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WP 521 17.odt

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No. 2 Sunil Mor, dated 03.11.2009, and they succeeded
in getting allotment of the aforesaid Galas. It is
further alleged that accused No. 2 Sunil Mor was not
the Chairman of the Society. Already the liquidator
was appointed and inspite of the knowledge of the same,
the accused No. 2 Sunil Mor has given a false no-
objection certificate addressed to the Municipal
Council, Pachora. It is further alleged that the order
of allotment was made on 12.11.2009, however, before
that, the Municipal Council executed an agreement in
favour of the petitioner, so also, petitioner has
deposited the fees/rent with the Municipal Council

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prior to the order of the allotment letter. Therefore,
according to complainant/respondent No. 2, all these
documents were fabricated by the petitioner and accused
No. 2 in order to get the possession of the aforesaid
four Galas.

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10.Learned counsel for respondent No. 2 has argued
that the respondent No. 2/original complainant was Ex-
President of the Municipal Council Pachora and in the
capacity of a citizen he has a right to file complaint
against accused persons, who had taken dis-advantage on
the basis of the forged documents.

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11.Learned counsel for respondent No. 2 relied

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WP 521 17.odt

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upon the observations in case reported in 1984 DGLS (SC) 41 (A.R. Antulay Vs. Ramdas Nayak) and 2012 DGLS (SC) 67 (Subramanian Swamy V/s. Manmohan Singh and another) . Both cases were related to the charges of corruption. In which it is held that there is no provision in the Code of Criminal Procedure which bars a citizen from filing a complaint against a public servant who alleged to have committed the offence.

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12. In the present case the petitioner is not a
public servant. However, that is not an important
question to be determined here. What is to be
considered is that whether there are sufficient grounds
against the petitioner to frame charge and to proceed

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with the trial. It is material to mention that
petitioner is charged for the offences punishable under
sections 406, 409, 419, 420, 467, 468, read with
section 34 of the Indian Penal Code.

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13.During the course of arguments it was not
clarified on behalf of the respondents that which
documents the petitioner has forged. The entire
arguments were concentrated on the aspect of the

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fabrication of the documents and on the basis of which

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the petitioner is succeeded in getting the four Galas.
Considering the material aspect, it appears that the

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WP 521 17.odt

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prosecution has alleged that the petitioner and accused
No. 2 Sunil Mor have given no-objection certificate
dated 03.11.2009. The copy of the same is available in
the papers of investigation, from the same it appears
that accused No. 2 showing to be a chairman of the
Society addressed a letter to the Chief Officer,
Municipal Council, Pachora in reference to the transfer
of the Galas No. 104, 105, 108 and 109. In reference to
the above subject it was communicated to the Chief
Officer of Municipal Council Pachora that the Chairman

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has no objection to transfer the aforesaid Galas. On
bare perusal of the aforesaid document it appears that
the petitioner has not signed the document, nor he is
a party to that document, nor this document either
signed by the petitioner or it was communicated to the
petitioner. If at all this document is said to be a
fabricated document, then prima-facie the accused No. 2
is responsible for the same.

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14.I have carefully gone through the statement of
witnesses. From the statement of witnesses it appears
that the Municipal Council Pachora was not informed by
the Society that a Liquidator was appointed long back.
Further it reveals from the statement of one Girish
Patil that the Society has executed an agreement in

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WP 521 17.odt

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his favour on 16.11.2002 and possession of the Galas
were handed over. But subsequently the rent amount to
the extent of Rs. 2,25,000/- were due, therefore, the
Municipal Council has taken possession of the aforesaid
Galas and transferred the same to the petitioner. On
perusal of his statement dated 24.04.2011 it appears
that he has stated in his statement before the police

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that rent amount to the extent of Rs. 2,25,000/- was
due therefore the Municipal Council has sealed the
aforesaid Galas and subsequently the Municipal Council
had taken the possession of the aforesaid Galas and
thereafter for completion of the process this witness

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and Municipal Council obtained a no objection
certificate from accused No. 2 Sunil Shankarrao Mor.

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Marathi version of that particular sentence reads as

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follows :

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“ eh o uxjikfydsus gLrkarj.k izfdz;k iq.kZ dj.;klkBh lqfuy 'kadjyky eksj ;kapsdMwu ukgjdr nk[kyk ?ksryk gksrk ”

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So on plain reading of the statement of the aforesaid

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witness it appears that this witness and Municipal
Council had obtained no objection certificate from
another accused Mr. Mor. Therefore, there is no remote
reference in the statement of any witness that the
petitioner has forged any documents regarding no

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objection certificate. On the contrary it appears from
the record that the Municipal Council has after passing
resolution and after accepting the rent/fees has
allotted the aforesaid Galas.

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15.Learned counsel for respondent No. 2 argued
that the allotment letter was issued to the petitioner
on 12.11.2009. However, entire process of allotment of
the Galas was completed between petitioner and
Municipal Council on 03.11.2009. On perusal of the
papers of investigation it appears that the Municipal
Council has executed an agreement of rent in favour of
petitioner on 03.11.2009. The fees was accepted on the
same day. Therefore, it appears that, the entire
process was completed on 03.11.2009. However, the
allotment letter was issued subsequently on 12.11.2009.
At the most that can be treated as a procedural lapse
on the part of the parties to the contract i.e.
petitioner and the Municipal Council. However, that
does not mean that the petitioner has fabricated or
forged certain documents.

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16.On perusal of the reasons recorded by the
learned Magistrate it appears that the Magistrate has
observed that there is nothing on record at the stage

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to hold that the charge against both the accused will

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WP 521 17.odt

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be groundless. Similarly, learned Sessions Judge has
observed in its order that accused No. 2, who was the
then Chairman, issued letter dated 03.10.2009 to the
Chief Officer, Municipal Council, Pachora for making
transfer of the Galas to the concerned Society. In
fact, prior to it, the society was already seized under
liquidation, thereby it ought to have been issued with

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the consent of the Liquidator. Even the reasons and
observations of the Sessions Judge appears to be
against the accused No. 2 Sunil Mor.

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17.So after scrutiny of the entire record, there
is no evidence to show that the petitioner had
fabricated or forged any document in reference to the

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no objection certificate issued by the then Chairman of
the Society i.e. accused No. 2 Sunil Mor.

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18.In such circumstances, following order is

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passed.

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i) Writ Petition is allowed.

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ii) Order passed by Judicial Magistrate First

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Class below Exh. 33 in Regular Criminal Case No.
57/2011 and the order passed by the Additional
Sessions Judge in Criminal Revision Application

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WP 521 17.odt

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No. 289/2013 on 13.12.2016 are set aside and the

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petitioner stands discharged.

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19. Rule is made absolute in the above terms. Writ
Petition is accordingly disposed of. No costs.

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20.Criminal Application No.244/2018 stands disposed
of.

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(K. L. WADANE, J.)

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mkd

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Dr. Nilesh Vinayak Marathe v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Dr. Nilesh Vinayak Marathe v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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