Nandkishor Sharma vs State Of Maharashtra & Anr.

Heard. Admit. Heard finally by consent of learned counsel appearing for the parties.

This is an application filed under Section 482 of the Criminal Procedure Code for quashing of the First Information Report in Crime No.186/2019, registered with non-applicant No.1, for the offences punishable under Sections 468, 471, 506 read with Section 34 of the Indian Penal Code against the applicants and also prays for quashing the R.C.C. No.410/2022 pending before the 3^rd Joint Civil Judge, Junior Division and Judicial Magistrate, First Class, Hingna.

The facts leading to the filing of the First Information Report can be stated as under :

That the non-applicant No.2 filed a First Information Report with the non-applicant No.1 that he has purchased a land bearing Khasra No.46, admeasuring 2.02 hectare from M/s. Orange City Casting on 29.1.2001 vide registered sale-deed and, thereafter he continued to be the owner thereof. He further states that on 12.8.2006 one Mr. Udai Keshavrao Bhagat, who is Proprietor of Udai Photo Studio lodged a complaint in M.I.D.C. Police Station, Nagpur that prior to six months before the applicant No.2 took him to area called Nildoh and asked him to capture photos of the land and asked for a bill therefor. However, applicant No.2 asked for a backdated bill i.e. the bill mentioned date of 23.1.2005. Thereafter also after some days the applicant No.2 brought some photos to Udai Bhagat and took a bill therefor in spite of the fact that said photos were not clicked by said Udai Bhagat.

The First Information Report further alleges that there was a civil suit pending before non-applicant No.2 and the applicant No.2. In the said civil suit the said forged photos were used as genuine one. The non-applicant No.2 further states that on perusing the record of the said civil suit, it was found that those were used in the said civil suit and the backdated bill was also used as a genuine one. On the basis of these allegations, offence under Sections 468, 471, 506 and 34 of Indian Penal Code was registered against the applicants. It is this First Information Report which is impugned in the present application on the grounds stated in the application.

We have heard Mr.P R. Agrawal, learned counsel for the applicants and Ms. Shamsi Haider, learned Additional Public Prosecutor for the non-applicant No.1.

Mr. P.R. Agrawal, Learned counsel for the applicants submits that lodging of the First Information Report is nothing but gross abuse of the process of the Court and a bare reading of the averments made in the said First Information Report do not make out any case against the applicants. He further states that there is inordinate delay in lodging the F.I.R. even in the averments in the First Information Report are taken on their face value. He relies on judgment reported in AIR 2023 SC 102 (Hasmukhlal D. Vora and another Vs. State of Tamil Nadu), AIR 2023 SC 2710 (Chanchalpati Das Vs. State of West Bengal and another), MANU/SC/0086/1965 (S. Dutt Vs. State of Uttar Pradesh), AIR 1963 SC 1572 (Dr. Vimla Vs. The Delhi Administration), AIR 2019 SC 2280 (Sasikala Pushpa and others Vs. State of Tamil Nadu) to buttress his submission that there is an inordinate delay in lodging the F.I.R. and that even the offences complained of are not made out. He, further submits that assuming the entire thing in the application to be true, the suit in question i.e. Special Civil Suit No.581/2006 is compromised between the parties way back on 7.10.2008 and accordingly the suit was disposed of on 10.10.2008. The copy of the said civil suit, as also the compromise petition is placed on record.

Per contra, learned Additional Public Prosecutor opposes the contentions advanced by the learned counsel for the applicants and states that even if the suit is disposed of, there is material on record such as the statement of Ashok Dattatraya Joshi who is approved valuer, who in his statement has stated that the applicant No.2 has asked him to make valuation report by suppressing some documents regarding the property. She further points out to a statement of Milind Meghraj Bhole, who at the relevant time was working as Deputy Superintendent in the Office of Land Records, Hingna, wherein he states that there is some overwriting in the notice issued by the Office. She, therefore, states that there is ample material on record to show the involvement of the applicants in the present crime which requires investigation.

In the backdrop of these facts we have appreciated the rival contentions. As can be seen from the First Information Report in question it is lodged on 31.3.2019 for the alleged offences committed in the year 2006. We are at pains to understand that how a person, namely, Udai Keshavrao Bhagat, who allegedly made a complaint to the Police Station M.I.D.C. would give a reason/cause to the non-applicant No.2 to be aware of the fact in the year 2019. In our view therefore, as can be seen from the record that there is an inordinate delay in filing the said First Information Report. As rightly relied by the learned counsel for the applicants, the Hon’ble Supreme Court in the case of Hasmukhlal D. Vora and another Vs. State of Tamil Nadu, reported in AIR 2023 SC 102 has made following observations in this regard. Para Nos.23,24,25,26 and 27 are reproduced as under :

Furthermore, the Hon’ble Apex Court in the judgmen in the case of Chanchalpati Das Vs. State of West Bengal and another reported in AIR 2023 SC 2710 has recorded as under :

In that view of the matter, if the facts in the present case are analyzed, the First Information Report lodged in the year 2019 for an alleged incident in 2006 is inordinately delayed. Furthermore, there is no explanation in the First Information Report regarding the source of knowledge to the non-applicant No.2. True, it is that the First Information Report cannot be an encyclopedia of the facts. However, even if the statements recorded by the Investigating Agency and the other material filed along with the charge-sheet, there is nothing to show that how allegedly false photographs clicked way back in the year 2006 was a source of knowledge to the non-applicant No.2 for lodging a First Information Report in the year 2019. We are aware of the law as stated by the Supreme Court that the delay in itself cannot be a reason to quash the First Information Report. However, we are not oblivious of the fact that it can certainly be an aspect which would have an effect while deciding the veracity of the allegations made in the First Information Report. Thus, the delay in lodging the First Information Report not being explained leave apart properly explained would raise a serious doubt about the veracity of the allegations made therein.

Coming to the merits of the matter, admittedly, the suit in which the allegedly forged documents are used has been compromised between the applicant No.2 and non-applicant No.2. In the said compromise petition, the plaintiff therein i.e. applicant No.2 has waived all the allegations made in respect of alleged interpolation of documents of the DIC and has stated that he would not claim any right in respect of the suit property. In nutshell, he acknowledges the rights of the non-applicant No.2 therein. It is, therefore, clear that assuming that some forgery has been created, the non-applicant No.2 was well aware of the same or had reason for being aware of the same. The non-applicant No.2 it seems, has taken advantage of the compromise petition, wherein the applicant No.2 has relinquished all his rights over the property and now has decided to drag him in a criminal trial that too after a gap of more than 12 years. This raises a serious doubt about the veracity of the allegations in the F.I.R. and we are constrained to observe that this is nothing but to abuse of process of Court.

Learned counsel for the applicants states that by relying on a judgment of Dr. Vimla Vs. The Delhi Administration reported in AIR 1963 SC 1572 states that "defraud" includes an element of deceit. Deceit is not an ingredient of the definition of the word "dishonestly" while it is an important ingredient of the definition of the word "fraudulently". The former involves a pecuniary or economic gain or loss while the latter by construction excludes that element. Further, the juxtaposition of the two expressions "'dishonestly" and "fraudulently" used in the various sections of the Code indicates their close affinity and therefore the definition of one may give colour to the other. To illustrate, in the definition of "dishonestly", wrongful gain or wrongful loss is the necessary ingredient. Both did not exist. One would be enough. So too, if the expresssion "fraudulently' were to be held to involve the element of injury to the person or persons deceived, it would be reasonable to assume that the injury should be something other than pecuniary or economic loss. Though almost always an advantage to one causes loss to another and vice versa, it need not necessarily be so. Should we hold that the concept of fraud" would include not only deceit but also some injury to the person deceived, it would be appropriate to hold by analogy drawn from the definition of "dishonestly" that to satisfy the definition of "'fraudulently" it would be enough if there was a non- economic advantage to the deceiver or a non-economic loss to the deceived. Both need not co-exist.” Furthermore, as relied by the learned counsel for the applicants, the Hon’ble Supreme Court in the case of Sasikala Pushpa and others Vs. State of Tamil Nadu, reported in AIR 2019 SC 2280 after analyzing the statutory provision under Sections 463 and 471 of the Indian Penal Code has held that there was no intention to defraud or to cause any one to act to his dis-advantage because the document in question was brought voluntarily.

In that view of the matter, we are of the considered opinion that continuance of proceedings would amount to an abuse of process of Court against the applicants. We therefore, pass the following order :