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Judgment
This appeal is directed under Section 341 of Cr.P.C. challenging the order dated 09.12.2019 passed by IX Additional Sessions Judge, Indore in ST
No. 580/2019 whereby the Court has dismissed the application of the appellant filed under Section 340 red with Section 195 of IPS for taking action
against respondent No.2 & 3 for forging several documents and using them for furnishing bail.
The sum and substance of the application preferred by the appellant before the trial Court is that the appellant had filed a complaint against
Respondent No. 2 & 3 as well as other persons involve in the matter for commission of offence of fraud/forgery and criminal conspiracy for
fraudulently making/using false and fabricated documents as well the offence of forgery of public documents and bank accounts. The complaint has
been registered as crime No. 158/17 u/s 420,465,467,468,471 & 120B of IPC against Respondent No. 2 and charge-sheet has been filed, which is
pending as ST No. 580/2019.
Respondent No. 2 filed an application under Section 439 of the Cr.P.C. accompanied with affidavit of his wife Respondent No. 3 to obtain bail in
the aforesaid matter, but several misleading, false and contradictory with the earlier admitted facts were mentioned and material facts were concealed
deliberately in this application. In affidavit dated 22.10.2013 filed before the Municipal Corporation for correction of name of father of Subhash
Holkar, Respondent No.2 had categorically stated that correct name of father of his maternal uncle Subhash was Govindrao Holkar and not Dattatray
Holkar. In spite of this admission, in the bail application, he mentioned that “(3) .
....’’
Respondent No. 2 conspired with his maternal uncle Subhash during his lifetime and prepared/used forged and fabricated documents and
deliberately represented him (Subhash) before different Courts, Banks and other departments by different identities such as Subhash Borade/Subhsh
Holkar/Subhash Dattatray/Subhash Govindrao. Even after his (Subhash) death, he prepared false and fabricated documents and on that basis
mentioned name of his maternal uncle as Subhash Borade before the Andhra Bank and has thereby obtained wrongful gain. In the bail application
also, to mislead the trial Court and to obtain bail, he (Respondent No.2) suppressed material and admitted facts and mentioned name of his maternal
uncle as Subhash Holkar, Subhash Dattatray Holkar, Subhash Govindrao Holkar and Subhash Dattatray Govindrao Holkar showing himself to be son
of Subhash Holkar and had filed fabricated documents like Voter ID cards to that effect
In bail application and in affidavit filed in support of this application, Respondent No. 2 and 3 have made false averments with respect to their
income. In para 2 of the affidavit; it is falsely mentioned that there is no other earning male member in their family except Respondent No. 2.
But the trial Court failed to appreciate all these facts and documents. Therefore, it is prayed that the impugned order, which suffers from illegality
and perversity, be set aside and the trial Court be directed to take action under Section 340 Cr.P.C. as prayed for or to decide the application of the
appellant afresh.
Reliance has been placed on State of Goa Vs. Jose Maria Albert @ Robert Vales 2018 Cri.L.J. SC 1395, Peela Gangadhar Vs. Add. Munsif
Magistrate Court Anakapalli 2019 Cri.L.J. Hyderabad High Court and Sandeep Gupta Vs. Anuradha Pael @ Anuradha Gupta 2019 Cri.L.J. 4414
M.P. High Court wherein the Courts have held that if preliminary inquiry shows adequate material impelling action, the magistrate is required to take
action.
I have heard the counsel as well as the petitioner, who himself is a practicing lawyer, at length and have perused the record.
The order of the trial Court shows that as per allegations of the petitioner, Respondent Nos. 2 has fabricated Voter Identity Card No.
MP/37/273/60020 and 2 PAN cards No. AIMPH 5338J & AIMPH 5338L with two different father's name and addresses of Subhash and using
them, he opened FD of Rs. 500/- with Paraspar Sahkari Bank and opened saving account with Jawahar Marg Branch of Andhra Bank. By using this
voter I.D. and PAN cards, he purchased a Volks wagen car No. MP 20 CB 3775 and a Scooty bearing registration No. MP 09 SN 0430 and applied
and obtained 2 death certificates of Subhash with 2 different father names. He withdrew some maturity amount of fixed deposit of Subhash.
The record of this case and also of MCRC No. 53125/2019 (bail application of Respondent No. 2 Jitendra Borade) reflects that complainant
Vishal Borade is first cousin or son of brother of father of Respondent No. 2. Subhash Holkar was uncle (mama) or brother of mother of Respondent
No.2. Father of Subash Holkar was Dattatray Holkar and his grandfather was Govind Rao Holkar. As per tradition prevailing in the society, Subhash
Holkar used to mention his father's name, somewhere alone, somewhere with his grandfather's name and some other places used to mention their
names (father and grandfather's names) in abbreviated form. Thus sometime, he was using Subhash Holkar S/o Dattatray Holkar, sometime Subhash
Holkar S/o Govind Rao Dattatray Holkar and sometime Subhash Holkar S/o D.G. Holkar. Subhash died intestate on 08/10/2013. Admittedly he was
treating the petitioner as his son. During his lifetime, he nominated him in his bank and other official documents. After his death, the petitioner applied
for withdrawal of fixed deposits of Subhash Holkar and mentioned his father's name as Datatray Holkar, along with a death certificate obtained in the
same name, but in the bank, there was some difference in the name of father, therefore, bank asked him to get it corrected (death certificate),
therefore, he applied for another death certificate mentioning the father's name as suggested by the bank. Substantially, there appears no difference in
Subash Holkar S/o Dattatray Holkar or Subash Holkar S/o Govind Rao Dattatray Holkar or Subash Holkar S/o D.G. Holkar, as they are one and the
same person. He received Rs.2107.60/- in his bank account from the FDR of Subhash Holkar. Real brother of deceased Subhash Holkar - Santosh,
Hemant and Devdas have never disputed all these facts and have never opposed the action of the petitioner. In his police statement in crime No.
158/17 registered at Police Station â€" Sarafa, District-Indore Brother of Subhash; Captain Santosh has supported the Respondent No.2.
The facts that Subhash was son of Dattatray Holkar and grandson of Govind Holkar and that Subhash had nominated Respondent No.2 in the
bank accounts etc. have not been controverted by the appellant.
There is serious family dispute regarding ancestral property between the petitioner and the complainant. Various civil matters are also pending
between them.
The learned trial Court has dismissed the application of the appellant on the ground that no forgery is committed in the judicial proceedings or in or
in relation to a proceeding in that Court or in respect of a document produced or given in evidence in a proceeding in that Court, therefore, action
cannot be taken under Section 340 Cr.P.C. Nothing contrary is pointed out by the appellant. The law is well settled that action under Section 340
Cr.P.C. can only be taken when any offence described in Section
463 or punishable under Section 471, 475, 476 of IPC is committed in respect of a document produced or given in evidence in a proceeding in any
Court. All the allegations of the appellant are that the private respondents have forged or fabricated some false documents out of Court. These
documents are subject matter of Crime No. 158/17 registered against Respondent No.2 and is pending for trial. But there is nothing to show that any
forgery is committed by the Respondent No.2 & 3 in the court proceedings or in the document produced in the court proceeding. Therefore, there is
no ground for taking a different view than the view taken by the learned trial Court in regard to the complicity of the respondents.
Following the principles of law laid down in the judgments cited by the appellant, the learned trial Court has meticulously analyzed the documents
placed on record. There is no scope to discredit the appreciation as sought by the learned counsel for the appellant. Hence, in the opinion of this Court,
the impugned order deserves to be and is hereby maintained. The admission is declined and the appeal is dismissed as devoid of merits.