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2005 DIGILAW 1662 (BOM)

NARENDRA MADAN ZAMBRE v. STATE

2005-12-07

M.G.GAIKWAD

body2005
Judgment M. G. GAIKWAD, J. ( 1 ) HEARD learned counsel for respective parties. ( 2 ) RULE returnable forthwith. By consent of parties matter decided at the admission stage. ( 3 ) BY preferring present application applicants accused nos. 2 to 4 and 17 in C. R. No. 148/05 seek relief to quash the said F. I. R. as well as further proceedings arising out of said F. I. R. so far as it relates to the applicants. ( 4 ) ON behalf of the applicants learned advocate Shri Salunke submitted that the applicants were working as public servants. The F. I. R. does not disclose any offence. Respondent no. 3 had no cause of action to lodge the complaint. The learned Magistrate was not justified in forwarding the said complaint and directing the police to register the F. I. R. against the applicant so, the F. I. R. needs to be quashed. On the other hand, Shri Jawarikar holding for shri Naikavare, advocate for respondent no. 3 complainant submitted that the act alleged is not in discharge of official duties but in conspiracy with other accused the present applicants committed offence of forgery. So the F. I. R. should not be quashed. Shri. N. H. Borade, learned A. P. P. also adopted the same arguments. ( 5 ) THERE is no dispute that the present applicants were working as public servants. The allegations made in the complaint are that the applicants who were working as the public servants had no reason to change the record in relation to agricultural lands block nos. 15, 18, 36 and 42 but they have prepared false record and without consent of the complainant and her witnesses changed the record by preparing forged documents. It is alleged that father of respondent no. 3 who was owner of agricultural land died on 24/7/90. However, the accused prepared forged application purporting to be an application of deceased father of original complainant with a prayer to change the record in relation to consolidation scheme and the sold application filed by accused nos. 5 to 15 was forwarded to accused no. l who in turn forwarded the same to T. I. L. R. The present applicants in collusion with accused nos. 5 to 15 prepared false and forged statements of complainant and her witnesses showing their consent for the change and forwarded the same to accused no. 5 to 15 was forwarded to accused no. l who in turn forwarded the same to T. I. L. R. The present applicants in collusion with accused nos. 5 to 15 prepared false and forged statements of complainant and her witnesses showing their consent for the change and forwarded the same to accused no. l for correction of record. Accused no. l issued orders and directed the Talathi to carry out corrections. On these allegations respondent no. 3 alleged that accused have committed offence of forgery as well as cheating punishable under sections 464, 465, 468, 470 and 420 r. w. 34 of I. P. C. ( 6 ) THE learned Magistrate after receipt of complaint forwarded the complaint to the investigating officer directing investigation. The order came to be passed u/s. 156 (3) of Cr. P. C. and at the same time, directed the police to register the F. I. R. Petitioners challenged this order to be illegal and sought relief to quash the F. I. R. registered by investigating officer. ( 7 ) IT has been submitted that the present applicants have not committed any office. They are quasi judicial authorities acted in discharge of their duties. No document is forged, so the learned Magistrate ought to have refused to take cognizance. However without examining the complaint, he gave direction to register F. I. R. On behalf of respondent no. 3 original complainant, affidavit in reply is filed stating that the Magistrate has not committed any illegality in directing investigation. It is submitted that when the investigation is in progress and no illegality is being found committed this is not a fit case to exercise extra ordinary jurisdiction to struck down the F. I. R. ( 8 ) ON behalf of respondent no. 3 original complainant reliance is placed on the decision of this court in the case of Limbraj Raman Yede v. State of Maharashtra and others in support of their contention that only settlement commissioner is competent authority to effect correction in the scheme of consolidation, so the act of present petitioners is without jurisdiction to carry out any corrections, and that act cannot be said to be in discharge of their duties. In this case, it has been held that settlement commissioner is the only competent authority to effect corrections within reasonable time and Superintendent of Land Records is not competent authority to effect corrections in consolidation scheme. ( 9 ) SHRI Salunke, learned advocate placed on record Government notification dated 5/2/2000 and submitted that the Government in exercise of powers under Section 34 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter referred to as the said Act) delegated the powers to Superintendent of Land Records of all the Districts in Maharashtra State. According to him, under the statute itself under Section 34 of the said Act, the Government is having power to issue notification vesting the jurisdiction in the Collector or any other officer in relation to any area to exercise the powers of settlement commissioner end exercising the powers under this Section the government has issued notification appointing the Superintendent of land Records to exercise the powers under Section 31 (A) of the said Act. Perusal of Section 34 of the said Act makes it clear that the Government is having authority by issuing notification under official gazette in vesting the Collector or any other officer of the rank of Consolidation Officer to exercise the powers of Settlement Commissioner. The powers to carry out corrections in the consolidation scheme were given to Settlement commissioner. By notification referred to above, the said powers are given to S. L. R. This notification does not appear to have been placed on record when the above referred matter was decided. Reading the provisions under section 31 (A) of the said Act this Court held that only Settlement commissioner is the competent authority to carry out the corrections but in view of the above referred notification as the powers have been delegated to S. L. R. he is the competent authority to carry out the corrections. So the order if any passed by S. L. R. cannot be said to be without jurisdiction and on that count it cannot be said that the alleged act was not in discharge of their official duty. ( 10 ) SHRI Salunke learned advocate submitted that in the present matter, no order has been passed by any one of the applicants and no document is forged. ( 10 ) SHRI Salunke learned advocate submitted that in the present matter, no order has been passed by any one of the applicants and no document is forged. So this complaint is nothing but a pressurise tacktice on the applicants before whom the proceeding for correction was pending. So this is nothing but abuse of process of law, hence, F. I. R. needs to be quashed, in the complainant allegations are made that father, of respondent no. 3 died in 1990 but forged application with the signature of deceased person was prepared and an of offence of forgery has been committed. Those allegations were found without any substance. Copy of the said application is produced on record which shows that on behalf of father of respondent no. 3 her brother Shivaji Khandu Gaikwad submitted that application with his signature and it is not a case that signature of deceased is forged. Another allegation made in the complaint is that false statement of complainant and her witnesses were prepared to show their consent for correction. It has been pointed out that in the enquiry no such statements were found prepared. Copy of statement alleged to have been recorded by T. I. L. R. is produced on record at Exh. "c". Exh. "c" is alleged to be a statement of concerned land holders who gave consent for contention In the consolidation scheme. Initially the names of many persons who are the owners or holders of the properties are mentioned and the names with the signatures of the persons who gave consent for such corrections were mentioned separately. Name of Shivaji Khandu gaikwad the brother of the complainant with his signature is mentioned. However, nowhere the complainant or his 3 witnesses were shown to be the consenting parties for this correction. So there is no substance in the allegations that false statement of complainant or her witnesses have been recorded. So allegations in the complaint that forged statement of complainant and her witnesses were prepared are without any substance. ( 11 ) THE T. I. L. R. submitted his report to Superintendent of Land records which is produced at Exh. "e". In the said report he has mentioned that the notices were sent to the concerned persons is by post. He also verified the situation existing on the spot and forwarded all the papers to superintendent of Land Records. ( 11 ) THE T. I. L. R. submitted his report to Superintendent of Land records which is produced at Exh. "e". In the said report he has mentioned that the notices were sent to the concerned persons is by post. He also verified the situation existing on the spot and forwarded all the papers to superintendent of Land Records. Thereafter, the Superintendent of Land records issued order dated 22. 2. 05 wherein he has mentioned that in exercise of the powers under Section 31 (A) of the said Act he is passing the order under Rule 28 for corrections further ordered that after calling objections report be submitted to him. This appears to be a provisional declaration about the correction and objections for the corrections were called and in case there are no objections final notification about the correction is ordered to be issued. It is also pointed out that this complainant after this provisional notification filed objection on 16/3/2005 and thereafter no final notification is issued. So it is clear that no final order has been passed but enquiry is going on and the authorities concerned will take appropriate decisions on the objections submitted by complainant. As such in the present matter, no order is being found passed directing the corrections. ( 12 ) IT is also pointed out that the complainant who claims to be one of the sharers has already transferred her share in the property in favour of one Trivenibai. Copy of the sale deed executed by her is also produced on record. So it can be very well said that now she has no interest in the property. ( 13 ) ON behalf of complainant respondent no. 3 reliance was placed on the decision of Apex Court in support of their submission that the powers under Section 482 Cr. P. C. should not be exercised to quash F. I. R. On perusal of the judgment of the Apex Court it is clear that the powers under Section 482 Cr. P. C. can be exercised to quash the F. I. R. in case F. I. R. do not disclose commission of offence without anything being added or subtracted from the recitals therein. Two more decisions were also cited on behalf of the complainant. P. C. can be exercised to quash the F. I. R. in case F. I. R. do not disclose commission of offence without anything being added or subtracted from the recitals therein. Two more decisions were also cited on behalf of the complainant. But the ratio laid down in the recent judgment referred above makes it clear that if the F. I. R. do not disclose commission of any offence, then, the powers under Section 482 Cr. P. C. can be exercised. As discussed to above, in the present matter, forgery was alleged at two stages i. e. (1) that application in the name of deceased father of complainant was submitted and (2) though there was no consent of complainant her forged statement was prepared. But the application was not found forged as it was signed by the brother of the complainant, who is one of the sharers inherited share after the death of the father. No forged statements were found prepared in the nature of consent of complainant or her witnesses for carrying out the correction. No final order is yet passed. On the contrary objections of all concerned were called for the alleged corrections. As such complaint did not disclose any offence. Present applicants while exercising their quasi judicial powers conducted enquiry and passed provisional order, so it is an act in discharge of their official duty. No document was found forged so the allegations made in the complaint by itself do not disclose any offence. So this complaint filed by respondent no. 3 is found to be abuse of provisions of law. In these circumstances, F. I. R. needs to be quashed to the extent of present petitioners by allowing this application. ( 14 ) IN the result. Criminal Application is allowed. The F. I. R. in c. R. No. 148/05 is hereby quashed to the extent of present applicants. Rule made absolute in the above terms. Application allowed