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2015 DIGILAW 175 (BOM)

Anil v. State of Maharashtra

2015-01-19

S.B.SHUKRE

body2015
JUDGMENT S.B. SHUKRE, J. 1. Heard Mr. M.P. Khajanchi, learned counsel for the petitioners and Mr. M.M. Ekre, learned Additional Public Prosecutor for the respondent/State. 2. Rule. Rule made returnable forthwith. 3. Heard finally by consent. 4. By this petition, the petitioners have sought to challenge the legality and correctness of the order dated 12.12.2013 passed below application (Exh.-83) filed by the prosecution in Criminal Case No.274/2012 initiated by the respondent against the petitioners, for an offence punishable under Section 23 read with Sections 3(1) and 19(3) of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 thereby allowing the application for grant of permission to prove the documents filed on record as per the list of document dated 7.10.2013. 5. This application had been strongly opposed by the petitioners. It was their contention that there was no provision in law to give any opportunity to the prosecution to prove the contents of the documents after cross-examination of main prosecution witness was over. They submitted that allowing of the application would amount to wiping out the effect of cross-examination of the prosecution witness taken on behalf of the petitioners. It was also contended that the attempt being made by the prosecution was only to fill up lacuna in the prosecution case, not permissible under the law. 6. The application, however, was allowed by the learned Magistrate by the order passed on 12.12.2013 stating that the attempt to prove the contents of the documents was nothing but an attempt to lend support to the explanation given by the main prosecution witness, which was already present on record. 7. Learned counsel for the petitioners has submitted that the reasons given by the learned Magistrate in the order dated 12.12.2013 are not at all borne out from the contents of the seven documents, which have been sought to be proved by the prosecution and, therefore, the order impugned in this petition is based upon no material and hence perverse. According to the learned A.P.P. for the respondent/State, prosecution needs to be given an opportunity to prove its case and in this case, there is already an explanation available on record, which is in the nature of voluntary submission made by witness No.1, of the prosecution, Dr. (Mrs.) Anjali Ambatkar, that accused No.1 (petitioner No.1) was authorized by accused No.2 (petitioner No.2) to sign various documents on her behalf. (Mrs.) Anjali Ambatkar, that accused No.1 (petitioner No.1) was authorized by accused No.2 (petitioner No.2) to sign various documents on her behalf. He submits that if the contents of these documents are allowed to be proved, it would only enable the prosecution to strengthen its case that the sonography clinic being jointly owned by the petitioners, the petitioner No.1 or the accused No.1 had the implied authority to sign the documents as well as take various actions not only on behalf of himself but also on behalf of petitioner No.2-accused No.2. 8. The only the reason stated in the impugned order is that since there is a voluntary statement made by PW 1 Dr. (Mrs.) Anjali Ambatkar that accused No.1 is authorized to sign on behalf of accused No.2, the contents of the documents sought to be proved by the prosecution could offer a further explanation to the statement so voluntary made by the witness No.1. This reason, as rightly submitted by learned counsel for the petitioners, is not at all supported by the contents of the documents, seven in numbers, to which my attention has been invited by the learned counsel for the petitioner. Upon perusal of these documents, I could not come across any statement in any of the documents to the effect that the accused No.1 has been authorized by accused No.2 to make any signature anywhere on behalf of accused No.2. Learned Additional Public Prosecutor for the respondent/State also could not show to me any such statement or averment appearing in any of these documents. Therefore, one cannot understand as to how these documents, if allowed to be proved by the prosecution, would help offer further explanation to the said voluntary statement made by the witness No.1 of the prosecution. These documents, even if proved in evidence, would not establish the prosecution case that the accused No.1 did have the authority to make signature on behalf of accused No.2. 9. The contention that the sonography clinic was jointly owned by both the accused or the petitioners must be seen to be supported by the contents of the said documents. Assuming that the said documents do mention about joint ownership and, therefore, can be allowed to be proved in evidence, the matter does not rest there. 9. The contention that the sonography clinic was jointly owned by both the accused or the petitioners must be seen to be supported by the contents of the said documents. Assuming that the said documents do mention about joint ownership and, therefore, can be allowed to be proved in evidence, the matter does not rest there. A further question arises-whether from these documents showing joint ownership could it be inferentially said that the accused No.1 had the implied authority to sign on behalf of accused No.2? Joint ownership of an organization or an institution is one thing, in fact joint ownership of the sonography clinic is not in dispute in the present case, and authority to sign on behalf of and represent another is another thing. Such authority has to be proved by some cogent evidence brought on record by the party contending existence of the authority. Such authority cannot be presumed to be given to one of the co-owners by the other co-owner just because the institution is jointly owned by these persons. As already stated, the document sought to be proved in evidence do not make any reference about giving of any authority by accused No.2 to accused No.1 for making of signature on her behalf. There is also no averment made in any of the documents to the effect that the accused No.1 has been authorized to represent accused No.2 before various authorities. If this is the case, the impugned order would have to be found to be based upon no material and as perverse. 10. Thus, I am, therefore, of the view that the impugned order is perverse and arbitrary, it being founded upon a ground which is not seen to be in existence in the record. 11. Criminal Writ Petition, therefore, deserves to be allowed. Criminal Writ Petition is allowed and the impugned order is quashed and set aside. 12. Learned Magistrate is directed to proceed in the matter in accordance with law. 13. Parties to appear before the learned Magistrate on the date already fixed in the matter. 14. Rule is made absolute, in these terms.