ORAL JUDGMENT:
Heard Mr. S.S. Dhengale, the learned counsel for the petitioner, Mr. M.K. Pathan, the learned APP for respondent and Mr. D.N. Mehta, the learned counsel on behalf of the complainant - first informant.
2. The petitioner is arraigned as accused 2 in the final report, submitted by the Hingna Police Station, in connection with Crime 115/2008, registered under sections 420, 468, 471, 120-B read with section 34 of Indian Penal Code ("IPC").
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3. The petitioner, who shall be referred to as the accused hereinafter, preferred an application under sections 227 and 228 of the Code of Criminal Procedure, 1973 ("Code") seeking discharge. The learned Judicial Magistrate First Class, Hingna was pleased to reject the said application vide order dated 20.9.2013. Dissatisfied, the accused preferred Criminal Revision Application 235 of 2014, which is dismissed by judgment dated 14.7.2016, rendered by Additional Sessions Judge-9, Nagpur.
4. Being aggrieved by the concurrent view of the Courts below, the accused is invoking writ jurisdiction.
5. The thrust of the submission canvased by the learned counsel for the accused Mr. S.S. Dhengale is that even if the record of the case and the documents submitted therewith, is taken at face value, there is no sufficient ground for proceeding against the accused and that the learned Magistrate committed a serious error in holding otherwise.
6. Per contra, Mr. M.K. Pathan, the learned APP and Mr. D.N. Mehta, who is heard on behalf of the complainant - first informant, would argue that while considering an
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application seeking discharge, the Court is not expected to weigh the probative value of the evidence and it would suffice if accepting the contents of the report and the material placed on record alongwith final report submitted under section 173 of the Code, there is scope to "presume" that the accused has committed the offence. Mr. D.N. Mehta is relying on the decision in Ajay Aggrawal vs. Union of India and Ors, [(1993)3 SCC 609 to inter alia buttress the submission that for an offence under section 120-B of the IPC, the prosecution need not necessarily prove that the conspirators expressly agreed to do or cause to be done the illegal act and that the agreement may be proved by necessary implication. Mr. D.N. Mehta would emphasize that conspiracy is a substantive offence and it would be rarely, if at all, possible to prove conspiracy with the aid of direct evidence. Extending the submission further, Mr. D.N. Mehta would argue that conspiracy is essentially a matter of inference to be drawn from the cumulative effect of the material and circumstances on record. Mr. D.N. Mehta made a strenuous effort to persuade me to hold, by inviting my attention to the material on record, that there is sufficient cause to compel the accused to face trial for the offence of criminal conspiracy. The material to which my attention is
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drawn by Mr. D.N. Mehta shall be considered, at a later stage in the judgment.
7. The crime is registered on the basis of report dated 28.5.2008, lodged by the complainant with the Police Station, Hingna.
8. It is discernible from the complaint dated 28-5- 2008 that virtually every overt act, which is the basis of the alleged grievance, is attributed to co-accused Vijay Naidu who is described as the representative of M/s. Laxmi Land Developers. The gist of the complaint is that Vijay Naidu purchased land admeasuring 1.40 acres from Khasra 46 and Khasra 47 vide sale-deed dated 27-3-1998 and then obtained sale-deed of land admeasuring 1.75 acres purportedly from Khasra 46 and Khasra 47 on 28-12-1998. According to the complainant, in connivance with the Revenue Officers, Vijay Naidu ensured that the revenue record is mutated by referring to only Khasra 47 which effectively increased the area of the said khasra number on paper. Several other allegations are made in the complaint against Vijay Naidu pertaining to manipulation of revenue record and map/s. Finally, the
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complainant accuses Vijay Naidu and other co-accused of obtaining forcible possession of the portion of Khasra 46 which is owned by the complainant. Notably, there is absolutely nothing in the complaint which attributes any specific muchless overt role to the petitioner/accused in the manipulation of record by Vijay Naidu or then in the alleged forcible dispossession.
9. Accepting the contents of the complaint at face value, in my considered view, there is no material on record to warrant a trial against the petitioner-accused. Virtually every allegation is against co-accused Vijay Naidu. In so far as the petitioner is concerned, the first relevant statement is that Vijay Naidu took forcible possession of portion admeasuring Khasra 46 by joining hands with the petitioner, co-accused Pankaj Nandlal Agrawal and others. The next reference to the petitioner in the complaint is to the effect that the petitioner is related to the complainant and is, therefore, aware of the details of the property owned by the complainant and he conspired with the co-accused. The complaint incorporates only a bald allegation which at best is in the realm of suspicion. Nothing is disclosed in the complaint as would throw light on
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the basis of the suspicion that the petitioner entered into a conspiracy with the co-accused to cause wrongful loss to the complainant.
10. A strong suspicion can undoubtedly be the basis for framing charge. However, the suspicion must be based on some credible material. Prosecution or trial is a serious matter and a person cannot be forced to undergo the trauma of trial merely on the basis of fanciful suspicion which is not based on any credible material. All that the complaint states is that the petitioner is aware of the details of the property of the complainant and that he entered into a conspiracy with the co- accused. It is not even the case of the complainant that the petitioner played some overt or visible role in the alleged manipulation of the record or then in the alleged forcible dispossession.
11. The learned Counsel Mr. D.N. Mehta for the complainant would submit that sufficient material is collected during the course of the investigation to justify framing of charge against the petitioner. It is submitted that during the course of the investigation, it is revealed that the petitioner was
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using Cell Phone 9923793989 and was in continuous touch with the co-accused and his family members. The learned Counsel further submits that since the petitioner was aware of the existence of the sale-deed dated 14-5-2008 executed in favour of Mr. Naresh Agrawal and Mr. Aniruddha Kar pertaining to portion of Khasra 47, an inference that the petitioner was involved in the conspiracy can be drawn. I am afraid that neither of the two circumstances is even prima facie sufficient to draw an inference that the petitioner was involved in conspiracy with the co-accused to cause wrongful loss to the complainant. It is then submitted that the petitioner has an axe to grind and to harm the complainant. A reference is made to certain litigation and the averments in the suit plaint in Civil Suit 2/2021 instituted by the complainant. I have bestowed due consideration to the submission of the learned Counsel Mr.D.N. Mehta, and I am not inclined to hold that the material in the charge-sheet is sufficient to put the petitioner to trial.
12. Mr. D.N. Mehta relies on the decision of the Apex Court in Ajay Agrawal v. Union of India and others, (1993) 3 SCC 609 and decision of the learned Single Judge of this Court in Criminal Writ Petition 3705/2018, Prakash C. Sheth v. State
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of Maharashtra and another. Ajay Agrawal v. Union of India and others, is an authority for the proposition that criminal conspiracy is itself a substantive offence and that every conspirator need not know all the details of the scheme. In Prakash C. Sheth v. State of Maharashtra and another, the learned Single Judge was considering the legality of the order of the trial Court whereby the original complainant was allowed to intervene in the revision petition preferred by the accused challenging the rejection of discharge application. While there cannot be any quarrel with the proposition that the conspirator need not be aware of every detail of the conspiracy, the decision of the Apex Court does not take the case of the complainant any further, inasmuch as the bald statement that the petitioner is involved in the conspiracy is not even prima facie supported by any credible material as would arouse even a strong suspicion. The decision of the learned Single Judge in Prakash C. Sheth v. State of Maharashtra and another is of no relevance in the context of the issue involved. The learned Counsel Mr. S.S. Dhengale for the petitioner would rely on the decision of the Apex Court in K. Ramakrishna v. State of Bihar, 2000 AIR (SC) 3330 to buttress the submission that if the allegations in the complaint, even if they are taken at face
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value, do not constitute the offence alleged, the proceeding is liable to be quashed.
13. I am more than satisfied that there is no material on record, even to arouse a strong suspicion, and therefore, the continuation of the proceedings shall be an abuse of the process of the criminal law.
14. The order dated 20-9-2013 rendered by the learned Judicial Magistrate First Class, Hingna in Regular Criminal Case 71/2012 and the judgment and order dated 14- 7-2016 rendered by the learned Additional Sessions Judge-9, Nagpur in Criminal Revision Application 235/2014 are quashed and the petitioner is discharged from Crime 115/2008 registered with Hingna Police Station, District Nagpur for offences punishable under Sections 120-B, 420, 468 and 471 read with Section 34 of the IPC.
15. The petition is allowed in the aforestated terms. Judge
Belkhede/Adgokar
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