Bombay High Court
Rajesh Dhanji Zalte vs The State Of Maharashtra on 10 February, 2025
2025:BHC-AUG:3681
(1) 901 cri wp 1867.23
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1867 OF 2023
Rajesh s/o Dhanji Zalte,
Age 55 years, Occ : Legal Practitioner,
R/o Zilla Peth Jalgaon,
Taluka and District Jalgaon. ... PETITIONER
V/s.
The State of Maharashtra
Mantralaya, Mumbai. ... RESPONDENT
.....
Mr. Rajendrraa Deshmukh, Senior Counsel a/w. Ms. Rakshanda Rajan Jaiswal
i/b. Mr. Devang Deshmukh, Advocates for the Petitioner
Ms. Ashlesha S. Deshmukh, APP for the Respondent-State
.....
CORAM : Y.G. KHOBRAGADE, J.
RESERVED ON : 29.01.2025
PRONOUNCED ON : 10.02.2025
JUDGMENT:
–
1. Rule. Rule made returnable forthwith. With the consent of both
sides, heard finally.
2. Heard Mr. Rajendrraa Deshmukh, the learned Senior Counsel
appearing for the Petitioner and Ms. Deshmukh, the learned APP for the State
at length.
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3. By the present petition under Article 227 of the Constitution of
India, the Petitioner/Original Accused No.2 takes exception to the order dated
28.07.2022 passed by the Ad-hoc Additional Sessions Judge, Jalgaon in Cri.
Revision No. 83 of 2019, thereby affirmed the order dated 22.04.2019 passed
by the learned Chief Judicial Magistrate, Jalgaon, in Regular Criminal Case No.
494 of 2011, whereby directed to frame charge against the present
Petitioner/Accused for the offence punishable under Section 119, 120, 166,
167, 171, 181, 182, 192, 193, 196, 198, 199, 205, 419, 420, 422, 465, 466,
467, 468, 471 read with Section 34 and 120-B of the I.P.C.
4. Facts giving rise to the present petition are that on 03.12.2010, the
learned Principal District and Sessions Judge, Jalgaon received a written
complaint from one Shri Prakash Gulabrao Patil, wherein he alleged that the
original claimant Shri Chindna Krishna Mang in land acquisition reference
proceeding bearing Misc. Civil Application No.47/1993, registered as LAR
No.262/1993 died on 22.11.1999 but his legal heirs were not brought on
record, however, but the Accused No.1 impersonated himself as the Original
Claimant and received the amount of compensation due to acquisition of land
of the Original Claimant Shri Chindna Krishna Mang and deprived the legal
heirs of Original Claimant to receive the compensation in respect of the
acquired land. Therefore, the learned Principal District and Sessions Judge
directed the learned CJSD to conduct an enquiry and to submit it’s report.
(3) 901 cri wp 1867.23
5. Accordingly, the learned Civil Judge Senior Division, Jalgaon
conducted an enquiry and examined the record and submitted it’s report. As
per the inquiry report, the Accused No.1- Sukhdeo Krishna Suralkar and the
Petitioner/Accused No.2 in connivance with each other committed fraud on the
Court to receive the enhanced compensation. Though, the present Petitioner
was duly served with the show cause notice on 07.03.2011 and was called
upon him to submit his explanation but he failed to submit his reply. So also,
the present Petitioner has identified the fictitious person in all the three Court
proceedings. Therefore, act done by the Accused No.1- Sukhdeo Krishna
Suralkar (Mang) and Accused No.2 (present Petitioner) for falsification of
Court record, playing fraud upon the Court, cheating in the Court proceeding
and obtaining the Judgment in the name of a deceased person and getting
benefits for themselves.
6. In pursuance of said report, the Complainant Shri Kishor
Rajeshwarrao Chaudhari, the then CJSD, Jalgaon filed a Regular Criminal Case
No.494/2011 for the offence punishable under Section 119, 120, 166, 167,
171, 181, 182, 192, 193, 196, 198, 199, 205, 419, 420, 422, 465, 466, 467,
468, 471 read with Section 34 and 120-B of the I.P.C. After due compliance of
Section 202 of the Cr.P.C., the learned Judicial Magistrate, issued process
against both the Petitioner as well as Accused No.1 Shri Sukhdeo Krishna
(4) 901 cri wp 1867.23
Suralkar for the said offences. In compliance of service of summons, the
present Petitioner appeared before the learned Judicial Magistrate.
7. The prosecution examined PW1-Kishor Rajeshwarrao Chaudhari
(CW1) at Exh.57 and Shri Vilas Wamanrao Jahagirdar (CW2) before framing of
charge. After recording evidence charge and having been heard both the sides,
on 22.04.2019, the learned CJM, Jalgaon passed an order holding that the
material available on record is sufficient to frame charge against the Petitioner
and Accused No.1- Shri Sukhdeo Krishna Suralkar for the offence punishabe
under Section 119, 120, 166, 167, 171, 181, 182, 192, 193, 196, 198, 199,
205, 419, 420, 422, 465, 466, 467, 468, 471 read with Section 34 and 120-B of
the I.P.C.
8. Being aggrieved by the said order, the Petitioner/Accused No.2
filed Criminal Revision Application No.83/2019 under Section 397 of the Cr.P.C.
before the learned Sessions Judge, Jalgaon. On 28.07.2022, the learned
Revisonal Court passed the impugned order and dismissed the revision petition.
Being aggrieved by said order, the Petitioner/Accused No.2 has filed this
petition before this Court.
9. The learned senior counsel appearing for the Petitioner canvassed
in vehemence that the Petitioner is a Legal Practitioner by profession and is
practicing in entire Jalgaon district as well as in various Courts in the State of
(5) 901 cri wp 1867.23
Maharashtra. The Petitioner-Accused is specifically dealing in Land Acquisition
matters pertaining to enhancement of compensation. Since, the Original
Claimant Shri Chindha s/o Krishna Mang had approached the Petitioner,
therefore, the Petitioner put his appearance in said land reference after
obtaining Vakalatnama from him. However, the Petitioner was not made aware
about death of Claimant- Shri Chindha s/o Krishna Mang but later on the
Accused No.1 attended the Petitioner time to time. Therefore, the Petitioner
presumed that the Accused No.1 is the Claimant- Shri Chindha s/o Krishna
Mang and identified him time to time. However, both the learned Courts below
failed to appreciate that the Petitioner being a practicing lawyer appeared on
behalf of the Claimant in land acquisition proceeding for enhancement of
compensation and did not make any pecuniary gain out of enhanced
compensation. Therefore, no sufficient material is produced on record to frame
the charge against the Petitioner, hence, prayed for quashing and setting aside
the impugned orders.
10. It is further canvassed on behalf of the Petitioner that both the
Courts below ought to have considered that the Petitioner being an active and
leading legal practitioner in Land Acquisition compensation matters and being
a normal human being, he cannot remember each and every client who
approach him, therefore, the Petitioner cannot be held liable for any
mischievous act done by the Accused No.1.
(6) 901 cri wp 1867.23
11. It is further canvassed that the Petitioner is being subjected to an
action initiated by the concerned Judicial Officer on assumptions and
presumptions, when in fact, the then learned Civil Judge, Senior Division in it’s
enquiry could have taken into account that the Advocate is not expected to
remember identity of each and every client, unless legal heirs of Advocate’s
client approached with specific instructions about death of the Claimant, hence,
it is not possible for the practicing lawyer to know about death of his client.
However, both the Courts below have failed to consider this aspect of the
matter and proceeded to frame the charge, hence, prayed for quashing and
setting aside both the orders.
12. It is further canvassed by the learned senior counsel that by no
stretch of imagination it can be said that the Petitioner has not filed his say in
the inquiry proceeding and avoided to file reply or the Petitioner has chosen to
remain silent. Under these circumstance, it is obligatory on part of the learned
Civil Judge Sr. Dn., to gather information regarding conduct of the Petitioner
from the record of the proceeding and the Petitioner only acted being a legal
practitioner in good faith. However, merely the Petitioner did not file his reply,
it cannot be held that the Petitioner has committed any fraud, mischief upon
the Court and obtained the Judgment in the name of a dead person.
(7) 901 cri wp 1867.23
13. It is further canvassed on behalf of the Petitioner that the Petitioner
never assisted or identified the fictitious person namely Sukhdeo Krishna Mang
but the Petitioner has genuinely represented his client in the land reference
proceedings as well as in Execution (Darkhast) proceeding. Therefore, both the
Courts below ought to have considered the role played by the Petitioner while
conducting legal proceeding and the Petitioner did not receive any fruits from
the alleged transaction.
14. The learned senior counsel further averred that the learned
Revisional Court has committed a great error in holding that the learned
Magistrate is required to consider the question of framing of charge under
Section 245 (1) of the Code of Criminal Procedure, is preliminary one and the
test of “prima facie” has to be applied, when the settled position of law is
definitely otherwise. The learned Revisional Court has miserably failed to
consider that though the Accused No.1 impersonated himself as Chindha Mang
in all the events so happened, the Petitioner had put his signature on various
documents being a practicing lawyer, it cannot be said that the Petitioner has
committed the alleged offences in connivance with the co-accused.
15. The learned senior counsel appearing for the Petitioner further
canvassed that on 12.02.2018, the Single Bench of this Court passed an order
in First Appeal No. 442/2004 and other connected matters and observed that
(8) 901 cri wp 1867.23
“the endorsement of the Registry indicates that the Sole-Respondent has
expired long ago and that is the reason that no service could ever be effected
upon the said Sole-Respondent. Despite the fact that these appeals are of the
year 2004 but till date no steps have been taken to bring on record the legal
representatives of deceased Sole-Respondent. Therefore, the appeals stand
abated as against the LRs of deceased Sole-Respondent.
16. Therefore, it is submitted that the Petitioner only acted as being a
counsel and merely identified the Accused No.1 who impersonated himself as
Ori. Claimant- Shri Chindha Krishna Mang, hence no offences are constituted.
Therefore, material placed on record is not sufficient to frame the charge as
against the present Petitioner. However, the learned Revisional Court failed to
consider the material available on record and recorded perverse findings,
hence, prayed for quashing and setting aside the impugned orders passed by
both the Courts below.
17. Per contra, the learned APP canvassed that the Petitioner has not
challenged the enquiry report submitted by the learned Civil Judge Senior
Division. As per inquiry report submitted by the learned CJSD, Jalgaon, it
clearly shows that the Petitioner acted being a legal practitioner for the accused
No.1 and recorded his examination-in-chief, signed various documents and
while conducting the trial he has identified the fictitious person as a genuine
(9) 901 cri wp 1867.23
claimant. The Petitioner also represented the fictitious person in executing
proceedings after obtaining award in the name of a deceased person. The
Petitioner helped the Accused No.1 for withdrawal of the compensation amount
to defraud the legal heirs of Ori. Claimant by playing fraud on the Court. So
also, the present Petitioner in furtherance of common intention extended all the
help to the Accused No.1 for withdrawal of compensation of Rs.98,137/-, for
securing the Bank Guarantee, for withdrawal of the execution proceedings by
filing pursis as well as for cancellation of the Bank Guarantee. Therefore,
material placed on record are sufficient to frame the charge against the
Petitioner, hence, prayed for dismissal of the petition.
FINDINGS
18. Having regard to the rival submissions canvassed on behalf of both
the sides, I have gone through the record. It is a matter record that deceased-
Chindha s/o Krishna Mang has filed the LAQ/1985 on account of acquisition of
his land by the State Government, however, the Claimant was not satisfied with
the compensation awarded to him by the land acquisition officer. Therefore, he
preferred the reference before the Civil Court. It is not in dispute that the land
reference was registered with the learned District Judge, Jalgaon vide
LAR/Miscellaneous Civil Application No.47/1993 on 27.01.1993. The learned
District Judge, Jalgaon, passed an order on 27-1-1993, in L.A.Q./SR.No. HP/32
of 1985 (Registered as LAR/Misc. Civil Application No.47/1993) and issued
( 10 ) 901 cri wp 1867.23
notice to the Claimant Shri Chindha s/o Krishna Mang with a direction to
produce 7/12 extract, if any, in respect of the acquired land. The notice was
also issued to the opponent i.e. Land Acquiring Body. The learned District
Judge made over said land reference to the learned 5 th Additional District
Judge, Jalgaon for disposal according to law. As per order passed by the
learned District Judge, Jalgaon, the Misc. Civil Application No.47/1993 was
transferred to the Court of learned 2nd Jt. C.J.S.D., Jalgaon from the file of the
learned 5th Additional District Judge, Jalgaon. Therefore, said Misc. Civil
Application was registered as LAR No.262/1993, wherein the present
Petitioner/Accused represented the Claimant being a legal practitioner.
19. It is also not in dispute that during the pendency of said land
reference, the claimant Shri Chindha s/o Krishna Mang died on 22.11.1999,
however, no legal heirs of the claimant were brought on record. On face of
record, it appears that one Shri Sukhdeo s/o Krishna Suralkar (Mang) i.e. the
Ori. Accused No.1 impersonated himself to be the original claimant Shri
Chindha Krishna Mang and entered into the witness box. Therefore, his
evidence came to be recorded on 13.01.2000 under the pretext that he is the
Ori.Claimant- Chindha Krishna Suralkar (Mang). The Petitioner being a
Counsel for the Claimant recorded further examination-in-chief of Shri
Sukhdeo s/o Krishna Suralkar (Mang). The Accused No.1- Sukhdeo Krishna
Suralkar (Mang) has undergone cross-examination. After evidence is over, on
( 11 ) 901 cri wp 1867.23
13.04.2000, the learned 2nd Jt. C.J.S.D., Jalgaon passed the Judgment and
Award and partly allowed the Reference No. LAR 262/1993 and granted
compensation of Rs.98,137/-.
20. Thereafter, Accused No.1-Sukhdeo Krishna Suralkar (Mang) filed
an Execution Darkhast No.562/2001 pretending himself to be the Ori.
Claimant- Shri Chindha Krishna Mang. The Petitioner represented the Accused
No.1 in the Award Execution proceedings being a legal practitioner. The
Ori.Accused No.1 Shri Sukhedeo Krishna Suralkar (Mang) put his thumb
impression posing himself to be the Ori.Claimant- Shri Chinda Krishna Mang.
and the Petitioner/ Accused No.2 allegedly put his signature certifying that he
knows the Accused No.1 as Ori.Claimant- Shri Chinda Krishna Mang. It is
further evident that during the pendency of execution proceeding, the
Judgment Debtor/Land Acquiring Body deposited the entire compensation
amount and the Petitioner being a counsel for the claimant moved an
application and sought permission to withdraw the compensation amount.
Accordingly, on 11.02.2022 the learned CJSD, Jalgoan passed an order and
permitted to withdraw the compensation of Rs.98,137/- to the decree holder
namely Chindha Krishna Mang on furnishing Bank Guarantee of a Nationalised
Bank.
( 12 ) 901 cri wp 1867.23 21. Needless to say that in compliance of said order, the
Petitioner/Accused produced Bank Guarantee of the Nationalised Bank on
22.02.2022 in the name of Chindha Krishna Mang (Ori. Claimant). Therefore,
amount of compensation was made in the name of Ori.Accused No.1 after
being identified by Petitioner as a Counsel. Thereafter, on 04.11.2006, the
Accused No.1 had allegedly withdrawn amount of compensation from the
Western Bank by impersonating himself as Chindha Krishna Mang (Ori.
Claimant) and allegedly moved an application through the Petitioner
(Advocate) for cancellation of Bank Guarantee. Accordingly, the Petitioner filed
pursis under his signature before the Executing Court for withdrawal of the
execution proceeding, hence, execution proceeding was disposed of. Therefore,
there is presumption that being a counsel the Petitioner received monetary
benefits and acted in collusion of the Accused No.1 and did not disclose fact of
death of original claimant to the Court.
22. Further, the execution proceedings bearing Regular Darkhast
No.562/2001 was instituted in the name of Ori.Claimant- Chindha Krishna
Mang (Suralkar) and the Accused No.1 pretended himself to be the
Ori.Claimant- Chindha Krishna Mang (Suralkar) put his thumb impression and
the present Petitioner identified the Accused No.1 as being the Ori.Claimant-
Chindha Krishna Mang (Suralkar). The material placed on record as well as
the evidence of CW1 and CW2 recorded by the learned CJM before framing of
( 13 ) 901 cri wp 1867.23
the charge itself suggests that the present Petitioner-Accused played an active
role in adjudicating the land acquisition proceedings before the Reference
Court while obtaining the award. So also, the Petitioner played a substantial
role in filing the execution proceedings and withdrawal of the compensation
amount by depriving the right of legal heirs of Ori. Claimant as well as by
playing fraud on the Court in the Court proceedings. Since the Petitioner-
Accused met the original claimant for the first time, who introduced the file
and executed the Vakalatnama, hence, there is presumption that the Petitioner
was well acquainted with the Ori. Claimant but he again identified fictitious
person i.e. the Accused No.1. It further appears that the Petitioner accused has
also gained monetary benefits.
23. Therefore, essential ingredients of Section 406 and 420 read with
Section 34 is certainly made out to frame the charge. The material available on
record is sufficient to presume that the Petitioner/Accused along with the
Accused No.1 in connivance with each other have committed the above said
offences. Therefore, considering the material available on record, the learned
CJM passed the order dated 22.04.2019 and proposed to frame the charge
against the Present Petitioner and the Co-Accused.
24. Section 240 of the Cr.P.C. provides as under:
Framing of Charge – 1. If, upon such consideration, examination, if any, and
hearing, the Magistrate is of opinion that there is ground for presuming that
the accused has committed an offence triable under this Chapter, which such
( 14 ) 901 cri wp 1867.23Magistrate is competent to try and which, in his opinion, could be
adequately punished by him, he shall frame in writing a charge against the
accused.
2. The charge shall then be read and explained to the accused, and he
shall be asked whether he pleads guilty of the offence charged or claims to
be tried.”
Section 245 of the Cr.P.C. provides as under:
When accused shall be discharged- 1. If, upon taking all the evidence
referred to in Section 244, the Magistrate considers, for reasons to be
recorded, that no case against the accused has been made out which, if
unrebutted, would warrant his conviction, the Magistrate shall discharge
him.
2. Nothing in this section shall be deemed to prevent a Magistrate from
discharging the accused at any previous stage of the case if, for reasons to be
recorded by such Magistrate, he considers the charge to be groundless.
25. The learned Revisional Court considered the scope of Section 240,
245 (1) and 246 of the Cr.P.C. and held about existence of sufficient grounds
and material to proceed against the present Petitioner-Accused for the offence
punishable under Section 119, 120, 166, 167, 171, 181, 182, 192, 193, 196,
198, 199, 205, 419, 420, 422, 465, 466, 467, 468, 471 read with Section 34
and 120-B of the I.P.C. and to frame the charge. Therefore, I do not find that
the Petitioner has set out substantial grounds to interfere with the findings
recorded by both the Courts below. Therefore, the present petition is
dismissed. Accordingly, Rule is discharged.
[Y.G. KHOBRAGADE, J.]
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