CEDRIC VAZ Vs. POLICE INSPECTOR/STATION IN CHARGE

JUDGEMENT

(1.) Heard Shri S.D. Lotlikar, learned Senior Counsel with Advocate Ryan Menezes on behalf of the petitioner, Shri P.Faldessai, learned Additional Public Prosecutor for the respondents no. 1 to 3 and Shri S.G. Desai, learned Senior Counsel with Advocate A. Pavitharan for the respondent no.4.

(2.) Shri S.D.Lotlikar, learned Senior Counsel for the petitioner invited attention to the complaint dated 27.10.2014 which made a reference to the Sale Deed but was not produced alongwith the plan. The complaint also made a reference to the plans purportedly in the possession of the complainant without in any manner disclosing how he came about to be in possession thereof. There was also no explanation at the instance of the complainant how he gained access to the plans purportedly forged by the Authorities and submitted that even assuming without admitting such a plan was forged, the complainant had nowhere spelt out who was the author of the plan and from where it had originated. The impugned order passed by the learned Magistrate did not at all justify a direction to register an FIR against the petitioner under Sections 466 and 468 IPC.

(3.) Shri S.D. Lotlikar, learned Senior Counsel placed reliance in Priyanka Srivastava and another Vs. State of Uttar Pradesh and others [(2015)6 SCC 287]. There was a complete non-application of mind by the learned Judicial Magistrate First Class in passing the order as he did and, therefore, the order had to be quashed and set aside in exercise of the power under Article 226 of the Constitution of India amongst others. Shri P. Faldessai, learned Additional Public Prosecutor submitted that the investigation was in progress and some statements had been recorded. Shri S.G.Desai, learned Senior Counsel for the respondent no.4 contended at the outset that the building was constructed by the petitioner which was as per the forged plans. A perusal of the plans in the paper-book would show the manipulation done at the instance of the petitioner and, therefore, there was no reason and justification for the issue of a Writ as prayed by the petitioner. Shri S.G. Desai, learned Senior Counsel relied in State of A.P. Vs. Golconda Linga Swamy and another [(2004)6 SCC 522], State of T.N. Vs. Thirukkural Perumal [(1995)2 SCC 449] and T. Vengama Naidu Vs. T. Dora Swamy Naidu and Ors. [(2007)4SCR 348] to press for the dismissal of the petition. Shri Lotlikar, learned Senior Counsel for the petitioner in reply contended that there was no basis for the learned Judicial Magistrate First Class to come to a finding as he did at para 4 of the impugned order in the absence of any averment in the complaint or the material on record. There was also no reference to any forged plan being used to get the Occupancy Certificate and yet the learned Judicial Magistrate First Class had hastily concluded so in the impugned order. The impugned order was, therefore, liable to be quashed and set aside.