C R ALIMCHANDANI Vs. T K SHAH

JUDGEMENT

(1.) THIS writ petition arises out of complaint filed by respondent No. 1 against petitioners before the Addl. Chief Metropolitan Magistrate, 37th Court, at Esplanade, Bombay bearing Case No. 2167/s/1990 in which it is alleged that the petitioner had committed offence under sections 465 and 466 read with section 34 of I. P. C. The learned Counsel for the petitioner Mr. Vasni submits that no offence has been disclosed in the complaint and therefore Magistrate ought not to have issued process against the petitioner. In order to appreciate this argument, I have to refer to Para 2 and 3 of the complaint which reads as under

(2.) FROM the above averments, it can be seen that the petitioner No. 2 had filed an affidavit in R. A. N. Application No. 136 of 1988 filed in the Small Causes Court, Bombay. While filing the said affidavit, he has produced a zerox copy of the certificate purported to have been issued by the Bombay Municipal Corporation having signed by Asstt. Assessor and Collector A-Ward stipulating that the rent for the flat which is a subject matter of the dispute in R. A. C. Application No. 136 of 1988 yielded rent for Rs. 1,620/- for the year 1969-70, 1970-71, 1971-72 and Rs. 2,800/- for the year 1972-73. The complaint also quoted the portion of the affidavit which reads as follows :

(3.) THE learned Counsel for the respondent Shri. Mohite submits that in view of the allegations contained in the complaint and with the aid of section 34 all the accused are liable to be prosecuted for the production of false documents before the Court. I do not find any substance in this submission. In order to implicate the petitioner for the commission of the offence of 464 and 466, it is incumbent upon the part of the complainant to plead the role of each accused in the making or manufacturing of the document in question. Instead of showing that, wholesale statement has been made that all the accused have committed the offence under sections 465 and 466. According to me in order to make out a prima facie case against the petitioner, the allegation contained in the complaint case is not sufficient. What is necessary at the time of issuing summons against the accused by the Magistrate is that if the allegation as it stands has been proved, whether on that allegations the accused were liable to be convicted. Such wholesale and casual allegations definitely give cleavage for the accused to escape. Therefore, in the nature of offence, the manner in which the document has been concocted has to be clearly and meticulously pleaded then only the creation of the false document as defined under sections 465 and 466 can be established. The Supreme Court in 1988 (2) Bom. C. R. 232 : A. I. R. 1988 S. C. 709 between (Madhavrao Jiwaji Rao Scindia and another v. Sambhajirao Chandrojirao Angre and others), held that: