Rangnath Tukaram Thalkari v. Suresh Jagannath Chopane And Others

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD CRIMINAL APPLICATION FOR LEAVE TO APPEAL BY PRIVATE PARTY NO. 92 OF 2019 Rangnath Tukaram Thalkari Applicant

Versus

Suresh Jagannath Chopane & others Respondents Ms. P. S. Talekar, advocate i/by Talekar & Associates, for the Applicant Mr. H. P. Jadhav, advocate for Respondents No. 1 to 3 CORAM : SANDIPKUMAR C. MORE, J.

DATE : 01st NOVEMBER, 2023.

P.C. :

Heard rival submissions.

The appellant, who is original complainant in RCC No. 25 of 2012, is seeking leave to fle appeal against the judgment and order dated 26.02.2019 in the aforesaid case, which was fled under Section 419, 465, 468, 471, 166, 218 read with Section 34 of the Indian Penal Code. The learned JMFC, Kai, District Beed, has acquitted present respondents-accused from the charges under above mentioned Sections of the Indian Penal Code. The learned Counsel for the applicant submits that there is reliable documentary evidence on record to show that the

land in question was fraudulently transferred in the name of accused no.1 by suppressing the fact that the executor of concerned sale deed had already died prior to the execution of the same. She pointed out so many documents on record which are part of Record and Proceeding, such as sale deed, death certifcate of the executor of the same, concerned mutation entry, etc.

On the contrary, the learned Counsel for respondents, strongly opposed the submissions made on behalf of the applicantcomplainant and pointed out that the death certifcate of Vaiinath Laxman Thalkari, who was the executant of the sale deed in question is based on fraudulent record. He further pointed out that the concerned Block Development Offcer had also given one certifcate and according to that, there was death entry of only one person in the month of July 1989. According to him, the complainant-applicant, being the political person, has lodged false complaint on the basis of fabricated evidence. As such, he prayed for rejection of the application.

On going through the record and proceeding of the original case, it appears that the sale deed in question is dated 11.09.1989 and admittedly, the name of executor is Vaiinath Laxman Thalkari. However, the death certifcate produced by the

applicant on record indicates that Vaiinath Laxman Thalkari had died on 05.07.1989 that means two months prior to the execution of the said sale deed. It appears that on the basis of said sale deed, Respondent No.1 had fled suit for declaration of his ownership wherein respondents no.2 and 3, being the representatives of Gram Panchayat entered into compromise with him.

Though the learned Counsel for the respondents submitted that the death certifcate of Vaiinath is not genuine and based on false record, but it is exhibited on the basis of said record. Though it is contended by the learned Counsel for the respondents that the original record was tampered, but on perusal of the same, it appears that there is no tampering at least in respect of death entry in the month of July 1989. Further, there appears correction only in respect of the serial number of entries recorded in the month of April and May 1989 and, therefore, such correction is immaterial since it is not in respect of the death entry of Vaiinath. Further, the learned Counsel for the respondents has also pointed out that the concerned BDO had produced one certifcate mentioning that there is only one death entry in the month of July 1989 and, therefore, the same falsifed the death of Vaiinath. Unfortunately, the said certifcate of Block Development

Offcer could not be found on record and appears to be destroyed but as per the learned Counsel for the respondents, no witness was examined in respect of the said certifcate and, therefore, the act of learned Trial Court, exhibiting the said certifcate even after closing of the evidence by the respondents-accused, defnitely appears improper. Even otherwise also, as per the record of Gram Panchayat, there were two death entries in the month of July 1989, which is contrary to the certifcate of Block Development Offcer. It is signifcant to note that the death entry is frstly taken into Gram Panchayat record and then it is to be forwarded to the BDO Offce, as narrated by the concerned witness of Gram Panchayat in his cross examination. Therefore, reliance by the learned trial Court, on such BDO's certifcate, is also doubtful.

The learned Counsel for the respondents pointed out that the applicant-complainant is infuential political person and, therefore, lodged false complaint. Howevr, the documentary evidence on record in respect of the sale deed in question speaks differently. It is settled position that anybody can set in motion the criminal law for taking cognizance of serious offences. Therefore, considering all these facts, the applicant has made out an arguable case which needs further consideration.

In view of the same, Criminal Application is hereby allowed and the appeal of the applicant be registered after removal of offce objections, if any.

Criminal Application is accordingly disposed of. SANDIPKUMAR C. MORE JUDGE adb