BOMBAY HIGH COURT

SHRI VISHAL S/O UTTAMRAO DESHMUKH VS THE STATE OF MAHARASHTRA AND ... ON 27 JUNE, 2016 - LHR

Summarised Judgement (Scroll for Complete Judgement)

Introduction:

The Petitioner in this petition has specifically challenged the order of issuance of process dated 08.10.2013 by which the learned Magistrate has taken cognizance of Regular Criminal Case No.253/2013 and by a short order of a single paragraph has held that an offence punishable under Sections 193, 417, 418 and 420 of the IPC has been made out.

Facts of the Case:

Petitioner preferred Criminal Revision Application No.4/2014 under Section 397 of the Code of Criminal Procedure before the learned Additional Sessions Judge, Ambajogai on 04.01.2014. By the impugned judgment dated 19.08.2014, the revision petition has been dismissed. The Petitioner has specifically challenged the said judgment *3* 1.cr.wp.1472.14 dated 19.08.2014 in this petition.

Mr. Khandare, learned Advocate appearing on behalf of Respondent No.3 submits that the Petitioner herein had preferred Criminal Application No.5229/2014 before the learned Division Bench of this Court invoking Section 482 of the Code of Criminal 

Procedure. The prayers below paragraph No.23 in the said petition read as under:-

A. The record and proceeding may kindly be called for.

B. By issuing writ of certiorari or any other appropriate writ, order or directions in the like of nature, the proceedings bearing RCC No.253/2013 pending before the Ld. J.M.F.C. Parli-Vai, Tq. Parli Vai, Dist. Beed may kindly be quashed and set aside as it is abuse of process of law.

C. Pending hearing and final disposal of this Criminal Application, the further proceedings bearing Regular Criminal Case No.253/2013 pending before the Ld.

J.M.F.C. Parli-Vai, Tq. Parli-Vai, Dist. Beed may kindly be stayed.

D. Ad-interim relief in terms of prayer clause "C" may kindly be granted in favour of the applicant.

E. Pass such other further order as this Hon'ble Court may deem fit and proper in the peculiar facts and circumstances of the case."

Observation of Court:

These facts, in my view, attract Section 193 of the Indian Penal Code as it deals with a person who intentionally gives false evidence in any stage of the proceedings for the purpose of using the said evidence for gain. Sections 417, 418 and 420 of the Indian Penal Code deal with the offence of cheating, punishment for cheating and attempt by cheating to have any property delivered to any person.

It needs clarification that these observations are at a prima facie stage and would not amount to conclusion of this Court on the merits of the matter considering the fact that the proceedings are still pending before the learned Magistrate.

Judgement:

In the light of the above, this Criminal Writ Petition fails and the same is, therefore, dismissed. Rule is discharged.

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Complete Judgement

BOMBAY HIGH COURT

SHRI VISHAL S/O UTTAMRAO DESHMUKH VS THE STATE OF MAHARASHTRA AND ... ON 27 JUNE, 2016

Bench: R.V. Ghuge

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 1472 OF 2014

Vishal s/o Uttamrao Deshmukh,

Age : 40 years, Occupation : Agril/ Business,

R/o Vithai Nivas, Zurule, Gopinath Galli,

Parli-Vaijanath, Tq.Parli-Vaijanath, District Beed.

...PETITIONER

-VERSUS-

            1 The State of Maharashtra.

                                                    

  2 Police Inspector,

           Parli Vaijanath City Police Station,

        

Parli Vaijanath, District Beed.

3. Sau.Shanta w/o Tukaram Deshmukh,

Age : 48 years, Occupation : Household,

R/o Masrath Nagar, Near Heena Talkies,

Jalna Road, Beed, Tq. & District Beed.

...RESPONDENTS

Advocate for Petitioner : Shri V.D. Salunke.

APP for Respondents 1 and 2/ State : Shri S.G.Karlekar.

Advocate for Respondent No.3 : Shri N.B.Khandare.

CORAM:  RAVINDRA V. GHUGE, J.

DATE:- 27th June, 2016 Oral Judgment:

1 Rule. Rule made returnable forthwith and heard finally by the consent of the parties.

2 I have heard the learned Advocates for the Petitioner and Respondents at length.                                                               

3 A peculiar situation has emerged in this case in the light of the submissions of the learned Advocates which are said to be on the basis of the record in this petition and from Criminal Application No.5229/2014, which has been dismissed by the learned Division Bench of this Court (Coram : S.S.Shinde and A.I.S.Cheema, JJ.) by order dated 30.10.2014.

4 The Petitioner in this petition has specifically challenged the order of issuance of process dated 08.10.2013 by which the learned Magistrate has taken cognizance of Regular Criminal Case No.253/2013 and by a short order of a single paragraph has held that an offence punishable under Sections 193, 417, 418 and 420 of the IPC has been made out.

5 The Petitioner preferred Criminal Revision Application No.4/2014 under Section 397 of the Code of Criminal Procedure before the learned Additional Sessions Judge, Ambajogai on 04.01.2014. By the impugned judgment dated 19.08.2014, the revision petition has been dismissed. The Petitioner has specifically challenged the said judgment *3* 1.cr.wp.1472.14 dated 19.08.2014 in this petition.

6 Mr.Khandare, learned Advocate appearing on behalf of Respondent No.3 submits that the Petitioner herein had preferred Criminal Application No.5229/2014 before the learned Division Bench of this Court invoking Section 482 of the Code of Criminal Procedure. The prayers below paragraph No.23 in the said petition read as under :-

"A. The record and proceeding may kindly be called for.

B. By issuing writ of certiorari or any other appropriate writ, order or directions in the like of nature, the proceedings bearing RCC No.253/2013 pending before the Ld. J.M.F.C. Parli-Vai, Tq. Parli Vai, Dist. Beed may kindly be quashed and set aside as it is abuse of process of law.

C. Pending hearing and final disposal of this Criminal Application, the further proceedings bearing Regular Criminal Case No.253/2013 pending before the Ld.

J.M.F.C. Parli-Vai, Tq. Parli-Vai, Dist. Beed may kindly be stayed.

D. Ad-interim relief in terms of prayer clause "C" may kindly be granted in favour of the applicant.

E. Pass such other further order as this Hon'ble Court may deem fit and proper in the peculiar facts and circumstances of the case."

7 Mr.Khandare further submits that this criminal writ petition filed by the Petitioner before this Court cannot be heard or adjudicated upon considering the observations of the learned Division Bench in its orders dated 19.09.2014 and 30.10.2014. He submits that the Petitioner was heard on the order of issuance of process dated 08.10.2013. He was *4* 1.cr.wp.1472.14 permitted to place on record the judgment dated 19.08.2014 by which his Criminal Revision Application was dismissed. Pursuant thereto, the learned Division Bench by its observations set out in paragraph Nos.3 and 4 of the order dated 30.10.2014, has dismissed Criminal Application No.5229/2014.

8 Mr.Salunke, learned Advocate submits that the Petitioner had neither challenged the issuance of process nor the judgment of the learned Sessions Judge before the learned Division Bench. No specific prayer was put forth by the Petitioner before the learned Division Bench. The order dated 30.10.2014, therefore, will have to be restricted to the challenge posed in the criminal application and it cannot be construed to be an order in relation to the issuance of process and the judgment of the learned Sessions Judge which is subject matter of this petition.

9 During the course of their submissions, both the learned Advocates were called upon to make their submissions as to whether, this petition could, therefore, be referred to the learned Division Bench considering the submissions of Respondent No.3 that the order dated 30.10.2014 passed by the learned Division Bench amounts to an adjudication on the order of issuance of process dated 08.10.2013 and the judgment of the learned Sessions Judge dated 19.08.2014. It was stated *5* 1.cr.wp.1472.14 by Mr.Khandare that Respondent No.3 is agreeable for a hearing of this petition before the learned Division Bench in the light of the above submissions. Mr.Salunke, however, submits that this court may decide this petition.

10 Taking into account the reluctance of the Petitioner to have this matter referred to the learned Division Bench to be considered in the backdrop of it's order dated 30.10.2014 by which Criminal Application No.5229/2014 has been dismissed, I have considered the submissions of the learned Advocates for the respective sides even on the merits of this case.

11 There can be no dispute that the learned Division Bench on 19.09.2014 had passed the following order in Criminal Application No.5229/2014 filed by the Petitioner seeking quashing of the entire criminal proceedings set into motion in RCC No.253/2013:-

"Learned Counsel for the applicant makes an oral prayer so as to place on record copy of the Criminal Revision Application No.4/2014 and also order passed therein. Leave as prayed for is granted. The documents to be placed on record during the course of the day.

2. List as per CMIS date.

3. Till next date of hearing, further proceedings in RCC No.253/2013 pending before the JMFC, Parli Vaijnath shall remain stayed. Parties to act on *6* 1.cr.wp.1472.14 authenticated copy of this order."

12 The learned Division Bench rejected the Criminal Application by it's order dated 30.10.2014, which reads thus:-

"1. Heard learned Counsel for the applicant.

Perused the grounds taken in the application and also Exh.D at page 33 of the compilation i.e. the application, which was filed for getting heir-ship certificate. We have perused the contents of the Misc. Civil Application No.3/2012. Paragraph 3 of the said application reads, thus:

2. Therefore, it appears that the applicant approached to the C.J.S.D., Parali with the averments as above that there is no any other legal heir of deceased Narhari Kashinath Deshmukh and obtained heir-ship certificate.

Now, admittedly the deceased had daughters while applicant was only a nephew. The daughters moved District Judge in appeal. In the aforesaid background, the daughters of said Narhari Kashinath Deshmukh also filed an application being Misc. Criminal Application No.253 of 2013 before the J.M.F.C., Parali, Dist. Beed. It is relevant to reproduce herein below the averments in paragraph 5 of the said application which read.

3. The learned Magistrate, keeping in view, the averments in the application and in particular, para 5 thereof, issued the process. Being aggrieved, the applicant filed revision, which came to be rejected. However, the said fact has not been mentioned in the present criminal application filed before this Court.

4. We have considered the submissions of the learned Counsel for the applicant, the order passed by the Court below and the averments in the applications, which are reproduced herein above. In our opinion, the order in RCC No.253/2013 issuing process needs no interference.

5. Application sans merits. Hence, rejected."

13 Considering the rival submissions and the conclusions arrived at by the learned Division Bench in it's order dated 30.10.2014, though the learned Division Bench has held that the order of issuance of process needs no interference, in my view, the said order will have to be read in terms of the prayers made by the Petitioner and the challenge posed in the said Criminal Application. In short, the conclusions of the learned Division Bench can be said to be the conclusions as regards whether, the criminal *8* 1.cr.wp.1472.14 proceedings have been rightly initiated and as to whether, the said criminal proceedings should proceed in accordance with law.

14 Insofar as the merits of the matter are concerned, Shri Salunke has painstakingly narrated the details as regards the partnership firm by name M/s K.M.Deshmukh and the details as regards the grandfather of the Petitioner and his three uncles as well as the father of the Petitioner. It has also been brought to my notice that the partnership firm was dissolved on 27.12.2006. Paragraph 4 of the Deed of Dissolution of the partnership firm has also been read out by Shri Salunke. He has canvassed that uncle Mr.Narharrao s/o Kashinathrao Deshmukh was being looked after by the Petitioner, till his demise.

15 Shri Salunke has also placed reliance upon the "Iccha Patra" i.e. Will Deed which is placed on record and which is said to be reduced into writing by his uncle Narhari s/o Kashinathrao Deshmukh. Narharrao is the same Narhari Kashinathrao Deshmukh. Though there is no date mentioned on the said Will Deed, the contention is that since the Petitioner was taking proper care of his uncle Narharrao @ Narhari s/o Kashinath Deshmukh as well as the wife of Narhari, the said Will Deed has been executed by Narhari thereby, handing over the entire property to the Petitioner, who is his real nephew

                                                                                      

16 Considering the record as is available and the submissions of the learned Advocates, the whole issue turns upon as to what was the application made by the Petitioner before the learned Civil Court for seeking an heirship certificate. The said application dated 02.01.2012, which is Miscellaneous Civil Application No.3/2012, is placed on record.

17 The contention of Shri Salunke is that the Petitioner had made a statement in paragraph 3 of the said application that he is the only legal heir/ representative of Narhari, which was specifically on the basis of the Will Deed that was said to be executed by Narhari. He further points out that the learned Civil Court directed publication of proclamation in a daily newspaper after depositing requisite proclamation charges. After this order was passed on 03.01.2012, the proclamation was published on 12.02.2012 in Marathi newspaper by name "Dainik Jagmitra", which according to Shri Salunke, has wide circulation in Parali Vaijanath where the Petitioner resides. The affidavit filed by the Petitioner dated 21.02.2012 is also pointed out.

18 The gravamen of Shri Salunke's submissions is that the application for seeking the heirship certificate supported by an affidavit should not be read out of context since that application and affidavit has *10* 1.cr.wp.1472.14 been placed on record before the Civil Court while seeking the heirship certificate keeping in view that the Will Deed of Narharrao @ Narhari grants the entire property to the Petitioner.

19 Shri Salunke then submits that even if it is presumed for the sake of presumption, though the Petitioner stoutly denies, that the application filed by the Petitioner was aimed at grabbing the property, the same would yet be a civil dispute and would not have the trappings of a criminal offence. According to Shri Salunke, it is the civil rights of the parties which are at issue. The Complainant before the Criminal Court is the real cousin sister, who is the daughter of Narharrao @ Narhari s/o Kashinath Deshmukh. She apparently desires a share in the property. In the event, the heirship certificate issued by the competent Civil Court is bad in law, the same would be set aside. He, however, clarifies that the Will Deed has not been challenged by any of the two daughters or even the wife of the deceased Narharrao @ Narhari. He further submits that the appeal is filed against the grant of heirship certificate and the said certificate granted has been stayed by the Appellate Court.

20 Shri Salunke has placed reliance upon the following judgments:-

(i) Paramjeet Batra vs. State of Uttarakhand, Criminal Appeal *11* 1.cr.wp.1472.14 No.2069/2012 arising out of Special Leave Petition (Criminal) No.7720/2011, decided on 14.12.2012.

(ii) State of Haryana vs. Ch.Bhajan Lal and others, AIR 1992 SC 604 (1).

(iii) An unreported order of this Court dated 30.06.2009 in Criminal Writ Petition No.138/2009 (Aurangabad Bench) in the matter of Shivkaran Ganpatrao Bharti vs. State of Maharashtra.

(iv) U.Dhar and another vs. State of Jharkhand, AIR 2003 SC 974.

(v) Rupinder Singh vs. Niranjan Singh, 2016(1) All M.R.

(Journal) 27 (Punjab and Haryana High Court).

21 Shri Khandare, learned Advocate appearing for the contesting Respondent No.3/ Complainant, submits that most of the contentions of the Petitioner need not be considered at this stage since this Court is not dealing with the merits of the pending proceedings either before the learned Magistrate or before the Appeal Court before whom the grant of heirship certificate is being considered. Whether, the Will Deed declares the Petitioner to be the sole legal heir/ representative or not, is a matter which is subject to the decision of the competent Civil Court and is not the issue in this proceeding.

                                                                                         

22 Shri Khandare has submitted that the essence of this litigation is as to whether, the Petitioner can be said to have committed offences punishable under Sections 193, 417, 418 and 420 of the Indian Penal Code with regard to which the learned Magistrate has set the criminal law in motion.

23 He submits that it is not an issue as regards whether, the Petitioner is a legal representative of Narharrao @ Narhari s/o Kashinath Deshmukh. The issue is as to whether, the Petitioner can be said to be a legal heir of Narharrao @ Narhari s/o Kashinath Deshmukh and whether, the Petitioner could have led the Civil Court to believe that besides the Petitioner, there are no other legal heirs.

24 He further submits that the proclamation for issuance of heirship certificate was published in the newspaper called daily "Jagmitra", which does not have large circulation. That cannot be said to be a publication in the eyes of law. This issue is sub-judice before the superior civil court since Respondent No.3 has assailed the grant of heirship certificate and which has been stayed.

25 I do find that there is some strength in the contention of Shri Salunke that these proceedings have a semblance of civil proceedings. The judgments cited by Shri Salunke are on the specific point that if a civil dispute is apparent and visible and if on account of any oblique motive or in the light of any animosity or antipathy in between the litigating sides, the criminal complaint is filed, the recourse to criminal proceedings would amount to wreaking vengeance against the accused. The observations of the Honourable Supreme Court in the matter of Paramjeet Batra (supra) in paragraph 7 read as under:-

"7. While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash criminal proceedings to prevent abuse of process of court."

26 Similarly, the Honourable Supreme Court has laid down seven golden principles in State of Haryana vs. Ch.Bhajan Lal (supra) which are found in paragraph 108 of the said judgment as under:-

"108. In the backdrop of the interpretation of the various *14* 1.cr.wp.1472.14 relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.3

1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused.

2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R.

do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4. Where the allegations in the FIR do not constitute a cognizable offence, but constitute only a non-

cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act *15* 1.cr.wp.1472.14 (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

27 Considering the law as is laid down and the submissions of the learned Advocates, the Petitioner has thus, made a valiant effort to project a picture that these proceedings are purely of civil nature and the criminal proceedings are not required to be entertained.

28 The fallacy in the submissions of the Petitioner is exposed on two counts. Firstly, that in the entire Miscellaneous Civil Application No.3/2012 for seeking the heirship certificate, the Petitioner has not disclosed the fact that the Will Deed has been purportedly executed by Narharrao @ Narhari s/o Kashinath Deshmukh. Secondly, there are two biological daughters of Narharrao @ Narhari from his only marriage.

There is a possibility that the suppression of these material facts by the Petitioner could be for specific reasons and could also be with oblique motives.

                                                     

29 Similarly,   in   the   affidavit   filed   by   the   Petitioner   on 21.12.2012, he has specifically stated that he is the only legal heir of the deceased Narharrao @ Narhari and the deceased does not have any other child. The partnership deed is also placed on record along with the affidavit and the proclamation, though the details as regards the two biological daughters of Narharrao @ Narhari have not been put forth. It is under fortuitous circumstances, prima facie, that the publication of the proclamation in daily "Jagmitra", which may or may not have large circulation, did not lead to raising of objection before the learned Civil Court which granted the heirship certificate.

30 These facts, in my view, attract Section 193 of the Indian Penal Code as it deals with a person who intentionally gives false evidence in any stage of the proceedings for the purpose of using the said evidence for gain. Sections 417, 418 and 420 of the Indian Penal Code deal with the offence of cheating, punishment for cheating and attempt by cheating to have any property delivered to any person.

31 It needs clarification that these observations are at a prima facie stage and would not amount to conclusion of this Court on the merits of the matter considering the fact that the proceedings are still pending before the learned Magistrate.

32 It also cannot be lost sight of the fact that the learned Division

Bench, in it's order dated 30.10.2014, has concluded that the criminal proceedings set in motion need no interference. The criminal revision application filed by the Petitioner challenging the issuance of process which was rejected by the impugned order, is said to be considered by the learned Division Bench in paragraph 3 of the order dated 30.10.2014.

Though the said order can be said to be restricted to the pleadings and prayers put forth in the application which was dismissed, it, however, cannot be lost sight of the fact that the material before the learned Division Bench with regard to the challenge to the continuance of the criminal proceedings and the prayer for quashing of the said criminal proceedings, is the same as in this Writ Petition. The learned Division Bench has, therefore, applied it's mind to the facts of this case and has concluded that the proceedings do not deserve to be quashed.

33 In the light of the above, this Criminal Writ Petition fails and the same is, therefore, dismissed. Rule is discharged.

(RAVINDRA V. GHUGE, J.)

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