WP 324/08 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 324/2008
Smt.Liladevi Radheshyam Jaju,
Aged about 58 years, Occupation - household,
Resident of 1-8-212, P.G. Road, Secunderabad,
Andhra Pradesh. PETITIONER
.....VERSUS.....
1. State of Maharashtra,
Through Police Station Officer,
Pratap Nagar, Nagpur.
2. Sudhir Balwant Aloni,
Aged about 45 years, Occupation - Business,
Resident of 23, Trimurti Nagar, Nagpur. RESPONDE
NTS
Sanjay Parmanand Maheshwari,
Aged about 45 years, Occu-Agril. and business,
Permanent R/o Vasant Nagar, Umarkhed,
Distt. Yavatmal, Temporarily R/o
C/o Atharva Apartment, Plot No.96, Shivaji Nagar,
Nagpur. INTERVENO
R
Mr. N.R. Saboo, counsel for the petitioner.
Mr. A.M. Joshi, Additional Public Prosecutor for the respondent no.1.
Mr. I.Z. Haq, Advocate h/f for Mr.A.G. Gharote, counsel for the respondent no.2.
Mr. Pushkar Ghare, Advocate h/f Mr.A.M. Ghare, counsel for the Intervenor.
CORAM : REVATI MOHITE DERE, J.
DATE : 15 TH NOVEMBER, 2017.
ORAL JUDGMENT
Heard the learned counsel for the parties.
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WP 324/08 2 Judgment
2. By this petition, the petitioner has impugned the order dated 12.02.2007 passed by the learned Judicial Magistrate First Class, Court No.9, Nagpur, below Exhibit 1 in Criminal Complaint No.1680/2007 (Summary Case No.1680/2007), by which process was issued as against the petitioner and others for the alleged offence punishable under Section 500 r/w Section 34 of the I.P.C.; as well as the judgment and order dated 29.02.2008 passed by the learned Additional Sessions Judge, Nagpur in Criminal Revision No.148/2007 by which the petitioner's revision application came to be dismissed and the order dated 12.02.2007 was confirmed.
3. Mr. N.R. Saboo, learned counsel for the petitioner submits that taking the complaint as it stands, no offence as alleged is disclosed qua the petitioner. He submits that the public notice (Annexure-C), which is at Page 24 of the petition, clearly shows that the same was issued by Sanjay Maheshwari as Power of Attorney holder for Smt.Sarladevi Maheshwari, and not by the petitioner. He submitted that the petitioner had never given any power of attorney to Sanjay Maheshwari, at any point of time. According to the learned counsel, the petitioner cannot be held liable or responsible for the public notice, which was issued by Sanjay Maheshwari, as the Power of Attorney holder for Smt.Sarladevi Maheshwari. He submitted that in the absence of any ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 01:13:45 ::: WP 324/08 3 Judgment material qua the petitioner, continuation of the proceedings against her, would clearly amount to abuse of the process of the Court.
4. Mr.I.Z. Haq, learned counsel for the respondent no.2 vehemently opposed the petition. He submitted that the public notice on the face of it, is defamatory. According to the learned counsel, Sanjay Maheshwari was also holding the power of attorney of the petitioner and others. Mr.Haq, submitted that the defences raised by the petitioner can be considered by the trial Court, at the time of trial. He submitted that no interference was warranted in the impugned orders dated 12.02.2007 and 29.02.2008 passed by the learned Magistrate and the learned Sessions Judge, respectively.
5. Mr.Pushkar Ghare, learned counsel for the intervenor, i.e. Sanjay Maheshwari, has stated in his reply that the public notice was given by him, pursuant to the power of attorney held by him for Smt.Sarladevi Maheshwari and not at the instance of the petitioner.
6. Perused the papers as well as the impugned orders. Admittedly, there is a civil dispute between the parties, with respect to a plot of land. It appears that as a consequence of the said dispute, the petitioner alongwith others filed a civil suit, being Special Civil Suit ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 01:13:45 ::: WP 324/08 4 Judgment No.371/2006, in the Court of the learned Civil Judge (Senior Division), Nagpur in March-2006, as against the respondent no.2 and ten others, for declaration, partition, separate possession and injunction. Admittedly, the said suit is pending. It appears that on 24.01.2007, a public notice was published by Sanjay Maheshwari, the power of attorney holder for Smt.Sarladevi Maheshwari, in the local newspapers "The Hitavada', 'Lokmat Times', 'Lokmat Samachar' and 'Lokmat'. In the said public notice dated 24.01.2007, what is alleged to be defamatory (relevant paras reproduced) by the respondent no.2, is as under:-
"..............
They have got illegally registered the sale deed on 7/4/2004 by committing forgery of the documents. The forgery in respect of partition deed with Shyam Mundhada and Ramchandra Mundhada is also committed in respect of the partition deed. We have challenged the sale-deed as well as the partition deed by filing the suit in the Court of 5 th Jt.Civil Judge (Sr.Dn.) Nagpur. It is registered as Special Civil Suit No.371/06. The same is pending and fixed for 29/01/2007. The record can be inspected from the said Court.
The above land is also subject matter of Urban Ceiling Case No.ULC 966/76 which is pending before the competent Authority under U.L.C. Under the above circumstance Mr. Dilip Bharadwaj and 7 others have no right to deal with the said property. Similarly Shamsundar Mundhada and Ramchandra Mundhada have also no right to deal with the said property in any ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 01:13:45 ::: WP 324/08 5 Judgment manner. If any body enters into any transaction with them it is then they will be doning so at their own risk. The decision in the above Civil Suit and Ceiling Case will be binding on them. The doctrine of lispendence will be applicable.
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Sanjay Maheshwari P.O.A. for Sau.Sarladevi Maheshwari ....................
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Pursuant to the said public notice dated 24.01.2007, the respondent no.2 through Dilip Bharadwaj and others (including respondent no.2) also published their reply notice, stating that the notice dated 24.01.2007 is fraudulent and mischievously published by Smt.Sarladevi Maheshwari to defame them. It also appears that subsequently in April-2008, C.R. No.3075/2008 was registered with the Police Station Sakkardara, Nagpur as against the respondent no.2 and others, for the alleged offences punishable under Sections 420, 467, 468, 471, etc. After investigation, charge-sheet was filed against the said persons, including the respondent no.2. The said criminal case is also pending.
7. The short question that arises in the present petition is, whether the Magistrate was justified in issuing process as against the petitioner and whether the learned Sessions Judge was justified in ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 01:13:45 ::: WP 324/08 6 Judgment dismissing the petitioner's revision application, taking the material as it stands qua the petitioner in the complaint. Although it is contended by the learned counsel for the respondent no.2, that the said public notice although mentions the name of Sanjay Maheshwari, power of attorney holder of Smt.Sarladevi Maheshwari, the said notice was infact sent by all others, including the petitioner. He submits that the words used in the public notice are 'We'. A perusal of the public notice dated 24.01.2007 clearly shows that the said public notice has been issued by Sanjay Maheshwari, the power of attorney holder for Smt.Sarladevi Maheshwari. Admittedly, no power of attorney was given by the petitioner to Sanjay Maheshwari and the power of attorney, which is on page 137, clearly shows that the said General Power of Attorney was given by Sarladevi Maheshwari to Sanjay Maheshwari. Infact, a perusal of the reply notice published by the respondent no.2 and others, in particular, paragraphs 4 and 5 clearly show that the allegations are as against Smt.Sarladevi Maheshwari. Without going into the merits, whether the public notice discloses the commission of an offence or not, as this Court is not called upon to do so, it would not be necessary to deal with the same. Suffice to state, that the said public notice on the face of it and on the basis of the material on record does not show that the same has been sent at the behest of the petitioner. Merely because Smt.Sarladevi Maheshwari and the petitioner are the co-plaintiffs in a civil suit, it cannot be ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 01:13:45 ::: WP 324/08 7 Judgment assumed/presumed, in the absence of any material to the contrary, that the said public notice was also issued at the behest of the petitioner. Infact, a perusal of the complaint shows that the allegations are essentially as against Smt.Sarladevi and that all the co-accused (including the petitioner) are alleged to have given their consent, concurrence, assent to the publication, only on the basis of the language used in the notice 'we' in plural, for making all the co-accused (including the petitioner) jointly and severally liable for the offence punishable under Section 500 r/w Section 34 of the I.P.C. As noted earlier, admittedly, no power of attorney was given by the petitioner to Sanjay Maheshwari. Admittedly, the notice does not reflect the name of the petitioner. In the absence of any material to show the complicity of the petitioner, continuation of the proceedings qua the petitioner, would clearly be an abuse of the process of the Court. Both the lower Courts have failed to consider that there was no material on record qua the petitioner to issue process against her.
8. Considering the aforesaid, no offence as alleged is disclosed qua the petitioner. Accordingly, the petition is allowed and the impugned order dated 12.02.2007 passed by the learned Judicial Magistrate First Class, Court No.9, Nagpur, below Exhibit 1 in Criminal Complaint No.1680/2007 (Summary Case No.1680/2007), issuing process as ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 01:13:45 ::: WP 324/08 8 Judgment against the petitioner, as well as the judgment and order dated 29.02.2008 passed by the learned Additional Sessions Judge, Nagpur in Criminal Revision No.148/2007 are quashed and set aside. Rule is made absolute in the aforesaid terms.
JUDGE APTE ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 01:13:45 :::