Smt. Rahima Abusaheb Munshi, ... vs The State Of Maharashtra
2003 Latest Caselaw 158 Bom

JUDGMENT

J.G. Chitre, J.

1. Heard Shri Kotwal and Shri Gadkari at length. Shri Kotwal, Counsel appearing for the petitioner, submitted that the present petitioner has been charged for committing offence punishable under Section 465 of Indian Penal Code which provides for the sentence extending to rigorous imprisonment for two years with fine and the co-accused has been charged for committing the offence under provisions of Section 477A of I.P.C. which provides for the sentence of rigorous imprisonment for seven years. He submitted that the original complainant is staying at Canada and is not likely to come to India, because the partition suit which was filed by him claiming the partition from the present petitioner who happens to be his real sister has been dismissed for default He submitted further that the original complainant has not bothered anything for the said suit and therefore it is next to impossible that he would be coming for attending the prosecution in which the present petitioner has been tangled with co-accused, accountant of the said firm.

2. Shri Kotwal further submitted that the accounts were kept by co-accused and being a lady, the petitioner was not expected to know much of it. He further pointed out that when the accounts were submitted before the Income Tax authorities, the original complainant has also signed with the present petitioner, as real sister and that impliedly shows that he must have examined those accounts. He further submitted that the presentation of the accounts to the Income Tax authorities on 31st of December 1986 impliedly means that he accepted the correctness of those accounts and therefore joined the petitioner in presentation of those accounts for examining and scrutiny of concerned Income Tax authorities. He further submitted that it means that the petitioner was not acting in furtherance of common intention as indicated by provisions of Section 34 of Indian Penal Code and therefore, the learned Magistrate was totally wrong in roping the present petitioner along with co-accused who was mainly responsible for maintaining the accounts. Shri Kotwal further submitted that the averments made in the complaint themselves shows that whenever there is to be conversation between the original complainant and the petitioner, the original complainant endorsed the request made by the petitioner and got himself dissolved from the said partnership. It also fortifies his argument as submitted by Shri Kotwal that there was no ingredient disclosed by the complainant so as to invoke the provisions of Section 34 of I.P.C.

3. He submitted that the petition be allowed, the prosecution which has been pending in the Court of J.M.F.C. Solapur be quashed and this petitioner be exonerated from facing the said prosecution. In the alternative he prayed that her case be separated from the case of co-accused and the learned Magistrate be directed to expedite the said trial at early date, as early as possible.

4. Shri Gadkari submitted that there is no case for exonerating the petitioner from the said criminal prosecution. He also opposed the prayer for separating the trial and deleting the charge in context with the provisions of Section 34 of Indian Penal Code.

5. In view of the submissions advanced before me and the record available for the purpose of perusal, this Court comes to the conclusion that the prayer for exonerating the petitioner from the said prosecution cannot be allowed. However the case of the petitioner has to be separated from the case of the co-accused and the charge in the context with the provisions of Section 34 of the Indian Penal Code has to be deleted for the reasons stated hereunder.

6. The complaint has to be considered as it is for the purpose of coming to the conclusion whether the petitioner and co-accused were acting in furtherance of common intention as indicated by the provisions of Section 34 of Indian Penal Code. For that purpose the most important thing to be seen is whether they were acting with prior concert for committing the alleged offence. There has to be meeting of minds for the purpose of committing an act which is in furtherance of common intention for which the petitioner and co-accused are facing the trial.

7. There are averments in the complaint itself that there was conversation between the original complainant and the present petitioner and in that conversation the petitioner requested the original complainant to give more attention to the business. Had there been the intention of committing the offence which has been indicated by the provisions of Section 477A of I.P.C. Attributable to the petitioner, she would not have requested the original complainant to give attention to the said business. Had there been the intention of committing the alleged offence of Section 477A of I.P.C., the original complainant could not have presented the accounts for scrutiny of the concerned Income Tax authorities. He would not have also signed a letter by which those accounts were referred to the Auditor for auditing. The death nail has been given to the said prosecution by the act of the original complainant by separating himself from the said partnership by dissolving it and that has been fortified by filing a suit for dissolution. The learned Magistrate was thus obviously in error in roping this petitioner alongwith co-accused by applying the provisions of Section 34 of I.P.C. Sections 34 and Section 149 are not to be applied in the charge as a matter of routine. It has to be applied after judicial scrutiny of the material surfaced by the prosecution or investigation done by the investigating agency. There has to be a limited scrutiny necessitating if for the purpose of framing a charge against the accused. Failure to do so is likely to cause miscarriage of justice and prejudice to such litigant who is at receiving end. Therefore, this Court comes to a conclusion that the act of the learned Magistrate in roping this petitioner with co-accused by the help of provisions of Section 34 of I.P.C. is illegal and it has to be quashed.

8. The original complainant stays at Canada. His suit has been dismissed for default. There would be difficulties in procuring his presence for evidence before the trial Court. But that does not mean that this Court should exonerate the petitioner at this stage by usurping the jurisdiction of the trial Court. The trial Court has to be given sufficient opportunity to exercise its jurisdiction in this context. The trial is pending since 1991. There is a limit for any accused to attend the Court. Attending the Court for the prosecution implies agony, mental torture, humiliation and lot of expenses also for engaging a lawyer and defending himself or herself. Speedy trial is important right guaranteed to a litigant in a criminal trial by our Constitution.

9. Thus, the charge which has been framed against the petitioner for offence which has been indicated by the provisions of Section 34 of Indian Penal Code tagging her with co-accused in Criminal case No. 92/1999 pending before the J.M.F.C. Solapur, Court No. II stands quashed. She is now to be tried for the offence which has been indicated by the provisions of Section 465 of Indian Penal Code. The concerned Magistrate has to follow the procedure which has been indicated by Chapter XX of the Code of Criminal Procedure, 1973. The learned Magistrate should explain the particulars of the offence again to the petitioner as indicated by the provisions of Section 251 of Code of Criminal Procedure 1973. The petitioner is entitled to make a prayer to concerned Court in view of provisions of Section 358 of Cr.P.C. if complainant does not come to the Court after the trial Court issues summons to him as indicated by the relevant provisions of the Code of Criminal Procedure Code, 1973.

10. Thus, petition stands partly allowed as indicated by the final order. The petitioner to appear before the trial Court on 11th of March 2003.

Parties concerned to act on a simple copy of this order, duly authenticated by the Court Stenographer/Sheristedar of this Court.