Liladevi Radheshyam Jaju vs State Of Mah. Thru. Pso Pratap ...
2017 Latest Caselaw 8717 Bom

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.





 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

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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

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

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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.

...................

...................

...................

Sanjay Maheshwari P.O.A. for Sau.Sarladevi Maheshwari ....................

.................l..

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

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

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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

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