Dr Ravindra S/O Biharilal Gangwal ... vs Dr Ramesh S/Obiharilal Gangwal ...
2017 Latest Caselaw 6869 Bom

                                                                   CRWP-1640-16.odt


         
             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                 CRIMINAL WRIT PETITION NO. 1640 OF 2016

1.  Dr. Ravindra s/o Biharilal Gangwal
     Age: 60 years, Occu.: Medical Practitioner,
     R/o Belapur Bk., Tq. Shrirampur,
     Dist. Ahmednagar.

2.  Gokul Jagannath Kolse
     Age: 43 years, Occu.: Business,
     R/o Umbargaon, Tq. Shrirampur,
     Dist. Ahmednagar.

3.  Somnath Bahiru Ohol
     Age: 43 years, Occu.: Service,
     R/o Ramgad, Belapur,
     Tq. Shrirampur, Dist. Ahmednagar.

4.  Sharadkumar Phulchand Pahade
     Age: 69 years, Occu.: Business,
     R/o Kumbhar Galli, Sawta Maharaj Road,
     Shrirampur, Tq. Shrirampur,
     Dist. Ahmednagar.

5.  Govind Bansilal Shirgod
     Age: 63 years, Occu.: Business,
     R/o Belapur, Tq. Shrirampur,
     Dist. Ahmednagar.

6.  Pramod Kesharchand Mutha
     Age: 59 years, Occu.: Labour,
     R/o Belapur, Tq. Shrirampur,
     Dist. Ahmednagar.                                    ..PETITIONERS

               VERSUS

1.  Dr. Ramesh s/o Biharilal Gangwal
     Age: 69 years, Occu.: Labour,

                                       1   /  10




       ::: Uploaded on - 14/09/2017                ::: Downloaded on - 15/09/2017 00:43:59 :::
                                                                           CRWP-1640-16.odt


     R/o Belaupur, Tq. Shrirampur,
     Dist. Ahmednagar.

2.  State of Maharashtra                                         ..RESPONDENTS

                                    ....
Mr. D.R. Adhav, Advocate for petitioners.
Mr. S.D. Tiwshikar, Advocate for respondent no.1.
Mr. S.Y. Mahajan, A.P.P. for respondent no.2.
                                    ....

                                       CORAM :  V.L. ACHLIYA, J.

DATED : 07th SEPTEMBER, 2017

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith. By consent of the

parties, petition is heard finally at the stage of admission.

2. Petitioners herein have filed this petition claiming the relief as

under:-

"C) The impugned judgment and order dated 09/11/2016 passed by the Ld. Additional Sessions Judge Shrirampur in Criminal Revision Petition No. 44/2011 and the impugned judgment and order dated 25.8.2011 passed by the Ld. J.M.F.C. Shrirampur in OMA NO. 269/2009 (RTC No. 190/2011) thereby issuing process under Sec. 420, 467 and 468 r.w. 34 of Indian Penal Code may kindly be quashed and set aside by issue of writ of certiorary or any other appropriate writ, order or directions."

2 / 10

CRWP-1640-16.odt

3. In view of the settlement arrived in between Petitioner No.1

and Respondent No.1 to put an end the civil and criminal litigations

pending between them in terms of compromise pursis filed, which is

marked as "X", it is not necessary to discuss the facts in detail.

4. Petitioner No.1 and Respondent No.1 are the real brothers.

Both are Doctors by profession. Their father Dr. Biharilal Gulabchand

Gangwal died on 20th January, 2000. He was succeeded by his wife

Sumanbai and four sons which include Petitioner No.1 and Respondent

No.1 and one married daughter. He left behind some movable and

immovable property. Respondent No.1 filed an application under Section

156(3) of the Code of Criminal Procedure before the Court of Judicial

Magistrate First Class, Shrirampur, Dist. Ahmednagar alleging therein

that the petitioners herein have committed offences punishable under

Sections 192, 193, 404, 405, 406, 420, 423, 463, 464, 465, 467, 468 read

with Section 34 of the Indian Penal Code. It is alleged that in order to

grab the entire property, Petitioner No.1 has made false and bogus will of

deceased Biharilal Gangwal with the help of Petitioner Nos.2 to 6.

Respondent No.1 had approached the concerned police station for

lodging complaint against the petitioners. However the police have

refused to take cognisance of his complaint though offence of cognizable

3 / 10

CRWP-1640-16.odt

nature made out in his complaint. He, therefore, urged to direct the

police to investigate the complaint. Acting upon the

application/complaint filed by the complainant, the learned Judicial

Magistrate First Class, Shrirampur directed the officer in-charge of the

Police Station Shrirampur, Dist. Ahmednagar to investigate the

complaint. Pursuant to the order passed under Section 156(3), offences

punishable under Sections 192, 193, 404, 405, 406, 420, 423, 463, 464,

465, 467, 468 read with Section 34 of the Indian Penal Code came to be

registered against the petitioners vide C.R. No. 305 of 2009. The offences

were registered on 14th November, 2009. After registering the offences,

the police have investigated the complaint. On the basis of investigation,

the police filed report dated 15 th November, 2009. In the report filed, the

investigating officer has mentioned that the grievance made in the

complaint is purely dispute of civil in nature and Regular Civil Suit No.

117 of 2009 filed by respondent - complainant on 27 th August, 2009 is

pending in the Court of Civil Judge, Shrirampur. Vide order dated 25 th

August, 2011, the learned Magistrate pleased to take cognisance of the

complaint filed by the complainant and issued process under Sections

420, 467, 468 read with Section 34 of the Indian Penal Code as against

the petitioners. Being aggrieved the petitioners challenged said order by

filing Criminal Revision Petition No. 44 of 2011. By judgment and order

4 / 10

CRWP-1640-16.odt

dated 20th September, 2011, the learned Additional Sessions Judge,

Shrirampur dismissed the revision as not maintainable. The learned

Additional Sessions Judge, Shrirampur held that the order of issuance of

process being interlocutory order, revision petition is not maintainable.

The said order came to be challenged before this Court by way of

Criminal Writ Petition No. 751 of 2012. By judgment and order dated

23rd November, 2012, this Court (Coram: T.V. Nalawade, J.) allowed the

revision petition and set aside the order passed by the learned Additional

Sessions Judge, Shrirampur by holding that the revision petition is

maintainable against the order of issuance of process and remanded the

case for fresh decision. On remand, the learned Additional Sessions

Judge has again rejected the revision petition vide judgment and order

dated 09th November, 2016. Being aggrieved, the petitioners have

approached this Court.

5. During the pendency of the proceeding, this Court (Coram :

T.V. Nalawade, J.) vide order dated 20 th March, 2017 referred the matter

to the Court appointed mediator for amicable settlement between the

parties. The mediator has submitted report to effect that the mediation

has failed. On 28th July, 2017, when the matter was listed before this

Court, it was noticed that Petitioner No.1 and Respondent No.1 are real

5 / 10

CRWP-1640-16.odt

brothers and the dispute on account of property leads to filing of civil as

well criminal proceedings amongst them. Their mother aged about 92

years also dragged into litigation. In this view, the learned Counsel

representing the parties were asked to keep Petitioner No.1 and

Respondent No.1 present in the Court so as to explore the possibility of

mutual settlement. On 04th August, 2017, Petitioner No.1 and

Respondent No.1 appeared before the Court. On the intervention of the

Court, Petitioner No.1 and Respondent No.1 have agreed to settle all the

pending civil and criminal litigations amongst them. It was decided by

Respondent No.1 to give up his 1/6 th share in the suit property by

accepting an amount of Rs.4,50,000/- from Petitioner No.1 and the

parties have decided to settle/withdraw the pending cases. They have

filed joint compromise pursis which is marked as "X" for identification.

The terms of the compromise reads as under:-

"1) That, it is decided by the petitioner no.1 and respondent no.1 that all the pending proceedings of Civil and criminal types will be withdrawn and both brothers will not litigate against each other in any court of law hence forth. That, it is also decided by the petitioner no.1 and respondent no.1 to fully obey and respect the deed of will executed by late Shri Biharilal s/o Gulabchand Gangwal (father of the both) in the year 1982. That, both brothers have decided to amicably settle all the matters in

6 / 10

CRWP-1640-16.odt

view of older age of their mother Sumanbai and in the interest of her mental peace and family relations.

2) That, it is decided that the respondent no.1 will not pursue the judgment and decree passed in his favour by Hon'ble the Civil Judge S.D. Shrirampur vide RCS No. 47/2012 dated 3/5/2016. It is also agreed and accepted to respondent no.1 that he will not file any execution proceeding based on above judgment of Civil Court.

3) That, it is also accepted and decided by respondent no.1 that, he completely and permanently forfeit his 1/6th share in the ancestral property left behind by late Shri. Biharilal Gulabchand Gangawa in favour of petitioner no.1 Dr. Ravindra Biharilal Gangawal.

4) That, towards the above forfeiture of 1/6th share by respondent no.1, the petitioner no.1 today paying respondent no.1 an amount of total Rs.4,50,000/- by issuing A.C. payable cheques in his favour. That the description of the cheques is as follows:

1) The cheque bearing no. 011960 of Nagar Urban Cooperative Bank, branch Belapur, of Rs.2,50,000/- dated 1/9/2017 from Account No. 4129=1002.

2) The cheque bearing no. 011961 of Nagar Urban Cooperative Bank, branch Belapur, of Rs.2,00,000/- dated 1/10/2017 from Account no. 4129=1002.

5) That, it is accepted to the respondent no.1 that, the criminal case filed by him before Hon'ble J.M.F.C. Shrirampur bearing RTC No. 190/2011 will be dismissed

7 / 10

CRWP-1640-16.odt

by allowing this writ petition pursuant to this compromise. The respondent no.1 humbly consents this dismissal.

6) That, it is also agreed and accepted to the petitioner no.1 that he will withdraw the appeal bearing RCA No. 20/2016 filed by him before Hon'ble District Judge, Shrirampur in view this compromise and respondent no.1 will give the pursis of his waiver of 1/6 th share in property in favour of petitioner no.1.

7) That, it is also decided and accepted that, the respondent no.1 and petitioner no.1 both will file common pursis before Divisional Commissioner, Nashik and seek withdrawal of RTC Appeal No. 416/2016. Similarly RCA NO. 32/2015 filed by petitioner no.1 and pending before Hon'ble District Juge Shrirampur will be withdrawn."

6. Pursuant to the compromise arrived between Petitioner No.1

and Respondent No.1, they decided to appear before the respective

Courts and file appropriate application/compromise pursis to get

disposed of all the pending proceedings. Vide order dated 20 th August,

2017, they were directed to appear before the respective Courts on 01 st

September, 2017 and file appropriate application/compromise pursis to

settle all the pending civil and criminal proceedings amongst the parties

and appear before this Court on 06 th September, 2017. On 06th

September, 2017, it is reported that application/compromise pursis has

8 / 10

CRWP-1640-16.odt

been filed in the pending appeal and the appeal has been disposed off as

per settlement. It is further reported that criminal case could not be

withdrawn as the learned Magistrate expressed the view that the

application for withdrawal of the complaint cannot be entertained by

him. In view of this, Petitioner No.1 and Respondent No.1 have

approached this Court and urged to quash the criminal proceeding by

consent.

7. In view of the overall nature of the disputes and the settlement

arrived, I am of the view that there is no point to proceed with the matter

by the trial Court. If we consider the overall allegations made in the

complaint, then it is alleged that Dr. Biharilal Gulabchand Gangwal, the

deceased was not in a position to execute such will due to mental and

physical disability. It is alleged that taking disadvantage of the serious

illness and incapacity, the Petitioner No.1 has obtained his signature on

the blank paper and got scribed the contents as that of will so as to grab

the entire property. If we consider the report of the investigation

submitted by the Investigating Officer, then it make out no case to

prosecute petitioners. During the course of investigation, the statements

of various persons were recorded. So also number of documents were

collected. Perusal of the order of issuance of process reveals that the

9 / 10

CRWP-1640-16.odt

report of investigation submitted by the investigating officer not at all

taken in consideration while passing the impugned order. In this view,

the order passed by the learned Magistrate appears to be passed without

proper application of mind. The civil dispute amongst the Petitioner No.1

and Respondent No.1 leads to filing of criminal complaint. They have

decided to put an end to all the litigations between them.

8. Thus, considering the overall facts of the case and the

compromise arrived at in between the Respondent No.1 - complainant

and Petitioner No.1 - Accused No.1, the complaint filed by Respondent

No.1 deserves to be quashed. In this view, I am inclined to allow the

petition in terms of prayer clause "C". Criminal proceeding pending

against the petitioners filed at the instance of Respondent No.1 in the

Court of Judicial Magistrate First Class, Shrirampur stands quashed. The

petitioner - accused stands discharged from that case.

9. Rule made absolute in the above terms.

( V. L. ACHLIYA, J. ) SSD

10 / 10