Bombay High Court
Mohammad Illiyas Mohammad Shafi ... vs Shaheen Parveen Ziaulmallan Khan ... on 17 February, 2022
Bench: Avinash G. Gharote
(1) 29.cri.wp.194.2020
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.194 OF 2020
Mohammad Illiyas Mohammad Shafi and others
Vs.
Shaheen Parveen Ziaulmallan Khan and another
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. P. R. Agrawal, Advocate for petitioners.
Mis. H. Z. Haider, APP for respondent No.2.
CORAM : AVINASH G. GHAROTE, J.
DATE : 17/02/2022
Heard Mr. Agrawal, learned counsel for the
petitioners.
2. The petition challenges the order dated
26.07.2018 passed by the learned Magistrate, issuing
process under Sections 465, 467, 477A, 417, 420, 471,
120B, 409, 418 and 166 of the Indian Penal Code in
Criminal Case Case No. 145 of 2010 and the subsequent
judgment of the learned Sessions Court dated
15.11.2019, dismissing the challenge to the same.
3. It is contended that the respondent no.1, had
filed a complaint, on 17.08.2010, alleging cheating and
forgery by the petitioners, in the matter of appointment
of the petitioner No.3, against the petitioners. On
22.03.2011 an enquiry was ordered by the learned
Magistrate, in pursuance to which on 15.07.2011 a
report was submitted by the police (page 38), wherein it
(2) 29.cri.wp.194.2020
was stated that there was no substance in the complaint.
As the transfer order issued to the respondent no.1, was
challenged by her in Writ Petition No.1553 of 2011, this
Court, by an order dated 29.03.2011 directed the
Education Officer, to make an enquiry and submit a
report. Accordingly, enquiry was conducted by the
Education Officer, who, by his report dated 05.07.2011
(page 109), opined that there was no forgery. He has also
recorded, that the respondent no.1 was called upon to
submit her fingerprints to verify the same on the service
book, roster and other documents, however, she had
refused to do so and therefore, it was opined that she
was unable to substantiate her allegations and the entries
in the service book and other records were found to be
correct. Writ Petition No.1532 of 2011 came to be
withdrawn by the respondent no.1. The report of the
Education Officer thereafter, came to be challenged by
the respondent no.1 in Writ Petition No.4433 of 2011,
which also came to be withdrawn on 25.07.2011 (page
112) indicating that the findings rendered in the enquiry
report dated 05.07.2011 were rendered final.
4. On 26.03.2012, the learned Magistrate
issued process, which was challenged in revision by the
petitioner which came to be dismissed on 13.07.2012,
which, in turn, is challenged in Writ Petition No.497 of
2013, which came to be allowed on 26.09.2017 (page
78/81) and the matter was remanded back to the learned
Magistrate. The learned Magistrate thereafter by the
order dated 26.07.2018 again issued process, which
(3) 29.cri.wp.194.2020
order came to be challenged in revision by the petitioners
being Criminal Revision No.13 of 2018, which came to be
dismissed by judgment dated 15.11.2019, as a result of
which, the present petition is before this Court.
5. Mr. Agrawal, learned counsel for the
petitioners submits that the Courts below, failed to take
into consideration, the police report dated 15.07.2011 as
well as the report of the Education Officer dated
05.07.2011, which was rendered final, both of which,
categorically opined that there was no substance in the
complaint. He further contends that the order of the
learned Magistrate dated 26.07.2018, is merely
reproduction of the earlier order dated 26.03.2012 and
clearly ignores the aforesaid two reports and is merely
based upon conjectures and surmises. He further relies
upon the conduct of the respondent no.1, as recorded by
the Education Officer in his report dated 05.07.2011 of
refusing to give her fingerprints for the purpose of
verifying the same on the service book, roster and other
documents. He, therefore, submits that the order of
issuance of process ignoring the report of the Police
Officer as well as the Education Officer cannot be
sustained. It is further contended that the reasons
recorded by the learned Magistrate in para 9 for not
relying upon the police report are clearly untenable,
considering the contents of the reports and the opinion of
the Education Officer of the respondent no.1 having
failed to provide her fingerprints for the purpose of
verification. In so far as, the judgment in revision is
(4) 29.cri.wp.194.2020
concerned, he contends that the same is based upon
incorrect premise, that the Education Officer had opined,
that enquiry and investigation is required in the matter,
which according to him, the report dated 05.07.2011
does not say so (pg.110). On the contrary, he submits
that the report categorically records the non-cooperation
of the respondent no.1 in the enquiry in spite of
allegation being made that the fingerprints on the service
book of the respondent no.1 were forged and fabricated.
It is, therefore, submitted that the impugned orders
cannot be sustained and are required to be quashed and
set aside.
6. Mr. Walthare, learned counsel for the
respondent no.1 is absent. The order dated 20.07.2021
also records his absence and gives him a last chance,
however, even on subsequent dates Mr. Walthare, learned
counsel for the respondent no.1 has not put in his
appearance. In order to afford an opportunity, the matter
be listed on 23.02.2022 and it is made clear that if the
learned counsel for the respondent no.1 does not appear,
this Court shall proceed further on its own merits.
JUDGE
Sarkate
Digitally signed byANANT R
SARKATE
Signing Date:18.02.2022
14:22
