Bombay High Court
Patrick Diniz Alias M. P. Diniz Rep. By ... vs Victor Diniz And 2 Ors on 15 October, 2024
2024:BHC-GOA:1763 14 WPCR 91 OF 2023.ODT
2024:BHC-GOA:1763
Esha
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NO. 91 OF 2023
Patrick Diniz alias M. P. Diniz, son of
Domingos Diniz, advocate, aged 84 years,
resident of H. No. 887, Cariamoddi,
Curchorem, Goa. (represented herein by
his duly constituted attorney, Richard
Florence Diniz @ Richard Diniz @ R.
Diniz, aged about 50 years, Indian,
resident of House No. 887, Cariamoddi,
Curchorem, Goa. ... Petitioner
Versus
1. Victor Diniz, son of Domingos Diniz,
aged 72 years, advocate, resident of
Cusmane, Quepem, Goa.
2. Sandeep Verlekar, s/o Sharanchandra
Verlekar, aged about 64 years, resident
of H. No. 108, Abade Faria Road,
Margao, Salcete, Goa.
3. Arun Verlekar, s/o Sharanchandra
Verlekar, aged about 58 years, resident
of H. No. 108, Abade Faria Road,
Margao, Salcete, Goa. ... Respondents
*****
Mr. Parag S. Rao with Ms. Sowmya Drago and Mr. Ajay
Menon, Advocates for the Petitioner.
Mr. James Lopes, Advocate for Respondent Nos. 2 and 3.
CORAM: BHARAT P. DESHPANDE, J.
DATED: 15th OCTOBER 2024
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ORAL JUDGMENT:
1. Rule. Rule made returnable forthwith. Heard finally at the
admission stage itself with the consent of the learned Counsel for
the parties.
2. Heard Mr. Rao for the Petitioner and Mr. Lopes for
Respondent Nos. 2 and 3.
3. The legality or otherwise of the impugned order passed by
the Revisional Court dated 28.04.2023 in Criminal Revision
Application No. 80/2022 is questioned in the present proceedings.
4. Mr. Rao would submit that the Petitioner filed in all three
complaints dated 10.08.2017, 02.10.2017 and 10.10.2017. He
submits that initially, the office of the Complainant was shared by
two other Advocates including the brother of the Complainant.
Subsequently, in the complaint dated 10.08.2017, the
Complainant informed the Police Authority that his name board
outside the said office premises was found missing. Mr. Rao
submits that on 02.10.2017, a second complaint was reported with
regard to the change of lock of the said office apprehending that
the furniture, fixtures inside the premises might be missing. A
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request was also made to the Police to carry out the panchanama.
Mr. Rao submits that accordingly, a panchanama was carried out
on 09.10.2017 and that too in the presence of Mr. Sandeep
Verlekar, Respondent No. 2, who opened the said lock and on
inspection, it was found that the furniture, fixtures and law books
were missing. Accordingly, the Complainant lodged third
complaint on 10.10.2017 with the Police apprehending that the
said furniture, fixtures and law books were removed by the
Accused persons.
5. Since there was no response, a private complaint was filed
by the Complainant before the concerned Magistrate, who ordered
an inquiry under Section 202 of Cr.P.C. During the inquiry, the
necessary documents including the statement of the Complainant
and his witnesses were recorded and thereafter, the learned
Magistrate found that there is prima facie material to issue
process only against Accused No. 2/Respondent No. 2 and
Accused No. 3/Respondent No. 3 thereby exonerating Accused
No. 1/Respondent No. 1.
6. Mr. Rao submits that the order passed by the Magistrate
issuing process was challenged by Respondent Nos. 2 and 3 before
the learned Sessions Court in Criminal Revision Application No.
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80/2022. He submits that while deciding the said Revision, the
learned Revisional Court failed to consider the complaint dated
10.10.2017 and the material produced before the learned
Magistrate to that effect.
7. Per contra, Mr. Lopes appearing for Respondent Nos. 2 and
3 would submit that the investigation or the panchanama was
never conducted and that the procedure followed by the concerned
Police Station is also doubtful. Mr. Lopes tried to justify the order
passed by the Revisional Court on the ground that such
proceedings were filed only to take revenge and were a waste of
time.
8. Mr. Lopes was unable to justify the Revisional Court's order
with regard to its observations and the absence of any findings in
connection with the third complaint dated 10.10.2017, wherein
specific allegations have been made by the Complainant against all
the Respondents.
9. A perusal of the order passed by the Magistrate would go to
show that such an order was passed after conducting an inquiry
under Sections 200 and 202 of Cr.P.C. as well as after calling for
the report of the Police Officer. It also shows that the statement of
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the Complainant and his witnesses were recorded and only
thereafter, the learned Magistrate found that there is prima facie
material against the Accused persons and more specifically,
against Accused Nos. 2 and 3 to show that they dishonestly
removed the furniture and fixtures from the said office. The
learned Magistrate accordingly issued process against Respondent
Nos. 2 and 3 for the offence punishable under Sections 379 and
120A of IPC.
10. Respondent Nos. 2 and 3 challenged such order before the
Revisional Court and by the impugned judgment dated
28.04.2023 set aside the order of the Trial Court and quashed the
complaint filed against the said Respondents.
11. A perusal of the order passed by the Revisional Court would
clearly reveal that discussions were made with regard to the
complaint dated 10.08.2017 and 02.10.2017, however, there is
absolutely no discussion about the third complaint dated
10.10.2017 which is considered to be the main complaint or the
only complaint with regard to the missing or removing of the
furniture or law books from the said office premises. Admittedly,
complaints dated 10.08.2017 and 02.10.2017 are with regard to
the missing of the name board and the change of the lock of the
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said premises. During the filing of those complaints, no
allegations were made with regard to the removal of the furniture
and law books from the office.
12. Mr. Rao is justified in submitting that only after the
panchanama was conducted on 09.10.2017 by the concerned
Police Officer, it was noticed by the Complainant that his
furniture, law books and other articles were missing from the said
premises.
13. Mr. Rao is also justified in pointing out that the key of the
said premises was found with Accused No. 2/Respondent No. 2,
who appeared at the said premises on 09.10.2017 and opened the
lock of the said office.
14. As far as the statement of Accused No. 2 as found recorded
in the panchanama is concerned, it is for the Trial Court to
consider whether it is hit by the provisions of Sections 25 and 26
of the Evidence Act since he is made an Accused in the said
proceedings. However, the observation of the learned Magistrate
is a fact that the premises were initially occupied by the
Complainant as the name of the Complainant shown on the name
board along with two other Advocates, clearly goes to show that
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the Complainant was operating his office premises from the said
place.
15. The inquiry conducted under Section 202 of Cr.P.C. before
the Magistrate also prima facie reveals that the other two
Advocates were allowed to operate from the said premises
including the brother of the Complainant/Accused No. 1.
16. The question before the concerned Magistrate is only about
the alleged theft of furniture, fixtures and law books from the
office premises. This prima facie opinion of the learned
Magistrate has been upset by the learned Revisional Court without
even adverting to the complaint dated 10.10.2017, which is the
main complaint regarding the missing of such lock. Thus, the
impugned order certainly suffers from non-application of mind as
well as perverse findings.
17. The recourse available to this Court is to quash and set aside
the order passed by the Revisional Court and remand the matter
for fresh consideration. Accordingly and without going into the
merits of the matter, the impugned order passed by the Revisional
Court on 28.04.2023 in Criminal Revision Application No.
80/2022 is hereby quashed and set aside. The said Revision is
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restored to the file of the said Court with a direction to decide it in
accordance with law. Needless to mention that the learned
Revisional Court shall give a fresh opportunity to the parties to
argue the said matter. It is expected that the learned Revisional
Court shall decide such Revision as expeditiously as possible.
18. Rule is made absolute in the above terms. No costs.
BHARAT P. DESHPANDE, J.
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