Bombay High Court
Patrick Diniz Alias M. P. Diniz Through ... vs Victor Diniz And Two Others on 22 October, 2024
2024:BHC-GOA:1853
2024:BHC-GOA:1853
WPCR.92 OF 2023
Shakuntala
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NO. 92 OF 2023
Patrick Diniz Alias M.P. Diniz
son of Domingos Diniz, advocate,
aged 84 yers, 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 aobut 64 years, resident
of H.No.108, Abade Faria Road,
Margao, Salcete, Goa.
3. Arun Verlekar, s/o Sharanchandra
Verlekar, aged aobut 58 years, resident
of H.No.108, Abade Faria Road,
Margao, Salcete, Goa. ...RESPONDENTS
Mr. Parag S. Rao with Ms. Sowmya R. Drago, Advocates for the
Petitioner.
Mr. James Lopes, Advocate for Respondent No.1.
CORAM:- BHARAT P. DESHPANDE, J.
DATED :- 22nd October, 2024
Page 1 of 6
22nd, October 2024
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WPCR.92 OF 2023
ORAL JUDGMENT
1. Rule.
2. Rule is made returnable forthwith.
3. Heard finally with consent.
4. The present petition is filed challenging the order
passed by the Revisional Court wherein certain aspects which
were highlighted and pointed out before the Trial Court are
not being considered.
5. Mr. Rao learned counsel appearing for the Petitioner
submits that the Complainant specifically disclosed about the
conspiracy and criminal breach of trust as well as
commission of theft of the articles belonging to the
Complainant from the premises. He submits that though the
learned Trial Court has observed that there appears to be a
criminal conspiracy between Accused Nos.1, 2 and 3, no
process was issued. He submits that the Revisional Court also
failed to consider this aspect and accordingly, both the
Courts arrived at a wrong conclusion.
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WPCR.92 OF 2023
6. Mr. Rao while pointing out the deposition of the
Complainant and his witnesses would submit that there is
prima facie material to issue process against Respondents,
however, the same has not been properly considered by the
Courts below.
7. Per Contra, Mr. Lopes learned counsel appearing for
the Respondent No.1 would submit that the premises were in
possession of Respondent No.1 which he handed over to the
owner while shifting to the new premises. He submits that
there is no material to show that Complainant was in
possession of the said premises. According to him,
conspiracy angle and the allegations regarding criminal
breach of trust are not made out and accordingly, both the
Courts rightly refused the request of issuance of process.
8. Rival contentions fall for determination.
9. A challenge in the present petition is the refusal to
issue process against the Respondent No.1 and thereafter
rejection of revision by the First Appellate Court.
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WPCR.92 OF 2023
10. Without going into the merits of the said contentions,
the order passed by the Magistrate dated 04/05/2022 would
clearly go to show that the material placed during inquiry
was considered and three separate complaints filed by the
Complainant were taken into account. The learned
Magistrate has observed in paragraph 11 that Accused No.1
replaced the lock of the said premises and thereafter, it was
noticed that the furniture/law books were found missing.
There is observation of the learned Trial Court in paragraph
11 that it appears that there was a conspiracy involving
Accused No.1. However, the learned Trial Court failed to
issue process against Accused No.1. A revision was filed by
the Petitioner before the First Appellate Court challenging
such order of the Magistrate which came to be disposed of by
an order dated 28/04/2023.
11. Upon perusal of the order passed by the Revisional
Court, it is clear that the observations of the learned Trial
Court with regard to prima facie appearance of conspiracy is
not been dealt with. There is absolutely no discussion with
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WPCR.92 OF 2023
regard to such observations of the learned Magistrate, while
deciding revision application as well as the complaint filed on
10/10/2017. Though there is a discussion with regard to the
complaint filed by Accused No.2/Sandeep dated 11/10/2017,
the aspect of conspiracy and criminal breach of trust is
alleged in the complaint, are not properly addressed.
12. Learned Revisional Court only stressed upon the
statement of Accused No. 2 recorded by the Police during the
panchanama and accordingly, observed that such statement
is clearly barred by Section 25 and 26 of the Indian Evidence
Act, 1872. Though such aspect is properly appreciated, the
contents of the complaint dated 11/10/2017 filed by Accused
No.2/Sandeep before the Margao Town Police Station cannot
be considered as hit by Sections 25 and 26 of the Indian
Evidence Act as it is an independent complaint lodged by
Accused No. 2 against the Complainant.
13. Without going into the merits with regard to the so
called possession of the premises, the Revisional Court
should have considered the evidence on record along with the
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WPCR.92 OF 2023
Complaint filed by Mr. Sandeep before the concerned Police
Station, in order to arrive as to whether there is sufficient
ground for issuing process against Accused No. 1.
14. Since this aspect is not considered, the recourse
available to this Court is to quash and set aside Revisional
Court's order and to remand the matter for fresh
consideration.
15. Accordingly, the order passed by the Revisional Court
dated 28/04/2023 in Criminal Revision Application 35/2022
is hereby quashed and set aside. The revision is restored to
the file of Additional Sessions Judge at Margao with
directions to decide the said revision as expeditiously as
possible and after giving an opportunity to argue the matter
afresh.
16. Rule is made absolute in above terms. No costs.
BHARAT P. DESHPANDE, J.
22nd, October 2024
