Bombay High Court
Vandana Kanhiya Yashwante vs The State Of Maharashtra And Others on 28 January, 2025
2025:BHC-AUG:2685
915WP1815-22.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
915 CRIMINAL WRIT PETITION NO. 1815 OF 2022
Vandana Kanhiya Yashwante,
Age: 42 years, Occu: Household,
R/o Plot No.69, N-9 Ranjwan
Housing Society, Aurangabad ... PETITIONER
(Original Complainant)
1. The State of Maharashtra,
Through Police Inspector,
Police Station Cidco, Aurangabad
2. Namdev S/o Eknath Gore,
Age: 39 years, Occu: Private job,
R/o Plot No.20, Vinayak Colony,
Naik Nagar, Near Venkatesh Public
School, Beed bypass, Aurangabad
3. Maya W/o Namdev Gore,
Age 36 years, Occu: Household,
R/o Plot No.20, Vinayak Colony,
Naik Nagar, Near Venkatesh Public
School, Beed bypass, Aurangabad
4. Chayya W/o Sitaram Yashwante,
Age: 55 years, Occ: Private service,
R/o Plot No.69, N-9, Ranjanwan,
Housing Society, Aurangabad
5. Dilip S/o Sitaram Yashwante,
Age: 35 years, Occu: Private Service,
R/o Plot No.69, N-9, Ranjanwan,
Housing Society, Aurangabad
6. Manisha W/o Dilip Yashwante,
Age: 30 years, Occu: Household,
R/o Plot No.69, N-9, Ranjanwan,
Housing Society, Aurangabad
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7. Sunil S/o Balbhim Mulajkar,
Age: 59 years, Occu: Business,
R/o N-8, Bajrang Chowk,
Cidco, Aurangabad ... RESPONDENTS
....
Mr. M. S. Karad, Advocate for the Petitioner
Mr. S. M. Ganachari, APP for Respondent No.1-State
Mr. S. S. Randive, Advocate for Respondent Nos. 2 to 6
CORAM : Y. G. KHOBRAGADE, J.
DATE : 28.01.2025
Oral Judgment :-
1. Rule. Rule made returnable forthwith and with consent of
both the sides it is heard finally at the stage of admission.
2. By the present Petition under Article 226 and 227 of the
Constitution of India, the Petitioner takes exception to the order dated
08.11.2022 passed by the learned Extra Joint District Judge and
Additional Sessions Judge, Aurangabad, in Criminal Revision
Application No.73 of 2022, thereby set aside order of issuance of
process passed by the Judicial Magistrate First Class, Aurangabad, on
23.12.2021 in Criminal Misc. Application No.343 of 2020 for the
offense punishable under Section 420, 467, 468, 504, 506, 379 read
with Section 34 of Indian Penal Code.
3. The Petitioner is the original Complainant and the
Respondent Nos. 2 to 7 are the original accused Nos. 1 to 6. For the
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sake of brevity parties to the present Petition will be referred in their
original capacity.
4. The Complainant filed a complaint R.C.C. No.3277 of
2021 alleging that, her father Shri Kanhaiya Govindrao Yashwante
was serving as Police Inspector with the Police Department. After
retirement of her father he was maintaining family of his younger
brother Shri Sitaram Yashwante i.e. Complainant's uncle. Her father
had purchased a flat in Nandanvan Colony, Bhavsingpura in the name
of her uncle Shri Sitaram Govindrao Yashwante. However, her uncle
was sold said flat to meet marriage expenses of his daughter. The
Complainant further alleged that, in the year 2005 her father
purchased a vacant plot at Chikalthana and raised construction. But
her uncle Sitaram was temporary permitted to stay in said House. On
29.09.2010, her father Shri Kanhaiya Govindrao Yashwante died but
during life time of her father a Gift-Deed was executed in her favour
on 07.01.2008 and said Gift-Deed duly registered with Public Notary.
5. The complainant further alleged that, the accused No. 3,
her Aunt and her cousins Ms. Chaya, Ms. Maya and Shri Dilip, who
are married but her cousin sister Ms. Maya (Accused No. 2) and her
husband Shri Namdev Eknath Gore (Accused No. 1) started residing
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as a tenant in her house. According to the Complainant, after the
death of her father, the Accused no. 1 Mr. Namdev Eknath Gore, her
cousin brother Shri Dilip (Accused No. 4) executed false and
fabricated Will Deed on 100/- Rupees Stamp Paper and under the
false and fabricated signature of her father got registered with the
Notary. Therefore, the accused have committed offences under
Section 420, 467, 468, 504, 506, 379 read with Section 34 of Indian
Penal Code, hence, prayed for investigation under Section 156(3) of
Code of Criminal Procedure.
6. On 17.12.2021, the learned Judicial Magistrate First
Class, Aurangabad passed an order and declined to issue directions
for investigation under Section 156(3) of the Code of Criminal
Procedure and called upon the Complainant to give her statement
under Section 202 of Cr. P. C. Accordingly, the Petitioner testified her
statement on oath u/s 202 of Cr.P.C. On 23.12.2021, the learned
Judicial Magistrate First Class, Aurangabad passed the order and
issued process against the accused Nos. 1 to 6 for the offenses
punishable under Section 420, 467 and 468 read with Section 34 of
IPC.
7. Being aggrieved by the said order of issuance of process,
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Respondent Nos. 2 to 7 invoked jurisdiction under Section 397 of
Cr.P.C., by filing Criminal Revision Application No.73 of 2022. On
08.11.2022, the learned Revisional Court passed the impugned order
holding that, the dispute involved in complaint is of civil nature. The
complainant already initiated probate proceeding and it is pending
before the Competent Court. Therefore, quashed and set aside the
order of issuance of process passed by the learned Judicial Magistrate
First Class on 23.12.2021.
8. The learned counsel for the Petitioner canvassed in
vehemence that, the learned Sessions Court failed to appreciate the
fact that, the Petitioner / Complainant has made out prima-facie case
and after satisfaction, the learned Judicial Magistrate issued process
on 23.12.2021 against the Respondents / Accused. Further, the
learned Revisional court failed to consider about preparation of false
and bogus Will-Deed under the signature of complainant's father and
entrusted property of her father. Therefore, the act on part of the
Respondents / accused amount to forgery and transferring of property
in their names on the basis of forged and fabricated documents.
9. Per contra, the learned counsel for the Respondent Nos. 2
to 7 supported the findings recorded by the learned Revisional Court.
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It is canvassed that, the Respondent Nos. 2 and 3 have already
initiated MARJI No.752 of 2017 a probate proceeding, wherein the
present Petitioner / Complainant is a party objector and said
proceeding is pending before the Competent Court. The fact of
pendency of civil proceeding is not denied by the Petitioner /
Complainant.
10. On perusal of complaint it prima-facie appears about
existence of civil dispute in respect of property. The averments made
in the complaint are based on two documents i.e., Will-Deed dated
20.10.2009 and Gift-Deed dated 07.01.2008. Therefore, the issue of
execution of Will-Deed or Gift-Deed can be decided by the civil Court
after both the parties are laid evidence.
11. It is trite settled principle of law that, the dispute of civil
nature cannot be settled by setting in motion of the criminal law or by
invoking provisions of Penal law. Therefore, I find that, findings
recorded by the learned Revisional Court are not perverse, illegal, bad
in law and no interference is called at the hands of this Court. Hence,
the Petition is dismissed.
[ Y. G. KHOBRAGADE, J. ]
HRJadhav
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