Bombay High Court
Fulabai W/O Bhausaheb Bansude vs The State Of Maharashtra And Another on 7 May, 2025
2025:BHC-AUG:13525
1 cri wp 224.25 with cri wp 193.25
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 224 OF 2025
Fulabai W/o Bhausaheb Bansude,
Age 77 years, Occu. Household,
R/o Bhausaheb Niwas, Moti Nagar,
Latur, Taluka and District Latur. .. Petitioner
Versus
1. The State of Maharashtra,
Through the Incharge,
Police Station Gandhi Chowk,
Latur, Taluka and District Latur.
2. Deepak S/o Sopan Bansude,
Age 46 years, Occu. Advocate,
R/o Bansude Niwas, Saraf Line,
Malang Galli, Latur,
Taluka and District Latur.
3. Govind S/o Sopan Bansude,
Age 60 Years, Occ. Agri/Business,
R/o Bansude Niwas, Saraf line,
Malang Galli, Latur,
Taluka & District Latur.
4. Shubham S/o Govind Bansude,
Age 26 Years, Occ. Business,
R/o Bansude Niwas, Saraf line,
Malang Galli, Latur,
Taluka & District Latur.
5. Dhondabai W/o Sopan Bansude,
Age 78 Years, Occ. Household,
R/o Bansude Niwas, Saraf line,
Malang Galli, Latur,
Taluka & District Latur
2 cri wp 224.25 with cri wp 193.25
6. Mahadev S/o Goroba Hale,
Age 70 years, Occu. Business,
R/o Hale Building Sambhaji Nagar,
Khadgaon Road, Latur,
Taluka and District Latur.
7. Prabhuling S/o Karbasappa Giram,
Age 48, Occu. Business,
R/o Moti Nagar, Latur,
Taluka & District Latur.
8. Vinod S/o Mallikarjun Khanapure,
Age 52 years, Occ. Business,
R/o Sainink Colony, Khadgaon Gayran,
Latur, Taluka & District Latur.
9. Gopal S/o Shankar Badade,
Age 80 years, Occu. Business,
R/o Miskinpura Chowk,
Deshpande Galli, Latur,
Taluka and District Latur. .. Respondents.
WITH
CRIMINAL WRIT PETITION NO. 193 OF 2025
Fulabai W/o Bhausaheb Bansude,
Age 77 years, Occu. Household,
R/o Bhausaheb Niwas, Moti Nagar,
Latur, Taluka and District Latur. .. Petitioner
Versus
1. The State of Maharashtra,
Through the Incharge,
Police Station Gandhi Chowk,
Latur, Taluka and District Latur.
2. Deepak S/o Sopan Bansude,
Age 46 years, Occu. Advocate,
3 cri wp 224.25 with cri wp 193.25
R/o Bansude Niwas, Saraf Line,
Malang Galli, Latur,
Taluka and District Latur.
3. Govind S/o Sopan Bansude,
Age 60 Years, Occ. Agri/Business,
R/o Bansude Niwas, Saraf line,
Malang Galli, Latur,
Taluka & District Latur.
4. Shubham S/o Govind Bansude,
Age 26 Years, Occ. Business,
R/o Bansude Niwas, Saraf line,
Malang Galli, Latur,
Taluka & District Latur.
5. Dhondabai W/o Sopan Bansude,
Age 78 Years, Occ. Household,
R/o Bansude Niwas, Saraf line,
Malang Galli, Latur,
Taluka & District Latur
6. Mahadev S/o Goroba Hale,
Age 70 years, Occu. Business,
R/o Hale Building Sambhaji Nagar,
Khadgaon Road, Latur,
Taluka and District Latur.
7. Prabhuling S/o Karbasappa Giram,
Age 48, Occu. Business,
R/o Moti Nagar, Latur,
Taluka & District Latur.
8. Vinod S/o Mallikarjun Khanapure,
Age 52 years, Occ. Business,
R/o Sainink Colony, Khadgaon Gayran,
Latur, Taluka & District Latur.
9. Gopal S/o Shankar Badade,
Age 80 years, Occu. Business,
4 cri wp 224.25 with cri wp 193.25
R/o Miskinpura Chowk,
Deshpande Galli, Latur,
Taluka and District Latur. .. Respondents.
Shri Rajendra S. Deshmukh, Senior Advocate i/by Shri
Ramankumar G. Dodya, Advocate for the Applicant in both
matters.
Mrs. Chaitali Choudhari-Kutti, A.P.P. for the Respondent No. 1
in both matters.
Shri Deepak S. Bansude, Advocate for the Respondent Nos. 2 to 9
in both matters.(Through V. C.).
CORAM : SHAILESH P. BRAHME, J.
RESERVED FOR JUDGMENT ON : 05.05.2025
JUDGMENT PRONOUNCED ON : 07.05.2025.
JUDGMENT :
-
. Rule. Rule made returnable forthwith. Heard learned
senior counsel Mr. Rajendrraa Deshmukkh instructed by Mr.
Ramankumar G. Dodiya for the petitioner, Mrs. Choudhari-Kutti
learned Assistant Government Pleader for the respondent No.
1/State and Mr. Bansude, learned counsel for the respondent
Nos. 2 to 9 (through video conferencing).
2. I proposed to dispose of both the writ petitions finally at
the admission stage with the consent of the parties.
3. In Criminal Writ Petition No. 193 of 2025, order dated
28.01.2025 passed by learned Principal District and Sessions
Judge, Latur, below Exh. 1 in Criminal M. A. No. 101 of 2024
seeking transfer of the proceeding is under challenge. In
5 cri wp 224.25 with cri wp 193.25
Criminal Writ Petition No. 224 of 2025, order dated 04.12.2024
forfeiting right of the petitioner to adduce evidence is under
challenge. I propose to refer to the paper book of Criminal Writ
Petition 224 of 2025.
4. First information report was registered at the instance of
the petitioner on 22.06.2015. Investigation was conducted and
charge sheet was filed on 15.01.2016 against respondent Nos. 2
to 9 for the offences punishable U/Sections 420, 406, 465, 467,
468, 471, 201 read with Section 34 of the Indian Penal Code.
Charge was framed below Exh. 157 by learned Judicial
Magistrate First Class, Latur on 05.10.2024. Prosecution
examined eighteen (18) witnesses. As the petitioner did not offer
herself for the cross-examination, statements of the accused
under Section 313 of the Code of Criminal Procedure (for short
"Cr. P. C.) were recorded and the matter is halted due to the
interim orders passed by this Court on 28.04.2025.
5. It is the case of the petitioner that her husband Bhausaheb
died on 01.04.2015. Respondents-accused got prepared his bogus
will deed dated 28.02.2015 showing bequeathing of the
immovable properties, amounts in the bank accounts and the
ornaments in favour of respondent No. 4 - Shubham. House
property is shown to have been bequeathed to respondent No. 5 -
Dhondabai and her husband. False and bogus signatures of
deceased/husband of the petitioner were made and accused
persons got prepared the record mutating name of the legatee. It
6 cri wp 224.25 with cri wp 193.25
is further alleged that agricultural proceeds of M/s Govind
Bhausaheb Bansude was misappropriated. Besides that, amount
of Rs. 20,30,909/- was defalcated by committing forgery and by
bogus cheques.
6. After the charge sheet, case was registered as R.C.C. No.
76 of 2016. The respondent No. 2 is a lawyer, who is also
representing other respondents. They are relatives of the
petitioner. The evidence was adduced before Judicial Magistrate
First Class (Court No. 4) Latur. Petitioner entertained grudge
against the Presiding Officer for the treatment being given to
her. The respondents-accused were absent at the time of framing
of charge. Despite of that the matter proceeded further. The
absence of the petitioner on medical ground was doubted by the
Presiding Officer. According to the petitioner undue haste is
being made by the Presiding Officer in deciding the matter. No
restrictions were imposed on the respondents-accused while
conducting cross examination of the witnesses. Apprehending
biased attitude of the Presiding Officer, petitioner moved Cri. M.
A. No. 101 of 2024 soliciting transfer of the proceedings.
7. The respondents-accused contested application. Relevant
record was taken into account by the learned Principal District
and Sessions Judge, Latur. By order dated 28.01.2025, learned
Principal District and Sessions Judge, Latur rejected application
for transfer, which is impugned in the present matter bearing
Criminal Writ Petition No. 193 of 2025.
7 cri wp 224.25 with cri wp 193.25
8. The Division Bench of this Court in past had directed the
Trial Magistrate to decide the matter expeditiously. Matter was
posted for cross examination of the petitioner on couple of
occasions, but the petitioner remained absent. It was adjourned
from time to time from 28.11.2024 to 30.04.2025. In the mean
time by order dated 04.12.2024 evidence of the petitioner was
foreclosed. Exhibit 01 bears the said order which is under
challenge in Criminal Writ Petition No. 224 of 2025.
9. Learned senior counsel Mr. Rajendra Deshmukh for the
petitioner submits that impugned order rejecting transfer
application is perverse because the grounds agitated by the
petitioner are not at all been dealt with. He would submit that
the conduct of the learned Presiding Officer was objectionable,
which was sufficiently demonstrated in the application. It is
contended that the petitioner is ready to cooperate, but the
Presiding Officer is showing unnecessary favours, to the
respondent No. 2 is a practicing lawyer.
10. Learned senior counsel further submits that his client has
suffered a lot because of the respondents-accused. The property
belonged to her husband, was misappropriated and they were
deceived by committing forgery. It is further contended that the
respondent No. 2, who is a practicing lawyer always attempted to
influence the Presiding Officer and pressurize the witnesses of
the petitioner. He would further submit that the petitioner could
8 cri wp 224.25 with cri wp 193.25
not keep good health and was unable to attend on couple of
occasions for offering herself to cross examination. The medical
certificate issued by the competent authority was also doubted on
hyper technical ground. Impugned order foreclosing the evidence
of the petitioner is against the principles of natural justice and
arbitrary. Lastly, it is submitted by the learned senior counsel
on instructions that if one opportunity is granted to his client,
she will make herself available for the cross examination and
adjournments will not be sought.
11. Per contra, learned counsel Mr. Bansude addressed this
Court through video conferencing. He would submit that in as
much as eighteen witnesses were examined by the prosecution
and no adjournment was sought by the accused. My attention is
adverted to orders passed by the Division Bench of this Court on
09.12.2019 and the last order dated 15.10.2024 in Criminal Writ
Petition No. 1754 of 2019. Despite directions issued, petitioner
did not bother to make herself available for cross examination.
Her only intention is to protract the proceedings. It is submitted
that baseless and frivolous allegations are made against the
Presiding Officer as well as accused persons. It is contended that
the respondent No. 4 - Shubham is adopted son of the deceased
Bhausaheb. Numerous proceedings are pending including
R.C.S. No. 328 of 2015 and Spl. C. S. No. 19 of 2016 between the
parties. It is further submitted that petitioner is harassing
entire family of the respondents. She is in habit of
making baseless allegations against the respondent No. 2 -
9 cri wp 224.25 with cri wp 193.25
Deepak. Impugned orders are rightly passed by the Trial Court
as well as the Principal District and Sessions Judge, Latur. Now
the matter is for arguments.
12. Learned senior counsel Mr. Deshmukh in rejoinder would
submit that the respondent No. 2 is in habit of filing frivolous
cases and complaints against the members of the bar, who
appear against him. His conduct is highly objectionable and
establishes a terror so that nobody would contest against him.
13. Learned advocate Mr. Bansude would refute the
submissions of the learned senior counsel. It is contended that
the petitioner has indulged in filing bogus and false cases.
14. I have considered rival submissions of the parties. I have
gone through the relevant papers. Having heard them at length,
it is evident that civil as well as criminal proceedings are
pending between them before various forums. The subject
matter is assets of M/s Govind Bhausaheb Bansude, immovable
properties, ornaments, amounts transacted in the bank accounts,
etc. Validity of will executed on 28.2.2015 is also subjudice. The
respondent No. 2 being a lawyer is appearing/representing in the
proceedings.
15. Both the sides have made rival allegations against each
others. Those are disputed questions of facts and cannot be gone
into at this stage of the proceedings. The submissions of the
10 cri wp 224.25 with cri wp 193.25
parties as to filing of frivolous cases, causing harassment,
prejudice and the entitlement to the proprietary rights can be
gone into by the fact finding forums. I do find it necessary to
delve into them in the writ jurisdiction.
16. It transpires from record that the Division Bench of this
Court in Criminal Writ Petition No. 1754 of 2019 had directed
Trial Court to decide the matter expeditiously and preferably
within six months vide order dated 09.12.2019. The proceedings
could not be concluded. By order dated 15th October, 2024 the
time was extended to dispose of R.C.C. No. 76 of 2016 within six
months. Even extended period has also been lapsed. In the
wake of the orders passed by the Division Bench, it was obevious
for the Presiding Officer to insist the parties to proceed with the
matter so as to come to the final conclusion. Directions given by
the Division Bench needs to be respected and any indulgence of
this Court in the order dated 28.01.2025 passed by the Principal
District and Sessions Judge, Latur in rejecting transfer petition
would be in defiance to the orders of the Division Bench.
17. It's a matter of record that case is pending since 2016.
Charge was framed on 05.04.2024. By this time eighteen
witnesses have been examined by the prosecution. Learned
senior counsel Mr. Deshmukh has on instructions made a
statement that if the order dated 04.12.2024 is quashed and
opportunity is provided, then his client would definitely offer
herself for cross examination without any default. Both the
11 cri wp 224.25 with cri wp 193.25
lawyers are interested in final disposal of the case. In that view
of the matter, I am of the considered view that there is no point
and purpose in transferring the matter from present Presiding
Officer. Impugned order dated 28.01.2025 though does not
specifically deal with grounds of objection stated in para No. 4 of
the application, cannot be faulted considering overall
circumstances. Mater is on the verge of completion. To avoid
further complications I simply dismiss Criminal Writ Petition
18. It reveals from record that application Exhibit 175 was
filed on 28.11.2024 by the respondent No. 1, when the petitioner
was unable to remain present due to health problem. It was
rejected on the same day as no medical certificate was filed on
record. On the same day application Exhibit 176 was filed by the
State along with list of documents. A medical certificate and
prescription was attached to it. Application Exhibit 176 was
allowed on 28.11.2024 directing the prosecution to file medical
certificate of the Government Medical Officer on 02.12.2024. On
02.12.2024 application Exhibit 178 was filed with medical
certificate of medical officer along with prescription disclosing
advise given to the petitioner to have rest for five days. On
02.12.2024 order was passed by the Presiding Officer doubting
the medical certificate and rejected the request for adjournment.
Petitioner was directed to remain present for leading evidence.
19. It is vehemently contended by the respondents that
12 cri wp 224.25 with cri wp 193.25
medical certificate of medical officer was tampered by applying
whitener. However, those are the disputed questions of facts and
there is no need to go into it.
20. It also reveals from record that on 04.12.2024, petitioner
was present, but she refused to depose due to illness and again
time was sought vide application Exhibit 186. It was rejected by
order dated 04.12.2024.
21. In this backdrop matter was posted on 04.12.2024 for the
cross examination of the petitioner. When she refused to depose
before the Court impugned order was passed forfeiting her
evidence. Lapses on the part of the petitioner cannot be
overlooked. Impugned order does not show any perversity or
illegality. Trial Court was bound by the directions issued by the
Division Bench of this Court.
22. However, I propose to adopt pragmatic approach of the
matter. Relying on the statement of the learned senior counsel
Mr. Deshmukh, I am inclined to grant one opportunity to the
petitioner to offer herself for the cross examination. The
petitioner needs to show her bonafides and abide by the
statement made before this Court. In case she fails to appear on
the next date or time is sought for by her or the prosecution, then
it would be open for the Presiding Officer to draw adverse
inference. I, therefore, find that a case is made out by the
petitioner to interfere with the order dated 04.12.2024
13 cri wp 224.25 with cri wp 193.25
dispensing her evidence on certain conditions.
23. For the reasons recorded above, I pass following order.
ORDER
A. The Criminal Writ Petition No. 193 of 2025 is dismissed.
B. The Criminal Writ Petition No. 224 of 2025 is allowed in
terms of prayer clause 'C' on following conditions :
(i) The petitioner shall make herself available before the Trial
Magistrate in R.C.C. No. 76 of 2016 on 16.05.2025 for cross
examination. Her cross examination shall be concluded by
28.05.2025.
(ii) Thereafter matter shall be finally concluded within a
period of four (04) weeks.
(iii) If the petitioner fails to appear on 16.05.2025 or unable to
avail herself for cross examination by 28.05.2025, then impugned
order dated 04.12.2024 dispensing with her evidence shall stand
restored.
(iv) In case of any default on the part of the parties, trial Court
shall be at liberty to impose heavy cost.
14 cri wp 224.25 with cri wp 193.25
C. Rule is made absolute in Criminal Writ Petition No. 224 of
2025 in above terms.
D. Rule stands discharged in Criminal Writ Petition No. 193
of 2025.
[ SHAILESH P. BRAHME J. ]
bsb/May 25
