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2009 DIGILAW 1276 (BOM)

Manisha Manohar Gokhale v. State of Maharashtra

2009-09-25

V.R.KINGAONKAR

body2009
JUDGMENT :- Both these criminal applications filed under section 482 of the Criminal Procedure Code are being decided together in as much as they arise out of the similar state of facts. 2. The applicants in both the applications have come out with a case that they have been falsely involved in criminal prosecutions initiated by the respondent no.2 Smt. Vijaya Joshi. The applicant in context of criminal application no.5337 of 2003 and the applicant no.2 in the companion application is the real sister of the respondent no.2 - Smt. Vijaya Joshi. They are in all four sisters and 2 brothers. Their father has left certain movable and immovable property at Velas, Taluka Mandangad. The respondent no.2 and other two sisters desired to initiate dispute against their two brothers about the properties of their father. Their father died on 8th November, 1970. The petitioner - Smt. Manisha initially had joined them. The four sisters jointly decided to initiate proceedings to stake legal claim in respect of their rights. They together prepared a power of attorney. The remaining three sisters of the applicant-Smt. Manisha called for a meeting on 3rd December. 2000 at Pune. 3. The husband of applicant-Smt. Manisha who is applicant no.2 in criminal application No.5336 of 2003, attended the said meeting. He informed the other three sisters of applicant-Smt. Manisha that he was instructed by her to tell them that she was no more interested in proceedings against the two brothers. He informed them that she was not ready to file any proceeding against her two brothers. He also told that she has withdrawn from the common power of attorney which was in favour of Mahadeo Bhikaji Apte to look after the litigation on their behalf. 4. A notice was thereafter sent to applicant-Smt. Manisha by the advocate of the nther sisters. It was alleged that she had attempted to assist her brothers in their illegal acts. The notice sent by Mr. Madhukar Limaye, advocate, was replied on behalf of the applicant-Smt. Manisha. 5. It is not necessary to elaborately set out the tenor of the notice correspondence. It would suffice the purpose to say that applicant- Smt. Manisha informed her withdrawal from the power of attorney executed in favour of the Mahadeo Bhikaji Apte and also communicated that she was not interested in any kind of litigation with the Mothers. 5. It is not necessary to elaborately set out the tenor of the notice correspondence. It would suffice the purpose to say that applicant- Smt. Manisha informed her withdrawal from the power of attorney executed in favour of the Mahadeo Bhikaji Apte and also communicated that she was not interested in any kind of litigation with the Mothers. Thereafter, the respondent no.2 Vijaya Joshi instituted private cases against the applicants. The complaint applications were referred by the learned judicial Magistrate for investigation under Section 156(3) of the Criminal Procedure Code. On basis of the material gathered during the course of investigation, two separate charge-sheets have been filed against the applicants. In F.I.R. No.150/2002, the applicant-Smt Manisha Gokhale, is shown as accused no.3 alongwith her two brothers. The charge against them is for offence punishable under Sections 406, 420, 511, 507 read with Section 34 of the Indian Penal Code. In the F.I.R. No.151 of l002, the charge against the applicant Smt. Manisha and her husband alongwith their advocate who had given reply notice is for offences punishable under Sections 406, 417, 420. 511, 506, 503 read with Section 34 of the Indian Penal Code. 6. Heard learned counsel Mr. Khandeparkar for the applicants, and learned APP for the State. Though, these applications were on board since 23rd September, 2009 and have been heard since then, none has appeared for the respondent nos.2 to 5. 7. On going through the relevant material, it is amply clear that there is absolutely no scintilla of evidence on record to infer complicity of the applicants in the context of either of the charges levelled against them. In fact, the stand of the applicant-Smt. Manisha was that, she did not wish to claim any share in the property left by her deceased father. The other three sisters cannot legally compel her to join them in such property dispute against their two brothers. So, whether she had connived with her brothers or not, is of no significance. The criminal cases are instituted against the applicants without any reason or rhyme. The applicants have not at all misappropriated any part of the property of complainant-Smt. Vijaya Joshi (respondent no.2) nor they have dishonestly cheated her in order to obtain any valuable property. These are the classic examples as to how the process of criminal court is abused by the litigant. The applicants have not at all misappropriated any part of the property of complainant-Smt. Vijaya Joshi (respondent no.2) nor they have dishonestly cheated her in order to obtain any valuable property. These are the classic examples as to how the process of criminal court is abused by the litigant. In fact, the very act of the respondent no.2-Smt. Vijaya Joshi to file complaint against the learned advocate of the applicants is rather indicative of impropriety. I am told that learned advocate Shri. Shashikant Dharwadkar is not alive. He was joined as accused no.3 in the context of F.I.R. No.15l of 2008. His only act was to reply the notice as per instructions of the applicants. Had he been alive, perhaps compensation could have been granted to him. It is only because of the relationship between the applicants and respondent no.2 that I am not wi1ling to grant compensation which is likely to further strain the relationship and make them bitter enimies forever. 8. Considering the averments in the complaints and the material gathered during , the so called investigation, it would transpire that the applicants have not committed any offence as such. The respondent no.2, has tried to stretch the act of the applicant-Smt. Manisha in such a way that she is unnecessarily harassed. Her only fault could be of turning volte face and join the brothers instead of other three sisters. 9. In this view of the matter, both the applications are allowed. The criminal cases against the applicants which were described earlier and are pending on the file of the Judicial Magistrate, are hereby quashed. Applications allowed.