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2013 DIGILAW 2427 (BOM)

Puja wd/o. Prabhakarrao @ Balasaheb Deshmukh v. Sujay s/o. Dattarao Deshmukh

2013-11-28

P.D.KODE

body2013
JUDGMENT Rule. Rule made returnable forthwith. Considering short controversy involved, heard the matter finally by consent of the parties. 2. By this petition under Section 227 of the Constitution of India, the petitioner-original complainant has assailed the part of order passed by the Court of Session quashing and setting aside the process issued by the trial court against respondent nos.1 to 4, 6 and 7. The petitioner made a complaint to the trial court that respondent nos.1 to 8 having committed an offence under Section 468 of I.P.C. In short, it was the allegation in the complaint that respondent nos.5 and 8 submitted affidavits to the mutation officer excluding the name of the petitioner as legal heir of deceased Smt. Dnyanlata Deshmukh and respondent nos.1 to 8 being her legal heir. The trial court, after examining the petitioner and the documents produced, issued process under Section 468 of I.P.C. against respondent nos. 1 to 8. The respondent nos. 1 to 8 assailed the said order before the Court of Sessions by filing an application in revision. The said application in revision was partly allowed by the Court of Sessions by order dated 9.10.2012. By the said order, the Sessions Court laying the emphasis on the fact that affidavits in question were filed only by respondent nos.5 and 8 in the said case was pleased to maintain the order of issuing the process against them and quashed order of issuing process against respondent nos. 1 to 4, 6 and 7. Having regard to averments made in the complaint and same within itself revealing that affidavit was filed only by respondent nos.5 and 8 and no other material was placed before the court revealing an involvement of respondent nos. 1 to 4 and 6 and 7 in submitting said affidavits, it is difficult to find fault with the order passed by the Court of sessions quashing and setting aside the order of issuing process against the said respondents. 3. Mr. Samabare, learned counsel for the petitioner, tried to canvass that respondents nos. 1 to 4, 6 and 7 being also beneficiaries of the effect of act of filing the said affidavit filed as that the land would have been mutated along with other two accused in their name on the basis of the said affidavit denotes that the said affidavit was filed with their connivance. 1 to 4, 6 and 7 being also beneficiaries of the effect of act of filing the said affidavit filed as that the land would have been mutated along with other two accused in their name on the basis of the said affidavit denotes that the said affidavit was filed with their connivance. Learned counsel urged that hence no error was committed by trial court in issuing the process against said respondents. It is urged, hence order passed by the Court of Sessions quashing the process against respondent nos. 1 to 4, 5 to 6 was improper and the same cannot be legally sustained and the same quashed and set aside by allowing the petition preferred. 4. The said submissions were rightly countered by Mr. Wankhede, learned counsel for respondent no.1, by pointing out that as said complaint was made for commission of serious offence i.e. offence under Section 468 of I.P.C., the trial court could have been justified in passing order of process against respondent nos. 1 to 4, 6 and 7 only in event of so me tangible material showing their involvement in commission of offence allege being placed before it. It was submitted that no such material being placed before the court, no fault can be found with the order passed by the Court of Sessions quashing said part of order. It is submitted that thus there are no merit in the petition preferred and the same be dismissed in limini. 5. After giving anxious consideration to the submissions advanced by both the sides and since it is not pointed out that except the act of filing an affidavit before mutation officer claiming respondent nos. 1 to 8 being the legal heirs of deceased Smt. Dnyanlata Deshmukh and excluding the name of the petitioner and such an act being committed only by respondent nos.5 and 8 and no other material being placed before the trial court showing any act of commission and omission on the part of respondent nos. 1 to 4, 5 and 6, prima facie, revealing their involvements in commission of offence u/s 468 of I.P.C. or furthering commission of such offences, it is difficult to find any fault with the order of quashing and setting aside the process issued against them passed by the Court of Sessions. 6. In the circumstances, there are no merit in the petition preferred and the same is dismissed. 6. In the circumstances, there are no merit in the petition preferred and the same is dismissed. However, it is clarified that in event of any further evidence surfacing during course of trial regarding involvement of respondent nos.1 to 4, 6 and 7 then, it will be open for the trial court to have recourse of provisions of Section 319 of Cr.P.C. for proceeding also against such respondents, in accordance with the law. The petition stands disposed of accordingly. 7. Rule is made absolute in the aforesaid terms. Petition dismissed.