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2018 DIGILAW 439 (BOM)

Jagdish Topandas Krishnani v. State Of Maharashtra

2018-02-13

M.G.GIRATKAR, R.K.DESHPANDE

body2018
JUDGMENT R. K. Deshpande, J. - This application filed under Section 482 of the Code of Criminal Procedure invoking inherent jurisdiction of this Court, challenges the order dated 26-6-2015 passed by the learned Judicial Magistrate First Class, Court No. 3, Nagpur directing investigation under Section 156(3) of the Code of Criminal Procedure and further the registration of offences punishable under Sections 417, 465, 466, 468 and 471 read with Section 34 of the Indian Penal Code vide First Information Report (FIR) No. M. Case 5/2015 dated 29-7-2015. 2. The allegations in relation to the offences are with respect to the document which is a Correction Deed registered on 12-3-2013 by applicant no. 1 Jagdish Topandas Krishnani stating therein that Khasra No. 70/1 mentioned in original sale deed dated 1021999 is a mistake and it should have been Khasra No. 78/1 which is subsequently renumbered as Khasra No. 78/3. 3. The applicant no. 1 had filed Special Civil Suit No. 404/2013 against the complainants claiming the reliefs as under : Prayer : It is, therefore, most humbly and respectfully prayed that this Hon''ble Court may kindly be pleased to pass a decree against defendants, jointly and severally, i) declaration that, defendants have no semblance of right, title or interest over suit property or any part thereof. ii) pass a decree for mandatory injunction directing defendants to remove the tin sheets fence put up by them on the northern boundary of suit property and the board of their name from the suit property, iii) pass a decree against defendants, granting appropriate permanent injunction to restrain defendants, their servants, employees, agents or any other person, claiming through them or on their behalf, permanently, from disturbing peaceful possession and enjoyment of plaintiff over suit property in any manner whatsoever, iv) In the event it is held that fence put up by defendants on the northern boundary of suit property and display of board of their name on it amounts to dispossession of plaintiff from suit property, then in that event pass a decree for possession of suit property directing defendants to handover vacant and peaceful possession of suit property to plaintiff. v) Cost of suit be saddled upon defendants. vi) Any other relief which this Hon''ble Court deems fit under the facts and circumstances may also be granted in favour of plaintiff. v) Cost of suit be saddled upon defendants. vi) Any other relief which this Hon''ble Court deems fit under the facts and circumstances may also be granted in favour of plaintiff. The subject matter of the suit was the property mentioned as Khasra No. 70/3 which was earlier Khasra No. 78/1. The trial Court framed an issue whether the plaintiff prove that he is the owner of the suit property and it is answered in the affirmative. It further framed an issue as to whether plaintiff prove that defendants have illegally taken possession of suit property and it is answered in the affirmative. Accordingly, the suit was decreed on 1632016 and the operative portion of the order is reproduced below. "1] Suit is decreed with costs. 2] It is declared that defendants have no right, title or interest over suit property. 3] Defendants are directed to remove fencing of tin sheets and board of their name from the suit property. 4] Defendants are also directed to hand over possession of suit property to the plaintiff within 2 (two) months from today. 5] Decree be drawn up accordingly. 6] Pronounced and dictated in open court." 4. The first appeal and second appeal against it has been dismissed and the decree has attained finality. It is informed by Shri Dangre, learned counsel appearing for the applicants that no notice of it has been received from the Apex Court and the proceeding for execution is pending. 5. Though there was complaint filed by the non-applicant nos. 2 and 3 alleging offences punishable under Sections 417, 465, 466, 468 and 471 read with Section 34 of the Indian Penal Code, it was held to be noncognizable on 31-10-2014. However, subsequently, the non-applicant no. 2 invoked the powers of the Magistrate under Section 156(3) of the Code of Criminal Procedure and by order dated 26-6-2015, the investigation was ordered as a consequence of which FIR No. M. Case 5/15 was registered on 2972015 against the applicants for the offences punishable under Sections 417, 465, 466, 468 and 471 read with Section 34 of the Indian Penal Code. 6. Initially on 20-1-2016, this Court issued notice and directed that no coercive steps be taken in the meanwhile, though the investigation may go on. Subsequently, on 27-6-2016, rule was granted after hearing the parties and interim relief granted was confirmed. 6. Initially on 20-1-2016, this Court issued notice and directed that no coercive steps be taken in the meanwhile, though the investigation may go on. Subsequently, on 27-6-2016, rule was granted after hearing the parties and interim relief granted was confirmed. The matter was thereafter listed before this Court on 5-2-2018 when we passed the order as under : "None appears for the respondent nos. 2 and 3. Put up this matter in the next week for final hearing at the end of board. The applicants to remove all office objections in the meantime. If the office objections are not removed, the applicants to pay costs of Rs. 500/to the High Court Bar Association, Nagpur." Accordingly, the matter is today listed for final hearing. Admit. No notice is now required to be given again, as the notice was for final disposal of the matter. None appears for the nonapplicant nos. 2 and 3, though served. 7. In the factual background narrated above, we are of the view that the dispute between the parties is purely of civil nature and the property which is the subject matter of Correction Deed dated 12-3-2013, has been decided in favour of the applicant. The nonapplicant nos. 2 and 3 were parties to the said suit. The continuation of prosecution on the basis of FIR which is subject matter of challenge in this petition, would nothing but an abuse of process of Court. We therefore allow this criminal application. 8. In the result, the criminal application is allowed. The order dated 26-6-2015 passed by the learned Judicial Magistrate First Class, Court No. 3, Nagpur in Misc. Criminal Application No. 1494/2015 is hereby quashed and set aside. Similarly, FIR No. M. Case 5/2015 dated 29-7-2015 registered against the applicants for the offences punishable under Sections 417, 465, 466, 468 and 471 read with Section 34 of the Indian Penal Code is also hereby quashed and set aside.