Nandkumar Wamanrao Mahajan v. The State of Maharashtra

WP-99-2022IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 99 OF 2022Nandkumar Wamanrao MahajanAge: 53 years, Occu: Business,R/o. Vasantnagar, Nanded, Tq. & Dist. Nanded. ...PETITIONER V E R S U S1]Vilas Wamanrao Mahajan, Age: 53 years, Occu: Business,R/o. Vasantnagar, Nanded, Tq. & Dist. Nanded. 2]Anandrao s/o Manikrao Lathkar, Age: Major, Occu: Nil.,Secretary Vasantnagar Bhadekaru GrahNirman Sanstha, Vasantnagar, Nanded, Tq. & Dist. Nanded.3]The State of MaharashtraThrough AGP/P.P., Bombay High Court, Bench at Aurangabad. ...RESPONDENTSWITHCRIMINAL WRIT PETITION NO. 328 OF 2022Anandrao s/o Manikrao Lathkar, Age: 81 years, Occu: Nil.,R/o. Vasant Nagar, Nanded, Tq. & Dist. Nanded....PETITIONERD.A.Ethape ( 2 ) WP-99-2022V E R S U S1]Vilas Wamanrao Mahajan, Age: 53 years, Occu: Business,R/o. Vasant Nagar, Nanded, Tq. & Dist. Nanded.2]Nandkumar Wamanrao MahajanAge: 53 years, Occu: Business,R/o. Vasantnagar, Nanded, Tq. & Dist. Nanded....RESPONDENTSMr. A. M. Gaikwad, Advocate for petitioner in WP/99/2022.Smt. A. S. Deshmukh, APP for Respondent-State in both WP.Mr. Chaitanya V. Dharurkar, Advocate for Respondent No.1.Mr. Rohit R. Kakani, Advocate for petitioner in WP/328/2022 andRespondent No.2 in WP/99/2022.CORAM:KISHORE C. SANT, J.RESERVED ON: 21st AUGUST 2025.PRONOUNCED ON:23rd SEPTEMBER 2025.JUDGMENT :-1.Heard the parties. 2.Rule. Rule made returnable forthwith. Since both the petitions arearising out of same proceedings, those are taken up together. WithD.A.Ethape ( 3 ) WP-99-2022consent of the parties, petitions are taken up for final disposal, at thestage of admission.3.The petitioner in WP/99/2022 is original accused No.1 in acomplaint bearing R.C.C. No.204 of 2009. The petitioner, in Writ PetitionNo. 328/2022, is the accused No.2 in the complaint. The respondentNo.1 has now stepped into shoes of the complainant. For the purpose ofconvenience, the parties are referred to as per Criminal Writ Petition No.99/2022. 4.The present petitioners have approached this Court challengingthe Judgment and Order dated 23rd December 2021, passed by thelearned Sessions Judge, Nanded in Criminal Revision Application No. 85of 2018. The petitioners are original accused in the criminal case. 5.By way of impugned Judgment and Order, the learned SessionsJudge, Nanded, allowed the Revision Application and set aside the orderpassed by the learned JMFC, on an application Exh. 139, by which thelearned JMFC dismissed the complaint filed by Respondent namely, VilasD.A.Ethape ( 4 ) WP-99-2022Wamanrao Mahajan, and directed the parties to appear before thelearned Magistrate. 6.The facts, in short, are that the deceased Wamanrao, the father ofpresent petitioner and Respondent No.1, had filed a complaint bearingRCC No.204 of 2009, in the Court of learned JMFC, Nanded, for theoffences punishable under Sections 420, 463, 465, 466, 468, 471 and192 read with 34 of the Indian Penal Code, 1860 against the presentpetitioner and petitioner in WP/328/2022.7.In the complaint it is alleged that, he was the owner and possessorof one property house, namely, Premila Niwas bearing MunicipalCorporation House No.1-18-998, plot No.116-42/B and 29/A, situated atVasant Nagar, Nanded. The said plot is in the housing society where theaccused No.2 was Secretary. It is alleged that, because of his healthconditions, the present petitioner was insisted for family arrangement byway of partition. The partition was, therefore, affected. It is alleged thatthe petitioner, by producing the forged document in connivance withD.A.Ethape ( 5 ) WP-99-2022respondent No.2, got the plot entered in his name in the record ofhousing society and got the allotment letter issued. 8.The learned JMFC recorded verification statement, and on receiptof the complaint, directed an inquiry under Section 202 of Cr.P.C.Thereafter, on verification statement and receipt of the report from thepolice, for opinion that, complaint makes out a prima facie case, issuedprocess against the accused persons. Thereafter, the deceased Wamanraodid not take any steps in the case. The Magistrate, therefore, dismissedthe complaint for default by order dated 20.09.2010. The deceasedWamanrao Mahajan preferred a revision. In the said revision, thelearned Sessions Judge set aside the order of dismissal and restored thefile to its position. 9.The respondent No.2 approached this Court by filing Writ PetitionNo.235/2012. On 28.04.2016, the said writ petition came to be disposedoff as, in the meantime, the complainant expired and the complaintrendered infructuous. This Court set aside the proceeding as it is notD.A.Ethape ( 6 ) WP-99-2022sustainable. While passing the order, this Court observed that the legalheirs of the complainant would be at liberty to take steps as are availableand permissible in law. 10.After disposal of Criminal Writ Petition, respondent No.1approached the trial Court seeking permission to continue the case andto add him as a complainant and to lead evidence. The said applicationon Exh.132 came to be allowed by order dated 01.02.2017. The accused, thereafter, approached the trial Court by filing application Exh.139,pointing out that the complaint needs to be dismissed as it wasdismissed as per Section 245(2) of the Cr.P.C. The order in the revisionis also set aside as infructuous restoring the complaint itself was illegal. The learned JMFC, on considering the application, dismissed thecomplaint and allowed the application. Against that, Criminal RevisionApplication No.85/2018 was preferred and the impugned order came tobe passed. 11.Mr. Gaikwad, the learned Advocate for the petitioner/originalD.A.Ethape ( 7 ) WP-99-2022accused, vehemently argued that there was already civil suit bearingRCC No.835/2006 filed, wherein a decree is passed in favour of thepetitioner. A compromise took place between the father and brother. Each got 1/3 share and decree was passed. The petitioner, therefore, applied for associate membership in the Society and his name came tobe recorded. Father, during his lifetime, had filed a suit bearing No.60/2010 challenging the partition decree. However, the said suit came tobe dismissed by order dated 01.01.2011 as dismissed for default. Fatherhad executed a gift deed dated 24.11.2008 in favour of son ofrespondent No.1 that was challenged by filing suit bearing Special CivilSuit No. 122/2011. In that suit, the respondent admitted partition. Temporary injunction in that suit came to be rejected. However, Misc. Civil Appeal filed by the petitioner was allowed on 17.04.2018. Hesubmits that, when rights of the parties were crystalized in civilproceedings, there was no question of filing criminal complaint. Therevision ought to have been dismissed. When the petition was pending, though this Court by order granting liberty to the legal heirs to prosecuteD.A.Ethape ( 8 ) WP-99-2022the complaint. There was no question of respondent in prosecuting thecomplaint as the order in the revision was set aside and the order ofdismissal of the complaint attained finality. At the most, the respondentcould have filed independent complaint. Complaint was filed underSection 420 of IPC and other Sections. There is no question of legal heirsprosecuting the said complaint. He thus submits that learned JMFC hasrightly considered all the aspects and dismissed the complaint. Once thecomplaint is dismissed for default, there is no question of continuing thesaid complaint. He thus prays for allowing the writ petition. 12.Mr. Dharurkar, the learned Advocate for respondent No.1,vehemently submits that there is clear allegation by the deceasedWamanrao that his signature was forged by the present petitioner. ThisCourt in writ petition had specifically directed, in clause (iii), that thelegal heir can prosecute the complaint. It is in that view, the learnedJMFC had rightly passed the order on application Exh.132. Once havingrestored the complaint, the same could not have been dismissed onapplication Exh.139. There is substance in the complaint on merits, andD.A.Ethape ( 9 ) WP-99-2022therefore, the complaint needs to be prosecuted. 13.During the course of argument, the parties relied upon thefollowing judgments:(i)Chand Devi Daga and Ors. Vs. Manju K. Humatani and Ors.1;(ii)Ashwin Nanubhai Vyas Vs. The State of Maharashtra and Anr.2;(iii)Jimmy Jahangir Madan Vs. Bolly Cariyappa Hindley3.14.After hearing the parties, this Court has to consider as to whetherthe order passed on Exh.139 and subsequent order is correct. Whetherthe order passed by the learned Sessions Judge, setting aside the orderpassed by the learned JMFC on an Application Exh.139 needsinterference.15.On going through the record and the submissions, it is seen thatdeceased Wamanrao had filed a complaint against the present petitioner, wherein respondent No.1 was not in picture. The said complaint came to1(2018) 1 SCC 712AIR 1967 SC 9833AIR 2005 SC 48D.A.Ethape ( 10 ) WP-99-2022be dismissed for want of prosecution under Section 245 of sub-Section(2) of Cr.P.C.. The said order was set aside in Revision Application. Therespondent No.2 original accused filed a writ petition. In that view, theorder passed in the revision was setting aside. However, it allowed thelegal heirs, who were not in picture, to prosecute the complaint. Thelearned JMFC restored the complaint. The petitioner filed an applicationfor dismissal of complaint, as there was restoration and the same cameto be allowed. The Sessions Court found that complaint could beprosecuted and directed the parties to appear. Section 245 of Cr.P.C.reads as under:“245.When accused shall be discharged.(1) If, upon taking all the evidence referred to in section 244, theMagistrate considers, for reasons to be recorded, that no case againstthe accused has been made out which, if unrebutted, would warranthis conviction, the Magistrate shall discharge him.(2) Nothing in this section shall be deemed to prevent a Magistratefrom discharging the accused at any previous stage of the case if, forreasons to be recorded by such Magistrate, he considers the charge tobe groundless.”16.Against dismissal of the complaint, revision/appeal was filed bythe complainant.D.A.Ethape ( 11 ) WP-99-202217.The question would be thus as to whether the complaint wasrestored in the writ petition? Though leave was granted, the question iswhether the complaint, which was already dismissed, would revivewhen the order of the Sessions Court is specifically set aside. This Courtfinds that the answer has to be no. The application Exh.132 is thuswrongly entertained by restoring the complaint. Once the complaint isdismissed under Section 245(2) of the Cr.P.C., there was no question ofallowing the application Exh.132.18.In the case of Chand Devi Daga and Ors. (supra), the Hon’ble ApexCourt held that after death of complainant in a summons case, it is notmandatory to reject the complaint by exercising the power under Section256(1) of Cr.P.C. The learned Magistrate can proceed with the complainton the death of the complainant. The procedure for trial of the summonscase is not applicable and there is no provision in Chapter XIX, i.e., trialof warrant cases by Magistrates containing a provision that in the eventof death of the complainant, the complaint is to be rejected. D.A.Ethape ( 12 ) WP-99-202219.In the case of Ashwin Nanubhai Vyas (supra), the Hon’ble ApexCourt considered bar under Section 198 of Cr.P.C. (under the old Code,“Cr.P.C. 5 of 1898”). It was held that the presence of the aggrievedperson throughout trial is not necessary. The Court cannot substitute anew complainant. However, it has the power to authorize conduct of theprosecution by any person.20.In the case of Jimmy Jahangir Madan Vs. Bolly Cariyappa Hindley(supra), the Hon’ble Apex Court held that, the proceeding was arisingout of prosecution for an offence under Section 138 of the NegotiableInstruments Act. The original complainant died during trial. The powerof attorney holder of the legal heirs of the complainant filed application. The Hon’ble Apex Court held that such application is not permissible. Itis only the legal heir, who can file such application. The power ofattorney holder cannot be said to be a pleader of the legal heir. 21.Coming to the facts of the present case, it is not a case that thecomplaint is dismissed on the death of the complainant, it is dismissedD.A.Ethape ( 13 ) WP-99-2022for want of prosecution under Section 245(2) of Cr.P.C. Section 245(2)Cr.P.C. speaks of discharge of the accused. When the accused isdischarged, it has the effect of acquittal. Thus, when the complaint wasdismissed, it was for the complainant therein to prefer an appeal againstacquittal. That was not done in the present case and instead a revisionwas filed. 22.Be that as it may, the revision was entertained and against that thewrit petition was filed. This Court, while dismissing the writ petition, hasclearly observed that the petition became infructuous. The order of theSessions Court was set aside. There was no question of Respondent No.1thereafter filing an application under Exh. 132 in the trial Court. Thelearned trial Judge committed a mistake in entertaining the same. However, on pointing it out by application Exh.139, the learnedMagistrate has rightly passed the order. The learned Sessions Judge, however, failed to appreciate this position and allowed the revisionpetition filed by the respondent. This Court does not find any illegalityor perversity in the order passed by the learned Magistrate. This CourtD.A.Ethape ( 14 ) WP-99-2022therefore finds that the revisional Court erred in allowing the revision. The petitions deserve to be allowed. Hence, the following order: ORDER(i)Criminal Writ Petition Nos.99/2022 and 328/2022 stand allowed.(ii)The impugned order dated 23rd December 2021 passed by thelearned Sessions Judge, Nanded, in Criminal Revision ApplicationNo.85/2018 is quashed and set aside.(iii)Rule made absolute in above terms. (iv)With this, Criminal Writ Petitions stand disposed off.[KISHORE C. SANT, J.]D.A.Ethape