High Court
Legal Reasoning
ABA 393/24 & ors9of the applicants needs be vacated and the applications be rejected.12.Having considered the rival submissions, at the outset, it is necessaryto primarily deal with the will of the deceased husband of the informant andthe attending circumstances in which the will is made to see whether thewill is highly suspicious and there is element of criminality involved in thematter which needs to be investigated thoroughly.13.From the perusal of the will, following clauses in the will needs to benoted, which are as under :-“7. माझ्यानावाचीकस्तुमइंजि(cid:16)नीअरर्स(cid:20)यानावाचीफम(cid:20)आहे. कस्तुम इंजि(cid:16)नीअर्स(cid:20)लादेणेअर्सलेलेर्सव(cid:20)व्यवहारमाझ्यार्सव(cid:20)भावांनामाजिहतआहेत. व्यवर्सायाकरीतामीखा(cid:16)गीरकमेचीउचलकेलेलीआहेतेदेणेबाकीआहेत त्याचीर्सजिवस्तरमाहीतीनरेंद्रलाआहेवअरुणामहेंद्रकालामाझीपत्नी जिहनेवरीलदेणेनरेंद्रच्यार्सल्याप्रमाणेचुकतेकरावे. माझ्यामुलीह्या त्यांच्याघरीर्सुखीर्समाधानीआहेत. यापुवी(cid:20)चमीत्यांना(cid:16)ेद्यावयाचेहोतेते जिदलेलेआहे. माझ्यामृत्यूनंतरमाझ्याजिमळकतीतुनमुलींनाआताकाहीदेउनये/ जिमळुनयेअशीमाझीइच्छाआहे. 8. माझाभाउजिव(cid:16)यवत्याचामुलगाआजिदत्ययांनीमाझ्याइच्छेचा नेहमीआदरकेलाआहे. आम्हाचौघाभावामध्येआम्हालाएकचमुलगा आजिदत्यआहे. माझेवकालाकुटुंबीयांचेनावपुढेउज्वलठेवेलयाचामला जिवश्वार्सआहे, म्हणुनमीवरीलमालमत्तात्यांनादेतआहे.9. करीताहेमृत्यूपत्रखालीलर्साक्षीदारार्समोरजिलहुनठेवलेआहे. माझ्यार्सांगण्यावरूनहेमृत्यूपत्र(cid:16)ी. एन. र्संगवारयांनीर्संगणकावरतयार केलेवर्सवा(cid:20)ंनावाचुनदाखजिवले. मी, र्साक्षदारवर्संगणकयार्सवा(cid:20)नीयामृत्यू पत्रावरएकमेंकानर्समोरर्सह्याकेल्याआहेत. हेमृत्यूपत्रमीजि(cid:16)तेंद्र मदनलालछाबडायांच्याकडेदेतआहेत्यांनीमाझ्यामृत्यूच्या11 मजिहन्या नंतरजिव(cid:16)यकालाजिकंवाआजिदत्यजिव(cid:16)यकालायांनाद्यावेत. हेमाझेशेवटचे मृत्यूपत्रजिदनांक17/10/2019 रो(cid:16)ीजिलहीलेआहेतेमाझेइस्टेटवारर्सार्स बंधनकारकआहे. ” ABA 393/24 & ors1014.From the above paragraphs of the will, it is to be noted that all theliability of the business are fasten upon the widow, so also none of hisdaughters, who are natural successors of the deceased, are grantedanything under the will.15.In the will, it is stated that son of the applicant Vijay namely Adityahas always respected wish of the deceased and as such, since he is the onlyson amongst four brothers, property mentioned in the will is gifted to him.In para 9 of the will deed it is stated that after 11 months of the demise ofthe deceased the will is to be handed over by Jitender Madanlal Chabda,possessor of the will to the applicants i.e. Vijay Kala and his son AdityaKala.16.It is to be noted that the deceased had no grievance or any problemswith his wife or his daughters. He passed away under the care of his wifeand daughters. The will was not registered at the time of making andproduced after 11 months of demise of the husband of informant and put upfor registration, prima facie creates great suspicion as regards the will. Thewill per say divest everything from the natural heirs and grants what is leftto the son of applicant Vijay. In pursuance of the will already various actionsare taken by the applicants. The will was only produced in the proceedingfiled for succession by the complainant while filing objection to the same. Inthe succession proceeding, the applicants filed one oral partition recordedon 19.10.2020 on stamp of Rs.100/- and a will prepared on the letter headof Kaustum Engineers dated 17.10.2019. It is to be noted that the allegedwill is made just prior to the demise of the husband of the complainant. Thewill is also on the letter head of Kaustum Engineers and the informant has ABA 393/24 & ors11stated that the blank signed letter heads were utilized by the applicants. Itis also stated that at the relevant time when the will is alleged to have beensigned, the driver of the husband of the informant was all day along withthe husband and the driver has stated that no documents were executed onthe same day. All the above aspects makes the will highly suspicious anddisastrous consequences are following from the will. The contentions of thecomplainant that the will and the oral partition deed later transcribed onstamp paper are prima facie fraudulent and though investigation is requiredtowards it’s preparation and usage. Merely because the will be put to test inthe Civil proceedings, the criminal proceedings cannot be kept in abeyancemore particularly when the will is extremely suspicious and the attestingwitnesses are also accused in the case. Considering all the above aspects ofthe matter, this Court is prima facie of the view that the will is extremelysuspicious and that through investigation in the matter would be required.Considering the same, this Court holds that this is not a fit case to grantanticipatory bail. As such, the applications are dismissed.17.It is clarified that the observations made in this order are limited forthe disposal of the present anticipatory bail application and the trial Courtshall not be influenced by the observations made hereinabove whiledeciding regular bail or trial.[ARUN R. PEDNEKER, J.]18.At this stage, the learned counsel for the applicant submits that asthe applicant has been granted interim relief for the long time, he wants to ABA 393/24 & ors12challenge the present order and therefore, the interim relief may becontinued for the period of four weeks. Considering the above, the interimprotection granted earlier to continue for the period of two weeks fromtoday. [ARUN R. PEDNEKER, J.]ssc/
Arguments
ABA 393/24 & ors1IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADANTICIPATORY BAIL APPLICATION NO. 393 OF 20241.Vijay Madanlal Kala,Age 55 yrs., Occu. Business & Agriculturist,R/o. Plot No. 167 Kasturi, Vikas Housing Society,Tilak Nagar, Aurangabad, Dist. Aurangabad,At present Gupta Layout, Near Dighe Farm House,Chikhli Road, Washim, Tq. & Dist. Washim.2.Jitendra Madanlal Chabbda,Age 54 yrs., Occu. Business & Agriculturist,R/o. Kusum, Chikhli Road, Washim,Tq. & Dist. Washim....Applicants.Versus1.The State of Maharashtra,Through Officer Incharge,Police Station Jawahar Nagar,Aurangabad, Dist. Aurangabad.2.The Commissioner of Police,Aurangabad....Respondents....Advocates for Applicants : Mr. Rajendrraa Deshmukh, Sr. Counsel a/w. Ms.Meenal S. Deshmukh and Ms. Vikhyati Jain i/b. Mrs. Ashwini A. LomteAPP for Respondents 1 & 2 : Mr. A.A.A. Khan Advocate for assisting APP : Mr. V.P. Bakal...WITHANTICIPATORY BAIL APPLICATION NO. 394 OF 20241.Narendra Madanlal Kala,Age 65 yrs., Occu. Business & Agriculturist,R/o. Plot No. 167 Kasturi, Vikas Housing Society,Tilak Nagar, Aurangabad, Dist. Aurangabad,At present Gupta Layout, Near Dighe Farm House,Chikhli Road, Washim, Tq. & Dist. Washim.2.Aditya Vijay Kala,Age 25 yrs., Occu. Business & Agriculturist,R/o. Plot No. 167 Kasturi, Vikas Housing Society,Tilak Nagar, Aurangabad, Dist. Aurangabad,At present Gupta Layout, Near Dighe Farm House,Chikhli Road, Washim, Tq. & Dist. Washim....Applicants. ABA 393/24 & ors2Versus1.The State of Maharashtra,Through Officer Incharge,Police Station Jawahar Nagar,Aurangabad, Dist. Aurangabad.2.The Commissioner of Police,Aurangabad....Respondents....Advocates for Applicants : Mr. Rajendrraa Deshmukh, Sr. Counsel a/w. Ms.Meenal S. Deshmukh and Ms. Vikhyati Jain i/b. Mrs. Ashwini A. LomteAPP for Respondents 1 & 2 : Mr. A.A.A. Khan Advocate for assisting APP : Mr. V.P. Bakal... WITHANTICIPATORY BAIL APPLICATION NO. 395 OF 20241.Sachin Subhash Agrawal,Age 40 yrs., Occu. Business & Agriculturist,R/o. New IUDP Colony, Near Civil Hospital,Washim, Tq. & Dist. Washim.2.Gajanan Narayan Sangwar,Age 51 yrs., Occu. Agriculturist,R/o. Kale File, Washim, Tq. & Dist. Washim....Applicants.Versus1.The State of Maharashtra,Through Officer Incharge,Police Station Jawahar Nagar,Aurangabad, Dist. Aurangabad.2.The Commissioner of Police,Aurangabad....Respondents....Advocates for Applicants : Mr. Rajendrraa Deshmukh, Sr. Counsel a/w. Ms.Meenal S. Deshmukh and Ms. Vikhyati Jain i/b. Mrs. Ashwini A. LomteAPP for Respondents 1 & 2 : Mr. A.A.A. Khan Advocate for assisting APP : Mr. V.P. Bakal...CORAM :ARUN R. PEDNEKER, J.DATED : April 24, 2025 ABA 393/24 & ors3ORDER :-1.Heard Mr. Rajendrraa Deshmukh, Senior Counsel a/w. Ms. Meenal S.Deshmukh and Ms. Vikhyati Jain i/b. Mrs. Ashwini A. Lomte for all theapplicants, Mr. A.A.A. Khan, leaned APP for State/respondent Nos. 1 and 2and Mr. V.P. Bakal, the learned Advocate assisting APP.2.The applicants in above applications are apprehending arrest inconnection with Crime No. 301/2023 dated 18.12.2023 registered withJawahar Nagar Police Station, Aurangabad for the offences punishable undersections 379, 467, 468, 471, 406 r/w. 34 of I.P.C.3.Informant - Aruna Mahendra Kala is the wife of deceased - MahendraMadanlal Kala. The husband of informant died on 1.11.2019 due to cardiacarrest at Thane, Maharashtra. The husband of the deceased is survived bythree daughters, who are married. The deceased was the electricalcontractor and doing business by name Kastum Engineer at Aurangabad.4.The F.I.R. is registerd by wife of deceased Smt. Aruna Kala on18.12.2023. In the F.I.R. she has stated that her deceased husband hadthree brothers namely Narendra Madanlal Kala (applicant in ABA No.394/2024), Vijay Madanlal Kala (applicant in ABA No. 393/2024) andRajendra Madanlal Kala, who died on 1.2.2023. It is stated that the brothersof the deceased had no knowledge about the business of the deceasedalthough they used to help the informant as and when required. It is statedthat although Vijay Madanlal Kala has no knowledge of the business of herhusband, being brother of the deceased, the informant had kept the keys ofthe office with him wherein all the business papers including the blank ABA 393/24 & ors4signed cheques and blank letterhead of the Kustum Engineers were kept.Mr. Abdul Rag, close friend of the deceased had completed all the pendingworks after his death. After the demise of husband, the informant alongwith her three daughters had applied for inheritence certificate on 6.1.2020in Court and the inheritance certificate granted by the Court on 18.2.2020and the same was received by applicant Vijay Madanlal Kala. However, herefused to give the same to the informant.5.Later the informant fell unwell and as such, she was with herdaughters at Hyderabad. While she was in Hyderabad under treatment,there was some theft in the house of informant at Aurangabad and someimportant documents have been stolen from her house.6.In the F.I.R., it is further stated that informant and her threedaughters had applied for succession certificate on 17.10.2020 being MARJINo. 909/2020. After three months Vijay Kala and his son Aditya Vijay Kala(applicants in ABA No. 394/2024) had filed objection to the grant ofsuccession certificate to the informant and her daughters. In the saidobjection, the applicants produced two documents, one is a oral partitionrecorded on 19.10.2020 on stamp of Rs.100/- and a Will prepared on theletter head of Kaustum Engineers dated 17.10.2019. The will was registeredon 19.11.2020 after 11 months of the demise of the husband of theinformant with the aid of attesting witnesses Mr. Jitendra Madanlal Chabbda(applicant in ABA No. 393/2024), Mr. Sachin Subhash Agrawal and GajananNarayan Sangwar (applicants in ABA No. 395/2024). In the F.I.R. it isalleged that the oral partition which is allegedly transcribed on stamp paperon which signatures are obtained is fraudulent and are fake. As such, the ABA 393/24 & ors5informant has taken opinion of hand writing expert wherein it is stated thatthe signatures of the deceased husband of the informant are different onthe partition deed than that appearing on the other documents. It is alsostated that when asked Mr. Mangesh Shamrao Kale, who was working as adriver in the office of the husband of the informant on being asked aboutthe execution of will deed, he has stated that from 17.10.2019 to19.10.2019 he was with the deceased and the deceased has not signed onany documents on the said dates. It is thus alleged that the applicants havefabricated the oral partition deed, so also they used the blank signedcheques and blank signed letter heads of Kaustum Engineers kept in thehouse and prepared the fake will deed. It is also alleged that substantialproperty of the deceased are sought to be transferred in the name ofapplicant Aditya Kala (applicant in ABA No. 394). It is alleged that theapplicants Vijay Kala and his son Aditya Kala have cheated the informantand her three daughters with the aid of the other applicants.7.In view of the F.I.R., the applicants had applied for anticipatory bailbefore the Sessions Court which was rejected by order dated 28.2.2024 andaccordingly, the present anticipatory bail applications are filed.8.Mr. Rajendrraa Deshmukh, learned Senior Counsel for the applicantshas made following submissions for grant of anticipatory bail.(i)The F.I.R. is filed belatedly and no plausible explanation isgiven for the delay.(ii)Primarily, this is a civil dispute and the validity of the willwould be decided by the civil court and this is a purely civil matterand once the validity of the will is decided in one way or other, ABA 393/24 & ors6then only the criminal aspect will come into the picture.(iii)The applicants were granted interim protection by theSessions Court and now interim protection is also granted by thiscourt to the applicants and all he conditions imposed by this Courtare complied by the applicants and they have cooperated with theinvestigation and as such, custodial interrogation of the applicantswould not be necessary in the instant case.iv)The learned senior counsel submits that what is givenunder the will is a very small part of the property owned by thedeceased and it is not the case that deceased has transferredentire property in favour of applicant Aditya Kala son of VijayKala.v)The learned senior counsel submits that the deceased hadthree brothers (including the deceased four brothers) andamongst the four brothers, there is only one son i.e. Aditya son ofVijay Kala and as such, the deceased wanted to give small part ofhis property to the only son Aditya in the family of Kala and assuch, will deed is not a fraudulent document, manifactured by theapplicant.9.The learned Senior Counsel therefore prays that considering the civilaspect of the matter and the alleged fabricated documents are available andfiled before the Court, interim protection granted in favour of the applicantsbe confirmed.10.Per contra, Mr. A.A.A. Khan, learned APP and Mr. V.P. Bakal, learnedadvocate assisting APP submits as under :- ABA 393/24 & ors7(i)First time the will surfaced in the succession proceedingsfiled by the informant in June 2020. Immediately the informantfiled the complaint to the police, but the same was not registered.Thereafter, the informant applicant under section 156(3) of Cr.P.C.to the J.M.F.C. register the F.I.R. During the pendency of theproceedings under section 156(3) of Cr.P.C., F.I.R. came to beregistered and the complaint under section 156(3) of Cr.P.C. ofthe applicant was rendered infructuous and so disposed ofaccordingly. Thus, it is submitted that the complaint is madeexpeditiously.(ii)The learned counsels submit that perusal of the will itselfwould indicate that the will is prima facie fraudulent documentand all the liabilities are fasten upon the informant whereas theproperties without encumbrance are taken away by the applicantsunder the will.(iii)The learned APP, so also the learned advocate assisting APPby pointing out the paragraphs in will deed submit that it isunlikely that in absence of any grievance or family disputebetween the family members, the will is made by the deceased,leaving aside nothing and fasten only liability on the wife andchildren of the deceased and after demise of the deceased,nothing is given to the daughters of the deceased and thus, thisstatement in the will cannot be of the deceased and this is apurely fabricated document.(iv)It is stated that none of the family members of thedeceased are aware of the will and there was no occasion for the ABA 393/24 & ors8deceased to make such a will prior to his demise and on the givendate when the will is said to have been prepared, thedriver/servant of the deceased who was with the deceased duringthat period has clearly stated that the deceased has not executedany documents on the given dates.(v)It is also stated that the other suspicious circumstance ofthe will is that the will provides that the will be produced onlyafter 11 months of the demise of the deceased is surprising andalso coincides with the fact that the will was prepared after thesuccession proceedings was filed by the informant and thereafter,registered and produced in the succession proceeding. It is statedthat to overcome this period of 11 months of non registering ofthe will, this specific clause was inserted to give some authenticityto the will.(vi)It is also stated that it is to be noted that the will isprepared on the letter head of Kaustum Engineers as blank signedletter heads of Kaustum Engineers were available and the will isnot on the stamp paper. All these aspects clearly point thefraudulent nature of the will.11.The learned APP, so also the learned counsel assisting APP submitsthat the case is primarily criminal in nature and that merely because civilproceedings are filed subsequently, it would not change the nature ofcriminal activities done by the applicants. It is therefore submitted that inview of the above, it is necessary that entire conspectus of the matter hasto be investigated thoroughly and the interim protection granted in favour