Manohar Prabhakar Keskar v. Govind Prabhakar Keskar

S.S. Kulkarni, Adv. for applicant. Smt. C.S.Deshmukh Adv. for R-1 Shri D.R. Korde, APP for State R-2. ..Applicant. ..Respondents. ORAL JUDGMENT :- CORAM : K.U. CHANDIWAL, J. DATE : 16TH SEPTEMBER, 2009

2. Heard the counsel extensively. By order dated 21.10.1999 rule was issued. Interim relief in terms of prayer clause ‘D’ was granted which still operates and naturally the proceedings are stopped. 2

3. The accused and the complainant are interse real brothers. Controversy revolves to a will deed purportedly executed by their mother Smt. Ramabai dated 22.08.1990. 4- Mr. Kulkarni arguing in support of the case for quashment has placed reliance to several judgments i.e AIR 1979 SC 850 , 1988 Mh.L.J. 971, AIR 2008 SC 1968, AIR 2008 SC 210. 5- Smt. Deshmukh representing the original complainant has placed reliance to the judgment reported in 1997 (2) SCC 397 in the case of Rashmi Kumar V/s Mahesh Kumar Bhada, in which it has been observed that :- “At the stage of taking cognizance of offence the court should consider only averments made in the complaint or charge-sheet – Court is not required to sift and appreciate evidence at that stage”, 2) In case of Trilok Singh and others V/s Satya Deo Tripathi reported in AIR 1979 SUPREME COURT 850 it is observed that : “Criminal P.C. S. 482 : To prevent abuse of the process of any Court’ Purchase of truck under hire purchase agreement – Default clause – Seizure of truck, on default by financier – purchaser launching criminal prosecution against financier – Dispute raised was purely of civil nature and criminal proceeding initiated was an abuse of the process of the Court and deserved to be quashed. “ 3 2). In case of Medchl Chemicals and Pharma Pvt. Ltd V/s M/s Bilogical E. Ltd., and others reported in 2000 AIR SCW 682 it has been observed that : “16. Be it noted that in the matter of exercise of High Court’s inherent power, the only requirement is to see whether continuance of the proceeding would be a total abuse of the process of Court. The Criminal Procedure Code contains a detailed procedure for investigation, charge and trial, and in the event, the High Court is desirous of putting a stop to the known procedure of law, the High Court must use a proper circumspection and as noticed above, very great care and caution to quash the complaint in exercise of its inherent jurisdiction.” 6- The counsel for the petitioner-accused tried to explain the contents in the will deed as to how it is genuine and how lady was in disposing condition having certified by Dr. Pathak after examined her on 22.08.1990 about mental & physical alertness of Smt. Ramabai to execute will deed. The counsel contends that will deed being a registered document carries basic presumption about its genuineness. 7- At this stage of the matter, this Court is not called upon to exercise its opinion for either genuineness of the document or the manner in which it is executed. The factual matrix between the parties facing civil litigation is not in controversy for which Regular Civil Suit No.72/1994 filed by the respondent no. 1/complainant for partition and separate possession was decreed by the Ld. CJJD Ahmednagar is in which one of the issue was relating to the very well 4 subject of challenge in the criminal case. It is informed, in the said proceeding the will is stated to be not proved, or illegal. 8- It is the contention of the counsel that illegality or not proving of will is different than document is forged and the both things are clearly inconsistent with each other. However fact remains the will to which reference is given by the accused to rely in the civil proceedings being not proved and there is no positive findings in favour of the accused about the genuineness of the will cannot simply be brushed aside. 9- It cannot be said that in order to pressurize or give a cloak and jerk to the civil proceedings a false prosecution is given. The contention by the Ld. counsel for the accused that inherent powers in terms of Section 482 should be exercised in favour of genuine litigants who are likely to be harassed by false prosecution need no comment. Primafacie, the complaint hinges on the hunch of the will deed and that has to be gone in on merits. 10- The contention about exercise of power u/s 482 Cr.P.C. are substantially explained in the judgment reported in AIR 1992 SC 604 State of Punjab V/s Bhajanlal wherein Lordships have given seven categories of exercise of powers. It is also observed, that these are only few instances and there are several other situation. In the matter of Sagar Suri and another V/s State of U.P and others reported in (2000) 2 SCC 636 the Lordships were dealing where the 5 parties had civil litigation in terms of Section 138 of the Negotiable Instruments Act and it was observed that criminal proceedings should not be used to create a cloak for civil remedies.

12. The Ld. JMFC on analysis of primary evidence was satisfied in issue of process, for the offence p/u/s 467, 468, 471 for which he tried to frame charge.

13. The Ld. Additional District Judge Ahmednagar in RCA No.27/1998 has also analyze the situation about the allegations made in the complaint and could not accept the averments accelerated by the accused about false prosecution. The Ld. Sessions Judge has even dealt with other conduct of the accused in paragraph 8 of the Judgment. The revision of the petitioner- accused against the interim order of Ld. Trial judge framing charge is dismissed by the Ld. Additional Sessions Judge. Ahmednagar. Being aggrieved and dissatisfied by the judgment and order dt 10.11.1998 confirming the order of Ld. JMFC, present writ petition is filed.

14. The fact remains, it cannot be said that in order to pressurize the accused criminal case is put as matter of civil litigation has reached the stage of second appeal. It naturally flow that whatever may be the result, in civil dispute will not have its effect in the criminal prosecution. I find that prosecution is not a false prosecution effected to harass the accused. Consequently no merits. Writ petition dismissed. Rule discharged. 6

15. Ld. sessions Judge will not be influence by the observations. aaa/69.99 *** ( K.U.CHANDIWAL, J. )