SHYAM LACHMANDAS AJWANI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioner has preferred the instant petition although registered as a writ petition, under section 482 of the Code of Criminal Procedure (for shor the Cr. P. C.) for quashing the process issued against him by the learned Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Bombay, under section 403 of the Indian Penal Code (for short the I. P. C.) upon the complaint filed by the respondent No. 2 against him under sections 403 and 406 of the I. P. C. on the ground that the said complaint does not disclose any offence punishable under the IPC and, therefore, issuance of the process amounts to an abuse of the process of the Court.

(2.) BRIEFLY the facts are that one flat No. 5 upon the second floor in the Jai Kismat Co-operative Housing Society (for short the Society) was owned by one Laxmandas S. Ajwani, who was a member of the said society. The said society is registered under the provisions of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as the Act ). The said Laxmandas had nominated his wife Kalawanti L. Ajwani as his nominee as per the provisions of section 30 of the Act and the Rule 25 of the Rules framed thereunder so as to facilitate the transfer of his share and interest in the society after his death. The said Laxamandas died on 6-9-1978 whereafter his nominee i. e. his wife Smt. Kalawantibai was enrolled as the member of the society and his shares and interest in the society was transferred in her name. Smt. Kalawantibai, the mother of the petitioner, nominated the petitioner as her nominee and, therefore, after her death the name of the petitioner was entered as the member of the society in its register and the share and interest in the society in her name was transferred in his name, in accordance with section 30 of the Act and the Rules framed thereunder. This, according to the learned Counsel for the respondent No. 2 had taken place in November 1984. The petitioner has thereafter continued in possession and occupation of the said flat.

(3.) IN November 1988, the respondent No. 2, who is the sister of the petitioner, filed a complaint case before the Metropolitan Magistrate Court No. 37, Esplanade, Bombay, for suitably punishing the petitioner for the offences under sections 403 and 406 of the I. P. C. Her verification statement was recorded by the learned Magistrate on 1-12-1988. He was of the view that one of the offences in the complaint was a cognizable offence and required investigation of the same by the police. Therefore, before issuing the process he directed investigation by the police for which a copy of the complaint was sent to it. The police sent its report on 29-7-1989 and, according to it, the claim of the respondent No. 2 was about the share in the property and was a matter of civil dispute. After the receipt of the police report, the learned Magistrate by his order dated 25-9-1989, which is a reasoned order, issued the process against the petitioner under section 403 of the I. P. C. Feeling aggrieved, the petitioners has preferred the instant petition against that same under section 482 of the Cr. P. C.