SHYAM LACHMANDAS AJWANI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioner has preferred the instant petition although registered as a writ petition, under S. 482 of the Code of Criminal Procedure (for short the Cr. P. C.) for quashing the process issued against him by the learned Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, bombay, under S. 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 I. P. C. and, therefore, issuance of the process amounts to an abuse of the process of the Court. 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 s. 30 of the Act and R. 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 Laxmandas died on 6-9-1978 whereafter his nominee i. e. his wife Smt. Kalawantibai was enrolled as the member of the society and his share 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 S. 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.

(2.) 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 S. 403 of the I. P. C. Feeling aggrieved, the petitioner has preferred the instant petition against the same under S. 482 of the Cr. P. C.

(3.) IT is at this stage pertinent to see that the husband of the respondent No. 2, who is a counsel appearing in the above complaint case, also preferred a writ petition bearing No. 832 of 1990, which in fact is a petition under S. 482, Cr. P. C. as mentioned therein for quashing the derogatory remarks made against him by the learned Magistrate and also for framing an additional charge under S. 409 of the I. P. C. against the petitioner in the above complaint case. 3a. In the above petition, notice before admission was issued by this Court. Since the petitioner in the writ petition No. 832 of 1990 had prayed for a relief that an additional charge under S. 409 of the I. P. C. should be framed in the instant complaint case against the petitioner, I had called for the above writ petition No. 832 of 1990 for being disposed of along with the instant writ petition. The learned counsel for the respondent No. 2, who is the petitioner in the said writ petition No. 832 of 1990, has filed a pursis in Writ Petition No. 832 of 1990 that since the question of framing of charge under Sections 409 and 406, Cr. P. C. is being decided in the instant writ petition No. 777/1990, he would not agitate the said question in W. P. No. 832 of 1990. In view of the above pursis, it is not necessary to decide the W. P. No. 832/1990 along with the instant writ petition.