LAWS(BOM)-1992-6-53

ROBERT SALVI Vs. ASHOK SONULE

Decided On June 09, 1992
ROBERT SALVI Appellant
V/S
ASHOK SONULE Respondents

JUDGEMENT

(1.) THIS is a quashing petition vis-a-vis Criminal Case No. 174 of 1986 on he file of the Judicial Magistrate, First Class at Kolhapur.

(2.) THE 1st Respondent, hereinafter referred to as Dr. Sonule, is the complainant in the aforementioned complaint directed against the petitioners and the 3rd respondent. The said complaint was filed in the Court then presided over by the 2nd respondent and the relevant portion from the English translation of the complaint reads as under i am running a hospital in the name and style of Ashirwad Hospital at Kolhapur in Revision Survey No. 2355/ A, 2353/1), situated at Bramhapur, Kolhapur on behalf of Rev. H. H. Hitten, in-charge Missionary, S. P. G. Mission, Bramhapuri. The accused Nos. 1, 2, 3 and 4 have got the above-mentioned property entered in the name of Bombay Diocesan Trust Association Pvt. Ltd. on 14. 5. 1970 and got the same transferred in their own names. After entering the names of B. D. T. A. Pvt. Ltd. on 14. 5. 1970, the name of S. P. G. Mission is deleted. After receipt of the complaint, the Magistrate proceeded to record the preliminary statement of the complainant and thereafter passed the impugned order, the relevant recitals there from reading thus Issue process against accused 1 to 3 only for the offence punishable under section 467 nw. 34 IPC. The point of sanction for filing complaint against accused Nos. 1 to 3 if any is kept open. Considering nature of complaint accused No. 4 (respondent No. 3) to be served necessary permission for prosecution of accused No. 4 is not obtained against accused No. 4. Hence process is not issued against him.

(3.) THE present petition is directed against the order of the Magistrate vis-a-vis the petitioners who figure as accused Nos. 1 to 3 in the complaint. Learned Counsel appearing for the petitioners has referred me to the decree passed by the Bombay City Civil Court on 22. 2. 1969 in C. A. Suit No. 6789 of 1968. Shortly stated, the effect of the decree is that the property mentioned above ceased to vest in the Society for the Propagation of the Gospel and came to be vested in a public trust known as the Bombay Diocesan Trust Association Pvt. Ltd. It was consequent to this decree that changes were made in the Revenue Records. The change was to delete the name of the former owner viz. The Society for propagation of Gospel and to substitute for the same the name of the Bombay Diocesan Trust Association Pvt. Ltd. Dr. Sonule has not made a disclosure of this in his complaint. The least that was expected of one who professes to be in occupation of the property on behalf of Rev. H. H. Hitten, who was acting on behalf of the Society, was, to have made enquiries from the erstwhile Society for Propagation of the Gospel Mission and the new-comer the Bombay Diocesan Trust Association Pvt. Ltd. At the least one would have expected Dr. Sonule to find out the true position from the City Survey authorities. Without so doing, he jumped to the conclusion that offences had been committed by forging of documents. Counsel for the petitioners complains, and, with some justification, that the Magistrate should have been more cautious in the matter of passing of an order for issue of process against the petitioners. This was particularly so because the petitioners were retired Government servants and had no personal gain to make out of a change in the name of one institution for that of another. Be that as it may, the order taking cognizance of offences punishable under sections 467 nw. 34 IPC against the Petitioners in primafacie wrong and cannot be sustained. The same is quashed and the rule made absolute. Petition allowed.