DHARAM SHEVARAM RAJPAL Vs. MAGANLAL SHEVARAM RAJPAL

JUDGEMENT

(1.) THE challenge in this Petition under Article 227 of the Constitution of India is, inter alia, to the order date 31st December, 2004 passed by the learned Judicial Magistrate, First Class at Uran by which warrant of attachment of the property of the accused (Respondent No.3 herein) was ordered to be issued. The challenge is also to the judgment and order dated 13th April, 2005 passed by the learned Judicial Magistrate, First Class, Uran by which an Application made by the Petitioner under Section 84 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the said Code of 1973) was rejected.

(2.) THE Respondent No.1 herein filed a complaint under section 138 of the Negotiable Instruments Act against the Respondent Nos.2 and 3 herein in the Court of the Judicial Magistrate, First Class at Uran. The case of the Respondent No.1 is that the Respondent Nos.2 and 3 are partners of M/s. Om Enterprises. The Respondent No.3 is the son of the Petitioner and the Respondent No.1 is the brother of the Petitioner. It appears that the Respondent No.3 is absconding. A warrant and subsequently a proclamation was issued against the Respondent No.3. The Respondent No.3 failed to appear before the learned Magistrate and therefore, on Application made by the Respondent No.1, the learned Judicial Magistrate, First Class by order dated 31st December, 2004 ordered attachment of the house property of the Respondent No.2 bearing Municipal House No.86B(1) at Uran, District Raigad. The order of attachment was passed under section 83 of the said Code of 1973.

(3.) SHRI . Kankaria, learned Counsel appearing for the Petitioner submitted that the house property was not of the ownership of the Respondent No.3 and in fact it was purchased by the Petitioner-father though it stands in the name of the Respondent No.3. He submitted that the wife of the Respondent No.3 has made payment of Rs.1,15,000.00 to the Respondent No.1 in full and final settlement of the claim of the Respondent No.1 against the Respondent No.3. He relied upon a copy of receipt dated 6th October, 1995 which records the alleged compromise. He submitted that it is not uncommon that a father purchases a house property in the name of his son and therefore, merely because property is standing in the name of the Respondent No.3, it cannot be said that the Petitioner has no right, title and interest. Shri. Kankaria relied upon the affidavit dated 6th July, 2005 filed by the Petitioner. In the said affidavit it is stated that the Petitioner is ready and willing to deposit sum of Rs.2,30,000.00 in the Trial Court in addition to sum of Rs.1,15,000.00 paid by the wife of the Respondent No.2 to the Respondent No.1. It is stated in the affidavit that if the Trial Court decides the complaint in favour of the Respondent No.1, the amount can be permitted to be withdrawn by the Respondent No.1. In the said affidavit it is stated that even the Petitioner is not aware of the whereabouts of the Respondent No.3. He, therefore, submitted that as Petitioner is ready to deposit the entire cheque amount, the order of attachment deserves to be vacated.