PRAKASH NARSINGH SHAH Vs. KISHORE NARSINGH ALIAS HIRALAL

JUDGEMENT

(1.) THIS is a writ petition challenging the issue of process in Criminal Case No.148/S/87 on the file of Metropolitan Magistrate, 9th Court, Bandra, Bombay. Heard the learned Counsel for the petitioner. The first respondent and his Counsel have remained absent. The learned Public Prosecutor appearing for the second respondent left the matter to the discretion of the Court.

(2.) THE facts necessary for the disposal of this case are as follows :- THE first respondent filed a private complaint in the Court below against the petitioner alleging some offences. After recording the sworn statement of the complainant, the learned Magistrate issued process against the accused only for an offence under Section 406 I.P.C. as per the order dated 2/12/1987. Being aggrieved by the issue of process, the accused has come up with this writ petition.

(3.) IT is, therefore, seen from the allegations in the complaint that a civil suit is already pending between the parties where the right to property is in dispute. In fact, the defence is that the complainant is not the step-brother of the accused and that he has no right in the property. The question whether the complainant is really a step-brother of the accused or not is purely a civil dispute and cannot be agitated in a criminal Court, particularly when such a civil dispute between the parties is already pending. it is open to the accused to contend that the complainant is not his step-brother and that he has no right in the property. IT is for a civil Court to decide the relationship between the parties and give a declaration whether the complainant has a right in the property or not. Merely because the accused asserts that there are no other heirs to his mother and he is the only heir and thereby get the properties mutuated in his name, it cannot amount to a criminal offence and the remedy of the complainant is to move the civil Court and get a declaration that the property is a joint family property and he is entitled to a share. The learned Counsel for the petitioner invited attention of the Court to a case reported in AIR 1979 SC 850 (Trilok Singh Vs. Satyadeo Tripathi) where it has been pointed out that in case of civil dispute between the parties, approaching criminal Court by way of a complaint amounts to abuse of process of the Court. That was a case where there was dispute between the parties about hire-purchase. The purchaser of the truck had lodged a criminal complaint alleging that the accused had committed theft of the vehicle. IT was held that the dispute raised was purely of a civil nature and criminal proceeding initiated was an abuse of process of the Court and deserved to be quashed. Then we find that the allegation of the complainant is that the property was standing in the name of Bunibai, the mother of the accused and then the accused got the property transferred to his name. Even if we accept that the petitioner is the step-brother of the accused, he cannot claim any right in the property of the mother of the accused though he may lay claim to father's property. If mother's property is transferred in the name of the son, it cannot amount to criminal breach of trust. IT may be that sisters of the accused may raise a dispute, but they are not parties to the suit and they have not taken any steps to challenge the mutation entry. Hence even on the admitted case of the complainant when the property is standing in the name of Bunibai, the transfer of the same in the name of her son, the accused, prima facie does not amount to any offence much less criminal breach of trust.