AVINASH J MAHALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In this petition, the petitioners have impugned order dated 3rd December, 1997 passed by the learned Assistant sessions Judge, Aurangabad, dismissing the application for discharge.

(2.) Briefly stated, relevant facts are that madhukar, Nanasaheb, Avinash, Ravindra and Bharat (since deceased) are real brothers. They were living with mother Dhudkabai at Chalisgaon. Eldest brother Madhukar is a teacher at Bhadgaon. Nanasaheb is also a teacher at Bhadgaon. The petitioner No. 1 avinash is an Engineer and had taken up a job with "a1 Ain", in United Arab Emirates, from 1976. He purchased a plot at Sane guruji Nagar in the year 1978. He got married in the year 1981. His wife was shuttling between the two countries namely, UAE and India. She used to be with her husband for some time and for some time she used to be at chalisgaon. Younger brother ravindra, is a tailor, and has a tailoring shop at Chalisgaon. Youngest brother Bharat (since deceased) was running a grocery shop at Sane Guruji Nagar. He got married on 8th march, 1988. Petitioner No. l was blessed with a triplet. All the three children were brought up at UAE. In the year 1992, he decided to construct a House on the plot which was purchased earlier. He trusted bharat, therefore, responsibility of looking after the construction was entrusted to bharat. The petitioner no. 1 had an account with the Bank of Maharashtra at Chalisgaon and State Bank of India at Chalisgaon and aurangabad. To facilitate purchases and payment for construction materials, madhukar (Petitioner No. 1) used to send duly signed cheques. By using these cheques, Bharat used to withdraw money from the accounts of Madhukar as and when required for the construction work. In addition, Madhukar was maintaining direct contact with Engineer Ashok Punshi who was supervising the construction work. Construction of the building was completed within three years. The building was baptized as "nisas" named after three children of Madhukar. The children were taking education in a school at Pachgani. After house warming ceremony, petitioner No. 2 shifted to the house and was ordinarily living there. Madhukar had purchased a Maruti van and had kept it at Chalisgaon. The vehicle being registration No. MH-20e 384 used to be given on hire. There was some dispute in respect of expenditure for construction of the building as well as income from Taxi business.

(3.) Petitioners 3, 4, and 5 used express doubts that Bharat had misappropriated amount of Rs. 7 lakhs from construction funds and has also taken commission from taxi business. Bharat, being a sensitive individual, could not bear the agony of these allegations and made an effort to commit suicide in the month of May, 1995. However, due to timely treatment, the catastrophe was averted. However, the dispute continued. Petitioner No. 1 came to Bombay on 10th December 1995 he was received by his brother-in-law, Arun and wife Rekha (petitioner No. 2) , at Bombay. Arun had some business at Bombay. He, therefore, stayed there; whereas petitioner Nos. 1 and 2 came to Chalisgaon in their Maruti van. They reached Chalisgaon at about 10. 00 p. m. As it was late in the night everybody relaxed.