SUKHDEO DATTOBA ADHAV Vs. JANARDHAN DATTOBA ADHAV

JUDGEMENT

(1.) Petitioner has challenged the order of discharge dated 28-2-1997 passed by Judicial Magistrate, First Class, Kopargaon in criminal Case No. 171/1993, discharging the accused and order passed by IInd additional Sessions Judge, Shrirampur, confirming the order of discharge by order dated 7-11-1997.

(2.) Relevant facts, necessary for deciding the present petition, are that : dattu Mhatarba Adhav had six sons, namely, Sukhdeo (present petitioner) , janardhan, Suryabhan, Udaybhan, Uttam and Ratan. He has two daughters, namely, Chabubai Baburao and Sumanbai Gorakh. Dattu was owner of several fields. There was a dispute between the brothers in respect of the landed property. Civil suit in respect of this dispute is pending. The brothers were living separately. Dattu was 94 years old and was suffering from cancer. He was living at the house of respondent No. 1 Janardhan (accused No. 2) and was receiving medical treatment from Dr. Arun Gangwal. During the relevant period, the patient was on saline. He was not conscious and could not recognize visitors. Dattu was having Savings Bank Account No. 1078 with Ahmednagar District central Co-operative Bank, Sahajanandnagar branch. There was balance of Rs. 1,02,960/- in this account. Dattu was suffering from cancer. His treatment did not require much of expenses. As Dattu was not conscious, Janardhan (respondent no. 1) took advantage of this fact and with the help of Sahebrao (branch manager) and his brothers secured thumb impression of unconscious Dattu on the withdrawal slip. Later on he got the thumb impression certified from Chagan bhagaji, who holds Account No. 874 with the same bank. On the basis of this withdrawal slip, with the help of manager of the bank, Dattu withdrew amount of rs. 1,02,800/- from the Bank. In such a manner, Dattu has committed offence of theft and cheating with the aid of his brothers and bank manager. The complainant, therefore, filed a private complaint which came to be registered as criminal Case No. 171/1993 in the Court of JMFC, Kopargaon.

(3.) Learned Magistrate recorded the verification and proceeded to take evidence of the witnesses before framing of the charge. After recording verification, process was issued against accused Nos. 2 to 4 for the offence punishable under sections 420 read with 34 of the Indian Penal Code. After recording of the evidence, learned Magistrate found that offence punishable under section 420 of Indian Penal Code, is not made out. However, according to him, offence punishable under sections 464 read with 465 read with 34 of the indian Penal Code was established. He, therefore, passed an order dated 28-2-1997, discharging the accused for the offences punishable under section 420 of indian Penal Code, and passed an order for framing of a charge against the accused for the offence punishable under section 465 read with 34 of Indian penal Code. Aggrieved by this order of learned Magistrate, the accused preferred criminal Revision Application No. 31/1997 in the Court of IInd Additional sessions Judge, Shrirampur.