SANTOSHKUMAR GHISULAL JAJU Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard. Rule. Rule made returnable forthwith. With the consent of learned counsel for the parties, the Petition is taken up for final disposal at admissions stage.

(2.) Petitioner original complainant (hereafter referred as 'Complainant') in Misc. Application No.253 of 2008, has filed this Petition challenging the impugned order dated 24th November 2010 whereby his complaint came to be dismissed. It is stated that the Complainant went through a civil litigation against one Lahoti which was fought till the Hon'ble Supreme Court and the Complainant succeeded. At the time of execution of Darkhast for possession, Respondent No.2 original accused objected, relying on electricity bill to claim that he was in adverse possession. Consequently the Complainant collected information and came to know that Respondent No.2 got forged "Hami Patra" (i.e. consent letter) purporting it to be from his mother (though dead) consenting to pay charges for reconnection of electricity which had been disconnected. Respondent No.2 signed for his mother, and on the basis of such document, secured electricity bills from the electricity department and relying on such forgery, raised objections in the execution proceeding. It is stated that complaint was filed claiming that accused has forged Hami Patra and was liable to be prosecuted. It is stated that verification of the complainant was recorded and the Magistrate thereafter, instead of issuing process, adopted a wrong procedure by passing order dated 2nd September 2009 sending notice to the accused as to why he should not be prosecuted and according to the learned counsel, looking to the procedure as prescribed under Section 200 of the Code of Criminal Procedure, 1973 (Cr.P.C.) this could not have been done as it was not mandate of the law, to hear the accused before issue of process. It is stated that Magistrate took on record the objections of the accused and later on wrongly dismissed the complaint ignoring the Judgment in the matter of Iqbal Singh Marwah and another vs. Meenakshi Marwah and another, 2005 CrLJ 2161. It is claimed that the order passed by the Magistrate deserves to be set aside and the process should be issued.

(3.) Per contra, the learned counsel for Respondent No.2 submits that the alleged forged document was actually never produced in the Regular Darkhast and what was produced was electricity bill after consumption of electricity and present complaint is not maintainable. It is argued for Respondent No.2 original complainant that the order passed by the Magistrate mentioning that no cognizance can be taken, is erroneous as the Magistrate had issued notice to the accused and after hearing the accused, the order was passed. According to the learned counsel, it amounts to issue of process and the Magistrate has, after applying mind, invoked Section 195 of the Cr.P.C. to dismiss the complaint. According to the learned counsel, the accused has signed his own name in the Hami Patra and there was no forgery.