SATYANARAYAN NANDKISHOR PANDE Vs. VIJAYKUMAR GULABCHAND SARDALABIC

JUDGEMENT

(1.) The above Civil Application is filed under Section 340 read with Section 195 of the Code of Criminal Procedure by Shri Satyanarayan N. Pande, Applicant abovenamed (Respondent No. 4 in Civil Writ Petition No. 3503 of 2016), against Mr. Vijaykumar Gulabchand Sarda and Kalpana Vijaykumar Sarda, Respondent Nos. 1 and 2 abovenamed (Petitioners in Civil Writ Petition No. 3503 of 2016).

(2.) The above Civil Application along with Civil Application Nos. 497 of 2018 in Writ Petition No. 4009 of 2017, 944 of 2018 in Writ Petition No. 1455 of 2016 and 482 of 2018 in Writ Petition No. 721 of 2016 is placed for hearing. The facts in all the Civil Applications overlap to a large extent. Advocate Mr. Nilesh Ojha made his detailed submissions in Civil Application No. 482 of 2018 in Writ Petition No. 721 of 2016 and submitted that the other three Civil Applications are similar. However, I am of the view that separate judgments are required to be written/passed in the Civil Applications, and accordingly I have done so. The Civil Applications were reserved for orders on 23rd July, 2018. However, before dictation of the judgments, Mr. Nilesh Ojha mentioned Notice of Motion No. 1433 of 2018 in Suit No. 929 of 2013 seeking reliefs under Section 340 of the Cr. P.C., along with other matters. Though the said Notice of Motion was not related to the above Application and the other three connected Applications, the issue, as to whether the Court can hear the other side/Accused in the matter, was common. In the said Notice of Motion, Mr. Madon, Learned Senior Advocate along with Mr. Sharan Jagtiani and Mr.Aditya Shiralkar, instructed by M/s. Shiralkar and Company urged several grounds in support of their case that they ought to be heard in the matter. Mr. Ojha opposed the same and submitted that the said issue be decided as a preliminary issue. After hearing the Advocates at length on several adjourned dates, the decision on the preliminary issue was reserved for orders. The Advocates had agreed to file their written submissions. Thereafter, by a Notice dated 14th September, 2018, the assignment pertaining to the said matter was changed with effect from 17th September, 2018. However, on 18th September, 2018, Mr. Madon informed the Court that his written submissions are ready and Mr. Aameer Kale instructed by Mr. Nilesh Ojha sought time to file the written submissions. However, on 25th September, 2018 Advocate Mr. Ojha submitted that since the assignments have changed, and written submissions are yet to be filed, this Court should refer the said Notice of Motion No. 1433 of 2018 in Suit No. 929 of 2013 to the Regular Court. In view thereof, by Order dated 25th September, 2018 the said matters were referred to the regular Court and it is only thereafter that the above Civil Applications were taken up for passing of Orders. On 17th December, 2018, Advocate for the Applicant mentioned the matter and requested the Court to pronounce the orders in the above Civil Applications. The Court informed the Advocate that in the above circumstances passing of orders has taken time. The Court however assured the Advocate for the Applicant that the order in the above Civil Application along with three Applications will be pronounced shortly. On 19th December, 2018, Mr. Ojha filed a praecipe and mentioned the matter before the Court, and inter alia informed the Court that he is relying on two more judgments i.e. judgment of the Hon'ble Supreme Court in the case of Sandeep Kumar Bafna vs. State of Maharashtra and another, 2014 16 SCC 623 and the decision of a Learned Single Judge of this Court in the case of Madangopal Banarasilal Jalan and others vs. Partha s/o Sarathy Sarkar,2018 SCCOnlineBom 3525. Mr. Ojha tendered copies of both the judgments and requested the Court to pronounce the judgment at the earliest. With this prelude, I now proceed with the judgment hereunder :

(3.) Respondent No. 1 is the son of Gulabchand Sarda who passed away on 17th December, 2012. Respondent No. 2 is the daughter-in-law of the said Gulabchand Sarda and wife of Respondent No.1.