ARVIND RAJARAM NAIK Vs. DAMAYANTI DASHRATH TANDEL

JUDGEMENT

(1.) BY this application, filed under Section 482 of Cr.P.C., the petitioner-original accused has impugned the order dated 11/12/1991 passed by Additional Chief Metropolitan Magistrate, 9th Court, Bandra, Bombay in C.C. No. 71/W/1988 in the following circumstances.

(2.) THE Respondent No.1 had filed private complainant being C.C. No.71/W/88 in the Addl. Chief Metropolitan Magistrate's 9th Court, Bandra, Bombay against the petitioner for offences under Sections 420 and 403 of Indian Penal Code. The Respondent No.1 had married the petitioner's material uncle viz. Dashrath Tandel who expired on 17/5/1977, as per the complaint, when the deceased-husband was in occupation of premises bearing No.14/8, Sagar Sanidhya, Mahim Causeway Road, Bombay 400 016. It is the allegation of the Respondent-complainant that after the death of her husband the above premises were transferred in the name of the petitioner in June 1980 by the Collector of Bombay on account of the misrepresentation made by the petitioner-accused that he was the sole heir. The petitioner made application under Section 245(2) of Cr.P.C. for discharge on the ground that the complaint was false, frivolous and vexatious and was filed maliciously. The said application was filed on 5th July 1991. The advocate for the Respondent No.1 has given his say stating that once the process was issued the Court had no option but to examine the witnesses.

(3.) MR . Shah submits that the impugned order is erroneous as the learned Magistrate had power to decide the application under Sub Section 2 of Section 245 of Cr.P.C. Section 245 of Cr.P.C. is as follows: