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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 3640 OF 2018
Sangeeta Santosh Kadam ]
Age : 45 years, Occu.: Business. ]
R/o. B-601, Plot No.03, ]
Aaradhana Co-op. Houseing Society, ]
Sector No.6, Navi Mumbai. ] …..Petitioner.
VERSUS
1. The State of Maharashtra ]
Through the Senior Inspector of Police ]
Sanpada Police Station, Sanpada. ]
Navi Mumbai. ]
2. Santosh Arvind Kadam ]
Age : 44, Occu. Nil, ]
presently residing at 22/1593 ]
Abhuydaya Nagar, Kalachowki. ]
Mumbai – 4000 033. ] …..Respondents.
…..
Mr. Rajendra Sorankar, Advocate for Petitioner.
Mr. A.R. Patil, APP for Respondent No.1-State.
Mr. Kartik S. Garg, Advocate for Respondent No.2.
…..
CORAM : S. S. SHINDE J.
RESERVED ON : 16th June, 2019.
PRONOUNCED ON : 16th August, 2019.
JUDGMENT
1. Rule. Rule made returnable forthwith with consent of parties heard
finally.
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2. Brief facts leading for filing the Writ Petition, disclosed in the memo
of the petition are as under:
It is the case of the Petitioner that, the Petitioner got married with
one Santosh Arvind Kadam i.e., Respondent No.2 herein, on 24.07.1998. Prior to
the marriage, Petitioner started working after completing two years architectural
draftsman course recognized by the Government (I.T.I.). The Petitioner was
working with an Architect Ravi Gone, Vashi. Petitioner was working there since
the year 1992, and in the year 1993 she had opened her bank account with
Abhyudaya Co-operative Bank Ltd. Thereafter, from August 1994 to August
1995, the Petitioner did her apprenticeship from Mumbai Municipal Corporation
and completed three years diploma course. On or about 14 th May 1995, the
Petitioner along with others started a company under the name and style of
“Designer’s Home”. The Petitioner was doing work with 36 societies work with
CIDCO, and out of her earnings and savings the Petitioner then purchased
different land properties.
3. It is the case of the Petitioner that, on or about 15 th November 1996,
the Petitioner got introduced to Respondent No.2 in a one marriage ceremony
and thereafter friendship developed and resulted into marital bond. The
petitioner and respondent No.2 got married on 24 th July 1998. It is pertinent to
note that, prior to the marriage, the elder brother of Respondent No.2 by name
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Suhas Arvind Kadam had sounded the Petitioner about the erratic nature of
Respondent No.2. At that time, he also advised the Petitioner not to marry his
younger brother.
4. It is the case of the Petitioner that, in the month of March 1995,
Respondent No.2 had a quarrel with his family, after which he left his house
along with his books and clothes. At that time, he was studying. Respondent
No.2 had then taken Rs.40,000/- (Rupees Forty Thousand only) from the
Petitioner for taking a rental accommodation. Thereafter, Respondent No.2’s
parents had visited the Petitioner and informed that, they came to know that the
Petitioner had decided to marry their son Santosh and further informed that, they
would not be attending the marriage as their son (Santosh) was not earning
anything and has not been able to complete his degree. They also advised
Petitioner to desist from marrying Respondent No.2. On the request of
Respondent No.2, the Petitioner agreed for marriage and made jewellery out of
her savings for self and for Respondent No.2 as well as incurred entire marriage
expenses.
5. It is the case of the Petitioner that, from July 1998 to February 1999,
the Petitioner stayed in a joint family however, her husband, Respondent No.2
was unemployed, and it was the Petitioner who used to contribute for the
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household expenses along with payment of maintenance, electricity and other
charges. There used to be constant taunting from the in-laws, and they asked the
Petitioner to stay separately with her husband. Thereafter, Petitioner took a flat at
Sanpada on rent. On 3rd July 1998 elder daughter Shriya was born when
Respondent No.2 was unemployed, and all household expenses including utensils
and other articles were purchased by the Petitioner out of her savings. Petitioner
while working since 1993 to 2001 had saved money out of which she had
purchased gold jewellery, one Hero Honda Bike for her husband and also born
the fees and household expenses of the children and the family.
6. It is the case of the Petitioner that, Respondent No.2 also had
physical relationship with a lady (name known but time being with held) and was
incurring educational expenses of her daughter, and whenever the Petitioner
would ask, Respondent No.2 would fight and quarrel with the Petitioner on the
ground that he was spending his own money, and the Petitioner cannot question
him. Petitioner’s mental and physical condition was deteriorating due to over-
exertion caused due to three abortions/miscarriage and two deliveries with
cesarean. Every time, the Respondent No.2 would insist for a male child and in
the process would force the Petitioner to undergo abortion, because of which the
Petitioner suffered lot mentally as well as physically. It is stated that, from the
year 2004 to 2007, Respondent No.2 was employed in a company viz. IBM at
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Pune and at that time, he was having extra marital affairs with an another
woman, and whenever Petitioner asked about the extra marital affairs, he would
say that since he had not enjoyed his collage life and bachelorhood, nobody could
ever blame him in doing the same. It is stated that, from the year 2007 to 2013,
Respondent No.2 was employed in U.S.A. and Petitioner and her daughter would
visit there regularly. Petitioner was also carrying out various businesses. It is
stated that, on 5th May 2013, Respondent No.2 had visited India on the occasion
of 2nd birthday of younger daughter Urvi for 3 weeks. At that time, Petitioner was
told by Respondent No.2 that, he wanted to live a bachelor life and that during
the college days he could not enjoy the same and till he gets green-card, he would
not come back for four years to India. Therefore, to secure the future of the
children, he suggested to give power of attorney with respect to the flats at
Sanpada and Navade. Accordingly, on 27th May 2013 the Respondent No.2
visited office of an Advocate at Nerul, finalized the draft of two power of attorney
in the presence of his elder daughter, corrected the draft and had also visited the
office of the Sub-Registrar for registration. The said power of attorneys were
prepared by an Advocate viz. Shri. Sandeep Ramkar at Nerul which were
registered with the office of the Sub-Registrar of Stamps at Koparkhairane, Navi
Mumbai. It is stated that, above mentioned both the flats i.e. flat at Sanpada and
flat at Navade were purchased by the Petitioner and Respondent No.2 in joint
name whereas, the Respondent No.2 gave power of attorney with respect of his
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50% share in both the flats and after transfer of both the flats in the name of
Petitioner, the balance EMI with respect of the loan standing in Sanpada flat were
paid to the Petitioner.
7. It is the case of the Petitioner that, due to recession in U.S.A., the
Respondent No.2 was removed from job on 30 th October 2013 and he returned to
India on 1st January 2014 permanently. After his return, Respondent No.2 would
withdraw money from joint account (ATM) with ICICI Bank, Vashi Branch and
NRI account and saving account regularly. Being disturbed with the said conduct
of Respondent No.2, the Petitioner confronted him as to, why he was
withdrawing the money through her ATM cards from her banks Respondent No.2
started quarreling and fighting with the Petitioner, and in reply started physical,
mental harassment and torture. He started visiting only in 7 to 8 days at the
Sanpada residence. Because of the above conduct, meeting was arranged with
Respondent No.2’s parents and the Petitioner’s family. In the said meeting, it was
discussed about the Respondent No.2 staying with his girlfriend, upon which
Respondent No.2 declared that, he wanted to marry said girlfriend, whose name
is disclosed in the Writ Petition, since he had given property by executing the
power of attorney and therefore, the Petitioner cannot stop Respondent No.2’s
relationship with said girl. Moreover, in the above background, where he had
already secured the future of the children, Respondent No.2 left the house and
came after 8 days. On 11th April 2014, Respondent No.2 assaulted his elder
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daughter. At that time, Shriya was badly injured. However, an excuse was given
in hospital that she had fallen in the bathroom. It is further stated that, on 19 th
July 2014 there was a meeting arranged between families from both the sides in
which Respondent No.2 declared that, he wanted to marry said girl and he had
already given power of attorneys to the Petitioner for the future of the children
and he would leave the house after he gets a job. In view of the above discussion
in the family gathering, Petitioner advised Respondent No.2 to get transferred flat
at Sanpada and Navade in her name as Gift Deeds.
8. It is the case of the Petitioner that, since Respondent No.2 was not
doing any work nor was employed, he would visit house and take away
electrical / electronic items, documents and would also physically and mentally
harass and assault Petitioner and both her daughters. Fed up by his conduct,
Petitioner filed a Police complaint on 13 th October 2014 with Turbe Police
Station, which was registered by the Police as N.C. complaint. Despite of
aforesaid efforts stated hereinabove. there was no improvement in the behavior of
Respondent No.2. Hence, to avoid any untoward incident to herself and minor
daughters, Petitioner then filed an FIR on 3 rd January 2015, bearing FIR No.1 of
2015 under Sections 498-A, 406, 323, 504 and 506 of Indian Penal Code, where
Respondent No.2 was arrested and was subsequently released on bail. After his
release, Respondent No.2 never came back to stay with Petitioner.
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9. It is the case of the Petitioner that, in the aforesaid FIR, it was
categorically alleged by Petitioner that, Respondent No.2 had taken away the
documents pertaining to the joint bank account and pass book and other things in
the house of his girlfriend, whose name is disclosed in the Writ Petition, and had
also taken away household items to the house of said girl and had started staying
with said girl, which facts were disclosed by Petitioner to the elder brother of
Respondent No.2, Mr. Santosh and his parents. Petitioner had also narrated how
her husband used indecent and abusive words in front of minor children while
abusing the Petitioner when he was staying with the Petitioner, and thereafter
also whenever he visited the Petitioner. In her complaint, the Petitioner had
disclosed how her husband used to take money from her and detailed harassment
faced by her. Infuriated with the lodging of the above complaint, Respondent
No.2 went and filed a private complaint being Original Miscellaneous Application
No. 1331 of 2015 on 12.08.2015 in the Court of the Judicial Magistrate First
Class, Vashi afterthought and to give counterblast to the FIR filed by the
Petitioner against him. Respondent No.2 in the said Original Miscellaneous
Application No. 1331 of 2015, concocted story about his two flats and money
being misappropriated by Petitioner by obtaining the power of attorney and after
misusing the said power of attorney, gifted both the flats to herself on 14 th August
2014 and 19th August 2014. Hence, he had filed a private complaint under
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Sections 211, 406 and 420 r/w 34 of the Indian Penal Code against the Petitioner
and one Jayant Jairam Naik i.e. a family friend and in said proceedings order
under Section 156 (3) of the Code of Criminal Procedure was passed by the trial
Court on 14.08.2015.
10. It is further submitted that, during the course of investigation, Police
recorded the statement of Petitioner and other witnesses and also seized
documents pertaining to the properties alleged in the complaint. Police also
recorded the statement of the elder daughter on 01.11.2015 and Uma Jayant
Naik, wife of Jayant Naik, Accused No.2. During the course of the investigation,
it was disclosed by Respondent No.2’s daughter i.e. Shriya Kadam that he i.e.,
respondent No.2, had read the power of attorney properly in the office of
Advocate Sandeep Ramkar and had also corrected it. At that time, the said Shriya
was with him and thereafter Respondent No. 2 had visited the office of the
Registrar of Stamps at Koparkhairane, Vashi. In the statement of Mrs. Uma
Jayant Naik, she categorically stated that, she had never mentioned about the
marital affairs of her husband and the Petitioner to Respondent No. 2, which was
falsely alleged by Respondent No.2 in his police complaint.
11. It is the case of the Petitioner that, after the investigation and
perusing all the material record, the Respondent No.1 filed a report dated
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19.04.2016 in FIR No. I – 121 of 2015 inter alia disclosing that, Respondent No.2
was not co-operating with investigation and after going through the statements of
witnesses’ and documents collected, it was disclosed that while signing power of
attorney, there was no haste as alleged by the complainant in FIR and he had
read and understood the contents of the same which were disclosed in the
investigation. Further, it was found by the Police that, Flat No. 59 A/10, Sector 9,
Vashi, Navi Mumbai was purchased by the Petitioner out of her earnings and
savings and the other properties were also purchased by the Petitioner’s single
name or joint name. It was further stated that, there was FIR lodged by the
Petitioner on 03.01.2015 where after collecting evidence, charge-sheet was filed
by the concerned police Station on 20.01.2015 against the Respondent No.2, and
the allegation of the complainant that the above mentioned case was false was
found to be incorrect in investigation. Dispute raised by the complainant is purely
of civil nature and hence ‘C’ summary report was submitted by the concerned
police officer to the concerned Court.
12. It is the case of the Petitioner that, the Trial Court issued a notice to
the complainant on the “C summary report” whereas the complainant filed a
protest petition on 20.07.2017 and thereafter the learned Trial Court vide order
dated 26.09.2017 rejected the said “C summary report” and passed order of
issuance of summons vide Exh.1 on the very same day. It was shocking to note
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that, though “C summary Report” was rejected on 26.09.2017 and summons was
issued on the very same day vide separate order vide order dated 26.07.2017 i.e.
about 2 months before thereof, the learned Judicial Magistrate First Class appears
to have allowed the protest petition and passed an order to examine the
complainant under Section 200 of the Code of Criminal Procedure.
13. It is the case of the Petitioner that, on 20.07.2017, the learned
Judicial Magistrate First Class appears to have recorded the statement of the
complainant under Section 200 of the Cr.P.C. but the order of rejection of “C
summary report” was passed two months thereafter i.e. on 26.09.2017 and the
order for issuance of summons was also appears to have been issued on the very
same day i.e. 26.09.2017. It is further submitted that, it is shocking to note that
no summons was ever served upon the Petitioner and from Roznama collected by
the Petitioner, it appears that, on 20.07.2017 the examination of the complainant
was held and application for challenging the protest petition was filed by the
complainant and the matter was referred for mediation and adjourned to
01.08.2017. It is also observed that, entire Roznama carrying the date of signing
12.07.2018 i.e. a single date, when Roznama have been singed by presiding
officer.
14. It is the case of the Petitioner that, same matter was adjourned from
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20.07.2017 to 01.08.2017 then to 24.08.2017, thereafter to 07.09.2017, then to
26.09.2017 whereas on 26.09.2017, “C summary report” was rejected by the Trial
Court and the matter was adjourned to 30.10.2017. On 30.10.2017 the matter
was adjourned on 13.11.2017. On 13.11.2017 again the mater was adjourned to
20.01.2018 and on 20.01.2018 the complainant applied for issuance of non-
bailable warrant, and the matter was adjourned to 20.04.2018. It appears that,
on 24.04.2018 again an application for issuance of non-bailable warrant was
made and the learned Trial Court appears to have issued NBW on 27.07.2018. It
is pertinent to note that, on 29.06.2018 the Petitioner appeared and informed
that no summons was issued. The NBW issued to petitioner was cancelled by the
Court.
15. It is the case of the Petitioner that, the Petitioner came to know that,
the Original Miscellaneous Application numbered as OMA No. 1331 of 2015
which was filed on 12.08.2015 before the learned Judicial Magistrate First Class,
9th Court at Vashi is being shown on the board of learned Judicial Magistrate First
Class, 9th Court at Vashi. However, in very same matter order under Section 156
(3) was passed and on 20.11.2015 the same stood transferred to the learned
Judicial Magistrate First Class, 10th Court at Vashi. For the very same case, two
courts are conducting parallel proceedings one i.e. learned Judicial Magistrate
First Class, 9th Court, 10th Court at Vashi where next date is 30.08.2018. Further,
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the Roznama in Original Miscellaneous Application No.1331 of 2015 and original
case papers are not available in record with learned Judicial Magistrate First
Class, 9th Court at Vashi nor with learned Judicial Magistrate First Class, 10 th
Court at Vashi. Further it also important to note that, one more case has been
shown i.e. Original Miscellaneous Application No. 1269 of 2015, details of which
are not available with learned Judicial Magistrate First Class, 3 rd Court at Vashi
nor in the record room. The Petitioner made efforts to trace the same by filing
application for certified copy however, the copy is not made available nor it is
available in record room.
16. It is the case of the Petitioner that, after filing of the above complaint
where proceedings were going on, Respondent No.2 again approached the
learned Judicial Magistrate First Class, Vashi and filed RCC No. 1155 of 2017 on
19.09.2017 inter-alia seeking an order under Section 156 (3) Cr.P.C. raising
grievance as regards to same “Power of Attorney” in the second complaint by
suppressing earlier complaint filed by him being FIR No. I – 121 of 2015. The
Second complaint came to be filed under Sections 403, 406, 407, 467 and 471
read with Section 34 of the IPC wherein he made the Petitioner one of the
accused and five others including the Advocate Mr. Quershi. The second
complaint is pending consideration where the learned Magistrate has passed an
order directing to enquire the mater under Section 202 of Cr.P.C.
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17. It is the case of the Petitioner that, Respondent No.2 also suppressed
the fact that on 11.05.2015, he had filed a petition before the Civil Court at
Thane, being Hindu Marriage Petition No. 599 of 2015 for a decree of divorce
against the Petitioner taking the ground that, the Petitioner was not allowing to
have physical relationship along with other grievances. The Petitioner states that,
the said divorce petition came to be filed after the Petitioner filed complaint
under FIR No. 1 of 2015 dated 03.01.2015 with Turbe Police Station. The said
divorce petition and above mentioned complaint was in counter to the complaint
filed by the Petitioner. The above divorce petition is pending before the learned
Civil Court at Thane.
18. It is the case of the Petitioner that, from the material referred herein
above, it has become crystal clear that, Respondent No.2 who was in extra marital
affairs with more than two to three women after his marriage with the Petitioner,
when caught red handed, in a family meeting, made a statement of giving away
flats at Sanpada and Navade standing in the joint names to the Petitioner for
security of both the daughters in future, which was drafted as per his approval
and instructions by an Advocate at Nerul. The aforesaid power of attorneys were
duly registered with the office of the Sub-Registrar by Respondent No.2. As per
the authority given under the said power of attorneys, both the flats were
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transferred in the name of the Petitioner as the Respondent No.2 wanted to stay
separately with third women. However, when Respondent No.2 continued with
his misadventure beyond tolerable limit and started harassing and physically
assaulting the daughters when FIR came to be lodged on 03.01.2015 under
Sections 498-A, 406, 323 and 506 of IPC and upon his arrest in the said FIR, as a
counterblast and afterthought, Respondent No.2 went and filed the aforesaid
private complaint being RCC No. 1331 of 2015 and obtained order under
Sections 156 (3) of Cr.P.C. The said Respondent No.2 further filed a divorce
petition which is also pending consideration where he has not sought any relief
with respect to both the flats and / or any declaration in respect thereof. It is
pertinent to note that, after filing the above proceedings, the very same
complainant i.e. Respondent No.2 again filed another proceeding being RCC No.
1155 of 2017 on similar cause of action i.e. power of attorney by suppressing the
earlier proceedings.
19. It is contended that, when Respondent No. 2 was caught red-handed
while having extra marital affairs, in a family meeting, he assured that for the
future of the minor daughters, he executred power of attorneys in respect of the
two falts which was executed by him in the office of lawyer which witnessed by
his own elder daughter and the same was registered by him in the office of the
Sub-Registrar of Stamps. Respondent No. 2 has not challenged the veracity and
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validity of the said power of attorneys before any Civil Court nor has he
approached Civil Court for declaration that the said power of attorneys are null
and void. In the absence of any declaratory order he is trying to misuse the
criminal court proceedings which tantamount to abuse of process of law. It is an
undisputed fact that the signature on the power of attorney was of Respondent
No. 2, he had visited the lawyer’s office and also the office of the Sub-Registrar of
stamps for registration.
20. It is submitted that, after a detailed investigationand going through
the records and documents, Police filed a final report by bringing on record
misdeeds of Respondent No. 2 whereas the learned Trial Court rejected the said
report vide order dated 26.09.2017 and issued summons on the very same day,
against the petitioner under sections 420, 406, 211 read with Section 34 of the
Indian Penal Code under Section 204 of the Cr.P.C. However, the order to record
statement under Section 200 of the Cr.P.C. appears to have been passed on
20.07.2017 i.e. before 2 months, and even the statement on 20.07.2017 which
gives rise to a suspicion that either order dated 20.07.2017 was passed back
dated and/or order dated 26.09.2017 rejecting “C summary report” was back
dated as unless the “C Summary report” is rejected, there cannot be recording of
statement under section 200 Cr.P.C. Thus, from the material available on record
the manner in which the matter has progressed and non-bailable warrant came to
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be issued without issuing summons or serving summons upon the petitioner,
there appears to be blatant impropriety, illegality and misuse of process of law
which is apparent on the face of it.
21. It is further contended that when the petitioner caught Respondent
No. 2 in his illegal extra marital affairs then he started filing various proceedings
and recently has filed one more proceedings based on the same cause of action by
suppressing criminal proceedings initiated by him as stated hereinabove. It is
submitted that, Respondent No. 2 has filed the above proceedings as a matter of
afterthought and in counter to the FIR filed by the petitioner being FIR No. 1 of
2015 dated 03.01.2015 with the sole intention to harass petitioner.
In support of aforesaid contention, learned counsel appearing for the
petitioner relied upon the following judgments:-
1. Tula Ram Ors. Vs. Kishore Singh (1977) 4 SCC 459
2. Thermax Ltd. Vs. K.M. Jhony Ors. (2011) 13 SCC 412.
3. S.W. Palanitkar Ors. Vs. State of Bihar Anr. (2002) 1 SCC 241.
4. Joseph Salvaraj A. Vs. State of Gujarat Ors, Crl. A. @ S.L.P. (Crl)
No. 2409 of 2017.
5. V.Y. Jose Anr. Vs. State of Gujarat Anr, (2009) 3 SCC 78.
6. Hridaya Ranjan Prasad Verms Ors. Vs. State of Bihar Anr.
(2000) 4 SCC 168.
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22. Learned counsel appearing for the Respondent No. 2 relying on the
affidavit in reply and annexures thereto made following submissions which are as
follows:
It is submitted that, present Petition is not maintainable and is liable
to dismissed with cost. Firstly, the petitioner has invoked the Writ Jurisdiction of
this Hon’ble Court without exhausting the alternative remedy available in law.
Therefore, the present Writ Petition is not maintainable. It is trite law that the
litigant should exhaust all the remedies available to her and then approach the
highest Court of the State. In the present case, the Petitioner without approaching
the Sessions Court has filed present Petition directly before this Hon’ble Court.
23. Secondly, the present Writ Petition is hit by the principles of delay
and laches. The impugned order issuing process was passed on 26.09.2017. A
perusal of Roznama of the Trial Court would reveal that before issuance of
process, the Petitioner alongwith her advocate had remained present and were
keeping track of the matter. It would further reveal that the Court had also kept
the matter for mediation before the order of process. The Petitioner and her
advocate were also present on 26.09.2017, the day on which the learned
Magistrate Court had issued process against the Petitioner. The advocate for the
Petitioner was also present on subsequent day i.e. 30.10.2017. On the next date
i.e. 13.11.2017, both the Petitioner and her advocate were present. It was
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thereafter they chose to remain absent. Thus, the Petitioner had knowledge of
issuance of process on 26.09.2017 itself and she chose to remain silent. The
Petitioner also failed to immediately file any Application challenging the order of
issuance of process. In the present Petition a false and mala fide ground has been
taken that the Petitioner was never served and had no knowledge about the order
of process. The Petitioner had knowledge about the Order of issuance of Process
on 26.09.2017 itself. The present Petition is filed on 16.08.2018, almost after 11
months of the order. The Petitioner had not explained the said delay and on the
other hand had made false statement on oath. As apparent from the records, the
date on which the present Petition was filed, the limitation Period of filing
Revision Application was over. Therefore, to overcome that defect, the Petitioner
chose to file present Petition without preferring the Revision Application which is
hit by limitation. This clearly proves the mala fide on the part of the Petitioner. It
is submitted that on both the counts present Petition deserves to be dismissed
with Cost.
24. Learned counsel appearing for the Respondent No. 2 further
submitted that, avermends made in the Petition are false and misleading and
correct facts of the present case are as follows; The Petitioner and Respondent
No. 2 are husband and wife. They got married on 24th July 1998 before the
Marriage Registrar, Mumbai. The Petitioner was introduced to Respondent No. 2
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in one relative’s weeding. In the year 1996, the Respondent No. 2 was
prosecuting engineering from VJTI College, Mumbai. The Petitioner was a year
older to Respondent No. 2. On the persistent pressure from the side of Petitioner,
the Respondent No. 2 agreed for marriage and the marriage was solemnized
while the Petitioner was pursuing his studies.
25. On 3rd July 1999, a daughter named Shriya, was born out of the
wedlock. After completion of studies, the Respondent No. 2 worked with a
company named Pactil and different companies till 2003. From 2004 to 2007,
Petitioner was employed with IBM, Pune. The Respondent No. 2 was getting a
very handsome salary on which the household expenses and other expenses were
taken care of. In the year 2007, the Respondent No. 2 got a job in USA. He
worked in USA from 2007 to 2013. The Respondent No. 2 was getting a good
salary from which he was taking care of the expenses of the family and also saved
for the studies and future of his daughters. The Respondent No. 2 also purchased
properties out of the income earned by him.
26. It is further submitted that, whilst the Respondent No. 2 was in USA,
the Petitioner misused the NRE and other ATM cards of the Respondent No. 2
and on the false pretext of taking care of household expense, withdrew money
from the NRE and other bank accounts of Respondent No. 2 and spent money
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accumulating wealth in her own name. The Petitioner over a period of time
accumulated a huge some of money and transferred the same to her own bank
account. She also purchased a property at Vashi out of the said income without
informing the Respondent No. 2. The Petitioner out of money send by the
Respondent No. 2 has prepared multiple Fixed Deposits in her own name for an
amount of Rs. 10 to 15 Lakhs without the knowledge of Respondent No. 2. The
Petitioner had also purchased one two-wheeler vehicle, Honda Neo and a four-
wheeler vehicle Maruti A-star. She had also purchased many gold ornaments. The
Petitioner had paid the money for the purchase of all the above said properties
and other things from the income of Respondent No. 2 without his knowledge.
The Petitioner has not spent even a single penny from her own pocket to
purchase the above properties.
27. The petitioner during the visit of Respondent No. 2 to India used to
talk very affectionately in order to convince Respondent No. 2 to give his power
of Attorney with respect to his property and bank accounts to Petitioner. In the
month of May, 2013, Respondent No. 2 had come to India for meeting his family.
During the period of his stay, the Petitioner insisted that the Power of Attorney
with respect of the property in the joint name of Petitioner and Respondent No. 2
be given to Petitioner. It was misrepresented that the same would be useful for
payment of maintenance, property tax, electricity bill, telephone bill, etc. As the
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Respondent No. 2 was not aware of the ill motives of the Petitioner, he agrred to
give Power of Attorney to Petitioner to take necessary measures for smooth
functioning in his absence with respect to two flats. On the insistence of
Petitioner, the Respondent No. 2 executed a Power of Attorney in respect of his
share in property at B-601, Aradhana CHS, Plot No. 2, Sector 06, Sanpada, Navi
Mumbai. Respondent No. 2 similarly executed another Power of Attorney in
respect of his share in property at Flat No. 307, A-Wing, Plot No. 31, Neelkamal
Vrindavan, Sector 31, Nawde, Panvel. It was clearly mentioned in the opening
Paragraph of both the Power of Attorney that Respondent No. 2 is going out of
India for job and due to his job, he would not be able to look after the affairs of
said property and therefore, the said Power of Attorney is executed in favour of
the Petitioner. The Petitioner had instructed her Advocate to draft the above said
Power of Attorney’s. The Power of Attorney’s were executed in the office of the
Advocate and the Respondent No. 2 was made to sign upon the same without
giving him the chance to properly go through the same. The Power of Attorney
was executed by deposing utmost faith upon the Petitioner.
28. Respondent No. 2 stayed in USA for more than 6 years and therefore,
in order to stay with family and spend time with family and to look after higher
education of his daughters, he left his job in USA and decided to return back to
India. On 01.01.2014, the Respondent No. 2 returned to India and started staying
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at the residence at Sanpada with the Petitioner and his daughters. After returning
to India, the Respondent No. 2 discovered that the Petitioner was no really happy
with his return. Respondent No. 2 casually asked about the above said Power of
Attorney’s to the Petitioner. Initially, Petitioner informed that the said Power of
Attorney’s are kept in the Respondent No. 2’s parents house at Thane. The
Respondent No. 2 didn’t had a reasons for suspecting the Petitioner initially and
therefore, he believed her words. But to his shock and surprise when Respondent
No. 2 subsequently enquired about both the Power of Attorney from his parents,
it was informed that they never had any such Power of Attorney’s in their
possession. At taht time, Petitioner informed that she is unable to find the Power
of Attorney’s. Respondent No. 2 therefore started searching the Power of Attorney
in the house, at that time he noticed that the Petitioner used to leave the house
only after locking the cupboard of the house where all the valuables and
documents are kept. The Petitioner was not allowing the Respondent No. 2 to
access the cupboards since he returned to India. Respondent No. 2 therefore felt
suspicious about the conduct of the Petitioner.
29. Respondent No. 2 upon returning to India also observed that,
Petitioner’s behaviour towards the Respondent No. 2 had changed and she used
to fight with Respondent No. 2 on trivial issued. It was also discovered that the
Petitioner had also poisoned the ears of their daughter Shriya against Respondent
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No. 2. There were frequent fights in the house on trivial issue and on many
occasions the Petitioner questioned the Respondent No. 2 the reason for returning
from USA and he was earning well and now how she would maintain her
expenses. From the overall conduct of the Petitioner, Respondent No. 2 got
suspicious and checked the records and accounts and the money withdrawn and
spent by the Petitioner. To the shock and surprise of the Respondent No. 2, the
Petitioner had not kept anything in his account and the Petitioner has very
smartly withdrawn all the salary and money from the account of Respondent No.
2. The same was accumulated with the Petitioner in her account and in the
account of her close relatives and properties were purchased from the same
without the knowledge of Respondent No. 2. Respondent No. 2 asked the
Petitioner to account for money spent by her in all these years as the entire salary
of every month which was in lakhs were withdrawn by the Petitioner. Petitioner
got agitated and fought with Respondent No. 2. Petitioner since then started
making allegations against Respondent No. 2. Respondent No. 2 tried to find out
about both the Power of Attorney and the money which was withdrawn but
Petitioner made sure that the same should not come to the knowledge of
Respondent No. 2 and kept on mentally harassing the Respondent No. 2 day in
and day out.
30. It is further submitted that, as the Petitioner got furious that the
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Respondent No. 2 would come to know about the deeds of Petitioner, she started
making false allegations and complaints against the Respondent No. 2 in police
station. On 13.10.2014, Respondent No. 2 filed a false complaint before the
Sanpada Police Station. Respondent No. 2 therefore, attended the police station
and at that time, the brother of Petitioner i.e. Alankar Kadam assaulted the
Respondent No. 2 before the police officials. Respondent No. 2 had to sit in the
police station for the whole day because of the same. By the time, relation
between Petitioner and Respondent No. 2 was going sour.
31. Respondent No. 2 suspected that Petitioner may misuse the Power of
Attorney executed in her favour by the Respondent No. 2, Respondent No. 2
therefore, sent two notices to the Petitioner both dated 01.12.2014 thereby
revoking the Power of Attorney given in respect of Flat No. 307, A wing, Plot No.
31, Neel Kamal Vrindavan, Sector 31, Nawade, Panvel and also revoked Power of
Attorney given in respect of Flat No. B-601, Aaradhana CHS, Plot No. 3, Sector 6,
Sanpada, Navi Mumbai. By way of both the notices, the Respondent No. 2 called
upon the Petitioner to return back the Power of Attorney and other original
documents in respect of above said flat premises.
32. Petitioner in reply to above notices, sent a joint reply dated
05.12.2014 through her Advocate to both the notices. In the said notices, in
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Paragraph No. 7, it is mentioned that, my client in reply to your two notices states
that as far as the subject matter of your notices that is Revocation of Power of
Attorney in respect of the Flat bearing No. 601, Aradhana CHS Ltd. Plot No. 3,
Sector 6, Sanpada and in respect of Flat bearing No. 307, A Wing, Plot No. 31,
Neel Kamal, Vrindavan, Sector 31, Nawade, Panvel Dist. Raigad is concern my
clients states that, she does not have Original documents in respect of any of the
flats and she does not have any blank signed papers, or any other documents
which your client is demanding in respect of the said two flats as well as my client
does not have Original Power of Attorneys in respect of subject flats mentioned in
your notices since your client has already been forcibly taken back all the Original
Power of Attorneys in respect of the said subject flats from my client at the time
when your client himself requested my client to use it for the purpose mentioned
therein and the same are lying with your client only, and now your client only to
grab all the properties is harassing my client to transfer the said flats in his name
and falsely demanding all the papers which are lying with himself only. It is clar
from the tenor of the reply that the Petitioner alleged that she is not in possession
of Original Power of Attorney and the Respondent No. 2 is trying to grab all the
properties.
33. Respondent No. 2 thereafter enquired about the money spent by the
Petitioner. He came to know that the Petitioner without the knowledge of
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Respondent No. 2 had purchased land in Konkan belt from the money sent by
Respondent No. 2 from USA. The properties were purchased in the Konkan belt at
Kanakwadi, Madangad, Dapoli, Chiplun, Khopoli, etc. Respondent No. 2 also
enquired about the Power of Attorney executed in favour of the Petitioner and
subsequently cancelled, and to the utter shock and surprise of the Respondent No.
2, it was discovered that the Petitioner had already used both the Power of
Attorneys in respect of the flats are mentioned above. Petitioner has executed two
Gift Deeds dated 14.08.2014 and 19.08.2014 in respect of the Flat bearing No.
601, Aradhana CHS Ltd., Plot No. 3, Sector 6, Sanpada and in respect of Flat
bearing No. 307, A wing, Plot No. 31, Neel Kamal, Vrindavan, Sector 31, Nawade,
Panvel, Dist-Raigad wherein the 50% share of the Respondent No. 2 in both the
flats have been gifted to Petitioner. The said gift deeds are executed by the
Petitioner on behalf of the Respondent No. 2 as his Power of Attorney. Petitioner
used the Power of Attorney and transferred the above said flats to her ownself as
gift. It is pertinent to note here that, when the above said Gift Deeds were
executed the Respondent No. 2 was present in India. Petitioner tried her best to
suppress the said fact from the Respondent No. 2. It is also pertinent to note that,
the Petitioner by way of her reply dated 05.12.2014 in the above mentioned
paragraph no. 7 had stated that, she is not in possession of the Original power of
Attorney and nowhere in the said reply it is mentioned that she has gifted the two
flats in her own name. The mala fide intention of the Petitioner is clear from her
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own conduct.
34. Respondent No. 2 after discovering the same confronted the
Petitioner however, the Petitioner threatened the Respondent No. 2 of dire
consequences. Respondent No.2 also discovered that in order to cheat the
Respondent No. 2 and cause wrongful loss to him and wrongful gain to herself,
the petitioner has further sold one of the flats and created third party rights in the
said property by executing sale agreement and sale deed.
35. It is further submitted that, when Respondent no. 2 was in USA, the
Petitioner had a love affair with Accused No. 2 in the Complaint, i.e. Jayant
Jayram Naik, the said fact was informed to Respondent No. 2 by the wife of mr.
Jayant Jayram Naik. Respondent No. 2 confronted the said fact to Petitioner, but
the Petitioner avoided the said issue and threatned the Respondent No. 2 in order
to pressurize the Respondent No. 2 a FIR making false allegations was filed with
Turbhe Police Station under Sections 498-A, 406, 504, 506, 427 of the IPC
against athe Respondent No.2. The accused No. 2 and the sister of the Petitioner
has political contacts. The accused using their political contacts filed the aforesaid
FIR. The said FIR was registered with a view to pressurize the Respondent No. 2
from taking any action against the fraud and criminal breach of trust played by
the Petitioner.
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36. It is further submitted that, Petitioner has stolen many articles and
documents of the Respondent No. 2 and the same are kept with her different
relatives residing at different places. This included the professional degree
certificate and mark sheets of Respondent No. 2, caste certificate, birth certificate,
national Saving Certificates, Work Experience Certificates and also iPhone 4,
external hard disk, laptop, Apple and Bose company cord and bluetooth headset,
books and many other articles.
37. On the basis of above stated facts, the Respondent No. 2 filed
numerous complaints with the concerned Police Station but the police failed to
take cognizance of the offences. Respondent No. 2 had also filed complaint with
the Commissioner of Police but no action was taken on the same.
38. Respondent No. 2 therefore, filed a Complaint vide OMA No. 1331 of
2015 under Section 156(3) of Cr.P.C. before the learned JMFC, Vashi, Navi
Mumbai seeking direction to Police to register FIR. The learned JMFC, Vashi was
pleased to allow the said Application and the directions were issued to the
Sanpada Police Station to register the FIR and investigate into the matter.
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39. Pursuant to the order under Section 156(3) of the Cr.P.C. the Police
registered FIR against the Petitioner and accused no. 2 under Section 420, 211
r/w. 34 of the IPC. The Police took no effective steps to investigate into the
offence and apart from recording the statement of the Petitioner and few others.
The investigation was conducted by the Sanpada Police Station in a biased and
partial manner in order to protect the Accused in the FIR. The Police after
conducting half hearted investigation filed a report in the nature of ‘C’ Summary
and opined that the matter is of Civil in nature. The FIR and ‘C’ Summary report
is annexed with the copy of the Petition.
40. Respondent No. 2 being aggrieved by the Summary Report submitted
by the Police filed Protest Petition before the Trial Court. The case was numbered
as RCC No. 1256 of 2015. The learned JMFC, Vashi, Navi Mumbai by its order
dated 20.07.2017 was pleased to consider the said Protest Petition and proceeded
to examine the Respondent No. 2 under Section 200 of Cr.P.C. The learned JMFC,
Vashi after applying its mind to the facts of the case and material on record by its
order dated 26.09.2017 was pleased to issue process upon the Accused under
Section 420, 406, 211 r/w. 34 of the IPC. It is pertinent to note here that, on both
the occasions i.e. 20.07.2017 and 26.09.2017, the Petitioner along with the
Advocate was present in the Court and participated in the proceedings and
therefore, their names are reflected in the Roznama.
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41. It is therefore submitted that, taking the overall facts of the case as
mentioned above as it is, the offence is clearly made out and the order passed by
the learned JMFC, Vashi is legally sustainable in law. The learned JMFC, Vashi
has not committed any illegality in passing the order. Hence, the present Writ
Petition sans merits and deserves to be dismissed with cost.
42. It is further submitted that, the Petitioner subsequently played one
more fraud upon the Respondent No.2. Respondent No. 2 and the Petitioner had
taken loan from ICICI bank for purchase of no. B-601, 6th Floor, Aradhana
Apartment, Plot No. 3, Sector 6, Sanpada, Navi Mumbai. Respondent No. 2 after
canceling the above said Power of Attorneys by notice dated 01.12.2014 had
written as email to ICICI bank to not release the papers of the property to anyone
else except him. Respondent No. 2 had from his own hard-earnest money had
purchased the said flats. Subsequently, when Respondent No. 2 inquired with the
bank about the loan, it was informed that the last installment of the loan is
already paid by the Petitioner and she has taken all the loan documents from the
bank. Respondent No. 2 when confronted with the bank about the same, it was
informed that the Petitioner produced many documents including a Power of
Attorney dated 04.11.2016 purportedly executed by the Respondent No. 2 in
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favour of Petitioner. It is submitted that, there are criminal complaints filed by the
parties against each other and also Divorce proceeding is pending. There is no
occasion for the Respondent No. 2 to give another Power of Attorney in favour of
the Petitioner. The said power of attorney is clearly forged and fabricated. A
perusal of said Power of Attorney would show that the same is prepared on a
Stamp Paper which is dated 28.08.2014 and purchased on 03.09.2014. However,
the stamp of Notary states that the same is executed on 04.11.2016.
43. Respondent No. 2 therefore filed a subsequent complaint vide OMA
No. 1155 of 2017 in respect of forged and fabricated Power of Attorney dated
04.11.2016. The said Complaint is pending against the Petitioner before the
learned JMFC, Vashi, Navi Mumbai. The allegations in the present Petition that
on the same cause of action two complaint are filed are clearly false and
incorrect. The cause of action in both the complaint are different.
44. The conduct of the Petitioner clearly proves the mala fide on her
part. Even the present Petition makes false and incorrect statements on record
and the same is misleading. The Petitioner has suppressed many important
documents and have made incorrect and false averments about the same without
producing the same. The Petitioner has not produced the ‘C’ Summary report,
documents produced by the Respondent No. 1 before the Trial Court, statement
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of Respondent No. 2 before the Trial Court, etc. Hence, learned counsel appearing
for the Respondent No. 2 prays that petition may be rejected.
45. Learned counsel appearing for the Respondent No. 2 in support of
his contention place reliance on the judgments of the Hon’ble Supreme Court in
the case of Tula Ram Ors. Vs. Kishore Singh (1977) 4 SCC 459, Nupur
Talwar Vs. CBI (2012) 11 SCC 465, India Carat Pvt. Ltd Vs. State of
Karnataka and Anr. (1989) 2 SCC 132.
46. Heard learned counsel appearing for the petitioner, learned APP for
Respondent No. 1 and learned counsel appearing for Respondent No. 2. With
their able assistance perused pleadings and grounds taken in the petition,
annexures thereto, reply filed by Respondent No. 2. At the outset it needs to be
mentioned that, the petitioner and Respondent No. 2 unnecessarily stated the
disputed questions of fact in the petition as well as reply which is the subject
matter of other proceedings pending between them. In the present case limited
issue involved is that, whether the order passed by Trial Court issuing process is
sustainable in law? It is alleged by the petitioner that, the procedure adopted by
the Magistrate is not proper. Learned counsel invites attention of this Court to the
orders passed by the Magistrate and Roznama and tried to submit that, there is
total mismatch of the date of filing protest petition, date of examination of
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Respondent No. 2, date of order on the protest petition and date of issuance of
summons. In this respect it is necessary to mention that, there is no irregularity as
such as alleged. It appears that, protest petition was filed immediately after
receiving police report in the year 2017 and the Trial Court passed the order on
said protest petition and rejected “C” summary submitted by police and thereafter
issued summons to the petitioner. Even if the contention of the petitioner is
accepted that there was some irregularity, that would not nullify the averments
made in the complaint which prima facie attracts the ingredients of alleged
offences and consequently alleged offences have been disclosed against the
petitioner. It appears that, after passing of order by Magistrate, petitioner
belatedly after about 10 months filed writ petition. There is considerable delay in
filing the petition. The summons has been issued on 26 th September 2017 and
petition has been filed belatedly after 10 months. Pursuant to issuance of
summons, petitioner instead of causing appearance before the Trial Court filed
petition after 10 months. The Trial Court was constrained to issue Non Bailable
Warrant to the petitioner for not appearing before the said Court. It is true that,
the order of issuance of Non Bailable Warrant has been recalled by the said Court,
but fact remains that the petitioner was trying to avoid appearance before the
said Court.
The contentions raised by the learned counsel for the petitioner that,
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the police investigated in the matter and submitted report to the Magistrate for
“C” summary and the said report ought to have been accepted by the Magistrate
and proceedings ought to have been closed/terminated. In this respect, it is for
the Magistrate, whether to accept such report submitted by the police or to
proceed further with the proceedings as held in the case of Tula Ram Ors.
(supra). As already observed in the present case, protest petition was filed by
contesting respondent and the Magistrate was pleased to pass the order on said
protest petition and therefore, summons has been issued to the petitioner.
Therefore, there is no infirmity in the order passed by the Magistrate.
47. Upon careful perusal of the averments in complaint, prima facie
ingredients of alleged offences gets attracted and consequently alleged offences
have been disclosed. There are other averments in the complaint, however, it is
not necessary to make reference to those averments. Suffice it to say that, since
the alleged offences are disclosed, the parties will have to appear before the Trial
Court for further adjudication of the proceedings.
48 While exercising writ jurisdiction/inherent powers under Section 482 of
Cr.P.C., it is not desirable to undertake exercise of appreciation of evidence or
documents. In this respect, it would be gainful to make reference to the judgment
of Hon’ble Supreme Court in the case of State of Bihar and anr v/s. K J D Singh
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reported in 1993 (41) BLJR 1401 and a judgment of the Delhi High Court in the
matter of Ambica Plastopack Pvt. Ltd and anr. v/s. State and anr. in Cri. M
No.2698 of 2011 decided on 01/11/2013. The question before the Apex in K J D
Singh’s case (supra) was, whether the criminal proceedings can be quashed even
before the commencement of the Trial. Paragraph 3 of the said judgment of the
Apex Court is relevant. The relevant excerpt of the said paragraph 3 is reproduced
herein under :
“The inherent power under Section 482 has to be exercised for
the ends of the justice and should not be arbitrarily exercised to
cut short the normal process of a criminal trial. After a review
of catena of authorities, Pendian, J. in Janta Dal v/s. H S
Chowdhary (supra) has deprecated the practice of staying
criminal trials and police investigations except in exceptional
cases and the present case is certainly not one of these
exceptional cases.”
The Delhi High Court in Ambica Plastopack Pvt. Ltd’s case (supra)
in paragraph 10 of the judgment has referred a decision of the said Delhi High
Court in another case i.e. Rajesh Aggarwal and held as under :-
“In Rajesh Aggarwal v/s,. State, 2010 (171) DLT 51, this
Court noted that the High Court is flooded with petitions
under Section 482 Cr.PC for challe4nging the summoning
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Judgment Cri.WP.No.3640.18Negot6ibale Instruments Act. This Court further noted that
the accused rush to the High Court on mere passing of
summoning order and are successful in halting the
proceedings before the Magistrate on one or the other ground
while the kind of defence raised by the Petitioners is required
to be raised before the Magistrate at the very initial stage as
per the law.”
49. In the light of discussion made herein above, this Court is not
inclined to entertain this petition. Hence, writ petition stands rejected.
50. It is made clear that, the parties have stated elaborate facts in the
petition and reply in respect of other pending proceedings before the petitioner
and Respondent No. 2, in that respect, this Court has not expressed any opinion.
The observations made herein above are prima facie in nature and confined to the
adjudication of the present petition only.
[S.S. SHINDE, J.]
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