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Sangeeta Santosh Kadam vs The State Of Maharashtra And Anr on 16 August, 2019

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Judgment Cri.WP.No.3640.18

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
order passed by the Magistrate under Section 138 of the

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Negot6ibale 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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