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2018 Supreme(Bom) 2686
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.J. Kathawalla, J.
Satyanarayan Nandkishore Pande - Appellant
Versus
Vinay Jagdishchandra Pande - Respondent
Civil Application No. 497 of 2018; Writ Petition No. 4009 of 2017
Decided On : 22-12-2018
Nilesh Ojha, Adv., Reena Rana, Adv., Vijay Kurle, Adv., Aameer Kale, Adv., Madhuri Gamre, Adv., Shweta Doshi, Adv., Tanvi Kambli, Adv., Arpana Bhosale, Adv.
Headnote:
The Court dismissed the Civil Application filed under Section 340 read with Section 195 of the Code of Criminal Procedure by Shri Satyanarayan N. Pande, Applicant abovenamed (Respondent No. 1 in Civil Writ Petition No. 4009 of 2017), against Mr. Vinay Jagdishchandra Pandey, Mrs. Kusumlata Jagdishchandra Pande and Mrs. Vandana Shyam Shringe, Respondent Nos. 1, 2 and 3 abovenamed (Petitioners in Civil Writ Petition No. 4009 of 2017). The Court held that the Respondents have not suppressed any facts or documents which are relevant for the purpose of deciding the above Writ Petition and have also not made any attempt to mislead the Court in the manner alleged or otherwise or with the intention alleged or otherwise. The Respondents herein (Petitioners in the Writ Petition) have been transparent with the Court.
Fact of the Case:
The Applicant filed a complaint with the Police, inter alia, alleging that his brother Jagdishchandra Pande and one Gulabchand Sarda (who have passed away on 2nd October, 2013 and 17th December, 2012, respectively) had forged the death certificate of the Applicant’s father and with the help of false and fabricated documents and in connivance with the office-bearers of Shree Rajasthan Co-operative Housing Society Limited, had managed to get the said Property transferred in their names. An FIR being C.R. No. 226 of 2009 was registered at the instance of the Applicant against Accused No.1 - Jagdishchandra Pande (whose legal heirs are Respondent Nos. 1 to 3 herein) and 18 others for offences punishable under Sections 420, 465, 467,468, 471 of the Indian Penal Code (“IPC”) read with Sections 34 and 120 (B) of the IPC, which was subsequently transferred to the Economic Offences Wing (EOW) Unit II, Mumbai, vide C.R. No. 41 of 2009. All the 19 accused in the FIR later approached the Sessions Court at Mumbai seeking anticipatory bail which was granted to 16 accused persons, but was rejected in the case of Jagdishchandra Pande, Gulabchand Sarda and Vijaykumar Sarda (Accused Nos. 1, 2 and 3 respectively). Accused No.1 - Jagdishchandra Pande was arrested some time in 2009 by the EOW and he was in custody for more than 21 days before he was granted bail.
Finding of the Court:
The Court held that the Respondents have not suppressed any facts or documents which are relevant for the purpose of deciding the above Writ Petition and have also not made any attempt to mislead the Court in the manner alleged or otherwise or with the intention alleged or otherwise. The Respondents herein (Petitioners in the Writ Petition) have been transparent with the Court.
Issues: Whether the Respondents have suppressed any facts or documents which are relevant for the purpose of deciding the above Writ Petition and have also made any attempt to mislead the Court in the manner alleged or otherwise or with the intention alleged or otherwise.
Ratio Decidendi: The Court held that the Respondents have not suppressed any facts or documents which are relevant for the purpose of deciding the above Writ Petition and have also not made any attempt to mislead the Court in the manner alleged or otherwise or with the intention alleged or otherwise. The Respondents herein (Petitioners in the Writ Petition) have been transparent with the Court.
Final Decision: The Court dismissed the Civil Application filed under Section 340 read with Section 195 of the Code of Criminal Procedure by Shri Satyanarayan N. Pande, Applicant abovenamed (Respondent No. 1 in Civil Writ Petition No. 4009 of 2017), against Mr. Vinay Jagdishchandra Pandey, Mrs. Kusumlata Jagdishchandra Pande and Mrs. Vandana Shyam Shringe, Respondent Nos. 1, 2 and 3 abovenamed (Petitioners in Civil Writ Petition No. 4009 of 2017).
JUDGMENT
S J Kathawalla, J. - The above Civil Application is filed under Section 340 read with Section 195 of the Code of Criminal Procedure by Shri Satyanarayan N. Pande, Applicant abovenamed (Respondent No. 1 in Civil Writ Petition No. 4009 of 2017), against Mr. Vinay Jagdishchandra Pandey, Mrs. Kusumlata Jagdishchandra Pande and Mrs. Vandana Shyam Shringe, Respondent Nos. 1, 2 and 3 abovenamed (Petitioners in Civil Writ Petition No. 4009 of 2017).
2. The above Civil Application along with Civil Application Nos. 482 of 2018 in Writ Petition No. 721 of 2016, 495 of 2018 in Writ Petition No. 3503 of 2016 and 944 of 2018 in Writ Petition No. 1455 of 2016 is placed for hearing. The facts in all the Civil Applications overlap to a large extent. Advocate Mr. Nilesh Ojha made his detailed submissions in the above Civil Application and submitted that the other three Civil Applications are similar. However, I am of the view that separate judgments are required to be written/passed in the above Civil Applications, and accordingly I have done so. The Civil Applications were reserved for orders on 23rd July, 2018. However, before dictation of the judgments, Mr. Nilesh Ojha mentioned Notice of Motion No. 1433 of 2018 in Suit No. 929 of 2013 seeking reliefs under Section 340 of the Cr. P.C., along with other matters. Though the said Notice of Motion was not related to the above Application and the other three connected Applications, the issue, as to whether the Court can hear the other side/Accused in the matter, was common. In the said Notice of Motion, Mr. Madon, Learned Senior Advocate along with Mr. Sharan Jagtiani and Mr.Aditya Shiralkar, instructed by M/s. Shiralkar and Company pointed out several grounds in support of their case that they ought to be heard in the matter. Mr. Ojha opposed the same and submitted that the said issue be decided as a preliminary issue. After hearing the Advocates at length on several adjourned dates, the decision on the preliminary issue was reserved for orders. The Advocates had agreed to file their written submissions. Thereafter, by a notice dated 14th September, 2018, the assignment pertaining to the said matter was changed with effect from 17th September, 2018. However, on 18th September, 2018, Mr.Madon informed the Court that his written submissions are ready and Mr.Aameer Kale instructed by Mr.Nilesh Ojha sought time to file the written submissions. However, on 25th September, 2018 Advocate Mr. Ojha submitted that since the assignments have changed, and written submissions are yet to be filed, this Court should refer the said Notice of Motion No. 1433 of 2018 in Suit No. 929 of 2013 to the Regular Court. In view thereof, by Order dated 25th September, 2018 the said matters were referred to the regular Court and it is only thereafter that the above Civil Applications were taken up for passing of Orders. On 17th December, 2018, Advocate for the Applicant mentioned the matter and requested the Court to pronounce the orders in the above Civil Applications. The Court informed the Advocate that in the above circumstances passing of orders has taken time. The Court however assured the Advocate for the Applicant that the order in the above Civil Application along with three Applications will be pronounced shortly. On 19th December, 2018, Mr. Ojha filed a precipe and mentioned the matter before the Court, and inter alia informed the Court that he is relying on two more judgments i.e. judgment of the Hon''ble Supreme Court in the case of Sandeep Kumar Bafna vs. State of Maharashtra and another , (2014) 16 SCC 623 and the decision of a Learned Single Judge of this Court in the case of Madangopal Banarasilal Jalan and others vs. Partha s/o Sarathy Sarkar,2018 SCCOnline(Bom) 3525. Mr. Ojha tendered copies of both the judgments and requested the Court to pronounce the judgment at the earliest. With this prelude I now proceed with the judgment hereunder:
3. Jagdishchandra Pande, who passed away on 2nd October, 2
