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2018 Supreme(Bom) 3027
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.J. Kathawalla, J.
Satyanarayan Nandkishor Pande - Appellant
Versus
Vijaykumar Gulabchand Sarda And Ors. - Respondent
Civil Application No. 945 of 2018 In Writ Petition No. 3503 of 2016
Decided On : 22-12-2018
Nilesh Ojha, instructed by Ms. Reena Rana, Mr. Vijay Kurle, Mr. Aameer Kale, Ms. Madhuri Gamre, Ms. Shweta Doshi, Ms. Tanvi Kambli and Ms. Arpana Bhosale, Advocate, for the Applicant
Headnote:
Code of Criminal Procedure, 1973 - Section 340 read with 195 - Indian Penal Code,1860 - Sections 420, 465, 467,468, 471, 34 and 120 (B) – Offence of Criminal conspiracy – Cheating – Forgery – Charged - Father of Applicant and his brother - Applicant filed a complaint with Police, inter alia, alleging that his brother and one had forged the death certificate of Applicants father and with help of false and fabricated documents and in connivance with offce-bearers of Shree Rajasthan Co-operative Housing Society Limited, had managed to get said Property transferred in their names - An FIR, being C.R. No. was registered at instance of Applicant against Accused No.1 - All 19 accused in FIR later approached Sessions Court at seeking anticipatory bail which was granted to 16 accused persons, but was rejected in case - Whether Deputy Registrar C.S. and Appellate Authority have jurisdiction to entertain any proceeding by a non-member of Society as Applicant for an action under Section 25-A ? - Whether Deputy Registrar C.S. and Divisional Joint Registrar C.S. can consider plea of heirship and ownership of cooperative society property held by a previous member and adjudicate same ? - Whether proceedings before Deputy Registrar C.S. are barred by limitation ? - Whether proceedings before Deputy Registrar C.S. is tenable when there is no challenge to Resolution of the Society – Held, Since all relevant proceedings, documents, orders etc. are placed before Writ Court by Petitioners therein (Respondents herein), question of Respondents herein (Petitioners therein) having suppressed facts or having made any false submissions with intention to mislead Court or to obtain favourable orders, does not arise - Court satisfied that there is no substance in above Civil Application as Respondents have not suppressed any facts or documents which are relevant for purpose of deciding above Writ Petition and have also not made any attempt to mislead Court in manner alleged or otherwise or with intention alleged or otherwise - Respondents herein (Petitioners in Writ Petition) have been transparent with Court - They have along with Writ Petition placed before Court all proceedings, written submissions, orders, wherein case of Applicant is set out in its entirety - Therefore, question of holding that Respondents have in Writ Petition made incorrect statements or have suppressed any facts or documents or have relied on documents, with intention to mislead Court and obtain favourable orders, as alleged by Applicant, does not arise and case law cited by Applicant in this regard also renders no assistance to his case - Civil Application is dismissed.
JUDGMENT
S.J. Kathawalla, J. - The above Civil Application is filed under Section 340 read with section 195 of the Code of Criminal Procedure, 1973 by Shri Satyanarayan N. Pande, Applicant abovenamed (Respondent No. 4 in Civil Writ Petition No. 3503 of 2016), against Mr. Vijaykumar Gulabchand Sarda and Kalpana Vijaykumar Sarda, Respondent Nos. 1 and 2 abovenamed (Petitioners in Civil Writ Petition No. 3503 of 2016).
2. The above Civil Application along with Civil Application Nos. 497 of 2018 in Writ Petition No. 4009 of 2017, 944 of 2018 in Writ Petition No. 1455 of 2016 and 482 of 2018 in Writ Petition No. 721 of 2016 is placed for hearing. The facts in all the Civil Applications overlap to a large extent. Advocate Mr. Nilesh Ojha made his detailed submissions in Civil Application No. 482 of 2018 in Writ Petition No. 721 of 2016 and submitted that the other three Civil Applications are similar. However, I am of the view that separate judgments are required to be written/passed in the Civil Applications, and accordingly I have done so. The Civil Applications were reserved for orders on 23rd July, 2018. However, before dictation of the judgments, Mr. Nilesh Ojha mentioned Notice of Motion No. 1433 of 2018 in Suit No. 929 of 2013 seeking reliefs under section 340 of the Cr. P.C., 1973 along with other matters. Though the said Notice of Motion was not related to the above Application and the other three connected Applications, the issue, as to whether the Court can hear the other side/Accused in the matter, was common. In the said Notice of Motion, Mr. Madon, Learned Senior Advocate along with Mr. Sharan Jagtiani and Mr.Aditya Shiralkar, instructed by M/s. Shiralkar and Company urged several grounds in support of their case that they ought to be heard in the matter. Mr. Ojha opposed the same and submitted that the said issue be decided as a preliminary issue. After hearing the Advocates at length on several adjourned dates, the decision on the preliminary issue was reserved for orders. The Advocates had agreed to file their written submissions. Thereafter, by a Notice dated 14th September, 2018, the assignment pertaining to the said matter was changed with effect from 17th September, 2018. However, on 18th September, 2018, Mr. Madon informed the Court that his written submissions are ready and Mr. Aameer Kale instructed by Mr. Nilesh Ojha sought time to file the written submissions. However, on 25th September, 2018 Advocate Mr. Ojha submitted that since the assignments have changed, and written submissions are yet to be filed, this Court should refer the said Notice of Motion No. 1433 of 2018 in Suit No. 929 of 2013 to the Regular Court. In view thereof, by Order dated 25th September, 2018 the said matters were referred to the regular Court and it is only thereafter that the above Civil Applications were taken up for passing of Orders. On 17th December, 2018, Advocate for the Applicant mentioned the matter and requested the Court to pronounce the orders in the above Civil Applications. The Court informed the Advocate that in the above circumstances passing of orders has taken time. The Court however assured the Advocate for the Applicant that the order in the above Civil Application along with three Applications will be pronounced shortly. On 19th December, 2018, Mr. Ojha filed a praecipe and mentioned the matter before the Court, and inter alia informed the Court that he is relying on two more judgments i.e. judgment of the Hon''ble Supreme Court in the case of Sandeep Kumar Bafna v. 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 v. Partha s/o Sarathy Sarkar 2018 SCC Online 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. Respondent No. 1 is the son of Gulabchand Sarda who pas
