Bombay High Court
Sangeeta Santosh Kadam vs The State Of Maharashtra And Anr on 16 August, 2019
Equivalent citations: AIRONLINE 2019 BOM 799, 2019 (3) ABR(CRI) 355 (2019) 4 BOMCR(CRI) 423, (2019) 4 BOMCR(CRI) 423
Author: S. S. Shinde
Bench: S. S. Shinde
Bhagyawnat
1/37
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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 3/37 Judgment Cri.WP.No.3640.18 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 4/37 Judgment Cri.WP.No.3640.18 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 5/37 Judgment Cri.WP.No.3640.18 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 6/37 Judgment Cri.WP.No.3640.18 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 7/37 Judgment Cri.WP.No.3640.18 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. ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 8/37 Judgment Cri.WP.No.3640.18
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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 9/37 Judgment Cri.WP.No.3640.18 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 10/37 Judgment Cri.WP.No.3640.18 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 11/37 Judgment Cri.WP.No.3640.18 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 12/37 Judgment Cri.WP.No.3640.18 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, ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 13/37 Judgment Cri.WP.No.3640.18 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. ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 14/37 Judgment Cri.WP.No.3640.18
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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 15/37 Judgment Cri.WP.No.3640.18 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 16/37 Judgment Cri.WP.No.3640.18 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 17/37 Judgment Cri.WP.No.3640.18 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 19/37 Judgment Cri.WP.No.3640.18 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 20/37 Judgment Cri.WP.No.3640.18 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 21/37 Judgment Cri.WP.No.3640.18 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 22/37 Judgment Cri.WP.No.3640.18 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 23/37 Judgment Cri.WP.No.3640.18 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 24/37 Judgment Cri.WP.No.3640.18 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 25/37 Judgment Cri.WP.No.3640.18 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 26/37 Judgment Cri.WP.No.3640.18 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 27/37 Judgment Cri.WP.No.3640.18 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 28/37 Judgment Cri.WP.No.3640.18 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. ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 30/37 Judgment Cri.WP.No.3640.18
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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 32/37 Judgment Cri.WP.No.3640.18 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 33/37 Judgment Cri.WP.No.3640.18 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 34/37 Judgment Cri.WP.No.3640.18 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, ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 35/37 Judgment Cri.WP.No.3640.18 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 36/37 Judgment Cri.WP.No.3640.18 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 ::: Bhagyawnat 37/37 Judgment Cri.WP.No.3640.18 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.] ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 20:02:15 :::