acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1016 OF 2009 K. Vishwanath & Anr. ..Petitioners. Vs. The State of Maharashtra & Ors. ..Respondents. --- Mr. Niranjan Mundargi, for the Petitioners. Mr. Y.S. Shinde, APP for the State. Mr. A.M. Saraogi, for the complainer. --- CORAM: V.R. KINGAONKAR, J. DATED: 24 TH SEPTEMBER 2009 P.C.: 1. By this petition, the petitioners seek quashing of orders rendered by the learned Metropolitan Magistrate and learned Additional Sessions Judge, Greater Mumbai in Criminal complaint no.1960/PW/2005 and criminal revision application no.485 of 2008 and proceedings of the criminal case bearing SCC No.1960/PW/2006 pending on the file of the learned Metropolitan Magistrate, 52nd Court, Kurla. 2. It is not necessary to elaborately set out the averments made in the complaint. The petitioners are chargesheeted for alleged offences under 1 sections 406, 420, 467 and 468 read with section 34 of the Indian Penal Code. The petitioners were the Architect and the Secretary, respectively, of Mysore Co-Operative Housing Society, Anik, Chembur. The complaint was filed against the petitioners to the effect that the record of the said co- operative housing society was with the respondent no.2 and that he manipulated certain false records, and changed nomination forms and particularly of one Ramchandra B.V. The original form of the said member indicated that the house(plot) no.76 was of the said Ramchandra B.V. and his brother Sheshadri B.V. The wife of the said Ramchandra B.V. and wife of the said Sheshadri were shown as nominees having 50% share each. The forms were allegedly fabricated lateron and name of the said house no.76 was shown as only B.V. Ramchandra. The nominee was only his wife Mrs. Anuradha. In other words, the nomination form which was to be given in triplicate was doctored with a view to eliminate the names of brother of the said B.V. Ramchandra and his wife. Another allegation in the F.I.R. was that the minute book was purposely lost by the Secretary of the said society. It was also alleged that though initially the Corporation map revealed encroachments on the land yet subsequently the petitioner no.1 changed the map in order to show that encroached portion was available to the co-operative housing society for disposal. 3. Having heard the learned counsel for the petitioners and the 2 learned APP and on going through the relevant copies attached to the charge sheet, I find it difficult to interfere with the impugned order. It is argued by the learned counsel that Police statement of B.V. Ramchandra would show that the corrections were made as per the record and entries were duly attested by the said witness. It is also argued that there is no material on record to show that register pertaining to minutes of the housing society was in the custody of the petitioner no.2. It is contended that the charge of forgery against the petitioner no.1 is also without any basis. It is pointed out that both the petitioners are old aged persons. Hence, the learned counsel for the petitioners urged to allow the petition for quashing the criminal proceedings. 4. At this juncture, it is pertinent to notice that the changes in the nomination form is prima facie apparent. The Police statement of B.V. Ramchandra itself is not sufficient to reach the conclusion that subsequent changes in the nomination forms were effected as per the instructions of the brother or wife of the said Ramchandra B.V. In fact, the brother of the said B.V. Ramchandra, namely, B.V. Sheshadri and his wife were at the loss due to such record. Their statements and stand is material than that of Police statement of B.V. Ramchandra. Relevant copy of the map is placed on record along with the charge sheet. I find that all contentions 3 raised in the petition pertain to disputed questions of facts. It is well settled that the criminal proceedings would not be maintainable when the disputed questions of facts are involved. In suitable case, the criminal prosecution may be quashed on the basis of averments, if without examining evidence and without adducing any proof, it can be said that necessary ingredients offence are not constituted. That does not seem to be the fact situation in the present case. 5. For the reasons set out hereinabove, the petition is dismissed. The trial court should not consider the above observations while deciding the criminal case. (V. R. KINGAONKAR, J. ) 4