1 WP.2477-2010 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2477 OF 2010 Mohanlal G. Kukreja ...Petitioner. Versus The State of Maharashtra & Ors. ...Respondents. ----- Mr. M.S. Mohite a/w Mr. Siddharth Murarka i/b M/s A.V. Jain Associates, for the Petitioner. Dr. F.R. Shaikh, APP for the State. Mr. Mubin Solkar, for Respondent No.8. ---- CORAM: B. H. MARLAPALLE & U.D. SALVI, JJ. JULY 06, 2011. P.C.: 1. We have heard Mr. Mohite, the learned counsel for the petitioner. 2. Mr. Solkar, the learned counsel appears for respondent no.8. 2 WP.2477-2010 Dr. Shaikh, the learned APP appears for the State. 3. In this Petition filed under Article 226 of the Constitution of India, the petitioner prays for stringent action against respondent no.8 for protecting and favouring the accused by closing petitioner’s complaint dated 30.3.2008, and for other directions to constitute a High Powered Committee consisting of five senior officials of the respondent to probe into the allegations made by the petitioner against respondent no.8. Respondent no.8 is a Sub-Inspector of Police attached to the Khar (West) Police Station, Mumbai. The petitioner further prays for directions against respondent no.7 to register an F.I.R. against the accused and to recover three forged original documents i.e. (i) will (ii) power of attorney and (iii) nomination form allegedly executed by the deceased. 4. The petitioner’s mother Smt. Shamibai died on 4.1.2004, and for the first time on 10.4.2007 the petitioner addressed a complaint to the Additional Commissioner of Police, Economic Offence Wing, Mumbai alleging that the will dated 2.1.2004 was not signed by his mother and it was a fraudulent document created by the other family members. It appears that the said complaint came to be transferred from the E.O.W. to the Khar 3 WP.2477-2010 Police Station for inquiry as per the letter dated 27.6.2007 addressed by the DCP, E.O.W. to the DCP- Zone IV, Bandra. Respondent No.8 has filed affidavit-in-reply and stated that the petitioner’s complaint dated 10.4.2007 was made over to him by the Senior Police Inspector for inquiry on 10.8.2007. In due course, he called upon the petitioner to submit the original copy of the will, and the petitioner purportedly informed him that the original document was not available and it was not registered with the any court or authority. As per respondent no.8, on 3.2.2009 he received a letter from the petitioner’s brother Shri Hiralal Kukreja pointing out that the complaint submitted by the petitioner was false and the challenge to the will by the petitioner in Notice of Motion No. 3427 of 2004 in Cross Objection No.2 of 2001 in Appeal No.1235 of 2001 arising in O.O.C.J. Suit no.1143 of 1986 was turned down by the Division Bench of this court on 28.9.2007. It was stated in the said affidavit that in the Notice of Motion, there was a challenge to the will dated 2.1.2004 executed by the mother of the petitioner i.e. late Smt. Shamibai. Even otherwise despite this letter, respondent no.8 recorded the statements of the witnesses to the said will i.e. Shri Ramesh Khemchand Thavani and Shri Deepak Bhaguram Kasare. Both the witnesses supported the execution of the will by the late Smt. Shamibai as per respondent no.8, and therefore, he came to the conclusion 4 WP.2477-2010 that the allegations in the complaint of the petitioner regarding the said will were not well founded. He also came to the conclusion that the will was a genuine document. 5. Mr. Mohite, the learned counsel for the petitioner submitted before us that the course of action adopted by respondent no.8 is unknown to the Criminal Procedure Code, and he when received a complaint of a cognizable office, he was duty bound to register an F.I.R. and proceed with the investigation as envisaged under Section 154 of the Cr. P.C. Mr. Mohite also referred to the decision of the Full Bench of this court in the case of Panchabhai Popatbhai Butani & Ors. Vs. State of Maharashtra & Ors. [2010 (1) MAH L.J. 421]. 6. We have given our anxious considerations to the arguments advanced by Mr. Mohite. We have also noted that on 10.3.2011, the intervention application i.e. Criminal Application No. 115 of 2011 filed by the petitioner’s brothers, and more particularly by Hiralal was allowed by this court and the said order has been challenged before the Supreme Court in SLP (Cri.) No.3758 of 2011 and the order dated 10.3.2011 has been stayed. All the parties before us agreed that the pending proceeding before 5 WP.2477-2010 the Supreme Court will not detain us from deciding this petition, without the interveners. 7. By the petitioner’s own admission, a copy of the will was received by him vide letter dated 6.2.2004. The letter dated 3.2.2009 addressed by Shri Hiralal Kukreja to respondent no.8 clearly states that Notice of Motion No.3427 of 2004 taken out in Appeal No.1235 of 2001 arising from O.O.C.J. Suit No.1143 of 1986 by the petitioner and inter alia, there was a challenge to the will as well. By judgment and order 28.9.2007, the Notice of Motion was disposed off by the Division Bench of this court and the said order came to be challenged in SLP No.24803 of 2008. The said SLP came to be dismissed on 23.2.2009. If the petitioner was aware of his mother’s will dated 2.1.2004 as in February, 2004 itself, it is not known why he waited for three years to approach the police, and even otherwise the allegations of the petitioner that a will was a got up document are based on the visual comparison of Shamibai’s signature. Mr. Mohite, the learned counsel invited our attention to the VP signed on 31.10.2002 by late Shamibai in Suit No.1143 of 1986, and he tried to point out that the said signature is not comparable with naked eyes to the signature on the will dated 2.1.2004. Respondent no.8 has acted upon the 6 WP.2477-2010 complaint and proceeded to enquire into the allegations and he has recorded the statements of the witnesses and also the notary before whom the will was notorized. He was also in receipt of the letter dated 3.2.2009 from the petitioner's brother Hiralal Kukreja, which mentioned about the dismissal of the Notice of Motion by the Division Bench of this court. 8. We do not find any fault in the actions taken by respondent no. 8 while dealing with complaint dated 10.4.2007 submitted by the petitioner. In our view, the complaint of the petitioner raises substantially the disputes of civil nature and it is not known whether he has filed any proceedings for declaration of the said will as null and void on the same grounds which he alleges in his complaint to the police. As of now, there no prima facie material with respondent no.8 to enquire into a cognizable offence, and therefore, the directions sought for in this Petition cannot be issued. If the petitioner was convinced that a cognizable offence has been made out, nothing prevented him from filing a private complaint before the competent court of Metropolitan Magistrate. 9. Hence, this Petition fails at the threshold and is hereby dismissed. 7 WP.2477-2010 10. This order will not prevent the petitioner from filing a private complaint, if he is so advised. (U.D. SALVI, J.) (B. H. MARLAPALLE, J.)