1 Criminal Appl.No.1209 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1209 OF 2010 1. Govardhan S/o.Shamrao Pawar, Age-43 years, Occu-Business, R/o.A.G.P. School Beed Bye pass Road, Satara Parisar, Satara, Aurangabad 2. Anita W/o.Govardhan Pawar, Age-38 years, Occu-Business, R/o. A.G.P. School, Beed Bye Pass road, Satara Parisar, Satara, Aurangabad. 3. Vishnu S/o.Pandurang Wagh, Age-35 years, Occu-Service, R/o.A.G.P.Schook Beed Bye pass road, Satara Parisar, Satara Aurangabad. 4. Heeralal S/o.Kalu Chavan, Age-35 years, Occu-Agriculturist, R/o.Satara Tanda, Satara, Aurangabad APPLICANTS VERSUS 1. Shrichandra S/o.Harchand Rathod, Age-55 years, Occu-Agriculturist, 2. Devidas S/o.Harchand Rathod, Age-51 years, Occu-Agriculturist, 3. Motilal S/o.Harchand Rathod, Age-49 years, Occu-Agriculturist, 4. Rupa Harchand Rathod, 2 Criminal Appl.No.1209 of 2010 Age-46 years Occu-Agriculturist, 5. Ramdas S/o.Harchand Rathod, Age-46 years, Occu-Agriculturist, Respondents no.1 to 5 are R/o. Satara Tanda No.2, Tq. and Dist. Aurangabad. 6. The State of Maharashtra RESPONDENTS Mr.D.K.Kulkarni, learned counsel for the applicants. Mr.S.D.Kaldate, learned A.P.P. for respondent State Mr.S.R.Sapkal h/f. Mr.V.D.Sapkal, learned counsel for respondents no.1 to 5. (CORAM : A.V.POTDAR, J.) DATE : 19/09/2011 PER COURT : 1. By the present application, the applicants have approached this Court questioning the correctness of order of issuance of process passed by the 11th J.M.F.C. Aurangabad in RCC No.1977/2009 dated 15/12/2009. 2. I have heard learned counsel for applicants followed by the submissions of learned counsel for respondents no.1 to 5 and learned A.P.P. for respondent no.6. 3. It is stated across the bar that on 13/08/2006, respondents no. 3 Criminal Appl.No.1209 of 2010 1 to 5 , who are owners of certain agricultural land situated at village Satara, Tal.Dist.Aurangabad, sold 10 acres of land out of 15 acres. It is further stated that on 27/10/2009, out of the 10 acres land agreed to be sold under the agreement to sale dated 30/06/2006, 5 acres of land was sold by respondents no.1 to 5 in favour of petitioners no.1 and 2, to which remaining petitioners were witnesses. On 09/11/2009, a notice was issued that the sale deed executed on 27/10/2009 is a sham and bogus document, as the parties never intend to sale 5 acres of land to the petitioner no.1 and 2, but they only intend to sale 4 acres of land. On 18/11/2009, a complaint was lodged before the 11th J.M.F.C. Aurangabad by the respondents to that extent, which was numbered as RCC No.1977/2009. In due course, after recording the verification, process was issued u/s. 420 r/w. 34 of the IPC against the petitioners. It is further urged that on 24/11/2009, these respondents have filed Special Civil Suit bearing no.510/2009 before the learned Civil Judge, S.D. for cancellation of the said document, while on 17/03/2010, the petitioners have also filed special Civil Suit No.146/2010 before the Civil Judge S.D. for Specific Performance of the agreement entered and executed between the parties. It is urged that during the pendancy of this application, evidence was closed in those civil suits. When questioned, it is specifically pointed out that no evidence before charge was recorded in the complaint in question. 4. In the light of these facts, it is urged that nature of dispute 4 Criminal Appl.No.1209 of 2010 between the parties is of civil nature and it is not under dispute. It is further urged that evidence in those civil suits pending between the parties before the learned Civil Judge S.D. was completed but still the final verdict is to be pronounced. In view of this, it is urged that order of process issued in RCC No.1977/2009 needs to be recalled. 5. On going through the record it reveals that the process was issued by the learned 11th J.M.F.C. Aurangabad in RCC No. 1977/2009 after recording the verification. Contents of the complaint and the verification clause prima facie disclose commission of an offence u/s. 420 r/w. 34 of the IPC. As the process is issued u/s. 420 r/w. 34 of the IPC, the trial to be conducted by the learned Court of Magistrate as a warrant trial. Considering the fact that the process is issued on the basis of prima facie disclosure of the offence and the proper stage to pray for discharge is after evidence before charge will be led by the respondent and if that evidence is not sufficient even to frame charge, then the learned Lower court to dispose of the complaint in accordance with Law. The points which are urged before this Court may be the best piece of evidence to be put to the concerned in the cross examination either before charge if the petitioner intends to claim for discharge or after charge if the petitioner intends to claim acquittal. After all, it is the sweet choice of petitioner, which course to be taken at the proper stage before the Trial Court, but considering the fact that the contents of the complaint and verification disclose prima facie ingredients of 5 Criminal Appl.No.1209 of 2010 commission of an offence u/s. 420 r/w. 34 of the IPC, at this juncture, no case to quash and set aside the order of issuance of process passed by the learned Magistrate. Application being sans merits, stands rejected. It is hereby clarified that these observations are prima-facie and the learned Trial Court not to influence with these observations. Application stands disposed of accordingly. (A.V.POTDAR, J.) khs/SEPT.2011/cri.appl.1209-10