WP.1487-10 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION No. 1487 OF 2010 Suresh Vithal Medhekar ...Appellant Vs. State of Maharashtra & ors. ...Respondents *** Mrs. Nimish Desai, for the Appellant. Mrs. M. R. Tidake, APP for the Respondent-State. Mr. Amarjit Ranu, Respondent No.3 in person. *** CORAM: V. M. KANADE J. DATE : SEPTEMBER 8, 2010 P.C. 1. Heard the learned counsel for the petitioner, learned APP for the State, and respondent No.3 in person. The petitioner is aggrieved by the judgment and order passed by the learned Sessions Court in Criminal Appeal No. 61 of 2009 dated 15th February, 2010 whereby the Sessions Court was pleased to dismiss the appeal and refused to interfere with the order passed by the learned trial Court on an application filed under S. 340 Cr.P.C. 2. The brief facts are as under- WP.1487-10 - 2 - . The petitioner had filed a complaint against respondent No.3 for and on behalf of the Powai Cosmopolitan Cooperative Housing Society, Ltd. The process was issued by the trial Court and respondent No. 3 was served. During the pendency of the criminal complaint, application was filed by respondent No.2 by which he prayed that the complaint filed by the petitioner may be withdrawn, in view of the observations made by the Sessions Court that the petitioner is not the Chairman of the Society. On the basis of said application, the learned Magistrate acquitted respondent No.3 and dismissed the complaint. 3. The grievance of the petitioner is that a false statement was made by respondent No.2 in his application that petitioner was not the Chairman of the Cooperative Housing Society. It was submitted that a misrepresentation was made that he was the Honorary Secretary when in fact he was not so. It is therefore, submitted that both the Courts below have erred to take into account of not filing the complaint against respondent Nos. 2 and 3 under S. 340 Cr.P.C. 4. After having heard both the counsels at length, in my view, it does appear that an application was filed by respondent No.2 only because he had posed and stated that he was Honorary Secretary, and sought withdrawal of the complaint. However, in my view, it was the WP.1487-10 - 3 - duty of the learned Magistrate to have ascertained correct facts and not to have accepted the statement made by respondent No.2 in the said application. Instead of doing that, the learned Magistrate proceeded to acquit the accused/respondent No.3 herein. It is no doubt true that propriety of filing such an application by respondent No.2 is doubtful. However, though such an application is made and unfortunately it was allowed by the learned Magistrate, the Court has to decide whether the discretionary powers vested in him under S. 340 Cr. P. C. should be exercised or not. Without making any comment about the action of respondent No.2 in filing this application, in my view, since both the Courts below have come to the conclusion that it is not necessary to initiate proceedings by filing a complaint, as envisaged in Section 340 Cr. P. C. I do not think it necessary to interfere with the order passed by the both the Courts below. In the circumstances, I am not inclined to interfere with the impugned orders passed by both the Courts below, in exercise of writ jurisdiction under Art. 227 of the Constitution. The writ petition is therefore, dismissed. [ V. M. KANADE J.]