1 Criminal Writ Petition No.271 of 2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.271 OF 2009 Varun S/o.Vijay Rathod, Age-44 years, Occu-Business, R/o.Gokul Nagar, Nanded, Taluka and Dist.Nanded PETITIONER VERSUS 1. Gajanan S/o.Jagannath Sharma, Age-29 years, Occu-Priest, R/o.Hanuman Tekdi, Old Mondha, Nanded, Tal. And Dist. Nanded, 2. Vishwanath S/o.Dayaram Sutrave, Age-54 years, Occu-Business, R/o.Near Bridge, Shivaji nagar, Nanded, Tal. And Dist. Nanded, 3. The State of Maharashtra, Through the Police Inspector, Vazirabad Police Station, Nanded, Tal. And Dist. Nanded RESPONDENTS Mr.Rajendra Deshmukh, learned counsel for the petitioner. Mr.S.D.Kaldate, learned A.P.P. for respondent State Mr.V.P.Patil, learned counsel for respondent no.1. (CORAM : A.V.POTDAR, J.) DATE : 29/09/2011 2 Criminal Writ Petition No.271 of 2009 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 2. The present writ petition under Article 227 of the Constitution of India r/w. 482 of The Cr.P.C. is directed against the judgment rendered by the learned Sessions Judge, Nanded in Criminal Revision Appl.No.207/2007, which came to be dismissed on 05/12/2008, by which the order of issuance of process passed by the learned Chief Judicial Magistrate, Nanded in RCC No.1235/2005 dated 15/10/2007 was confirmed. 3. Such of the facts as are necessary for the decision of this writ petition can be summarized as : One Jagannath Sitaram Sharma (deceased) was the person, who was conducting the affairs of the Hanuman Tekdi Trust, at Nanded. He expired somewhere in the year 1989, leaving behind him respondent no.2, his wife Gangadevi and 2 step sons of respondent no.1. At the time of demise of Sitaram, respondent no.1 was of tender age, so also his two step brothers. It is alleged that this Gangadevi was illiterate, but was having knowledge to put signature. Taking dis-advantage of it, her signatures were obtained by the petitioner on the stamp paper of Rs.500/. On the basis of this signature, amount lying in different banks was withdrawn. Power of Attorney also got prepared and executed on the basis of those stamps 3 Criminal Writ Petition No.271 of 2009 purchased, on which signatures of Gangadevi were obtained. Further, taking disadvantage of the signatures of Gangadevi obtained on the bond papers, certain property which was of the Trust, also got alienated by the petitioner and respondent no.2 for their personal use. After respondent no.1 came to know about the deflection of amount in bank accounts, he rushed towards police station, so also to the office of Charity Commissioner. As the police had not taken cognizance, he had filed report to the learned Chief Judicial Magistrate Nanded which was later on registered as Regular Criminal Case No.1235/2005. After verification statement of respondent no.1 was recorded, certain police reports were called for. It appears that during those police reports, police have collected certain documents from the bank, which reflect that on the basis of Power of Attorney allegedly executed by said Gangadevi, certain amounts were withdrawn from the bank account of the petitioner and respondent no.2. The papers collected during the investigation further reveals that the stamps signed by the mother of respondent no.1 were used for alienation of the property of Trust and only for the benefit of petitioner and respondent no.2. Considering the facts disclosed in the complaint, so also reflected in the verification statement of the complainant/respondent no.1 recorded by the learned Chief Judicial Magistrate, and the facts disclosed from the papers collected by the Police as per the directions of the Chief Judicial Magistrate, learned Chief Judicial Magistrate issued process. Order of issuance of process came to be challenged by way of Rev.Application No. 4 Criminal Writ Petition No.271 of 2009 207/2007 before the Hon’ble Sessions Court, at Nanded. By way of judgment and order dated 05/12/2007, criminal revision came to be dismissed. 4. It is urged across the bar on behalf of the petitioner that civil dispute is pending for the property of the Trust between the respondent no.1, his step brothers, mother and also between the petitioner and respondent no.2. As the civil litigation is pending, then prosecution against the petitioner is un-warranted. It is also urged that while issuing process, learned Chief Judicial Magistrate has relied upon the verification statement and the Police Reports, which is also un-warranted. Per contra, learned counsel appearing for respondent no.1/original complainant supports the order passed by the learned Chief Judicial Magistrate, which was confirmed by the learned Sessions Judge in Criminal Revision No.207/2007. 5. Certain principles are led down under the Criminal Law about the facts to be considered at the time of issuance of process. Not only the complaint, but the verification statement of the petitioner recorded in support of avernments in the complaint is also to be taken into consideration at the time of issuance of process. The directions given to the Police to carry out certain investigation was for the limited purpose and to collect the documents. Documents collected by the Police during the investigation from bank authorities and from other offices reflect that the petitioner had used the papers, 5 Criminal Writ Petition No.271 of 2009 on which signatures of Gangadevi were obtained, for personal use and not for the benefit of Gangadevi and their family members. Prima facie, these acts, as stated in the verification so also in the complaint and in the police papers, discloses commission of offence u/s. 420, 468, r/w 34 of the IPC. Thus in substance, I do not find any fault in the order passed by the learned Chief Judicial Magistrate, which was further confirmed by the learned Sessions Judge, Nanded. I 6. In the result, the order impugned does not require any interference at the hands of this Court. There is no substance in the writ petition hence dismissed. Rule stands discharged. It is made clear that these observations are prima facie and the learned Lower Court not to influence with these observations during the Trial. R & P be sent back to the court of learned Chief Judicial Magistrate, Nanded. (A.V.POTDAR, J.) khs/SEPT.2011/cri.w.p.271-09