IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1755 OF 2007 Abhayraj Shradrao Shirole .. Petitioner Vs. Deccan Education Society,Pune & Ors. .. Respondents Mr.Shirish Gupte, Sr.Counsel with Mr.Subodh Desai & P.G.Chavan for the Petitioner. Mr.A.P.Mundargi, Sr.Counsel with Mr.P.P.Runwal for Respondent Nos.1 and 2. Mr.D.P.Adsule, A.P.P No.4 for State. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE : 17th July 2008. P.C.: . Heard learned senior counsel appearing for the petitioner. The petitioner is the original complainant in a private complaint filed by him against the 1st to 3rd respondents herein. On the said private complaint, process was issued against the 1st to 3rd respondents for offences punishable under section 427, 441, 467, 471 read with section 34 of the Indian Penal Code. A revision application was filed at the instance of the 1st to 3rd respondents in which the learned Additional Sessions Judge has interfered and has set aside the order issuing process. : 2 : 2. The learned senior counsel appearing for the petitioner has taken me through the complaint, documents produced alongwith the complaint and the judgment of the learned Additional Sessions Judge. He submitted that the learned Additional Sessions Judge has committed an error by dealing with the contents of various documents which were produced on record by the petitioner complainant and has purported to record findings on the said documents. He submitted that this was a case for trial and the revisional Court could not have done the exercise of recording findings on the basis of the documents especially when no opportunity was available to the petitioner to adduce evidence. 3. By inviting my attention to the various documents filed alongwith the complaint, he submitted that the predecessors of the petitioners (owners) had never created any right in favour of the 1st respondent Trust in respect of final plot No.308. He invited my attention to the certificate issued under the Maharashtra Regional and Town Planning Act, 1966 in favour of the predecessors of the petitioners which shows that final plot No.308 was always owned by the predecessors of the petitioners. He also invited my attention to the redistribution and valuation statement : 3 : under the Town Planning Scheme. He pointed out that the 2nd and 3rd respondents who are claiming to be the trustees of the 1st respondent trust have indulged in fabrication of documents and by a mutation entry made on 11th June 2002, have got entered their names in the city survey records. He invited my attention to the specific averments made in the complaint which according to him clearly spell out the case of commission of offences complained of. He invited my attention to assertions made in paragraph Nos.5 to 12 of the complaint filed by the petitioner and submitted that the learned Magistrate has rightly recorded satisfaction of the existence of prima facie case made out in the complaint and had rightly issued process. 4. I have carefully considered the submissions. It will be necessary to refer to the averments made in the complaint. In paragraph No.2 of the complaint it is stated that the final plot No.308 always belonged to the family of the petitioner and reliance was placed on a redistribution statement under the Town Planning Scheme. It is stated that the 1st respondent is a registered Trust and the 2nd and 3rd respondents are trustees of the Trust. It is stated that except for final plot No.308, some other properties of the family of the : 4 : petitioner were given on lease to the 1st respondent Trust by indentures executed on 28th September 1937 and 06th March 1941. It is stated that final plot No.308 is not included in the said documents. Paragraph No.6 of the complaint reads thus: "6. That Dcecan Education Society i.e accused No.1 in collusion with accused No.2,3 and other trustee members have prepared false and fabricated documents and have registered their names in the property card extract vide Mutation Entry No.905. The said is registered on 17.07.2002. Annexed herewith is the copy of Mutation Entry. Accused No.1, 2 and 3 without taking any consent in oral or in writing of the Shirole Family i.e. the original owners have registered their name in the mutation entry which is illegal. Annexed herewith is the copy of property card extract." In paragraph No.7 of the complaint it is stated that after obtaining permission of the Municipal Corporation, the 1st respondent Trust has started construction on the said final plot No.308. The other material averments : 5 : are found in paragraph No.9 which reads thus: "....The complainant submits that Deccan Education Society i.e accused No.1, 2, 3 in collusion with trustees have prepared forged documents and have submitted before the concerned authorities and have registered the name on the property card extract and have started construction on the same which is illegal". The paragraph Nos.10 to 12 read thus: "10. The complainant submits that the accused persons have entered upon the property, in possession of the complainant and have constructed an illegal construction on the same by taking unauthorised possession of the property and thus has committed criminal trespass. 11. The accused persons by committing trespass over the said property have caused mischief, thereby causing damage to the property : 6 : by building as on authorised construction. 12. The accused persons have forged documents and have submitted to the authorities and has registered the names into the property card extract and have transfer the said property by illegal means with dishonest intention to grab the property of the complainant". 5. Perusal of the impugned order passed by the learned Additional Sessions Judge shows that he has considered the documents which are produced alongwith the complaint by the petitioner. Perusal of the complaint shows that there is a vague allegation in paragraph No.6 that 1st respondent in collision with 2nd and 3rd respondents have prepared false and fabricated documents and have registered their names in the property card extract vide Mutation Entry No.905. It is alleged that the names of the 2nd and 3rd respondents have been entered by the said Mutation Entry without the consent of the owners and the said Mutation Entry is illegal. The perusal of the Mutation Entry shows that the names of the 1st respondent Trust and its trustees were appearing in property register card of the plot in : 7 : question. By the said Mutation Entry dated 11th June 2002, the names of the earlier trustees were deleted and the names of the 2nd and 3rd respondents were incorporated on the basis of resolution dated 27th March 1999 passed by the 1st respondent. In paragraph No.21 of the judgment, the learned Additional Sessions Judge has observed that entries in the property register card in respect of said plot shows that the same was standing in the name of the 1st respondent from the year 1934. The learned senior counsel appearing for the petitioner tried to submit that the resolution of the 1st respondent Society which is referred to in the aforesaid Mutation Entry dated 11th June 2002 is fabricated. However, I find that said averment does not find place in the complaint and in the verification statement. The averment in paragraph No.6 is not that the Mutation Entry has been fabricated. The averment is that the Mutation Entry is illegal as it is recorded without the consent of the owners of the property. There is only a vague allegation that the 1st to 3rd respondents have prepared false and fabricated documents. There is not even a reference to any particular document which is allegedly fabricated. As pointed out earlier, the learned Additional Sessions Judge has noted that the name of the 1st respondent was appearing in the property : 8 : register card of the said plot from the year 1937 onwards and it appears that by the Mutation Entry referred to any paragraph No.6 of the complaint, the names of the 2nd and 3rd respondents were substituted as trustees in place of the earlier trustees. Again in paragraph No.9 of the complaint there is a vague assertion that the 1st to 3rd respondents have prepared forged documents. Here again there is no assertion that resolution of the 1st respondent on the basis of the Mutation Entry has been made is false or fabricated. The complaint itself records that construction has been started after obtaining permission of the local authority. Paragraph No.11 makes allegation of commission of trespass against 1st to 3rd respondents. 6. Thus, from the documents on which reliance is placed by the petitioner it appears that the name of the 1st respondent was appearing in the property register card maintained by the city survey department from a date much prior to the date of the Mutation Entry of the year 2002. Infact, the Mutation Entry itself records that the names of the 1st respondent and its earlier trustees were appearing on City Survey record and in fact by the said Mutation Entry only the names of the earlier trustees have been substituted by the 2nd and : 9 : 3rd respondents. 7. The learned Additional Sessions Judge has observed that there is no dispute that the final plot No.308 corresponds to city survey No.924 and the record of the city survey shows that there are number of mutation entries from the year 1934 till the last mutation which is complained of in the complaint. 8. Thus, it appears that assertions in the complaint are very vague. Even assuming that the said assertions are correct, no case is made out of commission of any of the offences complained of in the said complaint. Therefore, the learned Additional Sessions Judge was justified in interfering with the order issuing process in the revision application filed by the 1st to 3rd respondents. Therefore, there is no merit in this petition and the same deserves to be rejected. 9. It must be clarified here that the observations which are made by the learned Additional Sessions Judge and observations which are made in this order are only for limited purposes of testing the legality and validity of the order issuing process and the said : 10 : observations shall not be construed as any findings on the issue of the title claimed by the rival parties. Subject to what is observed above, Writ Petition is rejected. (A.S.Oka,J)