IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3360 OF 2007 Mr.Yashwant M. Vaze & Anr. .. Applicants Versus Mr.Narayan Raghunath Vaze & Ors. .. Respondents Mr.N.V.Gangal for the applicants. Mr.Kishor Jagdale for the respondent no.2. Ms.A.T.Jhaveri, A.P.P for the respondent no.4. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 12th February 2009. : 12th February 2009. : 12th February 2009. P.C.: . The submissions of the learned counsel appearing for the parties were heard yesterday. This is an application under sub section 4 of section 378 of the Code of Criminal Procedure, 1973. It is brought to my notice that the 3rd respondent is already dead. The applicant who is the original complainant filed a private complaint against the 1st to 3rd respondents alleging commission of offences punishable under section 109, 120-B, 406, 420 read with section 34 of the Indian Penal Code. 2. It will be necessary to refer to the facts of (2) the case. The parties to the complaint are closely related. The 2nd applicant is the son of the 1st applicant. The father of the 1st applicant is one Moreshwar. The name of the Moreshwar’s brother is Raghunath. The 1st and 2nd respondents (1st and 2nd accused) are the sons of Raghunath. The second brother of Moreshwar was one Vishnu. The 3rd respondent (3rd accused) is the son of Vishnu. 3. The case of the applicants is that the father of the 1st and 2nd respondents was the karta of the joint family of the applicants and the 1st to 3rd respondents. The case of the applicants is that in the year 1992 the 1st to 3rd respondents acting in collision and conspiracy with late Raghunath under the colour of purported partition of immovable property made and executed a Deed of Partition and the same was registered on 25th August 1982. The case of the applicants is that the said Deed of Partition was illegal on the ground that the same was obtained fraudulently and the same did not reflect the state of affairs as regards the property held by the joint family. It must be stated here that charge was framed against the accused only for the offence punishable under section 406 read with section 34 of the Indian Penal Code. (3) 4. The case made out by the applicants is that the 1st to 3rd respondents and late Raghunath fraudulently grabbed agricultural lands of the joint family at Kalyan. It is contended that without there being proper partition, the 1st to 3rd respondents and Raghunath could not have disposed of the said properties. The case is that the 1st to 3rd respondents committed breach of trust and cheating. 5. I have heard the submissions of the learned counsel appearing for the applicants. I have perused the complaint and the impugned judgment and order. 6. After having considered the submissions, I am of the view that the conclusion drawn by the learned Judge that the offences complained of have not been established is certainly a possible conclusion. In the complaint the applicants have made grievance about the Deed of Partition dated 17th August 1982 which was registered in the office of the Sub-Registrar on 25th August, 1982. The complaint has been filed in March 1999. The learned Judge noted that from the year 1982 onwards the applicants have not raised any objection to the said Deed of Partition executed in the year 1982. (4) The learned Judge has referred to the judgment of the Civil Court in civil suit filed by the applicant for cancellation of Partition Deed. The suitwas dismissed on merits by the Civil Court and an appeal preferred against the said decree was withdrawn. 7. The learned Judge also noted that the cross examination of the witnesses of the applicant showed that the partition was acted upon by the parties. 8. Considering all these aspects, the learned Judge held that offence under section 406 read with section 34 of the Indian Penal Code was not made out. No case is made out for interference. Application is rejected. 9. It is made clear that the observations made in this order are for limited purpose of considering the prayer for grant of leave and none of the observations made herein shall be construed as any findings on the rights and liabilities of the parties. (A.S.Oka,J)