Final Order 2

Order Details: Order Below EX 1
Pdf Text: CNR. MHMM1800-008403-2024 C. C. NO.1708/MISC./2024
ORDER BELOW EXH.-1
Read complaint. Perused the verification statement of
complainant, which is at (Exh.-2) and the documents placed on record.
I have also perused the report under section 202 of the Code of
Criminal Procedure. Heard Ld. Advocate Shri Kenjalkar for complainant.
2. The complainant has filed the complaint under section 182,
183, 194, 199, 200, 336, 380, 418, 420 of the Indian Penal Code.
According to complainant despite of execution of relinquishment deed
in respect of flat in favour of complainant, the accused made false claim
and also claimed interest in the said flat. The accused also alleged to
have committed theft of documents from the flat of complainant. It is
further alleged that, the accused induced Mr. Gladys Lobo to swore
affidavit stating that, the complainant has forged the signature of
accused on share certificate of flat No.1 of Sunita Niwas, Co. Operative
Housing Society.
3. It is further alleged that, the accused had filed the false
complaint against the complainant bearing No.252/MISC./2021,
wherein she has made false statement against accused and the court
issued the process against complainant under section 420, 468, 465
r/w.s. 34 of Indian Penal Code. But complainant is discharged from the
offences punishable under sections 108, 120 (A), 307, 304 (A), 504,
506 of the Indian Penal Code vide order dated 12/09/2023. As the
court has not taken cognizance in respect of said offences it is clear that,
the accused has filed the false complaint. Lastly, complainant prayed
that, process be issued against accused.
4. By passing order below (Exh.-1) the matter has been sent
to police station-Santacruz for inquiry under section 202 of Code of
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Criminal Procedure. On 04/04/2025, Santacruz police have after
inquiry filed the report under section 202 of Code of Criminal
Procedure.
5. Ld. Advocate Shri Kenjalkar for complainant submits that,
the accused had filed various false complaint against complainant Even
she has made false claim in the flat owned by the complainant. He
further submits that, accused without consent of complainant taken
away the documents from the home of complainant. Further, the court
in case filed by accused not issued the process under section 108, 120
(A), 307, 304 (A), 504, 506 of the Indian Penal Code, therefore, it is
crystal clear that, the accused had filed the false complaint against
complainant. He further submits that, accused induced to Mr. Lobo to
state on oath that the complainant has forged the signature of accused
on the share certificate of flat No.1 of Sunita Niwas Co. Operative
Housing Society. He further submits that, the report under section 202
of Code of Criminal Procedure is also supports to the version of
complainant. The verification statement of complainant is in
consonance to the allegations made in the complaint. The complainant
has made out the
prima-facie case against accused. Therefore, process
be issued against accused.
6. In support of his arguments he relied on the case of Balraj
Khanna V/s. Motiram, 1971 (CIR) 647, which discussed the object and
scope of the inquiry under section 202 of the Code of Criminal
Procedure. On the same point he relied on the case of S. K. Sinha
(2008) SCC 492.
7. Ld. Advocate for complainant further relied on the case of
A. C. Agarwal V/s. Mst. Ram Kalli AIR 1968 SC1, wherein it has been
held that, when the cognizable offence is made out the Magistrate has
to take cognizance. He further relied on the case of Jagdish Ram V/s.
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State of Rajasthan AIR 2004 SRC 1734, wherein it has been held that,
cognizance can be taken when sufficient ground made out for
proceeding.
8. Ld. Advocate for complainant further relied on the case of
Rajesh Bajaj V/s. State NCT of Delhi (1999)3 SCC 259, wherein it is
held that, it is not necessary that, complainant should verbatim
reproduce in complaint all ingredients of offence. Ld. Advocate further
relied on the case of M/s. M & B Footwear 2008 ALL MR (Cri). 1807,
wherein it has been laid down that, filing of civil suit itself could not
lead to the conclusion that, the criminal complaint is not at all
maintainable.
9. Ld. Advocate for complainant further relied on the case of
Devendrakumar Singla V/s. Baldev Krishna Singla, wherein it has been
laid down that, it is not necessary that, a false pretense should be made
in express words by the accused it may be inferred from all the
circumstances and conduct of accused. Ld. Advocate further relied on
the case of Rajkumar Harwani 2012 CRLJ 3450, wherein it has been
held that, the scope of inquiry under section 202 of the Code of
Criminal Procedure is only to find out as to whether there is sufficient
material to proceed against accused.
10. I have gone through the report under section 202 of the
Code of Criminal Procedure, submitted by police station-Santacruz,
wherein it is found that, the allegations regarding administration of
Excess Insulin Dose to father Kanaiyalal having inquired and there was
no suspicious in the said allegations therefore, the death inquiry has
been closed. It has further held that, the accused has executed the
release deed in the year 2002, but latter on she denied her signature
thereon and filed the Suit, which is pending before Civil Court,
Vadodara.
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11. The inquiry regarding obtaining false signature of Smt.
Lobo is pending before Sub-Registrar, Mumbai. So far as, the allegations
regarding stolen away the documents by accused is concerned there is
no substance found in the said inquiry. The statement of Gladus Lobo
shows that, he has changed his version, thus, in the inquiry it is
revealed that, the dispute between complainant and accused is going on
for immovable property and the complaint of complainant made out to
the extent of non-cognizable offence.
12. I would like to state here that, the accused has filed C. C.
No.252/Misc./2021, wherein the court has issued the process under
section 420, 468, 465 r/w.s. 34 of the Indian Penal Code and rejected
the complaint under section 108, 120 (A), 307, 304 (A), 504 and 506 of
Indian Penal Code. It is the contention of the complainant that, the said
complaint is false because the court has not taken cognizance of the
allegations made by the accused.
13. It is to be noted that, merely non making the
prima-facie
case for issuing process by the accused in her complaint C. C.
No.252/Misc./2021, it cannot be said that, the said allegations are
totally false. It is to be noted that, the complainant has filed on record
copy of the released deed, wherein it revealed that, the accused has
relinquished his share in favour of the present complainant in respect of
flat at Sunita Co. Operative Housing Society and despite of that, the
accused is claiming her right in the said flat.
14. Therefore, it is breach of contract to protect the interest of
the complainant relinquished through the said release deed. In case
instituted by accused against complainant she claimed that, the flat
stands in the name of her parents have got unlawfully by the
complainant. The copy of release deed is placed on record. It has been
executed by the present accused in favour of the complainant and it is
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her obligation to protect the interest of the complainant but she claimed
her right despite of execution of the release deed dated 24/07/2002.
Therefore, I am opinion that the complainant has made out the
prima-
facie case only under section 418 and 420 of the Indian Penal Code.
15. So far as, the offences under section 182, 183, 194, 199,
200, 336 and 380 of the Indian Penal Code are not at all made out by
the complainant hence, the accused is discharged from those offences.
Issue process under section 418, 420 of the Indian Penal Code against
accused.
Case be registered as Summons Warrant Triable Case.
Mumbai.
Date : 01/08/2025.
SRD.
Sd/-
Judicial Magistrate,(First Class),
71st Court, Bandra, Mumbai.
Date : 01/08/2025.
Dictated on :- 01/08/2025.
Transcribed on :- 01/08/2025.
Checked on :- 01/08/2025.
Signed on :- 01/08/2025.
SRD
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