Dismissed

Abdulkarim Nurmahammad Pathan and Ors. v. Mehaboobsa Mansoorasa Pathan and Anr.

Bombay HC7 Sept 2023WP/5728/2018

Case brief

AI extract

What is this about?

The High Court of Bombay disposed of a writ petition under Section 482 Cr.P.C. seeking quashing of a process order. The court held that at the stage of cognizance, the merits of the defence and contradictions in witness statements cannot be considered as it amounts to a mini-trial. Finding a prima facie case, the petition was dismissed.

What did the court decide?

Petition for quashing of order dated 04.12.2018 and order of issuance of process dismissed.

Abdulkarim Nurmahammad Pathan and Ors. Vs Mehaboobsa… — Cheque Dishonour | Bombay HC (2023)

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WP-5728-2018.doc

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(Correction made as per speaking to minutes order dated 20.10.2023)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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 CRIMINAL WRIT PETITION NO.5728 OF 2018

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1. Abdulkarim Nurmahammad Pathan
Age 39 years, Occ:Business,

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2.Nurmahammad Mansoor Pathan
Age: 73 years, Occ: Pensioner,

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3. Jaiurabi Nurmahammad Pathan
Age : 72 years, Occ: Nothing,
All R/o. Opposite Hotel Moonlight,
Vidhyagiri, Bagalkot, Ta.Bagalkot,
District: Bagalkot, Karnataka,

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Digitally signed by CHITRA CHITRA SANJAY SONAWANE SANJAY Date: SONAWANE 2023.10.21 15:29:41 +0530

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…Petitioners.

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Versus

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1. Mehboobsa Mansoorsa Pathan
Age: 66 years, Occ: Pensioner,
R/o.Rajhans Society, Vijaynagar East,
Wanlesswadi, Tal.Miraj, Dist:Sangli

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2.The State of Maharashtra

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 …
Respondents.

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Mr Kuldeep U. Nikam, Advocate a/w Mr Om N. Latpate a/w
Surajsingh S. Malas for petitioners.
Mr AA Palkar, APP for State.

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Mr Datta Mane a/w Maruti Sarkar for respondent no.1.

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 Coram : R.N.Laddha,J.

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 Date: 7 September 2023.

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Chitra Sonawane. Page No. 1 of 4

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7 September 2023.

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WP-5728-2018.doc

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P.C. :

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The petitioners have approached this Court under
Section 482 Cr.P.C. for quashing and setting aside the order
dated 04.12.2018 of the Sessions Judge, Sangli, in Criminal
Revision No.153 of 2017, as also, for quashing order of
issuance of process against them for the offence punishable
under Sections 380,452, 323, 504, 506 read with 34 of the
Indian Penal Code by the Judicial Magistrate, First Class,
Sangli, in RCC No.351 of 2014.

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2.Mr Kuldeep Nikam, learned Counsel for the petitioners,
submitted that the impugned order betrays a total non
application of mind by the learned Magistrate. No case,
according to the learned Advocate for the petitioners was
made out against the petitioners for issuance of process.
Elaborating the submissions he submitted that the learned
Magistrate erroneously relied upon the bare words of the
original complainant and his friend. The original complainant
had already sold the property in question to a person named
Badiger, so it is unlikely that the complainant had possession
of the original documents related to the property. It is
submitted that there was a significant delay in filing the

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Chitra Sonawane. Page No. 2 of 4

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7 September 2023.

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WP-5728-2018.doc

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complaint and that it was done with the intention of
pressurising the petitioners to withdraw their civil
proceedings. According to learned Counsel the dispute is
predominantly of a civil nature.

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3.On the other hand, Mr Datta Mane, the learned Counsel
appearing on behalf of respondent no.1, submitted that the
incident occurred on 21.11.2013, and the second respondent
was examined on the same day, with a medical certificate to
that effect being on record. In his view, the trial Court
correctly evaluated the evidence presented by the respondent/
original complainant and issued the process after applying its
mind.

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4.The complaint and the verification statement of the
respondent shows that the accused/petitioners, in furtherance
of their common intention, went to the first respondent’s
house on 21.11.2013, snatched the documents related to the
disputed immovable property, assaulted the second
respondent, and fled from the spot. The averments in the
complaint makes out prima facie case for issuance of process
against the accused and the impugned order of the Magistrate
reflects application of mind. Though it is claimed that there

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Chitra Sonawane. Page No. 3 of 4 ____________________________________________ 7 September 2023.

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WP-5728-2018.doc

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are contradictions in the statements of witnesses, and that
they are got up witnesses. However, at this stage, this Court
cannot consider the petitioners/accused’s defence by
conducting a mini- trial.

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5.The scope of a writ petition challenging the issuance of
process is limited to considering the allegations in the
complaint. By a catena of judicial pronouncements, the legal
position to the effect is clear that the merits of the defence
should not be considered at the stage of cognizance and that
the order of issuance of process need not be elaborate or in
detail.

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6.In view of this, there is no merit in this writ petition.
Accordingly, the writ petition stands dismissed.

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Chitra Sonawane. Page No. 4 of 4 ____________________________________________ 7 September 2023.

Abdulkarim Nurmahammad Pathan and Ors. v. Mehaboobsa Mansoorasa Pathan and Anr.

Case brief

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Abdulkarim Nurmahammad Pathan and Ors. v. Mehaboobsa Mansoorasa Pathan and Anr.

Case brief

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What did the court decide?

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