Oral Judgment:

1. Rule. Rule is made returnable forthwith. By consent of the learned counsel for the applicants and the learned A.P.P., the application is taken up for final disposal.

2. By this application filed under section 482 of the Code of Criminal Procedure, 1973 (for short “Cr. P.C.”), the applicants have challenged the order dated 27th June, 2023 passed by the learned Judicial Magistrate First Class, Ichalkaranji, District Kolhapur in Criminal Miscellaneous Application No.500 of 2021 (now numbered as “R.C.C No.222 of 2023).

3. The parties to the present proceedings are real brothers and sisters. The father of the complainant, namely, Bapu Ghatge, was the owner of two plots bearing Nos.28 and 29 situated at Village Yadrav, Taluka Shirol, District Kolhapur. Respondent No.2(original complainant) instituted Regular Civil Suit No.149 of 2021 before the Court of the Civil Judge, Senior Division, Jaysingpur, contending that defendant No.1 had executed two Gift Deeds in favour of the remaining defendants, thereby depriving him of his lawful share in the suit properties. The suit was filed seeking a declaration and a permanent injunction restraining the defendants from disturbing the possession of the plaintiff over the suit properties. Apart from the said civil proceedings, Respondent No. 2 had initially filed an application under Section 156(3) of the Code of Criminal Procedure, 1973 (for short, "the Cr.P.C.") before the learned Judicial Magistrate First Class, Ichalkaranji, seeking a direction to the Senior Police Officer to make investigation and submit the report. The said Miscellaneous Criminal Application No.500 of 2021 came to be dismissed by order dated 25th November, 2021. Being aggrieved thereby, Respondent No.2 preferred Criminal Revision Application No. 54 of 2021 before the learned Sessions Judge, Ichalkaranji. The said revision application was filed without impleading the present applicants as parties thereto. By order dated 18th July, 2022, the learned Sessions Judge partly allowed the revision application, quashed and set aside the order dated 25th November, 2021 passed in Miscellaneous Application No.500 of 2021, and directed the learned J.M.F.C. to follow the procedure prescribed under Chapter XV of the Cr.P.C. and pass an appropriate order. Pursuant to the said directions, the learned Magistrate proceeded with the complaint and called for a police report. Thereafter, upon consideration of the complaint and the material placed on record, the learned Magistrate, by the impugned order dated 27th June, 2023, issued process against the present applicants. It is this order, issuing process, which is the subject matter of challenge in the present application.

4. This Court, by a detailed order dated 7th December, 2023, granted ad-interim relief in favour of the applicants. Thereafter, the applicants took all possible steps to effect service upon Respondent No.2. Ultimately, by an order dated 28th November, 2025, this Court recorded that although fresh notice had been duly served upon Respondent No.2, none appeared on his behalf. As a last opportunity, Respondent No.2 was granted one final chance to address the Court. It was expressly made clear that, in the event of failure on the part of Respondent No.2 to advance arguments, the matter would be decided on its own merits.

5. Today, when the matter was called out, none appeared on behalf of Respondent No.2 despite due service. In these circumstances, the Court has proceeded to hear the applicants and has taken up the matter for final disposal on merits.

6. Learned counsel appearing for the applicants submitted that the entire allegation in the complaint is that two Gift Deeds dated 5th March 2020 are forged. It is alleged in the complaint that the said Gift Deeds were forged by the applicants. On the basis of the said allegations, process has been issued against accused Nos.1 to 10, some of whom are the applicants before this Court, for the offences punishable under Sections 120B, 420, 406, 417, 427, 465, 207 and 149 r/w Section 34 of the Indian Penal Code, 1860 ("IPC"). Learned counsel further submitted that the aforesaid Gift Deeds are registered documents executed by the father of the applicants and respondent No.2. He submitted that at no point of time did the father make any allegation against the applicants. On the contrary, he consistently supported the applicants and maintained that he had voluntarily executed and registered the said Gift Deeds in their favour.

7. It is submitted by Mr. Joshi that, as a matter of fact, the father, who was arrayed as respondent No.3 in the proceedings, had filed an affidavit before this Court wherein he categorically stated that he had executed the Gift Deeds. It is further submitted that his verification statement was also recorded. However, despite being the most material witness, being the executant of the Gift Deeds himself, he was not examined before the Court.

8. Mr. Joshi, learned counsel for the Applicants, further submitted that the reasons assigned by the learned trial Court while issuing process are wholly erroneous and this is nothing but an abuse of the process of law. He further submitted that the competent Civil Court is already seized of the subject matter and, therefore, the issue sought to be agitated before the Criminal Court is beyond its jurisdiction. It was submitted that the civil suit was instituted on 28th April 2021, whereas the criminal complaint came to be filed subsequently on 22nd October 2021. It was further submitted that the learned Magistrate issued process on 27th June 2023, and, therefore, the impugned order issuing process deserves to be quashed and set aside. In addition, Mr. Joshi contended that, since respondent No.3 was residing beyond the territorial jurisdiction of the learned Magistrate, it was imperative on his part to serve the respondents. He relied on the judgments in cases of Vijay Dhanuka and others vs. Najima Mamtaj and others((2014) 14 Supreme Court Cases 638), Abhijit Pawar vs. Hemant Madhukar Nimbalkar and another((2017) 3 Supreme Court Cases 528) and Prem Singh and others vs. Birbal and another((2006) 5 Supreme Court Cases 353) to canvass his submission that registration of the Gift Deed is a notice to all and that there is presumption that registered document is validly executed. He states that since the document is registered, there is no question of there being any presumption to the contrary. He invited my attention to the impugned order and stated that the impugned order is a result of non application of mind. He prayed for quashing and setting aside the order of issuance of process.

9. Mr. Chaudhari, learned A.P.P., vehemently opposed the application and supported the impugned order. He submitted that the impugned order has been rightly passed and that the matter requires a thorough investigation, and that the proceedings initiated cannot be throttled at this stage. He further contended that it is premature to arrive at any conclusion regarding the legality or validity of the Gift Deeds. He also submitted that the pendency of a civil suit does not bar or preclude the continuation of the present criminal proceedings.

10. The matter was called out in the morning session; however, none appeared for Respondent No.2. The matter was called out again in the afternoon session. Even in the afternoon session, none appeared for Respondent No. 2. In these circumstances, this Court is constrained to proceed with the matter in the absence of Respondent No.2.

11. Respondent No.3 father of the complainant was added as respondent No.3 in the present proceeding. He expired and as such, proceeding abated against him.

12. I have perused the impugned order, copies of the Gift Deeds and the judgments relied upon by the learned counsel for the applicants. I have further considered the submissions advanced by the learned counsel for the applicants as well as the learned A.P.P.

13. Registered Gift Deeds in question were executed on 5th March 2020 by respondent No.3 by stating that he has bequeathed property due to natural love and affection to his daughters. The Deeds were duly signed by the daughters as well as the father (Respondent No.3). It is evident that Respondent No.2, who is the son of Respondent No.3 was not allotted any share therein and, therefore, he is naturally aggrieved. Pursuant to the registration of the said Gift Deeds, and on the basis of a report under Section 150 of the Maharashtra Land Revenue Code, 1966, mutation proceedings were initiated. Consequently, Mutation Entry No. 10651 came to be effected, thereby recording the names of the applicants, i.e., the sisters of the complainant, in the revenue records.

14. Respondent No.2 thereafter instituted Regular Civil Suit No.149 of 2021, which is presently pending adjudication. The reliefs sought therein, inter alia, are that his possession not to be disturbed and a declaration is also sought that Gift Deeds dated 5th March, 2020 are not binding upon him. Summons have already been issued in the said suit and the matter is sub judice. Be that as it may, Respondent No.2 also preferred an application under Section 156(3) of the Cr. P.C before the learned Judicial Magistrate First Class, which came to be rejected by order dated 25th November, 2021. The said order was challenged in Criminal Revision Application No.54 of 2021. The revisional Court remanded the matter to the learned Magistrate with a specific finding that it was incumbent upon the learned J.M.F.C. to comply with the provisions of Chapter XV of the Cr. P.C and pass appropriate order. The said Criminal Revision Application was thereafter dismissed on 18th July, 2022. Subsequently, the learned Magistrate, while considering Criminal Miscellaneous Application No.500 of 2021, issued process. As far as issuance of process is concerned, there is no application of mind in the impugned order as to why the said proceedings were entertained, especially when the executant who was the owner of the property had not made any grievance. It is also pertinent to note that respondent No.3, owner of the property, was not an aggrieved person and, in fact, supported the case of the applicants to the extent that he had executed the Gift Deeds in question.

15. In any event, the Gift Deeds in question are registered documents, and hence there is always a presumption that the registered document is validly executed. The same is borne out from the judgment of Prem Singh and Others (supra).

16. The documents in question i.e Gift Deeds are intact today and are not set aside by the Civil Court.

17. The learned J.M.F.C has not even considered the very locus of the complainant in filing the complaint. Learned J.M.F.C ought not have lost sight of the fact that the Gift Deeds in question were the cornerstone of the entire litigation and that it is on the backdrop of these Gift Deeds, the entire edifice of the litigation was based. In absence of the donor of the Gift Deed challenging the same, there is always a presumption that the Gift Deed is legally and validly executed. In this connection, it is very important to note the provisions of Chapter II of the Transfer of Property Act, 1882. Chapter VII contains elaborate provision of “Gift”. Section 122 defines what is a ‘Gift’ and section 123 stipulates how transfer shall be effected. In the present case, the Gift Deeds are admittedly registered documents executed by respondent No.3, the father out of natural love and affection. There is no question of breach of trust or entrustment with the property or dominion position as mentioned in the impugned order. The question of forgery further does not arise in light of the judgment of the Apex Court in case of Mohammed Ibrahim and others versus State of Binhar and another((2009) 8 Supreme Court Cases 751). Paragraph 14 of this judgment is worth considering which reads thus;

                   “14. An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories:

                   1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.

                   2. The second is where person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.

                   3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.

                   In short, a person is said to have made a "false document", if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document, by practising deception, or from a person not in control of his senses.”

18. In light of this paragraph, until and unless the father of the donor of the Gift Deeds comes to the court and states that it is not his signature, there is no question of forgery being committed. The converse position operates in the present case. The father, i.e. respondent No. 3, who is the donor of the Gift Deeds in question, has unequivocally filed an affidavit in this Court affirming that he has, in fact, executed the said Gift Deeds. In view of the categorical stand taken by respondent No.3, the execution of the Gift Deeds cannot be doubted by this court.

19. There was no question of applicability of provisions of section 406 of Cr. P.C.. There was no question of criminal breach of trust. There was no question of cheating or any other provisions under which the process is issued. This issuance of process is totally erroneous. The impugned order is totally a result of non application of mind. At this stage, it is profitable to refer to the provisions of section 202 of the Cr.P.C. Admittedly, the parties to the proceedings were residing beyond the territorial jurisdiction of the learned J.M.F.C. In such case, the legal position as enunciated in the pronouncement of Vijay Dhanuka and others (supra), was also given a go by.

20. The documents are registered. The entire family is made accused and by no stretch of imagination, offence under any of the sections under which process is issued is not made out. The impugned order is perverse. It is passed without application of mind. It is without jurisdiction. The application, therefore, deserves to be allowed. Hence, the following order;

                   : O R D E R :

                   (a) Rule is made absolute.

                   (b) The application is allowed.

                   (c) The order of issuance of process dated 27th June 2023 passed by the learned Judicial Magistrate, First Class, Ichalkaranji, District Kolhapur in Criminal Miscellaneous Application No.500 of 2021; (Now numbered as RCC of 2023)”, is hereby quashed and set aside.

21. The application is disposed of accordingly.