Bombay High Court
Mukund Ashok Cairae vs State Of Maharashtra And Anr on 30 June, 2026
Supriya Ghule WP-2377-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 2377 OF 2023
1. Mukund Ashok Cairae
Age : 52 years, Occupation : Service,
Permanent Residence : 19,
National Housing Society, Baner Road,
Aundh, Pune-411007.
Currently residing at : 306, Building R441,
Street 38, A1 Barsha 1, PB 478829,
Dubai, UAE. ... Petitioner
V/s.
1. The State of Maharashtra,
Through Chaturshrungi Police Station,
Pune.
2. Aarti Ashok Cairae
Age : 73 years, Occupation : Housewife,
Residing At : 19, National Housing Society,
Baner Road, Aundh, Pune-411007 ... Respondents
______________________
Mr. Manoj Mohite, Senior Counsel a/w Ms. Priyanka Chavan for the Petitioner.
Mr. Narayan Rokade a/w Mr. Vikrant Kadam, Mr. Siddharth Ghodke, Mr.
Ramchandra Wagh, Mr. Tribhuvan Sharma for Respondent No.2.
Mr. V. A. Kulkarni, A.P.P. for Respondent No.1-State.
Mr. Kailas Kare, PI, Eow, Pune city is present.
______________________
CORAM : RANJITSINHA RAJA BHONSALE, J.
RESERVED ON : 27th FEBRUARY 2026
PRONOUNCED ON : 30th JUNE 2026
JUDGMENT :
–
1) Rule. Heard finally with the consent of the parties.
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Supriya Ghule WP-2377-2023.doc 2) By the present Petition, under Article 226 of the Constitution of
India and Section 482 of Code of Criminal Procedure, 1973, (now Section 528
of BNSS) the Petitioner seeks to quash and set aside the F.I.R. bearing No. 120
of 2023 dated 18th February 2023, registered with the Chaturshringi Police
Station, Pune for offences punishable under sections 403, 404, 420, 406, 463,
464, 465, 470, 471 of the Indian Penal Code.
3) Heard Mr. Manoj Mohite, learned Senior Counsel for the
Petitioner, Mr. V. A. Kulkarni, A.P.P for Respondent No.1-State and Mr. Narayan
Rokade for Respondent No.2.Perused the entire record.
4) The alleged case of Respondent No.2 is as under: 4.1) The Original Complainant/Respondent No.2 is the step mother of
the Petitioner. That, on 12th May 1995, Respondent No.2 got married to the
Petitioner’s father Mr. Ashok Cairae. That, the Petitioner’s father expired on 9 th
October 2020. That, the Petitioner’s father during his lifetime had invested his
money in shares and mutual funds. That, Petitioner was the nominee in few
mutual fund investments for administrative purposes. That, this was done so
that the Petitioner would help in administering the funds, during the lifetime
of the Petitioner’s father, and afterwards as per the deceased legacy. That,
Petitioner has access to the accounts. That, Petitioner transferred monies to his
name thereby committing offences of criminal breach of trust, and cheating.
4.2) That, in or around the first week of August 2020, Petitioner in
order to commit the aforesaid offences, created fake Email ID’s purportedly
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belonging to the Petitioner’s father, without the knowledge and consent of the
Petitioner’s father or Respondent No.2. That, Petitioner changed contact
details and KYC information of the bank accounts and mutual funds which
belonged to the Petitioner’s father. That, on 09 th October 2020 and 12th
October 2020, the Petitioner illegally withdrew monies totally amounting to
Rs. 11,40,28,364/-. That, this was done on the day the Petitioner’s father
expired and two days thereafter.
4.3) That, on 11th January 2023, the learned Judicial Magistrate First
Class, Pune directed the Police Inspector, Chaturshringi Police Station to
register an offence and carry out investigation under section 156(3) of the
Criminal Procedure Code. That, on 8 th February 2023, FIR bearing C.R. No.
120 of 2023 was registered.
5) Mr. Manoj Mohite, learned Senior counsel appearing for the
Petitioner submitted that:
5.1) That, the Petitioner and his father were essentially de facto
guardians of each other’s assets, jointly handled the family’s financial affairs.
That, the Petitioner’s father, sent to the Petitioner, all passwords relating to
Email IDs, his bank account details, etc. That, the Petitioner’s father, was also
making and managing the investments of monies which were received from
the sale of joint family properties.
5.2) That, the Petitioner’s father had prepared a Will dated 11 th
January 2020 (said Will), wherein, the Petitioner was appointed as the sole
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executor. That, under the said Will the Petitioner and Respondent No.2 are
both beneficiaries. That, the Petitioner has received certain properties and
adequate provisions have also been made for Respondent No.2. That, the
original Will was handed over to the Petitioner by his father on 13 th January
2020. That, a copy of the said Will and the affidavit of the attesting witness is
annexed to the Petition.
5.3) That, in or around June or July 2020 during the time when the
Petitioner’s father was ill, Respondent No.2 fraudulently hacked into the
Petitioner’s father’s Email ID, send emails to the ICICI bank and illegally
proceeded to change the password and recovery Email IDs. That, there were
various instances/attempts by Respondent No.2, to try and take control of the
registered mobile phone of the Petitioner’s father and instructing the bankers
to clear credit card bills from the joint account held by the Petitioner and his
father. That, email dated 1st July 2020, evidences the same. That, Respondent
No.2 changed online login and passwords by using the registered mobile
number of the Petitioner’s father. That, considering the conduct and acts of
Respondent No.2 as more particularly mentioned in the Petition, the Petitioner
as the executor of the Will, was well within his rights to take necessary steps
to protect and/or administer the estate of the deceased father in accordance
with the Will.
5.4) That, Respondent No.2 has at all times tried to restrain the
Petitioner from using or entering the Pune residence, which is the Petitioner’s
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ancestral house. That, the complaint letter dated 11 th February 2021(wrongly
typed as 11th February 2020) evidences the same.
5.5) That, Respondent No.2 illegally transferred the Petitioner’s
father’s registered mobile number to her own name without taking consent of
the legal heirs. That, using the registered mobile number, Respondent No.2
hacked into the tax accounts of the Petitioner’s father and fraudulently created
an Email ID in the name of the Petitioner’s father to carry out various
transactions. That, sometime between June and July of 2021, Respondent
No.2 withdrew and transferred certain amounts as more particularly
mentioned in the Petition. That, daughters of Respondent No.2 from her first
marriage, falsely represent themselves to be the daughters of Late Ashok Caire
i.e. the Petitioner’s father. These representations are made to the society in
general and also to financial institutions and other authorities. That, the
daughters are infact the children of Respondent No.2, from her first marriage,
and had never been adopted by the Petitioner’s father.
5.6) That, under the said Will, the Petitioner has been appointed as an
executor and also a beneficiary. That, the Petitioner as the executor has acted
as per the directions and wishes of the Petitioner’s father as mentioned in the
said Will.
5.7) That, allegations made in the FIR do not make out offences under
Section 403, 420, 406 as well as the offences for forgery. That, it is the specific
case of Respondent No.2 that, Respondent No.2 and the Petitioner were
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independently made nominees in certain mutual funds. That, under the Will
the Petitioner’s father bequeathed certain mutual funds to the Petitioner. That,
on the death of the Petitioner’s father, the Will has become operative.
Therefore, the offences as alleged cannot be made out.
5.8) That, since July 2016 all the passwords, at all times, were known
to the Petitioner as the same were informed by his father. That, the change in
the passwords has taken place in the month of August 2020, on the specific
instructions of the Petitioner’s father, much before his death and the transfer
of funds. That, Petitioner was well within his right and entitlement as an
executor and beneficiary to act in accordance with said Will and law to
administer the assets of the deceased. That, the acts of the Petitioner are
bonafide acts done to secure the assets of his late father so as to ensure that
the same are administered in accordance with the Will. That, the acts of the
Petitioner cannot by any stretch of imagination or implication be construed to
be acts of criminal misappropriation, cheating, or even forgery.
5.9) That, the FIR does not refer to the Will and/or the probate
proceedings filed by the Petitioner. This act of suppression by Respondent
No.2 goes to the root of the matter and clearly demonstrates the malafide
intentions and motives of Respondent No.2. That, even the complaint filed in
Court does not refer to the Will. That, the order dated 11 th January 2023
passed by the Court, is passed due to the intentional and deliberate acts of
suppression by the Respondent No.2. The said conduct of Respondent No.2
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speaks volumes of the object and intentions of Respondent No.2.
5.10) That, the Petitioner has filed a Special Civil Suit No.1878 of 2023
before the Civil Judge, Senior Division, Pune on 13 th September 2023, seeking
a declaration of his title and interest in the properties. That, Respondent No.2
has filed her appearance in the said suit.
5.11) That, the Petitioner has filed an undertaking dated 24 th February
2026 in the form of affidavit before this Court, wherein he has voluntarily and
unequivocally undertaken before this Court that he shall abide by the final
outcome, judgment, decree, or order that may be passed by the competent
Civil Court in Probate Application Civil M.A. No. 966/2020 and Special Civil
Suit No.1878/2023. That, the Petitioner has further undertaken that he shall
not act in any manner contrary to or inconsistent with the orders passed by
the Civil Court.
6) Mr. Narayan Rokade, learned counsel appearing for the
Respondent No.2 submitted that:-
6.1) The allegations in the FIR clearly make out a case against the
Petitioner. That, the Petitioner has committed the acts of criminal breach of
trust, cheating and forgery. That, money has been transferred on the day of
the death of the father of the Petitioner and two days thereafter.
6.2) The allegation that, Respondent No.2 has withdrawn amounts
from mutual funds is incorrect and false. The Petitioner misused the access, he
had to the Accounts of Late Ashok Caire.
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Supriya Ghule WP-2377-2023.doc 6.3) That, the pending proceedings and the civil suit filed by the
Petitioner, can have no bearing on the present criminal prosecution. That,
once the offence is made out civil and criminal proceedings can both be filed
and proceeded with. That, the Petitioner has committed the act of forgery.
6.4) That, as a prima facie case is made out, no interference as sought
for is warranted. That, the allegations are serious and the Court while
exercising the powers under Section 482 of the Code of Criminal Procedure
cannot conduct a mini-trial. That, considering the allegations, the Petition
deserves to be dismissed.
7) Before considering the facts of the case and examining whether a
case for exercising the inherent powers of this Court under section 482 of the
Code of Criminal Procedure (now Section 528 BNSS) is made out, it would be
necessary to refer to certain provisions of law and the law on the said issues.
7.1) Section 211 of the Indian Succession Act, 1925 reads as under;
211.”Character and property of executor or administrator as such.
(1) The executor or administrator, as the case may be, of a deceased
person is his legal representative for all purposes, and all the property
of the deceased person vests in him as such.
(2) When the deceased was a Hindu, Muhammadan, Budhist, Sikh,
[Jaina or Parsi] or an exempted person, nothing herein contained shall
vest in an executor or administrator any property of the deceased
person which would otherwise have passed by survivorship to some
other person.”
7.2) Section 213 of the Indian Succession Act, 1925 reads as under;
213. Right as executor or legatee when established.-
(1) No right as executor or legatee can be established in any Court of
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Justice, unless a Court of competent jurisdiction in 40[India] has
granted probate of the will under which the right is claimed, or has
granted letters of administration with the will or with a copy of an
authenticated copy of the will annexed.
41
[(2) This section shall not apply in the case of wills made by
Muhammadans 42, [ or Indian Christians], and shall only apply–
(i) in the case of wills made by any Hindu, Buddhist, Sikh or Jaina
where such wills are of the classes specified in clauses (a) and (b) of
section 57; and
(ii) in the case of wills made by any Parsi dying, after the
commencement of the Indian Succession (Amendment) Act, 1962, (16
of 1962.) where such wills are made within the local limits of the
43
[ordinary original civil jurisdiction] of the High Courts at Calcutta,
Madras
and Bombay, and where such wills are made outside those
limits, in so far as they relate to immovable property
situate within those limits.]
Section 213 of the Indian Succession Act is now omitted by Repealing
and Amending Act, 2025, dt. 20/12/2025.
7.3) Section 303 of the Indian Succession Act, 1925 reads as under;
303. Executor of his own wrong.-A person who intermeddles with the
estate of the deceased, or does any other act which belongs to the
office of executor, while there is no rightful executor or administrator
in existence, thereby makes himself an executor of his
own wrong.
Exceptions.–(1) Intermeddling with the goods of the deceased for the
purpose of preserving them or providing for his funeral or for the
immediate necessities of his family or property, does not make an
executor of his own wrong.
(2) Dealing in the ordinary course of business with goods of the
deceased received from another does not make an executor of his own
wrong.
7.4) Section 304 of the Indian Succession Act, 1925 reads as under;
304. Liability of executor of his own wrong.- When a person has so
acted as to become an executor of his own wrong, he is answerable to
the rightful executor or administrator, or to any creditor or legatee of
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the deceased, to the extent of the assets which may have come to his
hands after deducting payments made to the rightful executor or
administrator, and payments made in due course of administration.
7.5) Section 307 of the Indian Succession Act, 1925 reads as under;
307.”Power of executor or administrator to dispose of property.
(1) Subject to the provisions of sub-section (2), and executor or
administrator has power to dispose of the property of the deceased,
vested in him under section 211, either wholly or in part, in such
manner as he may think fit.
(2) If the deceased was a Hindu, Muhammad an, Buddhist, Sikh or
Jain or an exempted person, the general power conferred by sub-
section (1) shall be subject to the following restrictions and conditions,
namely:–
(i) The power of an executor to dispose of immovable property so
vested in him is subject to any restriction which may be imposed in
this behalf by the Will appointing him, unless probate has been
granted to him and the Court which granted the probate permits
him by an order in writing, notwithstanding the restriction, to
dispose of any immovable property specified in the order in a
manner permitted by the order.
ii) An administrator may not, without the previous permission of the
Court by which the letters of administration were granted,–
a) mortgage, charge or transfer by sale, gift, exchange or otherwise
any immovable property for the time being vested in him under
section 211, or
(b) lease any such property for a term exceeding five years.
(iii) A disposal of property by an executor or administrator in
contravention of clause (i) or clause (ii), as the case may be, is
voidable at the instance of any other person interested in the
property.
(3) Before any probate or letters of administration is or are granted in
such a case, there shall be endorsed thereon or annexed thereto a copy
of sub-section (1) and clauses (i) and (iii) of sub-section (2) or of sub-
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section (1) and clauses (ii) and (iii) of sub-section (2), as the case may
be.
(4) A probate or letters of administration shall not be rendered invalid
by reason of the endorsement or annexure required by sub-section (3)
not having been made thereon or attached thereto, nor shall the
absence of such an endorsement or annexure authorise an executor or
administrator to act otherwise than in accordance with the provisions
of this section.”
7.6) The Madras High Court in the case of S.Parthasarathy Aiyar v. M.
Subbaraya Gramany, reported in 1923 SCC OnLine Mad 18 has observed that,
“It is not right, as has been suggested in some cases, to treat a will
of which probate has not been granted as non-existent and the
property passing by intestacy. On the contrary, the will is a perfectly
valid document. The executor under it can deal with the property
and give a perfectly good title though it may be that to complete
that title it required probate to be taken out at a later date.”
7.7) The Rajasthan High Court in the case of Sheonath Singh v.
Madanlal reported in AIR 1959 Raj 243 has observed that Section 213 of the
Succession Act does not curtail any right. It only regulates the procedure of
proving a Will. It is distinct from Section 211. It lays down a rule of procedure
and not of any substantive right.
7.8) The Hon’ble Supreme Court in the case of Hem Nolini Judah v.
Isolyne Sarojbashini Bose reported in AIR 1962 SC 1471 has observed that
Section 213 does not imply that no person can claim as a legatee or executor
unless he obtains a probate of the Will. It only states that no right as an
executor or legatee can be established in any court without a probate.
7.9) The Calcutta High Court in the case of Bali Ram Dhote v.
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Bhupendra Nath Banerjee reported in (1978) SCC OnLine Cal 153 has
observed that:
“6. Under Sections 211 and 307 of the Indian Succession Act an
executor obtains a title by virtue of the will and not from the date
when the will is probated. Under Section 211 of the Indian
Succession Act “the executor or administrator, as the case may be, of
a deceased person is his legal representative for all purposes and all
the properties of the deceased person vest in him as such.” The
executor derives his title from the will and immediately after the
testator’s death, his property vests in the executor as the law knows
no interval between the testator’s death and the vesting of the
property. An executor by virtue of his office, that is in the character
of executor takes an estate in the property of the deceased and a
legal character is vested in him. In the present case, the will also
empowers the executor, the defendant No. 4 herein to sell the
property. The executor represents the estate even before he has
taken the probate. As such the probate is not necessary to make an
executor entitled to the properties as his title is derived under the
will. There is nothing in the law to prevent the executor from acting
as an executor and exercise a power given to him without obtaining
probate.
7. In a case reported in AIR 1932 PC 92 (Kadiyala Venkata
Subamma v. Ramayya) it has been held “probate and administration
refers to proof and not vesting of title on executor. The provisions of
Section 12 of the Probate and Administration Act do not suggest
that before probate the executor has no title but are only intended
to simplify the proof of his title as dating from the testator’s death.
The object is to get rid of the multiplicity of proof in every case
where either the will itself, or anything done under it by the
executor is challenged. Probate once granted authenticates the will
against all the world; it affords the ready means of proof of the
contents of the will; and it is a complete answer by the executor to
any challenge of his authority as such. Probate is no part of the
executor’s title. Executor is only the person to whom the testator has
confided the carrying out of his disposition and it is not necessary
that before the executor can dispose of the property he must be
clothed with probate, and the power of disposal is not dependent
upon the the grant of the probate.”
7.10) The Hon’ble Supreme Court in the case of M.V. Shankar Bhat And
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Anr. v. Claude Pinto reported in (2003) 4 SCC 86 has observed that:
“38. It is, however, beyond any cavil that in terms of Sections
211(1) and 307(1) of the Indian Succession Act, the executor of a
will has an absolute right to transfer the property as has been held
in Babuain Chandrakala Devi case2 and P.H. Alphonso case1″
7.11) The Hon’ble Supreme Court in the case of Commissioner,
Jalandhar Division and Ors. Vs. Mohan Krishan Abrol and Anr. reported in
(2004) 7 SCC 505 has observed that:
“10. A bare reading of Section 211 shows that the property vests in
the executors by virtue of the Will and not by virtue of the probate.
Will gives property to the executor; the grant of probate is only a
method by which the law provides for establishing the Will. In the
case of Kulwanta Bewa v. Karam Chand Soni 1 Section 211 provides
that the estate of the deceased vests in the executor; that the vesting
is not of the beneficial interest in the property; but only for the
purposes of representation. In the case of Meyappa Chetty v.
Supramanian Chetty2 the Privy Council has held that an executor
derives his title from the Will and not from probate. The personal
property of the testator (including right of action) vests in the
executor(s) on the death of the testator. For purposes of deciding
this matter, Section 336 of the Act is also relevant as it provides for
assent of the executor to the legacy after the death of the testator. It
provides that an executor gets divested of his interest as an executor
from the death of the testator when he assents to a specific legacy.
Section 213 acts as a bar to the establishment of rights under the
Will by an executor or a legatee unless probate or letters of
administration have been obtained. This bar comes into play only
when a right as an executor or a legatee under Will is sought to be
established. However, an unprobated Will can be admitted in
evidence for collateral purposes in any other proceedings apart from
probate proceedings. (See Cherichi v. Ittianam 3.) Therefore, on the
demise of the testatrix, the said property vested in the executors…”
7.12) The Hon’ble Supreme Court in the case of Crystal Developers Vs.
Asha Lata Ghosh reported in (2005) 9 SCC 375 has observed that:
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“28. Section 211 falls in Part VIII which deals with representative
title to the property of the deceased on succession. Section 211(1)
declares that the executor or the administrator, as the case may be,
of a deceased person is his legal representative for all purposes and
that all the property of the deceased vests in him, as such. Under
Section 212, it is inter alia provided that no right to any property of
a person who has died intestate can be established in any court,
unless letters of administration are granted by a probate court.
Under Section 213, no right as an executor or a legatee can be
established in any court, unless probate of the will is granted, by the
probate court, under which the right is claimed. Similarly, no right
as executor or legatee can be established in any court unless the
competent court grants letters of administration with the will
annexed thereto. Sections 211, 212 and 213 bring out a dichotomy
between an executor and an administrator. They indicate that the
property shall vest in the executor by virtue of the will whereas the
property will vest in the administrator by virtue of the grant of the
letters of administration by the court. These sections indicate that
an executor is the creature of the will whereas an administrator
derives all his rights from the grant of letters of administration by
the court. Section 214 states inter alia that no debt owing to a
deceased testator can be recovered through the court except by the
holder of probate or letters of administration or succession
certificate. Section 216 inter alia lays down that after any grant of
probate or letters of administration, no person other than such
grantee shall have power to sue or otherwise act as a representative
of the deceased, until such probate or letters of administration is
recalled or revoked. Section 221 expressly states that certain
intermediate acts of the administrator are not protected as the
authority of the administrator flows from the grant by the
competent court unlike vesting of the property in the executor
under the will (see Section 211). Section 222 states that probate
shall be granted only to an executor appointed by the will. Section
227 deals with effect of probate. It lays down that probate of a will
when granted establishes the will from the date of the death of the
testator and renders valid all intermediate acts of the executor.
Section 227 is, therefore, different from Section 221. As stated
above, in the case of letters of administration, intermediate acts of
the grantee are not protected whereas in the case of probate, all
such acts are treated as valid. Further, Section 227 states that a
probate proves the will right from the date of the death of the
testator and consequently all intermediate acts are rendered valid. It
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indicates that probate operates prospectively. It protects all
intermediate acts of the executor as long as they are compatible
with the administration of the estate. Therefore, Section 221 read
with Section 227 brings out the distinction between the executor
and holder of letters of administration; that the executor is a
creature of the will; that he derives his authority from the will
whereas the administrator derives his authority only from the date
of the grant in his favour by the court.
29. Chapter III of Part IX deals with revocation of grants. Under
Section 263, the grant of probate or letters of administration may be
revoked if the proceedings to obtain the grant were defective in
substance; or the grant being obtained fraudulently by making a
false suggestion or by suppressing from the court something
material to the case or if the grant was obtained by means of untrue
allegation or if the grantee has wilfully and without reasonable
cause omitted to exhibit an inventory or account in accordance with
the provisions of Chapter VII of Part IX. Before us, it has been
vehemently urged on behalf of the plaintiffs that the revocation of
the grant of probate will make all intermediate acts ab initio void.
Under Section 263, as stated above, grant of probate or letters of
administration is liable to be revoked on any of the five grounds
mentioned therein. One of the grounds as stated above is failure on
the part of the grantee to exhibit/file an inventory or statement of
account. Similarly, the probate or letter of administration is liable to
be revoked if the grant is obtained fraudulently. Can it be said that
revocation of the probate on the ground of non-exhibiting an
inventory or statement of account will make the grant ab initio void
so as to obliterate all intermediate acts of the executor? If it is not
ab initio void in the case of non-filing of inventory or statement of
account then equally it cannot be ab initio void in the case of a
grant obtained fraudulently. In other words, what applies to clause
(e) of the Explanation equally applies to clause (b) of the
Explanation. At this stage, we clarify that if the intermediate act of
the executor is not for the purpose of administration of the estate or
if the act is performed in breach of trust then such act(s) is not
protected. However, acts which are in consonance with the testator’s
intention and which are compatible with the administration of the
estate are protected. Therefore, on reading Sections 211, 227 along
with Section 263, it is clear that revocation of the grant shall
operate prospectively and such revocation shall not invalidate the
bona fide intermediate acts performed by the grantee during the
pendency of the probate.
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39…. That the vesting of the property of the deceased in the
executor under Section 211 is independent of the grant of probate.
That Section 211 does not say, with reference to an executor, that he
becomes the legal representative only on obtaining probate. On the
other hand, Section 307 indicates that an executor can exercise the
power of disposition without obtaining the probate. However, the
executor must administer the estate in accordance with the will. His
acts must not be incompatible with the administration of the estate.
That under Section 211, the estate of the testator vests in the
executor even before the grant of probate, but by virtue of Section
213, the executor can establish his right in a court on production of
the probate. When a competent court grants probate or letters of
administration, it can never be absolutely sure that the deceased left
no subsequent will. There is always a possibility of subsequent will
being discovered later on. There is always a risk of fraud on the
court. However, such possibility of risk cannot indefinitely hold up
the administration of the estate. Therefore, Section 273 makes the
grant conclusive. As soon as the grant is made, Section 273 comes
into play. However, the law takes note of the possibility of error,
irregularity or fraud and accordingly makes provisions for
revocation of grant for just cause (Section 263). If a grant is made
in any of the circumstances falling in the Explanation to Section
263, the court can revoke the grant. However, such revocation can
only be prospective and not retrospective. In this connection,
Section 297 of the Act is important. That section provides that when
grant of probate is revoked, all payments made bona fide to any
executor under such grant before revocation shall constitute a legal
discharge to the person making such payment. The object of the
aforestated scheme of the Act is to make it safe for the public to
freely deal with the grantee. The theory of vesting of the estate in
the executor at the moment of death of the testator, even before the
will is probated, is true enough for the administration of estate but
it is subject to the qualification that the grant even if erroneously
made is revocable if the circumstances in the Explanation to Section
263 exist. However, till the grant is revoked, the grantee is the only
legal representative of the deceased and people may safely deal
with such representative in good faith in due course of
administration and such dealings will be protected even if the grant
is subsequently revoked. Accordingly, it was held that revocation of
the grant does not make the grant void ab initio and will not
invalidate any intermediate acts done in good faith in due course of
administration of estate.”
16/44
Supriya Ghule WP-2377-2023.doc 7.13) This Court in the case of Mohamed Salman Noorani v. Radhika
Bhargava, reported in 2014 SCC OnLine Bom 769 has observed that;
“8. On a plain reading of Section 211, it is clear that the executor of the
deceased person is his legal representative for all purposes, and the
property of the deceased person vests in him as such on the date of
death of the testator. Section 213 of the said Act, does not dent the
aforesaid position, but merely provides that no right as an executor can
be established in any Court of Justice, unless a Court of competent
jurisdiction in India has granted a probate of the Will under which it is
claimed. This does not mean that the vesting of the property in the
executor stands postponed until the executor obtains a probate of the
Will from a Court of competent jurisdiction. Further, section 307 of the
said Act makes the position further clear by providing in specific terms
that (subject to the exceptions in sub-section (2) which are not
applicable in this case) the executor of a Will has the power to dispose
of the property of the deceased vested in him under section 211 of the
said Act, either wholly or in part, in such manner as he may think fit. In
our opinion, therefore, upon a plain reading of the aforesaid statutory
provisions, it is clear that transfer of the suit flat by the executors i.e.
defendant Nos. 1 and 2 before obtaining probate, cannot be regarded as
being ‘without authority of law’.
9. In the case of Crystal Developers v. Asha Late Ghosh, (2005) 9 SCC
375, the Supreme Court, upon consideration of the provisions
contained in Sections 211, 212, 213 and 307 of the Act has ruled that
an executor is the creature of the Will. In contrast, an administrator
derives his rights from the grant of Letters of Administration by the
Court. By reference to Section 221 of the Act, it has been held that
certain intermediate acts of the Administrator are not protected as the
authority of the Administrator flows from the grant by the competent
Court, unlike the vesting of the property in the executor under a Will in
terms of Section 211 of the Act. Further, by reference to Section 307 of
the Act, the Supreme Court has observed that an executor has the
power to dispose of the property of the deceased, vested in him under
Section 211, either wholly or in part, in such a manner he may think fit.
Further, section 332 of the Act indicates that the property vests in the17/44
Supriya Ghule WP-2377-2023.docexecutor under the Will from the date of the demise of the testator and
the executor can dispose of the property and that on the assent of the
executor, the title of the legatee under the Will is completed. In the said
judgment, the Supreme Court has quoted with approval the decision of
the Madras High Court in S. Parthasarathy Aiyar v. M. Subbaraya
Gramany, AIR 1924 Madras 67, which reads thus-
“It is not right, as has been suggested in some cases, to treat a will of
which probate has not been granted as non-existent and the property
passing by intestacy. On the contrary the will is a perfectly valid
document. The executor under it can deal with the property and give a
perfectly good title though it may be that to complete that title it
requires probate to be taken out at a later date.” (emphasis supplied)
11. Thus, it is clear that vesting of the property of the deceased in the
executor under Section 211 is independent of the grant of probate.
Section 211 of the said Act does not say or indicate, with reference to
an executor, that the executor becomes the legal representative only
upon obtaining the probate. On the other hand, Section 307, in terms
makes it clear that an executor can exercise the power of disposition
without obtaining probate. Any restriction, at the highest, may relate in
the circumstance that an executor must administer the estate in
accordance with the Will and any acts or omissions on the part of the
executor must not be incompatible with the administration of the
estate…….”
7.14) The Hon’ble Supreme Court in the case of Kamaladevi Agarwal
Vs. State of W.B. reported in (2002) 1 SCC 555 has observed that:
“7. This Court has consistently held that the revisional or inherent
powers of quashing the proceedings at the initial stage should be
exercised sparingly and only where the allegations made in the
complaint or the FIR, even if taken at their face value and accepted
in entirety, do not prima facie disclose the commission of an
offence. Disputed and controversial facts cannot be made the basis
for the exercise of the jurisdiction. In R.P. Kapur v. State of Punjab 7
this Court held: (AIR p. 869, para 6)18/44
Supriya Ghule WP-2377-2023.doc“It is well established that the inherent jurisdiction of the High
Court can be exercised to quash proceedings in a proper case
either to prevent the abuse of the process of any court or
otherwise to secure the ends of justice. Ordinarily criminal
proceedings instituted against an accused person must be tried
under the provisions of the Code, and the High Court would be
reluctant to interfere with the said proceedings at an
interlocutory stage. It is not possible, desirable or expedient to
lay down any inflexible rule which would govern the exercise of
this inherent jurisdiction. However, we may indicate some
categories of cases where the inherent jurisdiction can and
should be exercised for quashing the proceedings. There may be
cases where it may be possible for the High Court to take the
view that the institution or continuance of criminal proceedings
against an accused person may amount to the abuse of the
process of the court or that the quashing of the impugned
proceedings would secure the ends of justice. If the criminal
proceedings in question is in respect of an offence alleged to
have been committed by an accused person and it manifestly
appears that there is a legal bar against the institution or
continuance of the said proceeding the High Court would be
justified in quashing the proceeding on that ground. Absence of
the requisite sanction may, for instance, furnish cases under this
category. Cases may also arise where the allegations in the first
information report or the complaint, even if they are taken at
their face value and accepted in their entirety, do not constitute
the offence alleged; in such cases no question of appreciating
evidence arises; it is a matter merely of looking at the complaint
or the first information report to decide whether the offence
alleged is disclosed or not. In such cases it would be legitimate
for the High Court to hold that it would be manifestly unjust to
allow the process of the criminal court to be issued against the
accused person. A third category of the cases in which the
inherent jurisdiction of High Court can be successfully invoked
may also arise. In cases falling under this category the
allegations made against the accused person do constitute an
offence alleged but there is either no legal evidence adduced in
support of the case or evidence adduced clearly or manifestly
fails to prove the charge. In dealing with this class of cases it is
important to bear in mind the distinction between a case where
there is no legal evidence or where there is evidence which is
manifestly and clearly inconsistent with the accusation made and
cases where there is legal evidence which on its appreciation19/44
Supriya Ghule WP-2377-2023.docmay or may not support the accusation in question. In exercising
its jurisdiction under Section 561-A the High Court would not
embark upon an inquiry as to whether the evidence in question
is reliable or not. That is the function of the trial Magistrate, and
ordinarily it would not be open to any party to invoke the High
Court’s inherent jurisdiction and contend that on a reasonable
appreciation of the evidence the accusation made against the
accused would not be sustained. Broadly stated that is the nature
and scope of the inherent jurisdiction of the High Court under
Section 561-A in the matter of quashing criminal proceedings,
and that is the effect of the judicial decisions on the point [vide:
Shripad G. Chandavarkar, In re2, Jagat Chandra Mozumdar v.
Queen Empress3, Shanker Singh (Dr) v. State of Punjab 4,
Nripendra Bhusan Ray v. Gobinda Bandhu Majumdar 5 and
Ramanathan Chettiyar v. K. Sivarama Subrahmanya Ayyar6 ].”
9. Criminal prosecution cannot be thwarted at the initial stage
merely because civil proceedings are also pending. After referring to
judgments in State of Haryana v. Bhajan Lal 9 and Rajesh Bajaj v.
State NCT of Delhi10 this Court in Trisuns Chemical Industry v.
Rajesh Agarwal11
“7. Time and again this Court has been pointing out that
quashing of FIR or a complaint in exercise of the inherent
powers of the High Court should be limited to very extreme
exceptions (vide State of Haryana v. Bhajan Lal 8 and Rajesh Bajaj
v. State NCT of Delhi9.
8. In the last referred case this Court also pointed out that
merely because an act has a civil profile is not sufficient to
denude it of its criminal outfit. We quote the following
observations: (SCC p. 263, para 10)
’10. It may be that the facts narrated in the present complaint
would as well reveal a commercial transaction or money
transaction. But that is hardly a reason for holding that the
offence of cheating would elude from such a transaction. In
fact, many a cheatings were committed in the course of
commercial and also money transactions.’ ”
7.15) The Hon’ble Supreme Court in the case of K. Jagadish Vs. Udaya
Kumar G.S. reported in (2020) 14 SCC 552 has observed that;
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9. In Pratibha Rani v. Suraj Kumar2 this Court summed up the
distinction between the two remedies as under: (SCC pp. 382-83,
para 21)
“21. … There are a large number of cases where criminal law
and civil law can run side by side. The two remedies are not
mutually exclusive but clearly coextensive and essentially differ
in their content and consequence. The object of the criminal law
is to punish an offender who commits an offence against a
person, property or the State for which the accused, on proof of
the offence, is deprived of his liberty and in some cases even his
life. This does not, however, affect the civil remedies at all for
suing the wrongdoer in cases like arson, accidents, etc. It is an
anathema to suppose that when a civil remedy is available, a
criminal prosecution is completely barred. The two types of
actions are quite different in content, scope and import. It is not
at all intelligible to us to take the stand that if the husband
dishonestly misappropriates the stridhan property of his wife,
though kept in his custody, that would bar prosecution under
Section 406 IPC or render the ingredients of Section 405 IPC
nugatory or abortive. To say that because the stridhan of a
married woman is kept in the custody of her husband, no action
against him can be taken as no offence is committed is to
override and distort the real intent of the law.”
13. In R. Kalyani v. Janak C. Mehta 8 this Court culled out
propositions concerning interference under Section 482 of the Code
as under: (SCC p. 523, para 15)
“15. Propositions of law which emerge from the said
decisions are:
(1) The High Court ordinarily would not exercise its
inherent jurisdiction to quash a criminal proceeding and, in
particular, a first information report unless the allegations
contained therein, even if given face value and taken to be
correct in their entirety, disclosed no cognizable offence.
(2) For the said purpose the Court, save and except in very
exceptional circumstances, would not look to any document
relied upon by the defence.
(3) Such a power should be exercised very sparingly. If the
allegations made in the FIR disclose commission of an
offence, the Court shall not go beyond the same and pass an
order in favour of the accused to hold absence of any mens
rea or actus reus.
(4) If the allegation discloses a civil dispute, the same by
21/44
Supriya Ghule WP-2377-2023.docitself may not be a ground to hold that the criminal
proceedings should not be allowed to continue.”
7.16) The Hon’ble Supreme Court in the case of Delhi Race Club (1940)
Ltd. v. State of U.P., reported in (2024) 10 SCC 690 has observed that;
“43. There is a distinction between criminal breach of trust and
cheating. For cheating, criminal intention is necessary at the time of
making a false or misleading representation i.e. since inception. In
criminal breach of trust, mere proof of entrustment is sufficient. Thus,
in case of criminal breach of trust, the offender is lawfully entrusted
with the property, and he dishonestly misappropriated the same.
Whereas, in case of cheating, the offender fraudulently or dishonestly
induces a person by deceiving him to deliver any property. In such a
situation, both the offences cannot co-exist simultaneously.
44. At the most, the Court of the Additional Chief Judicial Magistrate
could have issued process for the offence punishable under Section
420IPC i.e. cheating but in any circumstances no case of criminal
breach of trust is made out. The reason being that indisputably there is
no entrustment of any property in the case at hand. It is not even the
case of the complainant that any property was lawfully entrusted to the
appellants and that the same has been dishonestly misappropriated.
The case of the complainant is plain and simple. He says that the price
of the goods sold by him has not been paid. Once there is a sale,
Section 406IPC goes out of picture. According to the complainant, the
invoices raised by him were not cleared. No case worth the name of
cheating is also made out.”
7.17) The Hon’ble Supreme Court in the case of Kathyayini Vs. Sidharth
P. S. Reddy and Ors., reported in 2025 SCC OnLine SC 1428 has observed
that;
“23. The above precedents set by this Court make it crystal clear that
pendency of civil proceedings on the same subject matter, involving the
same parties is no justification to quash the criminal proceedings if a
prima facie case exists against the accused persons. In present case
certainly such prima facie case exists against the respondents.
Considering the long chain of events from creation of family tree
excluding the daughters of K.G. Yellappa Reddy, partition deed among22/44
Supriya Ghule WP-2377-2023.doconly the sons and grandsons of K.G. Yellappa Reddy, distribution of
compensation award among the respondents is sufficient to conclude
that there was active effort by respondents to reap off the benefits from
the land in question. Further, the alleged threat to appellant and her
sisters on revelation of the above chain of events further affirms the
motive of respondents. All the above factors suggest that a criminal trial
is necessary to ensure justice to the appellant.”
7.18) The Hon’ble Supreme Court in the case of C. S. Prasad Vs. C.
Satyakumar and Ors. reported in 2026 SCC OnLine SC 50 has observed that;
“31. It is a settled proposition that when a factual foundation for
prosecution exists, criminal law cannot be short-circuited by invoking
inherent jurisdiction under Section 482 of the Cr. P.C. Where allegations
require adjudication on evidence, the proper course is to permit the
trial to proceed in accordance with law. In the present case, the issues
relating to the state of mind of the executants at the time of execution
of the settlement deeds, the role of respondent Nos. 1 to 3 in the
execution and the use of the settlement deeds, the existence of
fraudulent intent, and the manner in which proprietary advantage was
obtained by them, all require a full-fledged trial on evidence.”
8) Considering the facts of the case, the provisions of the law and
the law as enunciated by the Hon’ble Supreme Court the question which
needs to be considered in the present case is whether it can be said that, the
acts and conduct of the Petitioner, which are in accordance with the directions
of the Will and intentions of the testator would amount to offences as alleged
in the complaint/FIR? To recap the facts very briefly. The case of Respondent
No.2 is that, the Petitioner misappropriated monies by changing the E-mail ID
and registered mobile number and that, the same has been done without
consent of Respondent No.2. Contra, the case of the Petitioner is based on the
Will of his late father. That, the Petitioner, has been appointed as an executor
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Supriya Ghule WP-2377-2023.doc
of the Will and is also a beneficiary under the Will. That, the email IDs and
passwords were at all times known to him and informed by his late father.
This fact was know to the Respondent No.2 and is also admitted by her. That,
on the death of his father, the Will immediately became operative and all the
properties vested in him as an Executor. Further, that under the Will, certain
properties were bequeathed to the Petitioner and certain properties were
bequeathed to Respondent No.2. That, Petitioner has acted as per and in
accordance to the Will. There is no act which is done contrary to the
directions/intentions and wishes of the testator as mentioned in the Will.
9) The law relating to testamentary disposition and wills is well
crystallized under the Indian Succession Act. The Indian Succession Act is
complete code in itself. The aim and object of the Indian Succession Act, 1925
(Succession Act) was to consolidate the law as applicable to intestate and
testamentary succession.
9.1) Section 211 of the Succession Act deals with representative title
to the property of the deceased. Under section 211(1) of the Succession Act,
the executor of the Will, immediately on the death of the testator becomes the
legal representative for all purposes and all of the property of the testator
immediately vests in the executor by virtue of the Will. There is no time gap
between the death of the testator and the vesting. On the death of the testator,
the executor represents all of the estate of the testator and derives authority
from the Will.
24/44
Supriya Ghule WP-2377-2023.doc 9.2) Section 213 provides that, no right as an executor or a legatee
can be established in any court, unless probate of the Will is granted, by the
probate court, under which the right is claimed. This, restriction becomes
effective when the right as an executor is sought to be established in any
court. Section 213 of the Indian Succession Act, has now been omitted by the
Repealing and Amending Act, 2025 with effect from 20 th December 2025.
Section 4 of the Repealing and Amending Act, 2025 provides for a saving
clause.
9.3) Perusal of sections 211, 212 and 213 of the Succession Act, make
one thing clear, that, the property of the deceased immediately vest in the
executor and the vesting is independent of the grant of probate. The vesting
under a Will in an executor is immediate, and without any Court Order. On
the other hand, under Section 212 of the Indian Succession Act, the
administrator is granted his rights by the court when the letter of
administration is granted. Property will vest in an administrator only on the
directions of the Courts and by the grant. The issue of a probate, which is a
procedural aspect, is required to eventually, effectively and completely
transfer title as provided by law comes into play, after the vesting. Section 222
of the Succession Act provides that, a probate of the Will shall be granted only
to an executor appointed by and under the Will. It is important to note that,
the acts of the executor are protected if the acts are in line with the intention
of the testator and the directions of the Will.
25/44
Supriya Ghule WP-2377-2023.doc 9.4) Under section 227 of the Succession Act, a probate proves the
Will right from the date of the death of the testator. All acts of the executor in
line with the intentions and directions of the testator are thereby rendered
valid. A grant of probate protects all intermediate acts of the executor as long
as they are compatible with the directions as contained in the Will. In case of
letters of administration, the intermediate acts of the grantee are not
protected. Section 273 of the Succession Act makes the grant conclusive. The
law, considering a possibility of an error, irregularity or fraud etc makes under
section 263, the provisions for revocation of grant for a just cause. Section 263
of the Succession Act, provides grounds for revocation of the grant of probate
or letters of administration.
9.5) Section 307 of the Succession Act, provides that an executor can
exercise the power of disposition without obtaining the probate, so long as the
administration of the estate is in accordance with the intention of the testator
and directions contained in the Will.
9.6) Section 335 of the Succession Act, provides for the assent of the
executor to his own legacy. The executors assent to his own legacy may be
express or implied. Under Section 335(2), it is provided that, the assent shall
be implied if in his manner of administration of the property the executor
does any act which can be referred or traced to his character of a legatee and
not referred or traced to his character of an executor.
9.7) Section 368 of the Act deals with and provides for liability of an 26/44 Supriya Ghule WP-2377-2023.doc
executor or administrator for devastation. It is provided that, if an executor
misapplies the estate of the deceased or subjects it to loss or damage, he is
liable to make good the loss or damage so occurred. The liability is for
maladministration and willful default.
9.8) On considering the aforestated provisions of the Indian
Succession Act, the following position in law emerges. (i) On the death of the
testator, the property immediately vest in the executor and he becomes legal
representative of the estate/property of the deceased. (ii) An executor can
assent to his own legacy either expressly or in an implied manner. The law
allows the executor to act as an executor and exercise powers and authority as
an executor without obtaining a probate. An executor can exercise powers of
disposition without obtaining a probate, so long as the administration of the
estate is in accordance with the intention of testator and direction under the
Will (iii) Probate, procedurally facilitates the transfer of title. A grant of
probate would indeed simplify the proof of the title of the executor from the
testator’s death. The grant of probate authenticates the Will against all. (iv) In
the normal course, the executor legally represents the estate, stands in a
fiduciary capacity towards the beneficiaries under the Will.
9.9) Under the Indian Succession Act, there is a complete mechanism
provided for the parties to protect their own interest, take steps to preserve
properties, seek revocation of a grant of probate and take steps if an executor
or administrator by his acts causes devastation, loss or damage to the property
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or if there is misapplication of property. What is required is the taking of
prompt, swift and proactive steps on time to protect and preserve the
properties and rights, which mechanism is provided for in the Indian
Succession Act.
10) It is settled law that, criminal prosecution cannot be thwarted at
the initial stage merely because civil proceeding is filed and pending.
Quashing of FIR or a complaint in exercise of the inherent powers of the High
Court under Section 482 of Cr.P.C. should be limited and in exceptional cases.
It is repeatedly held that, merely because a civil proceeding is filed and
pending is not sufficient ground to discard or reject a criminal prosecution.
There are a large number of cases in which criminal law and civil law
remedies co-exist. The remedies essentially differ in their content and
consequence. In my considered view, under criminal law proceedings one of
the single most important and crucial aspect is that, of the intention of the
person accused and the criminality of the act. The nature and manner in
which the act is done or the conduct and intent of the person accused would
take centre stage and be decisive in concluding whether there was commission
of a criminal offence or whether there was any criminal intent or whether a
dispute of pure civil nature is being given the appearance or colour of a
criminal act/offence. This aspect also falls for consideration in the present
matter, and has to be considered in the light of the aforestated provisions of
the Indian Succession Act and the penal provisions of the Indian Penal Code
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(now the BNS)
11) A perusal of the complaint dated 18 th August 2022 filed before
the learned JMFC, Pune, indicates that Respondent No. 2 has made no
reference whatsoever to the said Will. The complaint does not refer, find fault
or challenge the Will. In the list of documents annexed to the said complaint,
Respondent No. 2 has relied upon the complaint dated 30 th December 2020,
complaint dated 11th February 2021, and the notices issued by the Economic
Offences Wing dated 18th January 2021, 22nd February 2021, and 24th March
2021. The complaint has been filed on 18th August 2022, whereas the said
Will is dated 11th January 2020, Probate Petition in respect of which was filed
on 27th November 2020. Respondent No. 2, clearly has knowledge of the said
Will as she has filed her objections to the Probate Petition on 6 th September,
2022. This Court has been informed that, Respondent No.2 has also filed her
reply to the amended Probate Petition, which fact is not disputed before this
Court. Pursuant to the Order dated 11th January 2023, the FIR is registered on
8th February 2023. Extremely surprising is the fact that, even in the FIR, there
is no reference to the said Will nor is the existence of the Will acknowledged.
In short, no fault is found with the Will in the criminal prosecution.
12) The aforesaid conduct of Respondent No. 2 clearly indicates
intentional and deliberate suppression of vital and material facts, inasmuch as
she failed to disclose the existence of the Will and the fact that probate
proceedings had already been initiated in respect thereof. There is a clear act
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of suppression of the civil litigation. The question would then arise as to why
Respondent No. 2 would conceal and suppress such vital material and
relevant facts and information from the Court. The conduct appears to be with
the intention and object of suppressing from the Court the consequences of
the existence of the Will i.e., the vesting of the properties in the executor
immediately upon the death of the testator. If the existence of the Will is
disclosed or the Will referred to, the factual position which emerges is that, on
the death of the testator, i.e., on 9th October 2020, all the properties of the
testator immediately vested in the executor under Section 211 of Indian
Succession Act. If the Court was informed of the Will and consequently
became aware of the Will and consequent vesting, then, in that case, the
offences of criminal breach of trust and/or cheating would become prima facie
difficult to invoke or even plead. This is more so, in the facts of the present
case, where the existence of the Will is not acknowledged nor is the Will
referred to or challenged in the criminal proceedings.
13) I have also noted the pleading of Respondent No.2 in paragraph 5
of the complaint, which assumes some importance. The relevant portion of
paragraph 5 of the complaint reads as under:
“5……That the complaint further states that out of affection & trust,
Mr. Mukund Cairae being the only son of the deceased was registered
as a ‘Nominee’ in few of Mutual Fund investments. That this was done
so that the accused would help in administering the funds, during his
lifetime, and afterwards, as per the deceased legacy. That the
nomination on an account does not create any right during a person’s30/44
Supriya Ghule WP-2377-2023.doclifetime or afterwords accept act as a fiduciary for the holder of the
account. That the accused was made the nominee just for
administrative purpose and no such absolute right was created in his
favor which would enable him to utilize or disposed of the said funds
vested in those investments as he would deem fit. That no such right
was ever entitled to be created in his favor by the deceased.”
14) This pleading of Respondent No. 2 indicates that, it was within
the knowledge of Respondent No. 2 that, the Petitioner was a nominee of the
deceased in respect of the mutual fund investments. Respondent No. 2 has
further herself specifically stated the reason and intention for the same, i.e.,
that the accused would help in administering the funds during the lifetime of
the deceased and afterwards as per the deceased’s legacy. In my opinion, this
pleading, to a large extent, is prima facie indicative of the fact that, the
Petitioner being the only son was at all time aware of the finances/financial
transaction of the deceased, had access to the accounts and was made
nominee with a particular intention i.e. administering funds during the
lifetime and afterwards, as per the deceased legacy.
15) The legal effect of the pleadings in paragraph 5 of the complaint,
in my considered view on a prima facie basis negates and neutralises the
aspect of criminality and/or criminal or dishonest intention. The sudden
realisation and awakening to the fact that, a criminal offence has been
committed, after being aware of and having knowledge of Will and not
referring to the same in the complaint is surprising, to say the least. This
coupled with the pleadings in the complaint clearly spells out the reasons,
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objects and intentions of Respondent No. 2. The aforesaid conduct of
intentional and deliberate suppression, the pleading/case in the complaint,
has to be kept in mind and considered with the fact that, the present
proceedings/disputes stem out of a family dispute of inheritance and
succession.
16) I shall now consider whether the offences as alleged in the FIR are at
all made out and whether the essential ingredients to make out the offences
are available and pleaded. To make out an offence under Section 403 of
dishonest misappropriation of property, it is necessarily required that a person
should (i) dishonestly misappropriate or (ii) convert to his own use any
movable property. The crux of the section is that, the act of conversion or
misappropriation to own use/benefit, is contrary to directions, agreement or
law. Considering the fact that, the properties vested in the Petitioner as
executor in a representative capacity and certain properties also stood
bequeathed to the Petitioner as a beneficiary under a Will, the Petitioner
would have a prima facie right in law to act in accordance with the Will and,
therefore, in my view there cannot be any dishonest conversion or
misappropriation. An owner cannot misappropriate his own property. The
dishonest misappropriation or the conversion to own use has to be in
derogation of the rights of the owner or in this case contrary to the directions
of the Will. Prima facie none of the ingredients of the offence is made out. It
is not the case of Respondent No.2 that, any rights contrary to the Will have
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been created. The Respondent No.2, in the FIR has for reasons best known to
her not made any reference to the Will and the probate proceedings. The Will
is not questioned or impugned in the complaint or the FIR. Considering the
fact that, certain properties have been bequeathed to the Petitioner there
cannot be any “dishonest misappropriation or converting to his own use of the
said properties” as is required under section 403 of the Indian Penal Code. It is
not the case of the Respondent No.2 that, the properties bequeathed to her
have been transferred by the Petitioner.
17) To attract Section 404 of the Indian Penal Code, there is required
to be an act of dishonest misappropriation of property possessed by the
deceased at the time of his death. The section requires that, the property is
dishonestly misappropriated or converted by the person for his own use,
knowing fully well, that such property was in the possession of the deceased
person at the time of the death of the deceased and has not since been in
possession of any person legally entitled to such possession. In the present
case, it is required to be noted that, there is a Will which is sought to be
propounded. The Petitioner, claims under a Will, of which, he is an executor
and also a beneficiary. On a reading of Section 211 and Section 307 of the
Indian Succession Act, the position of law which emerges is that, on the death
of the Petitioner’s father the Will immediately became operative and all the
property by virtue of the Will immediately vested in the Petitioner in his
capacity as an executor. The vesting is legal, immediate and complete. Once
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the vesting is complete, there cannot be a “dishonest misappropriation”. In my
considered view, section 404 of the Indian Penal Code appears to be
applicable in cases where there is no Will or when the property is of the
deceased has been misappropriated to the disadvantage of the legal heirs or
any person legally entitled to such properties or possession of such properties.
The same is not the situation or case in the facts of the present case nor is it
pleaded/alleged in that manner.
18) Section 405 and 406 of the Indian Penal Code deals with the
offence of Criminal Breach of Trust. An offence of criminal breach of trust
would be attracted only when there is entrustment of property of a person or
a person with a dominion over the property, dishonestly misappropriates or
converts to his own use that property or dishonestly uses or dispossess that
property in violation of any direction of law prescribing the mode in which
such trust is to be discharged or any legal contract. In the present case, the
entrustment to the Petitioner is the vesting under a Will in his capacity as a
executor of the Will and the legal representative. The vesting by law is the
entrustment. The most important fact to be kept in mind is that, the Petitioner
in the present case wears two hats i.e. one of an executor and the other that of
a beneficiary. This is the most crucial and distinguishing fact in the present
case. The directions are those contained in the Will. The Petitioner as the
executor, in a representative capacity is duty bound to obey the directions as
contained in the Will. Only when a case of disobedience or intentionally and
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dishonestly acting in a manner contrary to the directions of the Will is alleged,
there may be a possibility of invoking section 405 and resultantly section 406
of the Indian Penal Code. The act or conduct, ought to be in defiance of the
directions of the Will and the desire and intention of the testator. Even if the
case of Respondent No.2 is accepted a case of breach of trust cannot be made
out. In the present case, there is a Will and more importantly, the Will is not
under challenge or objected to in the FIR nor is it even referred to in the FIR.
There is no allegation that, the acts of the Petitioner are contrary to the
directions of the Will or the entrustment pursuant to the Will. Further, most
pertinent to note that, Respondent No.2 has in her complaint specifically
stated that, the Petitioner was nominee in certain mutual funds, for
administering the funds during the lifetime of the deceased and afterwards as
the per the deceased legacy. It is specifically stated that, the Petitioner had
access to the accounts and administer the funds. In my considered view this
pleading of Respondent No.2 makes the entire criminal prosecution extremely
doubtful and suspicious. This part of the pleading of Respondent No.2, has to
read and understood in the background of the facts that (i) a Probate Petition
was filed prior in point of time of the criminal complaint; (ii) Respondent
No.2 filed detailed objections thereto; (iii) Respondent No.2 suppressing in
the FIR, the fact of the existence of the Will and filing of the Probate Petition.
19) Section 420 of the Indian Penal Code, deals with the offence of
cheating. For an offence of cheating to be made out, there has to be an act of
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deceiving a person or fraudulently or dishonestly inducing a person so
deceived to deliver a property. The dishonest act or intent or dishonest
inducement has to be since the inception. In the present case, there is no
dishonest inducement even alleged by Respondent No.2. Even if the case of
Respondent No.2, is taken as pleaded in the complaint in its entirety and as it
is, a case of cheating cannot be made out. There is no detail at all of the
alleged deception. Perusal of the allegations in the complaint and FIR, the
specific case of Respondent No.2 is that, Petitioner was already a nominee in
certain mutual funds appointed for administering the funds in the lifetime of
the deceased and afterwards as per the deceased legacy. According to the
Respondent No. 2 the Petitioner has access to the accounts of the deceased.
One needs to remember the relation between the parties is that of a father
and son. If the case is accepted, the question of dishonestly inducing a person
cannot arise. In the aforestated background the allegations prima facie also do
not support the case of forgery or making of forged document or using of a
genuine document as forged. The fact of being a nominee for administering
the funds during the lifetime of deceased and thereafter as per the deceased
legacy negates and neutralises the allegations of forgery. The Respondent No.2
has stated that, the Petitioner had access to the accounts. This makes the
entire charge of forgery doubtful. The pleading in the complaint that “—–the
accused would help in administering the funds, during his lifetime, and
afterwards, as per deceased legacy” would make the entire criminal
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prosecution including the case of forgery also doubtful.
20) It is settled law that, there is a distinction between the offence of
criminal breach of trust and cheating. For cheating it is necessary that, the
dishonest intention of representation is at the inception and for criminal
breach of trust it is necessary that there should be entrustment. Entrustment
and dishonest inducement making a person to part with property are two
different and distinct concepts. In criminal breach of trust the accused is
supposedly entrusted with property which he dishonestly misappropriates and
in a case of cheating there is dishonest inducement to a person so deceived to
deliver a property. Though the ingredient of “dishonesty” finds place in both
the offences, the time, stage and manner in which the act of dishonesty comes
into operation for creating the respective offences is completely distinct and
different. Due to the said difference the offences i.e cheating and criminal
breach of trust, cannot co-exist simultaneously. In the present case, I prima
facie find that the essential ingredients for both the offences are absent.
21) Perusal of Section 211 of the Indian Succession Act indicates and
clearly envisages a position that, an executor of the estate of deceased person
is his legal representative for all purposes and that all the property of the
deceased vests in the executor. The property vest in the executor by virtue of a
Will. It is only imperative, that the acts of the executor are in line with and in
consonance with the intention of the testator and the directions as provided in
the Will. In my opinion, it would not be the correct position of law to consider
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a Will of which Probate Petition is pending as completely non-existent or to
disregard the Will only because probate is not granted and treat the property
as being inherited on intestacy and then make an attempt by suppressing the
Will to mount serious allegations of cheating, criminal breach of trust and
forgery. The act and practice of suppressing vital and relevant facts and then
initiating criminal law actions having serious adverse repercussions ought to
be curtail at the initial stages itself. Initiating criminal prosecutions by
practicing suppression cannot be permitted as it is a clear and sheer abuse of
the process of law. The executor under a Will can clearly deal with the
property and give a perfectly good title though to complete the procedural
aspects of title the probate would be required and must. Section 307 of the
Indian Succession Act, gives a power to the executor to exercise the power of
disposing the property without obtaining a probate. The administration of the
estate of the deceased has to be in accordance with the Will and cannot be
one which is incompatible to the directions under the Will. Prima facie, the
vesting of the property in the executor and the pleadings as noted in present
case, negate and neutralise the allegation that the Petitioner is guilty of the
offences as alleged in the FIR. The pleadings in the complaint, and FIR, itself
cast a doubt on the motives and intentions of Respondent No.2. In the
peculiar facts of the present case and after considering the conduct and
pleadings of the Respondent No.2, I am of the considered opinion that the
allegations contained in the FIR fail to made out any prima facie case against
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the Petitioner for the offences as alleged in the FIR.
22) The other argument advanced on behalf of Respondent No.2 was
that, criminal prosecution cannot be throttled at the initial stage merely
because civil proceedings are pending, There can be no quarrel with the said
proposition but what is important is that, the criminal prosecution which is
based on the same facts as the civil proceedings should be independently
made out. The mens rea or the required criminality of the criminal offences
should be prima facie and independently borne out by the facts. It is well
settled that, criminal law and the process thereunder should not be short
circuited only because civil proceedings are filed and pending, but at the same
time is also equally settled law that, the criminal law machinery and system
should not be allowed to be used to arm twist, and/or misused to arrive at a
pragmatic truce or a conveniently lucrative settlement of litigation. In the
present case, I find that none of the ingredients as required for initiating
and/or continuing the criminal prosecution are prima facie made out.
23) In the present case, civil proceedings are pending which
proceedings shall eventually decide the rights of the parties. This, disputes
and litigations, both civil and criminal, are between family members, in
respect of inheritance, succession to property of the testator. This is a pure
family dispute arising from succession issues. The parties have filed civil
proceedings. None of the parties including the Respondent No.2 in particular
have taken any steps in the civil litigation to protect their interest as per their
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contentions. The criminal complaint and FIR, both do not even refer to the
existence of the Will. The following facts that, a Will has been propounded,
civil proceedings i.e. a probate petition and civil suit of title are pending,
Respondent No.2 has taken her objections and filed her detailed written
statement in the Probate Petition and most importantly keeping in mind the
conduct of Respondent No.2 in suppressing in the FIR and before the Court,
the existence of a Will and filing of the probate petition clearly demonstrates
the intentions of the Respondent No.2. The conduct of Respondent No.2
would go a far way to term the present criminal prosecution as one which is
filed maliciously or with sole intention to protect personal interest or to
ensure that a larger share as per individual desires is received in the
inheritance. As observed, the pleadings of Respondent No.2 say it all and in
my opinion negates the criminality or criminal intention. To say the least, it
appears that the main dispute is between family members/legal heirs in
respect of their share in the inheritance. The FIR, appears to be off shoot of
the said inheritance dispute filed with the object of counter balancing and
pressurizing the Petitioner into a mutually convenient and acceptable
settlement.
24) In my view, the parties to protect their interest in the properties,
or the share which according to them they are entitled can approach the civil
courts and seek effectively protective orders. To misuse the criminal law
system and machinery, in personal/private disputes and issues of inheritance
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of properties, to say the least is uncalled for. In my opinion, the Succession Act
provides for sufficient checks and balances to ensure that the rights of the
legal heirs and the properties concerned, even third parties/creditors are
protected and duties and liabilities of the executors are enforced in
accordance with law. What is required, is that, a party is vigilant and takes
steps in accordance with the provisions of the Act and the law. Considering
that the main dispute is a family dispute, this Court is not making any further
observations.
25) I am of the prima facie opinion that, a pure issue of inheritance
and succession to family properties has been attempted to be converted to a
criminal offence. This aspect is not new or alien to our society. In my view the
pleadings of Respondent No.2, negate any criminality or criminal intention
and in fact exposes the underlying intention and objective of Respondent
No.2. The FIR prima facie appears to be pressure tactic and the criminal law
system appears to be misused as a weapon to settle the personal family
dispute of inheritance in a convenient manner. I have also noted that, after
filling the complaint with the Economic Offence Wing, Respondent No. 2 has
not responded to the summons issued by the Economic Offence Wing, for
recording her statement. At least this Court has not been appraised of
response/reply, if any, filed by Respondent No.2, if she agreed to record her
statement. On the other had, in the complaint, the Respondent No.2 has
alleged inaction on the part of the Commissioner of Pune or the Economic
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Offence Wing, EoW, Pune.
26) I have further noted that, Respondent No. 2, in paragraph 11 of
the complaint, has also termed the withdrawal of money from the mutual
fund as illegal and has also alleged the connivance of the officials at the
respective companies and banks. I find that, no complaint/FIR has been filed
against any of the officials of the companies or the banks, though the amount
involved is a substantial amount. When one considers this complaint, the
contents thereof and the conduct of Respondent No.2 it prima facie appears
that, the entire dispute is a family dispute pertaining to inheritance and
succession. The probate proceedings are pending, so also a civil suit in respect
of title. In my opinion, the pleadings themselves would prima facie neutralize
and negate the allegations of criminal breach of trust, cheating etc. and would
indicate that the disputes are of a purely civil nature and that there is no
element of criminality or criminal intent available.
27) Having regard to the peculiar facts of the present case and the
allegations made in the complaint and the FIR, I am of the considered view
that the allegations made therein, even if taken at their face value and
accepted in their entirety, do not prima facie disclose a commission of the
offences as alleged. Considering the facts of the present case, the attending
circumstances, the existence of a Will, pending probate petition where the
Respondent No.2 has taken her objections and still choose not to even refer to
the fact of the existence of a Will speaks volumes of the intention, to say the
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least. In such circumstances, even the factual foundation for the prosecution
to invoke the criminal law is found missing. In my view, it was the moral duty
of the Respondent No.2 to disclose to the Court the fact of the existence of the
Will and the objections taken. The importance of disclosing the complete and
correct facts while invoking the criminal law remedies, is in my opinion the
first and foremost duty and responsibility of the complainant. It is precisely for
this reason that, the Hon’ble Supreme Court has time and again emphasised
the importance and the necessity of the Affidavit which is filed in support of
the complaint.
28) In view of the above facts, I am of the considered opinion that the
facts of the present case warrant the exercise of the inherent powers of this
Court under Section 482 of the Criminal Procedure Code. A prima facie case
of quashing has been made out so as to enable this Court to exercise the
inherent powers under Section 482 of the Code of Criminal Procedure( Now
Section 528 of BNSS), to ensure that, there is no misuse of the system and
machinery of the criminal courts to serve personal objects of safeguarding
inheritance or securing a inheritance or to use the criminal justice system to
settle property disputes of inheritance and succession. Allowing the FIR, to
continue in the present form and with the present allegations would amount
to abuse of the process of law. In my considered view it will be in the interest
of justice and to secure the ends of justice that the present criminal
proceedings are quashed.
43/44
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civil proceedings and protective orders if any passed on applications which the
Respondent No.2 may file under and in accordance with law. I would also
note here that, the Petitioner, in the interest of family relations/ties and to
show his bonafides has voluntarily filed a duly notarised undertaking, dated
24th February 2026 to this Court, the relevant portion of which reads as under;
“6. I hereby voluntarily and unequivocally undertake before this
Hon’ble Court that I shall abide by the final outcome, judgment,
decree, or order that may be passed by the competent Civil Court in
Probate Application Civil M.A. No. 966/2020 and Special Civil Suit
No.1878/2023.
7. I further undertake that I shall not act in any manner contrary
to or inconsistent with the orders passed by the Civil Court in the
aforesaid proceedings.”
30) The undertaking filed on behalf of the Petitioner dated 24 th
February 2026 is taken on record as an undertaking given to this Court and
the statements made therein are accepted.
31) Considering the above facts and circumstances, I am inclined to
quash the present proceedings. In view thereof, Petition is allowed in terms of
prayer clause(a). There shall be no orders as to costs.
32) Rule is accordingly made absolute in the aforesaid terms.
(RANJITSINHA RAJA BHONSALE, J.)
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