Mukund Ashok Cairae vs State Of Maharashtra And Anr on 30 June, 2026

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    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.

    SPONSORED

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    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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    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.”

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    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 the

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    executor 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)

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    “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 appreciation

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    may 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

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    itself 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 among

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    only 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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    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.

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    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.

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    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
    
    
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    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’s

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    lifetime 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.

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    29)             The rights of Respondent No.2, if any, would be protected by the
    
    

    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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