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cria-130.20+1 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.130 OF 2020Shivprasad S/o Bankatlal Lohiya,Age-70 years, Occu:Retired,R/o-Springdal Apartment, Flat No.3,Bhakti Nagar, CIDCO, N-1,Aurangabad. ...APPLICANT VERSUS 1) The State of Maharashtra, (Through Pundaliknagar Police Station, Aurangabad,2) Subhash S/o Sambhaji Mundhe, Age-37 years, Occu:Pvt. Service, R/o-C-3, H.No.52, Town Center, Aurangabad. ...RESPONDENTS WITH CRIMINAL APPLICATION NO.1136 OF 2021Pradeep S/o Shivprasad Lohiya,Age-45 years, Occu:Advocate,R/o-Springdale Apartment, Flat No.3,Bhakti Nagar, CIDCO, N-1,Aurangabad. ...APPLICANT VERSUS 1) The State of Maharashtra, (Through Pundaliknagar Police Station, Aurangabad, cria-130.20+22) Subhash S/o Sambhaji Mundhe, Age-37 years, Occu:Pvt. Service, R/o-C-3, H.No.52, Town Center, Aurangabad. ...RESPONDENTS ... Mr. Sohail Subhedar Advocate h/f. Mr. N.S. Ghanekar Advocate for Applicant in both Applications. Mr. S.A. Gaikwad, A.P.P. for Respondent No.1 in both Applications. Mr. S.B. Munde Advocate for Respondent No.2 in both Applications. ... CORAM: SMT. VIBHA KANKANWADI AND R.W. JOSHI, JJ. DATE : 6th JANUARY, 2025 ORDER [PER SMT. VIBHA KANKANWADI, J.] :1.The applicants are the father and son, who prayed forquashment of the proceedings in R.C.C. No.412 of 2020 pendingbefore the learned Judicial Magistrate First Class, Aurangabad forthe offence punishable under Sections 406, 420, 504, 506 readwith Section 34 of the Indian Penal Code arising out of the FirstInformation Report (for short “the FIR”) vide Crime No. 327 of2018 registered with Pundliknagar Police Station, Aurangabad,lodged at the behest of respondent No.2. cria-130.20+32.Heard learned Advocate Mr. Subhedar holding for learnedAdvocate Mr. Ghanekar, learned APP Mr. Gaikwad for respondentNo.1 and learned Advocate Mr. Munde for respondent No.2. Inorder to cut short, it can be stated that the learned Advocatesfor the respective parties have argued in support of theircontentions.3.Perusal of the FIR would show that respondent No.2 hadentered into oral agreement on 16th June 2016 in respect of sellof flat situated at Kumbhephal with applicant for Rs.12,00,000/-.At that time three Advocates were witnesses. Applicant Pradeepis also an Advocate by profession. Informant says that he gavean amount of Rs.5,00,000/- in cash to applicant Pradeep. Theflat which was agreed to be sold, was in a constructed apartmentin Plot No.8, Gut No.40 of Mahendrakumar Soni. Copies ofdocuments in the name of Mahendrakumar Soni in respect of theplot were given to him. Thereafter informant went to the spot,whereupon he found that the apartment was constructed. He,therefore, met Mahendrakumar Soni and made inquiry in respectof the flat. At that time informant came to know that applicantPradeep has booked the flat in the said apartment, however,there is outstanding amount of Rs.7,00,000/-. Therefore, theinformant demanded the amount of Rs.5,00,000/- back from the cria-130.20+4applicant Pradeep. In repayment of the same, applicant Pradeepissued the cheque on 5th March 2017 drawn on I.D.B.I. Bank forRs.3,50,000/-. The said cheque got dishonoured. Thereafter theinformant was demanding the amount from the applicantPradeep continuously. Applicant Pradeep then promised that hewould pay the amount in his house on 24th February 2018.Informant along with his cousin brother, went to the house of theapplicant Pradeep. The door was opened by the applicantShivprasad – father and asked the informant as to what was thework. Informant told that applicant Pradeep had called him fortaking the amount of Rs.5,00,000/-. According to the informant,then applicant Shivprasad started abusing the informant and hisbrother and gave threats to kill and drove the informant and hisbrother out of the house. Informant says that the applicantPradeep had promised to sell the flat and accepted the amountof Rs.5,00,000/- but still he was not registering the flat in thename of informant nor returning the amount and therefore, hehas cheated the informant.4.Perusal of the contents of the charge-sheet would showthat there is only supporting statement of the cousin brother ofthe informant in respect of alleged incident that had taken placeon 24th February 2018. There are statements of Advocate Ravi cria-130.20+5Kendre, Advocate Avinash Bangar and Advocate Raju Kasture,who were allegedly present when the oral agreement wasentered into. All of them have not taken the name of applicantShivprasad. Therefore, there is no question of the involvement ofapplicant Shivprasad in the transaction of sell of flat andtherefore, there is no question of cheating. In respect of the saidincident dated 24th February 2018, there was no immediatelodging of the report by the informant. Whatever FIR has beenlodged now, was on 27th November 2018. That means it is afterthe period of about nine months. On the contrary, it appears thatapplicant Shivprasad has lodged the FIR vide Crime No.37 of2018 on 24th July 2018 for the offence punishable under Sections452, 323, 504, 506 read with Section 34 of the Indian PenalCode, against the present informant and his cousin brother aswell as two unknown persons, in respect of incident dated 24thFebruary 2018. Though it is also belated, it is certainly prior tothe present FIR. Therefore, certainly case is made out forexercise of powers under Section 482 of the Code of CriminalProcedure, to be exercised in favour of applicant Shivprasad. 5.Now, as regards the case against applicant Pradeep isconcerned, even if we taken the contents of the FIR as it is, it isto be noted that there was oral agreement to sell in respect of cria-130.20+6which amount of Rs.5,00,000/- is stated to be given as earnestamount. Now it appears from the contents that when informantcame to know that amount of Rs.7,00,000/- was outstanding i.e.to be paid by applicant Pradeep to Mahendrakumar Soni, hedemanded his earnest money back. This can only happen uponimplied cancellation of the agreement. Informant had not lodgedany suit for specific performance of the contract. He acceptedthe cheque as part payment towards the repayment ofRs.5,00,000/-. The said cheque was drawn on I.D.B.I. Bankdated 5th March 2017, for Rs.3,50,000/-. The informant has notstated as to what action he had taken after he received theinformation that the cheque has been dishonoured. The normalcourse for such a person would be to send statutory notice underSection 138 of the Negotiable Instruments Act and ultimately tolodge complaint for the said offence. No such steps appears tohave been taken by the informant. He then cannot say that theapplicant Pradeep is not executing the sale deed in his favour.When he himself had decided to cancel the agreement andaccepted the part repayment of the earnest amount, he cannotinsist upon the registration of the document. It appears that theremedy for him was to get the recovery of the amount. But heappears to have gone to the house of the applicant Shivprasad cria-130.20+7with some ulterior motive. Even on that day the action underSection 138 of the Negotiable Instruments Act was barred.Further, when he had accepted the cheque as part repayment ofthe earnest amount, dishonour of the said cheque per se will notamount to cheating or keeping that amount with applicantPradeep would not amount to criminal breach of trust. There wasno question of the domain of the said property. Unnecessarilythe civil transaction is tried to be projected as having element ofcriminal nature and therefore, even in favour of applicantPradeep inherent powers are required to be used. 6.It would be unjust to ask both the applicants to face thetrial with such evidence on record. Hence, we pass followingorder:- O R D E R(I)Both the Applications i.e. CriminalApplication No.130 of 2020 and CriminalApplication No.1136 of 2021 stand allowed.(II)The proceedings in R.C.C. No.412 of 2020pending before the learned Judicial Magistrate First cria-130.20+8Class, Aurangabad for the offence punishableunder Sections 406, 420, 504, 506 read withSection 34 of the Indian Penal Code arising out ofthe First Information Report vide Crime No. 327 of2018 registered with Pundliknagar Police Station,Aurangabad, stands quashed and set aside asagainst applicant – Shivprasad S/o BankatlalLohiya and applicant – Pradeep S/o ShivprasadLohiya. [R.W. JOSHI] [SMT. VIBHA KANKANWADI] JUDGE JUDGE asb/JAN25