High Court

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11612.2023APPLN.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.CRIMINAL APPLICATION NO. 1612 OF 20231.Prakash S/o Baliram DhageAge : 49 years, Occ : Labour, 2.Chaya W/o Prakash DhageAge : 47 years, Occ : Household, Both R/o Sadashiv Nagar, Khadgaon Road, Latur, Tq. & Dist. Latur. ..APPLICANTS -VERSUS-1.The State of MaharashtraThrough Police Inspector, Police Station, M.I.D.C., Latur, Tq. & Dist. Latur 2.Jijabai W/o Tukaram DhaleAge : 55 years, Occ : Nil, R/o Marwadigalli, Nilanga, Tq. Nilanga, Dist. Latur. ..RESPONDENTS...Advocate for the applicants : Mr. N.T. Tribhuwan APP for Respondent- State : Mrs. R.P. Gour Advocate for respondent No.2 : Mr. A.A. Kokad …CORAM :SMT. VIBHA KANKANWADI ANDROHIT W. JOSHI, JJ. DATED : 7th JANUARY, 2025024.JUDGMENT (PER ROHIT W. JOSHI, J.) :.The Applicants in the present matter are husband and wife.They are arrayed as Accused Nos.5 and 6 in F.I.R. No.31/2023registered with M.I.D.C. Police Station, Latur, Dist. Latur on 16.01.2023 21612.2023APPLN.odtfor offences punishable under Sections 420, 465, 467, 468, 471 readwith Section 34 of the Indian Penal Code (I.P.C.). Respondent No.2 isthe informant. 2.The controversy in the matter pertains to a piece of land,being plot no.13 admeasuring 1500 Sq. Ft. located in Gut No.106 ofvillage Pakharsangavi, Tq. & Dist. Latur. The applicants are residing inplot no.13 and are accordingly in possession thereof. According to theapplicants, the said plot no.13 was purchased by Somnath Waghmare,father of Applicant No.2 / Accused No.6 and father-in-law of ApplicantNo.1/Accused No.5 from one Dayaram Atmaram Singhan, videregistered sale deed no.1562/2007 dated 30.03.2007. The applicantsstate that they have purchased the said plot from Somnath Waghmare,vide registered sale deed dated 13.03.2009 bearing No.252/2009. Theapplicants obtained building permission dated 22.03.2024 from GramPanchayat, Pakharsangavi for construction of house on the said plot.3.Respondent No.2 has lodged F.I.R., as aforesaid on16.01.2023. The F.I.R. pertains to two adjoining plots i.e. plot nos.12and 13. The present applicants are in possession of plot no.13. Theversion of Respondent No.2, as is apparent from the contents of F.I.R., isthat vide registered sale deed no.1534/2004 dated 15.03.2004, she has 31612.2023APPLN.odtpurchased plot nos.12 and 13 from one Dayaram Atmaram Singhan.She states that she and her husband used to visit the plots regularly.Thereafter, since her husband was suffering from Cancer from the year2017, they could not visit the plots regularly. Respondent No.2 hasstated that her husband expired on 28.10.2021. Some time after thedemise of her husband, Respondent No.2 visited the plots with her sonand found that there was structure with tin shed on the said plots. Shestates that on inquires with the occupant, he disclosed his name asPrakash Dhage i.e. Applicant No.1. Respondent No.2 and her son madeinquires with the office of Talathi and Sub-Registrar and found that oneNanasaheb Raosaheb Chavan had purchased the same plot nos.12 and13, vide sale deed dated 19.12.2017, bearing no.4902/2017. In the saidsale deed, Respondent No.2 is shown as vendor. Respondent No.2 statesthat she did not execute the sale deed dated 19.12.2017. According toher, some person had impersonated herself as vendor and executed thesaid sale deed dated 19.12.2017 in favour of Nanasaheb Chavan. ThisNanasaheb Chavan is arrayed as Accused No.1 in the F.I.R. The wife ofAccused No.1 namely Kalpana Chavan and one Nanasaheb Waghmarehave signed the sale deed as attesting witnesses. These two attestingwitnesses are arrayed as Accused Nos.2 and 3. One Sagar Bade isarrayed as Accused No.4. It is stated in the F.I.R. that he is a person,who acted as broker in the transaction of sale and purchase of plots. 41612.2023APPLN.odtRespondent No.2 has stated that Accused No.1 purchaser and AccusedNo.4 Agent had provided the sale deeds and other documents formutation of name of Accused No.1 Nanasaheb Chavan on the basis ofbogus sale deed dated 19.12.2017. The F.I.R is silent with respect tosale deed dated 30.03.2007 executed by Dayanand Singhan in favourof Somnath Waghmare, father-in-law of Applicant No.1. Sale deed isalso silent with respect to subsequent sale deed dated 13.03.2009under which Applicant No.1 has purchased the said plot no.13 from hisfather-in-law Somnath Waghmare. The allegation against theApplicants is that they are in wrongful possession of the said plots andwhen Respondent No.2 and her son inquired with them about theirpossession, they stated that plot belonged to Accused No.1 NanasahebChavan. It is alleged that the present Applicants have acted in collusionand conspiracy with Accused Nos.1 to 4 in order to wrongfully usurpthe said plot and deprive Respondent No.2 of the same.4.Shri N.T. Tribhuwan, learned counsel for the Applicantssubmits that Applicant No.1 is bonafide purchaser of plot no.13, whichhe has purchased from his father-in-law under a registered sale deeddated 13.03.2009. He states that his father-in-law was also bonafidepurchaser of the said plot, who had purchased the same from DayanandSinghan, vide registered sale deed dated 30.03.2007. He points out that 51612.2023APPLN.odtthe F.I.R. is completely silent with respect to the sale deed executed byDayanand Singhan in favour of father-in-law of Applicant No.1 fromwhom Applicant No.1 has purchased the said plot no.13. He furtherpoints out that Dayanand Singhan is not even arrayed as accused. Hestates that even if all the contents of the F.I.R are assumed to be correct,it is apparent that he is in fact victim of offence of cheating, in as muchas, if all the allegations in the F.I.R. are assumed to be correct, he hasbeen made to part with money towards purchase of a plot, which wasalready sold by the original owner Dayanand Singhan to RespondentNo.2. He states that even if all the allegations in the F.I.R. are taken ontheir face value, no offence is made out against Applicant Nos.1 and 2and as such, F.I.R. deserves to be quashed.5.As against this, Mrs. R.P. Gour, learned APP appearing forRespondent No.1 and Shri A.A. Kokad, learned counsel appearing forRespondent No.2 strenuously opposed the application. They state thatRespondent No.2 had already purchased plot nos.12 and 13 fromDayanand Singhan, vide registered sale deed dated 15.03.2004. Theystate that a registered document amounts to public notice to all.According to them, it is inconceivable that the father-in-law ofApplicant No.1 as also Applicant No.1, who has purchased plot no.13from him were not aware about the prior sale deed dated 15.03.2004. 61612.2023APPLN.odtThey state that there is deep state conspiracy in the matter, in as muchas, property belonging to Respondent No.2 was sold vide sale deeddated 19.12.2017 by some impostor posing to be Respondent No.2.6.We have also perused the affidavit-in-reply filed byRespondent No.2. In the said affidavit also she does not disputegenuineness of the sale deed dated 30.03.2007. She challenged the saledeed dated 30.03.2007 on the ground that the same could not havebeen executed in view of the prior sale deed dated 15.03.2004 in herfavour. She then states that the father-in-law and vendor of ApplicantNo.1 has maliciously purchased plot no.13 from Somnath Waghmare.7.Having heard the rival submissions and on perusal of therecord, we are of considered opinion that the application deserves to beallowed. It is apparent that the principal grievance of Respondent No.2is with respect to sale deed dated 19.12.2017, which is executed infavour of Accused No.1 – Nanasaheb Chavan. Respondent No.2 claimsthat she has not executed the sale deed in favour of Nanasaheb Chavanalthough her name appears as vendor. According to her, the sale deedwas got executed through some impostor posing as Respondent No.2.Perusal of the F.I.R. will indicate that the principal allegation andgrievance in the F.I.R. is with respect to the alleged bogus sale deed 71612.2023APPLN.odtdated 19.12.2017. The allegations with respect to the said sale deed areagainst Accused Nos.1 to 4. As against the present Applicants i.e.Accused Nos.5 and 6, the allegation in the F.I.R. is that they are inpossession of the property through Accused No.1. It is alleged that onthe first occasion when Respondent No.2 and her son found thatAccused Nos.5 and 6 were in possession of plot no.13, they hadinformed that the said plot was owned by Accused No.1. The allegationin the F.I.R. is that Accused Nos.5 and 6 are holding possession ofproperty of Accused No.1. On the basis of these allegations, it is allegedthat there is conspiracy between all the Accused persons includingpresent Applicants to deprive Respondent No.2 of the propertybelonging to her and wrongfully usurp the same.8.There are no allegations in the F.I.R. with respect to saledeed dated 30.03.2007 under which Somnath Waghmare vendor ofApplicant No.1/Accused No.5 has purchased plot no.13. Likewise, F.I.R.is also silent with respect to sale deed dated 13.03.2009 under whichApplicant No.1 has purchased the said plot no.13.9.It appears from the record that the vendor of RespondentNo.2 initially sold both plot nos.12 and 13 to Respondent No.2, videsale deed dated 15.03.2004. The vendor of Respondent No.2 thereafter 81612.2023APPLN.odtagain sold plot no.13 to Somnath Waghmare, vide sale deed dated30.03.2007. This Somnath Waghmare, who has executed two saledeeds with respect to plot no.13 is not arrayed as accused. There are noallegations against him in the F.I.R. Although, the charge-sheet is notfiled, we had perused the police papers. The police papers do notindicate that in the subsequent statements, Respondent No.2 or her sonhave levelled any allegations against Somnath Waghmare or DayanandSinghan. The sale deed dated 30.03.2007 is placed on record by theApplicants along with the present application. Genuineness of the saidsale deed is not questioned by Respondent No.2 in her affidavit. Thesaid sale deed also collected by the prosecution during the course ofinvestigation as was found from the police papers. Learned APP hasalso not canvassed during the course of arguments that sale deed dated30.03.2007 is a bogus document. Learned APP and learned counsel forRespondent No.2 have opposed the application on the ground thathaving executed the sale deed with respect to plot no.13 in favour ofRespondent No.2 on 15.03.2004, her vendor Dayanand Singhan couldnot have sold the same property under a subsequent sale deed dated30.03.2007 to Somnath Waghmare, vendor and father-in-law ofApplicant No.1. This again goes on to show that the grievance if anyshould be against Somnath Waghmare. 91612.2023APPLN.odt10.In the light of aforesaid, we are of considered opinion thatno case is made out against the present Applicants for the offencesmentioned in the F.I.R. The Applicants cannot be held responsible forthe offence of cheating under Section 420 of the IPC. It also cannot besaid that the Applicants have committed forgery much less for thepurpose of cheating or used the forged document as genuine document.Prosecution has miserably failed to make out ingredients of Sections465, 467, 468, 471 and 420 of the IPC. The F.I.R. does not disclose anyoffence against the present Applicants. The dispute between the partiesis purely civil dispute. Respondent No.2 is not justified in invokingpenal provisions against the present Applicants with respect to her civilrights qua plot no.13, which is in possession of the Applicants. 11.Above observations are made only in order to determine asto whether the Applicants can be held prima facie responsible for thesections under which F.I.R. is registered against them. The aboveobservations are not made in order to determine any claims withrespect to the property in question. The parties may agitate the matterwith respect to right, title, interest over the property in question beforeappropriate Forum.12.However, we are of considered opinion that a civil dispute 101612.2023APPLN.odtis given a criminal colour, which is completely unjustified and amountsto abuse of the legal process. In the light of the above observations, weare of the considered opinion that undisputed material on record doesnot disclose any offence against the Applicants. The F.I.R. is thereforeliable to be quashed against the Applicants. Hence the order :-ORDER(i)The application is allowed.(ii)F.I.R. No.31/2023 registered with M.I.D.C. Police Station, Latur,Dist. Latur on 16.01.2023, for the offences punishable under Sections420, 465, 467, 468, 471 read with Section 34 of the Indian Penal Codeis hereby quashed against Applicant No.1 - Prakash S/o Baliram Dhageand Applicant No.2 - Chaya W/o Prakash Dhage.[ROHIT W. JOSHI][ SMT. VIBHA KANKANWADI] JUDGEJUDGEsga/