SHAILENDRA MADAN MALARA v. THE STATE OF MAHARASHTRA AND OTHERS
Legal Reasoning
908-Cri-WP-1005-2024*.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD908. CRIMINAL WRIT PETITION NO. 1005 OF 2024SHAILENDRA MADAN MALARA VERSUS THE STATE OF MAHARASHTRA AND OTHERS .…Mr. A. P. Bhandari, Advocate h/f Mr. A. P. Nahar, Advocate for thePetitioner .…CORAM: Y. G. KHOBRAGADE, J.DATE:23.10.2024PER COURT :- 1.Heard Mr. A. P. Bhandari, learned Advocate for thePetitioner.2.By the present Petition under Article 227 of theConstitution of India read with Section 482 of the Code ofCriminal Procedure, the Petitioner/original complainant takesexception to the order dated 10.01.2024 passed by the learnedAdditional Sessions Judge, Aurangabad (Court No.6), in CriminalRevision Application No. 191 of 2021, whereby the learnedAdditional Sessions Judge, affirmed the order of dismissal ofRegular Criminal Case (R.C.C.) No.1655 of 2018 u/s 203 of theCode of Criminal Procedure, passed on 27.02.2020, by the learnedChief Judicial Magistrate, Aurangabad. 1 of 10
Legal Reasoning
(( 2 )) 908-Cri-WP-1005-2024*3.Mr. Bhandari, learned Advocate for the Petitionercanvassed in vehemence that, one Mangilal Balchand Katariatransferred plot No. 10 admeasuring 139.5 sq.mtr., in favour ofRespondent No. 2 Sou. Kalpana Rameshkumar Kasliwal under theregistered sale-deed dated 01.12.1994. Subsequently, the presentPetitioner Shri Shailendra Madan Malara along with one AshwinAshok Jain, purchased plot Nos. 9 and 10 from the Respondent Nos. 2and 3 under the registered sale-deed dated 28.04.2011. Theboundaries of plot No. 9 described as under:Towards East-Plot Nos. 85 and 86Towards West-15 meter roadTowards South-Plot No.10Towards North-Plot No.8 4.In sale-deed, the boundaries of plot No.10 described asunder:-Towards East-Plot Nos. 84 and 85Towards West-15 meter roadTowards South-Plot No.11Towards North-Plot No.9 2 of 10 (( 3 )) 908-Cri-WP-1005-2024*5.The learned Advocate for the Petitioner canvassed that atthe time of agreement, the Respondent Nos. 2 and 3 have showndemarcated layout plan, which attached with the registered saledated 28.04.2011. Thereafter the petitioner obtained copy of planfrom the Municipal Corporation and verified the layout plan with theplan attached with the sale deed. Thereafter, for the first time thepetitioner discovered about mismatch of boundaries of both the plotswith the tentative layout plan and the plan attached with the Sale-Deed dated 28.04.2011. Therefore, the Respondent Nos. 2 and 3 haveplayed fraud and dishonestly induces the Petitioner/complainant topurchase the said plot.6.The learned counsel for the petitioner further submitsthat, the Respondent Nos. 2 and 3 have sold plot Nos. 9 & 10 out ofunauthorised layout plan by deceiving him and falsely representedthat both the plots are having sanctioned layout. Further, descriptionof the boundaries of both the plots described in the sale-deed dated27.10.1993 mismatch with each other. Therefore, the Petitioner hadapproached the Respondent Nos. 2 and 3 for the correction of layoutplan in consonance with the sale-deed, but the Respondent Nos. 2 3 of 10 (( 4 )) 908-Cri-WP-1005-2024*and 3 failed to correct the map. Therefore, on 17.06.2018, thePetitioner lodged the report with Kranti Chowk Police Station,Aurangabad. However, the Police Authority failed to take thecognizance. 7. Therefore, the Petitioner filed a private complaint R.C.C.No. 1655 of 2018 and thereby prayed for taking punishment to theaccused persons/ Respondent Nos. 2 and 3 for the offence punishableunder Sections 417, 420, 406, 409, 471, 120-B read with Section 34of the Indian Penal Code.8.It further canvassed that, though the learned Magistratecalled the inquiry report under Section 202 of the Code of CriminalProcedure vide order dated 26.07.2019 from the concerned PoliceStation. The Police Inspector of Kranti Chowk Police Station,submitted it’s report on 27.02.2020, however, the learned Magistratefailed to considered said report. Therefore, impugned order is illegaland bad in law, hence, prayed to quash and set aside the same. 9.It is a matter of record that, the learned Magistrate passedan order below Exh.1 and called report under Section 202 of the 4 of 10 (( 5 )) 908-Cri-WP-1005-2024*Code of Criminal Procedure from the concerned Police Station.Accordingly, the Police Inspector attached with the Kranti ChowkPolice Station, submitted it’s report on 24.07.2019 before the learnedtrial Court. Thereafter, on 27.02.2020, the learned trial Court passedan order and thereby dismissed the complaint under Section 203 ofthe Code of Criminal Procedure. 10.The learned trial court held that, though thecomplainant/Petitioner alleged that at the time executing the sale-deed, the accused shown bogus and fabricated map instead oftentative approved map by the Municipal Corporation. However, thesale-deed was executed in the year 2011 and copy of 7/12 extract,copy of map attached with the sale deed. It is further observed that itis the cardinal principle that while purchasing the property, it is theduty of the purchaser to verify the documents first. Apart from thecontents of the complaint, so also, the dispute between the Petitionerand Respondent Nos. 2 and 3 is of civil nature. 11.Being aggrieved by the said order, the Petitioner/complainant invoked revisional jurisdiction u/s 397 of the Code ofCriminal Procedure, by filing Criminal Revision Application No. 191 5 of 10 (( 6 )) 908-Cri-WP-1005-2024*of 2011 before the learned Additional Sessions Judge (Court No.6),Aurangabad. On 10.01.2024, the learned Sessions Judge passed theimpugned order and dismissed the Revision. The learned SessionsJudge held that though the complainant/Petitioner alleged aboutpreparation of false map by the Respondent Nos. 2 & 3, but thecomplainant no where mentioned in his complaint about what is thedifference in tentative approved map supplied by the MunicipalCorporation and the map attached with the sale-deed. ThePetitioner/complainant was having opportunity to verify the mapbefore entering into the sale-deed, but the petitioner was not vigilant.12.It is not in dispute that, on 28.04.2011, the Petitioner andone Mr. Ashwin Ashok Jain, purchased the plot Nos. 9 and 10 fromRespondent Nos. 2 and 3 under the registered sale-deed. As per therecital of the sale-deed, the boundaries of Plot Nos. 9 and 10described herein above. Thereafter, the Petitioner obtained tentativelayout plan in respect plot Nos. 9 & 10 from the concern office.Thereafter, the complainant came to know about mismatch ofboundaries of both the plots with the tentative plan supplied by theMunicipal Corporation and the plan attached with the sale deed. 6 of 10 (( 7 )) 908-Cri-WP-1005-2024*13.Needless to say that the Police Inspector of Kranti ChowkPolice Station, submitted it’s report under Section 202(3) of the Codeof Criminal Procedure, however, the learned Magistrate did not acceptthe said report because, the sale-deed was executed in the year 2011and 7/12 extract, layout map were attached with the sale-deed.Therefore, prior to execution of registered sale deed, thepurchaser/petitioner could have verify the documents and sanctionedlayout plan from the competent authority apart from the contents ofthe complaint, however, the petitioner /complainant was not vigilantand without verifying the sanctioned plan and layout plan shown tohim, he executed the sale-deed. On perusal of record, it does notreveal that Respondent Nos. 2 and 3 have manufactured or tamperedwith any documents attached with the sale-deed subsequent toexecution of the sale deed.14. In order to constitute an offence punishable underSection 417 of the Indian Penal Code, it is necessary on the part ofthe complainant to make averment to prima-facie constitute theoffence that the Respondent Nos. 2 and 3 knowingly and intentionallyeither by substitution or representing that he or she to any person 7 of 10 (( 8 )) 908-Cri-WP-1005-2024*than the other person. In order to constitute the offence punishableunder Section 420 of the Indian Penal Code, it is necessary to pleadessential ingredients that the Respondent Nos. 2 and 3 by cheating ordeception, induced to deliver any property or though consented toretain any property, the respondents intentionally induced thecomplainant to purchase Plot Nos. 9 and 10. 15.The learned counsel for the petitioner invited myattention to the illustration (c) to the Section 415 of I.P. C., whichreads as under:(c)A, by exhibiting to Z a false sample of an article, intentionally deceived Z into believing that the article corresponds with the sample, and thereby dishonestly induces Z to by and pay for the article. A cheats.16.Therefore, considering the illustration in plain meaning itdepicts that, the plot No. 9 & 10 are not articles. The Respondents 2 &3 were owner of plot nos. 9 & 10 not disputed and both the plots arestill in existence. Since the Respondents agreed to sell the plots andpetitioner agreed to purchase the plots, therefore, registered sale deedwas executed. The averments in the complaint also does not showthat the Respondent Nos. 2 and 3 falsely represented about ownership 8 of 10 (( 9 )) 908-Cri-WP-1005-2024*of the plot. As per the provisions of Maharashtra Land Revenue Codecoupled with the provisions of the Maharashtra Regional TownPlanning Act, the layout cannot be laid on any land without priorpermission or sanction from the competent authority. 17. On perusal of complaint it appears that the RespondentNos. 2 and 3 were purchase the plot Nos. 9 and 10 from oneMangilal Balchand Kataria and on the basis of that sale-deed, theRespondent Nos. 2 and 3 agreed to sell the plots in question to thePetitioner and Mr. Ashwin Ashok Jain. It is not the case of thepetitioner that Respondent Nos. 2 and 3 are the owner of layout andthey prepared false and fabricated map attached with the sale deed.Therefore, prior to entering into an agreement to sell or even prior togetting the sale deed registered, the Petitioner was having ample ofopportunities to verify the relevant documents, map and record.Considering the location, width of the road etc., he could have agreedto purchase the plots. The main grievance of the petitioner is aboutmismatch of width of the road and four-corner of the plot, however,the petitioner not disputed about non-existence of plot Nos. 9 and 10in same layout. Therefore, said dispute does not fall within the ambit 9 of 10
Decision
(( 10 )) 908-Cri-WP-1005-2024*of Section 415 (c) of the Indian Penal Code, but it is purely a disputeof civil nature, which may be ventilated before the competent Court.Therefore, I do not find that the impugned order is perverse, illegal orbad in law and no substantial grounds are set out to interfere with thefindings. Therefore, the Writ Petition is dismissed. [ Y. G. KHOBRAGADE, J. ] SMS 10 of 10