Mr.Ashwin v. Hon

Legal Reasoning

11836.2023APPLN.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.CRIMINAL APPLICATION NO.1836 OF 2023 Pankaj S/o Sambhaji Kate Age : 45 years, Occ : Business, R/o Prakash Nagar, Latur, Tq. & Dist. Latur. ..APPLICANT-VERSUS-1.The State of MaharashtraThrough Police Inspector, MIDC Police Station, Latur, Tq. & Dist. Latur. 2.Kapil S/o Bhaskarrao RitpureAge : 37 years, Occ : Agri., R/o Mangrul, Tq. Kallam, Dist. Osmanabad At present Engineering Colony, Old Ausa Road, Latur. ..RESPONDENTS...Advocate for Applicant : Mr. Manoj D. Shinde APP for Respondent- State : Mr.A.M. Phule Advocate for Respondent No.2 : Mr.Ashwin V. Hon...CORAM :SMT. VIBHA KANKANWADI ANDR.W.JOSHI, JJ.DATED : 22 NOVEMBER, 2024.JUDGMENT (PER R.W. JOSHI, J.) :.Present criminal application is filed under section 482 ofthe Code of Criminal Procedure, 1973 (Hereinafter referred to as 21836.2023APPLN.odt“Cr.P.C.” for brevity), inter alia, praying to quash F.I.R. bearing CrimeNo.390/2022 registered with MIDC Police Station, Dist. Latur, for theoffence punishable under sections 420, 465, 467, 468, 471 read withsection 34 of the Indian Penal Code (Hereinafter referred to as “IPC”for brevity), and Regular Criminal Case No. 1824/2022 pending beforethe learned 3rd Judicial Magistrate, First Class, Latur, which isregistered in pursuant to the charge-sheet bearing No. 376/2022 dated23.11.2022 filed under section 173 of the Cr.P.C. upon completion ofthe investigation pursuant to the said F.I.R. 2.Respondent No.2 is the informant, who has lodged theFIR with respondent No.1. The grievance ventilated in the FIR is inrespect of a immovable property being plot of land bearing plot No.1 inSurvey No.44/1A of village Khadgaon, Tahsil Latur, District Latur, whichis now included within the limits of Municipal Council, Latur. The saidplot is hereinafter referred to as “subject plot” for brevity.3.Respondent No.2 has stated in the FIR that his motherlate Jaishree Bhaskarrao Ritpure had purchased the subject plot fromlate Chanappa Tukappa Shette vide registered sale deed dated25.05.1989. He states that the same plot is again purchased by theapplicant from Malikarjun Chanappa Shette under sale deed dated07.12.2010. The allegation in the FIR is that the order of non- 31836.2023APPLN.odtagricultural assessment dated 27.08.1987 bearing No.NA/LTR/574/87has been tampered for the purpose of sale deed dated 07.12.2010executed in favour of the applicant. The allegation is that instead ofsurvey No.45, survey No.44 is mentioned in the N.A. Order andinstead of name of Mr. Kumar, the name of Malikarjun is mentionedtherein. The informant states that by such fabrication of N.A. Order, theproperty which was purchased by his mother and is now owned by himis sold by Malikarjun, accused No.2 to the applicant - accused no.1 forconsideration of Rs.5,30,000/- vide sale deed dated 07.12.2010. Theother two accused persons are witnesses to the sale deed dated07.12.2010. Accused No.2 i.e. vendor of the applicant is son of thevendor of the mother of respondent No.2 – informant.4.The FIR contains a statement that there is delay in lodgingthe report, since the matter pertaining to the subject plot was pendingadjudication before the Civil Court from 2011 to 2015.5.Before coming to the merits of the matter, in order tocomplete narration of facts it may be stated here that a suit, beingRegular Civil Suit No.176/2011, was filed by Jaishree BhaskarraoRiture, deceased mother of the informant along with her three sonsnamely Kunal, Kapil (informant) and Gaurav against the applicant(accused No.1) and accused No.2. The suit was filed for seeking 41836.2023APPLN.odtperpetual injunction restraining the defendants therein i.e. accusedNos.1 and 2 from disturbing possession of the plaintiff over the subjectplot.6.The suit was filed on 23.03.2011 and was dismissed videjudgment and decree dated 27.02.2013. Appeal preferred by theplaintiff including the informant being Regular Civil Appeal No.77/2013came to be allowed vide judgment and decree dated 16.01.2015passed by the learned District Judge-2, Latur. The present applicanti.e. accused No.1 preferred a Second Appeal challenging the appellatedecree dated 16.01.2015, in which the learned Single Judge of thisCourt was pleased to remand the matter before the learned trial Court,for fresh adjudication by directing to frame an issue with respect toidentification of the subject plot. The judgment and decrees passed bythe learned trial Court and the learned first appellate Court have beenset aside in Second Appeal. The said Second Appeal is decided videorder dated 11.08.2022. It is informed by the parties that the Civil Suitis still pending. Apart from this, there is also litigation between theparties with respect to mutation entries regarding subject plot.7.In this backdrop, it may be noted that FIR has been lodgedon 16.07.2022 i.e. approximately a month before 11.08.2022 i.e. thedate on which Second Appeal came to be decided. 51836.2023APPLN.odt8.Based on the FIR, offence has been registered against thepresent applicant/accused No.1, who is purchaser, his vendor accusedNo.2 and attesting witnesses to the sale deed, who are arrayed asaccused Nos.3 and 4.9.Mr.M.D. Shinde, learned counsel for the applicant submitsthat the applicant is invoking Section 482 of the Cr.P.C., on thegrounds that the dispute between the parties is purely a civil disputeand none of the provisions under which the offence is registered areattracted in the facts of the case warranting quashing of the FIR andcriminal case initiated pursuant to the said FIR.10.Per contra, Mr.A.M. Phule, learned APP appearing forrespondent no.1 and Mr.Ashwini Hon, learned counsel for respondentNo.2 contend that the order of non-agricultural assessment has beentampered for the purpose of execution and registration of the saledeed dated 07.12.2010 executed by accused No.2 in favour of thepresent applicant/accused No.1. They contend that fabrication ofdocument for the purpose of cheating respondent No.2-informant ismade and as such, all the provisions under which the offence isregistered relating to fabrication of documents and cheating areattracted in this case. They further state that merely because the 61836.2023APPLN.odtdispute between the parties has a civil dimension, criminal proceedingcannot be quashed, in as much as, a person, who has committedcriminal offence cannot be exonerated merely on the ground that civilremedy can also be invoked.11.We have heard learned counsel appearing for therespective parties, perused the FIR and charge-sheet and documentsfiled by the prosecution along with the charge-sheet. We have alsoperused the judgments delivered by the learned Courts in civilproceeding relating to the subject plot.12.The principal contention of the respondents is that theorder of non-agricultural assessment is fabricated. The fabrication ofthe said document is for the purpose of depriving respondent No.2 andhis brothers of the immovable property. They contend that offence offorgery is committed by the accused persons by making a falsedocument for the purpose of cheating and as such all the provisionsunder which the offence is registered are squarely applicable in thepresent case.13.We propose to initially deal with Section 420 of the IPC.Section 420 of IPC which prescribes punishment for the offence ofcheating, when a person is deceived to deliver any property to any 71836.2023APPLN.odtother person. The essential ingredients of cheating are prescribedunder section 415 of the IPC. Relevant portion of section 415 providesthat whoever by deceiving any person, fraudulently or dishonestlyinduces the persons so deceived to deliver any property to any personor to consent that any person shall retain any property commits offenceof cheating. We are not dealing with other aspects of section 415 ofIPC, since they do not relate to parting of property, and therefore, maynot be relevant in the facts of the present case. What is essential isthat there should be an act of deception coupled with fraudulent ordishonest inducement, the person deceiving must part with theproperty or consent that any person retaining the property. Both theseaspects are not attracted. The allegation of the informant is not that hehas sold the property to the applicant as a consequence of deceptionor fraudulent or dishonest inducement. Rather the allegation is thataccused No.2 has sold the property to accused No.1 – applicant,thereby affecting his rights over the property. We are afraid that theallegations made in the FIR that property of the applicant and hisfamily members is sold by accused No.2 to accused No.1 even ifassumed to be true and correct, will not attract the ingredients ofsections 415 and 420 of the IPC. When a person sells a property notbelonging to him, the actual or real owner of the property cannot claimthat offence of cheating has been committed qua him. In suchsituation, where a person sells property without having any title over it, 81836.2023APPLN.odtit is the purchaser, who may claim that he has been cheated andaccordingly may initiate the prosecution against the vendor undersection 420 of the IPC. The person, who claims to be owner of theproperty, cannot invoke section 420 of the IPC against the vendor orpurchaser of the property on the ground that the sale transaction isentered into without any title. Therefore, we have no hesitation inholding that section 420 of the IPC cannot be invoked by respondentNo.2 – informant and registration of offence under the said provision iscompletely unwarranted and illegal.14.The view that we have taken above is supported byjudgment of the Hon'ble Supreme Court of India in the matter ofMohammad Ibrahim and others Vs. State of Bihar and anotherreported in (2009) 8 SCC 751. In the said judgment, the allegationswere that accused No.1, who had no concern with an immovableproperty had sold it to accused No.2. Accused Nos.3, 4 and 5 in thesaid case were witnesses, scribe and stamp vendor respectively. Inthese backdrop of facts, the application for discharge was filed, whichwas rejected and the matter then went upto the Hon'ble SupremeCourt. The Hon'ble Supreme Court has summarized the legal positionin respect to section 420 of the IPC in such transaction holding that incases where a property sold by person without any title over the same,it is the purchaser who may invoke section 420 of the IPC in order to 91836.2023APPLN.odtprosecute the vendor and not the person claiming to be real owner.15.Since the offence of cheating is not attracted, section 468of the IPC which provides for punishment for offence of forgery for thepurpose of cheating will also not be attracted.16.As regards offence of forgery, the same is defined undersection 463 of the IPC. Section 463 of IPC provides that whoevermakes any false document with an intent to cause damage or injury tothe public or any person, or to support any claim or title, or to causeany person to part with any property, or to enter into any express orimplied contract, or with intent to commit fraud or that fraud may becommitted, commits forgery. Thus making of a false document isessential ingredient of the offence of forgery. “Making of a falsedocument” is dealt with in section 464 of the IPC. Alteration of adocument without lawful authority, dishonestly or fraudulently amountsto making of a false document. The order of non-agriculturalassessment dated 04.09.1987 is alleged by the prosecution to be aforged document. It is alleged that it is forged by the accused persons.In this regard, we may refer to communication at pages 120 and 166 inthe charge-sheet issued by API, MIDC, Police Station, in whichreference is made to information gathered from the offence of theCollector, wherein it is stated that order of non-agricultural assessment 101836.2023APPLN.odtin case No.NAA/LTR-574/87 dated 04.09.1987 is available in therecords of the Collector office in which Gut Number of the land ismentioned as Gat No.45 and order is issued in the name of ShriChannappa Tukappa Shete. It is further stated that copy of the orderused by accused persons bearing No.NAA/LTR-574/87 dated04.09.1987 is not available in the records. It will be pertinent tomention here that the learned District Judge-2, Latur has also recordeda finding in paragraphs 28 and 29 of its judgment dated 16.01.2015delivered in Regular Civil Appeal No.77/2013 relating to the subjectplot that the order of non-agricultural assessment which is a part of thesale deed dated 07.12.2010 executed by accused No.2 in favour ofaccused No.1/applicant is tampered document.17.However, there is absolutely no material on record toremotely suggest that the applicant/purchaser has tampered thedocument or was involved with the alleged act in any manner. Theapplicant has parted with the consideration for purchasing the subjectproperty. It is not alleged by the informant that the sale is under valued.In the absence of any material to attribute the alleged wrong to theapplicant, it will not be appropriate to make him face prosecutionparticularly when civil proceeding with respect to the subject propertyis pending adjudication before the competent Court. 111836.2023APPLN.odt18.However, the order of non-agricultural assessment isannexed to the sale deed dated 07.12.2010 executed in favour ofapplicant-accused No.1. It also finds a mention in the body of the saledeed. Using a forged document as a genuine is an offence punishableunder section 471 of IPC. The offence under section 471 is acognizable offence. However, the punishment prescribed for the saidoffence is the same as is prescribed for the offence of forgery. Theoffence of forgery is punishable with two years as per section 465 ofthe IPC and as such, the offence for using a forged document inpresent case will also be punishable with sentence which may exceedto two years. Section 468 of the Cr.P.C. provides for limitation fordifferent category of offences. Section 468(1) states that except orotherwise provided no Court shall take cognizance of offence after theexpiry of period of limitation. The provision is couched in negativeterms, which implies that it is mandatory in nature. Section 468(2)(c)provides that for an offence punishable with imprisonment for a termexceeding one year but not exceeding three years, the limitation will beof three years. No Court can take cognizance of a such offence afterperiod of three years. Respondent No.2 has stated in the FIR that hedid not file the FIR earlier since dispute with respect to the subject plotwas pending before the Civil Court from the year 2011 to 2015. Perusalof the judgment in the civil litigation between the parties woulddemonstrate that the informant and his family members were aware 121836.2023APPLN.odtabout the alleged forgery committed with respect to the order of non-agricultural assessment. The FIR is lodged on 16.07.2022. It is clearthat there is delay exceeding over a decade in lodging the FIR. Thebar under section 468(1) of Cr.P.C. is clearly attracted. It is, therefore,obvious that the applicant cannot be prosecuted for the offencepunishable under section 471 of IPC as well. We may note that Section473 of the Code of Criminal Procedure provides for extension of periodof limitation. The power can be exercised in cases, where delay isproperly explained or it is felt by the Court, it is necessary to so to do inthe interests of justice. As regards the explanation for delay, theinformant-respondent No.2 has stated in the FIR that the FIR was notfiled earlier since civil dispute was pending till the year 2015. As amatter of fact, Second Appeal arising out of the civil dispute betweenthe parties was decided on 11.08.2022. FIR has been lodged on16.07.2022 i.e. a month before. The matter is still pending before thelearned trial Court since Second Appeal is decided by remandingmatter back to the learned Trial Court to frame a issue on identificationof property and decide the suit a fresh. There is no explanationwhatsoever for delay of seven years from 2015 till 2022. Moreover, thestatement that the civil dispute was pending only till 2015 is alsoincorrect and contrary to record. The delay has not been properlyexplained. We are also of the opinion that it is not necessary to extendthe delay in the interest of justice. Rather allowing the criminal 131836.2023APPLN.odtprosecution, which is initiated after a period of around 12 years tocontinue would amount to abuse of process of law, particularly whencivil dispute between the parties is still pending for adjudication beforethe competent Civil Court. The provisions of Section 468(3) of Cr.P.C.will not be helpful to prosecution to overcome the point of limitation asthe facts in the case do not attract Sections 420, 465, 467, 468 of theIPC which prescribe for severe punishments. 19.Apart from the aspect of limitation, we are of theconsidered opinion that lodging of a criminal complaint after periodover a decade particularly when civil dispute with respect to the subjectmatter is pending between the parties would amount to abuse ofprocess of law. We are of the opinion that the criminal prosecutioncannot be allowed to be continued against the applicant having regardto the delay in lodging the FIR coupled with the fact that civil dispute ispending. We reiterate that taking cognizance of the matter is statutorilybarred by section 468 of the Cr.P..C.20.We are of the opinion that the prosecution needs to bequashed against the applicant in the light of clauses (i), (iii), (iv) and(vii) of paragraph no.102 in the matter of State of Haryana Vs.Bhajanlal reported in 1992 Supp. (1) SCC 335/AIR 1992 S.C. 604. 141836.2023APPLN.odt21.In view of the aforesaid, we are therefore consideredopinion that the prosecution of the applicant/accused cannot beallowed to continue and we deem it fit to quash the same. We,therefore, pass the following order :-ORDER(i)The application is allowed. (ii)FIR bearing Crime No.390/2022 registered against applicant-Pankaj Sambhaji Kate with MIDC Police Station, Dist. Latur, for theoffence punishable under sections 420, 465, 467, 468 and 471 readwith section 34 of the Indian Penal Code and the Regular CriminalCase No.1824/2022 pending on the file of the learned 3rd JudicialMagistrate, First Class, Latur are hereby quashed. [R.W. JOSHI][ SMT. VIBHA KANKANWADI] JUDGEJUDGEsga