High Court

Legal Reasoning

{1} APPLN-4034-2024IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO. 4034 OF 2024Rekha Kashiram UbaleAge: 45 years, Occu: Service,R/o: Hedgewar Nagar, Kinwat,Dist. Nanded....APPLICANTVERSUS1.The State of MaharashtraThrough Police Station Officer,Chandanzira, Police Station, Jalna,Tal, Dist. Jalna.2.Mr. Nandkishor Uddhavrao ManeAge: 35 years, Occu. Business,R/o. Yogeshnagar, Gajanan Residency,Chandanjeera, Dist. Jalna....RESPONDENTS Ms. Aummaheshwari S. Jadhav, Advocate for the applicantMr. S.R. Wakale, APP for respondent No. 1-StateMr. Nitin Bhavar Patil, Advocate for respondent No. 2 ....... CORAM : NITIN B. SURYAWANSHI AND SANDIPKUMAR C. MORE, JJ. RESERVED ON : 15th JULY, 2025PRONOUNCED ON: 25th JULY, 2025ORDER : [PER NITIN B. SURYAWANSHI, J.]1.By this application filed under Section 482 of Code ofCriminal Procedure, applicant/Accused No. 2 seeks quashing ofFIR No. 0241 of 2024 registered with Chandanzira Police Station,Jalna, under Sections 406, 420 read with 34 of the Indian PenalBhagyawant Punde {2} APPLN-4034-2024Code and Section 3(1)(s) and 3(1)(r) of the Scheduled Castesand Scheduled Tribes (Prevention of Atrocities) Act, 1989.2.Respondent No. 2/Informant lodged FIR in questionalleging that he is business man, resident of Jalna. He used tovisit office of District Industrial Center at Jalna regularly andtherefore he got acquainted with husband of applicant Mr. ArvindShivaji Bhande/Accused No. 1, who is working in the said officeas Industrial Inspector. He assured respondent No. 2 that hisproject file would be sanctioned at the earliest. For the saidpurpose, Accused No. 1 demanded amount of Rs. 25 Lakhs. On11.07.2021 respondent No. 2 along with his friend went to thehouse of accused wherein both the accused were present.Respondent No. 2 could accumulate Rs. 19 Lakhs, which hehanded over to Accused No. 1. Both the accused counted thesaid amount. Applicant/Accused No. 2 kept the bag containingsaid amount in the cupboard. Thereafter, an amount ofRs. 51,000/- was paid by respondent No. 2 towards bookingamount of the flat, booked in the name of both the accused. On19.07.2021, Accused No. 1 asked him to deposit an amount ofRs. 80,000/- in his nephew Jay Suryawanshi’s account, whichwas deposited by the informant. Jay Suryawanshi brought tab ofBhagyawant Punde {3} APPLN-4034-2024Apple company and gave it to Accused No. 2. On 28.07.2021towards part payment of flat, informant deposited Rs.1,99,000/-, 8,000/- and 38,000/- by online transfer to thebuilder. Thereafter, cash amount of Rs. 15 Lakhs was demandedby Accused No. 1, which was given by informant to Accused No.1 in presence of his friend Manohar Kasbe. Thereafter, on31.07.2021 informant transferred an amount of Rs. 1,99,000/-towards flat in the builder’s account. Accused No. 1 was assuringthat informant’s loan file would be cleared, but insisting that hehas to pay more amount for giving it to the superior officer.Thereafter, again on 04.07.2021, Accused No. 1 told informant tosend an amount of Rs. 1,81,000/- towards payment of flat in thebuilder’s account. Accordingly, he transferred the said amount.On 17.08.2021, Accused No. 1 called on the phone of informantand asked him to deposit Rs. 20 Lakhs on the saving account ofapplicant. At that time, informant told them that his work is notdone. Accused No. 1 angrily abused him and told him that if theamount is not paid to him then the informant should forgetabout the earlier money. Thereafter, again on 18.08.2021,Accused No. 1 asked the informant to transfer an amount of Rs.19 Lakhs, which was transferred by informant in the jointaccount of accused.Bhagyawant Punde {4} APPLN-4034-2024On 17.10.2021, Accused No. 1 called informant onthe occasion of his birthday and asked him to bring Rs. 20Lakhs. Informant gifted one tola gold ring to Accused No. 1 andgave him amount of Rs. 17 Lakhs. Said amount was counted byApplicant/Accused No. 1. Informant was repeatedly asking abouthis loan proposal to Accused No. 1. He was telling informant thathis file is pending with superior officer. Thereafter, Accused No. 1started avoiding to accept calls of informant. In the month ofMarch, informant told Accused No. 1 that if his work is not beingdone, the amount of Rs. 78,70,000/- paid by him should bereturned to him. Accused No. 1 assured that his work will bedone as early as possible. Thereafter on 21.03.2023, informantcalled Accused No. 1, he was asked to come to District IndustrialCenter Jalna. Informant along with Dattha Bhabhande went tothe office of Accused No. 1. There Accused No. 1 threatened himthat if he demands money, he will be cut into pieces. He alsoabused him in the name of caste. On the basis of theseallegations, FIR in question came to be registered. 3.Heard learned advocate for the applicant, learnedAPP for State and learned advocate for the 2nd respondent.4.Learned advocate for the applicant submits thatBhagyawant Punde {5} APPLN-4034-2024before filing FIR in question, respondent No. 2 has filed privatecomplaint under Section 138 of Negotiable Instruments Act, on03.08.2023, against Accused No. 1 for dishonor of cheque of Rs.19 Lakhs. In the said complaint no allegations are made againstapplicant/Accused No. 2. She submits that transaction betweeninformant and accused were of a civil nature and applicant hasno concern with the same. Only with a view to pressurizeAccused No. 1, name of applicant is falsely implicated in thepresent crime. By relying on State of Haryana and Others vs.Bhajan Lal and Others1, she submits that no case is made outagainst the applicant. Hence, FIR to the extent of applicant isliable to be quashed and set aside.5.Learned APP and learned advocate for the 2ndrespondent strenuously opposed the application stating thatapplicant has played active role in the present crime by countingthe amount given by the informant to Accused No. 1 and bykeeping it in the cupboard. The flat is booked in the joint nameof Accused No. 1 and 2. Part amount is deposited in the jointaccount of both the accused. Therefore, applicant has played anactive role in the present crime and there is sufficient materialon record against her. Hence, application filed by applicant being11992 SC (Cri) 426Bhagyawant Punde {6} APPLN-4034-2024merit less be dismissed.6.With the assistance of learned advocate for theapplicant, learned APP for the State and learned advocate for the2nd respondent we have perused the application, documentsannexed with the same and the charge sheet.7.From the averments made in the FIR it is clear thatinformant on the assurance given by Accused No. 1 that hisproject file will be sanctioned at the earliest has paid amountsfrom time to time either to Accused No. 1 or at his instance tothe builder or others and some times in the joint account of boththe accused. It is also alleged that Accused No. 1 booked flat inthe joint name of both the accused. It is also alleged that whenthe amounts were paid in cash to Accused No. 1, he along withthe applicant counted the said amount and the applicant keptthe amount in the cupboard. Except these bare allegations, thereis nothing on record to show actual involvement of the applicantin the present crime.8.Perusal of record reveals that FIR and the materialcollected during the investigation is bereft of even basic factswhich are absolutely necessary for making out ingredients ofoffence under Sections 406, 420 read with 34 of IPC againstBhagyawant Punde {7} APPLN-4034-2024applicant. To make out a case for criminal breach of trustpunishable under Section 406 of IPC, the essential ingredientswhich are required to be made out are; a) entrustment ofproperty with a person (applicant), b) the person so entrusted,dishonestly misappropriated or coverts the property to his ownuse or dishonestly using or disposing of that property in violationof any direction of law prescribing the mode in which such trustis to be discharged.Even if the case of the 2nd respondent is accepted asit is, admittedly, entrustment is allegedly made by him withAccused No. 1. Therefore, no ingredients of criminal breach oftrust are made out against the applicant in the FIR or in thecharge sheet. 9.The allegations of dishonest intention since inceptionare made against Accused No. 1. There is nothing on record toshow that the applicant with dishonest intention since inceptionhas cheated the informant/Respondent No. 2. Learned APP andlearned advocate for the 2nd respondent could not point out anymaterial from the record showing involvement of the applicant inthe present crime.Bhagyawant Punde {8} APPLN-4034-202410.The allegations made in the FIR and materialcollected during the investigation, even if they are taken at theirface value and accepted in their entirety do not prima facieconstitute any offence or make out any case against theapplicant. The criminal prosecution lodged against the applicantappears to be manifestly attended with malafide and same isinstituted with an ulterior motive for wreaking vengeance on theAccused No. 1 and with a view to pressurize him. We are of theview that applicant’s case falls under following categories ofBhajan Lal (supra):(1)Where the allegations made in the first informationreport or the complaint, even if they are taken at theirface value and accepted in their entirety do not primafacie constitute any offence or make out a case againstthe accused.(3)Where the uncontroverted allegations made in theFIR or complaint and the evidence collected in support ofthe same do not disclose the commission of any offenceand make out a case against the accused.(5)Where the allegations made in the FIR or complaintare so absurd and inherently improbable on the basis ofwhich no prudent person can ever reach a just conclusionthat there is sufficient ground for proceeding against theaccused. 11.Applicant is a teacher by profession and has noconcern with the transactions entered into by her husband.Merely because at the instance of Accused No. 1 informant hasBhagyawant Punde {9} APPLN-4034-2024deposited certain amount in the joint account of both theaccused and flat is booked by Accused No. 1 in the joint name,does not by itself show that there was common intention on thepart of applicant to cheat the informant.12.Fact remains that present FIR is preceded by filing ofprivate complaint under Section 138 of Negotiable InstrumentsAct by informant, against Accused No. 1. In the said complaintno involvement of the applicant whatsoever is alleged by theinformant. Therefore, there appears merit in the contention ofapplicant that with a view to settle personal scores, malafide hername is involved in the present crime so as to pressurizeAccused No. 1.13.On appreciation of material placed on record we areof the prima facie view that the dispute between informant andaccused No. 1 appears to be of civil nature and with a view topressurize Accused No. 1, applicant is implicated in the presentcrime.14.Admittedly, there are no allegations that theapplicant has committed offence under the Atrocity Act. For theaforestated reasons, we are of the considered view thatcontinuation of prosecution against the applicant is an abuse ofBhagyawant Punde {10} APPLN-4034-2024process of law and Court. Hence, the following order:ORDER(i)Criminal Application is allowed.(ii)FIR No. 0241 of 2024, dated 05.06.2024 registered withChandanzira Police Station, Jalna, under Sections 406,420 read with 34 of the Indian Penal Code and Section3(1)(r) and 3(1)(s) of the Scheduled Castes andScheduled Tribes (Prevention of Atrocities) Act, 1989 isquashed and set aside to the extent of applicant.(SANDIPKUMAR C. MORE, J.) (NITIN B. SURYAWANSHI, J.)Bhagyawant Punde