High Court

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cria-4293.241 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.4293 OF 2024Mrs. Jayshri Sudhakar Sawadatkar,Age-62 years, Occu:Household,R/o-Swavrna Nagar, Near Ganesh Mandir,Buldhana ...APPLICANT VERSUS 1) The State of Maharashtra, (Through Police Station Pundlik Nagar), Tq. & Dist-Aurangabad,2) Sunil Pandurang Raut, Age-Major, Occu:Business, R/o-Sahas Cooperative Housing Society, Garkheda Parisar, Aurangabad. ...RESPONDENTS ... Mr. Anandsingh S. Bayas Advocate for Applicant. Mr. G.A. Kulkarni, A.P.P. for Respondent No.1. ... CORAM: SMT. VIBHA KANKANWADI AND SANJAY A. DESHMUKH, JJ. DATE : 5th FEBRUARY, 2025 ORDER [PER SMT. VIBHA KANKANWADI, J.] :1.Present Application has been filed for quashing the FirstInformation Report (for short “the FIR”) vide Crime No.15 of cria-4293.2422024 registered with Pundliknagar Police Station, Aurangabad on19th January 2024 for the offence punishable under Sections 406,420, 447, 423, 504, 506 of the Indian Penal Code which appearsto be in response to the order dated 25th July 2022 in CriminalMisc. Application No.1948 of 2022 under Section 156(3) of theCode of Criminal Procedure.2.Heard learned Advocate Mr. Bayas for the applicant andlearned APP Mr. Kulkarni for respondent No.1. There is nonecessity to issue notice to respondent No.2.3.Learned Advocate for the applicant has vehementlysubmitted after taking us through the contents of the FIR andother documents on which the applicant is relying that theapplicant had in fact purchased two plots of 265.55 and 282.80Square Meters from original owners, Mr. Datta Ganesh Deshkar,Nila Sharad Chobe, Lila Yadav Naik and Meera Ashok Kamdar.They were the owners of survey NO.52/2/C admeasuring 1 Acreand 39 R. The registered sale deed in favour of the applicantexecuted on 16th December 1987. The remaining portion of theland from the said survey number was sold to Sahas CooperativeGruha Nirman Sanstha by registered sale deed dated 15th April cria-4293.2431988 and 6th May 1988. The applicant had raised compound walland a tin shed for the watchman after the sale deed in herfavour. The cooperative society had applied for layout plan ofentire plot and it was duly sanctioned by the municipalcorporation, Aurangabad on 22nd August 1988. Then the saidsociety had applied for N.A. permission. The applicant submitsthat while applying for N.A. permission the land which waspurchased by the applicant was also incorporated in theapplication and no separate portion was shown in the name ofthe applicant. The society had then demarcated 20 plots in 1988including two plots owned by the applicant and the numberwhich was given in the sanctioned plan was then renumbered.Then applicant had taken the P.R. Card from the corporation.Thus she is the owner and possessor of the said two plots. Theapplicant usually stays at Buldhana with her husband but comesoccasionally for the management of the property. Till 2021everything was smooth but then respondent No.2 informant hadstarted harassment to her thereby trying to encroach upon theplots owned by the applicant. She had registered non cognizablereports against respondent No.2. Inquiry was conducted in whichstatement of President of the society was recorded, wherein thepresident had accepted the ownership of the applicant. The cria-4293.244mutation entry has also been taken by the Tahsildar. It is thecase of the applicant that one Dilip Trimbak Dalvi, who is therelative of the informant, had prepared forged allotment letteron the letter head of the society. Dilip Dalvi expired on 5th April2013 and after his death, it was projected that the plots wereallotted to Mangalabai, being the legal heir of Dilip Dalvi. Theinformant contends that he has purchased the said plots fromRavindra Dalvi, who is the son of Mangalabai, upon the gift deedexecuted by Mangalabai in favour of Ravindra. However thesociety is not supporting all the facts. Now respondent No.2 –informant is claiming the ownership. He had also filed theRegular Civil Suit No.1457 of 2022 before the learned Civil JudgeJunior Division, Aurangabad for declaration and injunction.Interim order of injunction has been passed against the applicantwhich the applicant had challenged in Misc. Civil Appeal No.159of 2023 and 160 of 2023 before the learned District Judge,Aurangabad and those appeals have been turned down. Now thesaid matter is pending before this Court in a Writ Petition. Theapplicant had tried to file complaint / FIR alleging forgery andother offences against respondent No.2 – informant, however, itwas not got recorded and therefore she had approached thelearned Judicial Magistrate First Class, Aurangabad for seeking cria-4293.245investigation under Section 156(3) of the Code of CriminalProcedure. The said compliant has been directed to beinvestigated under Section 156(3) of the Code of CriminalProcedure by the learned Magistrate by order dated 25th July2022 and thereupon an offence vide Crime No.299 of 2023 hasbeen registered. Now respondent No.2 appears to have filed theapplication i.e. Criminal M.A. No. 1948 of 2022 for directionsunder Section 156(3) of the Code of Criminal Procedure, whichcame to be allowed by the learned J.M.F.C., Aurangabad on 25thJuly 2022 and on the basis of the same, the FIR vide CrimeNo.15 of 2024 has been registered on 19th January 2024 againstthe applicant which is alleged to be in respect of an incidentdated 8th November 2021. 4.Learned Advocate for the applicant submits that the saidcomplaint and the FIR is after a delay of more than three years.The applicant is 60 years old lady, yet the allegations underSection 423, 504, 506 of the Indian Penal Code have beenlevelled. The present FIR is nothing but the counter blast to theFIR that has been lodged by the applicant and therefore, it wouldbe unjust to ask the applicant to face the trial. cria-4293.2465.We have taken the facts in detail just to narrow down thedispute. No doubt there is registered sale deed in favour of theapplicant in respect of plot Nos. 17 and 18 from SurveyNo.52/2/C as narrated aforesaid. However, it is to be noted thateven at this prima facie stage the fact will have to be noted isthat a competent Civil Court has passed an injunction orderagainst the applicant which has then been confirmed in CivilMisc. Appeal by the learned District Court. Learned Advocate forthe applicant, upon inquiry, submits that there is no stay tothose orders. Though the writ petition by the applicant ispending before this Court, we will have to consider the primafacie position against the applicant here. Further, as aforesaid,the facts are clear enough in saying that both the parties areclaiming the ownership and possession. Therefore, it becomesthe disputed question of facts which cannot be gone into in theproceedings under Section 482 of the Code of CriminalProcedure. Whether the present FIR is a counter blast to the FIRlodged by the applicant, will have to be then proved by theapplicant. We will have to then also consider that the suit wasfiled by the respondent No.2 – informant on 21st September2022 and the FIR by the applicant is stated to be dated 12th cria-4293.247August 2023, yet the Civil Court had considered the prima faciecase in favour of respondent No.2. 6.The investigation is still going on and therefore, it would bepremature to observe that the applicant, who is 60 years old,would not have committed an offence under Sections 423, 504,506 of the Indian Penal Code. 7.Case is not made out for exercising powers under Section482 of the Code of Criminal Procedure. Therefore, theApplication stands rejected, at the threshold.[SANJAY A. DESHMUKH] [SMT. VIBHA KANKANWADI] JUDGE JUDGE asb/FEB25