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IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD29 CRIMINAL APPLICATION NO.2982 OF 2021Balaji Onkar Pawar,Age 38 yrs., Occ. Agri.,R/o Jategaon, Tq. Georai,Dist. Beed. … Applicant… Versus …1The State of MaharashtraThrough the Investigating Officer,Police Station, Talwada,Tq. Georai, Dist. Beed. 2Mohanlal Bansilal Bhutada,Age 54 yrs., Occ. Agri.,R/o Jategaon, Tq. Georai,Dist. Beed. … Respondents...Mr. V.P. Savant, Advocate for applicantMrs. P.R. Bharaswadkar, APP for respondent No.1Mr. N.B. Narwade, Advocate for respondent No.2...CORAM :SMT. VIBHA KANKANWADI &SANJAY A. DESHMUKH, JJ.DATE :05th MARCH, 2025 229_Cri.Appln_2982_2021ORDER :( PER : SMT. VIBHA KANKANWADI, J. )1Present application challenges initially the order below Exh.1 inMiscellaneous Criminal Application No.578/2021 passed by learned JudicialMagistrate First Class, Georai, Dist. Beed under Section 156(3) of the Code ofCriminal Procedure and First Information Report vide Crime No.250/2021which came to be registered on the basis of said order dated 13.11.2021 withPolice Station, Talwada, Tq. Georai, Dist. Beed on 18.11.2021 and later on byway of amendment for quashing the proceedings in Regular Criminal CaseNo.454/2022 pending before learned Judicial Magistrate First Class, Georai,Dist. Beed, for the offence punishable under Section 420, 468, 471 of theIndian Penal Code, 1860. 2Heard learned Advocate Mr. V.P. Savant for applicant, learnedAPP Mrs. Priya R. Bharaswadkar for respondent No.1 and learned AdvocateMr. N.B. Narwade for respondent No.2. 3Learned Advocate appearing for applicant submits that applicanthad entered into a nominal sale deed, which was in fact the transaction ofmoney lending in nature with respondent No.2. Said sale deed came to beexecuted on 27.01.2012 for Rs.2,30,000/-, however, in fact, he had takenamount of Rs.1,50,000/- as hand loan on 22.01.2012 from respondent No.2. 329_Cri.Appln_2982_2021Respondent No.2 gave that amount and charged 5% per month interest onthe same. Said sale deed was hollow and was executed as security. He hasrepaid the loan, but respondent No.2 had not executed the re-conveyance.Applicant had challenged the entire transaction before Sub-Registrar, Beed byfiling application No.6/2017. After hearing respondent No.2 and takingevidence Sub-Registrar passed order on 15.01.2020 declaring that the saidtransaction is money lending transaction and said document was cancelledunder Section 18(2) of the Maharashtra Money Lending (Regulation) Act,2014. The land was restored by said order in the possession of applicant.Respondent No.2 had filed appeal bearing No.8/2020 before the appellateauthority i.e. the Divisional Registrar, Latur. By order dated 25.03.2021 thesaid appeal came to be dismissed. The order passed by Sub-Registrar, Beedwas confirmed and then it appears that private complaint/criminalmiscellaneous application came to be filed before learned Judicial MagistrateFirst Class, Georai by respondent No.2 on 27.10.2021. There is totalsuppression of fact before learned Judicial Magistrate First Class byrespondent No.2. In fact, though the order of restoration of land is formallypassed by Sub-Registrar, Beed; yet, the possession was never parted byapplicant to respondent No.2. Rather he had filed complaint application on01.01.2017 before Police Inspector, Police Station, Talwada regarding themoney lending transactions. Thereafter, on 19.01.2020, that is, after the 429_Cri.Appln_2982_2021decision of Sub-Registrar, Beed, respondent No.2 had tried to evict applicantand his family members and caused damage to his house and the land.Offence vide Crime No.18/2020 came to be registered with said PoliceStation on 01.02.2020 under Sections 447, 427 read with Section 34 of theIndian Penal Code against respondent No.2 and other persons. Perusal ofimpugned order would show that there was no application of mind bylearned Judicial Magistrate First Class as it is stated that offences are noncognizable; yet, investigation under Section 156(3) of the Code of CriminalProcedure was directed. No doubt, Sections 420, 468, 471 of the IndianPenal Code are cognizable, but learned Magistrate had not considered as towhether there is compliance of decision in Priyanka Srivastava and anotherVs. State of Uttar Pradesh and others [(2015) 6 SCC 287] and subsequentdecisions. Therefore, the said order deserves to be set aside and FirstInformation Report that has been registered on the basis of said order alsodeserves to be set aside. 4Learned APP for respondent No.1 and learned Advocate forrespondent No.2 opposed the application and submit that though two ordershave gone against respondent No.2; yet, the fact is that present applicant gothis 7/12 extract prepared online and then submitted it before MaharashtraState Electricity Distribution Company Limited, which was against the sale 529_Cri.Appln_2982_2021deed on the day when that application was filed. The sale deed was yet to bedeclared void or cancelled and, therefore, there is fraud, which needs to beinvestigated. 5At the outset, it is to be noted that when an order under Section156(3) of the Code of Criminal Procedure is to be passed by a Magistrate,then he has to see basically whether the offence that has been made outprima facie is a cognizable offence. Thereafter, the stages those have beenprescribed in the decision in Priyanka Srivastava (supra) will have to befollowed. It is the duty of the Magistrate to see whether those stages havebeen fulfilled or not. In the present matter, there is absolutely no mentionabout those steps being taken and seen by learned Judicial Magistrate FirstClass. In paragraph No.4 of application, statements are made that complaintapplications were given. Now, charge sheet is also filed before learnedMagistrate, however, copies of those applications/complaints are notcollected. Learned Magistrate while passing the impugned order says thatthe offences are non cognizable. It might be typing mistake, because offencesunder Section 420, 468, 471 of the Indian Penal Code are cognizableoffences. A cryptic order has been passed and most important point is thatthere is total suppression of orders passed by Sub-Registrar, Beed anddecision in his appeal before Sub Divisional Registrar, Latur in the complaint 629_Cri.Appln_2982_2021application. If those documents would have been also produced, the resultmight have been different. Learned Magistrate might have had a secondthought of giving directions for investigation under Section 156(3) of theCode of Criminal Procedure. A complaint application based on suppressionof facts and keeping the concerned Court under dark, then obtains orderunder Section 156(3) of the Code of Criminal Procedure, such order, the FirstInformation Report and also the charge sheet based upon such FirstInformation Report deserves to be quashed and set aside. Now, in the chargesheet, copies of both orders have been produced. Still the InvestigatingOfficer comes to a conclusion that case is made out for forwarding it to theMagistrate, thereby filing of charge sheet. When the complaint has beenmade much after the decisions by two competent authorities which wasagainst the informant, the informant cannot go back to the date on which theapplication was made by present applicant before M.S.E.D.C.L. When theconnection appears to have been given by M.S.E.D.C.L., certainly, they hadgone to the spot, would have seen who is in possession. In fact, M.S.E.D.C.L.proceeded on the basis of 7/12 extract only. 7/12 extract is not thedocument of ownership. It was not binding upon M.S.E.D.C.L. to give theconnection only on the basis of 7/12 extract. Therefore, there is absolutelyno material that has been collected and that was there before the learnedMagistrate to come to a conclusion that there is prima facie evidence to 729_Cri.Appln_2982_2021proceed against applicant for offences punishable under Sections 420, 468,471 of the Indian Penal Code. This is a fit case where we should exercise ourpowers under Section 482 of the Code of Criminal Procedure. Hence,following order. ORDERi)Criminal Application stands allowed.ii)The proceedings in Regular Criminal Case No.454/2022 pendingbefore learned Judicial Magistrate First Class, Georai, Dist. Beed arising outof order dated 13.11.2021 passed below Exh.1 in Miscellaneous CriminalApplication No.578/2021 by learned Judicial Magistrate First Class, Georai,Dist. Beed as well as First Information Report vide Crime No.250/2021 dated18.11.2021, for the offence punishable under Sections 420, 468, 471 of theIndian Penal Code, 1860, stands quashed and set aside as against applicantBalaji Onkar Pawar. ( SANJAY A. DESHMUKH, J. )( SMT. VIBHA KANKANWADI, J. )agd