Writ Petition No. 1846 of 2024 · Bombaybench High Court · 2025
Case Details
( 1 ) 908- WP-1846-2024IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD908 CRIMINAL WRIT PETITION NO. 1846 OF 2024Girish Kamalakarrao Maindarkar And Another.VERSUSThe State Of Maharashtra And Another....Mr. Jayant R. Patil, Advocate for the Petitioners.Smt. A. S. Deshmukh, APP for Respondent-State. Mr. Abhay Ostwal, Advocate for Respondent No.2 (through V.C.). CORAM:KISHORE C. SANT, J.DATE:14th AUGUST 2025.PC :-1.Heard Mr. Patil, the learned Advocate for the petitioners, Smt.Deshmukh, the learned APP for Respondent-State and Mr. Ostwal, thelearned Advocate for Respondent No.2. The matter is heard final at thestage of admission with the with the consent of the parties. 2.In the present case, the respondent No.2 filed a private complaintin the Court of learned Judicial Magistrate First Class, Ausa, Dist. Latur,bearing R.C.C. No. 170 of 2019. It is alleged in the said complaint thatEthape
Legal Reasoning
( 2 ) 908- WP-1846-2024the respondent No.2 happens to be the owner of the land survey No.182/B, admeasuring 4H 39R. The said land was converted into non-agricultural land, and now, there are plots demarcated on it. It is allegedthat the accused No.1 and 2 i.e. present petitioners sold half portion ofsouthern side plot to the father of respondent No.2 on 29th August 1997bearing plot No.43. Thereafter, the accused persons sold half portionland from north side of the said plot to one Nabisaheb Maniyar in 1999.It is alleged that thereafter again the accused sold the said northern halfportion of plot to one Shivaji Narsoba Kathare by executing sale-deeddated 22nd December 2000. Shivaji Kathare sold his plot to one MangalJadhav in 2009. Thereafter Mangal Jadhav again sold the said plot to Dr.Ajay Maindarkar i.e. Petitioner No.2 on 18th November 2018. It is mainlyalleged that the said plot thereafter is re-purchased by the petitioners. 3.It is alleged that when Mr. Maniyari was the owner of said land,the plots were sold to Mr. Kathare when the accused No. 1 and 2 werenot the owners of the land and with knowledge of the said fact, thoseare sold. Thus the owner of southern side of the plot filed the aEthape ( 3 ) 908- WP-1846-2024complaint.4.The learned JMFC, Ausa, on receipt of the complaint issuedprocess by order dated 19th October 2022. The said order came to bechallenged by way of revision petition in the Court of learned SessionsJudge, Latur. Vide order dated 4th July 2024, the learned AdditionalSessions Judge, Latur, rejected the revision petition and thus thepetitioners are before this Court. 5.Mr. Patil, the learned Advocate for the Petitioners vehementlysubmits that the person who filed a complaint i.e. respondent No.2 hasno concern with the northern side of plot No.43. His complaint is,therefore, without locus standi. The order of issuance of process wasthus totally illegal and the said is confirmed by the learned SessionsCourt only observing that it is admitted by the petitioner that the saidland was sold inadvertently. 6.In support of his submissions, the learned Advocate for thepetitioner relied upon the judgments in the cases of (i) Pankaj s/o.Ethape ( 4 ) 908- WP-1846-2024Smbhaji Kate Vs. State of Maharashtra1; (ii) Mohammed Ibrahim andOrs. Vs. State of Bihar and Anr.2;7.The learned Advocate Mr. Ostwal vehemently opposed thepetition. He submits that in the present case, an offence is clearly madeout. The petitioners inspite of having knowledge that they are not theowner of the land, sold the northern portion of plot No.43. The learnedMagistrate issued a process after satisfying himself about existence ofprima facie case. It is only the purchaser who can lodge the complaint.No fault can be found in the order of issuance of process. The learnedSessions Judge has rightly rejected the revision application. He thusprays for rejection of the writ petition.8.Learned APP also submits that when the offence is clearly madeout, the writ petition deserves to be dismissed. 9.This Court has heard the parties. About the facts, there is nodispute amongst the parties. The only thing needs to be seen is as to1[2025 (1) Mh.L.J. (Cri.) 645]2(2009) 8 SCC 751Ethape ( 5 ) 908- WP-1846-2024whether there was a cause of action to the Respondent No.2 to file acomplaint. In the case of Mohammed Ibrahim and Ors. (supra), theHon'ble Apex Court has held that in such cases, the dispute is essentiallyof a civil nature. Criminal Courts should ensure that the criminalproceedings are not misused for settling scores or pressurising theparties to settle civil disputes. Further, in similar facts, it was held that insuch cases, the offence can be lodged for cheating, however, it is at theinstance of the person who has purchased the said property. In suchcases, it is the seller who defrauds the purchaser, and thus the purchaseris entitled to prosecute the seller under Section 415 of the Indian PenalCode, 1860. Paragraph Nos. 17, 22 and 23 of the said judgment reads asunder.“17. When a document is executed by a person claiming a propertywhich is not his, he is not claiming that he is someone else nor is heclaiming that he is authorised by someone else. Therefore, execution ofsuch document (purporting to convey some property of which he is not theowner) is not execution of a false document as defined under Section 464of the Code. If what is executed is not a false document, there is no forgery.If there is no forgery, then neither Section 467 nor Section 471 of the Codeare attracted. 22.As the ingredients of cheating as stated in Section 415 are notfound, it cannot be said that there was an offence punishable under sections417, 418, 419 or 420 of the Code. Ethape ( 6 ) 908- WP-1846-2024 A clarification 23. When we say that execution of a sale deed by a person, purportingto convey a property which is not his, as his property, is not making a falsedocument and therefore not forgery, we should not be understood asholding that such an act can never be a criminal offence. If a person sells aproperty knowing that it does not belong to him, and thereby defrauds theperson who purchased the property, the person defrauded, that is thepurchaser, may complain that the vendor committed the fraudulent act ofcheating. But a third party who is not the purchaser under the deed maynot be able to make such complaint.”10.In the case of Pankaj Kate (supra), the Division Bench of thisCourt, in similar set of facts, held that it is the purchaser at whoseinstance a complaint can be filed, as the person who is cheated is thepurchaser and not the owner. This Court has also relied upon thejudgment in the case of Mohd. Ibrahim and Ors (supra)-.11.Thus this Court finds that no ingredients of the offences are madeout. The order issuance of process is illegal. Consequently, the orderpassed by the learned Sessions Judge also deserves to be set aside.Hence, the following order: ORDER(i)Criminal Writ Petition stands allowed. Ethape
Decision
( 7 ) 908- WP-1846-2024(ii)The impugned order dated 4th July 2024 passed by the learnedAdditional Sessions Judge, Latur in Criminal Revision Application No. 75of 2022 and the order dated 19th October 2022 passed by learned JMFC,Ausa in R.C.C. No. 170 of 2019 thereby issuing process against thepetitioners for the offences punishable under Sections 420, 465, 467,471, 472 read with 34 of the Indian Penal Code, are quashed and setaside.(iii)With this, writ petition stands allowed and disposed off. [KISHORE C. SANT, J.]Ethape