High Court

Legal Reasoning

1043.Crl.APPLN.3554.23+.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.3554 OF 2023Nagesh s/o Govindrao Deshmukh … APPLICANT VERSUS 1.The State of MaharashtraP.I. Bhagyanagar Police Station,Nanded, Dist. Nanded2.Sow. Shashikala Vyankatrao Pallewad …RESPONDENTS...Advocate for Applicant : Mr. Deshpande Gaurav L.APP for respondent/State : Mr. G.A. KulkarniAdvocate for respondent No.2 : Mr. Amol N. Patale…WITHCRIMINAL APPLICATION NO.3504 OF 20191.Sau. Madhuri w/o Madhav Bondle2. Madhav s/o Maroti Bondle3.Dnyanoba s/o Narhari Panchal… APPLICANTS VERSUS 1.The State of Maharashtrathrough Bhagyanagar Police Station,Nanded, Dist. Nanded2.Shashikala w/o Venkatrao Pallewad …RESPONDENTS...Advocate for Applicant : Mr. Shirsat Suhas R.APP for respondent/State : Mr. G.A. KulkarniAdvocate for respondent No.2 : Mr. Amol N. Patale…1/8 1043.Crl.APPLN.3554.23+.odt CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.Reserved on : 21.02.2024Pronounced on : 23.02.2024JUDGMENT (MANGESH S. PATIL, J.) :Leave granted to correct the name of respondent No.1 inApplication No.3554/2023. Heard. Rule. Rule is made returnable inboth the applications. At the joint request of the parties, the matters areheard finally at the stage of admission. 2.By way of these two separate applications under Section 482of the Code of Criminal Procedure, four accused who have been roped incrime bearing FIR No.243/2019 registered at Bhagyanagar Police Station,Nanded Dist. Nanded for the offence punishable under Section 409, 420,467, 468, 471, 323, 504, 506 read with Section 34 of the Indian PenalCode, are seeking quashment of the Crime, the charge-sheet bearingNo.91/2020 and the consequent Regular Criminal Case No.501/2020pending on the file of Judicial Magistrate First Class, Nanded.3.The sum and substance of the allegations, as can bediscerned from the charge-sheet, are to the effect that plot No.10 ofPushpa Nagar Nanded was jointly purchased by the applicant MadhuriMadhav Bondle and the respondent No.2, by a registered sale deed dated07.12.1994. The deficit stamp duty was also subsequently paid on30.03.2010. It is alleged by the respondent No.2 that in spite of beingaware that the plot was of joint ownership, accused Madhuri executed a2/8 1043.Crl.APPLN.3554.23+.odtfalse power of attorney in the name of her husband Madhav who is alsoan accused and one of the applicants, and obtained a Gunthewaricertificate from the Municipal Corporation only in the name of applicantMadhuri. It is thus alleged that with a view to appropriate the entire plotto themselves applicants Madhuri and Madhav indulged in preparing afalse document and obtained a Gunthewari certificate of the entire plotand thereby cheated the respondent No.2. The rest of the two applicantsacted as attesting witnesses to the power of attorney executed byapplicant Madhuri in favour of applicant Madhav.4.The FIR thereafter alleges that there was an amicablesettlement due to intervention of the relatives between that couple andthe respondent No.2 on 17.02.2019. The couple agreed to sell half shareof the plot to the respondent No.2 for consideration of Rs.12,00,000/-and even agreed to execute the release deed/sale deed. On the very nextday the respondent No.2 paid an amount of Rs.6,00,000/- to the coupleand the sale deed was agreed to be executed within five months. 5.It is then alleged in the FIR that on 16.07.2019 when thehusband of respondent No.2 approached the couple and requested forexecuting the sale deed by receiving the balance amount of theconsideration, the couple abused and threatened him and drove him outof the house. 6.The learned advocates for the applicants would submit that3/8 1043.Crl.APPLN.3554.23+.odtaccepting the allegations in the FIR at their face value, they fall short tomake out all the ingredients for constituting the offences for which theapplicants are being made to face the prosecution. It is purely a civildispute. Even if the power of attorney was executed by applicantMadhuri in the name of her husband Madhav, for regularization of thepurchase, merely obtaining a Gunthewari certificate would not havechanged the title. There are no allegations about the applicantsthereafter having made any attempt to dispose of the plot or create anythird party interest. Rather the respondent No.2 agreed to purchase theremaining half share from applicant Madhuri, paid the part ofconsideration which, however, could not fructify and culminate in actualtransaction. It would be a matter of civil dispute and the respondent No.2at the most would be entitled to resort to a civil remedy for specificperformance. A civil dispute has been robed in criminal form and itwould be abuse of the process of law to make the applicants face theprosecution. 7.The learned advocate Mr. Shirsat would further submit thatin fact applicant Madhuri had filed Regular Civil Suit No.79/2019 in theCourt of Civil Judge, Junior Division at Nanded on 25.02.2019 seeking adeclaration that she was the absolute owner of the entire plot No.10 andfor recovery of possession. It is thereafter that the respondent No.2 haslodged the FIR as a counter blast and to pressurize the couple.4/8 1043.Crl.APPLN.3554.23+.odt8.The learned APP and the learned advocate for therespondent No.2 and the latter by referring to the affidavit-in-reply,would strongly oppose the applications. They would submit thatadmittedly, under the sale deed of the year 1994 the plot was purchasedjointly in the name of applicant Madhuri and the respondent No.2 still, inorder to appropriate the entire property, applicant Madhuri and herhusband Madhav prepared a false power of attorney, attested to by theother two applicants and were successful in obtaining the Gunthewaricertificate for regularization of the title in the sole name of the applicantMadhuri. This in itself is indicative of the sinister design of the couple. Itwould constitute cheating and misappropriation. Opportunity needs tobe extended to the prosecution to substantiate the charge. It is not amatter of false implication and the applications be rejected.9.We have considered the rival submissions and perused thepapers. A bare perusal of the allegations in the FIR coupled with the factthat admittedly the parties are before the Civil Court claiming title to thedisputed plot makes it abundantly clear that the genesis of the dispute isessentially civil one. If applicant Madhuri through her husband applicantMadhav has already instituted a civil suit seeking a declaration about hertitle to the entire plot with a prayer for possession and the suit was filedin the month of February 2019 even before the FIR was registered in July2019, in our considered view, it would be sheer abuse of the process of5/8 1043.Crl.APPLN.3554.23+.odtlaw to allow the prosecution to go on. A civil dispute seems to have beenmade to appear as a crime, and in all probability, for the obvious reasons.10.We are emboldened to observe that the circumstances areobvious for the reason that even the FIR itself mentions that the disputebetween the two sides was sought to be settled due to the intervention ofsome relatives. The applicant Madhuri agreed to sell and the respondentNo.2 agreed to purchase the half share from the plot for a considerationof Rs.12,00,000/-, half of the amount was paid and the sale deed wasagreed to be executed within five months. If at all such is the state ofaffairs, as is being mentioned in the FIR, the circumstance would lendsupport to our inference that the dispute between the two sides is of civilnature and the FIR has been lodged for the obvious reasons. 11.Even if the applicant Madhuri had executed a power ofattorney in favour of her husband applicant Madhav for regularizing thepurchase under the relevant law by obtaining necessary certificate knownas Gunthewari certificate from the Municipal Corporation, it would enureto the benefit of whoever is the owner of the property. Gunthewaricertificate in itself cannot be regarded as a document of title particularlywhen admittedly there has been a registered sale deed jointly in thename of applicant Madhuri and the respondent No.2. 12.In view of above state of affairs, in our considered view, thefact situation of the matter makes it abundantly clear that none of the6/8 1043.Crl.APPLN.3554.23+.odtingredients for constituting the offences with which the applicants arebeing charged can be made out, even if the allegations in the FIR and thematerial collected by the investigating officer is accepted at its face value.13.One can refer to and rely upon following observations fromParamjeet Batra Vs. State of Uttarakhand; (2013) 11 SCC 673.Relevant paragraph reads as follows : 12.While exercising its jurisdiction under Section 482 of theCode the High Court has to be cautious. This power is tobe used sparingly and only for the purpose of preventingabuse of the process of any court or otherwise to secureends of justice. Whether a complaint discloses a criminaloffence or not depends upon the nature of facts allegedtherein. Whether essential ingredients of criminal offenceare present or not has to be judged by the High Court. Acomplaint disclosing civil transactions may also have acriminal texture. But the High Court must see whether adispute which is essentially of a civil nature is given acloak of criminal offence. In such a situation, if a civilremedy is available and is, in fact, adopted as hashappened in this case, the High Court should not hesitateto quash the criminal proceedings to prevent abuse ofprocess of the court.14.The case is squarely covered by the guidelines laid down inthe matter of State of Haryana and Ors. V/s Ch. Bhajan Lal and Ors.;(1992) SCC (Cri) 426. It would be abuse of the process if the applicantsare made to face the prosecution. 15.The applications are allowed. The crime bearing FIRNo.243/2019 registered at Bhagyanagar Police Station, Nanded Dist.Nanded for the offence punishable under Section 409, 420, 467, 468,7/8 1043.Crl.APPLN.3554.23+.odt471, 323, 504, 506 read with Section 34 of the Indian Penal Code and thecharge-sheet bearing No.91/2020 and the consequent Regular CriminalCase No.501/2020 pending on the file of Judicial Magistrate First Class,Nanded are quashed and set aside.16.The Rule is made absolute in the above terms. [ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ] JUDGE JUDGEhabeeb8/8