Criminal Application No. 3872 of 2023 · Bombay High Court
Case Details
cran3872.23-corrected-1- This order is corrected in view of the speaking to minutes order dated07.05.2024. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 924 CRIMINAL APPLICATION NO. 3872 OF 20231.Priyesh S/o Mahaveerlal Jaiswal.2.Ravindra S/o Rameshrao Deshmukh.3.Ramesh Yeshwantrao Jadhav.… ApplicantsVersusPrabhu S/o Ashok Pure.… Respondent...Mr. Dayanand M. Bhalke, Advocate for Applicants.Mrs. Pooja Vijay Langhe, Advocate for Respondent. ….. CORAM : SANJAY A. DESHMUKH, J. DATED : 16th APRIL, 2024. PER COURT :- 1This is an application under Section 482 of the Code ofCriminal Procedure (for short “the Cr.P.C.”) for quashing and settingaside the Regular Criminal Case No.1619 of 2020 pending in theCourt of learned Judicial Magistrate First Class, Aurangabad filed bythe respondent against the applicants for the offences punishableunder Section 406, 420, 468, 471 r.w. 34 of the Indian Penal Code(for short “the I.P.C.”) and the order of issuance of process passed bythe learned J.M.F.C. Aurangabad dated 28.11.2022 against theapplicants. 2The learned advocate for applicants submitted that the cran3872.23-corrected-2- sale transaction of agricultural land took place between therespondent’s mother and the applicants by the executing a sale-deeddated 27th June, 2018. It is submitted that it is civil dispute andSpecial Civil Suit No.183 of 2020 is filed by the respondent againstthese applicants for declaration and perpetual injunction in respect ofthe disputed land Block No. 9 total admeasuring 5 Hectares 70 Are tothe extent of 24, situated at village Tisgaon, Tq. and districtAurangabad. He submitted that the entire consideration amount ispaid by cheque. However, after the registration of the sale-deed,false allegations of cheating are made and in order to harass theapplicants. The false criminal complaint case is filed against theapplicants. The cheque is realized in her bank account. It isconcocted story and allegations of cheating are made baldly. Theprocess is issued even though it is dispute of civil nature, in order tomalign the image of these applicants in the society and in order topressurize and harass these applicants. The disputed property is inpossession of these applicants. A mutation entry is also effected. 3The learned advocate for applicants further submittedthat the compromise pursis executed before the Family Courtbetween the grandfather of the respondent, respondent and hismother by which they got the disputed property. The respondent iswitness to the disputed sale-deed. Earlier to the sale-deed, therespondent has relinquished his right by executing registeredrelinquishment deed, dated 18th April, 2017. He has no locus-standi
Facts
cran3872.23-corrected-3- to file said complainant. It is lastly prayed to quash the said criminalcase against these applicants.4During the course of arguments, the learned advocatefor applicants relied upon the case of Commissioner of Police andOrs. Vs. Devender Anand and Ors., AIR 2019 Supreme Court3807, in which it is held as under:“4.2…... The earlier opinion on preliminary inquirywas never placed before the DCP. Thereafter, onthorough investigation/inquiry and considering the factsand circumstances of the case narrated hereinabove,when it was opined that the dispute between theparties is of a civil nature, the High Court ought not tohave issued further directions. The High Court ought tohave closed the proceedings. Not only the High Courthas issued further directions, but even has imposedcosts and an action against the appellants 3 to 5herein which, in the facts and circumstances of thecase, is not sustainable.” 5The learned advocate for respondent strongly opposedthe application and submitted that these applicants have practicedfraud upon the respondent and his mother and got executed the falsesale-deed without paying consideration amount to them. Applicants’fraudulent intention of grabbing that property without payingconsideration, is prima-facie establishing from their conduct.Though the sale-deed of another property is executed in favour of therespondent’s mother after the sale of disputed property, itsconsideration was paid out of fixed deposit made by the respondent’smother. There is no such prima-facie evidence to show that the
Legal Reasoning
cran3872.23-corrected-4- consideration amount was paid to the respondent’s mother whileexecution of sale-deed. It is case of practicing fraud and grabbingproperty. It is lastly prayed to reject the application. 6The learned advocate for respondent is relying upon thefollowing three authorities:I)Kamaladevi Agarwal Vs. State of W.B. and others, (2002) 1Supreme Court Cases 555, in which the Hon’ble Supreme court inpara 17 has observed thus:-“17.In view of the preponderance of authorities to the contrary,we are satisfied that the High Court was not justified in quashingthe proceedings initiated by the appellant against the respondents.We are also not impressed by the argument that as the civil suitwas pending in the High Court, the Magistrate was not justified toproceed with the criminal case either in law or on the basis ofpropriety. Criminal cases have to be proceeded with inaccordance with the procedure as prescribed under the Code ofCriminal Procedure and the pendency of a civil action in a differentcourt even though higher in status and authority, cannot be madea basis for quashing for the proceedings.” II)Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi andothers, (1976) 3 Supreme Court Cases 736, in which the Hon’bleSupreme Court has held as under:-“ The scope of the inquiry under Section 202 of the Code ofCriminal Procedure is extremely limited only to the ascertainmentof the truth or falsehood of the allegations made in the complaint,(i) on the materials placed by the complainant before the court; (ii)for the limited purpose of finding out whether a prima facie case cran3872.23-corrected-5- for issue of process has been made out; and (iii) for deciding thequestion purely from the point of view of the complainant withoutat all adverting to any defence that the accused may have. It is notthe province of the Magistrate to enter into a detailed discussion ofthe merits or demerits of the case nor can the High Court go intothis matter in its revisional jurisdiction which is a very limited one.In proceedings under Section 202 the accused has got absolutelyno locus standi and is not entitled to be heard on the questionwhether the process should be issued against him or not.” III)Ishwarlal s/o. Premraj Bora and others Vs. Pandir s/o.Ramji Bari and another, decided on 18th February, 2013 by thisCourt in Criminal Writ Petition No. 471 of 2004, in which this court inpara 5 has observed as under:-“5.The order of issue process came to be made afterrecording verification of the complainant. In the verification, thereare aforesaid contentions in respect of the sale deed and forgeddocument of power of attorney. At the time of issuing of theprocess, only prima facie case is required to be made out and thedefence of the accused need not be considered. Admittedly, thereis civil dispute between the parties and the land was in possessionof the complainant's family at the relevant time and for manyyears the Government had given permission to the family ofcomplainant to cultivate the land. In view of these circumstances,this Court holds that there was sufficient material for issuingprocess against the accused.”7The learned advocate for applicants has fairly concededthat the application against the issue process is not maintainable. Itis because the revision is not preferred against it before the SessionsCourt, Aurangabad. cran3872.23-corrected-6- 8During the course of arguments, a query was raised bythis Court to show that how the consideration amount was paid to therespondent’s mother. The main contention of the respondent is thatno such consideration amount was paid. 9The learned advocate for applicants pointed out that theconsideration amount of Rs.6,53,000/- is paid by the cheque to therespondent’s mother, who executed the sale-deed. There are nosuch allegations that consideration amount is not received by themother of respondent. The cheque is realized in the bank account ofmother of the respondent. The document at Exh. “E” to thisapplication shows that said amount was paid to the respondent’smother who was owner of that disputed property. If such allegationswere made in the complaint or any affidavit would have been filed onrecord to show that the consideration amount was not paid to themother of respondent and cheque is dishonoured, then this Courtwould have accepted the argument of the learned advocate forrespondent that the consideration amount was not paid. Therefore,though the respondent has filed account extract of three banks, itcannot be accepted that applicant Nos.1 and 2 have not paid thatconsideration amount. 10.Learned advocate for the respondent was directed to takeinstructions and submit documents of bank account as to whether the cran3872.23-corrected-7- consideration amount paid to the mother of the respondent bycheque and it was realized in her account or not. But no suchdocument is filed. The applicants filed account extract. Perused theaccount extract which is taken on record and marked as “Z-1” foridentification. The cheque for consideration amount dated 15.1.2019was realized in the account of the mother of this respondent whichcan be seen from the bank account Exh Z-1 of M/s. AranavEnterprises run by applicant No.1. The respondent could not showanything contrary to it. There are no allegations that after the chequeamount which was realized the applicants forcibly took that amountfrom respondent’s mother.11.As far as alleged execution of receipt about receiving of theconsideration amount by the mother of respondent is concerned, ithas been executed on 6th March, 2020, in which it is mentioned thatan amount of Rs.6,53,000/- is realised by the cheque in her Axisbank account. Therefore, argument of the learned advocate forrespondent that the said amount is not received, is not acceptable.Considering all these aspects and particularly the fact situation of thecase, this Court finds that when consideration amount is paid and therespondent has signed the sale-deed as witness, there is nosubstance in his complaint. 12.Considering all these aspects and reasons it is crystal clearthat false complaint case is filed against this applicants. Therefore, cran3872.23-corrected-8- the complaint is not sustainable in the eyes of law and the fact. Itwould be abuse of process of the Court if the applicants arecompelled to face the said complaint. The complaint filed by therespondent deserves to be quashed and set aside. The applicationtherefore, deserves to be allowed. Hence, the following order:-O R D E RICriminal application is allowed in terms of prayer clause “B”. II. Criminal application is disposed of accordingly. 13.It is made clear that the observations made in this order areprima facie in nature and do not affect any other proceedings andrights of the parties. (SANJAY A. DESHMUKH, J.) rlj/