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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION NO.239/2017
Randhir Pralhadrao Sawarkar,
aged about 52 years, Occ. Agriculturist
and business, r/o Ranpise Nagar,
Akola, Tq. Dist. Akola. .....APPLICANT
...V E R S U S...
1. Pradipkumar Popatlal Wakhariya,
aged about 61 years, Occ. Social Service,
R/o 46, Vasudha, Adarsha Colony,
Akola, Tq. Dist. Akola.
2. Manoj Motilal Apurva,
aged 40 years, Occ. Professor,
R/o Birla B. Colony, Akola,
Tq. Dist. Akola.
3. State of Maharashtra through
D.G.P., Akola. ...NON APPLICANTS
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Mr. J. B. Gandhi, Advocate for applicant.
Mr. M. Badar, Advocate for non applicant nos. 1 and 2.
A.P.P. for non applicant no.3-State
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CORAM:- V. M. DESHPANDE, J.
DATED :- 23.06.2017 ORAL JUDGMENT
1. Rule. Rule returnable forthwith. I have heard Mr. J. B. Gandhi, learned counsel for the applicant and Mr. M. Badar, learned counsel for non applicant nos. 1 and 2 extensively. ::: Uploaded on - 29/06/2017 ::: Downloaded on - 30/06/2017 00:14:18 :::
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2. The applicant has contested an election for Legislative Assembly, Akola (East). He filed nomination paper on 27.09.2014. As required, an affidavit in respect of his properties was also filed.
3. The non applicant no.1 has filed a complaint under Section 125-A of the Representation of Peoples Act in the Court of Chief Judicial Magistrate, Akola for filing false affidavit by suppressing the material facts and giving false information along with nomination form submitted for contesting the assembly election. The said case was registered as Criminal Case No.1956/2015. The learned Magistrate issued the process by order dated 08.09.2015.
4. The present applicant preferred Criminal Revision No.43/2016 before the Sessions Court, Akola and the learned revisional Court dismissed the said revision. Hence, the present application under Section 482 of Cr. P. C. is filed.
5. The sum and substance of the complaint shows that though by virtue of the sale deed dated 05.10.2012 the applicant ::: Uploaded on - 29/06/2017 ::: Downloaded on - 30/06/2017 00:14:18 ::: 3 apl239.17.odt purchased 7 plots at mouza Umari, in the affidavit he has shown only 6 plots at mouja Umari and therefore according to the complainant it is an incorrect and false information provided in the affidavit.
6. The learned counsel for the applicant pointed out that at the time of filing of the revision, various documents were filed on record. It is an admitted position that by virtue of the sale deed dated 05.10.2012, the applicant purchased 7 plots at mouja Umari. Plot no. 91 is not mentioned in the affidavit. The learned counsel invited my attention to a sale deed dated 15.12.2014, which is duly registered with Sub Registrar showing that the plot no. 91 was sold to the purchaser whose names are mentioned in the said sale deed. Thus on 15.02.2014, the present applicant loses his title as owner of the plot no.91. In that view of the matter, no fault can be attributed to the applicant if he did not mention that he is the owner of the plot no. 91 in the affidavit filed along with nomination papers.
7. The second contention on behalf of the original complainant is that though 7 plots are purchased by the present ::: Uploaded on - 29/06/2017 ::: Downloaded on - 30/06/2017 00:14:18 ::: 4 apl239.17.odt applicant in the name of M/s. Unnati Associates, there is no mention in the affidavit. From the complaint itself it is clear that those 7 plots were actually belonging to M/s. Akola Oil Industries which went into liquidation and the property came in the hands of the Official Liquidator appointed by this Court. From paragraph 4 of the complaint itself it is crystal clear that M/s. Unnati Associates was the highest bidder for those 7 plots and only the earnest money is paid. No doubt true that the present applicant is one of the partners of M/s. Unnati Associates, which is a partnership firm. However, it is not in dispute that as on today or on the date when the nomination papers were filed by the present applicant, the sale deed was not executed in favour of M/s. Unnati Associates by the Official Liquidator of this Court. In that view of the matter, it cannot be attributed that on the day of filing of the nomination papers, either M/s. Unnati Associates or the present applicant is owner of the property. Therefore, the charge of the complainant that though the applicant was holding title and ownership of those plots and in spite of that those were not mentioned, in my view, is contrary and misconceived.
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8. Another point that is pleaded in the complaint is that by virtue of the sale deed dated 03.05.2014, a registered sale deed bearing No.1783/2014, the applicant has purchased another immovable property and the said is also not mentioned in the affidavit. My attention is invited to the said sale deed which is available on record at Annexure "D" at page no. 68 of the compilation. The said sale deed shows that the present applicant was one of the purchasers along with other 6 persons whose names are mentioned in the said sale deed and his share was shown as 7.50%. Mr. Gandhi then invited my attention to page no. 105 of the compilation and pointed out that the said share of 7.50% is already mentioned in the affidavit.
9. The Courts are always under an obligation to issue process after verification of the documents. The issuance of process is a very drastic step since it invites the criminal prosecution against the person against whom the process is issued. Therefore, it is expected from the Courts while issuing process that it should not be issued mechanically.
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10. When all these documents were available on record, at least before the learned revisional Court, it was the duty of the learned revisional Court to verify those documents and ought to have applied its mind in correct perspective and ought to have decided the revision in accordance with law. Merely an observation that the applicant has suppressed the material facts is not sufficient when the documents, prima facie, show otherwise.
11. Though the learned counsel for the non applicant relies on the judgments in Smt. Nagawwa.vs.Veeranna Shivalingappa Konjalgi & ors; (1976) 3 SCC 736, Rukmini Narvekar.vs.Vijaya Satardekar & Ors;(2008)14 SCC 1, State of Madhya Pradesh .vs.Surendra Kori; (2012) 10 SCC 155, Imtiyaz Ahmad.vs.State of U.P. & Ors.; AIR 2012 SCC 642, and Sonu Gupta.vs.Deepak Gupta & Ors; 2015 ALL MR (Cri)1192 (S.C.), in the peculiar facts and circumstances of the present case and looking to the documents available on record, I am of the view that those judgments are distinguishable. Hence, I do not feel it necessary to deal with each ruling in extenso.
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12. In the result, the Criminal Application is allowed. The order dated 08.09.2015 in Summary Criminal Case No. 1956/2015 passed by 4th J.M.F.C. Akola and the order dated 08.03.2017 in Revision No.43/2016 passed by Additional Sessions Judge-2, Akola are hereby quashed and set aside.
The proceeding of SCC No.1956/2015 pending on the file of 4th J.M.F.C. Akola, stands dismissed.
Rule is made absolute in the above terms. No order as to costs.
JUDGE kahale ::: Uploaded on - 29/06/2017 ::: Downloaded on - 30/06/2017 00:14:18 :::