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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Criminal Writ Petition No.320 of 2016
Manoj s/o Tularamji Bhande,
Aged about 29 years,
Occupation - Business,
R/o Vijay Laxmi Pandit Nagar,
Behind Ramna Maroti Temple,
Kharbi Road, Nagpur. ... Petitioner
Versus
1. The State of Maharashtra,
through Police Station Officer,
Police Station, Kamptee,
Tah. Kamptee, District Nagpur.
2. Smt. Chgindhabai Fattuji Gajbhe,
Aged about 55 years,
Occupation - Household.
3. Smt. Bindabai Gulab Gharat,
Aged about 52 years,
Occupation - Household.
Nos.2 and 3, R/o Village
Pandhurna, Tah. Kamptee,
Distt. Nagpur. ...Respondents
Shri M.P. Kariya, Advocate for Petitioner.
Smt. S.S. Jachak, Additional Public Prosecutor for
Respondent No.1.
Shri A.D. Dangore, Advocate for Respondent Nos.2 and 3.
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Coram : R.K. Deshpande, J.
th Dated : 6 October, 2017 Oral Judgment :
1. Rule, made returnable forthwith. Heard finally by consent of the learned counsels appearing for the parties.
2. The respondent Nos.2 and 3 are the original owners of the suit property, which was sold to the petitioner under the registered sale-deed dated 11-11-2011 for a total consideration of Rs.60,00,000/-. The respondent Nos.2 and 3 claim that they are in possession of the suit property, whereas the petitioner claims that he is in possession of the suit property. In this background, the respondent Nos.2 and 3 have filed Civil Suit No.3382 of 2012, which is pending in the Court of Civil Judge, Senior Division at Nagpur for a declaration that the sale-deed dated 11-11-2011 is null and void and not binding upon them.
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3. According to the respondent Nos.2 and 3, pages 2 and 4 of the draft sale-deed were replaced. In the draft sale-deed, there was a reference to four cheques issued in the name of the respondent Nos.2 and 3 by the petitioner and those are dishonoured. However, in the pages replaced, it is shown that the entire amount was paid in cash to the respondent Nos.2 and 3. Shri Kariya, the learned counsel for the petitioner, submits that he has produced receipts showing the payment of Rs.60,00,000/- in cash to the respondent Nos.2 and 3 on different dates, and it is urged by Shri Dangore, the learned counsel for the respondent Nos.2 and 3, that those receipts do not relate to the transaction in cash, which is the sale-deed dated 11-11-2011. It is urged that tendering of cheques, which are dishonoured and showing payment in cash of the consideration, is a mischief and without consideration, the property got transferred.
4. In the aforesaid background, the prosecution is initiated against the petitioner for the offences punishable ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:06:28 ::: 4 wp320.16.odt under Sections 420, 467 and 471 of the Indian Penal Code vide Crime No.M-1/13 dated 13-6-2013. According to Shri Kariya for the petitioner, the dispute is purely of a civil nature, and though the charge-sheet has been filed and the charge has also been framed, it is an abuse of process of Court. He has relied upon the following decisions of the Apex Court as well as of this Court :
1. 1999 Cri.L.J. 598 -
Nageshwar Prasad Singh alias Sinha v. Narayan Singh and another.
2. AIR 2006 SC 2780 -
M/s. Indian Oil Corporation v. M/s. NEPC India Ltd. and Ors.
3. AIR 2008 SC 251 -
Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors.
4. (2015) 8 SCC 293 -
Vesa Holdings Private Limited and another v. State of Kerala and others.
5. Judgment dated 31-8-2017 of the Division Bench of this Court [Smt. Vasanti A. Naik and ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:06:28 ::: 5 wp320.16.odt M.G. Giratkar, JJ.] in Criminal Application (APL) No.163 of 2017 -
Shri Suresh Gulabrao Choudhary v. State of Maharashtra, through P.S.O. of Police Station, Sadar, Dist. Nagpur, and another.
6. Judgment dated 5-9-2017 of the Division Bench of this Court [Smt. Vasanti A. Naik and M.G. Giratkar, JJ.] in Criminal Application (APL) No.501 of 2017 -
Vedprakash alias Appu s/o Chandiram Wadhwani and another v. The State of Maharashtra, through Police Station Officer, Sadar Police Station, Nagpur, and another.
7. Judgment dated 8-9-2017 of the Division Bench of this Court [Smt. Vasanti A. Naik and M.G. Giratkar, JJ.] in Criminal Application (APL) No.180 of 2017 -
Shabbir s/o Suleman Bohra v. State of Maharashtra, through Police Station Officer, Police Station Gondia City, Gondia, and another.
Shri Karia also submits that the ingredients of the offences are missing.
5. Keeping in view the stage of the criminal proceedings and leaving aside the question whether it is permissible for this Court to entertain this petition after ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:06:28 ::: 6 wp320.16.odt framing of the charge also, I do not find that it is a fit case where this Court should exercise the jurisdiction under Article 226 or 227 of the Constitution of India, or for that matter under Section 482 of the Code of Criminal Procedure. A civil suit may have been filed for claiming a declaration, but the peculiar facts of the case indicate that the petitioner can be tried even for the offences alleged against him. Several ways and means adopted by the petitioner creating obstructions in the trial have failed and the trial is delayed. In such a situation, I do not find any reason to interfere in this matter.
6. The petition is dismissed. Rule stands discharged.
7. The Trial Court shall not get influenced by any observation made in this judgment. However, it shall expeditiously proceed with the trial. The petitioner shall co- operate with the Trial Court in expeditious disposal of the trial. The adjournment on any count at the instance of any ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:06:28 ::: 7 wp320.16.odt of the parties shall not be on the costs less than Rs.5,000/- on each occasion, to be paid to the other side.
JUDGE.
Lanjewar ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:06:28 :::