Sharda Shahurao Waghmare vs Bhanudas Laxman Karale & Ors
2016 Latest Caselaw 7049 Bom

                                       (1)      Cri. Revn. Appln. No. 387 of 2003




              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                   AURANGABAD BENCH, AT AURANGABAD.




                                                                            
              Criminal Revision Application No. 387 of 2003




                                                    
                                                       District : Ahmednagar
                              
    Sharda d/o. Shahurao Waghmare,
    Age : 40 years,




                                                   
    Occupation : Household,
    R/o. Heritage Apartment,
    Station Road, Ahmednagar,                  .. Applicant
    District Ahmednagar.                          (Original plaintiff)




                                        
              versus
                               
    1. Bhanudas s/o. Laxman Karale,
       Age : 49 years,
       Occupation : Agriculture. 
                              
    2. Machhindra s/o. Laxman Karale,
       Age : 41 years,
       Occupation : Agriculture.
      

    3. Babasaheb @ Balasaheb s/o.
       Bhanudas Karale,
   



       Age : 23 years,
       Occupation : Agriculture.

      All R/o. Newasa Phata,                   .. Non-applicants
      Taluka Newasa,                              (Nos.1 to 3 -





      District Ahmednagar.                         Original accused)

    4. The State of Maharashtra. 

                                     ............





          Mr. Ameya N. Sabnis, Advocate, for the applicant.

          Mr. V.R. Dhorde, Advocate, instructed by
          Mr. R.N. Dhorde, Senior Advocate, for non-applicant
          nos.01 to 03.  

          Mr. K.S. Hoke Patil, Addl. Public Prosecutor, for
          non-applicant no.04. 




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                                        (2)      Cri. Revn. Appln. No. 387 of 2003




                                     ............




                                                                            
                                     CORAM : Z.A. HAQ, J.

DATE : 07TH DECEMBER 2016

ORAL JUDGMENT :

Heard learned Advocates for the respective parties.

02. The applicant filed complaint against non- applicant nos.01 to 03 alleging that the non-

applicants cheated her by inducing her to execute sale deed in respect of 20 Gunthas of agricultural

land and not paying the amount of consideration i.e. Rs. 27,000/-. The learned Magistrate considered the material placed on record by the applicant and passed

an order on 03rd March, 2001 directing issuance of

process against the non-applicant nos.01 to 03 for offence punishable under Section 420 read with Section 34 of Indian Penal Code.

The non-applicant nos.01 to 03 filed an application (Exhibit No. 38) praying that the order directing issuance of process be recalled. This

application was rejected by the learned Magistrate by the order passed on 20th January, 2003.

Being aggrieved in the matter, the non-applicant nos.01 to 03 filed Revision Application before

(3) Cri. Revn. Appln. No. 387 of 2003

Sessions Court which is allowed by the impugned judgment. The Sessions Court has set aside the order

passed by the learned Magistrate and has dismissed the complaint filed by the applicant. The applicant

has challenged this order in the Revision Application.

03. The submission on behalf of the applicant is that the learned Addl. Sessions Judge has committed an error in dismissing the complaint filed by the

applicant, on the ground that the dispute is of a

civil nature and the applicant cannot file and maintain the complaint for offence punishable under

Section 420 of the Indian Penal Code.

04. In support of the above two submissions, the

learned Advocate for the applicant has relied on the following judgments :-

[1] Judgment given by the Hon'ble Supreme Court in the case of A.R. Antulay

Vs. Ramdas Sriniwas Nayak & another, reported in (1984) 2 SCC 500.

[2] Judgment given by this Court at Nagpur Bench in the case of

Shriram Krishnappa Asegaonkar Vs. State of Maharashtra & another, reported in 1986 Mh.L.J. 1004.

[3] Judgment given by the Andhra Pradesh High Court in the case of Polavarapu Jagadiswara Rao Vs. Kondapaturi Venkateswarlu & another, reported in

(4) Cri. Revn. Appln. No. 387 of 2003

1991 Cr.L.J. 1419.

[4] Judgment given by the Hon'ble Supreme

Court in the case of Indian Oil Corporation Vs. NEPC India Ltd. & others, reported in (2006) 6 SCC 736.

[5] Judgment given by the Hon'ble Supreme Court in the case of V.R. Dalal & others Vs. Yougendra Naranji Thakkar

& another, reported in (2008) 15 SCC

It is submitted that the Court, at this stage is

required to consider whether there is prima facie

case against the accused on the basis of which the non-applicant nos.01 to 03 can be prosecuted and the

Magistrate, after appreciating the material on record, was satisfied that the applicant had brought on record sufficient evidence on the basis of which

the non-applicant nos.01 to 03 are required to be prosecuted. It is argued that the learned Addl.

Sessions Judge has committed an error of jurisdiction by dismissing the complaint of the applicant on

untenable grounds and, therefore, the impugned judgment is required to be set aside.

05. The learned Advocate for the non-applicant

nos.01 to 03 has referred to the copy of the judgment passed in Regular Civil Suit No. 404/2000 and has submitted that the findings recorded by the Civil Court in the judgment falsify the claim of the applicant that she is deceived by the non-applicant

(5) Cri. Revn. Appln. No. 387 of 2003

nos.01 to 03 and the sale deed is got executed fraudulently. It is submitted that the claim of the

applicant is per se false as the sale deed is not executed by the applicant but it is executed by Dipak

Shahurao Waghmare (brother of the applicant) and the applicant is signatory to the sale deed only as a witness. It is submitted that the sale deed contains

an averment that the amount of consideration is received by the vendor i.e. Dipak Shahurao Waghmare (brother of the applicant) and there is no complaint

from the vendor Dipak Shahurao Waghmare that the

amount of consideration is not paid by the non- applicant nos.01 to 03. It is submitted that the

applicant has not examined Dipak Shahurao Waghmare to substantiate her contention that the amount of consideration is not paid by the non-applicant nos.01

to 03. It is argued that in these facts the complaint filed by the applicant was not maintainable

and it is rightly dismissed by the Sessions Court. To support the argument, the learned Advocate for the

non-applicant nos.01 to 03 has relied on the judgment given in the case of S.N. Palanitkar & others Vs. State of Bihar & another, reported in AIR 2001 SC 2960.

06. After examining the documents placed on the record of the Revision Application, I find that the sale deed in question is executed by Dipak Shahurao Waghmare and it is signed by the applicant as a witness. There is nothing on record to show that the

(6) Cri. Revn. Appln. No. 387 of 2003

applicant executed the sale deed in question. The sale deed contains an averment that the amount of

consideration is received. It is unexplained why Dipak Shahurao Waghmare is not examined by the

applicant to substantiate her contention that the amount of consideration is not paid by the non- applicant nos.01 to 03.

07. The complaint is filed by the applicant on the premise that the property which is sold by the

sale deed dated 18th December, 1998 was ancestral

property. Sau. Sadhana Kishor Misal (sister of the applicant) had filed Regular Civil Suit No. 404/2000

seeking decree for partition, separate possession, declaration and injunction, which is dismissed by the Court by judgment given on 01st December, 2005. The

applicant has not placed anything on record to show that she has challenged the judgment and decree

passed in Regular Civil Suit No. 404/2000 or has filed separate Suit praying for decree for partition

and possession and other reliefs.

08. In the judgment given by the Hon'ble Supreme Court in the case of S.N. Palanitkar & others (supra),

it is laid down that unless the ingredients of offence of cheating are prima facie made out in the complaint, there cannot be an order of issuance of process for the offence. In paragraph No.10 of the judgment, the ingredients of the offence of cheating

(7) Cri. Revn. Appln. No. 387 of 2003

are discussed as follows :-

" The ingredients of an offence of cheating are : (i) there should be fraudulent

or dishonest inducement of a person by deceiving him, (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person

shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived;

and (iii) in cases covered by (ii)(b), the act of omission should be one which causes or

is likely to cause damage or harm to the person induced in body, mind, reputation or

property. "

Considering the proposition laid down in the above judgment, and as the necessary ingredients

discussed in Clause (ii)(a) above, are not satisfied,

inasmuch the sale deed is not executed by the applicant but is executed by her brother Dipak Shahurao Waghmare and as the applicant has not even

pleaded that she is induced to deliver the property to the non-applicant nos.01 to 03 by deception, in my view, the order directing issuance of process against

the non-applicant nos.01 to 03 for offence punishable under Section 420 of Indian Penal Code could not have been passed.

09. I do not find any illegality in the judgment

(8) Cri. Revn. Appln. No. 387 of 2003

passed by the Sessions Court.

The Revision Application is dismissed. In the circumstances, the parties to bear their own costs.

( Z.A. HAQ )

JUDGE

..........

puranik / CRIREVNAPPLN387.03