Bombay High Court
Anil S/O. Jagdish Agrawal vs The State Of Maharashtra And Anr on 18 August, 2017
Bench: S.S. Shinde
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 3077 OF 2017
Anil s/o Jagdish Agrawal,
Age 58 years, Occu. Business,
R/o Flora Complex, Cannaught place,
Aurangabad ..Applicant
Versus
1. State of Maharashtra,
through CIDCO Police Station,
Taluka and District Aurangabad
2. Mr Damaji Gokul Patel,
Age 55 years, Occu. Business,
R/o 43, 44, 45, Gandhinagar,
Railway Station road,
Bansilal Nagar, Aurangabad ..Respondents
Mrs Rashmi S. Kulkarni, Advocate for applicant
Mr S.D. Ghayal, A.P.P. for respondent no.1
Mrs Monica Dahat, Advocate h/f Mr S.S. Patil, Advocate for respondent
no.2
CORAM : S.S. SHINDE AND
A.M. DHAVALE, JJ
DATE OF RESERVING
THE JUDGMENT : 8th August 2017
DATE OF PRONOUNCING
THE JUDGMENT : 18th August 2017
JUDGMENT (Per A.M. Dhavale, J.)
1. Rule. Rule returnable forthwith. With the consent of parties,
the matter is taken up for final disposal at admission stage.
2. This is an application under Section 482 of Cr.P.C. for quashing
F.I.R. registered at C.R.No.418/2017 at CIDCO Police Station,
Aurangabad for offences punishable under Sections 406, 420, 465,
468, 471 read with Sec. 34 of Indian Penal Code.
3. The facts relevant for deciding the present application may be
stated as follows :
(a) By lease agreement dated 21.11.1996, Plot No.6 from
Cannaught Place, N-5, CIDCO, Aurangabad was leased to Paritosh
Marketing Private Ltd., for a period of ninety years. The said company
constructed structures thereon. Hall Nos.1 and 2 admeasuring 1797
Square feet from building 'Ellora Complex' situated thereon is the
subject matter of dispute.
(b) on 11.5.2001, Suryakant Gupta, as a Director of Paritosh
Marketing Pvt.Ltd. executed agreement to sell of hall nos.1 and 2 in
favour of Shankarlal Gunwani. Out of total consideration of
Rs.6,26,200/-, Rs.4,26,000/- was advanced by Shankarlal Gunwani and
remaining amount of Rs.2 lakhs was to be advanced at the time of
registration. This agreement was unregistered. The applicant Anil
Agrawal and one S.K. Gupta were witnesses to the same.
(c) On 29.8.2008, Shankarlal Gunwani executed Memorandum Of
Understanding in favour of respondent no.2 Damaji Gokul Patel. It
shows that out of consideration of Rs.20 lakhs, Rs.12 lakhs were paid.
(d) The disputed property was standing in the CIDCO record in the
name of Paritosh Marketing Pvt. Ltd., but the taxes from the year
2011 onwards are paid by respondent no.2 - Damji. Meanwhile,
Paritosh Marketing Pvt. Ltd., changed its name as 'Star Wire (India)
Vidyut Pvt. Ltd.,' on 7.2.2007. The applicant's contention that it
merged with Star Wire company is not supported by documents.
(e) Surendrakumar Gupta, on 20.1.2016, executed registered deed
of assignment of the same property on behalf of Paritosh Marketing
company in favour of the applicant Anil Agrawal. It shows that entire
consideration of Rs.20 lakhs was paid at the time of agreement.
(f) As per investigation papers, Suryakant Gupta was Director of
Paritosh Marketing Pvt. Ltd., up to 25.7.1998 and thereafter, he has
resigned. Thus, he had no authority to sell the said property. Since
the applicant was attesting witness to the transaction between
Paritosh Marketing company and Shankarlal Gunwani, he was aware
that the property was not belonging to Surendrakumar Gupta nor he
was Director of the company. Before the agreement, the applicant
Anil had issued a public notice dated 10.5.2007 and respondent no.2
Damaji had replied the same vide paper publication dated 14.5.2017
and had raised objections, still the deed of assignment was executed.
The impugned F.I.R. was lodged on 3.6.2017 and it is registered for
the offences punishable under Sections 406, 420, 465, 468, 471 read
with sec.34 of Indian Penal Code.
3. Mrs Rashmi Kulkarni, learned Advocate for the applicant sought
quashing of F.I.R. on following grounds :
(I) It is essentially a civil dispute;
(ii) There was no inducing nor entrustment to attract Sections 406
and 420 of Indian penal Code. There is delay of one and half years in
lodging the F.I.R. This is an attempt to obtain specific performance
through criminal machinery.
(iii) The agreement to sell was unregistered and it did not create
any rights in favour of respondent no.2. It is a title dispute which can
be decided by civil Court.
4. Learned Advocate for the applicant relied on International
Advanced Research Centre for Powder Metallurgy and New
Materials (ARCI) and others, (2016) 1 SCC 348, wherein it is
discussed when provisions of Sections 420 are attracted.
5. She relied on Asoke Basak Vs. State of Maharashtra &
Ors., 2010 ALL SCR 2494 showing when provisions of Sections 405
and 409 of Indian Penal Code are attracted.
6. She also relied on Dalip Kaur and ors., Vs. Jagnar Singh
and Anr., 2009 (14) SCC 696. It is held in this case that if the
dispute between the parties was essentially civil dispute resulting
from breach of contract, same would not constitute offence of
cheating or criminal breach of trust.
7. Learned A.P.P. and learned Advocate for respondent no.2 have
opposed the application. They have contended that Surendrakumar
Gupta had no authority to enter into any transaction with respect to
property of Paritosh Marketing Pvt. Ltd., and the applicant was aware
of it. Still they have entered into agreement, which is a forgery. They
have cheated respondent no.2 and they are trying to disturb his
possession. Possession was with Shankarlal Gunwani and thereafter,
it is with respondent no.2. Therefore, it is essential to investigate the
crime and find out the real facts. Therefore, no interference by way of
invoking powers under Section 482 of Cr.P.C. is called for.
8. We have carefully considered the papers of investigation and
rulings cited.
9. We agree that there was no inducement by the applicant and
Surendrakumar Gupta to the respondent no.2 nor there was any
entrustment with respondent no2. Therefore, neither Section 420 nor
Section 406 of Indian Penal Code would be attracted.
10. We find that the Director of Paritosh Marketing Pvt. Ltd. has
executed agreement to sell in favour of Shankarlal Gunwani and he
has executed memorandum of understanding in favour of respondent
no.2. Respondent no.2 is in possession of tax receipts from 2011
onwards and claims to be in possession of the disputed property. At
the time of considering the issue of invoking powers under Section
482 of Cr.P.C., the Court is bound to proceed on assumption that the
facts stated in the F.I.R. and other documents are true and correct
unless those are inherently found to be improbable.
11. The applicant was attesting witness to the agreement executed
by Suryakant Gupta who was Director of Paritosh Marketing Pvt. Ltd.
The fact that the said agreement to sell was unregistered will not
make the said agreement non est. If the respondent no.2 is in
possession of the suit property under the said agreement, he will have
rights under the doctrine of 'part performance' of Section 53-A of the
Transfer of Property Act.
12. If Paritosh Marketing Pvt. Ltd through Director Suryakant Gupta
would have entered into agreement with the petitioner, it would have
been a civil dispute, but here the agreement is executed by
Surendrakumar Gupta, who had no authority on behalf of Paritosh
Marketing Pvt. Ltd. and in spite of objections of respondent no.2 and
in spite of knowledge about the previous agreement, the present
applicant has purchased the said property. Prima facie,
Surendrakumar Gupta and the present applicant have created false
document with intent to cause injury to respondent no.2 and Paritosh
Marketing Pvt. Ltd. Prima facie we find that the act of the present
applicant falls under the definition of forgery under Section 463,
punishable under Section 465 of Indian Penal Code. If the said
agreement is used as a genuine, it will be an offence under Section
471 of Indian Penal Code. Therefore, we find that it will not be proper
to quash the F.I.R. at this stage.
13. For the reasons stated above, we cannot accept that it is civil
dispute simplicitor. Hence, we hold that the petition deserves to be
dismissed. Hence, the following order :
ORDER
The Criminal Application is rejected. Rule is discharged.
The observations made herein above are prima facie in nature
and confined to adjudication of th present writ application.
( A.M. DHAVALE, J.) ( S.S. SHINDE, J.)
vvr
