Vinayak Vasant Papinwar And Ors vs The State Of Maharashtra And Anr
2017 Latest Caselaw 9839 Bom

                                         (1)                       Cri.WP 66 of 2006



       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD

                 CRIMINAL WRIT PETITION NO.66 OF 2006 

1)  Vinayak s/o Vasant Papinwar
    Age: 25 years, Occu.: Business,
    R/o.Bhavani Nagar, Kandhar,
    Kiroda, Tq.Loha, Dist.Nanded.

2)    Vishal s/o Vasant Papinwar
      Age: 22 years, Occu.: Business,
      R/o.Bhavani Nagar, Kandhar.

3)    Shilpatai w/o Govindrao Rahatkar
      Age: 26 years, Occu.: Household,
      R/o.Bhavani Nagar, Kandhar.                           ..Petitioners

               VERSUS

1)    The State of Maharashtra

2)    Sau.Kasturabai w/o.Prabhakar Jondhale
      Age: 32 years, Occu.: Agri. Household,
      R/o.Kiroda, Tq.Loha, Dist.Nanded.     ..Respondents
 
                           ...
Advocate for Petitioners    :  Mr.S.V.Kurundkar
APP for Respondent No.1      :  Mr.G.O.Wattamwar
Advocate for Respondent No.2  : Mr.P.S.Anerao 
                            ...
                                    CORAM         : PRAKASH D.NAIK, J.

RESERVED ON : 20th NOVEMBER, 2017 PRONOUNCED ON : 20th DECEMBER, 2017

JUDGMENT:-

1)    The   petitioners   are   challenging   the   criminal 




                                     (2)                     Cri.WP 66 of 2006

proceedings arising out of Regular Criminal Case No.99 of

2002 filed before the Court of Judicial Magistrate First

Class, Kandhar, Dist.Nanded.

2) The respondent No.2 is the complainant. The learned

Magistrate took cognizance of the complaint filed by the

said respondent for the offence punishable u/s 3(1) (iv)

(v) (ix) (xv) and Section 3(2)(v) of the Schedule Castes

and Scheduled Tribes (Prevention of Atrocities) Act, 1989

as well as Section 468 r/w Section 34 of the Indian Penal

Code. The cognizance was taken against the petitioners

and the complaint against other accused was dismissed.

3) The brief allegations made in the complaint are as

follows:-

(a) The complainant is a member belonging to

Scheduled Caste and is the resident of Kiroda. The

accused are not members of Scheduled Castes and

Scheduled Tribes and are residents of Kandhar. The

accused Nos.1, 2 and 4 have purchased the

(3) Cri.WP 66 of 2006

complainant's land. The accused No.3, 4, 5 and 9 are

relatives of accused Nos.1, 2 and 4. Accused Nos.6,

7, 8, 10, 11 and 12 are the servants of accused Nos.1

and 2.

(b) The husband of the complainant Mr.Prabhakar s/o

Sambhaji Jondhale is having ancestral landed property

in Gut Nos.91/1, 92, 105/7, 105/08, 105/9 to the

extent of 10 Acres, 4 Gunthe at village Kiroda,

Tq.Loha. The accused took advantage of alcoholic

addiction of husband of complainant and under the

pretext of offering consideration, they acted in

furtherance of common intention and by playing fraud

and forcing the husband of complainant to consume

Alcohol got executed the Sale Deeds in respect of

ancestral property in the share of husband of

complainant and transferred the same in the names of

accused Nos.1, 2 and 4 from 11.6.2001 to 21.5.2004.

The forged Sale Deeds came to be executed before Sub-

Registrar, Kandhar by giving false and frivolous

(4) Cri.WP 66 of 2006

information.

c) The accused Nos.1, 2 and 4 have transferred

house property No.634 in the precincts of

Municipality Kandhar by way of forged Sale Deed. The

accused Nos.3,5,6,7,8,9,10,11,12 and 13 assisted in

executing the said transaction in favour of accused

Nos.1, 2 and 4. The action of the accused falls

within the purview of offences described under the

Section 3 of the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act r/w Sections 34

and 468 of the Indian Penal Code.

d) The complaint was made to the Police Station,

Kandhar, however, the Police refused to take

cognizance. Subsequently, the complaint was sent by

registered Post to the Police. The complainant also

approached several authorities for taking action

against the accused, but no action was initiated

against them. Hence, private complaint was filed on

(5) Cri.WP 66 of 2006

13.7.2005.

4) The learned counsel for the petitioners advanced

following submissions:-

(i) The complaint is false and frivolous. The

complaint does not make out any offence.

(ii) The petitioners have purchased the house by

registered Sale Deed on 11.6.2001. The executant of

the Sale Deed is husband of respondent No.2, who has

delivered the possession of the house in favour of

petitioner No.1. The consideration was paid while

executing the Sale Deed. After execution of the Sale

Deed, the petitioners had applied for mutation of

property in the office of the Municipal Council. The

copy of the Sale Deed has been annexed to the

petition.

(iii) The application for mutation of property was

allowed and the name of the petitioner No.1 was

(6) Cri.WP 66 of 2006

recorded in the Municipal record. The petitioner

No.1 has paid the non-agricultural charges, which is

evident from the receipt. The petitioner No.1 is

paying municipal taxes, which is also supported by

the receipts issued by the Municipal Council. These

documents are annexed to the petition.

(iv) The petitioner has purchased house and lands and

house property from the husband of respondent No.2

and in all nine Sale Deeds were executed. Copies of

the Sale Deeds are annexed to the petition. The

first Sale Deed in respect of house property was

executed in the year 2001. The complaint was filed

in 2005. It is submitted that the proceedings are

initiated with a view to cause harassment to the

petitioners.

(v) Out of the nine Sale Deeds, six are of

agricultural lands and one is of house property,

which is the subject matter of the complaint. The

Sale Deeds were executed at different times.

(7) Cri.WP 66 of 2006

(vi) The allegation of the complainant that her

husband was induced to execute the Sale Deeds under

the influence of liquor has no basis. The fact that

the Sale Deed in respect of the house property was

executed in the year 2001 and the complainant was

silent for all these years shows that the complaint

is false and frivolous.

(vii) The provisions of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act, are

not applicable in the impugned complaint. The

petitioner No.1 has lawfully purchased the house

property. The executant has executed Sale Deeds

after receiving consideration and the name of the

petitioner No.1 was recorded in he Municipal record.

The transactions were executed in accordance with the

provisions of the Transfer of Property Act, and

therefore unlawfully dispossessing the owners of the

property does not arise. The complaint therefore

does not make out any offence under the Atrocities

(8) Cri.WP 66 of 2006

Act.

viii) The entire transaction is of civil nature

and no offences under the Indian Penal Code can be

made out. The transactions were executed with the

husband of the complainant and complaint was filed

belatedly with malafide intentions. The petitioner

No.1 was put into possession after executing Sale

Deed. The complainant started obstructing the

peaceful possession of the petitioner No.1. The

respondent No.2 and others opposed the petitioner

No.1 and his son unlawfully tried to enter in the

property by assaulting them. Complaint was filed

with the Police station Loha and the offence was

registered vide Crime No.56 of 2004 for the offences

punishable u/s 341, 147, 148, 149, 323, 504, 506 of

the Indian Penal Code. The complainant retaliated by

filing a cross complaint vide Crime No.57 of 2004 for

the offences punishable u/s 143, 147, 148, 149, 342

of the Indian Penal Code. The ingredients of Section

(9) Cri.WP 66 of 2006

468 of the Indian Penal Code are not attracted at

all. The respondent No.2 had raised objection about

mutation entries in favour of the petitioners in

respect of agricultural lands by Revenue Authority.

The objections were over-ruled. The appeals filed by

respondent No.2 and her husband are dismissed.

5) The learned counsel for the respondent No.2

submitted that the learned Magistrate had issued the

process against the accused on averments made in the

complaint and the material on record. No interference is

warranted in the order of process. It is further

submitted that the complaint makes out the offences and

the Trial Court has rightly issued the process. The

husband of the complainant was induced to execute the

Sale Deeds under intoxication and several properties were

alleged to have been sold to the accused. The

transactions were doubtful and there is reason to believe

that the documents were forged. The complainant belongs

to Schedule Castes and Petitioners are deliberately

( 10 ) Cri.WP 66 of 2006

dispossessing the complainant or her husband of the

property amounts to the offences stated in the complaint.

It is submitted that the complainant must be given an

opportunity to lead evidence before the Trial Court and

the proceedings should not be quashed at this stage.

Prima-facie case is made out for the issuance of process.

The petitioners are relying upon several documents as a

matter of their defence, which cannot be looked into now

and it would be open to them to lead appropriate defence

at the time of trial. It is further submitted that the

averments made in the complaint prima-facie makes out a

case for issuance of process. The Trial Court has

considered the fact that the complainant has examined

witnesses in support of her complaint. The said

witnesses examined by the complainant were independent

persons and after relying upon the evidence of the said

witnesses, process was issued. The statement of the

complainant was recorded, which was also supported by

other witnesses namely Prabhakar Jondhale, the husband of

the complainant, witness No.3 Pandit Jadhav and said

( 11 ) Cri.WP 66 of 2006

witnesses have supported the prosecution's case. In view

of the above, no case is made out to quash the

proceedings.

6) The complaint was filed on 13.7.2005. The

complainant alleges offences u/s 3(1) (iv), (v), (ix),

(xv) & 3(2) (v) of the Scheduled Caste and Schedule

Tribes (Prevention of Atrocities) Act and Section 468 r/w

Section 34 of the Indian Penal Code. The Trial Court

took cognizance of the complaint and issued summons to

the accused. The dispute relates to the property, which

was in the name of the complainant's husband. The

allegation is that the documents were prepared by

inducing the husband of the complainant under the

influence of liquor. The Sale Deed was executed on

11.6.2001. The complaint was filed after about four

years. The petitioners' contention is that the property

was purchased by executing the Sale Deed on 11.6.2001.

The executant of the Sale Deed is husband of the

complainant. The possession is with the petitioners. It

( 12 ) Cri.WP 66 of 2006

appears that the petitioners had applied for mutation of

the said property. The Sale Deed is apparently signed by

the husband of the complainant in the presence of the

witnesses. The property is house premises referred to

therein which was sold for consideration of

Rs.1,00,000/-. The consideration is also reflected in

the Sale Deed. The name of the petitioner No.1 is

recorded in the Municipality record, which is fortified

by the mutation entry, which has been annexed to the

petition. The petitioner No.1 has also paid the non-

agricultural charges and he has been paying the municipal

taxes, which is supported by the receipts. It also

appears that other than the property, which is the

subject matter of the complaint, the petitioners have

also purchased other landed properties by executing

documents. The said Sale Deeds were executed at

different times. The allegations of the complainant that

the husband was induced to execute the documents under

the influence of liquor speaks volumes of doubt. It is

therefore, apparent that there is a sale transaction

( 13 ) Cri.WP 66 of 2006

between the parties. It is open to the owner of the

property to challenge the execution of documents by

initiating civil proceedings. Hence, looking into the

documents of the Sale Deeds, it cannot be said that the

accused have committed offence under the provisions of

Schedule Caste and Schedule Tribes (Prevention of

Atrocities) Act or under Penal Code. To constitute the

said offences prima-facie, there has to be material to

show that owner of the property has been unlawfully

dispossessed.

7) In the aforesaid circumstances, no case for issuance

of process was made out for the said offence. The

documents speaks for itself and as long as the documents

are in existence and has sanctity of law, the genuineness

cannot be disbelieved. The evidence of the witnesses

examined by the complainant at the time of issuance of

process is not sufficient to issue process because Sale

Deed is executed between the petitioner No.1 and the

husband of the complainant, which is signed by the owner

( 14 ) Cri.WP 66 of 2006

and the witnesses of the purchaser of the property.

There is no evidence of forgery. There is no declaration

by any Court that the document is illegal of forged.

The criminal proceedings initiated against the

petitioenrs therefore requires to be quashed and set

aside. Hence, I pass the following order:-

ORDER

(I) Criminal Writ Petition No.66 of 2006 is allowed.

(II) The criminal proceedings arising out of Regular Criminal Case no.99 of 2002 pending before the Court of Judicial Magistrate First Class, Kandhar, Dist.Nanded, alongwith order issuing process dated 15.10.2015 are quashed and set aside.

                 (III)     The   petition   stands   disposed 
                 of.  
         
                                                     [PRAKASH D.NAIK, J.]
                                                  
SPT/Cri.WP 66 of 2006