Abhiman S/O Sukhdeo Bhosale vs Dilip S/O Manohar Takik And Others
2017 Latest Caselaw 2892 Bom

                                 1                                Cri.A-6486-15




            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

             CRIMINAL APPLICATION NO. 6486 OF 2015

 Abhiman S/o Sukheo Bhosale
 Age: 30 years, Occu: Agri. & Business,
 R/o: Neruda Tq. Patoda, District - Beed.                  ...APPLICANT

          versus

 1.       Dilip S/o Manohar Takik
          Age : 29 Occu. Agri./Service
          R/o : Umrad Jahangir, Tq. & Dist. Beed

 2.       Sachin Radhakisan Shelke
          Age : Major, Occu. & R/o As above,

 3.       Sandip S/o Eknath Chavan
          Age : Major, Occu. Agri.,
          R/o : Shahunagar,
          Tq. & Dist. Beed.

 4.       Sopan S/o Balbhim Shejwal
          Age : Major, Occu. & R/o As above

 5.       Ratipalsingh S/o Keshpalsingh Rajput
          Age : 61 yrs, Occu. Pensioner
          R/o : Bundelpura, Beed
          Tq. & Dist. Beed

 6.       Bappasaheb Kisan Narwade
          Age : 55 yrs. Occu. Business,
          R/o Pimparghavan road, Beed
          Tq. & Dist. Beed.

 7.       State of Maharashtra                   ...RESPONDENTS

                                   .....
 Mr.   S.J. Salunke, Advocate for applicant
 Mr.   A.G. Chaudhari, Advocate for Respondent No. 1 to 3 & 6
 Mr.   S.K. Naikwade, Advocate for Respondent No. 5
 Mr.   S.G. Karlekar, APP for Respondent No.7
                                    .....




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                                    2                                  Cri.A-6486-15


                                       CORAM :    S.S. SHINDE AND
                                                  K.K. SONAWANE, JJ.

                               RESERVED ON :     12th APRIL, 2017.

                           PRONOUNCED ON:         8th JUNE, 2017.


 ORAL JUDGMENT :- ( Per : K.K. Sonawane, J.)

1. Rule. Rule made returnable forthwith. Heard finally, with

consent of the parties.

2. This is an application under section 378(4) of the Criminal

Procedure Code (for short "Cr.P.C.) moved by the applicant-

complainant for grant of special leave to present appeal from the

order of acquittal of respondents No. 1 to 6 in criminal case initiated

upon the complaint bearing Regular Criminal Case No. 390 of 2012

passed by learned Judicial Magistrate, First Class, (Court No. 2),

Beed dated 31-10-2015 to redress his grievance.

3. The genesis of the petition culled-out in brief is that, the

complainant Shri Abhiman Sukhdeo Bhosale was in need of vacant

plot for construction of residential house. Accordingly, in the year

2011, respondent/accused Shri Dilip Manohar Takik approached to

the complainant through mediator respondent - accused No. 6 and

gave offer to purchase his plot No. 24 located in Survey No. 29/A of

village Wasanwadi, Ta. Beed. The consideration amount was fixed at

Rs.12,07,800/-. The complainant paid earnest amount of

Rs.4,00,000/- and got executed notarized document of agreement

3 Cri.A-6486-15

to sell. It was also agreed that rest of the consideration amount

would be paid on 28-01-2011. Respondents No. 2 and 3 were the

witnesses of said agreement to sell. It has been alleged that at the

time of execution of document of sale-deed it was transpired that

respondent No. 5- Ratipalsingh Keshapalsingh Rajput executed a

document of sale- deed, as owner of the plot. The complainant

made enquiry about the same. Respondents/accused No. 1 to 3

explained that they are the real owners of the property, but it was

shown purchased in the name of respondent No. 5 Ratipalsingh.

The documents of 7/12 extract, mutation entry, N.A. order etc.

were appended with the document of sale-deed. Thereafter, the

complainant paid entire consideration amount of Rs. 8,07,800/- to

the respondents/ accused Nos. 1 to 6 in presence of witnesses.

There was an error in the recitals of sale-deed in regard to Survey

number of the property under sale. Therefore, rectification deed was

executed in favour of complainant. Accordingly, name of the

complainant was mutated in the revenue as well as Gram Panchayat

record being owner of the property. The complainant was also

paying taxes of the plot to Gram Panchayat. However, on 18-06-

2012 complainant visited to the suit site with intention to make

construction of residential house on the plot. But, it was noticed that

there was already house constructed on the plot belonging to one

Mr. Radhakishan Shankar Londhe. On enquiry, it was learnt that Mr.

Radhakishan Londhe purchased the plot from original owner Smt.

Lata Navnath Naikwade, which came to be transferred in favour of

4 Cri.A-6486-15

Mr. Radhakisan. The complainant arrived at conclusion the that

respondents/accused played mischief and deceived him for wrongful

gain. In the result, complainant approached to the Police of

Shivajinagar Police Station, Beed to file the first information report

(for short "FIR"). But, it was advised to him by the concerned Police

to approach the Court of law. Therefore, the complainant rushed to

Court of learned Judicial Magistrate First Class, Beed and filed the

private complaint for the allegations of cheating and forgery against

respondents - accused.

4. The learned Magistrate verified the allegations and after

examination of complainant and his witnesses on oath, issued the

process against the respondents/accused. In order to establish guilt

of the respondents/accused before framing of charge, complainant

examined himself on oath at Exhibit-57. He has also adduced

evidence of CW-2 Gamesh Baburap Ranjwane at Exhibit-62, CW-3

Narendra Prbhakarrao Holkar at Exhibit-67 and CW-4 Maruti

Govindrao Waghamre at Exhibit-70. The learned Magistrate

appreciated the versions of complainant and his witnesses and

proceeded to frame the charge against respondents/accused under

sections 420, 419, 465, 467, 468 and 471 read with section 34 of

the IPC. Respondents/accused denied the charges and pleaded not

guilty. They claimed for trial. The accused proceeded to cross-

examination of complainant and his witnesses. Statements of

respondents/accused under section 313 of the Cr.P.C. came to be

5 Cri.A-6486-15

recorded. Respondents/accused in defence adduced the evidence of

witness Madhusudan Shamrao Bahegaonkar to prove their

innocence. The learned Magistrate appreciated oral and

documentary evidence on record and arrived at the conclusion that

complainant failed to prove the charges against respondents/

accused beyond all reasonable doubt. In the result, the learned

Magistrate proceeded to acquit respondents/accused No. 1 to 6 for

the charges pitted against them and passed the impugned order,

the validity, legality and propriety of which is to be agitated in the

appeal preferred under section 378 of Cr.P.C. Therefore,

applicant/complainant preferred present application under Section

378(4) of Cr.P.C. seeking special leave to present the appeal from

the impugned order of acquittal of respondent No. 1 to 6 in the

criminal proceedings bearing Regular Criminal Case No. 390 of 2012

initiated upon the complaint of applicant/complainant.

5. The learned counsel for the applicant vehemently submitted

that impugned findings expressed by learned trial Court is

erroneous, illegal and not within purview of law. The learned

Magistrate failed to appreciate the circumstances on record in its

proper perspective. The learned trial Court ought to have considered

that there was transaction in regard to sale of the contentious plot

and respondents/accused played mischief for wrongful gain and

forged the document of sale-deed executed in favour of

complainant. The document produced on record itself proved

6 Cri.A-6486-15

circumstances of cheating and forgery. The applicant/ complainant

has good case and hope of success in the appeal. The person,

namely, Radhakishan Londhe was the owner of plot and

respondents / accused committed mischief and alienated the

property of Radhakishan Londhe in favour of complainant for

wrongful gain. The documents produced on record are sufficient to

prove the fraud on the part of respondents/accused. Hence, he

requested to grant special leave to present the appeal against

impugned judgment and order of acquittal of respondents/ accused

by learned Magistrate in this case.

6. The learned counsel for respondents/accused raised objection

to the contentions propounded on behalf of applicant/complainant

and submit that findings expressed by learned trial Court are just,

proper and reasonable one. The dispute pertains to the contentious

plot and was based on documents. The matter-in-issue is required

to be determined by the Civil Court. It cannot be said that

respondents/accused cheated and deceived the complainant by

forgery. Hence, they prayed for dismissal of application.

7. We have considered the arguments canvased on behalf of

both sides. We have also perused the documents produced on

record including findings expressed by the learned trial Court. It is

worth to mention that complainant preferred criminal proceeding

against respondents / accused for the allegation of cheating and

forgery. It has been alleged that respondent -accused No. 5 -

7 Cri.A-6486-15

Ratipalsingh was not the owner of plot No. 24 located in Survey

No. 29/A/1 and despite the same he ventured to alienate the same

in favour of complainant for wrongful gain and thereby committed

an offence of cheating and forgery. It would be reiterated that entire

edifice of the complainant's case is rest on the revenue documents

as well as documents of sale pertains to plot No. 24 located in

Survey No. 29/A/1. It has been alleged that property belonging to

Arjun Gore came to be sold in favour of complainant by executing

forged document. However, scrutiny of the findings expressed by

learned trial Court reflect that the conclusion drawn by the learned

Magistrate for acquittal of respondents / accused appears just,

proper and reasonable one.

8. It would fallacious to appreciate that respondents/accused

cheated the complainant by selling the land of Mr. Radhakishan

Londhe by pretending themselves to be owner of the property. The

revenue documents reflect that accused No. 5 - Ratipalsingh was

the owner of property bearing plot No. 24 in Survey No. 29/A/1

located in village Vasanwadi Beed. Admittedly, the dispute pertains

to exact location of the plot No. 24 and its four boundaries. Prima

facie it appears that there was no criminal intention of

respondents/accused to deceive the complainant/ applicant. In such

circumstances, we do not find any propriety to grant special leave to

the applicant/complainant to file appeal against impugned order of

acquittal of respondents/ accused in this case.

8 Cri.A-6486-15

10. In view of attending circumstances on record as discussed

above, in case, the appeal is allowed to be filed on behalf of the

applicant, it would be futile efforts and dissipate precious time of the

Court. In our opinion, the chances of an ultimate conviction are

bleak. Therefore, no useful purpose is likely to be served by allowing

the applicant to proceed further for appeal against the impugned

verdict of acquittal of the learned trial Court. Therefore, we are not

inclined to grant special leave as envisaged under section 378(4) of

the Cr.P.C. Hence, application being devoid of merits deserves to be

dismissed. Accordingly, application stands dismissed. Rule stands

discharged. No order as to costs.

                           Sd/-                               Sd/-

              [ K. K. SONAWANE, J.             [ S.S. SHINDE, J.]




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