Bombay High Court
Randhir Pralhadrao Sawarkar vs Pradipkumar Popatlal Wakhariya ... on 23 June, 2017
Bench: V.M. Deshpande
1 apl239.17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION NO.239/2017
Randhir Pralhadrao Sawarkar,
aged about 52 years, Occ. Agriculturist
and business, r/o Ranpise Nagar,
Akola, Tq. Dist. Akola. .....APPLICANT
...V E R S U S...
1. Pradipkumar Popatlal Wakhariya,
aged about 61 years, Occ. Social Service,
R/o 46, Vasudha, Adarsha Colony,
Akola, Tq. Dist. Akola.
2. Manoj Motilal Apurva,
aged 40 years, Occ. Professor,
R/o Birla B. Colony, Akola,
Tq. Dist. Akola.
3. State of Maharashtra through
D.G.P., Akola. ...NON APPLICANTS
-------------------------------------------------------------------------------------------
Mr. J. B. Gandhi, Advocate for applicant.
Mr. M. Badar, Advocate for non applicant nos. 1 and 2.
A.P.P. for non applicant no.3-State
-------------------------------------------------------------------------------------------
CORAM:- V. M. DESHPANDE, J.
DATED :- 23.06.2017
ORAL JUDGMENT
1. Rule. Rule returnable forthwith. I have heard Mr. J. B.
Gandhi, learned counsel for the applicant and Mr. M. Badar,
learned counsel for non applicant nos. 1 and 2 extensively.
2 apl239.17.odt
2. The applicant has contested an election for Legislative
Assembly, Akola (East). He filed nomination paper on 27.09.2014.
As required, an affidavit in respect of his properties was also filed.
3. The non applicant no.1 has filed a complaint under
Section 125-A of the Representation of Peoples Act in the Court of
Chief Judicial Magistrate, Akola for filing false affidavit by
suppressing the material facts and giving false information along
with nomination form submitted for contesting the assembly
election. The said case was registered as Criminal Case
No.1956/2015. The learned Magistrate issued the process by
order dated 08.09.2015.
4. The present applicant preferred Criminal Revision
No.43/2016 before the Sessions Court, Akola and the learned
revisional Court dismissed the said revision. Hence, the present
application under Section 482 of Cr. P. C. is filed.
5. The sum and substance of the complaint shows that
though by virtue of the sale deed dated 05.10.2012 the applicant
3 apl239.17.odt
purchased 7 plots at mouza Umari, in the affidavit he has shown
only 6 plots at mouja Umari and therefore according to the
complainant it is an incorrect and false information provided in
the affidavit.
6. The learned counsel for the applicant pointed out that
at the time of filing of the revision, various documents were filed
on record. It is an admitted position that by virtue of the sale deed
dated 05.10.2012, the applicant purchased 7 plots at mouja
Umari. Plot no. 91 is not mentioned in the affidavit. The learned
counsel invited my attention to a sale deed dated 15.12.2014,
which is duly registered with Sub Registrar showing that the plot
no. 91 was sold to the purchaser whose names are mentioned in
the said sale deed. Thus on 15.02.2014, the present applicant
loses his title as owner of the plot no.91. In that view of the
matter, no fault can be attributed to the applicant if he did not
mention that he is the owner of the plot no. 91 in the affidavit
filed along with nomination papers.
7. The second contention on behalf of the original
complainant is that though 7 plots are purchased by the present
4 apl239.17.odt
applicant in the name of M/s. Unnati Associates, there is no
mention in the affidavit. From the complaint itself it is clear that
those 7 plots were actually belonging to M/s. Akola Oil Industries
which went into liquidation and the property came in the hands of
the Official Liquidator appointed by this Court. From paragraph 4
of the complaint itself it is crystal clear that M/s. Unnati Associates
was the highest bidder for those 7 plots and only the earnest
money is paid. No doubt true that the present applicant is one of
the partners of M/s. Unnati Associates, which is a partnership firm.
However, it is not in dispute that as on today or on the date when
the nomination papers were filed by the present applicant, the sale
deed was not executed in favour of M/s. Unnati Associates by the
Official Liquidator of this Court. In that view of the matter, it
cannot be attributed that on the day of filing of the nomination
papers, either M/s. Unnati Associates or the present applicant is
owner of the property. Therefore, the charge of the complainant
that though the applicant was holding title and ownership of those
plots and in spite of that those were not mentioned, in my view, is
contrary and misconceived.
5 apl239.17.odt
8. Another point that is pleaded in the complaint is that
by virtue of the sale deed dated 03.05.2014, a registered sale deed
bearing No.1783/2014, the applicant has purchased another
immovable property and the said is also not mentioned in the
affidavit. My attention is invited to the said sale deed which is
available on record at Annexure "D" at page no. 68 of the
compilation. The said sale deed shows that the present applicant
was one of the purchasers along with other 6 persons whose
names are mentioned in the said sale deed and his share was
shown as 7.50%. Mr. Gandhi then invited my attention to page
no. 105 of the compilation and pointed out that the said share of
7.50% is already mentioned in the affidavit.
9. The Courts are always under an obligation to issue
process after verification of the documents. The issuance of
process is a very drastic step since it invites the criminal
prosecution against the person against whom the process is issued.
Therefore, it is expected from the Courts while issuing process that
it should not be issued mechanically.
6 apl239.17.odt
10. When all these documents were available on record, at
least before the learned revisional Court, it was the duty of the
learned revisional Court to verify those documents and ought to
have applied its mind in correct perspective and ought to have
decided the revision in accordance with law. Merely an
observation that the applicant has suppressed the material facts is
not sufficient when the documents, prima facie, show otherwise.
11. Though the learned counsel for the non applicant relies
on the judgments in Smt. Nagawwa.vs.Veeranna Shivalingappa
Konjalgi & ors; (1976) 3 SCC 736, Rukmini Narvekar.vs.Vijaya
Satardekar & Ors;(2008)14 SCC 1, State of Madhya Pradesh
.vs.Surendra Kori; (2012) 10 SCC 155, Imtiyaz Ahmad.vs.State
of U.P. & Ors.; AIR 2012 SCC 642, and Sonu Gupta.vs.Deepak
Gupta & Ors; 2015 ALL MR (Cri)1192 (S.C.), in the peculiar
facts and circumstances of the present case and looking to the
documents available on record, I am of the view that those
judgments are distinguishable. Hence, I do not feel it necessary to
deal with each ruling in extenso.
7 apl239.17.odt
12. In the result, the Criminal Application is allowed. The
order dated 08.09.2015 in Summary Criminal Case No.
1956/2015 passed by 4th J.M.F.C. Akola and the order dated
08.03.2017 in Revision No.43/2016 passed by Additional Sessions
Judge-2, Akola are hereby quashed and set aside.
The proceeding of SCC No.1956/2015 pending on the
file of 4th J.M.F.C. Akola, stands dismissed.
Rule is made absolute in the above terms. No order as
to costs.
JUDGE
kahale
