Abdul Arif Abdul Khalik And ... vs Sk. Rahaman Sk. Sheru Qureshi And 2 ...
2017 Latest Caselaw 8350 Bom

207-J-APPLN-3148-09                                                                         1/7


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

             CRIMINAL APPLICATION (APL) NO.3148 OF 2009

 
1.  Abdul Arif Abdul Khalik
     Aged about 51 years. Occ. Business, 
     R/o Akot, (Kazipura Locality), 
     Tq. Akot, Dist. Akola, 

2.  Abdul Razik Abdul Khalik,
     Aged about 56 years, Occ. Business, 
     R/o Akot, (Tekdipura Locality), 
     Tq. Akot, Dist. Akola.                                    ... Applicants. 
     
-vs-

1.  Sk. Rahaman Sk. Sheru Qureshi,
     Aged about 59 years, 
     Occ. Agriculturist, R/o Akot, 
     Kasabpur Locality, Tq. Akot, 
     Dist. Akola. 

2.  Mohd. Idris Abdul Khalik,
     Aged about 41 years, Occ. Agriculturist, 
     R/o Akot, Bada-Alva, 
     Tq. Akot, Distt. Akola, 

3.  The State of Maharashtra,
     Through P.S.O. Akot, Tq. Akot, 
     Dist. Akola.                                              ... Non-applicants.   

Shri K. J. Tople, Advocate for applicants.  
Shri L. A. Mohta, Advocate for non-applicant Nos.1 and 2. 
Shri A. Madiwale, Additional Public Prosecutor for non-applicant No.3/State.

                                 CORAM  :  A. S. CHANDURKAR, J. 

DATE : November 02, 2017

Oral Judgment :

By this application filed under Section 482 of the Code of

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Criminal Procedure, 1973 (for short, the Code), the applicants who are

accused Nos.1 and 2 in Criminal Case No.39/2008 filed by the non-applicant

No.1 under Section 420 of the Indian Penal Code (for short, the Penal Code)

have challenged the order issuing process against them which order has been

confirmed by the Sessions Court.

2. Facts in brief are that the applicants and one Mohd. Idris are three

brothers. On 23/03/2004 a partition deed was executed between these

brothers dividing Gat No.123 in three parts. Applicant No.1 herein received

land admeasuring 1H 68 R from said Gat number which was situated in the

middle portion. Applicant No.2 received similar area of land situated on the

southern portion while the third brother Mohd. Idris received his share on

the northern side. Mutation entries were accordingly taken. On

05/12/2007, an agreement was entered into by the present applicants with

the non-applicant No.1 herein for selling of their portion of Gat No.123. The

consideration agreed was Rs.2,25,000/- and Rs.50,000/- was received as

earnest amount. The non-applicant No.1 filed a suit for declaration and

permanent injunction being R.C.S. No.41/2008 praying that the three

brothers should get their shares demarcated as he had agreed to purchase the

shares of present applicants on 05/12/2007. Thereafter on 25/03/2008

complaint under Section 420 of the Penal Code came to be filed against all

the three brothers in which it was stated that possession of the agreed

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portion was not been handed over to the non-applicant No.1. The learned

Magistrate on 23/08/2008 issued process for the offence punishable under

Section 420 of the Penal Code. The applicants herein challenged that order

by filing revision application which came to be dismissed by the Sessions

Court on 06/08/2009. Being aggrieved the present application under

Section 482 of the Code has been filed.

3. Shri K. J. Tople, learned counsel for the applicants submitted that

the dispute was clearly of a civil nature and no element of cheating as

contemplated by Section 415 of the Penal Code was shown to be made out in

the complaint. According to him on perusal of the entire complaint, it could

be seen that the grievance of the non-applicant No.1 was that in the 7/12

extract there was no entry with regard to the specific portions of land from

Gat No.123 allotted to each of the accused persons. Though the accused

persons were requested to have such entries made, the same were not done.

As the applicants did not comply with the promise made by them, they had

cheated the non-applicant No.1. The learned counsel submitted that the

properties had been duly partitioned and 7/12 extracts had been specifically

prepared. Even the pleadings in the civil suit indicated that the applicants

were ready to perform their part of agreement and hence permitting a

complaint of such nature to proceed further would amount to abuse of the

process of law. In support of this submission, the learned counsel placed

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reliance on judgment of the Honourable Supreme Court in Dalip Kaur &

ors. vs. Jagnar Singh and anr. 2009 ALL MR (Cri) 3160.

4. Per contra Shri L. A. Mohta, learned counsel for the non-applicant

No.1-complainant opposed aforesaid submissions. According to him, merely

because the non-applicant No.1 had filed a civil suit, the same would not

make a dispute as one of civil nature. According to him, the applicants never

intended to fulfill the promise as made and the agreement entered into. The

revenue record also did not indicate their specific shares. The applicants

intended to cheat the non-applicant No.1 since inception and therefore the

learned Magistrate was justified in issuing process in the complaint. It was

then submitted that the Sessions Court having confirmed the earlier order,

this Court should not exercise jurisdiction under Section 482 of the Code. In

support of his submissions, the learned counsel placed reliance on the

decisions in M/s Medchl Chemicals and Pharma Pvt. Ltd. vs. M/s

Biological E. Ltd. and ors. AIR 2000 SC 1869, Yashwant Bapur Parit vs.

State of Maharashtra 2007(1) Mh.L.J. 834, K. K. Singhal and ors. vs.

Steel Strips Ltd. 2015 ALL MR (Cri) 343 and Central Bureau of

InvestiGation v. Maninder Singh AIR 2015 SC 3657.

Shri A. Madiwale, learned Additional Public Prosecutor appeared

for the non-applicant No.3.

207-J-APPLN-3148-09 5/7

5. With the assistance of learned counsel for the parties I have

perused the documents placed on record. I have also given due

consideration to their respective submissions. A perusal of the complaint

filed by the non-applicant No.1 under Section 420 of the Penal Code

indicates that according to the complainant, it was represented by the three

brothers-accused on 05/12/2007 that applicant No.1 owns the middle

portion of Gat No.123 while applicant No.2 also owns a specific portion in

the southern portion of said Gat number. The 7/12 extract however did not

have any such entry. Paragraph 2 of the complaint reads as under :

'2. However, in 7/12 extract there is no any entry of such specific portions in the name of accused Nos.1 and 2. The accused were requested to get such entries done but the accused Nos.1 and 2 are not prepared for the same and are also not prepared for measuring and handing over possession of such specific portions and executing sale deed.'

It is on the basis of these averments that it is the case of the non-

applicant No.1 that he was cheated by the applicants.

6. On a reading of the entire complaint it is clear that even if all the

statements made in the complaint are taken at their face value, the same

would not give a rise to offence punishable under Section 420 of the Penal

Code. In the civil suit filed by the non-applicant No.1 prior to lodging this

complaint, it is his specific case that the agreement dated 05/12/2007 was

207-J-APPLN-3148-09 6/7

entered into with the present applicants. The accused No.3 was however

creating a cloud over the title of the applicants. Though the non-applicant

No.1 was ready to complete the transaction, the accused No.3 was not

permitting the same to be executed. In that suit written statement has

been filed by the present applicants indicating their readiness and willingness

to perform their part of the agreement.

7. The parameters for exercise of jurisdiction under Section 482 of

the Code have been referred to in Dalip Kaur and ors. (supra). It has

been observed that if the allegations made in the complaint even when taken

at their face value and treated to be correct disclose no cognizable offence,

then such jurisdiction for quashing the proceedings can be exercised. As

noted above the complaint does not refer to any inducement on the part of

the applicants to sell the land to the non-applicant No.1 or that since

inception, the applicants intended to cheat the non-applicant No.1. It is well

settled that for attracting the provisions of Section 418 and 420 of the Penal

Code, the guilty intent while making a promise is a requirement and mere

subsequent failure to fulfill the terms by itself would not attract the

aforesaid provisions. On reading the complaint as a whole, I find that these

basic ingredients are missing in the complaint. Though it is true that merely

because a civil remedy has been invoked, the same by itself would not be a

ground for quashing the criminal proceedings. But if the complaint itself is

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bereft of necessary ingredients prima facie making out an offence, then the

complaint is liable to be quashed. On a plain reading of the complaint itself

I am convinced the same does not satisfy the requirements of law. The

contention that since the order of learned Magistrate has been confirmed by

the Sessions Court, no interference is called cannot be accepted. The learned

Judge of the Sessions Court failed to examine the averments made in the

complaint and that no offence was made out. I find that permitting the

present proceedings to continue would amount to an abuse of the process of

law.

8. In view of aforesaid, the impugned order issuing process is liable

to be set aside. Accordingly the order dated 06/08/2009 passed in Criminal

Revision No.21/2008 is quashed and set aside. The revision application

moved by the applicants herein stands allowed. Criminal Case No.39/2008

accordingly stands quashed. The application is allowed with no order as to

costs.

JUDGE

Asmita