Bombay High Court
Dr Bharatsingh S/O Dattusingh ... vs The State Of Maharashtra And Anr on 13 November, 2017
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
CRIMINAL APPLICATION NO. 816 OF 2017
1. Dr. Bharatsingh S/o Dattusingh Gahelot,
Age : 73 years, Occu. Retired,
R/o. Ravindra Nagar, Nanded.
2. Suresh S/o Rajendra Bulbule,
Age : 73 years, Occu. Businessmen,
R/o. Pundlikwadi, Nanded.
3. Subhash S/o Rajendra Bulbule,
Age : 60 years, Occu. Businessmen,
R/o. Pundlikwadi, Nanded.
4. Shailesh S/o Janardhan Kolekar,
Age : 33 years, Occu. Student,
R/o. Yashwant Nagar, Nanded.
5. Umesh S/o. Janardhan Kolekar,
Age : 37 years, Occu. Medical Practitioner,
R/o. Yashwant Nagar, Nanded. ... Applicants
(Orig. Accused)
VERSUS
1. The State of Maharashtra,
Through Incharge Police Station Officer,
Police Station, Bhagya Nagar, Nanded,
Tal. & Dist. Nanded.
2. Dr. Krantikumar S/o. Nandlal Sharma,
Age : 70 years, Occu. Advocate,
R/o. BMC Colony, Nanded - 05. ...Respondents
..........
Mr P. R. Katneshwarkar, Advocate for the applicants
Mr M. M. Nerlikar, APP for respondent/State
Respondent No. 2 - in-person.
.............
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CORAM : S. S. SHINDE &
A. M. DHAVALE, JJ.
RESERVED ON : 08.09.2017.
PRONOUNCED ON : 13.11.2017.
JUDGMENT (PER A. M. DHAVALE, J.) :-
1. This is an application u/s 482 of Cr.P.C. praying for
quashing and setting aside of FIR at C.R. No. 294/2016 registered at
Bhagyanagar Police Station, Nanded for offences u/s 420, 464, 471
r/w 34 of IPC against the applicants, who are original accused nos. 1
to 5, respectively.
2. Respondent No. 2 - Krantikumar S/o Nandlal Sharma is an
advocate by profession. On 16.12.2016, he lodged the FIR at
Bhagyanagar Police Station. As per his FIR, he and applicant no. 1 -
Bharatsingh, applicant no. 2 - Suresh & applicant No. 3 - Subhash on
21.04.82 jointly purchased land of 4 acres 8 gunthas at survey no.
30B, Samata Nagar, Wadi (B), Nanded. The applicants no. 1 to 3
represented to the others that there was a partnership firm formed
between applicants no. 1 to 3 and respondent no. 2 and executed a
bogus retirement agreement in the name of respondent no. 2. The
said bogus agreement dt. 05.06.1986 was produced before the High
Court, Aurangabad in 2015 and the High Court has decided that it
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was bogus and illegal. It was held that, the land was belonging
jointly to applicants no. 1 to 3 and respondent no. 2. Meanwhile, on
the basis of retirement agreement, applicants no. 1 to 3 claiming
themselves to be exclusive owner of the land without informing
respondent No. 2 executed some sale deeds. Applicants no. 1 to 3
have not given any amount to respondent no. 2. His name was
deleted from the joint ownership and part of the land was sold to
applicants no. 4 & 5. Thus, the applicants have committed offences
of cheating and forgery punishable u/s 420,464, 471 r/w 34 of IPC.
Respondent No.2 has also claimed that he had filed suit against
applicants and the court has granted temporary injunction restraining
applicants no. 1 to 3 from selling property and the same was
confirmed upto the level of High Court.
3. The applicants challenged the filing of said FIR on the
following grounds :
(i) It is essentially a civil dispute.
(ii) The applicants no. 1 to 3 have sold part of the
land in 1983 to Chandrakala W/o Krantikumar
Sharma, to which respondent no. 2 was a witness.
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(iii) Respondent no. 2 had filed report to the police on
24.07.2013 but the police have declined to take
cognizance thereof.
(iv) Respondent No. 2 then filed OMCA 716/2015 in
the court of JMFC, Nanded. His request for
directions u/s 156(3) of Cr.P.C. was turned down.
(v) The complaint is full of misleading facts and is not
tenable on the principles of estoppel. It is filed
with a view to harass the applicants.
4. Respondent No. 2 has filed affidavit-in-reply whereby he
contended that the unregistered document of so-called retirement
deed is false and bogus and creates no rights. It was executed on a
stamp paper purchased by a third party. Applicants no. 1 to 3 had
arranged to beat respondent no. 2 brutally on 16.04.2016 in the
court premises of which respondent No. 2 has made complaint to the
Principal District Judge, Nanded and to the High Court, Mumbai.
Again on 04.07.2015, there was an attempt to strangulate him in
front of the presiding Judge 2nd CJSD, Shri. S. R. Pawar. Applicant
No. 1's son Pawan Singh an advocate, a hefty and tall fellow, had
intimidated respondent no. 2 on 04.07.2015 in court campus. They
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have threatened respondent no. 2 that his house would be blown out.
The so called retirement deed is anti-dated typed on a stamp paper
purchased by third party. It was executed on 01.04.1985 but the
stamp paper was purchased on 30.04.1985. Thus it is on the face of
it invalid document. The witness to the said document was
murdered. The document is held to be irrelevant and insignificant by
the Hon'ble High Court. Ld. advocate Mr Katneshwarkar for
applicants no. 1 to 3 has exceeded his limit by trying to use it. In
fact, respondent no. 2 has alleged that, Mr Katneshwarkar has
committed contempt of court and action should be taken against him.
There was no partnership by name G. B. Enterprises, as claimed by
applicants no.1 to 3. The land in question is still shown in the joint
name of applicants no.1 to 3 and respondent no. 2. The rejection of
application of respondent no. 2 by JMFC will not adversely affect the
validity of FIR registered in view of change in circumstances. The
case of oral partnership is unacceptable. Applicants no. 1to 3 sold
part of the land to applicants no. 4 & 5 by registered sale deed dt.
28.12.1992 and thereby they have committed offence of cheating and
criminal breach of trust and this fact was kept hidden for 25 years.
Respondent No. 2 & other joint owners had given a power of attorney
to applicant no. 1 dt. 01.04.1985 and by virtue of said power of
attorney, he had entered into some transactions.
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5. Mr Katneshwarkar, learned counsel for applicants no. 1 to
3 argued that, way back in 1982, respondent no. 2 and applicant nos.
1 to 3 had formed oral partnership and by retirement deed dt.
01.04.1985 (Exh B page 20), respondent no. 2 has retired from the
said partnership. He has not challenged this partnership deed for
years together. The applicants no. 1 to 3 have executed registered
sale deed in favour of respondent no. 2's wife Chandrakala w/o
Krantikumar Sharma on 05.06.1986 (Exh. C page 23) which is signed
by respondent No. 2 as attesting witness. It was executed by
applicants no. 1 to 3 as partners of G. B. Enterprises, Nanded.
6. On 24.04.2013, respondent No. 2 had moved
Superintendent of Police and SDPO, (Exh. D page 26), making
similar complaint. Inquiry was held in this regard and statements of
the applicants no.1to 3 were recorded and thereafter decision was
taken not to direct registration of offence. Thereafter, respondent no.
2 on 02.02.2015 submitted a similar report to PI, Nanded (Page 34 of
the compilation) but no cognizance was taken. Then respondent no.
2 moved the JMFC by MA No. 716/2015 dt. 19.06.2015 (Exh. E 38).
The court declined to issue directions u/s 156(3) of Cr.P.C. by order
dt. 12.10.2015. In writ petition no. 6785/2015, decided on
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16.08.2016, it was merely held that the retirement deed is irrelevant
as it was not registered. It is not stated to be forged or fabricated.
Respondent no 2 has availed civil remedy by filing RCS 113/2011 in
respect of the same relief and the ld. Judge has granted temporary
injunction. It was confirmed by District Court, Nanded in MCA No.
3/2012. The applicants are following the said order of injunction.
The applicants have challenged the order of injunction by filing SLP
and the same has been admitted. He pointed out that, sale deed
dt.28.12.1992 (Exh. I page 74) was executed by applicants no. 1 to 3
in favour of applicants no. 4 and 5 and argued that this transaction
has been challenged after a period of 24 years. In the light of these
facts, registration of FIR against the applicants is an abuse of process
of the court. It is purely a civil dispute and the FIR deserves to be
quashed.
7. Per contra, respondent no. 2 relied on sale deed dt.
29.03.82, which shows that the land in question was purchased by
applicants no. 1 to 3 and respondent no. 2, jointly. The name of
respondent no. 2 still appears in the 7/12 extract dt. 21.06.2017.
8. Mr Katneshwarkar brought to our notice that respondent
no. 2 is making serious allegations against him only because he is
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representing his clients, respondent no. 2 has issued notice of
contempt of court to him.
9. Respondent No. 2 has advanced argument as per his reply
affidavit. Ld. APP Mr M. M. Neralikar for respondent no.1 supported
the registration of FIR. The points for our consideration with our
findings thereon are as follows.
Sr. No. Point Finding
1 Whether the registration of FIR In the affirmative.
after rejection of application u/s
156(3) is tenable?
2 Whether the FIR deserves to be In the affirmative
quashed on the ground that (a) it is with respect to
a civil dispute (b)extremely belated applicants No. 4 &5.
(c) not disclosing the ingredients of In the negative
relevant sections? insofar applicants No.
1 to 3.
10. The law regarding circumstances in which the FIR can be
quashed is well settled. In State of Haryana vs Ch. Bhajan Lal &
Ors, the following principles laid down by the Hon'ble Apex Court.
a. Where the allegations made in the First Information Report
or the complaint, even if they are taken at their face value
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and accepted in their entirety do not prima facie constitute
any offence or make out a case against the accused.
b. Where the allegations in the First Information Report and
other materials, if any, accompanying the F.I.R. do not
disclose a cognizable offence, justifying an investigation by
police officers under Section 156(1) of the Code except
under an order of a Magistrate within the purview of
Section 155(2) of the Code.
c. Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same
do not disclose the commission of any offence and make out
a case against the accused.
d. Where, the allegations in the F.I.R. do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
e. Where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.
f. Where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a
criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a
specific provision in the Code or the concerned Act,
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providing efficacious redress for the grievance of the
aggrieved party.
g. Where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance
on the accused and with a view to spite him due to private
and personal grudge.
11. The first ground raised for quashing of FIR is that, it is a
civil dispute. However, the facts reveal that the land of 4 acres & 8
gunthas was purchased by two sale deeds in the year 1982 jointly in
the name of applicants no. 1 to 3 and respondent no. 2. Respondent
no. 2 had a share therein and the same could have been transferred
only by registered document but no registered document was
executed. Applicants no. 1 to 3 came with a case of formation of
unregistered partnership G.B. Enterprises and thereafter retirement
by respondent no. 2 from the said partnership on 01.04.1985.
Respondent No. 2 has denied that he has executed such retirement
deed and has claimed that he was not aware of the said retirement
deed till 2013. This retirement deed dt. 01.04.1985 is executed on a
stamp paper purchased on 30.04.1985, which is unregistered.
Obviously it is not legal and it is highly suspicious. Respondent No. 2
has alleged that it is a forged document. He claimed that his name
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continued as a joint owner along with applicants no. 1 to 3 in the
revenue record till today. He has filed 7/12 extract dt. 21.06.2017
showing his name along with applicants no. 1 to 3. Thus, the
allegations in the FIR sought to be quashed show that, applicants no.
1 to 3 in order to deprive respondent no. 2 of his share in the huge
land of 4 acres & 8 gunthas created false documents. He has alleged
that, he has not received any money for retirement. The applicants
have not produced any document to show that there was formation
of oral partnership and the same was dissolved by settling the
accounts. No such document showing payment of money has been
produced. In absence of such material, prima facie, there is a clear
attempt by applicants no. 1 to 3 to create a false document to deprive
respondent no. 2 of his share in the land. Such an act of applicants
no. 1 to 3 cannot be said to be a civil dispute. Of course, respondent
no. 2 cannot claim all his rights by filing a criminal case and he was
required to file a civil suit for the reliefs which he cannot get in the
criminal court. Therefore, mere filing of civil suit is not a ground to
quash the FIR on the ground that it was a civil dispute.
12. It is also argued that, this FIR is extremely belated. The
document was executed in 1985 whereas; FIR is filed in 2016.
However, respondent no. 2 has denied the execution of such
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document which is an unregistered. He has claimed that, he was not
aware of the document till 2013. Thereafter, he has approached the
various authorities for prosecuting his grievances and ultimately he
has filed this FIR. We find that, the delay of around three years
cannot be a ground to quash the FIR as the period of the limitation as
provided u/s 468 of Cr.P.C. will not be applicable to the offences
allegedly disclosed in the crime.
13. The applicants relied on the fact that they have sold one
plot from the said property to Chandrakala w/o Krantikumar Sharma
in 1983 and respondent no. 2 was attesting witness to it. In this
regard, we find that, respondent no. 2 had executed a Power of
Attorney in favour of applicant no. 1 - Bharat Singh. He has alleged
that, he had fiduciary relations with Bharat Singh as he was his guide
and he has taken its undue advantage. Besides, a representation was
made to him that his share in the land will not be affected by the said
transfer and therefore he has signed the said deed as attesting
witness. We prima facie find that, the fact that respondent no. 2 has
signed the said sale deed in favour of his wife executed by applicants
no. 1 to 3 by itself is not sufficient to establish the case of transfer of
interest of respondent no. 2 in the land in favour of applicants no. 1
to 3. The effect of such document is a matter of appreciation at the
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time of trial.
14. The technical objections raised are that, respondent no. 2
had filed report to the Superintendent of Police on 24.04.2013 and
Superintendent of Police had conducted inquiry and recorded
statements and thereafter took a decision not to register FIR. We find
that, Superintendent of Police had no right to conduct such inquiry
that too for a period of 4-5 months. The report was received by him
on 24.04.2013 and the inquiry was conducted for a long period. If
the allegations made by respondent no. 2 disclose a cognizable
offence, Superintendent of Police should have directed the concerned
Police Station Officer to register the FIR and investigate (as
distinguished from making inquiry) the crime. It is well settled that,
the inquiry prior to registration of FIR has to be a summary inquiry in
appropriate cases to be completed within 48 hours. It cannot be
continued for months together. There is no written order of
Superintendent of Police that no FIR was to be registered. If there is
no such order, respondent no. 2 gets no opportunity to challenge the
same.
15. It is pertinent to note that, if the FIR is registered and the
crime is investigated, the police are bound to submit report u/s 173
either of sufficient evidence or of deficient evidence and thereafter it
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is for the Judge to decide whether such report should be accepted or
whether the cognizance of offence should be taken. In this regard,
we rely upon Abhinandan Jha and ors. Vs. Dinesh Mishra, AIR
1968 SC 117. If Superintendent of Police makes inquiry then it is
not according to the procedure as he cannot exercise the powers of
Judicial magistrate to come to the conclusion that there was no
sufficient evidence disclosing cognizable offence.
16. Another ground raised is that, ld. Magistrate has rejected
the prayer for direction to register the FIR. We find that, the said
order was passed on two technical grounds viz. firstly FIR was not
supported by affidavit as per directions in Priyanka Shrivastava &
Anr. vs State of Uttar Pradesh & Ors. (2015) 6 SCC 287. Secondly,
it was also observed that, the sanction to prosecute the public servant
was not obtained before making such prayer. In that case respondent
no. 2 tried to prosecute the Police Inspector of Bhagyanagar as well,
besides applicants no. 1 to 3. In view of the above fact, the ld.
Magistrate ought not to have made any comments on merits of the
matter and should have simply dismissed the application on the
technical grounds. Any observations made by him regarding other
merits of the case cannot be taken into consideration when the
application itself was held not tenable.
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17. On merits, it was argued that the complaint is false and
many misleading facts are stated therein and the principles of
estoppel is applicable.
18. We find that, once the FIR is registered, it is for the
Investigating Officer to carry out investigation and then to submit
report u/s 173. The said report need not be always disclosing
sufficient evidence. The Investigating Officer has power to submit
reports as 'A', 'B' or 'C' Summary. It is for the Investigating Officer to
conduct investigation and submit a report about truth or falsity of the
allegations made in the FIR. This court in exercise of powers u/s 482
of Cr.P.C. cannot enter into the subject of deciding truth or falsity of
the facts stated in the FIR.
19. Apart from above facts, we also find that the powers u/s
482 of Cr.P.C. can be exercised only for the purpose of preventing
miscarriage of justice or preventing abuse of process of the court. In
the present case, in the light of the facts stated herein above, we find
that, prima facie respondent no. 2 has a share in the land of 4 acres &
8 gunthas jointly purchased by him and applicants no. 1 to 3.
Applicants No. 1 to 3 are trying to deprive him of his share in the
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land. There is no material whatsoever to show that he has been paid
any consideration for the said share. In the light of these facts, this is
not a fit case for invoking powers u/s 482 of Cr.P.C. In this regard,
we rely upon Amit Kapoor Vs. Ramesh Chander, (2012) 8 SCC 460
wherein it is held as under:
"27.15. ..... The power is to be exercised ex debito
justitiae i.e. to do real and substantial justice
for administration of which alone, the courts
exist."
20. However, we find that, applicants no. 4 and 5 are mere
purchasers. They have purchased some part of the land by registered
sale deed dt. 28.02.1992 from applicants no. 1 to 3. There is nothing
on record to show that they were aware about the interest of
respondent no. 2 in the said land. There is no material to show any
conspiracy or common intention between applicant nos. 1 to 3 on one
side and applicants no. 4 and 5 on the other side. Applicants no. 4
and 5 may not have verified the title as is generally expected from the
purchaser but, purchasing a land by them in such a situation only
from applicants no. 1 to 3 cannot be sufficient to hold any criminal
mind or any mens rea on their part to commit any offence. As far as
rights of applicants no. 4 and 5 vis-a-vis respondent no. 2 is
concerned, we find that it is a civil dispute.
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21. The observations made in this order are prima facie in
nature and made for deciding this application. Those should not be
used for influencing the judicial officers conducting any proceedings
relating to this FIR.
22. Respondent no. 2 being advocate was permitted to appear
as party in-person. After following procedure, we had allowed him to
argue in-person. We are constrained to observe that he has misused
liberty granted to him and has made wild allegations against
advocate Shri. Katneshwarkar, who was conducting the case on
behalf of the applicants. It is expected from the lawyer to safeguard
the interest of his clients. The filing of a document by him which is
treated as irrelevant by the High Court is not at all any misconduct or
contemptuous act on the part of advocate - Katneshwarkar.
Respondent no. 2 is hereby put on notice that he should not make
such allegations and if he indulges in such practice, the concerned
courts will be at liberty to refuse him permission to conduct the case
in person. With these observations, we pass the following order.
ORDER
(1) Criminal Application is partly allowed.
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(2) FIR at C.R. No. 294/2016 registered at Bhagyanagar
Police Station, Nanded for offences u/s 420, 464, 471
r/w 34 of IPC is quashed to the extent of applicants
no. 4 and 5 only.
(3) Criminal Application No. 816/2017 stands rejected so
far as applicants no. 1 to 3.
(4) Rule made partly absolute accordingly.
[ A. M. DHAVALE ] [ S. S. SHINDE ]
JUDGE JUDGE
sgp
