Bombay High Court
Mahemood Ilahi Khan S/O. Manzoor ... vs The State Of Maharashtra And Anr on 31 October, 2017
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 968 OF 2017
1] Mahemood Ilahi Khan S/o Manzoor Ilahi Khan,
Age:50 Years, Occ.: Business,
R/o Flat No.14, Haq Tower, Hamalwadi,
Railway Station, Aurangabad.
2] Kausar Parvin W/o Sayeed-Ul-Haq Khan,
Age 55 years, Occu.Household,
R/o Friends Colony, Aurangabad. .. PETITIONERS
VERSUS
1] The State of Maharashtra
(Through The Investigation Officer,
Kranti Chowk Police Station,
Aurangabad)
2] Khushro Jahan Begum W/o.Khurshid
Ahmed Khan,
Age 65 years, Occ.Household
R/o Flat No.8, Haq Tower,
Hamalwadi, Railway Station,
Aurangabad .. RESPONDENTS
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Mr.J.M.Murkute, Advocate for petitioners
Mr.A.P.Kale, AGP for Respondent No. 1.
Adv.M.C.Syed, for respondent No.2.
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CORAM : S.S.SHINDE &
MANGESH S. PATIL, JJ.
RESERVED ON : 10/10/ 2017.
PRONOUNCED ON : 31/10/2017.
JUDGMENT ( PER MANGESH S. PATIL,J.) :
. Rule. Rule is made returnable forthwith. Heard finally
with the consent of parties.
2] This is a Petition invoking the powers of this Court under
Section 482 of Cr.P.C. for quashing of FIR bearing No.281/2017
registered with Kranti Chowk Police Station, Aurangabad on a
complaint lodged by respondent no.2 for the offences punishable
under Sections 420, 464, 468,471 read with 34 of IPC.
3] Shorn of details, the allegations in the FIR are to the effect that
the respondent no.2 owned and possessed property bearing CTS
No.19280 situated at Hamalwadi Railway Station, Aurangabad. The
petitioners are developers and entered into an agreement with
respondent no.2, for developing the property. An agreement was
entered into on 1/6/2007 and as per the agreement, the petitioners
had agreed to allot to the respondent no.2 Flats no.1,3,6 and 8 and
Shops no.2,4 and 6 from the building to be constructed. They also
agreed to pay her Rs.Ten lakhs in addition to such allotment of
flats/shops. It is alleged that respondent no.2 realized that the shops
were not constructed in accordance with approved building
permission granted by the Municipal Corporation. It was revealed
that the Municipal Corporation had issued notice to the petitioners for
demolition of one of the shops since it was constructed in a margin
portion. Actually Shop no.6 appearing in the approved plan was sold
to third persons and by deceiving the respondent no.2, shop no.5
was allotted to her contrary to the terms and conditions of the
agreement. Thus, by not carrying out construction according to the
building permission and as per the terms and conditions of the
agreement entered into between petitioners and respondent no.2,
the former have cheated the latter.
4] According to the learned advocate for the petitioners, the
contents of the FIR clearly reveal that the dispute between the
petitioners on the one hand and the respondent no.2 on the other is
purely a civil dispute and in fact a Suit is pending in the Civil Court
and the dispute cannot be given colour of a criminal proceeding.
There is absolutely no criminality and purely a civil dispute has been
sought to be brought into a criminal action.
5] Per contra, the learned advocate for respondent no.2 as well
as learned APP submitted that though a civil suit is pending that
does not take out the dispute from the purview of criminality. The
petitioners have carried out construction which is inconsistent with
the agreed terms and conditions and have also flouted building
permission and apart from a civil liability they have incurred a
criminal liability as well.
6] We have perused all the papers filed alongwith the Petition as
well as affidavit in reply. We have also perused the police papers.
7] The dispute can either be a purely civil dispute or a criminal
dispute. There can also be in an appropriate case a civil dispute
bringing an aspect of criminality. In our considered view, this is a
matter which falls in the latter category. Apparently there has been a
civil dispute inasmuch as the petitioners and the respondent no.2
have entered into a written agreement for development of a property
and it has been specifically agreed inter alia that shop no.6 would be
allotted to respondent no.2. Admittedly Regular Civil Suit No.
115/2016 has been pending. It is a Suit filed by the petitioners
against Municipal Corporation impugning the notice served by the
Corporation for flouting building permission. However, the matter
does not apparently rest here. If the allegations in the FIR are to be
believed and indeed those will have to be believed atleast at this
juncture, the petitioners have apparently carried out some illegal
construction and Municipal Corporation has already initiated penal
action against them. It is highly improbable and therefore,
unbelievable that any construction could have come up in breach of
the building permission without active role played by the petitioners.
Obviously if some illegal construction has been carried out by the
petitioners in executing the work agreed upon between them and the
respondent no.2, it can certainly be prima facie said that she has
been deceived within the meaning of Section 415 of the Indian Penal
Code. In these circumstances, we are satisfied that the allegations in
the FIR prima facie make out offences registered against the
petitioners even by applying the guidelines laid down by Supreme
Court in the case of State of Haryana V/s Bhajanlal; AIR 1992 S.C.
604 which read as under :
"108] In the backdrop of the interpretation of the
various relevant provisions of the Code under
Chapter XIV and of the principles of law
enunciated by this Court in a series of decisions
relating to the exercise of the extra-ordinary
power under Article 226 or the inherent powers
under Section 482 of the Code which we have
extracted and reproduced above, we give the
following categories of cases by way of
illustration wherein such power could be
exercised either to prevent abuse of the process
of any Court or otherwise to secure the ends of
justice, though it may not be possible to lay
down any precise, clearly defined and
sufficiently channelised and inflexible guidelines
of rigid formulae and to give an exhaustive list of
myriad kinds of cases wherein such power
should be exercised.
1] Where the allegations made in the First
Information Report or the complaint, even if they
are taken at their face value and accepted in
their entirety do not prima facie constitute any
offence or make out a case against the accused.
2] 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.
3] 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.
4] 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.
5] 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.
6] 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, providing efficacious redress for
the grievance of the aggrieved party.
7] 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."
8] The instant case does not fit into any of these categories.
Therefore the petition is liable to be dismissed. Needless to mention
that the observations made hereinabove are made only to the extent
of decision of this matter and shall not preclude the petitioners in
availing the suitable remedy for discharge, if so advised at an
appropriate stage.
9] The Petition is rejected. The Rule is discharged.
( MANGESH S. PATIL,J.) (S.S.SHINDE ,J.)
umg/
