Naresh Wamanrao Raut And 17 Oths vs The State Of Mah. Thr. P.S.O. ...
2017 Latest Caselaw 6673 Bom

 appln.3720.09                     1        

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


        CRIMINAL  APPLICATION (APPLN) NO. 3720 OF 2009


 1. Naresh Wamanrao Raut,
    Aged about 45 years,Occ-Service,

 2. Sau. Sandhya Naresh Raut,
    Aged about 43 years,occ-housewife,

 3. Vijaysingh Harisingh Thakur,
    Aged about 63 years,Occ-Pensioner,

 4. Sau.Survinda Govind Audharya,
    Aged about 62 years,Occ-Pensioner,

 5. Raghunath Zibalaji Mohurle,
    Aged about 48 years,Occ-Service,

 6. Sau. Surekha Rathunath Mohurle,
    Agedabout 43 years,occ-Service,

 7. Ashok Gajanan Kalaskar,
    Aged about 40 years,Occ-Service,

 8. Sunil Istari Burande,
    Aged about 40 years,Occ-service,

 9. Sau. Sadhna Sunil Burande,
    Aged about 35 years,occ-service,

 10. Chandrakant Gopalrao Uppalwlar,
     Aged about 43 years,occ-Service,

 11. Sau.Jayashri Chandrakant Uppalwar,
     Aged about 37years,occ-Housewife,

 12. Tulsiram Dasru Kudmate,
     Aged about 43 years,occ-Service,




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  appln.3720.09                                   2        

 13. Sau. Varsha Tulsiram Kudmate,
     Aged about 35 years,occ-Service,

 14. Vasant Jangaji Kodape,
     Aged about 50 years,occ-Service,

 15. Pradip Istari Burande,
     Aged about 35 years,occ-Business,

 16. Ku.Rekha Udhavrao Gedam,
     Aged about 33 years,Occ-service,

 17. Vitthal Shankarrao Atram,
     Aged about 46 years,occ-service,

 18. Sau. Indira Vitthal Atram,
     Aged about 38 years,occ-Service,

      All R/o Karmachari Vasahat at 
      Pandharkawada,District-Yavatmal                         .....  APPLICANTS

       ...V E R S U S...

  
 1. State of Maharashtra,
    Through Police Station Officer,
    Police Station Pandharkawada,
    District-Yavatmal.

 2. Ramesh Shrawan Zade,
    Aged about 43 years,occ-Service,
    R/o Karmachari Vasahat,
    at Pandharkawada,District-Yavatmal.  ...NON-APPLICANTS

 -------------------------------------------------------------------------------------------
 Shri F.T.Mirza,, Advocate for applicants.
 Shri Indranil Damle, A.P.P. for State-non-applicant no.1. 
 Shri R.D.Bhuibhar,Advocate for non-applicant no.2. 




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  appln.3720.09                                3        

                               CORAM:- V. M. DESHPANDE, J.

DATED :- SEPTEMBER 1 ,2017

ORAL JUDGMENT

Heard learned counsel Shri F.T.Mirza, for the

applicants, learned counsel Shri R.D.Bhuibhar for non-applicant

no.2 and Shri Indranil Damle, learned A.P.P. for State-non-

applicant no.1 in extenso.

2] By the present application under Section 482 of the

Code of Criminal Procedure, the applicants who are the accused

persons in Regular Complaint Criminal Case No.14/2004 on the

file of learned Judicial Magistrate First Class,Kelapur are praying

for quashing of said complaint,so also seeking quashment of the

order passed by learned Judicial Magistrate First Class,Kelapur

with the order passed by learned Additional Sessions

Judge,Pandharkawada(Kelapur)in Criminal Revision No.40/2004.

3] As per the contentions of the learned counsel for the

applicants, the complaint as filed against the present applicants is

nothing but an abuse of process of law. He submits that the

complaint in question is nothing but is an counter blast to the

complaint filed against non-applicant no.2 and his wife under

Section 420 of the Indian Penal Code. He also submits that, the

order of issuance of process is erroneous in law as much as the

learned Magistrate has not followed the scheme as envisaged in

Chapter XV strictly. He relied on decision of Hon'ble Apex Court

reported in Vadilal Panchal..verses..Dattatraya Dulaji

Ghadigaonkar and another, AIR 1960 SC 1113 so also the

reported case of law laid down by this Court reported in Captain

Lance Irwin Lobo..verses..Ismail D'Souza @ Angelo Ismail De

Souza and another,2007 ALL MR(Cri)623.

4] Per contra, the learned counsel for non-applicant no.2

submits that the learned Magistrate before issuing the order of

process has considered the statements recorded by the police

officer which were recorded by him as per the directions given by

the learned Magistrate and thereafter he being satisfied has issued

process.

5] He makes reliance on the case of M/s India Carat

Pvt.Limited..vs..State of Karnataka and another, reported in

AIR 1989 SC 885 and prayed for dismissal of the present

application.

6] In order to appreciate the aforesaid contentions it

would be useful to refer certain facts which are in fact not

disputed at all by both the parties.

7] The applicants herein are the Government employees

and their better halfs working in different departments including

Revenue, Forest. So also the non-applicant is working as an

employee of Revenue Department of the State of Maharashtra. A

firm by name Shivalay Builders was formed by Smt.Vanita Ramesh

Zade, the wife of the non-applicant no.2 and one Smt. Anita

Kishor Pohankar. Kishor Pohankar is also one of the employees

of Forest Department. This Shivalay Builders flouted a scheme. As

per the said scheme, Shivalay Builder was to construct two types

of tenaments. One 593 square feet constructed area on 1614

square feet of land and price of the said tenement was fixed as

Rs.2,99,900/-. The other type of tenement was to be constructed

on 1937 square feet of land having 841 square feet of constructed

area and price was fixed Rs. 4,34,000/-.

8] It is also not in dispute that the present applicants with

some other prospective purchasers entered into an agreement of

sale with Shivalay Builders. It is also not in dispute that on

different dates different amounts were paid by them as per the

tenements they agreed to purchase. The receipt of the amount by

Shivalay Builders is not at all disputed by the non-applicant no.2.

It appears that the dispute started in between Shivalay Builders

and the purchasers of the tenaments. That resulted into filing of

R.C.S.No.89/2003 by Smt.Vanita Zade and Smt.Anita Pohankar,

the partners of the partnership firm against the present applicants

and others. The suit was for perpetual injunction. The prayer that

was made in the said suit was that the defendants be restrained

perpetually from taking the possession of suit property, unless and

until there is full payment of agreed amount. It is not in dispute

that plaintiffs in the said suit were not permitted to withdraw the

said suit as their application was for the same was rejected. Not

only that,said suit was disposed of for not paying the requisite

court fees. It is also not dispute that no further proceedings were

carried by the plaintiffs to challenge the said order.

9] Different notices were given by the applicants and

others against Shivalay Builders right from 2000 since the Shivalay

Builders failed to follow the schedule of the construction and

failed to hand over the possession of the tenements which were

agreed to be purchased by the prospective purchasers though the

amount was paid. Ultimately, the proceedings were initiated

before the learned District Consumer Dispute Redressal Form,

Yavatmal. Some of the complaints were filed by some of the

applicants also. Those complaints were heavily contested not only

by the proprietor of Shivalay Builders but also by the present non-

applicant no.2 and Kishor Pohankar, the husband of Smt.Anita

who were parties to the said proceedings. The learned forum by

common order on 4/5/2005 partly allowed the complaints by

giving various directions. Though the directions were also given

against the present non-applicant no.2 for the reasons best known

to the non-applicant no.2 neither the non-applicant no.2 or the

partners of Shivalay Builders filed statutory appeal before the

appellate authority namely State Commissioner. A complaint was

also filed by present applicant no.10 Chandrakant Gopalrao

Uppalwar against non-applicant no.2 Ramesh Shrawan Zade,

Kishor M.Pohankar, Smt.Vinita Ramesh Zade, Sau.Anita Kishore

Pohankar and Bharat Narayan Borele. The said complaint was

registered as Criminal Complaint Case No.15/2004. The learned

Magistrate after recording verification statement of the

complainant and also perusing the evidence of witness no.2 found

that case for the offence under Section 420 of the Indian Penal

Code is made out and therefore vide order dated 25/8/2004

issued process against non-applicant no.2 and others for the

offence under Section 420 of the Indian Penal Code only. It is

reported to this Court by both the learned counsels that the said

order of issuance of process was not challenged by non-applicant

no.2 and complaint is still pending on the file competent criminal

Court.

10] Be that as it may, in the meanwhile a complaint was

filed by the non-applicant no.2 on 17/1/2004 in the Court of

learned Judicial Magistrate First Class,Kelapur against the

applicants and others. According to complainant on 12/11/2003

at 4.00 p.m. when complainant Ramesh was discharging his work

at his office one Pravin Prakash Atram informed that 10-12

persons and some women came to his house and he is being

called. Therefore, he alongwith Kishor Pohankar went to the house

at that time, the accused persons were armed with deadly

weapons and they were under the influence of liquor. AS per the

complainant accused no.1 Naresh Wamanrao Raut, accused no.2

Sunil Istari Burande, accused no.3 Chandrakant Ullawa and

accused no.4 Raghunath Ziblaji Moharle demanded the keys of the

houses built on late Narayanrao Borele Nagar Karmachari Vasahat

however, as per the complaint, complainant refused to give keys

since there was a dispute in respect of the payment of money. That

time, according to complainant, abusive words were used and they

damaged the house. The said complaint was registered as Regular

Complaint Criminal Case No.14/2004.

11] On 23/1/2004 verification of the statement of

complainant was recorded. On 18/6/2004, learned Magistrate

passed an order thereby sending the complaint for investigation

under Section 202 of the Code of Criminal Procedure to

P.S.Pandharkawda. In pursuance to the directions the police

station officer Pandharkawda recorded the statements and

submitted report on 13/9/2004. According to investigating officer

no such offence took place. He also pointed out by drawing

panchnama that nothing was damaged in the house of the

complainant. The learned counsel for non-applicant no.2 was right

making in submission that merely because a negative report is

filed by the police officer the learned Magistrate is not bound to

accept such negative report. It is for the learned Magistrate either

to accept or reject the said report. However, if the learned

Magistrate disagree with the report he has to record the reasons

as to why the Magistrate is not accepting the report.

12] It appears that the learned Magistrate on 11/10/2004

considered the report so also considered the statement of the

complainant Ramesh and statements recorded by the investigating

officer of one Smt.Vanita Ramesh Zade, Pravin Prakashrao Aatram

and Kishor Madhukarrao Pohankar which were recorded by the

investigating officer in the year 2004 and passed an order thereby

issuing process against the applicants under Section 427,448 and

506 r/w Section 34 of the Indian Penal Code. As observed above,

in the opening paragraph revision carried against the said order

was also dismissed.

13] Chapter XV of the Code of Criminal Procedure deals

with " Complaint to Magistrates" . The complaint has to be filed

under Section 200 of Code of Criminal Procedure. Section 202 of

Code of Criminal Procedure deals with postponement of issue of

process. Under this while exercising the powers the Court himself

can make an inquiry and can extend the matter to police officer.

Section 203 of the Code of Criminal Procedure deals with

dismissal of complaint. Section 203 reads as under:

" If, after considering the statements on oath(if any) of the complainant and of the witnesses and the result of the inqiury or investigation(if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing."

Here it would be useful to refer to the observations of the Hon'ble

Apex Court in Vadilal Panchal case (cited supra) in paragraph

no.9.

" The general scheme of the aforesaid sections is quite clear. Section 200 says inter alia what a Magistrate taking cognizance of an offence on complaint shall do on receipt of such a complaint. Section 202 says that the Magistrate may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against and direct an inquiry for the purpose of ascertaining the truth or falsehood of the complaint; in other words, the scope of an inquiry under the section is limited to finding out the truth or falsehood of the complaint in order to determine the question of the issue of progress. The inquiry is for the purpose of ascertaining the truth or falsehood of the complaint;that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned. The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage; for the person complained against can be legally called upon to answer the accusation made against him only when a

process has issued and he is put on trial. Section 203, be it noted, consists of two parts: the first part indicates what are the materials which the Magistrate must consider, and the second part says that if after considering those materials there is in his judgment no sufficient ground for proceeding, he may dismiss the complaint. Section 204 says that if in the opinion of the Magistrate there is sufficient ground for proceeding, he shall take steps for the issue of necessary process."

14] So also, the observations of this Court in Captain Lance

Irwin Lobo case (cited supra) and relevant portion is reproduced

herein under:

"A conjoint reading of Section 203,204, Cr.P.C. shows that process is to be issued after considering the statement on oath of the complainant and of the witnesses and the result of the inquiry or investigation, if any, under Section 202. The recording of the statement on oath of complainant under Section 200 Cr.P.C. is not an empty formality. Commonly it is nicknamed as verification. To verify means to establish the truth. In other words, verification is done in order to ascertain as to what is pleaded by the complainant is true or not. It is with a view to separate chaff from the grain as many a times complaints do contain unfounded allegations and it is the duty of the Court to ensure that what is stated in the complaint is also stated by the complainant on oath and it is only then that based on such statement that process canbe issued."

15] In the present case, it is not in dispute that only

statement of complainant was recorded on oath by the learned

Magistrate at initial stage, however after having the said statement

on oath the learned Magistrate was not satisfied and therefore, he

directed for conduction of inquiry under Section 202 of the Code

of Criminal Procedure. The investigating officer recorded the

statements of various witnesses. According to the investigating

officer their statements does not disclose the occurrence of any

offence. The learned counsel invited my attention to page no.77 of

the compilation which is in the nature of the chart which shows

that which witnesses named the names of the applicants. The said

aspect is also not disputed. From the aforesaid page , it is clear

that all the witnesses are not stating the names of all the

applicants. Same names are being seen from the statements of

same witnesses. In my view, much importance cannot be given to

this. In my view, what is important is that learned Magistrate has

relied upon the statements of these witnesses-persons whose

statements are recorded under inquiry under Section 202 of Code

of Criminal Procedure. It is not the case of the non-applicant no.2

that after the statements of the witnesses were recorded by the

investigating officer those persons were presented by the the non-

applicant no.2-complainant in his complaint and their statements

on oath were recorded by the learned Magistrate. Thus, learned

Magistrate has relied upon the statements of witnesses which were

not on oath. In my view, here the learned Magistrate has

committed mistake in law in view of provisions of Section 203 of

the Code of Criminal Procedure. Section 203 of the Code of

Criminal Procedure clearly shows that the statement of

complainant-witness has to be on oath and after considering their

such statements if no case is made out the complaint has to be

dismissed.

16] At this stage, I would like to refer the case cited by

learned counsel for non-applicant no.2 in M/s India Carat Pvt.Ltd.

(cited supra) is distinguishable from the facts of the present case.

Here learned Magistrate has faulted in following the mandate of

law, in my view, the present application is required to be allowed

and the Regular Complaint Criminal Case No.14/2004 pending on

the file of learned Judicial Magistrate First Class,Kelapur stands

quashed qua present applicants only.

Rule is made absolute.

JUDGE

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