Bombay High Court
Namdeo Dadarao Takle And Others vs State Of Maharashtra, Through Its ... on 10 January, 2018
Bench: V.M. Deshpande
Judgment
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) NO.45 OF 2015
1. Namdeo Dadarao Takle,
Aged about 55 years,
Occupation Agriculture.
2. Sau. Panchaphula Ramrao
Chaube, aged about 45
years, Occupation agriculture.
3. Smt. Indubai Ramrao
Takle, aged about 65
years, Occupation agriculture.
4. Dnyaneshwar Ramrao
Takle, aged about 27
years, Occupation agriculture.
5. Parmeshwar Ramrao
Takle, aged about 31
years, Occupation agriculture.
6. Sau. Sanjivani Prakash
Maske, aged about 45
years, occupation labour.
Applicant Nos.1, 3 to 6 are
r/o Shelu, Bz. Taluka Pusad,
District Yavatmal.
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7. Sau. Chitra Ramnath
Kolekar, aged about 48
years, occupation labour, r/o
Allpuri Police Station,
Wadgaon, District Yavatmal.
8. Sau. Vanmala Vilas
Kolekar, aged about 30
years, Occupation Labour, r/o
Shekalgaon, Police Station
Arni, District Yavatmal. ..... Applicants.
:: VERSUS ::
1. State of Maharashtra,
through its Police Station
Officer, Police Station
Pusad (City), Taluka Pusad,
District Yavatmal.
2. Sanjay Laxmanrao
Banchare, aged about 47
years, Occupation agriculture,
r/o Papinwar Layout,
Pusad, Taluka Pusad, District
Yavatmal.
3. Santoshkumar Chandanmalji
Agrawal, aged about 65 years,
Occupation agriculture and business,
R/o Mahavir Ward,
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Pusad, Taluka Pusad,
District Yavatmal. ..... Non-applicants.
=======================================================================
Shri R.S. Kurekar, Counsel for the applicants.
Shri G.M. Kubade, Counsel for non-applicant No.3.
Shri T.A. Mirza, Addl.P.P. for the State.
=======================================================================
CORAM : V.M. DESHPANDE, J.
DATE : JANUARY 10, 2018.
ORAL JUDGMENT
1. Rule. Rule made returnable forthwith. Heard finally by
consent of learned counsel for the parties.
2. Learned counsel Shri R.S. Kurekar for the applicants
submits that both the Courts below committed wrong in rejecting
application Exhibit 78 which was an application for discharge. He
submits that the dispute is purely of civil in nature and, therefore, the
Courts below ought to have allowed the application. He relies on the
decision of the Honourable Apex Court in the case of Sardool Singh
and another ..vs.. Smt. Nasib Kaur, reported at 1987 (Supp) SCC 146.
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3. Learned counsel Shri G.M. Kubade appears for non-
applicant No.3/original complainant and learned Additional Public
Prosecutor Shri T.A. Mirza appears for non-applicant No.1/State.
Though non-applicant No.2 is served, he has not put his appearance.
Even otherwise, for the decision of the present application, the
presence of non-applicant No.2 is not necessary inasmuch as non-
applicant No.2 is the person in whose favour the applicants have
executed a sale-deed and he is also one of the accused i.e. accused No.9
in criminal proceedings. Further, the application for discharge was
not moved by non-applicant No.2 i.e. original accused No.9 but the
application for discharge was moved by the applicants who are
accused Nos.1 to 8.
4. It is not in dispute that non-applicant No.3 purchased a
land in question vide sale-deed dated 16.6.1988 from Namdeo and
Ramrao. Namdeo is applicant No.1. Whereas, applicant Nos.2 to 8 are
legal representatives of Ramrao who is one of executants of the sale-
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deed in favour of the non-applicant No.3/complainant.
5. As per the prosecution case, in spite of the fact that the
land in question was sold in favour of non-applicant No.3 in the year
1988, the same land was sold by the applicants in favour of non-
applicant No.2 original accused No.9. After criminal law was set into
motion, the investigating agency completed its entire investigation
and was of the opinion that the triable case is made out against all
accused. Consequently, the final report was filed in the Court of law.
The case was registered in the Court of learned Judicial Magistrate
First Class at Pusad vide Criminal Case No.398 of 2013.
6. In the said criminal case, application Exhibit 78 for
discharge was filed on behalf of the applicants who are original
accused No.1 to 8. The main crux of the contention before learned
Magistrate was that the land in question was originally owned by
Namdeo, Ramrao, and one Panchaphula and secondly sale deed dated
16.6.1988 was nominal document inasmuch as it was a money lending
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transaction.
7. The applicants never disputed execution of the sale-deed
in favour of non-applicant No.3. It is not in dispute that in spite of
execution of sale-deed in favour of non-applicant No.3, the sale-deed is
execution by them in favour of non-applicant No.2 because according
to them, the sale-deed executed in favour of non-applicant No.3 was for
money lending transaction.
8. It is to be noted that at the initial stage itself, Criminal
Application No.773 of 2012 was filed before this Court for quashing the
first information report lodged against the applicants. The Division
Bench of this Court on 14.2.2013 permitted the applicants to withdraw
the said application with a liberty to file appropriate proceedings. It is
crystal clear that since this Court was not inclined to grant any relief
in favour of the applicants, that necessitated the applicants to pray for
withdrawal of the application for quashing of the first information
report.
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9. At the stage of framing of the charge, the Court is not
required to evaluate the entire evidence at the stage of considering the
application for discharge. The Court is not required to record a
finding either of acquittal or conviction but the Court is required to
see whether there exists material to frame the charge. Here, it would
be useful to reproduce paragraph No.26 from the judgment of the
Honourable Apex Court in the case of State of Rajasthan ..vs..
Fatehkaran Mehdu, reported at [2017(3)Mh.L.J. (Cri.)(S.C.) 444] :
"The scope of interference and exercise of
jurisdiction under section 397 of Criminal
Procedure Code has been time and again
explained by this Court. Further, the scope of
interference under section 397, Criminal
Procedure Code at a stage, when charge had been
framed, is also well settled. At the stage of
framing of a charge, the Court is concerned not
with the proof of the allegation rather it has to
focus on the material and form an opinion
whether there is strong suspicion that the accused
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has committed an offence, which if put to trial,
could prove his guilt. The framing of charge is
not a stage, at which stage final test of guilt is to
be applied. Thus, to hold that at the stage of
framing the charge, the Court should form an
opinion that the accused is certainly guilty of
committing an offence, is to hold something which
is neither permissible nor is in consonance with
scheme of Code of Criminal Procedure."
10. The case of the applicant is that the sale-deed executed in
favour of non-applicant No.3 was outcome of money lending
transaction. Surely, the said cannot be considered without there being
adequate evidence available on record especially when the applicants
themselves admitted the fact about execution of the sale-deed.
Further, the copy of civil suit, on which the applicants are relying, is
not placed on record, therefore, this Court is at loss to note averments
made in the civil suit. Further, learned counsel for the applicants is
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not able to point out the nature of the suit. In my view, both the
Courts below have rightly considered the application for discharge.
11. No perversity is blinking in any of the orders.
Consequently, no case is made out. The criminal application is
rejected. Rule is discharged.
JUDGE
!! BRW !!
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