Bombay High Court
Anil S/O Krishnarao Deshpande vs Mr.Vaibhav Sant And 2 Others on 2 August, 2021
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APL) NO. 1353/2019
APPLICANT : Anil Krishnarao Deshpande,
aged about 58 years, Occ. Business,
R/o. 40, Pawan Bhumi, Somalwada, Wardha
Road, Nagpur, a partner in
Riddhamaan Buildcon Company, Police Station
Sonegaon, P.S. Nagpur.
...VERSUS...
NON-APPLICANTS: 1. Mrs. Shweta Vaibhav Sant,
aged about 45 years, Occ. Business,
R/o. Nav-Shayadri Society, Pune-52
2. Mr. Ganesh Shivajirao Misal,
aged about 47 years, Occ. Business,
R/o. Flat No. A2/104, Gangadham
Phase-II, Bibvewadi.
3. Mr. Dipak Vishwanath Dahale,
aged about 53 years, Occ. Business,
R/o. B-16, Todkar Garden, Bibvewadi,
Kondhwa Road, Pune.
4. Mr. Kedar Shashikant Tokekar,
aged about 38 years, Occ. Business,
R/o. 117, Shukarwar Peth, Krishna
Complex, Pune.
Non applicant Nos. 1 to 4 are partners in
M/s. PHINIX Developers, 'PHINIX' House,
Plot No. 32/1/2, Erandawane, Pune
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5. Mr. Rajkawal R. Batra,
aged about 59 years, Occ. Business,
R/o. B-102, Latitude New Heaven Park - II
SN - 18/6 Khurd, NIBM Road, Pune.
6. State of Maharashtra,
through Police Station Officer,
Police Station Sonegaon, Nagpur.
AND
CRIMINAL APPLICATION (APL) NO. 1355/2019
APPLICANT : Anil Krishnarao Deshpande,
aged about 58 years, Occ. Business,
Perman ent R/o. 40, Pawan Bhumi, Somalwada,
Wardha Road, Nagpur, a partner in
Riddhamaan Buildcon Company, Police Station
Sonegaon, P.S. Nagpur.
...VERSUS...
NON-APPLICANTS: 1. Mr. Vaibhav Sant,
aged about 47 years, Occ. Business,
R/o. Nav-Shayadri Society, Pune-52
(Partner of Phinix Constructions), Office
Address : PHINIX House, Plot No. 32/1/2,
Erandawane, Pune
2. Mrs. Shweta Sant w/o Vaibhav Sant,
aged about 45 years, Occ. Business,
R/o. Nav-Shayadri Society, Pune-52
(Partner of Phinix Constructions), Office
Address : PHINIX House, Plot No. 32/1/2,
Erandawane, Pune
3. State of Maharashtra,
through Police Station Officer,
Police Station Sonegaon, Nagpur.
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Shri A.O.Shriwas, Advocate for applicant
Shri A.A.Bansod, Advocate for Respondent Nos. 1 to 4
Shri R.M.Patwardhan, Advocate for Respondent No. 5
Shri S.D.Shirpurkar, APP for Non-applicant No.6 - State
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CORAM : MANISH PITALE, J.
DATE : 02/08/2021.
1] Heard learned counsel for the applicants in both the
applications.
Admit.
Learned counsel Mr. A.A.Bansod appearing on behalf of
Respondent Nos. 1 to 4, Mr. R.M. Patwardhan, learned counsel
appearing on behalf of Respondent No.5 and learned APP appearing
on behalf of the Respondent No.6 - State waive notice.
2] These two applications have been filed by the same
applicant and he is aggrieved by the concurrent orders passed by the
Judicial Magistrate, First Class, Nagpur and the Court of Additional
Sessions Judge, at Nagpur. The applicant had filed applications
under Section 156(3) of Code of Criminal Procedure (Cr.P.C.)
against the respondents herein for registration of offences under
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Section 420 r/w Section 120B of the Indian Penal Code (I.P.C.) in
one application and under Sections 420, 406 r/w Section 120B of
I.P.C. in the other application. The two Courts have held against the
applicant on the grounds, firstly, that the grievance of the applicant
is of civil nature and no criminal proceedings could be initiated and
secondly, the proceedings could not have been initiated at Nagpur.
3] The grievance of the applicant in Criminal Application
(APL) No. 1353/2019 is that, a partnership firm namely
Riddhimaan Buildcon Company, of which the applicant is the
partner, had entered into a development agreement with the
respondents herein. It was the grievance of the applicant that
despite payment of amount to the tune of Rs.80 lakhs to the
respondents, they failed to abide by specific obligations stated in the
development agreement. It was the case of the applicant that the
respondents did this act of cheating intentionally and that, they
intended to deceive the applicant, right from the beginning.
4] The grievance of the applicant in Criminal Application
(APL) No. 1355/2019, is based on an alleged oral agreement
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between the applicant and the respondents therein, pertaining to
providing office space to the applicant in the property in question.
According to the applicant, he parted with an amount of Rs.15 lakhs
and yet the respondents did not abide by their obligation under the
oral agreement.
5] According to the applicant, he had approached the
concerned Police Station at Nagpur with a grievance for registration
of offence against the respondents. When no action was taken in the
matter by the concerned Police Station, he was constrained to
approach the Commissioner of Police with his grievance. Thereafter,
when no precipitate action was taken in the matter, he was
constrained to file application under Section 156(3) of Cr.P.C. for
registration of offence against the respondents in respect of his
grievance.
6] By orders dated 16.01.2019 and 03.04.2019, the
Magistrate rejected the applications filed by the applicant on the two
grounds mentioned above. Aggrieved by the same, the applicant
filed revision applications before the Sessions Court. By impugned
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judgments and orders dated 08.08.2019, the Court of Ad-hoc
District Judge-2 and Additional Sessions Judge, Nagpur, dismissed
the revision applications, thereby upholding the orders passed by
the Magistrate.
7] Aggrieved by the same, the applicant filed the present
applications. Mr. A.O.Shriwas, learned counsel for the applicant
submitted that the Court of Magistrate as well as the Sessions Court
committed a grave error in rejecting the applications filed under
Section 156(3) of Cr.P.C. It was submitted that a given set of facts
placed before the Court can give rise to both civil and criminal
proceedings, which the Courts below failed to appreciate. It was
submitted that in the complaint itself, the applicant had vividly
described how respondent No. 2, from the very beginning had acted
in a particular manner to cheat the applicant and that prima facie
case for initiation of criminal proceeding was certainly made out in
the facts and circumstances of the present case. It is further
submitted that on the question of jurisdiction also, the Courts below
erred, for the reason that under Section 179 of Cr.P.C., criminal
proceedings could be initiated where the consequence of the alleged
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act had ensued, which in the present case, was financial loss
suffered by the applicant at Nagpur. The learned counsel placed
reliance on the judgments of the Supreme Court in the case of Arun
Bhandari vrs. State of U.P and others , reported in (2013) 2 SCC
801, Lee Kun Hee, President, Samsung Corporation and others vrs.
State of U.P. and others, reported in (2013) 3 SCC 132, Rhea
Chakraborty vrs. State of Bihar and others, reported in 2020 SCC
Online SC 654 and Kaushik Chatterjee vrs. State of Haryana and
others, reported in (2020) 10 SCC 92.
8] On the other hand, Mr. Patwardhan, learned counsel
appearing for the contesting respondents submitted that although
no serious dispute could be raised regarding the proposition that a
given set of facts could give rise to criminal and civil proceedings,
in the present case, it was worth nothing that while the
development agreement was executed as far back as in the year
2011 at Pune, the applicant chose to approach the Police Station at
Nagpur in the year 2018 and thereafter filed the applications under
Section 156(3) of Cr.P.C., in the year 2018 at Nagpur. It was then
submitted that even according to the statements made in the
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complaint and the documents relied upon by the applicant,
including the aforesaid development agreement dated 09.09.2011,
no part of the transaction had taken place at Nagpur. The
partnership firm, of which the applicant is a partner, is registered at
Pune. The development agreement was executed at Pune and all the
payments, even according to the allegations leveled by the
applicant, were made at Pune itself. It was submitted that the
applicant was not entitled to invoke the jurisdiction of the Court of
Magistrate at Nagpur on the premise that he had suffered financial
loss at Nagpur. The learned counsel for the contesting respondents
did not dispute the position of law as laid down in the
aforementioned judgments, relied upon by the learned counsel for
the applicant, but he submitted that the ratio of the said judgments
could not come to the benefit of the applicant.
9] Shri S.D.Shirpurkar, learned APP appeared for the
respondent- State.
10] Heard learned counsel for the rival parties and perused
the material on record. The Courts below have held against the
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applicant on two grounds. Firstly, that the grievance raised by the
applicant was purely of civil nature and that no criminal
proceedings could be initiated in the facts and circumstances of the
present case. Secondly, that the jurisdiction of the Court at Nagpur
could not be initiated and no investigation could be undertaken by
the Police at Nagpur, for the reason that even if the statements of
the applicant were to be accepted as it is, the entire transaction and
its consequences had ensued in Pune.
11] As regards the first ground pertaining to the grievance
of the applicant being of purely civil nature, the learned counsel
appearing for the applicant is justified in relying upon the position
of law laid down and reiterated by the Supreme Case in case of
Arun Bhandari vrs. State of U.P (supra). It is specifically held in
paragraph 26 thereof that although a transaction appeared to be of
civil or commercial nature, it may also contain ingredients of
criminal offences. In this regard, perusal of the two complaints
filed by the applicant would show that, it was stated therein that the
respondents had acted in a particular manner to the detriment of
the applicant right from the beginning, to cause financial loss to
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him. It is specifically stated that the respondents acted in a manner
to deceive the applicant to part with huge amounts of money,
thereby indicating ingredients of offences under Sections 420 and
406 of the I.P.C.. Considering the nature of allegations leveled by the
applicant and the law laid down in that regard in various judgments
of the Hon'ble Supreme Court, the Courts below committed an error
in holding that the grievance of the applicant was of purely a civil
nature and that, therefore, the applications under Section 156(3) of
Cr.P.C. could not be entertained. To that extent the impugned
judgments and orders passed by the Magistrate and the Sessions
Court, which are subject matter of challenge in these two
applications before this Court, are found to be erroneous.
12] As regards the second aspect of the matter pertaining to
the question as to whether the police machinery at Nagpur could be
activated to register offences against the respondents and
consequently, whether the Court of the Magistrate at Nagpur could
entertain and pass appropriate orders on the applications filed
under Section 156(3) of Cr.P.C., it needs to be examined on the basis
of the documents on record, as to whether any part of the
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transactions or consequences of the transactions alleged by the
applicant occurred at Nagpur. A perusal of development agreement
dated 09.09.2011, placed on record along with Criminal Application
(APL) No. 1353 of 2019, would show that the registered agreement
was executed at Pune. The respondents as well as the registered
partnership firm, of which the applicant is a partner, are shown to be
having their addresses at Pune. It is undisputed that the said
partnership of which the applicant is a partner and on that basis
filed the applications under Section 156(3) of Cr.P.C., is a firm
registered at Pune. The contents of the said development
agreement show that the amounts allegedly paid by the applicant to
the respondents on various dates, were paid at Pune. Similarly, the
grievance raised in the Criminal Application (APL) No. 1355 of
2019, would show that there was allegedly an oral agreement
between the parties and that the applicant had parted with amount
of Rs. 15 lakhs for office premises situated at Pune.
13] Therefore, on a conjoint reading of the applications
filed under Section 156(3) of Cr.P.C. with the documents available
on record, going by the grievance projected on behalf of the
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applicant, it is clear that the police authorities at Nagpur would not
have been able to initiate investigation at the behest of the applicant
for the alleged offences committed by the respondents. For the
same reason, the applications filed on behalf of the applicant before
the Court of Magistrate at Nagpur were also misplaced and they
could not have been entertained. The Magistrate, in the order
rejecting the applications filed by the applicant, specifically found
that the police machinery at Nagpur could not have been activated
to investigate a transaction that admittedly took place at Pune.
14] The contention raised on behalf of the applicant that
since financial loss suffered as a consequence ensued at Nagpur is
wholly untenable in the facts and circumstances of the present case.
This is because the partnership firm of which the applicant is a
partner and who had entered into the aforesaid development
agreement, is also a firm registered at Pune for development of
property located at Pune, in respect of which all the payments were
allegedly made at Pune itself.
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15] Therefore, applying the position of law laid down by the
Hon'ble Supreme Court in case of Lee Kun Hee vrs. State of U.P.
(supra), Rhea Chakraborty vrs. State of Bihar and others , and
Kaushik Chatterjee vrs. State of Haryana and others (supra), no
fault can be found with the findings recorded by the Courts below
on the aforesaid second aspect of the matter.
16] In view of the above, the applications are dismissed.
17] Rule is discharged. No order as to costs.
JUDGE
Rvjalit
