Dayaram S/O Partumal Lalwani vs State Of Maharashtra, Through ...
2021 Latest Caselaw 11532 Bom

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

                       CRIMINAL APPLN. (APL) NO. 784 OF 2015

APPLICANT :-                        Dayaram S/o Partumal Lalwani, Aged about 80
                                    years, Occ. Advocate, R/o. Block No.227,
                                    Jaripatka, Nagpur.

                                           ...VERSUS...

NON-APPLICANTS :- 1. State of Maharashtra, through Police Station
                     Officer, Police Station Jaripatka, Nagpur.

                               2. Shri Suresh Nathani S/o Totaram Nathani, Aged
                                  about 60 years, Occ. Business, R/o. Sindhu
                                  Nagar, Nara Road, Jaripatka, Nagpur.

    ------------------------------------------------------------------------------------------------
                        Mr.S.M.Pande, counsel for the applicant.
                   Mr. S.D.Shirpurkar, APP for non-applicant No.1.
                 Mr.S. Katarpawar, counsel for non-applicant No.2.
    ------------------------------------------------------------------------------------------------


                                         CORAM : MANISH PITALE, J.

                                         DATE          : 23.08.2021


ORAL JUDGMENT

By this application, the applicant has challenged order dated

29/06/2013 passed by the Judicial Magistrate First Class, Court No.7,

Nagpur, whereby process has been issued against the applicant and also

order dated 22/09/2015 passed by the Sessions court, Nagpur, whereby

revision application of the applicant has been dismissed.

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2. Non-applicant No.2, in the present case had submitted a complaint

before the Police Inspector, Police Station Jaripatka, Nagpur, on

24/05/2012, making a grievance against the applicant to the effect that the

applicant had allegedly received an amount of Rs.1,100/- on 13/06/2010,

towards life membership of the Sindhi Social Service Society of which the

applicant happened to be the Secretary and non-applicant No.2 claimed to

be a member. It was claimed that the applicant received the cash amount,

did not issue any receipt against the same and pocketed the amount meant

for conferring life membership of the society on non-applicant No.2. On

this basis, it was alleged that offences punishable under section 406 for

criminal breach of trust and section 420 for cheating under the Indian

Penal Code (IPC) ought to be registered.

3. On 07/07/2012, the head constable of the said Police Station

communicated to non-applicant No.2 in writing that having considered the

said complaint and the grievance raised by non-applicant No.2, it appeared

that the said non-applicant could approach the office of the Charity

Commissioner, Nagpur, considering the nature of the disputes.

4. On 07/07/2012, i.e. the very same day, non-applicant No.2 filed

Miscellaneous Criminal Case No.1511 of 2012 (re-registered as Regular

Criminal Case No.2529 of 2015) before the Court of Judicial Magistrate

First Class, Court No.7, Nagpur (hereinafter referred to as "Magistrate")

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under section 156(3) of the Code of Criminal Procedure (Cr.P.C.) seeking

a direction to the Police Inspector of the aforesaid Police Station to register

an FIR in respect of the said offences and to proceed further in the matter.

On 16/08/2012, verification statement of non-applicant No.2 was recorded

and on 29/06/2013, the Magistrate considered the complaint, verification

statement and the material on record and thereupon issued process against

the applicant.

5. Aggrieved by the same, the applicant filed Criminal Revision

No.277 of 2013. By the impugned order dated 22/09/2015, the Sessions

Court dismissed the revision application and confirmed the order passed

by the Magistrate.

6. The applicant approached this Court by filing the present

application, wherein on 08/12/2015, this Court granted Rule and stayed

the order dated 29/06/2013, whereby the Magistrate had issued process.

The application has come up for final hearing.

7. Mr. S.M. Pande, learned counsel appearing for the applicant,

submitted that in the present case the Magistrate erred in issuing process

by order dated 29/06/2013, for the reason that a bare perusal of the

complaint and the admitted background facts would show that non-

applicant No.2 was seeking to set the criminal law in motion, only with a

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view to wreck vengeance on the applicant on the basis of an absurd

statement on facts. The learned counsel submitted that the Police had

found no substance in the allegations levelled by non-applicant No.2 after

about two years of the alleged incident and that the dispute sought to be

raised by non-applicant No.2 was nothing but an inter se dispute between

members of the society, which could very well be aired before the

concerned Authority under civil law. It was further submitted that in the

present case, the applicant had initiated the process under section 154(1)

of the Cr.P.C. and without exhausting the procedure under section 154(3)

of the Cr.P.C., he had jumped to filing of complaint under section 156(3)

of the Cr.P.C., which was impermissible. The learned counsel for the

applicant specifically submitted that the Magistrate failed to appreciate that

the ingredients of the alleged offence punishable under section 420 of the

IPC were not made out on a bare reading of the complaint and the

verification statement. By relying upon judgments of the Hon'ble Supreme

Court in the case of M.A.A. Annamalai v. State of Karnataka, reported in

(2010) 8 SCC 524 and in the case of Mrs.Priyanka Srivastava and another

v. State of UP and others, reported in (2015) 6 SCC 287, it was submitted

that the Magistrate in the present case ought not to have issued process.

The Sessions Court also erred in refusing to exercise revisional jurisdiction

to correct the error committed by the Magistrate.

8. On the other hand, Mr.Katarpawar, learned counsel appearing for

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non-applicant No.2, vehemently submitted that a bare perusal of the

complaint would show that the ingredients of the offence punishable under

section 420 of the IPC were clearly made out in the present case. The

allegation against the applicant was clear to the effect that he had received

the aforesaid amount of money towards grant of life membership of the

society to non-applicant No.2 and that the said amount had been pocketed

by the applicant. The fact that non-applicant No.2 was not granted life

membership despite paying the said amount and he was expelled from the

membership of the society came to light only in May, 2012 when the

non-applicant No.2 sought to make payment towards donation to the

society and this is the reason why non-applicant No.2 was constrained to

set the criminal law in motion. It was submitted that there was sufficient

material on record for the Magistrate to issue process and that therefore,

the present application deserved to be dismissed.

9. Mr. S.D.Shirpurkar, learned APP appeared on behalf of non-

applicant No.1-State.

10. Heard the learned counsel for the parties and perused the material

on record. There is no dispute about the fact that in the present case, even

according to non-applicant No.2, the amount towards grant of life

membership was allegedly paid to the applicant on 13/06/2010. Non-

applicant No.2 filed the complaint before the Magistrate on 07/07/2012,

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which was more than two years after the said alleged incident. It is also

clear that the first occasion on which non-applicant No.2 approached the

Police to set the criminal law in motion was itself by a complaint filed

before the Police Station Jaripatka, Nagpur on 24/05/2012. This aspect

has to be appreciated in the backdrop of the facts stated in the complaint

itself.

11. A perusal of the complaint filed before the Magistrate shows that

the society appears to have been founded by the applicant and others,

including father-in-law of non-applicant No.2. As is found in many

societies, there appear to be disputes between members of the society. In

the complaint itself a reference is made to certain disagreements between

the applicant on the one hand and the brother-in-law of non-applicant

No.2 on the other. There is also a reference to the manner in which the

applicant was allegedly stalling grant of membership to certain persons, so

as to create obstruction in the path of the brother-in-law of non-applicant

No.2 to contest the election successfully in the society.

12. It is in such backdrop that the allegations specifically made in

paragraphs 10 to 14 need to be appreciated. As noted above, the allegation

appears to be that amount of Rs.1100/- in cash was paid by non-applicant

No.2 to the applicant for life membership of the society against which no

receipt was issued. Non-applicant No.2 himself stated in the complaint

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that he had no reason to doubt the integrity of the applicant. Thereafter, it

is alleged that after about two years i.e. on 21/05/2012, when non-

applicant No.2 made an attempt to give Rs.5,000/- as donation to the

society, that he came to know about his expulsion from the membership of

the society and it is at this point in time that he realized that the amount

allegedly paid to the applicant about two years back was pocketed by the

applicant and that non-applicant No.2 was not granted life membership.

13. The verification statement of non-applicant No.2 is on the same

lines as the contents of the application. This Court has also perused initial

complaint dated 24/05/2012, submitted by non-applicant No.2 before the

Police Station and the communication dated 07/07/2012, issued by the

Police Station, stating that non-applicant No.2 could approach the office of

the Charity Commissioner for redressal of his grievance. This does indicate

that the Police communicated to non-applicant No.2 that the dispute

appeared to be of a civil nature. It is also an admitted position that non-

applicant No.2 did not proceed to approach the Senior Police Officer after

the communication dated 07/07/2012 was received and instead, on the

very same day, filed the aforesaid complaint before the Magistrate.

14. Before analyzing as to whether the nature of allegations made in

the complaint would justify issuance of process, it would be appropriate to

refer to the law laid down by the Hon'ble Supreme Court in this regard. It

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is relevant that in the impugned judgment and order dated 22/09/2015

passed by the Sessions Court in the present case, a reference is made to the

judgment of the Hon'ble Supreme Court in the case of Nagawwa v.

Veeranna Shivalingappa Konjalgi, reported in (1976) 3 SCC 736. The

relevant portion quoted from the said judgment lays down that the process

issued by the Magistrate can be quashed when the allegations in the

complaint do not make out the essential ingredients of the offence, or

where the allegations appear to be patently absurd and inherently

improbable or when the Magistrate has issued process in a capricious and

arbitrary manner or when the complaint suffers fundamentally from legal

defects.

15. It is further laid down by the Hon'ble Supreme Court in the case of

M.A.A. Annamalai v. State of Karnataka (supra) that process cannot be

issued for the accused to face trial in casual manner and that basic

ingredients of the offence ought to be made out for an order of issuance of

process to be issued.

16. In the case of Mrs.Priyanka Srivastava and another v. State of U.P

and others (supra), the Hon'ble Supreme Court laid down that an affidavit

must be filed by the complainant approaching the Magistrate under section

156(3) of the Cr.P.C. so that he can be held accountable for the statements

made therein. While issuing such a direction, the Hon'ble Supreme Court

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emphasized that there has been a disturbing and alarming trend where

criminal law is sought to be set into motion on the basis of unverified and

frivolous claims. A reference is specifically made to cases arising out of

commercial disputes, corruption cases, disputes in fiscal sphere and family

disputes. It has been reiterated that the Magistrate ought to examine as to

whether the ingredients of the offence are made out in a particular case or

not.

17. Keeping the aforesaid parameters in mind, when the complaint

filed in the present case is perused, it is found that the allegation against

the applicant pertains to an incident which admittedly took place more

than two years before filing of the complaint. The nature of the allegation

is such that a sum of only Rs.1,100/- was allegedly paid by non-applicant

No.2 to the applicant for grant of life membership of the society. In the

complaint the non-applicant No.2 claims to be a member of the society and

that his father-in-law along with the applicant were founder members of

the society. In the initial paragraphs of the complaint, before narrating the

aforesaid incident dated 13/06/2010, non-applicant No.2 himself has

stated about the disputes that arose between the applicant on one hand

and the brother-in-law of non-applicant No.2 on the other. There is also a

reference to elections that took place in the society and alleged attempt

made by the applicant against the brother-in-law of the non-applicant No.2

for his expulsion from the society and how the said move was later

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dropped.

18. When the backdrop of the alleged incident is appreciated on the

basis of the contents of the complaint itself, coupled with the fact that the

non-applicant No.2 admittedly sought to set the criminal law in motion for

the first time by approaching the Police on 24/05/2012 and thereafter the

Magistrate on 07/07/2012, it becomes apparent that the allegation has

been made in the backdrop of the disputes as stated in the complaint itself.

19. The allegations when viewed in the said backdrop, appear to be

absurd and inherently improbable. Apart from this, the ingredients of the

offence punishable under section 420 of the IPC do not appear to be made

out on the basis of the complaint and the verification statement. The

narration of the facts of the alleged incident in the complaint on behalf of

non-applicant No.2 fall short of demonstrating the ingredients of the

offence punishable under section 420 of the IPC. The Magistrate did not

take into consideration the complaint in its entirety and the verification

statement as given by non-applicant No.2. The impression that is gathered

on the basis of the said material is that non-applicant No.2 was desirous of

setting the criminal law into motion in the backdrop of the disputes that

arose in the society and as a manifestation of the vengeance with which

non-applicant No.2 desired to get back at the applicant. It is specifically

stated in the complaint itself by non-applicant No.2 that he desired that

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stern action is taken under the criminal law against the applicant for

allegedly having pocketed an amount of Rs.1,100/- in June 2010, for

which the non-applicant No.2 raised his voice for the first time in

May/July, 2012. This Court is unable to persuade itself to accept the

contention raised on behalf of non-applicant No.2 that the contents of the

complaint and the verification statements were enough to satisfy the tests

laid down by the Hon'ble Supreme Court for issuance of process by the

Magistrate. This Court finds that there is lack of material and appropriate

allegations to force the applicant to face the embarrassment of a criminal

trial.

20. In view of the above, the application deserves to be allowed.

Accordingly, the application is allowed. The impugned orders are quashed

and set aside and consequently the Regular Criminal Case No.2529 of

2015 is quashed.

JUDGE

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