Tolaram S/O Nenumal Bholani And 3 ... vs State Of Maharashtra, Through ...
2021 Latest Caselaw 2658 Bom

                                           1           9-J-APL-719-14.odt

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

             CRIMINAL APPLICATION (APL) NO. 719 OF 2014

 1. Tolaram s/o Nenumal Bholani,
    Aged about : 64 yrs, Occu : Business,
    R/o Near Prem Prakash Ashram,
    Kachi Kholi, Sindhi Camp,
    Akola - 04.

 2. Priya D/o Kishore Karde,
    Aged about : 28 Yrs.,
    Occu : Service,

 3. Sarvesh s/o Satish Joshi,
    Aged about : 35 Yrs,
    Occu : Service.

 4. Hemant s/o Ulhas Manchekar,
    Aged about : 39 Yrs,
    Occu : Service.

      All R/o C/o Kuoni Travels (I)
      Pvt. Ltd., 8th Floor, Urmi Estate,
      95, Ganpatrao Kadam Marg,
      Lower Parel (West),
      Mumbai - 400013.                          ... APPLICANTS

                               VERSUS

 1. State of Maharashtra,
    Through Police Station Officer,
    Khamgaon Police Station (Urban),
    Khamgaon, Dist. Buldhana,

 2. Ashok s/o Gopichand Taori,
    Aged about 52 yrs, Occ : Medical
    Practitioner, R/o Raigadh Colony,
    Khamgaon, Dist. Buldhana.                   ... NON-APPLICANTS




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 Shri R. K. Tiwari, Advocate for applicant Nos.1 to 4.
 Shri T. A. Mirza, Additional Public Prosecutor for non-applicant
 No.1-State.
 Shri Alok Daga, Advocate for non-applicant No.2.
 -------------------------------------------------------------------------------------------
                                CORAM: Z.A. HAQ & AMIT B. BORKAR, JJ.

DATED : 10/02/2021.

ORAL JUDGMENT : (PER : AMIT B. BORKAR, J.)

1. This is an application under Section 482 of the

Code of Criminal Procedure challenging the registration of First

Information Report No.191/2014 with the non-applicant No.1 -

Police Station for the offences punishable under Sections 420, 506

and 34 of the Indian Penal Code.

2. First Information Report came to be registered

against the applicants with the accusations that the applicants

published an advertisement in local newspaper on 08/01/2014

about Europe Tour and accepted amount of Rs.4,70,860/- from

the non-applicant No.2 and the non-applicant No.2 was not

allowed on the said tour. It is further alleged that the applicants

have not returned the amount accepted by them from the non-

applicant No.2 and have, therefore cheated the non-applicant

No.2.

3 9-J-APL-719-14.odt

3. The applicants have, therefore, filed present

application challenging registration of First Information Report.

This Court on 17/11/2014 issued notice to the non-applicants. In

the meantime, by way of ad-interim relief, it was directed that the

applicants should not be arrested during pendency of present

application. This Court on 20/03/2015 issued Rule in the present

application and recorded undertaking on behalf of the applicants

that they shall deposit amount of Rs.2,07,522/- in this Court

within two weeks.

4. The non-applicant No.1 in pursuance of notice,

filed reply and has stated that the applicants had published an

advertisement dated 08/01/2014 in Daily "Lokmat" named as

"Avismarniya Europe Tour' which was to be commenced from

21/05/2014 for a period of 14 days. The non-applicant No.2 has

paid amount of Rs.4,70,860/- to the applicants, but the non-

applicant No.2 was not allowed to travel for the said Tour. It is

further stated that the applicants have not returned the amount to

the non-applicant No.2 and has, therefore, cheated the non-

applicant No.2.

4 9-J-APL-719-14.odt

5. Learned Advocate for the applicants submitted that

the visa of the non-applicant No.2 had been rejected by the British

Consulate on 30/04/2014 and the same was communicated to the

non-applicant No.2 on his address. He further submitted that since

the visa application of the non-applicant No.2 and his wife was

rejected by the British Consulate, the non-applicant No.2 and his

wife could not have travelled to the Europe Tour. He further

submitted that since the booking was for a group, there were

special concessions given to the applicants by the Touring

Company. The applicants have filed additional affidavit and on

Page No.53 of the paper book, the applicants have given details of

the expenses incurred by the applicants for the non-applicant No.2

which is as under :-

   Sr.No.                      Particulars                Amount INR
      1.      Air tickets for London for Mr. &                    91,310=00
              Mrs. Taori.
      2.      Visa Fees for Mr. & Ms. Taori for                   17,430=00
              UK.
      3.      Air tickets For Shenegan Countries               1,02,784=00
              for Mr & Mrs. Taori.
      4.      Visa Fees Mr & Mrs. Taori for                        9,400=00
              SHENEGAN Countries.
      5.      Travel Insurance Mr & Mrs. Taori.                    1,552=00
                                 Total                         2,22,476=00





                                            5             9-J-APL-719-14.odt

6. It is submitted by the applicants that after

deducting the expenses incurred by the applicants, the applicants

have refunded the remaining amount of Rs.2,63,360/- to the non-

applicant No.2.

7. We have carefully considered the contents of First

Information Report and the reply filed by the non-applicant No.1.

We have also considered the additional affidavit filed by the

applicants. After careful perusal of ingredients of the First

Information Report, we are satisfied that essential ingredients of

Section 420 of the Indian Penal Code are not fulfilled. We do not

find that there was dishonest intention at the inception of

transaction on the part of the applicants and the material on

record does not show that the non-applicant No.2 was dishonestly

induced to part with the amount. It is pertinent to note that the

visa application of the non-applicant No.2 and his wife was

rejected by the British Consulate and therefore, the non-applicant

No.2 was not able to travel for the Tour. One more circumstance

which weighs in favour of the applicants is the judgment delivered

by the District Consumer Disputes Redressal Forum, Buldhana

dated 20/06/2017 wherein the Consumer Court in paragraph

No.7 had relied upon the condition of agreement between the

6 9-J-APL-719-14.odt

applicants and the non-applicant No.2 that it is only after the grant

of visa, the non-applicant No.2 was entitled to travel to Europe

Tour. The Consumer Court had recorded finding that since the

non-applicant No.2 could not get visa from the British Consulate,

there was no deficiency of service on the part of the applicants for

refusing to allow the non-applicant No.2 to travel to Europe. The

order of Consumer Court is not challenged by the non-applicant

No.2 and has attained finality.

8. On overall consideration of the facts of the case and

in particular, refusal of visa by the British Consulate which was

beyond control of the applicants, we do not find that the

prosecution against the applicants is a legitimate prosecution. We

are of the view that the continuation of prosecution against the

applicants would amount to abuse of process of Court.

9. By way of order dated 20/03/2015, this Court had

directed the applicants to deposit an amount of Rs,2,07,522/- in

this Court. The said amount was directed to be invested in the

fixed deposit. In view of reasons stated above, the applicants will

be entitled to refund an amount of Rs.2,07,522/- along with

interest accrued thereon.

7 9-J-APL-719-14.odt

10. We, therefore, pass the following order :-

i] First Information Report No.191/2014

registered with the non-applicant No.1 - Police

Station for the offences punishable under Sections

420, 506 and 34 of the Indian Penal Code is

quashed and set aside.

ii] The applicants be refunded an amount of

Rs.2,07,522/- along with interest accrued thereon.

11. Rule is made absolute in the above terms.

                       JUDGE                        JUDGE

 Choulwar