Bombay High Court
Narayan Shenpadu Shejawalkar And ... vs Jayram Tukaram Jadhav And Anr on 23 February, 2021
Bench: Mangesh S. Patil
930.Crl.WP.212.19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.212 OF 2019
1. Shri Narayan Shenpadu Shejawalkar,
Age: 74 years, Occ: Business,
2. Sau. Rapali Kishor Shejwalkar,
Age : 36 years, Occu.: Housewife,
3. Shri Kishor Narayan Shejawalkar,
Age : 41 years, Occu.: Business,
4. Shri Sanjay Narayan Shejawalkar,
Age : 43 years, Occu.: Business,
5. Shri Sunil Narayan Shejawalkar,
Age : 46 years, Occu.: Business,
All R/o. Shejawalkar Nagar, Bhadgaon Road,
Chalisgaon, Tq. Chalisgaon, Dist. Jalgaon. PETITIONERS
VERSUS
1. Shri Jayram Tukaram Jadhav,
Deceased, Shri Sanjay Jayram Jadhav,
Age : 46 years, Occu.: Agricultural work,
R/o : Tombole Bd., Tal. Chalisgaon, Dist. Jalgaon.
2. The State of Maharashtra. RESPONDENTS
...
Advocate for Petitioners : Mr. Pramod D. Patil
AGP for respondent/State : Mr. V.S. Badakh
Advocate for Respondent No.1 : Mr. S.P. Brahme
...
CORAM : MANGESH S. PATIL, J.
DATE : 23.02.2021
JUDGMENT :
Heard. Rule. The Rule is made returnable forthwith. The
learned advocate Mr. Brahme for the respondent waives service. With the
consent of both the sides, the matter is heard finally at the stage of
admission.
930.Crl.WP.212.19.odt
2. The petitioners are invoking the powers of this Court under
Article 227 of the Constitution of India in challenging the order passed by
the learned Magistrate on a complaint filed by the respondent No.1 directing
a process to be issued against them for the offences punishable under
Section 420, 465, and 468 read with Section 34 of the Indian Penal Code.
They are also impugning the judgment and order passed by the learned
Additional Sessions Judge dismissing their Revision preferred under Section
397 of the Code of Criminal Procedure against the order of the Magistrate of
issuance of process.
3. The learned advocate for the petitioners would submit that
accepting the allegations in the private complaint filed by the respondent
No.1 at the most the facts would lead to a civil dispute. No criminality is
involved. It is a matter of purchasing immovable property. The respondent
No.1 has already approached the Civil Court. Attempt is being made to
convert a civil dispute with a criminal trapping. Both the courts below have
erred in appreciating these facts and circumstances. It would be a sheer
abuse of process of law to allow the respondent No.1 to prosecute the
petitioners. He would rely upon the decision of the Supreme Court in the
case of Prof. R.K. Vijayasarathy and Anr. Vs. Sudha Seetharam and Anr., in
Criminal Appeal No.238/2019 arising out of Special Leave Petition (Crl.)
No.1434/2018.
4. Per contra, the learned advocate for the respondent No.1 would
submit that prima facie all the ingredients for constituting the offences can
be made out. The appellants agreed to sell a plot of land to the respondent
No.1, however, the dimensions do not tally with the description in the sale
deed. Besides, even a development plan road passes through the plot. He
would further point out that originally the dispute was settled between the
parties amicably. A compromise was entered into. The appellants promised
to execute the sale deed with a proper description under that pretext
extorted an additional sum of Rs.45,000/- and thereby deceived him to part
with money and sold a plot which does not tally with the description. All
930.Crl.WP.212.19.odt
the necessary ingredients for constituting the aforementioned offences can
easily be made out. There is no apparent error or perversity in the order of
the Magistrate and the one passed by the learned Additional Sessions Judge.
5. I have carefully gone through the papers and the impugned
orders. Needless to state that there are inherent limitations in exercising the
powers of this Court under Article 227 of the Constitution of India when
there are concurrent findings recorded by the two courts below taking a
plausible view.
6. There is specific allegation in the complaint filed by the
respondent No.1 that couple of plots were delivered in possession of father
of the respondent No.1 by accepting money. Cattle shades were erected on
the plots. They promised to execute the sale deed after obtaining non-
agricultural use permission. Subsequently they filed a suit against him.
Under the pretext of settlement they managed to extort Rs.45,000/-
additionally from him and executed sale deed of a plot bearing No.32 but
the description of the property does not tally. Even it transpires that the
piece of land which was sold in fact is covered by a road. Taking note of
these allegations which clearly make out the offences being charged the
learned Magistrate has taken a reasonable view in directing the process to
be issued.
7. The learned Additional Sessions Judge has also objectively
examined the order passed by the Magistrate and has reached a plausible
view that the allegations in the complaint and the statement under
verification prima facie make out all the offences. Needless to say that the
order passed by the Magistrate was not perverse, arbitrary or capricious, in
the absence of which, the learned Additional Sessions Judge could not have
reversed it while exercising the revisional powers under Section 397 of the
Code of Criminal Procedure.
8. The observations and the conclusions in the case of Prof. R.K.
Vijayasarathy (supra) would not come to the aid of the petitioners. That
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decision was rendered in the peculiar facts and circumstances of the matter
before the Supreme Court. When independently the matter in hand
presents peculiar state of affairs which sufficiently makes out elements of
offences, the applicant is not entitled to place reliance on this decision.
9. The Writ Petition is dismissed. The Rule is discharged.
(MANGESH S. PATIL, J.)
habeeb
