Anand S/O. Vijayrao Topale vs State Of Maharashtra Thr. P.S.O., ...
2021 Latest Caselaw 877 Bom

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                                                                      APL820.18.odt

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

                 CRIMINAL APPLICATION (APL) NO.820 OF 2018

 Anand S/o. Vijayrao Topale,
 Aged about 25 years, Occ. Architect,
 R/o. Sai Nagar, Guru Chhaya Colony,
 Amravati, Tah. & Dist. Amravati.                    . . . . APPLICANT

          .....VERSUS......

 1.       State of Maharashtra through
          Police Station Officer,
          Police Station, Frezarpura,
          Tah. & Dist. Amravati.

 2.       Mahendra S/o. Ajabrao Khadse,
          Aged about 35 years, Occ. Service,
          R/o. Mardi Road, Amravati
          Tah. & Dist. Amravati.                     . . . . NON-APPLICANTS

 Ms. Gayatri R. Diwe, Advocate h/f Shri P.R. Agrawal, Advocate for
 applicant.
 Shri S.D.Sirpurkar, APP for respondent no.1.
 Shri C.A.Babrekar, Advocate for respondent no.2.


                                   CORAM :-    Z. A. HAQ AND
                                               AMIT B. BORKAR, JJ.

                                   DATED :-    14.01.2021


           ORAL JUDGMENT (Per Amit B. Borkar, J)


            1.                 Heard.

2. Rule. Rule is made returnable forthwith. Heard by

consent of the learned Advocates and learned APP appearing

APL820.18.odt

for the respective parties.

3. The applicant has filed the present application

challenging registration of First Information Report

No.969/2018 dated 28.7.2018 with the non-applicant - Police

Station for offence punishable under Sections 420 and 406 of

the Indian Penal Code.

4. The First Information Report came to be registered

against the applicant on 28.7.2018 with the allegations that

the applicant had entered into an agreement with the non-

applicant no.2 for construction of house of the non-applicant

no.2 and had accepted an amount of Rs.13,50000/-. It is

further alleged that the applicant has not fulfilled his

obligations under the agreement and has not completed the

construction. It is also alleged that the construction made by

the applicant was of substandard quality.

5. The applicant, therefore, approached this Court by

way of the present application. This Court on 5.9.2018 issued

notice for final disposal and granted ad-interim relief in terms

of prayer clause (ii).

6. In pursuance of the notice issued by this Court, the

APL820.18.odt

non-applicant no.1 filed its reply and submitted that the

present applicant has failed to construct the house of the non-

applicant no.2, as per the agreement in respect of receipt of the

entire amount. It is also alleged in the reply that the material

used by the present applicant was of sub-standard quality.

Therefore, it is prayed that there is no merit in the application

filed by the applicant.

7. Advocate for the applicant has filed Pursis

bringing on record a copy of the Consumer Complaint filed by

the non-applicant no.2 with the Consumer Court, Amravati.

From the prayers in the said complaint, it appears that the non-

applicant no.2 has sought relief of refund of the amount and

compensation for causing mental harassment to the non-

applicant no.2.

8. We have carefully considered the contents of the

First Information Report and reply filed by the non-applicant

no.1. The offences alleged against the applicant are under

Sections 420 and 406 of the Indian Penal Code. Section 420 of

Indian Penal Code speaks up punishment of cheating and

dishonestly inducing delivery of property. The necessary

ingredients of offence under Section 420 of the Indian Penal

APL820.18.odt

Code is dishonestly inducement to the person cheated to

deliver any property or valuable security at its inception. On

the face of the First Information Report in question, it does not

disclose any fact, which can constitute or prima facie establish

an act of inducement by the applicant and an inception of

entering into contract. The case of the non-applicant no.2 is

that the applicant has failed to complete construction, as per

the agreement and the quality of construction is of

sub-standard quality. The allegations regarding dishonest

intention at its inception are absent in the First Information

Report. From the allegations in the First Information Report,

we are of the view that the dispute between the applicant and

the non-applicant no.2 is the civil dispute.

9. We have also considered the ingredients of offence

punishable under Section 406 of the Indian Penal Code. The

ingredients in order to constitute criminal breach of trust is

that the person entrusted must dishonestly misappropriates the

same or converts it to his own use. From the allegations in the

First Information Report, do not disclose the basic ingredients

of offence punishable under Section 406 of the Indian Penal

Code.

APL820.18.odt

10. Therefore, we are satisfied that the continuation

of the proceedings against the applicant would amount to

abuse of process of the Court. We, therefore, pass the following

order:

First Information Report No.969/2018 dated 18.07.2018

registered with the non-applicant no.1 - Police Station for

offences punishable under sections 420 and 406 of the Indian

Penal Code is quashed and set aside.

Rule is made absolute in the aforesaid terms.

                         JUDGE                                       JUDGE

 Ambulkar