Ravindra S/O Motiramji Deshmukh vs State Of Maharashtra, Through ...
2021 Latest Caselaw 3750 Bom

 Judgment                                  1                                 apl376.15.odt




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

                     CRIMINAL APPLICATION (APL) NO. 376/2015

          Ravindra S/o Motiramji Deshmukh,
          Aged about 60 years, Occ. Pensioner,
          R/o. Shivneri Society, Yavatmal
                                                                      .... APPLICANT

                                    // VERSUS //

 1]       State of Maharashtra,
          Through P.S.O., Yavatmal City Police
          Station, Dist. Yavatmal

 2]       Anup S/o Vinayakrao Khande,
          Aged : Major, Occ. Service, Tahsildar,
          C/o. Tahsil Office, Yavatmal

 3]       Rajesh S/o Ramrao Khawle,
          Aged : Major, Occ. Service,
          Resident Deputy Collector, Yavatmal

 4]       The Collector, Yavatmal
                                                           .... NON-APPLICANT(S)

  *******************************************************************
                   Shri F.T. Mirza, Advocate for the applicant
             Shri N.S. Rao, APP for the non-applicant nos. 1 and 4
        Shri P.R. Agrawal, Advocate for the non-applicant nos. 2 and 3
  *******************************************************************
                     CORAM : Z.A.HAQ & AMIT B. BORKAR, JJ.

MARCH 01, 2021

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

1] Heard.

2] By this application under Section 482 of the Code of Criminal

Procedure, the applicant has challenged registration of F.I.R. No. 246/2015

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dated 10/06/2015 registered with the non-applicant no. 1 - Police Station

for the offences punishable under Sections 420, 409, 169 and 34 of the

Indian Penal Code.

3] The first information report came to be registered against the

applicant and others with the accusations that the accused nos. 1 to 4 in

connivance with one another have let out the property of the Collector,

Yavatmal by portraying the said property as private property of the applicant

and others. It is alleged that the applicants by misappropriating the amount

received as rent and by letting out the property of the Collector, Yavatmal,

have cheated the government.

4] The applicant has therefore challenged registration of the first

information report by filing the present application. This Court on

18/06/2015 issued notices to the non-applicants and it was directed that no

coercive steps shall be taken against the applicant. On 07/10/2015, this

Court issued Rule and granted interim relief in terms of prayer clause (b)

thereby granting stay to the further proceedings in pursuance of F.I.R.

No. 246/2015.

5] In pursuance of the notice issued by this Court, the non-

applicant no. 1 has filed its reply and it is stated that the applicant is the

head of the association of Revenue Karmachari Sanghatana. It is stated that

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in the premises of the office building of the Collector, Yavatmal one Vinod

Rathod is running canteen and one Sham Kotawar is running xerox center. It

is found that the canteen and xerox center are illegally run by the said

persons on the basis of Nokarnama executed by the applicant and other

office bearers of the said society. It is alleged that since the applicant and

other office bearers of the said association had no right to induct such

persons as tenants and as there was no permission from the office of the

Collector, Yavatmal, the applicant and others have committed the offences

punishable under Sections 420, 409 and 169 of the Indian Penal Code. The

non-applicant nos. 2 and 3 have also filed their replies and have stated the

defence which is similar to the case made out in the affidavit of the non-

applicant no. 1.

6] We have carefully considered the contents of the first

information report and the documents produced by the non-applicant no. 2

alongwith his reply. For deciding the issue involved, it is necessary to

consider the ingredients of Section 420 of the Indian Penal Code which reads

as under :-

"Section 420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall

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be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

7] Reading of Section 420 of the Indian Penal Code makes it clear

that at the inception there has to be dishonest inducement by the accused to

deliver any property to any person or to retain any property. In the facts of

the present case, from the averments in the first information report, essential

ingredients of Section 420 of the Indian Penal Code are missing.

8] The next offence alleged against the applicant is under Section

409 of the Indian Penal Code. Essential ingredients of offence under Section

409 of the Indian Penal Code is that the property has to be entrusted with

person in his capacity as public servant or in the way of his business as

banker, merchant, factor, broker, attorney or agent or if he has committed

breach of the trust in respect of that property. It is only after fulfillment of

the ingredients of Section 409 of the Indian Penal Code, the offence under

Section 409 can be registered. From the allegations in the first information

report, we do not find that the ingredients necessary to constitute the offence

punishable under Section 409 of the Indian Penal Code are fulfilled. The next

offence alleged against the applicant is under Section 169 of Indian Penal

Code which is in relation to the public servant unlawfully buying or bidding

the property. In the facts of the present case, the allegations which are made

against the applicant are in his capacity as head of the society of the

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employees which is not an act which is committed by the applicant in his

capacity as public servant.

9] On overall consideration of the allegations made against the

applicant and the material produced by the non-applicant nos. 1 and 2 by

way of filing their replies, we are satisfied that the ingredients of the offences

alleged against the applicant are not fulfilled even if the allegations in the

first information report are accepted as correct. Hence, we are of the opinion

that continuance of the present proceedings against the applicant would

amount to abuse of process of the Court.

10] Hence, the following order:-

F.I.R. No. 246/2015 dated 10/06/2015 registered with the non-

applicant no. 1 - Police Station for the offences punishable

under Sections 420, 409, 169 and 34 of the Indian Penal Code is

quashed and set aside.

Rule is made absolute in the above terms.

                           JUDGE                                     JUDGE




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