Umesh Rambhau Mhaturkar And ... vs State Of Mah. Thr. Pso Ps Dahihanda ...
2022 Latest Caselaw 8302 Bom

                             -1-          25.APL.461.2021. Judgment.odt



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

  CRIMINAL APPLICATION (APL) NO.461 OF 2021

APPLICANTS                : 1. Umesh Rambhau Mhaturkar, Aged
(Ori. Accd. Nos.4 & 5)         45 years, Occ. Agriculturist.

                            2. Sau. Lata Umesh Mhaturkar, Aged 35
                               years, Occ. - House Work and
                               Agriculturist.

                              Both R/o. Takli Khurd, Tq. Akot,
                              Dist. Akola.

                                    //VERSUS//

NON-APPLICANTS : 1. State of Maharashtra, through Police
                    Station Officer, Police Station
                    Dahihanda, Dist. Akola.

                            2. Amit Kishor Goyanka, Aged 44 years,
                               Occ. - Agriculturist, R/o. Alshi Plot,
                               Akola, Tq. & Dist. Akola.


**************************************************************
            Mr. V.B. Bhise, Advocate for the Applicants.
    Mr. A.S. Fulzele, Addl. P.P. for Non-applicant No.1.
    Mr. R.V. Malviya, Advocate for Non-applicant No.2.
**************************************************************

       CORAM :           MANISH PITALE AND
                         VALMIKI SA MENEZES, JJ.

DATE : 24th AUGUST, 2022.

-2- 25.APL.461.2021. Judgment.odt

ORAL JUDGMENT (Per: Manish Pitale, J.)

Heard finally with the consent of the learned counsel

appearing for the parties. Admit.

02] By this application, the applicants are seeking

quashing of First Information Report bearing No.36/2021 dated

23.01.2021, registered at Police Station Dahihanda, District

Akola, for offences under Sections 420, 466, 467, 471 read with

Section 34 of the Indian Penal code. The applicants submit that

insofar as they are concerned, the FIR is not tenable at all and

continuation of criminal proceedings as against him would

amount to an abuse of the process of law.

03] Mr. Bhise, learned counsel appearing for the

applicants has invited attention of this Court to the documents

placed on record with the present application. It is brought to our

notice that the applicant No.1 purchased the suit property from

one Kisan Tade by registered sale-deed dated 20.04.2018. It is

submitted that the name of the said vendor was very much

recorded in the record of rights and the mutation entries being in

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the name of his vendor, the applicant No.1 had no reason to

suspect anything in the matter.

04] It appears that the non-applicant No.2 initiated a

proceeding before the Sub-Divisional Officer under the

provisions of the Maharashtra Land Revenue Code, 1966,

challenging the mutation entry bearing No.713 in favour of the

vendor of the applicants before this Court. Admittedly, the

applicants were not made parties to the said proceedings. There

were certain allegations levelled by the non-applicant No.2 against

the vendor of the applicant and by order dated 23.11.2020, the

Sub-Divisional Officer allowed the application filed by the non-

applicant No.2, thereby holding in his favour and directing that

the mutation entry bearing No.713 be cancelled.

05] In the meantime, on the strength of the registered

sale-deed, the name of the applicant No.1 was initially entered in

the revenue records and subsequently since he gifted the property

to his wife i.e. applicant No.2, the mutation entry stood in the

name of applicant No.2.

06] Upon becoming aware about the order dated

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23.11.2020, passed by the Sub-Divisional Officer, the applicant

No.2 challenged the said order before the Collector, which met

with failure and we are informed that further the applicant No.2

has challenged the order of the Collector and the Sub-Divisional

Officer before the Commissioner, which challenge is pending

before the said Authority.

07] We are also informed that the applicants have filed a

suit for injunction against the non-applicant No.2, pertaining to

the said property, wherein an order of temporary injunction,

protecting their possession, is operating in their favour.

08] The learned counsel for the applicants submits that in

this backdrop, when the oral report leading to registration of the

FIR is perused, the only reference to the applicants is that the

applicant No.1 purchased the property from the original vendor

and subsequently gifted it to his own wife i.e. applicant No.2.

Thereafter, a general allegation is made against all the accused

persons about cheating and other offences. It is relevant that in

the meantime, the original vendor Kisan Tade expired and in the

FIR, the legal representatives of Kisan Tade are made accused,

-5- 25.APL.461.2021. Judgment.odt

along with the applicants and the Talathi, as also the Circle

Officer. According to the learned counsel for the applicants, no

criminality can be attributed to the applicants on the face of the

record and therefore, the FIR deserves to be quashed, insofar as

they are concerned.

09] Mr. Fulzele, learned Additional Public Prosecutor,

appeared on behalf of non-applicant No.1/State and submitted

that the investigation was under progress and the names of the

applicants were indeed stated in the oral report leading to the

registration of the FIR.

10] Mr. R.V. Malviya, learned counsel has appeared on

behalf of non-applicant No.2 and he supported the contents of

the oral report, leading to registration of the FIR. It was submitted

that since the applicants were beneficiaries of the sale-deed

executed by the original vendor, it was necessary to investigate the

role of the applicants to unearth the conspiracy.

11] We have perused the oral report, leading to

registration of the FIR and we have appreciated the factual

backdrop in which the oral report was submitted.

-6- 25.APL.461.2021. Judgment.odt

12] It is undisputed that the applicant No.1 purchased the

property in question from the original vendor at the time when

the name of the original vendor was recorded in the record of

rights at mutation entry No.713. As a cautious purchaser, the

applicant No.1 could only have verified the revenue records in

order to go ahead with the transaction. There is a registered sale-

deed executed in favour of the applicant No.1, on the strength of

which, he executed the gift deed, as a consequence of which, the

name of applicant No.2 was recorded in the record of rights.

13] It is significant that when the non-applicant No.2

approached the Sub-Divisional officer, challenging the mutation

entry, only the mutation entry No.713, pertaining to the original

vendor was made subject-matter of challenge and admittedly, the

applicants were not made parties to the said proceedings.

Thereafter, the applicant No.2 proceeded to challenge the order,

passed by the Sub-Divisional Officer, as per proceedings known to

law and at present, the challenge is pending before the

Commissioner under the provisions of the aforesaid Code. There

is also no dispute about the fact that an order of temporary

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injunction is operating in favour of the applicants in the pending

suit.

14] We are of the opinion that in this backdrop, it would

be too far-fetched to attribute any criminality on the part of the

applicants, even if the entire oral report depicting the grievance of

the non-applicant No.2, is taken into consideration. We make no

comment about the role of the legal representatives of the original

vendor, the Talathi and the Circle Officer, but we are convinced

that the applicants before this Court cannot be foisted with

criminal liability only because the applicant No.1 purchased the

property by way of a registered document and thereafter, executed

gift deed in favour of his own wife i.e. applicant No.2.

15] We are convinced that allowing the proceedings to

continue against the applicants, would amount to abuse of

process of law, the proceedings being vexatious and ends of justice

would be met, if the FIR is quashed, insofar as the applicants are

concerned.

16] In view of the above, the application is allowed in

terms of prayer Clause (1), which reads as follows:

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1) quash and set aside FIR registered by non- applicant no.1 bearing No.0036/2021 dated 23.01.2021 registered by Police Station, Dahihanda, Tq and Dist. Akola for an offence punishable under Section 420, 466, 467 R/w. 34 of IPC.

17] It is made clear that the said FIR stands quashed only

insofar as the applicants before this Court are concerned.

                                  (VALMIKI SA MENEZES)             (MANISH PITALE, J.)



                  Vijay




Digitally Signed By:VIJAY KUMAR
Personal Assistant
to Hon'ble JUDGE
Signing Date:26.08.2022 17:21