Nitin S/O Haridas Gudadhe vs Ketan Arunrao Tarekar
2022 Latest Caselaw 6936 Bom

                                1



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


        CRIMINAL APPLICATION (APL) NO. 1211 OF 2021


        Nitin s/o Haridas Gudadhe, aged about
        45 years, Occupation business, resident
        of Near Jagdish Kirana Store, Jaitala,
        Nagpur.

                                                  ... APPLICANT

                              VERSUS
        Ketan Arunrao Tarekar, aged
        about 46 years, occupation
        business, resident of Behind
        Ganeshpeth Police Station,
        Ganeshpeth, Nagpur.

                                              ... NON-APPLICANT
_____________________________________________________________
       Shri U.P. Dable, Advocate for the applicant.
       Shri Vivek Krishnarao, Advocate for the non-applicant.
______________________________________________________________


                      CORAM          :   VINAY JOSHI, J.

                      DATED.         :   20.07.2022.


ORAL JUDGMENT :

ADMIT. Considering the controversy involved in the

application, the criminal application is taken up for final disposal

by consent of both the parties.

2. This is an application seeking to quash the order of

issuance of process by setting aside the order dated 26.02.2021

passed in Criminal Revision Application No.81 of 2017 by the

Additional Sessions Judge, Nagpur. The applicant has challenged

the order of issuance of process along with the order of framing of

charge, which is stated to be illegal, perverse and against the

provisions of law.

3. Briefly stated, non-applicant Ketan had filed a private

complaint bearing Criminal Complaint Case No.1999 of 2012

against the applicant Nitin Gudadhe for the offence punishable

under Sections 406, 417, 418, 420, 464 read with Section 34 of

the Indian Penal Code. It is the case of the non-applicant

(complainant) that one Niranjan Nagrale had agreed to sell his

agricultural land to the complainant and applicant (accused) for

consideration of Rs.3,87,500/-. In pursuance of that Niranjan

Nagrale (seller) had executed an agreement to sell dated

18.10.2006 jointly in favour of the complainant and accused. In

pursuance of agreement to sell, earnest amount of Rs.2 lakhs have

been paid. It was agreed to execute sale deed within a period of

six months. It was agreed that at the time of registration of sale-

deed remaining consideration of Rs.1,87,500/- would be paid. It

was the complainant's case that he has paid entire earnest amount

of Rs.2 lakhs to Niranjan (seller), in cash. The complainant

contended that in the third week of March, 2010, he learnt that

seller Niranjan had executed the sale-deed on 16.11.2007 in

favour of accused. It is the complainant's grievance that though he

along with the accused has agreed to purchase the property by

way of an agreement, however accused by joining hands with the

seller Niranjan got executed sale-deed solely in his favour and

therefore, the offence of forgery, fraud and cheating.

4. Initially, on 12.04.2010, the complainant has filed

police report stating the commission of offence as aforesaid

mentioned, however the Police did not took cognizance. On filing

of private complaint, the learned Magistrate has postponed the

issuance of process by directing the Police to investigate and

submit the report. During the course of investigation, the Police

have recorded statements and filed the report stating that the

transaction was of civil nature. However, the learned Magistrate

did not accept the report, but issued the process for the offence

punishable under Section 420 of the Indian Penal Code. The

complainant has adduced his evidence before charge. The learned

Magistrate considered the evidence before charge and vide order

dated 24.11.2016 held that a case is made out to frame charge

against the accused. Though in the private complaint seller

Niranjan and two others were impleaded as an accused, it is held

that there is no material to proceed against the rest. Inasmuch as,

seller Niranjan (accused no.1) died and thus, the order for

framing of charge was only against the accused no. 2, i.e. the

present applicant. Being aggrieved, the applicant-accused filed a

Criminal Revision, however he could not succeed, and therefore,

the parties are before this Court.

5. It is the complainant's case that though he has paid

entire earnest amount of Rs.2 lakhs and joint agreement was

executed, however the sale-deed was executed solely in favour of

accused, and therefore, the offence of cheating. In order to

substantiate his contention, the complainant has produced the

copy of agreement to sell dated 18.10.2006. Undisputedly, seller

Niranjan had executed agreement to sell jointly in favour of the

complainant and the accused. The agreement bears a reference

that towards part consideration, Rs.1 lakh was paid on 18.10.2006

and then there is an endorsement that on 06.11.2006 further

amount of Rs.1 lakh has been paid leaving the balance of

Rs.1,87,500/- to be paid at the time of sale-deed. The agreement

nowhere spells out that the part consideration was solely paid by

the complainant. I have gone through the report filed by the

complainant with the concern Police. Reading of report nowhere

suggests that the entire part consideration of Rs.2 lakhs has been

paid by the complainant alone.

6. Contextually, I have gone through the statements

recorded by the Police while carrying investigation in terms of

Section 202 of the Code of Criminal Procedure. The accused in his

statement admitted that a joint agreement was executed by the

seller in their favour. It is his case that at the time of execution of

agreement, part consideration of Rs.1 lakh was paid by the

complainant whilst the another part consideration of Rs.1 lakh

was paid by him. He stated that the transaction was not

materialized for sometime due to monetary constraints. He has

some how collected the amount and with consent of the

complainant got executed the sale-deed in his favour by assuring

the complainant to refund his amount of Rs.1 lakh. After

execution of sale-deed, he has also refunded amount of Rs.1 lakh

to the complainant on 05.12.2007 by banking transaction. He

stated that the complainant was well aware regarding the entire

transaction and thus, it does not constitute the offence of

cheating.

7. Learned Counsel appearing for the complainant

admitted that the complainant has received Rs.1 lakh from the

accused however, he tried to explain the same in his complaint

stating that the said payment was of some other transaction. In

this regard, he took me through the paragraph 5 of the complaint

wherein it is stated that the accused has taken some Gold

ornaments from the complainant on credit of which the amount is

outstanding. Pertinent to note that he has not stated that so-called

credit amount was refunded, but says that the same is

outstanding. Thus, there is no plausible explanation from the side

of the complainant as to for what reason the accused has paid him

Rs.1 lakh to him. The said fact rather admitted one about payment

of Rs.1 lakh by the accused to the complainant, strengthen the

complainant's stand about refund of partial earnest money.

8. The Police have carried investigation and filed a report

that transaction was purely of civil nature. Assuming for the sake

of order that the complainant has paid entire earnest amount of

Rs.2 lakhs, still it is difficult to hold that there was dishonest

inducement on the part of the accused. Though the agreement

was jointly in favour of the complainant and the accused, the

execution of sale-deed in favour of one of the purchaser could not

be ipso facto termed as an offence of cheating. In order to

establish the offence of cheating, dishonest intention at the time of

making promise, should be evident. There is no agreement in

between the parties nor it is recital of the agreement to sell that

sale-deed was to be executed in favour of both. There must be

fraudulent or dishonest intention at the inception. The transaction

of execution of agreement nowhere speaks that since beginning

the accused was having dishonest intention and accordingly,

induced the complainant to enter into the transaction. The entire

affair was predominantly of civil nature. The complainant's

remedy for recovery of amount if any lies elsewhere, but certainly

not by filing the criminal complaint.

9. Moreover, though the sale-deed was executed in the

month of November 2007, after gap of three years the complaint

has been filed. The explanation for delay of late knowledge is not

acceptable on the face of it. The allegations leveled in the

complaint, even if taken at their face value and accepted in their

entity, it do no prima facie constitutes the offence as alleged. The

allegations levelled in the complaint are inherently improbable on

the basis of which no prudent person can reach to the conclusion

that there are sufficient grounds for proceeding for the offence of

cheating. This Court has ample powers under Section 482 of the

Code of Criminal Procedure to pass the orders to prevent abuse of

the process of any Court or to secure the ends of justice.

Continuation of such unmeritorious litigation would be abuse of

the process of Court. The impugned order dated 26.02.2021

passed in revision, order dated 24.11.2016 for framing of charge

and the order of issuance of process are not sustained in law.

10. In that view of the matter, application succeeds. The

impugned order dated 24.11.2016 passed by the Magistrate and

order dated 26.02.2021 passed by the Additional Sessions Judge,

Nagpur in Revision Application No.81 of 2017 are hereby quashed

and set aside. The Criminal Complaint Case No. 1999 of 2012 is

dismissed.

11. The application stands disposed of in the aforesaid

terms.

(VINAY JOSHI, J.)

Trupti

TRUPTI SANTOSHJI AGRAWAL

21.07.2022 17:35