Bombay High Court
Parag Diwakar Pathak vs The State Of Maharashtra And Another on 20 December, 2023
Author: R.G. Avachat
Bench: R.G. Avachat
2023:BHC-AUG:27234-DB
1270.2021WP
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
904 CRIMINAL WRIT PETITION NO. 1270 OF 2021
Parag S/o Diwakar Pathak
..PETITIONER
-VERSUS-
1. The State of Maharashtra
2. Mr.Ramdas Dattatray Bansode
..RESPONDENTS
...
Advocate for Petitioner : Mr. Panale Sachin S.
APP for Respondent/State : Mr.A.R. Kale
Advocate for Respondent No.2 : Mr.M.P. Kale h/f Mr. Muley Atul R.
CORAM : R.G. AVACHAT AND
SANJAY A. DESHMUKH, JJ.
DATED : 20th DECEMBER, 2023.
PER COURT :-
. Heard.
2. This is application for quashing of First Information Report
(FIR) being Crime No.012 of 2021 registered with Aashti Police
Station, Dist. Beed, for the offence punishable under section 420 r/w
34 of the Indian Penal Code and consequential charge-sheet being
Regular Criminal Case (RCC) No.242 of 2022, pending before the
Judicial Magistrate, First Class at Ashti, Dist. Beed.
3. The FIR has been lodged on 19th January, 2021 alleging
that the applicant herein, his wife and her mother to have duped the
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informant by receiving a sum of Rs.22,45,000/- and not executing a
registered sale deed pursuant to the Isar Pavati / agreement for sale
dated 12th December, 2015. It has been specifically averred in the
FIR that the informant time and again made payment to the applicant
herein of some of balance consideration amount and repeatedly
called upon to execute the sale deed. The applicant, his wife and his
mother-in-law refused to pay back the amount and asked him to do
anything he could do against them. It has been specifically averred
that the informant paid some amount from the bank accounts of his
friends. It has also been averred that he has been duped by the
applicant and other two co-accused. False agreement for sale was
executed.
4. Based on such allegations, the FIR was registered and
investigated as well. Charge-sheet has been filed.
5. The learned advocate for the applicant would submit that in
fact the civil dispute is tried to be converted into criminal offence.
Relations between the applicant and his wife have became strained
and both of them have been separated. Decree of dissolution of
marriage has been passed. Even the applicant and his relations have
been prosecuted for the offence punishable under section 498-A of
the Indian Penal Code. The wife (co-accused) has also filed
application under the Domestic Violence Act. According to him, the
applicant has repaid the informant sum of little Rs.3,00,000/- in
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October, 2020. According to him, civil transaction sought to be
converted into criminal offence is not sustainable. He relies upon
recent judgment of the Hon'ble Apex Court in the case of Sarabjit
Kaur Vs. State of Punjab and another reported in (2023) 2 SCC
(Cri.) 485. According to him, the informant is professor, it is just
difficult to assume that he would make payment without obtaining
receipt therefor. The applicant could not perform his part of contract
since he got snapped from his wife due to decree of dissolution of
marriage. Later on, his wife revoked power of attorney executed in
his favour. He meant to say that applicant was willing to perform his
part of agreement, but he was unable to do so in view of revocation
of power of attorney. The learned advocate ultimately urged for
allowing the application.
6. The learned advocate for the informant and learned APP
would on the other hand urge that criminal action would emanate
from the transaction of civil nature. Intention of parties has to be
gathered. There are specific averments in the FIR that by executing
the Ishar Pavati / agreement for sale, the informant has been duped.
Informant has paid not less than amount of Rs.22,45,000/- from time
to time. Even timeline framed in the agreement to execute the sale
deed on or before February, 2016 got extended impliedly since the
applicant herein went to receive the amount upto year 2018. Our
attention has been adverted to statements of two witnesses wherein
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they stated that the amount was paid in their presence on more than
one occasion. The learned advocate for respondent no.2 and learned
APP ultimately urged for rejection of the application. According to
them, contentions of the applicant are in the nature of his defences to
be made out in the trial of the case.
7. Considered the submissions advanced. Perused the FIR
and related papers. Land originally belonged to the wife of the
applicant and her mother. Initially, there was all well between three.
Both, the wife and her mother executed the general power of attorney
in favour of the applicant authorizing him to deal with their agricultural
land. Pursuant to the GPA, he entered into a transaction in the nature
of Ishar Pavati/agreement for sale with the informant herein. Land
bearing survey nos.145 and 148 were agreed to be sold to the
informant for consideration of Rs.38,00,000/-. A sum of Rs.5,00,000/-
was received as earnest money. It was agreement executed on 11th
December, 2015. The transaction was to be completed on or before
5th February, 2016. There is record to indicate the informant to have
paid from bank accounts of his friends certain money to the bank
account of the applicant. It has been specifically averred in the FIR
that the said payment is towards part of remaining consideration
amount. It has also been averred in the FIR that the informant had
time and again approached to the applicant, his wife and mother-in-
law to ask for execution of sale deed. All of them refused and even
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abused him. It has also specifically been averred in the FIR that
execution of agreement for sale/Isar Pavati is nothing but a fraud on
the informant.
8. We have perused the judgment in the case of Sarabjit
Kaur (supra). The facts thereof indicate that informant therein had
earlier issued notice calling upon the applicant to perform part of
agreement. It is only thereafter the FIR came to be registered by
introducing some additional facts, which were not there. Meaning
thereby, in the first notice issued by the informant therein there was
no reference of having been duped or criminality involved in the
transaction. Based on those facts, the FIR therein came to be
quashed.
9. The case of the applicant that relations with his wife
became strained, decree of dissolution of marriage is passed, his
wife to have preferred other proceedings in the nature of FIR for the
offence punishable under section 498-A of the Indian Penal Code
and application under section 12 of the Domestic Violence Act, are in
the nature of his defences. We cannot go into the veracity of such
allegations. Record indicates, the applicant to have received amount
not less than Rs.8,00,000/- by RTGS. There is nothing to indicate
that he repaid the entire amount except the amount of Rs.3,00,000/-.
It is specific case of the informant that over Rs.22,00,000/- have
been paid but the applicant and others have refused to pay back the
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amount and execute the sale deed. Co-accused have sold the land to
others. It is reiterated that in the FIR itself it has been averred that
inspite of receiving an amount of Rs. 5,00,000/-, a false document
was executed by the applicant joining hands with his wife and
mother-in-law. The veracity of the allegations, whether the averments
in the FIR are true or false can only be tested during the trial of the
case. As such, there is material to proceed against the applicant for
the crime he is alleged to have committed. We are therefore not
inclined to grant the application. The application stands rejected.
(SANJAY A. DESHMUKH, J.) (R.G. AVACHAT, J.)
sga/
