Bombay High Court
Rajesh Kumar Ratilal Vanigota vs The State Of Maharashtra And Anr on 14 June, 2023
Bench: Nitin W. Sambre, Sharmila U. Deshmukh
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 3313 OF 2022
Rajesh Kumar Ratilal Vanigota ... Petitioner.
Versus
The State of Maharashtra and Anr. ... Respondents.
----
Mr. Rajesh Jain with Mr. Rohit Jain, Ms. Neha Doshi i/by Legal Juris
for the Petitioner.
Mr. J.P. Yagnik, APP for the Respondent-State.
----
CORAM : NITIN W. SAMBRE &
SHARMILA U. DESHMUKH, JJ.
DATE : June 14, 2023.
P. C. :
1. The counsel for the Petitioner submit that the petitioner is
already chargesheeted. Leave is granted to place on record the
chargesheet and incorporate the chargesheet in prayer for quashing of
the chargesheet.
2. Amendment to be carried out forthwith.
Digitally
signed by
SANJAY
SANJAY ASARAM
ASARAM MANDAWGAD
MANDAWGAD Date:
2023.06.16
3. Heard learned counsel for the Petitioner. The Petitioner is
17:35:31
+0530
seeking quashing of the First Information Report (FIR) being C.R.
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No.22 of 2019 registered with Bangur Nagar Police Station, Mumbai
for the alleged offence punishable under Section 420 read with 34 of
the Indian Penal Code, 1860, along with the chargesheet.
4. The case of the prosecution as against the Petitioner is,
the Petitioner was a registered owner of BMW i Car 525 having
Engine capacity 2993 CC being Engine No.75507930.
5. It appears that as the Petitioner was intending to sell the
said car, he has entered into an agreement for the same with second
hand car dealer by name M/s. Modest Cars. Accordingly, Petitioner
has sold the same to M/s. Modest Cars for a consideration of
Rs.17,00,000/-. In turn, M/s.Modest Cars has sold the said car to the
Respondent No.2 for a consideration of Rs.20,00,000/-.
6. It is the case of the prosecution that the Petitioner made
an alteration contrary to the very provisions of sub-Section (4) of
Section 182-A of the Motor Vehicles Act, 1988, to the engine as the
engine capacity of the said vehicle was found 2000 CC and not
original one, which was given alongwith the registration of
documents. It is also noticed by the Respondent No.2 that the vehicle
had done more kilometers than one reflected in speedometer and also
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the vehicle was not in appropriate condition. This has led to lodging
of the complaint, which has resulted into registration of the offence in
question.
7. The contentions of the counsel for the Petitioner are that
there is no privity of contract between the Petitioner and the
Respondent No.2-complainant, as the vehicle was sold by the
Petitioner to M/s. Modest Cars and not to the complainant. As such,
according to him, there is no promise to the Petitioner by the
Respondent No.2.
8. It is further claimed by the Petitioner that there is no iota
of evidence to infer that this was a matter of tampering of the engine
of less capacity/power as substituted to the original one. So as to
substantiate his contentions, he has drawn support from the
investigation papers, particularly, the report of the Regional Transport
Authority, wherein it is specifically mentioned that as per the records,
the cubic capacity of engine is 2993 CC and the engine number
shown to be 75507930. According to him, neither the engine number
is replaced nor there is any tampering as could infer from the
aforesaid proposal.
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9. While countering the aforesaid submissions, the learned
APP submits that the car dealer was a mediator in such dealing in
question and as such, this Court must infer the contract between the
Petitioner and the Respondent No.2. According to him, whether the
engine was of an appropriate capacity, as reflected in the registration
of vehicle documents, the documents of registration can be gone into
at the stage of the trial.
10. Though served none appears for the Respondent No.2.
11. From the records, it can be very much established by the
Petitioner that there was no privity of contract between the Petitioner
and the Respondent No.2-Complainant, as the Petitioner from his
bank account has demonstrated that he has received the amount from
the second hand car dealer named M/s. Modest Cars. The Petitioner
has not received any consideration towards the sale of the vehicle
from the Respondent No.2-Complainant. That being so, it cannot be
said that the Petitioner has sold the car in question with defective
engine to the Respondent No.2 directly.
12. For the aforesaid factual matrix of the matter, it has to be
inferred that the Petitioner has no contractual obligations in the
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matter, as has been claimed by the Respondent No.2.
13. Apart from the above, the fact remains that the
Respondent No.2 has initiated Commercial Suit No.43 of 2019 before
the City Civil Court, Borivali Division, in which the Respondent No.2
has claimed the relief of recovery of sum of Rs.20,00,000/- with
interest and damages. In the said suit, the Court below has following
framed issues and answered the same as against the interest of the
Respondent No.2.
"Sr.No. Issues Findings
1 Whether the plaintiff proves that she
intended to buy a BMW 525D 2990CC
having Car No.MH 01 BB 5024 for
consideration of Rs.20,00,000/? In the affirmative
2 Whether the plaintiff proves that
defendants cheated her by selling BMW
Car of 2000 CC? In the negative.
3 Whether the plaintiff proves that plaintiff
is entitled to recover an amount of
Rs.20,00,000/- (Rupees Twenty Lack) ? In the negative.
4 Whether the plaintiff is entitled to interest
as prayed? In the negative.
5 Whether the defendant No.4 is necessary
party to the suit? In the negative.
6 Whether the defendant No.3 is necessary
party to the suit? In the negative.
7 What order and decree? As per final order."
14. We are informed that till this date, the Petitioner is not
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served even by notice in an appeal questioning the aforesaid
judgment dated 1st July, 2022 decided in Commercial Suit No.43 of
2019.
15. Apart from the above, what can be noticed is the very
inspection report of the Regional Transport Authority, Mumbai,
whereby not only the details of the vehicle in question which has
allegedly sold by the Petitioner, was inspected but also the engine
number was verified from the original registration document of the
vehicle. During such verification, there was no tampering noticed
with the engine number.
16. In the aforesaid background, it cannot be said that the
Petitioner had any intention to cheat the Respondent No.2,
particularly, in the matter of dealing with the second hand vehicles.
As such, prima facie, case for quashing is made out, the entire
proceedings as against the Petitioner stand stayed.
17. Let there be fresh notice to the Respondent No.2 made
returnable on 4th July, 2023. The Petitioner to serve the Respondent
No.2 by private notice and file service affidavit.
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18. Notice to indicate that the petition shall be taken up for
final disposal at the stage of admission.
19. We deem it appropriate to direct the Respondent no.1 to
complete the service on the Respondent no.2 by returnable date.
20. In addition to above, it shall be open for the Petitioner to
serve the Respondent no.2 by alternate mode thereby intimating that
on the next date the matter shall be taken up for disposal.
21. Stand over to 4th July, 2023.
[Sharmila U. Deshmukh, J.] [Nitin W. Sambre, J.]
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