Bombay High Court
Mohamed Irfan Burhan Shaikh And ... vs State Of Maharashtra And Anr on 7 September, 2023
Bench: Nitin W. Sambre, R. N. Laddha
2023:BHC-AS:26066-DB
(21)-WP-504-22.doc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally
signed by
BALAJI
CRIMINAL APPELLATE JURISDICTION
BALAJI GOVINDRAO
GOVINDRAO PANCHAL
PANCHAL Date:
2023.09.07
14:35:00
+0530 WRIT PETITION NO.504 OF 2022
Mohamed Irfan Burhan Shaikh & Anr. ..Petitioners
Versus
The State of Maharashtra & Anr. ..Respondents
Mr. Sandeep S. Sharma, for the Petitioners.
Mr. J. P. Yagnik, APP for the Respondent/State.
Mr. Anees Shaikh, for the Respondent No.2.
CORAM : NITIN W. SAMBRE &
R. N. LADDHA, JJ.
RESERVED ON : 5th JULY, 2023
PRONOUNCED ON : 7th SEPTEMBER, 2023
P.C. (Per Nitin W. Sambre, J.)
1. By this Criminal Writ Petition under Article 226 of the
Constitution of India r/w Section 482 of the Criminal Procedure
Code, the petitioners are seeking quashing of FIR being Crime
No.396 of 2021 registered with Mira Road Police Station and
consequential charge-sheet filed against them for an offence
punishable under Sections 420, 406, 34 of IPC.
2. The facts necessary for deciding the present petition are
as under :-
Petitioner No.1 is a son of petitioner No.2. The petitioner
No.2 was married to one Burhan Shaikh.
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3. Petitioners are owners of land old Survey No.468, New
Survey No.144 and land old Survey No.470, New Survey No.117
Hissa No.1 admeasuring 266.72 sq.mtrs. It was agreed between the
petitioners and the respondent No.2 to rent out 2158 sq.ft. of area
as is claimed in the FIR. It is claimed that accordingly online rent
agreement was entered into and registered on 10th August, 2021.
4. The respondent No.2/complainant accordingly started
the work of construction of factory shed in the name and style as
Wood Factory Interior and More. It is claimed that after the
construction work was over, by 5th September, 2021, for which the
respondent No.2 has spent an amount of Rs.13,61,900/-, the
officials of the Mira Bhayandar Municipal Corporation informed that
the structure constructed on the said area is illegal, as same can be
done on an area of 306 sq.mtrs. hence construction carried out on
remaining area is illegal. Accordingly, officials of the Municipal
Corporation demolished the structure and has caused loss to the
respondent No.2. As such, it is alleged by the respondent No.2 that
out of the total land of 2158 sq.ft., only 306 sq.ft. is approved for
construction to be carried out on the said land. By misrepresenting
deposit of Rs.2,00,000/- was accepted and monthly rent of
Rs.20,000/- for the entire area was made to agree. That being so,
offence of cheating and criminal breach of trust is committed by the
petitioners.
5. Contention of counsel for the petitioners while making
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out a case for quashing is, the demolition by the Municipal
Corporation of the illegal construction of the respondent No.2 has
led to the filing of the FIR. According to counsel for the petitioners,
the registered leave and licence agreement was executed on 10 th
August, 2021 in which the respondent No.2 as reflected in the
Schedule-I was permitted to use plot of land plus building.
According to him, constructed portion being non residential unit,
land plus building out of old Survey No.468 having built up area of
2158 sq.ft. is situated on the ground floor. According to him, the
petitioners never promised and handed over any illegal construction
to the respondent No.2 as could be inferred from the recitals in the
aforesaid leave and licence agreement. The rights of the parties i.e.
petitioners can be crystallized from the aforesaid leave and licence
agreement. The counsel as such would urge that on the land in
question, it is an admitted position that 2158 sq.ft. of built up area
was available and which was permitted to be used by the
petitioners. Counsel for the petitioners as such urge that there is no
element of criminal breach of trust or cheating. Hence independent
offence cannot be inferred punishable under Section 34 of the IPC.
6. While countering aforesaid submissions, Mr. Anees
Shaikh, learned counsel for the respondent No.2 would urge that
the petitioners have promised and leased out land to the extent of
266.72 sq.mtrs. According to him, since the petitioners have no
authority to rent out the open space and since the permission for
construction was not obtained, the respondent No.2 had suffered
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loss of around Rs.15,00,000/- as structure erected by him was
demolished. He would as such urge that the prosecution is justified
in invoking provisions of Sections 406, 420 r/w 34 of IPC.
7. We have appreciated the aforesaid submissions.
8. The charge-sheeting of the petitioners for the offence
punishable under Sections 406, 420 r/w 34 of IPC can be borne out
of the record. The said registration of offence is based on the fact
that the respondent No.2 paid an amount of Rs.2,00,000/- as
deposit and agreed to pay an amount of Rs.20,000/- per month
towards the licence fees. The said amount was agreed to be paid as
against the permission granted by the petitioners to occupy 2158
sq.ft. of built up area as is reflected in the leave and licence
agreement executed and registered between the parties on 10 th
August, 2021. The recitals in the said leave and licence agreement if
perused in the backdrop of Schedule I, which reads thus :-
"All that constructed portion being Non-Residential unit
bearing Land+Building/Shed No.OLD SURVEY NO.468
Built-up: 2158 Square Feet, situated on the - Floor of a
Building known as '-' standing on the plot of land bearing
Survey Number : NEW SURVEY NO.144, Road: MIRA
BHAYANDER ROAD, Location: MIRA ROAD EAST THANE-
401107, of Village: Navaghar, situated within the revenue
limits of Tahsil Thane and Dist. Thane and situated within
the limits of Mira-Bhayander Municipal Corporation.
IN WITNESS WHEREOF the parties hereto have set and
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subscribed their respective signatures by way of putting
thumb impression electronic signature hereto in the
presence of witness, who are identifying the executants, on
the day, month and year first above written."
Aforesaid sufficiently establishes that what was permitted to be
occupied by the respondent No.2 was the constructed portion being
non-residential unit on land Survey No.468 having built up area of
2158 sq.ft. at village Navaghar.
9. As such, it cannot be said that the petitioners at any
point of time have made to understand the respondent No.2 that
they have permitted or made to understand the respondent No.2
that the constructed area of more than 2158 sq.ft. is given to the
respondent No.2 to be used for the commercial purpose and have
also charged rent for the same.
10. As is rightly claimed by the counsel for the petitioners
that the inter se relationship of licensor and licensee can be inferred
from the recitals of the aforesaid leave and licence agreement dated
10th August, 2021.
11. In this background, what can be noticed is, the
petitioners have never promised the respondent No.2 that he is
being made to understand or he was promised and provided
constructed area of more than 2158 sq.ft in land old Survey No.468,
New Survey No.144, old Survey No.470, New Survey No.117.
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12. In this background, if we appreciate the very ingredients
of Section 406 of the IPC, same provides for the punishment for
criminal breach of trust. Section 405 of the IPC defines criminal
breach of trust i.e. in case if a person, whoever entrusts the property,
or having dominion over the property, dishonestly misappropriates
or converts such property to his own use or dishonestly uses or
disposes of that property in violation of any direction of law, or of
any legal contract, express or implied, which such person has made
touching the discharge of such trust, or willfully suffers any other
person so to do, alleged to have committed criminal breach of trust.
13. What was agreed to rent out by virtue of leave and
licence agreement is built up area of 2158 sq.ft. The fact that the
said area of 2158 sq.ft. on the plot owned by the petitioners having
sanction construction is duly admitted by the respondent No.2. As
such, it cannot be said that the petitioners by their conduct have
caused distrust thereby making the respondent No.2 suffer
monetarily. As such, necessary ingredients of Section 406 of IPC
cannot be inferred from the charge-sheet or the contents of the FIR.
14. As far as the ingredients of Section 420 of IPC are
concerned, the petitioners at no point of time induced the
respondent No.2 to deposit an amount of Rs.2,00,000/- towards
security deposit and pay an amount of Rs.20,000/- per month with
an inducement or delivering of the property other than built up area
of 2158 sq.ft. and as such, offence of cheating cannot be inferred
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against the petitioners in view of recitals and Schedule-I to the
registered leave and licence agreement dated 10 th August, 2021. The
contents of Leave and Licence agreement speaks of the licence being
granted for said built up area. As such, the very ingredients of
Section 420 of the IPC cannot be inferred against the petitioners.
Once it is inferred that the ingredients of offence under Section 406
and 420 of the IPC cannot be inferred against the petitioners, the
offence under Section 34 of the IPC cannot be attracted in the facts
of the case in hand.
15. The contention of respondent No.2 that the conduct of
the petitioners has caused financial loss and damage to him. It shall
be open to the respondent No.2 to initiate civil proceedings for
recovery of such damage and compensation which shall be decided
in accordance with law based on his contention of breach of
contract.
16. The fact remains that in the aforesaid background, there
is remote chance of the conviction of the petitioners in the offence
alleged and the continuation of the criminal prosecution will cause
extreme injustice to the petitioners/accused persons. The
improbability of the offence alleged against the petitioners can be
inferred from the leave and licence agreement dated 10 th August,
2021. As such, support is drawn from the judgment of Supreme
Court in the matter of State of Haryana & Ors. Vs. Ch. Bhajan Lal &
Ors. reported in AIR 1992 SC 604.
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17. The Apex Court in the matter of Vineet Kumar Vs. State
of Uttar Pradesh & Anr. reported in (2017)13 SCC 369, had an
occasion to consider the scope of 482 of the CrPC and the
eventualities in which the same can be taken recourse to. The Apex
Court has held that if it comes to the conclusion that allowing the
proceeding to continue would be an abuse of the process of the
Court or that the ends of justice require that the proceeding ought
to be quashed, the powers can be exercised. Similarly, in the above
referred judgment State of Haryana Vs. Bhajan Lal reported in 1992
Supp. (1) SCC 335, the Apex Court has held that even if the
allegations in the First Information Report are taken at its face value
and accepted in their entirety do not prima-facie constitute any
offence, powers of quashing an be exercised. In the case in hand, as
from the aforesaid discussion, it can be inferred that even if the case
of the respondent/complainant is accepted as it is, still it cannot be
said that the offence can be said to have been constituted against
the petitioners.
18. That being so, in our opinion, even if what has been
stated in the charge-sheet and FIR is accepted, still no offence is
made out against the petitioners as could be inferred from the leave
and licence agreement dated 10th August, 2021. That being so, the
present writ petition stands allowed in terms of prayer clause (A).
[R. N. LADDHA, J.] [NITIN W. SAMBRE, J.]
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