Bombay High Court
Sunil Mohan Joshi vs The State Of Maharashtra And Anr on 8 January, 2024
Author: A. S. Gadkari
Bench: A. S. Gadkari
2024:BHC-AS:1371-DB
Ganesh 219-APL-26-2014(J).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 26 OF 2014
Mr. Sunil Mohan Joshi
Age: 42 Years, Occ: Business
R/a: 701, Mata Vaishnavi Building,
Vaibhav chowk, Tembhipada,
Bhandup (West), Mumbai 400 078 .. Applicants/
(Original Accused)
Vs.
1. The State of Maharashtra
(At the Instance of Senior P.I.
Bhandup Police Station)
2. Mr. Sushil Hanumant Pednekar
Age: 42 yrs, Occ: Service
R/a: Room No. 18, Mishra Kunj Chawl,
Satyam Shivam Sundaram C.H.S. (Poposed)
Vaibhav Chowk, Tembhipada road,
Bhandup (West) Mumbai 400 078 .. Respondents
(Respondent No.2-
Org. Complainant)
Mr. Niranjan Mundari a/w Mr. Keral Mehtra for Applicant.
Ms. Mahalakshmi Ganpathy APP for State.
CORAM : A. S. GADKARI AND
SHYAM C. CHANDAK, JJ.
RESERVED ON : 30th NOVEMBER, 2023.
PRONOUNCE ON : 8th JANUARY, 2024.
JUDGMENT:
[PER- SHYAM C. CHANDAK, J.]
1) Present Application filed under Section 482 of the Code of
Ganesh 219-APL-26-2014(J).doc
Criminal Procedure, 1973, seeks quashing of the F.I.R. being C.R. No.375 of
2013, registered on 28th November, 2013 with Respondent No.1- Bhandup
Police Station, for the offences punishable under Sections 420, 465, 467,
468, 471 and 476 read with 34 of the Indian Penal Code, 1860. Respondent
No.2 has opposed the application by his affidavit-in-reply.
2) Heard Mr. Niranjan Mundargi along with Mr. Keral Mehtra for
the Applicant and Ms. Mahalakshmi Ganpathy, learned APP for Respondent-
State. Perused the record. Though served, none appeared for Respondent
No.2 when the Application is taken up for final hearing.
3) Record of the Application shows that, ad-interim relief was
granted on 10th March, 2014 whereby Respondent No.1 was directed to
complete the investigation, but not to file charge-sheet. Thereafter, VP for
Respondent No.2 and his affidavit-in-reply were filed. The Rule was issued
on 4th January, 2017 and the interim relief was continued.
4) The impugned F.I.R. has been registered on a report filed on 28 th
November, 2013 by Respondent No.2 wherein he narrated that, he and
others residing at plot No.59, Vaibhav Chowk, have submitted a proposal
under the SRA Scheme. In the year 1998, the Applicant submitted a proposal
for approval to develop plot No.60 under the SRA Scheme. Said project was
outcome of the transaction between one Pravinsingh s/o. Bharatsingh
Thakur and the Applicant. For that project, the LOI was issued in the year
Ganesh 219-APL-26-2014(J).doc
1999. Thereafter, the Applicant constructed one building on the said plot.
However, since beginning the Applicant did not construct necessary
protection wall to the four sides of the said plot by leaving requisite 5 feet
space (from the boundary of the adjacent plot No.59). As a result, the built
up/carpet area of the proposed residential society of Respondent No.2 and
his co-occupants would be reduced, for which the project was already
submitted in the year 2001. Therefore, Responded No.2 and others filed
complaints against the Applicant with various agencies of the Government,
but it was in vain. Meanwhile, the Applicant continued with his
construction. Hence, copies of the documents of the project submitted by the
Applicant were obtained under the RTI. It revealed that the Agreement to
Sale of the plot No.60, dated 28th July, 1998, between the Applicant and
Pravinsingh and the Power of Attorney dated 19 th March 1999, allegedly
executed by Bharatsingh Thakur in favour of Pravinsingh, are bogus,
because the former, who was owner of the plot No.60 under development,
had already expired on 5th April 1997. Hence, the police registered the
impugned F.I.R. against the Applicant.
4.1) According to the applicant, he has been falsely implicated in the
F.I.R. Hence, this application.
5) Learned counsel for the Applicant submitted that both the plots
Nos.59 and 60 were owned by Bharatsingh. Initially, the Applicant and
Ganesh 219-APL-26-2014(J).doc
Pravinsingh had entered into an Agreement to Sale dated 30 th September
1995 for plot No.60, at Bhandup. At that time, Pravinsingh represented to
the applicant that, he is Power of Attorney of his father Bharatsingh. In that
capacity, Pravinsingh had executed various documents before various
Authorities to enable the Applicant to develop the plot No.60. Meanwhile,
the land prices increased, therefore, Pravinsingh and some other members of
his family asked for a higher consideration. The Applicant agreed for that
and entered into a new Agreement to Sale dated 10 thJuly 1998 again on the
same representation that Pravinsingh was the Constituted Attorney of
Bharatsingh. At this point of time, the Applicant was completely unaware of
the fact that, Bharatsingh had passed away on 5 th April 1997 and hence the
Power of Attorney in favour of Pravinsingh is invalid. Thereafter, the
Applicant received requisite permission for development of the said plot.
Later on, sometime in July 2012, the Applicant realized that the said Power
of Attorney is invalid. Therefore, the Applicant asked Pravinsingh and other
members of Bharatsingh's family to provide him a Succession Certificate of
Bharatsingh. However, Pravinsingh demanded Rs.50,00,000/- from the
Applicant. Hence, the Applicant filed a complaint against him at Bhandup
Police Station, but its cognizance was not taken. The Applicant also sent a
notice dated 26th June, 2013 to Pravinsingh and other members of
Bharatsingh's family and called upon them to execute a Deed of Conveyance.
Ganesh 219-APL-26-2014(J).doc
Finally, Pravinsingh and all other legal heirs of Bharatsingh executed a
Development Agreement dated 01st August, 2013. So far, huge amount has
been paid to Pravinsingh and the other legal heirs. Moreover, Pravinsingh
recorded a letter dated 01st August, 2013 to City Survey Officer, Mulund
stating that the dispute with the Applicant has been resolved. Its copy is
marked to Bhandup Police Station. As such, the offences alleged against the
Applicant are not made out.
5.1) Learned counsel for the Applicant submitted that, on 4 th
February, 2023, the members of the society formed on plot No. 60 filed a
complaint against the builder, who is developing plot No.59. This complaint
is for obstructing the Applicant and his workers as they did not meet undue
demands of the said builder. Thus, it is clear that the impugned F.I.R. has
been filed just to harass and pressurize for undue concessions from the
Applicant and smacks with mala fide. Therefore, the F.I.R. may be quashed.
6) As against this, learned APP vehemently submitted that the
Affidavit-in-Reply of Respondent No.2 coupled with the statement of
Pravinsingh recorded by the Police, gives the relevant details as to how the
Applicant prepared false and bogus Agreement to Sale dated 10 th July, 1998
and the Power of Attorney dated 11th August, 1999. Thus, it corroborates the
case of prosecution stated in the impugned F.I.R. In short, the statement of
Pravinsingh clearly shows that he did not sign the said Agreement to Sale.
Ganesh 219-APL-26-2014(J).doc
Since Bharatsingh expired in 1997, question does not arise of he giving the
subject Power of Attorney to Pravinsingh. The Applicant also used the forged
documents as genuine. Thus, there is a prima facie case against the
Applicant of having committed the offences stated in the F.I.R. Therefore, the
Application may be rejected.
7) Looking at the rival submissions, the statement of Pravinsingh
enclosed with the Affidavit-in-Reply is significant. The said statement clearly
shows that, in the year 1995, Pravinsingh had executed the Agreement to
Sale of plot No.60 with the Applicant. Even though Pravinsingh claims that
the Agreement to Sale dated 10th July, 1998 and the Power of Attorney dated
19th July, 1999 are forged and bogus, the bank account statement of
Applicant and statement of Pravinsingh makes it evident that till 23 rd May,
2013, Pravinsingh and other legal heirs of Bharatsingh received considerable
amount from the Applicant towards the said Agreement to Sale. However,
Pravinsingh has not explained as to why he and other legal heirs accepted
the money from time to time even though the said documents were forged
and he had complained against the said forgery earlier and also on 24 th
November, 2012. Similarly, in his statement Pravinsingh did not explain as to
why he allowed the Applicant to complete the construction of one building
on the disputed plot No.60. Such an explanation was needed particularly
when Pravinsingh had not executed the Agreement to Sale, as alleged.
Ganesh 219-APL-26-2014(J).doc
8) The impugned F.I.R. indicates that there was dispute between
Respondent No.2 and the Applicant on account of the boundary of the Plot
Nos. 59 & 60. The record indicates that, after executing the initial
Agreement to Sale, dispute occurred between the Applicant, Pravinsingh and
other legal heirs on account of the consideration of plot No.60. Hence, they
filed report against each other. Later on, they settled that dispute amongst
them. Hence, Pravinsingh and said legal heirs executed the development
agreement with the Applicant in August-2013 and allowed him to construct
one building on plot No.60. The said construction caused annoyance to
Respondent No.2. By that time, Pravinsingh and other legal heirs of
Bharatsingh had settled the dispute with the Applicant. As such, Respondent
No.2 was constrained to lodge the impugned F.I.R. with mala fide intention
to cause undue harassment to the Applicant and for other extraneous
reasons.
9) Thus, the prosecution instituted by Respondent No.2 is
malicious and continuation of the same would amount to abuse of process of
law. As held by the Hon'ble Supreme Court in the case of State of Haryana &
Ors. Vs. C.H. Bhajanlal & Ors., (AIR 1992 page 604:1992 SCC (Suppl.) (1)
335), the extraordinary powers under Article 226 of the Constitution of
India or the inherent powers under Section 482 of Cr. P.C. could be
exercised, "Where criminal proceeding is manifestly attended with mala fide
Ganesh 219-APL-26-2014(J).doc
and/or where the proceedings manifestly initiated with ulterior motive for
breaking vengeance on the accused and with a view to spite him due to
private and personal grudge".
10) In view thereof, the impugned F.I.R. deserves to be quashed and
is accordingly quashed and set aside.
10.1) The Criminal Application No.26 of 2014 is allowed in the
aforesaid terms. Rule is made absolute.
(SHYAM C. CHANDAK, J.) (A. S. GADKARI, J.)
