Bombay High Court
Raosaheb Murlidhar Ahire And Anr vs State Of Maharashtra And Anr on 10 January, 2024
Author: M. S. Karnik
Bench: M. S. Karnik
2024:BHC-AS:1291
PMB 30.apl.451-23.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.451 OF 2023
RAOSAHEB MURLIDHAR AHIRE AND ANR. ..APPLICANTS
VS.
THE STATE OF MAHARASHTRA AND ANR. ..RESPONDENTS
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Adv. Ketan Arun Dhavle for the applicants.
Ms. S. D. Shinde, APP for the State.
Adv. Wasim R. Khan for respondent No.2.
------------
CORAM : M. S. KARNIK, J.
DATE : JANUARY 10, 2024
ORAL JUDGMENT :
1. Heard learned counsel for the applicants who is
appointed through legal aid to represent the applicants.
I have heard learned APP for respondent No.1 and learned
counsel for respondent No.2.
2. This application challenges an order passed below
Exhibit 2 issuing process by the Metropolitan Magistrate,
51st Court, Kurla, Mumbai dated 23.03.2016 under Sections
323, 504, 506(ii), 427 read with 34 of the Indian Penal
Code. The order reads thus :-
"This is the Private complaint for the offence Punishable U/
sec 420, 323, 504, 506(ii) r/w 34 of I.P.C. perused the
PMB 30.apl.451-23.doc
complaint and evidence of the complainant. I have called
the police report. Police has filed the report that it is the
civil dispute between the parties However; I am not
satisfied with the conclusion drawn by the inquiry officer.
The evidence of the complainant clearly shows that
accused have with committed an offence punishable u/sec.
323, 504, 506(ii), 427 read with section 34 of I.P.C. There
is sufficient evidence to proceed against them. Hence,
issue process for the said offence on payment of process
fee. Returnable on 30-06-2016."
3. I have perused the complaint made by the present
respondent No.2 against the accused No.1 and the present
applicants who are accused Nos.2 and 3. Briefly stated, it is
the case of the complainant-respondent No.2 that in the
society of which the accused No.1 projected himself to be
the Chairman, respondent No.2 purchased a garage. The
respondent No.2 required a no objection certificate for
electricity meter connection, water connection and for
completing other formalities for transfer of garage in his
name. It is the allegation that sometime on 20.08.2013 the
accused Nos.1 and 2 approached the complainant and both
demanded Rs.10,000/- for giving such no objection
certificate. Later on a demand was made by the accused for
sum of Rs.2,00,000/- for the building repairing fund from
the complainant and his son. The accused Nos.1 and 2
PMB 30.apl.451-23.doc
informed the complainant that the no objection certificate
will be given to him only upon the payment of
Rs.2,00,000/-. Accordingly, on 29.08.2013 the said amount
was paid by the complainant to the accused Nos.1 and 2 in
cash. The accused failed to issue the no objection certificate
despite accepting the payment and therefore the
complainant started demanding refund of the amount.
Instead of returning the amount, accused threatened the
complainant with dire consequences and often quarreled
with him. It is further submitted that accused No.3 who is
the wife of the accused No.2 started quarreling with the
complainant and his family members. The complainant was
thus left with no alternative but to file the complaint under
the aforesaid sections against the accused before the trial
Court.
4. I have heard Mr. Dhavle, learned counsel who was
appointed through legal aid to represent the applicants.
Mr. Dhavle submitted that the order issuing process is
erroneous as the dispute is more of a civil nature.
Mr. Dhavle though denied the accused having received a
PMB 30.apl.451-23.doc
sum of Rs.2,00,000/-, nonetheless submitted that
allegations are mainly against the accused No.1 and not
against the present applicants. It is further submitted that
the proceedings are pending since the year 2016 before the
trial Court and the complaint initiated is nothing but an
abuse of the process of the Court with an attempt made to
falsely implicate the applicants and harass them. It is
submitted that having regard to the materials on record the
trial Court was not justified in issuing the process.
5. Learned APP as well as learned counsel for respondent
No.2 argued in support of the process issued by the trial
Court. My attention is invited to the complaint. Learned
counsel for respondent No.2 submitted that the accusations
in the complaint are specific against the accused which
satisfy the ingredients of the alleged offence. It is submitted
that though the society was not registered, the accused
Nos.1 and 2 projected themselves to be the committee
members of the said society and on the pretext of collecting
building repairing fund, asked the complainant to pay a sum
of Rs.2,00,000/- for issuance of the requisite no objection
PMB 30.apl.451-23.doc
certificate. It is submitted that the accused threatened the
complainant when a request was made for the no objection
certificate or in the alternative for the refund of the amount.
6. I have heard learned counsel. I have perused the
materials on record. A reading of the allegations made in
the complaint reveal that for the purpose of building
repairing fund and issuance of the no objection certificate a
sum of Rs.2,00,000/- was paid by the complainant to the
accused Nos.1 and 2. So far as the allegation against the
accused No.3 is concerned, it is alleged that she raised a
quarrel with the family members of the complainant over
the issue of refund of the amount of Rs.2,00,000/-. There
are receipts on record to indicate that a sum of
Rs.1,85,000/- was paid by the accused to the complainant.
However, the signatures on the said receipts are disputed
by the complainant. At this stage it is not possible for me to
rely upon such receipts and express an opinion.
7. It is however necessary to notice some uncontroverted
materials, a mention of which obviously does not find place
in the complaint. It is pertinent to note that the complainant
PMB 30.apl.451-23.doc
through his advocate had issued a notice dated 18.12.2013
to the accused No.1. In the said notice it was mentioned
that the accused No.1 was working as the Chairman of the
said society which is not registered and the legal formalities
of the society are not completed till today. It is further
mentioned in the said notice that the accused No.1 being
the Chairman of the society demanded a sum of
Rs.2,00,000/- from the respondent No.2 for granting
permission to stay and reside in the room which he
purchased and for proving water tap, electricity and
drainage line. It is mentioned in the notice that a sum of
Rs.2,00,000/- as per the demand of the accused No.1 was
handed over by the complainant on 25.08.2013 to the
accused No.1. If the contents of such a notice dated
18.12.2013 is perused, it is seen that the entire grievance is
against the accused No.1. In the said notice a demand is
made that the accused No.1 should keep his promise or
return back the sum of Rs.2,00,00/- to the complainant
within 7 days from the date of receipt of this notice. Thus
there is no reference in the notice to any demand or
PMB 30.apl.451-23.doc
acceptance for and on behalf of the present applicants.
8. Interestingly, in the complaint filed before the trial
Court on 08.01.2014, it is alleged that it is the accused
Nos.1 and 2 who demanded a sum of Rs.2,00,000/- and
accordingly the said amount was paid to the accused Nos.1
and 2. Accused No.3 who is the wife of the accused No.2 is
implicated on the allegation that she was raising a quarrel
and threatening the family members of the complainant.
The allegations against the applicants therefore appear to
be an afterthought and there is every possibility of a false
implication.
9. Taking an overall view of the matter, in my opinion,
issuance of the process against the present applicants-
original accused Nos.2 and 3 is an abuse of the process of
the Court which cannot be permitted. It is further seen from
the complaint that the complainant essentially wanted
refund of his money. I find substance in the contention of
learned counsel for the applicants that the criminal
proceedings are resorted to against the applicants for
redressing a grievance of a civil in nature. The application
PMB 30.apl.451-23.doc
therefore deserves to be allowed and is accordingly allowed
in terms of prayer clause (a). It is for the trial Court now to
pass consequential orders as regard the applicants.
10. Criminal Application is disposed of.
(M. S. KARNIK, J.)
