Bombay High Court
Ashok Motilal Katariya And Others vs The State Of Maharashtra And Another on 15 January, 2024
Author: R.G. Avachat
Bench: R.G. Avachat
2024:BHC-AUG:1736-DB
Cri.Appln. No.2965/2021
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.2965 OF 2021
1. Ashok Motilal Katariya
Age 72 years, Occu. Business
2. Snehal d/o Satish Parakh Alias
Sau. Snehal w/o Manjit Khatri
Age 30 years, Occu. Housewife
3. Satish Dhondulal Parakh,
Age 64 years, Occu. Business
4. Ashish s/o Ashok Katariya,
Age 42 years, Occu. Business
5. Rajendra s/o Chindulal Burad,
Age 52 years, Occu. Business
All R/o Ashoka House,
Ashoka Marg, Wadala, Nashik ... APPLICANTS
VERSUS
1. The State of Maharashtra
through Shanipeth Police Station,
Jalgaon, Tq. & Dist. Jalgaon
2. Ishwarlal s/o Shankarlal Lalwani (Jain),
Age 75 years, Occu. Business,
R/o 169, Balaji Peth, Jalgaon,
Tq. & Dist. Jalgaon
(Copy for respondent No.1 to be
served on Public Prosecutor,
HighCourt, Bench at Aurangabad) ... RESPONDENTS
.......
Mr. N.V. Gaware, Advocate holding for
Mr. S.R. Sapkal, Advocate for applicants
Ms. K.R. Jamdhade, A.P.P. for respondent No.1.
Mr. A.A. Yadkikar, Advocate for respondent No.2.
.......
Cri.Appln. No.2965/2021
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CORAM : R.G. AVACHAT AND
SANJAY A. DESHMUKH, JJ.
Date of reserving judgment : 22nd December, 2023
Date of pronouncing judgment : 15th January, 2024
JUDGMENT (PER R.G. AVACHAT, J.) :
This is an application, under Section 482 of the Code of
Criminal Procedure, for quashment of First Information Report
(F.I.R.) bearing Crime No.0219/2021, registered at Shanipeth Police
Station, Jalgaon, Taluka and District Jalgaon for the offence
punishable under Section 420 read with Section 34 of 120-B of the
Indian Penal Code and the consequential charge sheet pending on
the file of learned Judicial Magistrate, First Class, Jalgaon.
FACTS :-
2. The F.I.R. has been lodged by the respondent No.2 on
27/10/2021. it is his case that he was a jeweler by profession. He
has family relations with applicant No.1 Ashok Motilal Katariya.
There have been monetary transactions between the two as well.
Applicant No.1 is owner of "Ashoka Engineering Company" and
"Ashoka Builders & Developers". He had come to the house of the
informant and requested for a hand loan in 2011. The informant
paid him Rs.11 Crores and Rs.19,24,60,125/- in cash and through
Bank as well during 2010 to 2015. Applicant No.1 repaid some of
the amount. A sum of Rs.6,99,36,741/- and Rs.17,63,80,210/- was
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still outstanding from Ashoka Engineering Company and Ashoka
Builders & Developers respectively. The informant time and again
requested the applicant No.1 to pay back the amount. He bought
time for one or the other reason.
3. It is also the case of the informant that the applicants
No.1, 2 and 5 came to his office at Jalgaon on 2/10/2015. They
sought for time to pay back the amount due. Two Joint Venture
Agreements (JVAs) ready in all respects were brought by them.
They assured the informant that these documents are prepared
only with a view to get time from him for repayment of the amount.
Relying on their representations, the informant signed those
agreements without reading the same. The informant thereafter
again and again requested the applicant No.1 to pay back his
money. He again avoided to pay back under one or the other
pretext.
4. It is also the case of the informant that he owed Rs.25
Crores to "Manraj Motors Pvt. Ltd." He, therefore, requested Ashok
to return the amount due. Taking advantage of the said
circumstance, he introduced Shri Ashok Bedmutha (Director of
Manraj Motors) as a third party. He again brought prepared deeds
of assignments dated 3/3/2017. So called rights of the informant
under both the JVAs were shown to have been signed in favour of
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Manraj Motors. The informant signed these documents relying on
the representation made by Ashok that he would pay back the
amount due within six months either to him or to Manraj Motors.
5. It was thereafter realised that the lands in respect of
which the JVAs and deeds of assignment were executed were non-
transferable without the permission of the Collector and/ or were not
exclusively owned by the applicant Ashok. In respect of land Gut
No.1105, a Civil Suit (No.668/2012) was pending in a Court at
Nasik. Lands situated within the limits of District Thane were at
remote places. The land Survey No.694, situated at Sinner had
already been acquired by the Government for construction of a
road. While applicant Ashok had a small interest in the land Gut
No.58/2. In respect of the said land also there was a Suit
(No.649/2012), subjudice in the Court at Nasik. As such, the
applicants herein are alleged to have prepared false and fabricated
documents. They made a false representation to the informant only
with a view not to pay back the amounts due. Thus, the informant
and the proprietor of Manraj Motors have been duped/ cheated.
6. On investigation, charge sheet has been filed.
Reference to contents of JVAs and deeds of assignment would be
made while appreciating the issue involved.
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7. Heard. Learned counsel for the applicants would
submit that, the terms and conditions contained in the JVAs and the
deeds of assignment would go a long way to infer it to be a civil
matter. The amount due to the informant were converted into
security deposit. The lands covered by the JVAs were agreed to be
developed by the informant within a period of 3 years. Time was
essence of the contract. There is arbitration clause as well. When
the informant could not perform his part of the JVAs, it is only on his
request his rights were assigned in favour of Manraj Motors (JV).
The applicants paid Manraj a sum of Rs.1,49,30,000/- for
development of the land. A notice was issued to it to comply with
the terms of the deed of assignment. After having waited for some
days, when compliance was not forthcoming, Manraj Motors was
informed about the security deposit to have been forfeited. Our
attention has also been adverted to two commercial suits filed by
Manraj Motors for cancellation of JVAs and compensation. We
were taken through the pleadings in both the suits. According to
learned counsel, Manraj Motors had lodged a report with the
Superintendent of Police in relation to the very transaction. An
enquiry into the same was made. The police officers concluded it to
be a civil dispute. Manraj Motors, therefore, approached the Court
of learned Judicial Magistrate, First Class with an application under
Section 156(3) of the Code of Criminal Procedure. Learned
Magistrate refused to direct registration of F.I.R. The informant is a
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big-wig. He is a politician as well. Based on the very facts and
circumstances, police registered the F.I.R. in question. For getting
the F.I.R. registered, the informant exercised his political and
financial clout. According to learned counsel, based on same facts
and circumstances, no second F.I.R. could be registered.
8. The learned counsel for applicants would further submit
that, although the charge sheet has been filed, none of the
investigation papers make out ingredients of the offences alleged to
have been committed. The learned Additional Sessions Judge
granted the applicant anticipatory bail, observing the nature of
transaction to be commercial one. The learned counsel relied on
the following set of authorities to ultimately urge for allowing the
application :
(1) State of Haryana & ors. Vs. Bhajan Lal & ors.
1992 Supp (1) SCC 335
(2) Inder Mohan Goswami & anr. Vs. State of Uttaranchal & ors.
(2007) 12 SCC 1
(3) Chandran Ratnaswami Vs. K.C. Palanisamy & ors. etc. etc.
(2013) 6 SCC 740
(4) M. Suresh & ors. Vs. State of Andhra Pradesh & anr.
(2018) 15 SCC 273
(5) Anand Kumar Mohatta & anr. Vs. State (NCT of Delhi),
Department of Home & anr. [ (2019) 11 SCC 706 ]
(6) Haji Iqbal alias Bala through S.P.O.A. Vs. State of U.P.
& ors. [ 2023 SCC OnLine SC 946 ]
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(7) Sarabjit Kaur Vs. State of Punjab & anr.
(2023) 5 SCC 360
(8) Mohammad Wajid & anr. Vs. State of U.P. & ors.
2023 LiveLaw (SC) 624
(9) T.T. Antony Vs. State of Kerala & ors. [ (2001) 6 SCC 181 ]
(10) Upkar Singh Vs. Ved Prakash & ors. [ (2004) 13 SCC 292 ]
9. Learned counsel for respondent No.2 and the learned
A.P.P. would, on the other hand, submit that, reading of the F.I.R.
would prima facie disclose commission of the alleged offence.
Powers of quashing of F.I.R. and consequential charge sheet are to
be exercised very sparingly. It is not that based on one and the
same transaction two proceedings, one for criminal action and the
other civil, do not give cause of action. The learned counsel took
us through the investigation papers and the conclusion drawn by
the investigating officer for filing of the charge sheet. Only with a
view to avoid repetition, we do not propose to advert thereto.
Learned counsel have also relied on the following authorities in
support of their contention to ultimately urge for rejection of the
application.
(1) Arun Bhandari Vs. State of U.P. & ors.
2013(1) Mh.L.J. (Crl) 475
(2) Rajesh Bajaj Vs. State NCT of Delhi & ors.
MANU/SC/0155/1999 (SC)
(3) Medchl Chemicals & Pharma P. Ltd. Vs. Biological E. Ltd. &
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ors. [ AIR 2000 SC 1869 ]
(4) Subramanian SwamyVs. Manmohan Singh & ors.
AIR 2012 SC 1185
10. Considered the submissions advanced. Perused the
F.I.R. and the related papers. Admittedly, there were family and
financial relations between the applicant No.1 and the informant. It
is also not in dispute that applicant No.1 had availed hefty hand
loan/s from the informant, a jeweler by profession. It is also an
undisputed fact that, on the day on which the JVAs were executed,
the applicant No.1 Ashok Katariya owed sums of Rs.6,99,36,741/-
and Rs.17,63,80,120/- to the informant. It has been specifically
averred in the F.I.R. that the informant time and again requested the
applicant No.1 to pay back the amount. He, however, bought time
under one or the other pretext. There are on record two JVAs
executed between applicants No.1, 2 and 5 on one hand and the
informant on the other. These are in the nature of development
agreements in respect of the agricultural lands described in the
schedule appended thereto. Both the JVAs were executed on
stamp papers of Rs.100/- only. Those JVAs ought to have been
executed on requisite stamp papers and must have been registered
as well. It is the specific case of the informant that relying on the
representation made by applicants No.1, 2 and 5 he signed those
JVAs. According to him, those were never to be acted upon. Some
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of the terms contained therein would indicate that the development
in the nature of flats to be constructed thereon was to be completed
within a period of three years. Everything required for such
development was to be done by the informant alone. Admittedly, no
document in the nature of power of attorney or any other document
was executed by any of the applicants in favour of the informant
authorising him on their behalf to do the needful towards the
development of the lands. True, the ratio of distribution of profit
was fixed. The development was to be completed within a period of
36 months. Time was said to be essence of contract. Failure to
develop the lands within the time-frame would entail forfeiture of
security deposit. The amounts which the applicant No.1 owed to
the informant were converted into security deposit/s. As per the
JVA pertaining to sum of Rs.6,99,36,741/- is concerned, the
informant was shown to have agreed to pay the applicants No.1, 2
and 5 a sum of Rs.10 Crores. While under the another JVA, he
agreed to pay Rs.20 Crores. The same indicates the informant was
to pay little over Rs.6 Crores more to these applicants. There is
nothing to indicate the applicants to have ever called upon the
informant to make up the deficit towards the entire payment of
security deposit. The same suggests, the transaction between the
parties were other way round. The JVAs appear to have been
executed with an intention never to be acted upon.
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11. It is also the case of the informant that the applicant
Ashok failed to pay back the amount due towards hand loan. The
informant owed a sum of Rs.25 Crores to Manraj Motors. Manraj
Motors were pressing hard to get back the money. The applicant
Ashok realised the same. It was he who introduced the proprietor
of Manraj Motors into a tri-party agreement dated 3/3/2017 (deeds
of assignment). Under these agreements, all the so called rights of
the informant came to be assigned in favour of Manraj Motors.
These two documents were also never intended to be acted upon.
The applicant No.1/ so called developer and infrastructures had
agreed to pay back the loan amount either to informant or Manraj
Motors. The same never happened. Close reading of the JVAs
and the deeds of assignment would indicate that none of the
applicants ever agreed to pay any amount towards development of
the land. It is not known as to why still they paid a sum of
Rs.1,49,30,000/- to Manraj Motors. The same suggests it to be a
repayment towards the amount due as a hand loan or might be an
interest thereon. When the period of 36 months was over, one Mr.
Mahendra Katariya, representing Ashoka Builders & Developers
issued notice to Manraj Motors, calling upon them to perform their
part of the JVAs. The notice was replied by the Director of Manraj
Motors, disclosing the true nature of transactions. Thereafter,
Ashoka Builders issued a notice to Manraj Motors, informing it the
amount of security i.e. little over Rs.20 Crores stood forfeited. The
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same suggests dishonest intention of parties (applicants) to the
JVAs and the deeds of assignments.
12. True, two commercial suits have been filed by Manraj
Motors against applicants and others for cancellation of JVAs and
the deeds of assignments and for compensation. The pleadings in
the suits are consistent with the case averred in the F.I.R. It is the
case of the plaintiff Manraj Motors that the applicant Ashok and
others got all those documents fraudulently executed.
13. During investigation, following facts came to light. The
lands covered by the JVAs were situated at 2 - 3 places. The lands
within the limits of Taluka Shahapur were at remote place. The
lands were not transferable without the permission of the Collector
or higher revenue authorities. The transaction between the so
called original owner and Ashok were hit by certain provisions of
law (Tenancy Law).
So far as regards land Gut No.58/2, situated at Satpur
is concerned, there was a Civil Suit pending in the Court at Nasik
(R.C.S. No.649/2012).
Land Gut No.1105, situated at village Adgaon was not
standing in the name of applicant No.5 while JVAs were executed.
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The said land was also subject matter of another Civil Suit (being
R.C.S. No.608/2013).
The land bearing Gut Nos.246, 248, 226 and 345,
situated at village Sharanpur were not transferable without the
permission. The applicant No.5 did not have transferable title to
these lands.
The lands bearing Gut Nos.246 and 248 were in the
green zone.
The land Gut No.226 was partly a forest land and,
therefore, could not be subject of development.
To top it, the land situated at Sinnar had already been
acquired by the Central Government for development of road.
As such, all the lands in relation to which the JVAs for
their development were executed, were either subject of litigation,
and parties did not have clear title thereto. One of the said lands
had already been acquired by the Government for development of
road. Others were not transferable without the permission of the
revenue authorities. Some of the lands were purchased by
applicant Ashok in breach of statutory provisions etc. There is also
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on record a public notice issued in the Daily Prabhat dated
5/6/2020, suggesting applicant Ashok to have allegedly duped other
land-holders, residents of Pune.
14. Each case has to be decided on peculiar facts and
circumstances appearing therein. The observations made in the
authorities relied on by the learned counsel for the applicants were
in the setting of the facts of those respective cases.
15. True, the informant is a big-wig. He is rich and Member
of Parliament as well. The facts and circumstances, however,
indicate that, the applicant Ashok and parties to all those
documents had dishonest intention in getting executed the JVAs.
The land which could not have been developed within a span of 36
months were made subject matter of JVAs. The informant appears
to have been kept in dark thereof. After a period of three years was
over, a notice was issued informing the security deposit amounting
of little over Rs.20 Crores to have stood forfeited. Section 415 of
the Indian Penal Code defines offence of cheating. Sections 415
and 420 of the Indian Penal Code read thus :
415. Cheating:- Whoever, by deceiving any person,
fraudulently or dishonestly induces the person so
deceived to deliver any property to any person, or
to consent that any person shall retain any
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property, or intentionally induces the person so
deceived to do or omit to do anything which he
would not do or omit if he were not so deceived,
and which act or omission causes or is likely to
cause damage or harm to that person in body,
mind, reputation or property, is said to "cheat".
Explanation:- A dishonest concealment of facts is a
deception within the meaning of this section.
420. Cheating and dishonestly inducting delivery
of property:- Whoever cheats and thereby
dishonestly induces the person deceived to deliver
any property to any person, or to make, alter or
destroy the whole or any part of a valuable
security, or anything which is signed or sealed, and
which is capable of being converted into a valuable
security, shall be punished with imprisonment of
either description for a term which may extend to
seven years, and shall also be liable to fine.
16. In our view, the ingredients of Section 415 of the Indian
Penal Code do get attracted in the facts and circumstances of the
case. These are the observations prima facie in nature.
17. True, Manraj Motors had approached the
Superintendent of Police with a similar grievance. The police
authorities found it to be a civil dispute. Manraj Motors, therefore,
approached the Court of learned Judicial Magistrate, First Class
and moved an application under Section 156(3) of the Code of
Criminal Procedure. The application was rejected so far as regards
the said prayer is concerned. Liberty was, however, granted to
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treat the said application as a complaint under Section 200 of the
Code of Criminal Procedure. The complainant was called upon to
give verification, if he so desired. The learned Magistrate observed
that respondent No.2 herein (informant) had not moved such
application. True, Manraj Motors did not take the matter further. In
the case in hand, the respondent No.2 is a victim. It is he who first
time approached the Police with a report. Based on his statement,
the F.I.R. came to be registered. It is not the case that a second
F.I.R. has been registered based on same set of facts and
circumstances. The one which was sought to be registered at the
instance of Manraj Motors was not entertained by another Police
Station. Much water has flown post registration of the F.I.R. The
investigating officer found substance and, therefore, filed the
charge sheet. On close scrutiny of the F.I.R. and the police papers,
we find the alleged offence to have been prima facie made out.
Reliance on the judgment in case of T.T. Antony (supra) and Upkar
Singh (supra) would, therefore, be of no assistance to the
applicants.
18. The F.I.R. and the consequential charge sheet has not
been challenged on any other ground so as to make out a case for
relief to some of the applicants. It is reiterated, the challenge is
only on the ground of it being a civil dispute and second F.I.R. to
have not been maintainable. These grounds we have dealt with,
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with the reasons stated hereinabove. For all these reasons, the
application is sans merit and, therefore, liable to be rejected. The
application is rejected.
(SANJAY A. DESHMUKH, J.) (R.G. AVACHAT, J.)
fmp/-
