Bombay High Court
Shambhu Dhondiram Pawar vs State Of Maharashtra And Anr on 14 October, 2024
Author: Neela Gokhale
Bench: A. S. Gadkari, Neela Gokhale
2024:BHC-AS:40661-DB
Gitalaxmi 1-wp-2618-2023-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 2618 OF 2023
Mr. Shambhu Dhondiram Pawar,
Age : 47 years, Occu. : Business,
R/at - Maharshi Dhondi Keshav Marg,
Behind Desai Hospital,
Dhawade Vasti, Taluka-Bhosari,
District-Pimpri-Chinchwad,
Pune - 411 037. .....Petitioner
(Orig. Accused)
Vs.
1. The State of Maharashtra,
Through Chakan Police Station,
Pune.
2. Mr. Rajesh Shankarlal Kakani, (Orig. Complainant)
Age : 51 years, Occu. : Business,
Residing at Flat No. 302,
Anant Apartment, near Rajiv Gandhi Udyan,
Plot No. 88/2, Sector-29,
Vashi Navi-Mumbai - 400 703. .....Respondents
Mr. Chaitanya Pendse a/w Mr. Sagar Bhaygude i/b Mr. Prashant Darandale
for the Petitioner.
Mr. Ashish I. Satpute, A.P.P. for Respondent No. 1-State.
Mr. Rajiv Patil, Senior Counsel a/w Mr. Vishal Laxman Kolekar, Mr. Ojas
Kocharekar i/b Mr. Randhir Ankush Kale for Respondent No. 2.
CORAM : A. S. GADKARI AND
DR. NEELA GOKHALE, JJ.
RESERVED ON : 27th SEPTEMBER 2024.
PRONOUNCED ON : 14th OCTOBER 2024.
JUDGMENT (Per Dr. Neela Gokhale, J.) :
-
1) Rule. Rule made returnable forthwith. By consent of parties,
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the matter is taken up for final hearing.
2) The Petitioner seeks quashing of C.R. No. 542 of 2023 dated
16th June 2023 registered with Chakan Police Station, Pimpri-Chinchwad
for the offences punishable under Sections 409 & 420 of the Indian Penal
Code.
3) The facts of case in brief are as under :
3.1) The Respondent No. 2 claims to be the Chairman of a company
under the name and style of Futura Global Ventures Private Limited having
its office at Nariman Point, Mumbai. The company is engaged in purchase,
sale and development of land.
3.2) Another company of the Respondent No. 2 namely Amal
Securities Limited is engaged in the business of facilitating financial
assistance to various Government Institutions by way of raising funds and
allied services. The Respondent No. 2 got acquainted with the Petitioner in
the course of this business. It is alleged in the FIR that, in the year 2004,
the Petitioner induced the Respondent No. 2 to advance and facilitate
financial assistance to a project of development of land in Taluka-Khed,
District-Pune.
3.3) The Petitioner also took the Respondent No. 2 on a site visit
and induced the Respondent No. 2 to purchase huge acres of land by
representing that, the farmers had acquired the said land under the Land
Ceiling Act and farmers were ready to sell the said land by obtaining
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permission from the Collector. The Petitioner assured the Respondent No. 2
that, they would require an approximate amount of Rs. 2 crores to purchase
the said land and they would make huge profits by developing and selling
the same. Enticed by this lucrative offer, the Petitioner and the Respondent
No. 2 executed a Partnership Deed on Rs. 500/- stamp-paper and named
the firm as 'Fort City Developers'. The Partnership Deed was also registered
and received the Certificate dated 3 rd May 2005 from the Registrar of
Partnership Firms. The profit sharing ratio of the Respondent No. 2 and the
Petitioner was to be 56% and 44% respectively. It was decided that, the
Petitioner will invest 44% capital and the Respondent No. 2 will invest 56%
as capital. Certain other terms and conditions were agreed upon between
them. They opened a bank account in the name of firm in the HDFC Bank
and the account was operated by both the partners.
3.4) The Respondent No. 2 also executed a Power of Attorney in the
name of Petitioner to do acts, deeds and things on behalf of the Petitioner.
It is alleged by the Respondent No. 2 that, he has given an amount of Rs.
1,06,70,000/- to the Petitioner till date by way of bank transactions for the
purpose of undertaking the work of their partnership firm. The Respondent
No. 2 thereafter learnt that, the Petitioner has procured agreements of sale,
power of attorneys and other such 18 documents from various farmers in
his own name and his name is mutated on the 7/12 extract of the said land.
3.5) It is further alleged that, the Petitioner has also sold land which
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stood in the name of Fort City Developers Partnership Firm and siphoned
away the money in his personal name instead of accepting the same in the
name of firm. The Respondent No. 2 has repeatedly demanded his share in
the money, but the Petitioner has refused to handover the same to the
Respondent No. 2. In this manner, the Petitioner has cheated the
Respondent No. 2 out of his legitimate entitlement. He has also misused
the Power of Attorney and other documents to accept sale consideration in
lieu of sale of land belonging to the partnership firm in his own name and
siphoned off the said funds. It is thus alleged that, the Petitioner has
committed the offence of cheating and criminal breach of trust.
4) Mr. Chaitanya Pendse, learned counsel appears for the
Petitioner and Mr. Rajiv Patil, learned senior counsel appears for the
Respondent No. 2. Mr. Ashish Satpute, learned A.P.P. represents the State.
5) Mr. Pendse submits that, there is considerable delay in
registering the FIR and the said delay itself speaks volumes of his
innocence. According to him, the offence was alleged to have been
committed from 2005-2007, but the Respondent No. 2 has not raised any
grievance either by sending any notice or by initiating legal proceedings
against him. He submits that, the dispute is purely of a civil nature. The
motive of Respondent No. 2 in executing the Power of Attorney &
Memorandum of Understanding (MOU) and authorizing the Respondent
No. 2 to purchase agricultural lands was only to evade public revenue and
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circumvent the provisions of the Maharashtra Tenancy and Agricultural
Land Act, 1948. In fact it is the Respondent No. 2 who has committed an
offence under Section 3 of the Benami Transactions (Prohibition) Act, 1988.
5.1) Mr. Pendse further points out that, multifarious transactions are
executed by and between the parties and an amount of Rs. 1,77,99,000/-
was paid to the Petitioner pursuant to the Partnership Deed. The
Partnership Deed required the parties to carry out all financial transactions
through the HDFC Bank account of the firm, but the Respondent No. 2
transferred money from different company accounts to the account of
Petitioner. These transactions are deliberately not mentioned in the FIR.
Mr. Pendse also submits that, the Respondent No. 2 did not cancel or revoke
the Power of Attorney executed in favour of the Petitioner and has not
taken any legal action against him. Thus he says that, there is no dishonest
intention in selling the properties. He thus urges us to quash the FIR.
6) Mr. Patil, learned senior counsel at the very outset submits that,
the entire argument of the Petitioner is nothing but his probable defence in
the ensuing trial. It is settled law that, the High Court is not to conduct a
mini trial at the time of hearing a quashing Petition. On this ground alone,
Mr. Patil submits that, the Petition deserves to be dismissed.
6.1) Mr. Patil submits that, the Petitioner made a very enticing
proposal to the Respondent No. 2 by telling that, they could acquire 100
acres of land in Taluka-Kuruli, District-Khed, Rajguru Nagar, Pune. The
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Petitioner in fact proposed to enter into a Partnership Firm by registering a
Partnership Deed. A bank account was opened. The Petitioner himself
insisted that he should be the face of the transaction as he was a local
citizen in that area. He induced the Respondent No. 2 to execute a Power
of Attorney in his name to purchase property. However there was no
authority to sell any land. MOU was also executed which provided for
purchase of land in the name of the firm but in view of certain statutory
regulations, they agreed to purchase the land in the name of Petitioner. It
was clearly understood that, the land belonged to the firm. Mr. Patil
submits that, it was only in the year 2022 that the Respondent No. 2 learnt
that the Petitioner was selling the lands and siphoning off the money. It is
in these circumstances that the impugned FIR was registered.
7) A plain but careful reading of the FIR indicates allegations in
respect of inducing the Respondent No. 2 to part with valuable
consideration and thereafter breaching the trust of Respondent No. 2. The
Petitioner has raised various grounds to suggest that, no offence, least of all
the cognizable offence of cheating is made out in the FIR. In fact it is his
submission that purchasing land in the name of Petitioner when it is
actually owned by the firm, is itself an offence under the Benami
Transactions (Prohibition) Act, 1988. Furthermore, the land was purchased
in the name of Petitioner only with a view to evade statutory regulations.
This argument made by the Petitioner is stated only to be rejected. Firstly,
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it is not the Petitioner's case that, any offence is registered against the
Respondent No. 2 and it appears to us that such self-incriminating
argument is being advanced with the sole purpose of attempting to
prejudice the Court against the Respondent No. 2. This Court is not swayed
by the aforesaid argument. In our view, this is nothing but a classic
example of a white-collar crime committed by the Petitioner by inducing the
Respondent No. 2 for investing in a business, fully intending to siphon off
the money.
8) Upon perusal of the documents on record including the MOU
and the Power of Attorney read in consonance with the allegations in the
FIR, clearly demonstrate that it is incumbent to test the veracity of the
allegations or otherwise to establish the correct position. The allegations in
the FIR as against the explanation and arguments advanced by the
Petitioner, require detail scrutiny which may be determined only after
adducing evidence. This Court in its extra-ordinary jurisdiction is not to
transgress beyond examining the FIR to prima facie establish commission of
any cognizable offence.
8.1) The Supreme Court in the case of The State of Andhra Pradeh
Vs. Vangaveeti Nagaiah1 observed as under :
"6..... When exercising jurisdiction under Section 482 of the
Code, the High Court would not ordinarily embark upon an
enquiry whether the evidence in question is reliable or not or
1. (2009) 12 SCC 466.
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whether on a reasonable appreciation of it accusation would not
be sustained. That is the function of the trial Judge. Judicial
process no doubt should not be an instrument of oppression, or,
needless harassment Court should be circumspect and judicious in
exercising discretion and should take all relevant facts and
circumstances into consideration before issuing process, lest it
would be an instrument in the hands of a private complainant to
unleash vendetta to harass any person needlessly. At the same
time the Section is not an instrument handed over to an accused
to short-circuit a prosecution and bring about its sudden death.
The scope of exercise of power under Section 482 of the Code
and the categories of cases where the High Court may exercise its
power under it relating to cognizable offences to prevent abuse of
process of any court or otherwise to secure the ends of justice
were set out in some detail by this Court in The State of Haryana
Vs. Bhajan Lal [1992 Supp (1) SCC 335]."
9) In view of the above discussion, we are not inclined to quash
the impugned FIR. The Petition is dismissed.
9.1) Rule is accordingly discharged.
(DR. NEELA GOKHALE, J.) (A. S. GADKARI, J.)
GITALAXMI KRISHNA
KRISHNA KOTAWADEKAR
KOTAWADEKAR Date:
2024.10.14
17:44:18 +0530
