Bombay High Court
Bipin Onkarmal Parmar And Ors vs The State Of Maharashtra And And Anr on 18 October, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-AS:42414-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 3608 OF 2014
1. Mr. Bipin Onkarmal Parmar,
Age : 40 Years, Occu.: Business,
2. Mr. Onkarmal Hemchandji Parmar,
Age : 75 Years, Occu.: Business and
Agriculture,
Both R/at : Flat No.18, Mahavir Nagar,
E-Ward, District Kolhapur.
3. Mr. Uttam Bhabutmal Parmar,
Age : 75 Years, Occu.: Business,
R/at :365/4, Solokhe Mane Colony,
Samarat Nagar, District Kolhapur. .. Petitioners
Versus
1. The State of Maharashtra,
(Through Karveer Police Station,
Karveer, District - Kolhapur).
2. Mr. Maruti Krishna Powar,
Age : 75 Years, Occu.: Agriculture,
R/at : Vadgane, Taluka Karveer,
District Kolhapur. .. Respondents
...
Mr. Chaitanya S. Kulkarni, for the Petitioners.
Ms. S. S. Kaushik, A.P.P., for the State-Respondent.
...
CORAM : BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ.
DATED : 18th OCTOBER, 2024
Chaitanya
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JUDGMENT (PER MANJUSHA DESHPANDE, J.) :
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1. The Petitioners herein have filed this Writ Petition
invoking Article 226 and 227 of the Constitution of India, read
with Section 482 of the Code of Criminal Procedure ("Cr.P.C."),
with a prayer to quash and set aside the R.C.C. No. 964 of 2014
arising out of FIR No. 37 of 2014, registered with Karveer
Police Station, District Kolhapur, for the offence punishable
under Sections 23, 39 and 45 of the Maharashtra Money
Lending (Regulation) Act, 2014, ("the Money Lending Act")
read with Section 420, 34 of the Indian Penal Code ("IPC").
When the matter was placed before the Court on
28.11.2014, notice was issued to the Respondent Nos.1 and 2
and interim relief was granted, directing the trial Court not to
frame charge till further orders, since the statement was made
that charge-sheet is filed. On 21st October, 2016, Rule was
granted and interim-relief was continued. Inspite of notice, no
one had caused appearance for the Respondent No.2 though
served. On 18.12.2023, the matter was dismissed for want of
prosecution and it was restored vide order dated 22.02.2024.
Inspite of various chances being granted to the
Respondent No.2, nobody has caused appearance, considering
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the long duration of pendency of the present proceeding, we
are constrained to hear and decide the present Writ Petition.
2. The contention of the Petitioner is that, the original
complainant i.e. the Respondent No.2 herein, Mr. Maruti
Krishna Powar, was in need of money, therefore he has agreed
to sell his property bearing land Gat No. 407, ad-measuring
0.40R, sitauted at Vadange, Taluka Karveer, District
Kolhapaur, to the Petitioner No.3 for consideration of
Rs.4,05,000/-; alongwith property bearing City Survey No.
870, ad-measuring 658.9 Sq.Mtr., situated at Vadange, Taluka
Karveer, District Kolhapur, to the Petitioner No.2., for a
consideration of Rs.8,00,000/-. Accordingly, the sale deed was
executed between the Petitioner No.2 and the Respondent No.2
on 04.07.2005. The Petitioner No.2 has paid the consideration
in installments to the Respondent No.2 by issuing cheques on
various dates which is mentioned in the sale deed, on the basis
of which the registered sale deed dated 04.07.2005 is
executed. The Petitioner No.2 became lawful owner and
possessor of the said property bearing City Survey No.870,
situated at Vadange, Taluka Karveer, District Kolhapur.
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Similarly, the Petitioner No.3 has also purchased
the agricultural land bearing Gat No. 407 situated at Vadange,
Taluka Karveer, District Kohpaur, to the extent of 0.40R, from
the complainant vide registered sale deed dated 21.04.2006,
for a consideration of Rs.4,05,000/-, by issuing cheques dated
25.07.2005, 26.07.2005, 09.08.2005 and 21.04.2006, which
have been received by the Respondent No.2 herein.
3. It is the contention of the Petitioner that, the
Petitioner No.3 has in turn sold the property bearing No. 407,
ad-measuring 0.40R, which was purchased from the
Respondent No.2 to one Sachin Chandramohan Ghatge, vide
registered sale deed dated 13.12.2012. A public notice to that
effect was issued on 24.07.2012, in a daily newspaper thereby
inviting objections to the transfer of ownership in respect of
the said property.
4. It is the contention of the Petitioners that, though
they had purchased the properties legally as per the
established procedure of law, from the Respondent No.2 vide
respective registered sale deeds, all of a sudden on 01.07.2014,
the Respondent No.2 has registered FIR bearing No.37 of 2014,
alleging the commission of offence under Sections 23, 39 and
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45 of the Money Lending Act read with Section 420, 34 of IPC.
It is alleged by the Respondent No.2 that, he is the owner of the
two properties as mentioned above. He had availed a loan of
Rs.8,00,000/- at the rate of 3% per month from the Petitioner
No.2. On 24.04.2005, he was forced to execute sale deed by the
Petitioner No.1 since he could not repay the principal loan
amount as well as interest, he had prepared mortgage deed in
respect of agricultural property, ad-measuring 0.40R in Gat
No. 407, situated at Vadange, in the name of the Petitioner
No.3 and paid a consideration of Rs.4,05,000/- to the
complainant.
5. It is further alleged that, the son of the complainant
and nephew had paid Rs.3,50,000/- to the Petitioner No.1
through Ananda Shelar, but the Petitioner No.1 and 2 started
threatening him, to repay the loan of Rs.8,00,000/- with
interest or execute sale deed in favour of the Petitioners. It is
further alleged that, 10 to 15 days prior to filing of the FIR,
certain unknown persons on behalf of the Petitioners entered
their properties and threatened the complainant to execute
the sale deed in favour of the Petitioner and they have forced
him to give in writing that the Petitioners are the owners of
the said properties. It is only thereafter it came to their
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knowledge that property bearing Gat No. 407, ad-measuring
0.40R, situated at Vadange, is sold by the Petitioners to one
Sachin Ghatage. It is alleged that the said purchase of property
by the Petitioners from the Respondent No.2-complainant is an
illegal transaction.
6. It is the contention of the Petitioner that, in fact
they had purchased the property from the complainant by
executing registered sale deed. After filing of FIR, they have
approached the Sessions Judge, Kolhapur for Anticipatory
Bail. The Sessions Judge, Kolhapur has granted anticipatory
bail in their favour on 07.07.2014. It is the contention of the
Petitioner that, they have been unnecessarily harassed by the
complainant. The complainant has failed to make out a prima-
faice case against the Petitioner, in support of the allegations
that the Petitioners are engaged in money lending business
and they have been lending money without holding valid
licence. They have been falsely implicated in the present
offence. The present FIR is lodged as a result of enmity
between the Petitioners and the Respondent. The Respondents
are trying to get back at the Petitioners since Petitioner
No.1had filed FIR under Sections 323, 504, 506 read with
Section 34 of the IPC, against the brother of the complainant.
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7. It is the contention of the Petitioner that there is no
justification by the complainant for the delay caused in filing
the FIR. If there was substance in the allegations that the
complainant was forced to execute registered sale deeds dated
04.07.2005 and 21.04.2006, there is no justification as to what
prevented to the complainant, to file the FIR immediately after
the execution of sale deed. After a long gap of almost nine
years, the complainant has filed the present FIR.
8. We have heard Mr. Kulkarni, the learned counsel
representing the Petitioner and Ms. Kaushik, the learned
A.P.P. for the Respondent-State. We have also perused the
papers annexed with the Writ Petition.
The Petitioners have placed on record the
documents relevant for deciding the present proceedings and
upon going through the sale deeds dated 21.04.2006 and
04.07.2005, it is apparent that both the documents are
registered sale deeds executed for valuable consideration,
received by the executor/vendor of the said land. There is no
substance in the allegations that, the complainant has been
forced to execute the document in the favour of the Petitioner
herein. Since valid documents executed in the Office
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of Sub-Registrar have been placed on record, which indicate
that the complainant was very much present in the office of
Sub-Registrar, his endorsement is there on the document
alongwith his photograph. The sale deed has been executed for
a valuable consideration which is received by the executor of
the document. It does not support the allegations that the sale
deed was executed under duress.
9. As regards the offence under the Maharashtra
Money-Lending (Regulations) Act, 2014, is concerned, the
complainant has filed complaint under Sections 23, 39 and 45
of the said Act. The object of the said Act is to take appropriate,
stringent, social and legal measures to effectively prevent
harassment to the farmer/debtors, at the hands of Money
Lenders and for regulating the transactions of money lending
in the State. The said Act has been enacted to curb the cases of
harassment at the hands of money lenders. The said Act
regulates the money lending business and provides that,
unless there is a licence provided to carry on business in a
particular area, there is prohibition for conducting the
business of money lending.
10. Upon going through the provisions of Section 34,
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39 and 45 of the said Act, we do not find that, the provisions of
the said Act are attracted in the present case. The said
provisions of the Act are reproduced herein below :
"23. Promissory note, Bond, etc., to be factual
No money-lender shall take any promissory
note, acknowledgment, bond or other writing
which does not state the [actual amount of loan
and rate of interest], or which state such
amount wrongly or execute any instrument in
which blanks are left to be filled in after
execution, without mentioning the date and
amount of loan.
39. Penalty for doing money-lending without
valid licence
Whoever carries on the business of money-
lending without obtaining a valid licence, shall,
on conviction, be punished with imprisonment
of either description for a term which may
extend to five years or with fine which may
extend to fifty thousand rupees or with both.
45. Penalty for molestation
Whoever molests, or abets the molestation, of a
debtor for the recovery of a debt due by him to
money-lender shall, on conviction, be punished
with imprisonment of either description which
may extend to two years or with fine which may
extend to five thousand rupees, or with both.
[Provided that, a person who goes to such
house or place in order merely to obtain or
communicate information shall not be deemed
to have molested for the purposes of this
section.]
Explanation.-For the purposes of this section, a
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person who, with intent to cause another person
to abstain from doing any act which he has a
right to do or to do any act which he has a right
to abstain from doing,--
(a) obstructs or uses violence to or intimidates
such other person, or
(b) persistently follows such other person from
place to place or interferes with any property
owned, or used by him or deprives him of, or
hinders him in, the use thereof, or
(c) loiters near a house or other place where
such other person resides or works, or carries
on business, or happens to be, or does any act
calculated to annoy or intimidate such other
person, shall be deemed to molest such other
person."
11. Upon perusing the provisions of the said Act, we do
not find that, the present case involves unregulated money
lending. The documents placed on record with regard to the
said transaction does not indicate that, there was any kind of
money lending transaction involved in the instant case. Both
the sale deeds executed are of the year 2005-2006
respectively, which clearly indicate that, it is outright sale and
the registered sale deeds have been executed by the respective
parties, for the consideration which is received by the
complainant. It is not a cost of obtaining signatures on blank
papers. The sale deeds are registered and executed before the
Sub-Registrar, therefore it holds sanctity of law.
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Similarly, even upon going through the Section 420
of the IPC, which reads thus :
" 420. Cheating and dishonestly inducing
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."
We do not find any element of cheating or
inducement delivering the property by the Petitioner to the
complainant-Respondent No.2 herein. Since the documents
itself have been registered in the Office of Sub-Registrar
acknowledging the receipt of valuable consideration by the
complainant, there is no element of cheating involved in the
transaction of which the complaint is filed by the Respondent
No.2.
12. Since both the transactions are of outright sale,
there is no element of cheating or money lending involved in
the transaction between the Petitioners and the Respondent
No.2 herein. Since, we are satisfied that the complaint filed by
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the Respondent No.2 does not attract the provisions of Money
Lending Act or the Indian Penal Code, we do not find any object
is likely to be achieved by continuing the proceedings, since
the ingredients constituting the offence are not likely to be
proved eventually.
13. It would be apposite to refer to the part of judicial
pronouncement in case of A. M. Mohan V/s. State Represented
by SHO And Anr., reported in 2024 SCC OnLine SC 339 , as
follows :
"11..... in the case of Prof. R.K. Vijayasarathy and
Another v. Sudha Seetharam and Another has culled
out the ingredients to constitute the offence under
Sections 415 and 420 of IPC, as under:
"15. Section 415 of the Penal Code reads
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 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"."
16. The ingredients to constitute an
offence of cheating are as follows:
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16.1. There should be fraudulent or
dishonest inducement of a person by
deceiving him:
16.1.1. The person so induced should be
intentionally induced to deliver any
property to any person or to consent that
any person shall retain any property, or
16.1.2. The person so induced should be
intentionally induced to do or to omit to do
anything which he would not do or omit if
he were not so deceived; and 16.2. In cases
covered by 16.1.2. above, the act or
omission should be one which caused or is
likely to cause damage or harm to the
person induced in body, mind, reputation
or property.
17. A fraudulent or dishonest inducement
is an essential ingredient of the offence. A
person who dishonestly induces another
person to deliver any property is liable for
the offence of cheating.
18. Section 420 of the Penal Code reads
thus:
"420. Cheating and dishonestly inducing
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."
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19. The ingredients to constitute an
offence under Section 420 are as follows:
19.1. A person must commit the offence of
cheating under Section 415; and
19.2. The person cheated must be
dishonestly induced to
(a) deliver property to any person; or
(b) make, alter or destroy valuable
security or anything signed or sealed and
capable of being converted into valuable
security.
20. Cheating is an essential ingredient for
an act to constitute an offence under
Section 420."
Since there are no ingredients of the offence of
cheating in the present case, prima-facie we do not find any
substance in the allegations of the Respondent No.2 in respect
of the offence registered against the Petitioners. We are aware
that the inherent powers under Section 482 of the Cr.P.C., are
to be sparingly exercised, however in the present case it is
very much apparent that there is no case made out by the
complainant, in fact if the said proceedings are allowed to be
continued, it would amount only to abuse of process of law and
sheer waste of judicial time.
In view of the principles laid down by the Hon'ble
Apex Court in the case of State of Haryana And Ors. V/s.
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Bhajan Lal And Ors. Reported in 1992 Supp (1) Supreme
Court Cases 335, for exercise of powers under Section 482 of
the Cr.P.C., we find that the present case would be covered by
clause (2) of the principles laid down in the case of Bhajanlal,
wherein the allegations of the FIR alongwith material placed
do not disclose a cognizable offence justifying an investigation
by police officer under Section 156(1). It would also attract
clause (3) which stipulates that when the evidence collected
do not disclose the commission of any offence and make the
case against the accused. Both the clauses are attracted in the
present case.
14. Hence, in view of the guidelines as referred above,
according to us, it is a fit case for exercising our powers under
Section 482 of the Cr.P.C., by quashing the FIR in the instant
case.
Accordingly, R.C.C. No. 964 of 2014 arising out of
FIR No. 37 of 2014, registered with Karveer Police Station,
District Kolhapur, are quashed and set aside and Rule is made
absolute in terms of prayer clauses "(b) and (b-1)".
(MANJUSHA DESHPANDE, J.) (BHARATI DANGRE, J.)
Chaitanya
Digitally
signed by
CHAITANYA
CHAITANYA ASHOK
ASHOK JADHAV
JADHAV Date:
2024.10.24
14:25:28
+0530
