Bombay High Court
Maya W/O Rajesh Shah And Another vs The State Of Maharashtra Through ... on 5 September, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:10226-DB
Judgment 902 apl 260.24
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION (APL) NO. 260/2024
1. Maya w/o Rajesh Shah,
aged about 48 yrs., Occ. Household,
2. Rajesh s/o Suresh Shah,
Aged about 54 yrs., Occ. Business,
Both R/o. Lakhani Square,
Malkapur, Tq. Malkapur,
Dist. Buldhana.
... APPLICANTS
VERSUS
1. State of Maharashtra,
through P.S.O. Malkapur City,
Malkapur, Dist. Buldhana.
2. Suresh Narayan Mandvekar,
Aged about 72 yrs., Occ. Business,
R/o. Deshpande Lane, Malkapur,
Tq. Malkapur, Dist. Buldhana.
...NON-APPLICANTS
---------------------------------
Mr. J.B. Ghandhi, Advocate for applicants.
Mr. A.M. Joshi, Addl. Public Prosecutor for non-applicant No.1/State.
Mr. V. Sambre, Advocate with Mr. R. Vyas, Advocate for non-
applicant No.2.
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Judgment 902 apl 260.24
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CORAM : VINAY JOSHI AND
MRS. VRUSHALI V. JOSHI, JJ.
DATE : 05.09.2024.
ORAL JUDGMENT (PER VINAY JOSHI, J.) :
Heard.
2. Admit.
3. By this application, the applicants are seeking to quash
charge-sheet bearing RCC No. 108/2023 arising out of Crime No.
01/2023 registered with Police Station Malkapur City, Malkapur,
Dist. Buldhana for the offence punishable under Section 420 read
with Section 34 of the Indian Penal Code.
4. The facts in brief are that on the basis of report dated
05.01.2023 lodged by non-applicant No.2/informant Suresh, crime
has been registered. It is prosecution case that co-accused Dhiraj was
owner of a residential flat situated at Malkapur, Dist. Buldhana. On
09.09.2021, co-accused Dhiraj entered into agreement to sell with the
Judgment 902 apl 260.24
informant about the subject flat in total consideration of
Rs. 15,00,000/-. Notorized agreement was executed and towards part
consideration, informant has paid Rs. 5,00,000/- to co-accused Dhiraj
by way of banker cheque. It was agreed that co-accused Dhiraj would
execute sale-deed on or before 16.08.2022. However, co-accused
Dhiraj has avoided to execute sale-deed as per agreement. The time
was extended by executing a writing between the parties.
5. It is informant's case that he has issued a public notice on
21.02.2022 about the transaction entered into between them. The
informant learnt that co-accused (owner) Dhiraj was about to sell
subject flat to the applicants, therefore he met them and apprised
about the agreement to sell dated 09.09.2021. The informant stated
that though the applicants were asked for not enter into transaction
with co-accused Dhiraj, still they had purchased said flat on 30.8.2022
by registered instrument and thus, offence of cheating.
6. The learned counsel appearing for applicants would submit
that the contention made by the informant in the First Information
Judgment 902 apl 260.24
Report ("FIR") that the applicants were made aware about earlier
agreement is totally false. In this regard, the applicants took us
through certain correspondence between the parties to indicate that
there was no such communication. It is submitted that the applicants
are subsequent purchasers who were not in picture when the initial
agreement to sell dated 09.09.2021 was executed. It is submitted that
the applicants are subsequent purchasers who have paid entire
consideration by raising loan from the Bank and thus, no criminality
would attract. According to the applicants, they have also been
deceived by co-accused Dhiraj, but in any way they cannot be dragged
into criminality alleged against main accused Dhiraj.
7. On the other hand, the learned APP as well as the learned
counsel appearing for non-applicant No.2 would submit that the
applicants were made aware of the earlier transaction, still in
connivance with the main accused, they have deceitfully entered into
transaction with intent to cause wrongful losses to the informant. It is
argued that though the applicants were not concerned with the initial
agreement, however the applicants act of knowingly entering into sale
Judgment 902 apl 260.24
transaction attracts criminal intention in terms of Section 35 of the
Indian Penal Code.
8. At the inception, it is necessary to note few admitted events
occurred in the proceeding. On 09.09.2021, initial agreement to sell
was executed in between the informant and Flat owner co-accused
Dhiraj, wherein the time for performance was fixed till 16.08.2022.
The informant has issued a notice for specific performance on
11.03.2022 calling upon Dhiraj to execute the sale-deed within 15
days. The said notice was replied by Dhiraj on 24.03.2022 expressing
that he would execute sale-deed till scheduled date i.e. 16.08.2022. It
was followed by another notice issued by informant dated 01.07.2022
once again reiterating for specific performance. The said notice was
replied by Dhiraj on 07.07.2022 confirming that he would execute
sale-deed till 16.08.2022. Thereafter, by communication dated
13.08.2022, Dhiraj sought time to execute sale till 22.08.2022. On
that date itself, a writing was made in between the parties, whereby
time was extended till 29.08.2022. Again by another document dated
08.09.2022, time for performance was extended till 16.09.2022. All
Judgment 902 apl 260.24
these writings are part of the charge-sheet.
9. In aforesaid background, the allegation made by informant
is to be tested. The issue involved is whether the applicants were
aware about earlier transaction, if yes, whether criminal liability could
be fastened against them. Secondly even if it is assumed that despite
knowledge of prior agreement, they entered into sale transaction on
30.08.2022, whether it would establish the essential ingredient to
constitute the offence punishable under Section 420 of the Indian
Penal Code.
10. The first informant has not mentioned specific date as to
when he has apprised applicants about prior agreement. Admittedly,
sale-deed executed in between Dhiraj and applicants, does not precede
agreement to sell. There is no material to show as to on which basis the
informant learnt that such transaction would occur in future. It
requires to be noted that time to time, time for specific performance
was extended, however none of the document bears a reference about
the intended transaction with the applicants. Had it been the fact that,
Judgment 902 apl 260.24
the informant was aware about future sale to be occurred with
applicants, he would have referred the same in either of his notices or
asked for giving undertaking to that effect. It appears that informant
was quite vigilant that even prior to the scheduled date of specific
performance, he has issued a legal notices. Moreover, time was
extended under written undertakings. In the said eventuality, he must
have specifically asked Dhiraj for not to indulge into transaction in
particular with the applicants. Thus, even on prima facie, bears it is
difficult to hold that informant was aware about the so-called
unwitting understanding between Dhiraj and applicants about future
sale transaction. In turn, it is difficult to hold that the informant has
apprised the applicants about the earlier agreement to sell.
11. Looking the matter from another angel, the informant's
case is based on mere agreement to sell which does not create interest
in the property. The real grievance of informant is against co-accused
Dhirja who despite entering into transaction with the informant, had
executed sale-deed in favour of the applicants who are third party.
Thus, the allegation of deceitful executing sale-deed in favour of
Judgment 902 apl 260.24
applicants would be against the owner Dhiraj. When the original
agreement was executed, the applicants were not in picture and thus,
by any stretch of imagination, they cannot be dragged in the litigation.
Moreover, execution of sale-deed from rightful owner, even assuming
in-defiance of earlier agreement it cannot simply attract the offence of
cheating unless the knowledge and deceitful intent has been
demonstrated.
12. In order to constitute the offence of cheating, there must
be fraudulent inducement or deception by dishonest means.
Admittedly, the applicants nowhere induced the informant in any
manner to enter into transaction. No deceitful intention could be
gathered against the applicants who are subsequent purchasers. In the
circumstances, no offence can be said to have been committed by the
applicants. In appropriate, civil action, they may be necessary party,
however criminal action may not lie against the applicants. In the
circumstances, continuation of prosecution against them would be
abuse of the process of the Court.
Judgment 902 apl 260.24
13. In view of above, application is allowed, We hereby quash
and set aside charge-sheet bearing RCC No. 108/2023 arising out of
Crime No. 01/2023 registered with Police Station Malkapur City,
Malkapur, Dist. Buldhana for the offence punishable under Section
420 read with Section 34 of the Indian Penal Code to the extent of
applicants only.
14. Application stands disposed of in above terms.
(MRS. VRUSHALI V. JOSHI, J.) (VINAY JOSHI, J.)
Gohane
Signed by: Mr. J. B. Gohane
Designation: PA To Honourable Judge
Date: 10/09/2024 19:13:33
