Bombay High Court
Jayant Maniklal Lunawat vs State Of Maharashtra And Anr on 19 September, 2024
Author: Neela Gokhale
Bench: A. S. Gadkari, Neela Gokhale
2024:BHC-AS:37171-DB
sns 3-wp-2882-2022-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2882 OF 2022
Mr. Jayant Maniklal Lunawat,
Age: 64 years, Occupation: Business,
R/at: 1206/B22, Shivajinagar,
Pune-411 004. .....Petitioner
Vs.
1. The State Of Maharashtra
(At the instance of Sr. Inspector,
Chaturshringi Police Station, Pune).
2. Mr. Pandurang Bajirao Balwadkar,
Age: 35 Years, Occ.: Business,
R/at: Survey No.15, Hissa No.5,
Balewadi Taluka: Haveli,
District: Pune, Chaturshringi, Pune City. .....Respondents
Mr. Niranjan Mundargi, with Mr. Kunal D. Ambulkar for the Petitioner.
Mr. Anand S. Shalgaonkar APP, for Respondent No.1-State.
Mr. Neel Pungliya, for the Respondent No.2.
CORAM :
A. S. GADKARI AND
DR NEELA GOKHALE, JJ.
RESERVED ON : 12th SEPTEMBER, 2024.
PRONOUNCED ON : 19th SEPTEMBER, 2024.
JUDGMENT :
- (Per Dr. Neela Gokhale, J.)
1) Petitioner seeks to quash the F.I.R. bearing C.R.No.188 of 2022
dated 9th May 2022 registered with Chaturshringi Police Station, Pune City for the
offences punishable under Sections 406 and 420 of the Indian Penal Code, 1860
('IPC').
sns 3-wp-2882-2022-J.doc
2) The matter was listed for hearing on 4 th September 2024 however,
since there was no representation of the Respondent No.2, we heard the matter and
closed the same for judgment. On the next day, Mr. Pungliya learned counsel
offering his apology for remaining absent prayed that, he may be heard.
Considering the apology and reason for absence as advanced by Mr. Pungliya, we
heard Mr. Pungliya for Respondent No.2 and closed for Judgment.
3) The Respondent No.2-Pandurang Balwadkar and his brother-Manoj
Balwadkar along with other relatives are co-owners of a land lying, being and
situated at Survey No.15, Hissa No. 5, Balewadi, Haveli, Pune. The Petitioner was
assigned development rights in the said land by the owners. The Respondent No.2
alleges a breach of contract arising out of and allied to the Development
Agreement giving rise to the dispute involved in the present proceedings.
4) Manoj Balwadkar filed a complaint before the Judicial Magistrate
First Class, Pune bearing R.C.C.No.4054 of 2013 praying that, the Magistrate take
cognizance of offences committed by the Petitioner herein under Sections 406,
420, 423, 465, 467 and 468 of the I.P.C. and further prayed that, the Petitioner be
summoned and tried for the said offences. This complaint was dated 13 th
September 2013. There is a police report dated 30th May 2017 submitted to the
Magistrate under Section 202 of the Cr.P.C. Thereafter, the Magistrate by its
Order dated 24th December 2021 issued process against the Petitioner for offence
punishable under Section 420 of the I.P.C. in exercise of his power under Section
204 of the Cr.P.C. Thus, the Magistrate took cognizance of the offence against the
Petitioner.
sns 3-wp-2882-2022-J.doc
5) It appears that the Petitioner herein challenged Order dated 24 th
December 2021 before this Court and by Order dated 11 th March 2022, the learned
Single Judge of this Court while issuing notice to the Applicant in that complaint
namely, Manoj Balwadkar directed the trial Court to defer the hearing of the
proceedings in R.C.C.No.4054 of 2013 before the J.M.F.C. 12 th Court, Pune during
the pendency of the Application before this Court.
6) During the pendency of the complaint, the Respondent No.2 herein
namely Pandurang Balwadkar, i.e., the brother of Manoj Balwadkar lodged the
F.I.R. dated 9th May 2022 with the Chaturshringi Police for offences punishable
under Sections 406 and 420 of the I.P.C. It is this F.I.R. that is assailed in the
present proceeding.
7) By Order dated 30th November 2023, the Petition is admitted and the
interim relief granted by Order dated 13 th October 2022 to the extent that, the
investigation to continue, but the charge sheet shall not be filed without the leave
of this Court was confirmed.
8) Mr. Niranjan Mundargi, learned counsel appears for the Petitioner
and Mr. Neel Punglia, learned counsel appears for the Respondent No.2. Mr. A.S.
Shalgaonkar, learned A.P.P. represents the State.
9) Mr. Mundargi submits that, the subject F.I.R. is an abuse of process
of the law and the same was filed with mala fide intention to harass the Petitioner.
The said FIR is challenged on the grounds of double jeopardy, as a prior criminal
complaint (R.C.C. No. 4054 of 2013) was filed by the brother of Respondent No.
2, Mr. Manoj Bajirao Balwadkar, for the same cause of action, alleging offences
sns 3-wp-2882-2022-J.doc
under sections 406, 420, 423, 465, 467, and 468 of the IPC. Learned J.M.F.C., 12 th
Court, Pune, has already taken cognizance and issued process against the
Petitioner.
10) He further states that, the subject F.I.R. and the prior criminal
complaint share identical facts and cause of action, and therefore, the FIR should
be quashed and set aside. He states that the police have reported that the matter is
of civil nature. Mr. Mundargi raises certain other grounds, however the thrust of
his arguments is regarding non-maintainability of the F.I.R. in view of the fact that,
the Magistrate has already taken cognizance of an offence which involved the
same facts, same cause of action and between the same parties. He thus states that,
there can be no second F.I.R. nor any fresh investigation on receipt of every
information in respect of the same cognizable offence or the same occurrence or
incident giving rise to one or more cognizable offences. He relied on the decision
of the Supreme Court in the matter of T. T. Antony v. State of Kerala.1
11) Mr. Punglia fairly concedes that, there can be no second F.I.R. on the
same cause of action and the same facts when a Magistrate has already taken
cognizance of the said offence. He however prays that, quashing of the F.I.R.
impugned herein may not adversely affect the prospects of the Respondent No.2 in
the previous complaint pending before the J.M.F.C. He thus urges the Court to
pass appropriate Orders. Mr. A. S. Shalgaonkar also reiterates the submission of
Mr. Punglia.
1 (2001) 6 SCC 181.
sns 3-wp-2882-2022-J.doc
12) We have heard learned counsel for the parties and perused the record
with their assistance.
13) The legal position settled by the Supreme Court in the matter of T. T.
Antony (supra) is that there can be no second F.I.R. and consequently, there can be
no fresh investigation on receipt of every subsequent information in respect of the
same cognizable offence or the same occurrence or incident giving rise to one or
more cognizable offences. On receipt of information about a cognizable offence
or an incident giving rise to a cognizable offence/s and on entering the F.I.R. in the
Station House Diary, the officer-in-charge of a police station has to investigate not
only the cognizable offence reported in the F.I.R., but also other connected
offences found to have been committed in the same transaction or occurrence and
file one or more reports as provided under Section 173 of the Cr.P.C. As the term
'F.I.R.' itself suggests, although not used in the Code, it is the earliest and the first
information of a cognizable offence recorded by an officer-in-charge of the police
station. This sets the criminal law into motion and marks the commencement of
the investigation leading to filing of a Final Report by the police of which the
Magistrate takes cognizance.
14) In the present case, the criminal law has already been set in motion
by an Order of the Magistrate taking cognizance. Admittedly, the facts in the
F.I.R. as well as the complaint arise out of the same occurrence of events as
complained by the Respondent No.2 and his brother respectively. Thus, once the
Magistrate has taken cognizance of the complaint in respect of the same facts,
there is no question of the police launching an investigation pursuant to a fresh
sns 3-wp-2882-2022-J.doc
F.I.R. filed by the Respondent No.2 on same set of facts. The complaint before the
Magistrate includes the facts pertaining to the grievance of the Respondent No.2 as
well. Considering the facts of this matter, we have no hesitation in holding that the
F.I.R. impugned herein is a futile exercise in law and is not maintainable. Hence,
we are inclined to quash the said F.I.R.
15) It is however made clear that, we have examined the present F.I.R.
only in the context of the established principle of law as laid down in the case of T.
T. Antony (supra). It is clarified that, we have not rendered any opinion or finding
on the merits of the complaint bearing R.C.C.No.4054 of 2013 filed by Manoj
Balwadkar against the Respondent No.2 herein and pending before the J.M.F.C.,
12th Court, Pune. The same will be considered on its own merits.
16) Rule is accordingly made absolute in terms of prayer clause (b).
(DR NEELA GOKHALE, J.) (A.S. GADKARI, J.)
Signed by: Raju D. Gaikwad
Designation: PS To Honourable Judge
Date: 19/09/2024 18:22:13
