Bombay High Court
Jain Real Estate Builders Thr Its ... vs Parag Prakash Banthia And Anr. on 11 November, 2025
2025:BHC-NAG:11773
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 319/2025
1. Jain Real Estate Builders
through its Partner Sunil Inderchand
Banthia, aged 66 yrs., Occ. Business,
having office at G-42, 'Utkarsh Nirman'
Mangalwari, Sadar, Nagpur.
...PETITIONER
VERSUS
1. Parag Prakash Banthia,
aged 43 yrs., Occ. Business,
2. Smt. Usha w/o Prakash Banthia,
aged 75 yrs., Occ. Household,
Parag Prakash Banthia and Usha
Prakash Banthia Plot No. 201,
Ramdeo Arsie, near Airport Center
Point Hotel, Somalwada, Wardha Road,
Napgur-440025.
[Amendment carried out as per order
dated 06.08.2025.]
3. The State of Maharashtra through
Police Station In-charge, Sadar Police
Station, Nagpur.
...RESPONDENTS
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Mr. R.S. Parsodkar, Advocate for petitioner.
Mr. R.D. Dharmadhikari, Advocate for respondent Nos. 1 & 2.
Mr. A. M. Joshi, Addl. Public Prosecutor for respondent No.3.
-------------------------------------------------------------------------------------
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CORAM : M. M. NERLIKAR, J.
DATE : 11.11.2025
ORAL JUDGMENT :
Heard.
2. By way of this petition filed under Articles 226 and
227 of the Constitution of India, the petitioner is challenging
the judgment and order dated 14.08.2024 passed by the
Additional Sessions Judge, Nagpur in Criminal Revision
No.226/2023 and the order dated 20.07.2023 passed by the
learned Judicial Magistrate First Class Court No.6, Nagpur in
Criminal Misc. Application No. 1600/2023, wherein the
complaint filed by the petitioner under Section 156(3) of the
Code of Criminal Procedure ("Code") was dismissed.
3. Brief facts of the case appears to be:-
The petitioner is a partnership firm dealing in the
business of real estate and construction through its partner. The
respondent No. 1 is cousin brother of the partner whereas
respondent no. 2 is the mother of respondent no. 1.
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The respondent no. 2 owned and possessed
agricultural land admeasuring about 0.64 hectares situated at
Khasra no. 177/2 Patwari Halka No. 74, Mouza Borkhedi, Gram
Panchayat Borkhedi which was agreed to be sold to petitioner-
firm vide agreement for sale dated 06.09.2004 for a
consideration of Rs. 16,00,000/-. Subsequently, the entire
consideration has been paid by the petitioner-firm. Thereafter,
the respondent no. 2 executed power of attorney in favour of
petitioner-firm on 27.01.2005 before Sub-Registrar, Nagpur.
However, the petitioner-firm through its partner received a
legal notice dated 25.08.2015 issued by respondent no. 1
stating that respondent no. 2 has revoked the aforesaid power
of attorney in view of gift deed executed by respondent no. 2 in
favour of respondent no. 1 to which the petitioner-firm replied
on 07.10.2015. Pursuant to the same, the petitioner-firm
challenging the gift deed filed a Civil Suit bearing RCS No.
1285/2015 which was eventually dismissed. As the petitioner-
Firm was having business in real estate and construction it had
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sold bungalows on the said plot to prospective buyers on
receipt of payment by executing deed of conveyance.
In view of above facts, the petitioner-Firm filed a
police complaint in Sadar Police Station, Nagpur on 24.10.2015
complaining of cheating and fraud, however, the police
authorities refused to take action. Therefore, a criminal
complaint under section 156(3) r/w section 199 and 200 Code
was filed before the Trial Court seeking directions to register
FIR against respondent Nos. 1 and 2 under sections 405, 406,
417,418, 419 and 420 r/w section 34 of IPC. However, vide
order dated 20.07.2023 the Magistrate dismissed the complaint
in Criminal Misc. Application No. 1600/2023 which was
challenged in Criminal Revision No. 226/2023 before the
Sessions Judge which was also dismissed vide order dated
14.08.2024. The aforesaid orders are challenged in the petition.
4. The learned counsel for the petitioner submits that the
learned Magistrate and the Revisional Court has miserably
failed to take into consideration that mere non-filing of an
affidavit in support of the complaint is not fatal as it is a
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curable defect. He submits that before passing of the order of
dismissal by the Magistrate, the Magistrate ought to have
permitted the petitioner to file affidavit, however by not
permitting the same, the Magistrate has failed to apply the
principles of natural justice which amounts to denying the
petitioner from filing of an affidavit. He submits that the
Magistrate ought to have considered the solemn affirmation
which appears at the foot of the application as the contents of
the solemn affirmation is nothing but is a form of an affidavit
itself and the solemn affirmation itself depicts that the contents
in the application are true and correct to the best of the
knowledge and belief, therefore there is nothing new to be
stated on affidavit separately. He submits that the allegations, if
considered from the contents of the application, the ingredients
of cheating and other offences are made out, therefore the
Court ought to have considered that there are sufficient
allegations to issue directions under Section 156(3) of the
Code. Lastly, he submits that merely if there is civil remedy
cannot bar criminal complaint.
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5. On the other hand, the learned counsel for the
respondents submits that the civil dispute was converted into a
criminal case. The respondent No.1 who is also a partner in the
Partnership Firm is cousin brother. The respondent No.2 who is
the mother of respondent No.1 owned and possessed
agricultural land admeasuring about 0.64 Hectares. It was
agreed to be sold to the petitioner-Firm vide agreement for sale
dated 06.09.2004 for a consideration of Rs.16,00,000/-. He
submits that there is no dispute that the consideration amount
has been paid by the petitioner-Firm. Accordingly, respondent
No.2 - mother has also executed registered power of attorney
in favour of the petitioner-Firm, however in the meantime,
respondent No.2 executed gift-deed in favour of respondent
No.1. He submits that legal notice was issued on 25.08.2015
informing that respondent No.2 has revoked the power of
attorney in view of execution of gift-deed. He submits that
accordingly, the petitioner-Firm filed a Civil Suit which was
dismissed. The petitioner-Firm has constructed Bungalows on
the said plot, which were sold to the prospective buyers on
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receipt of payment by executing deed of conveyance, therefore
he submits that the dispute is of civil nature. Even if the
contents of the application is taken as it is, no criminal element
is involved. He submits that the Hon'ble Supreme Court in case
of Priyanka Srivastava and another Vs. State of Uttar Pradesh
and others, (2015) 6 SCC 287 made it mandatory to file
affidavit in support of the application filed under Section
156(3) of the Code. This is not a curable defect. Further, the
issue dealing with filing of the affidavit and solemn affirmation
as affidavit has been dealt by this Court in Harry Inder Dhaul
Vs. State of Maharashtra and others with connected petitions,
2023 SCC OnLine Bom 200. Lastly, he submits that there are
concurrent findings of both the Courts and therefore, prayed to
dismiss the petition.
6. Upon hearing the learned counsel for the petitioner
and learned APP, it is not in dispute that the petitioner has filed
the Criminal Misc. Application No. 1600/2023 seeking direction
under Section 156(3) of the Code for registration of offence.
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Admittedly, the said application was not supported by the
affidavit.
7. The Supreme Court in Priyanka Srivastava (supra) has
made following observations in paragraph Nos. 30 and 31
which read as under:-
"30. In our considered opinion, a stage has come in
this country where Section 156(3) Cr.P.C. applications
are to be supported by an affidavit duly sworn by the
applicant who seeks the invocation of the jurisdiction
of the Magistrate. That apart, in an appropriate case,
the learned Magistrate would be well advised to
verify the truth and also can verify the veracity of the
allegations. This affidavit can make the applicant
more responsible. We are compelled to say so as such
kind of applications are being filed in a routine
manner without taking any responsibility whatsoever
only to harass certain persons. That apart, it becomes
more disturbing and alarming when one tries to pick
up people who are passing orders under a statutory
provision which can be challenged under the
framework of said Act or under Article 226 of the
Constitution of India. But it cannot be done to take
undue advantage in a criminal court as if somebody is
determined to settle the scores.
31. We have already indicated that there has to be
prior applications under Section 154(1) and 154(3)
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while filing a petition under Section 156(3). Both the
aspects should be clearly spelt out in the application
and necessary documents to that effect shall be filed.
The warrant for giving a direction that an application
under Section 156(3) be supported by an affidavit so
that the person making the application should be
conscious and also endeavour to see that no false
affidavit is made. It is because once an affidavit is
found to be false, he will be liable for prosecution in
accordance with law. This will deter him to casually
invoke the authority of the Magistrate under Section
156(3). That apart, we have already stated that the
veracity of the same can also be verified by the
learned Magistrate, regard being had to the nature of
allegations of the case. We are compelled to say so as
a number of cases pertaining to fiscal sphere,
matrimonial dispute/family disputes, commercial
offences, medical negligence cases, corruption cases
and the cases where there is abnormal delay/laches
in initiating criminal prosecution, as are illustrated in
Lalita Kumari are being filed. That apart, the learned
Magistrate would also be aware of the delay in
lodging of the FIR."
8. This Court in case of Harry Inder Dhaul (supra)
observed in paragraph Nos. 13, 14, 15, 16 and 17 which read
as under:-
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"13. Let us see whether in the present case, the
application/complaint lodged by respondent no. 2
satisfies the compliance referred in cases of Priyanka
Srivastava and Sayed Anwar Ahmed (supra).
14. A perusal of the application under section
153(3) of the Cr.P.C. shows that at the foot of the
application solemn affirmation is done by the
authorized person of respondent no.2. The solemn
affirmation appearing at the foot of the application is
reproduced here as under:
SOLEMN AFFIRMATION
I Shripad Prakashrao Moharil, Age - 45 years,
resident of Nagpur, do hereby take oath and state on
solemn affirmation that the content of above
paragraphs no. 1 to 14 have been drafted by my
counsel - Adv. Prakash N. Rawlani as per my
instructions. That it has been explained to me in my
vernacular language, they are true and
correct to best of my knowledge and belief.
Hence verified and signed here at Nagpur on
this 2nd Day of August 2021.
15. Though, the application is supported by an
affidavit in the form of solemn affirmation referred
above, but, it does not substantially comply with the
requirements set out in paragraph nos. 5 and 8 of
chapter VII of the Criminal Manual as directed in the
case of Sayed Anwar Ahmed (supra). The paragraph
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5 and 8 of Chapter VII of the Criminal Manual are
reproduced below:
"5.(1)Every affidavit should clearly
specify what portion of the statement is
made on the declarant's knowledge and
what portion of the statement is made on
his information or belief.
(2) When a particular portion is not within
the declarant's own knowledge but it is
stated from information obtained from
others, the declarant must use the
expression "I am informed" and if it is
made on belief should add "I verily believe
it to be true." He must also state the source
or ground of the information or belief, and
give the name and address of, and
sufficiently describe for the purpose of
identification, the person or persons from
whom he had received such information.
(3) When the statement rests on facts
disclosed in documents or copies of
documents procured from any court or
other person, the declarant shall state the source from
which they were procured and
his information, or belief, as to the truth of
the facts disclosed in such documents.
6.......
7. ......
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8. (1) The Officer authorised in this behalf,
shall, before administering the oath ask the
declarant if he has read the affidavit and
understood the contents thereof, and if the
latter states that he has not read it, or
appears not to understand fully, the
contents thereof, or appears to be blind,
illiterate or ignorant of the language in
which it is written, the Officer
administering the oath shall read and
explain or cause some other competent
person to read and explain in his presence
the affidavit to the declarant in the
language which both the declarant and the
Officer administering the oath understood.
(2) When an affidavit is read, translated or
explained as herein provided the Officer
administering the oath shall certify in
writing at the foot of the affidavit that it
has been so read, translated or explained in
his presence and that the declarant
understood the same at the time of making
the affidavit and made his signature or
finger impression in the presence of the
Officer."
16. In the present case, only at the foot of the
complaint, paragraph in the form of solemn
affrmation has been made without mentioning what
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portion of the statement in the application/complaint
is made on the personal knowledge of the declarant
and what portion of the statement in the application/
complaint is made by him on the basis of information
and belief. The reasons, for the information and
belief. The reasons, for the compliance of these
requirements strictly is very obvious as held in
Priyanka Srivastava (supra) i.e. to see that the
complaint who invokes the jurisdiction under section
156(3) of the Cr.P.C. and put the criminal law in
motion, shall be held responsible for any mischief in
making out a false case. There should be no scope for
the declarant to escape on the technical ground from
responsibility attached to the statement made by him
in the affidavit. Unless those compliances, referred in
paragraph nos. 5 and 8 of chapter VII of the Criminal
Manual are complied with, it will be difficult to hold
the person making a declaration on oath, responsible
for the statement made on an oath.
17. An affidavit filed without complying with the
requirement of Chapter VII of Criminal Manual
published by this court, cannot be said to be an
affidavit filed in compliance with the direction issued
by the apex court in Priyanka Shrivasta and Sayad
Anwar Ahmad. Thus, we hold that in present case,
there is non-compliance of mandatory requirement
i.e. filing of the proper affidavit."
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9. It would also be useful to refer to the latest judgment
of the Supreme Court in case of S.V. Vijayalakshmi & ors. Vs.
State of Karnataka in Special Leave Petition (Criminal) No.
8626/2024 delivered on 31.07.2025, wherein the Supreme
Court has observed in paragraph No.45 which reads as under:-
"45. The High Court has taken a view that this is a
curable defect since before the referral order on the
PCR by the ACMM for registering an FIR under
Section 156(3) of the CrPC, the required formalities
were done. In our considered opinion, this approach
cannot be labelled erroneous. The requirement under
Priyanka Srivastava (supra) is to safeguard the rights
of the citizenry and to put a stop to unjust criminal
action and filing of vexatious applications to settle
personal scores. Thus, such requirement could not be
said to be a mere formality. One of us (Sudhanshu
Dhulia, J.) as a Single Judge of the Uttarakhand High
Court, in Sachin Chamoli v State of Uttarakhand,
2016 (3) NCC 68, where no affidavit had been filed,
held that filing of affidavit was a mandatory
requirement as per Priyanka Srivastava (supra). In
Babu Venkatesh v State of Karnataka, (2022) 5 SCC
639, this Court held that the Magistrate concerned
should not have entertained the
complaint/application under Section 156(3) of the
CrPC therein, as it was not supported by an affidavit.
In the case at hand, before the ACMM passed the
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referral order, the complaint was backed by an
affidavit. In Ramesh Kumar Bung v State of
Telangana, 2024 SCC OnLine SC 264, the Court,
while stating that the directions in Priyanka
Srivastava (supra) are mandatory, declined to
interfere with the order(s) impugned therein, but
noted that the informant had filed the affidavit
belatedly. To complete the discussion on this aspect of
the law, we may also refer to our judgment in Kanishk
Sinha v State of West Bengal, 2025 SCC OnLine SC
443 where, speaking through Sudhanshu Dhulia, J.,
this Court upheld an order of the
Calcutta High Court, to the effect that the direction in
Priyanka Srivastava (supra) to file the affidavit, was
prospective in nature. Therefore, if after the filing of
the complaint/application but before any order
thereon is passed, such requirement is allowed to be
fulfilled/complied with by the complainant, it would
not, in our view, run counter to the law exposited in
Priyanka Srivastava (supra). We sum up our
conclusions on this score as follows: (i) Directions
issued in Priyanka Srivastava (supra) are mandatory;
(ii) Guidelines laid down in Priyanka Srivastava
(supra) operate prospectively; (iii) Non-filing of the
supporting affidavit is a curable defect, but must be
cured before the Magistrate passes any substantive
order on the complaint/application, and; (iv) If the
Magistrate proceeds without the requisite affidavit,
such order/any consequential orders/proceedings can
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be quashed on the sole ground of non-compliance
with Priyanka Srivastava (supra)."
10. From the above, it is crystal clear that affidavit in
support of the application filed under Section 156(3) of the
Code is mandatory. It is further to be noted that though at the
end, solemn affirmation in the nature of affidavit is appearing,
but that by itself would not be sufficient in order to comply the
requirements set out in Chapter VII of the Criminal Manual in
paragraph Nos. 5 and 8, therefore this issue is no more res-
integra considering the above law laid down by the Supreme
Court as well as this Court referred (supra).
11. It is true that the defect of non-filing of affidavit is
curable, the Supreme Court in the case of S.V. Vijayalakshmi
(supra) has specifically observed that the direction in case of
Priyanka Srivastava is mandatory, however, an exception to this
has been carved out by the Supreme Court by stating that the
requirement of filing of an affidavit is allowed to be
fulfilled/complied with by the complainant after filing of the
complaint, but before the Magistrate passes any substantive
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order on complaint/application, meaning thereby the Supreme
Court categorically has held that after filing of the
complaint/application and before passing of order on the said
application, the affidavit can be filed in order to comply the
direction in the case of Priyanka Srivastava (supra). If the
party fails to do so, then naturally the complaint would be
dismissed.
12. If the present petition is considered, it is apparent that
only the solemn affirmation appears at the foot of the
application, and no affidavit has been filed. The purpose
behind filing of the said affidavit is already explained by the
Supreme Court in case of Priyanka Srivastava (supra).
Therefore, without elaborating further, the fact remains that the
petitioner has failed to file the affidavit in support of his
application before passing the order of dismissal.
13. That apart ever the contention of the learned counsel
for the petitioner that ingredients of Sections 405, 406, 417,
418, 419, 420 read with Section 34 of the Indian Penal Code
are made out, cannot be accepted as could be gathered from
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the contents of the application which demonstrate that the
dispute is of civil nature. The execution of power of attorney in
favour of the Partnership Firm by respondent No.2 was
revoked by issuing a legal notice dated 25.08.2015, wherein
respondent No.2 has executed gift deed in favour of respondent
No.1. This by itself would not satisfy the ingredients of alleged
offence. Further, the suit filed by the petitioner-Firm bearing
RCS No. 1285/2015 was also dismissed. It appears from the
application that the case revolves around power of attorney and
revocation of said power of attorney in view of gift deed,
therefore appropriate remedy was not of filing criminal
complaint. It could be at the most regarded as breach of
contract between the Partnership Firm and respondent No.2. It
is well settled that mere breach of contract cannot give rise to
criminal prosecution for cheating and criminal breach of trust.
14. Considering the above facts and circumstances of the
case, both the Courts have rightly held that the petitioner has
failed to file affidavit in support of the application which is
mandatory compliance of directions issued in case of Priyanka
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Srivastava (supra) and further held that the dispute is of civil
nature,as the agreement between the parties is in respect of
property and any breach thereon amounts to breach of
contract, therefore both the Courts have rightly dismissed the
complaint of the petitioner.
15. In view of the above, writ petition stands dismissed
and disposed of accordingly.
( M. M. NERLIKAR , J.)
Gohane
Signed by: Mr. J. B. Gohane
Designation: PS To Honourable Judge
Date: 11/11/2025 17:54:32
