[Cites 26, Cited by 0]
Bombay High Court
Hasmukh S/O. Hirjibhai Rathod And ... vs State Of Mah. Thr. Pso, Ps Wadi, Dist. ... on 2 April, 2026
2026:BHC-NAG:5237-DB
wp.422.2023.452.2023.apl.869.2023.870.2023 & 871.2023.Judgments.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.422 OF 2023
1. Hasmukh s/o Hirjibhai Rathod,
Aged about 71, (Accused Nos.1 & 2)
Occupation : Business,
R/o. Plot No.12, Trimurti Nagar,
Ring Road, Nagpur.
2. Viren s/o Jayantilal Thakkar,
Aged 62,
Occupation : Business,
R/o. Flat No.802, Court Royal,
Behind Batukbhai Jewellers,
Shankar Nagar,
Dharampeth Nagpur. ..... APPLICANTS
// VERSUS //
1. State of Maharashtra, through
Police Station Officer, Police Station, (I.O.)
Wadi, District Nagpur.
2. Adv. Ashish s/o. Dilip Katariya,
Aged about 34 Years, (Ori. Complainant)
Occupation : Advocate,
R/o. Sadar Bazar, Behind Badi Masjid,
Sadar, Nagpur. .... NON-APPLICANTS
-------------------------------------------
Mr. M. P. Khajanchi, Advocate for petitioners.
Mr. A. M. Joshi, APP for the State.
-------------------------------------------
WITH
CRIMINAL WRIT PETITION NO.452 OF 2023
1. Ashish Shankarrao Thool,
Age : 41 Years,
Occupation : Service (Revenue Inspector)
Presently posted at Tahsil Office
Mouda.
R/o. L-27, Laxman Nagar,
Manewada, Besa Road,
Nagpur 440034. ..... APPLICANT
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(2)
// VERSUS //
1. State of Maharashtra Through its
Police Station Officer, Police Station,
Wadi, District Nagpur.
2. Ashish s/o. Dilip Katariya,
Aged 35 Years,
Occupation : Advocate,
R/o. Sadar Bazar, Behind Badi Masjjit
Gauli Pura Nagpur,
Sadar, Nagpur. .... NON-APPLICANTS
-------------------------------------------
Mr. Nitin Bargat, Advocate for petitioner.
Mr. A. M. Joshi, APP for State.
-------------------------------------------
WITH
CRIMINAL APPLICATION (APL) NO.869 OF 2023
1. Smt. Ujjwala D/o Ankushrao Telang
Alias Ujjwala Rakesh Landge
Aged about 47 Years,
Occupation : Service,
R/o. Juni Mangalwari,
Near Buddha Vihar,
Ward No.95, C. A. Road,
Nagpur. ..... APPLICANT
// VERSUS //
1. State of Maharashtra, Through
Police Station Officer, Police Station,
Wadi, District Nagpur.
2. Ashish Dilip Katariya,
Aged 37 Years,
Occupation : Advocate,
R/o. Sadar Bazar, Behind Badi Maszid
Gavlipura, Nagpur, .... NON-APPLICANTS
-------------------------------------------
Ms. Mugdha Chandurkar, Advocate with Mr. Rohan Chandurkar,
Advocate for applicant.
Mr. A. M. Joshi, APP for non-applicant No.1/State.
-------------------------------------------
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(3)
WITH
CRIMINAL APPLICATION (APL) NO.870 OF 2023
1. Pawankumar s/o Rewaram Kewate,
Aged 42 Years,
Occupation : Service,
R/o. 302, 3rd Floor,
Shivaji Park Apartment,
Shri Krushna Nagar,
Nagpur. ..... APPLICANT
// VERSUS //
1. State of Maharashtra, Through
Police Station Officer, Police Station,
Wadi, District Nagpur.
2. Ashish Dilip Kataria,
Aged 37 Years,
Occupation : Advocate,
R/o. Sadar Bazar, Behind Badi Maszid
Gavlipura, Nagpur, .... NON-APPLICANTS
-------------------------------------------
Ms. Mugdha Chandurkar, Advocate with Mr. Rohan Chandurkar,
Advocate for applicant.
Mr. A. M. Joshi, APP for non-applicant No.1/State.
-------------------------------------------
WITH
CRIMINAL APPLICATION (APL) NO.871 OF 2023
1. Shri Sunil s/o Ramkrushna Ban
Aged about 45 Years,
Occupation : Service,
R/o. Plot No.63, Bhavani Nagar,
Bhandara Road Nagpur,
Near Ganesh Mandir Ward No.16,
Bhandewadi, Nagpur. ..... APPLICANT
// VERSUS //
1. State of Maharashtra, Through
Police Station Officer, Police Station,
Wadi, District Nagpur.
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(4)
2. Ashish Dilip Kataria,
Aged 37 Years,
Occupation : Advocate,
R/o. Sadar Bazar, Behind Badi Maszid
Gavlipura, Nagpur, .... NON-APPLICANTS
-------------------------------------------
Ms. Mugdha Chandurkar, Advocate with Mr. Rohan Chandurkar,
Advocate for applicant.
Mr. A. M. Joshi, APP for non-applicant No.1/State.
-------------------------------------------
CORAM : URMILA JOSHI-PHALKE, J.
RESERVED ON : 07.03.2026
PRONOUNCED ON : 02.04.2026
JUDGMENT :
1. Heard.
2. Admit.
3. Heard finally with the consent of the learned Counsel for
the applicants and learned APP for the State.
4. By all these petitions, the petitioners/applicants therein
are seeking quashing of the FIR in connection with Crime
No.365/2023 registered with Police Station Wadi, District Nagpur for
the offence punishable under Sections 120B, 420, 465, 467, 471
read with Section 34 of the Indian Penal Code (for short 'IPC')
registered under the direction of the learned Judicial Magistrate First
Class Corporation Court No.2, Nagpur dated 14.06.2023.
5. The land Khasra (old No. 55), new Khasra No.55/1 and
55/2 situated at Mouza Lava, Tahsil and District Nagpur was
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originally owned by one Meghraj Asaram Hiranwar and upon his
death, the land has devolved amongst his legal heirs namely Harish
Gopal Hiranwar, Ajay Gopal Hiranwar, Mandakini Gopal Hiranwar,
Smt. Nutan Mukunda Siriya, Dropati Anil Patel, Saraswati Satish
Siriya, Nirupa Sandeep Ahir, Sudha Rajendra Chaudhary and others.
The name of the legal heir Anandibai Gangaram Ahir, maternal
grandmother of the respondent No.2 has not been entered into
revenue records. On 08.11.2007, the affidavit submitted by the
legal heirs of Meghraj Hiranwar and others with the land records
and the name of Anandibai did not appear in the said affidavit, and
therefore, her name was not mutated on record. Out of 3.28 HR,
2.46 HR land was sold by some legal heirs to petitioners in Criminal
Writ Petition No.422/ 2023, namely, Hasmukh Hirjibhai Rathod and
Viren Jayantilal Thakkar. On execution of sale deed, their names
were mutated in the revenue records. The respondent No.2, who is
the legal heir of Anandibai Gangaram Ahir, approached the Police
Station, Wadi on 23.08.2018. The police found dispute of civil
nature and therefore, not taken cognizance. On 02.01.2021, the
respondent No.2 filed an appeal before S.D.O., challenging the
mutation in the name of other legal heirs of Meghraj Hiranwar and
also filed Civil Suit bearing RCS No.186/2021. On 07.10.2020, the
present petitioners i.e. Hasmukh Hirjibhai Rathod and Viren
Jayantilal Thakkar filed an application for joint measurement with
one Rajendra Chaudhary in the office of Deputy Superintendent of
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Land Records, Nagpur. On 12.11.2021 measurement was done.
The Khasra No.55 was divided into two parts i.e. 55/1 and 55/2. As
per mutation, 55/1 was owned by Rajendra Chaudhary, Nalini
Chaudhary, Chandu Chaudhary, Sudhir Chaudhary, Savita Siriya,
Rajesh Siriya, Arun Siriya and Basant Siriya, whereas Khasra No.
55/2 was mutated in the name of petitioners Hasmukh Rathod and
Virendra Thakkar. It is alleged that the Rajendra Chaudhary
expired on 16.04.2020. The application for measurement contains
his signature and at the time of measurement, he was shown to be
present. The petitioners namely Hasmukh Rathod and Virendra
Thakkar sold 2.46 HR to Praful Walme, Kapil Walme, Harshal Kakde,
Vijay Mishra for consideration of Rs. 5,70,00,000/-. Thereafter, the
respondent No.2 filed an application under Section 156 (3) of of the
Code of Criminal Procedure (for short 'CrP.C.') and in view of the
directions of the learned Magistrate, the FIR came to be registered
against the present applicants.
6. As per the allegations in the FIR, after the death of
Meghraj Hiranwar, the grandmother of the respondent No.2, who
was one of the legal heirs, who died on 14.09.1981 and after the
death of Anandibai Ahir, Meghraj Hiranwar filed an affidavit before
the Talathi for mutating the name of the legal heirs on record. The
said Anandibai died on 28.01.1998. After the death of the said
Anandibai, the mother of the complainant, namely, Alka Katariya is
the only legal heir for the said land at Khasra No.55. Homraj has
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given a false affidavit and mutated the land illegally. Thereafter the
land was illegally sold by the accused persons to the petitioners in
Criminal Petition No.422/2023. During the pendency of the said
civil suit, accused persons sold out the said land to the third person.
As per the allegations, the petitioners, who are the public servant
also by joining hands with the purchasers and the legal heirs of
Meghraj, committed the offence under Sections 420, 467, 468 and
471 of the IPC.
7. After registration of the crime, the investigation was
carried out and various statements of the witnesses were recorded.
The present petitions are filed by the petitioners/applicants
contending that the dispute is of a civil nature and no criminal
offence is made out.
8. Heard learned counsels for the petitioners Mr. M. P.
Khajanchi, in Writ Petition No.422/2023, Mr. Nitin Bargat, in Writ
Petition No.452/2023 and Ms. Mugdha Chandurkar and Mr. Rohan
Chandurkar in Criminal Application Nos. 869/2023, 870/2023 and
871/2023. Leaned counsels Mr. Khajanchi and Mr. Bargat
submitted that from the recitals of the FIR it reveals that the
dispute is of a civil nature and therefore, the police have not taken
cognizance of the complaint which was filed by the complainant on
23.08.2018 at the Police Station Wadi. Without following the due
procedure under Sections 154, 155, the application under 156(3) of
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Cr.P.C. came to be filed by the respondent No.2. The learned
Magistrate has also not considered that there is no compliance, in
view of the judgment of the Hon'ble Apex Court in the case of
Priyanka Srivastava and another vs State of Uttar Pradesh
and others, reported in (2015) 6 SCC 287. He submitted that
even accepting the allegation as it is, no offence is made out against
the present applicants, to attract the offence either under Sections
420, 467, 471 of IPC. He submitted that in fact, the application
under Section 156(3) of Cr.P.C. itself is not supported by an
affidavit which is mandatory in nature, in view of the judgment of
the Supreme Court, and therefore, the application under Section
156(3) of Cr.P.C. itself, is not maintainable. On that ground itself
the learned Magistrate ought to have rejected the application. He
further submitted that as far as the petitioners in Writ Petition
No.422/2023 are concerned, who are the purchasers they are not
concerned with the application which was filed by the legal heirs of
Meghraj to enter the names of legal heirs. The dispute as to
whether the grandmother of the respondent No.2 is legal heir or not
to be decided by the Civil Court and thereafter, the question would
arose whether the legal heirs have committed an offence punishable
under Sections 467, 468 of IPC. In view of that, the application
deserves to be allowed.
9. Learned counsel Mr. Bargat submitted that the petitioner
in Writ Petition No.452/2023 is concerned, who is a Revenue
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Inspector. As the application was received for measurement and
thereby he directed to conduct the measurement and other
applicants have conducted the measurement. There is no reason
for him to have knowledge regarding the presence of Rajendra
Chaudhary. So, offence is made out against Ashish Shankarrao
Thool.
10. Learned counsel Ms. Mugdha Chandurkar also reiterated
the said contentions and submitted that except the allegations that
they have conducted the measurement, there is no allegation.
Admittedly, no direct evidence would be available as far as the
conspiracy is concerned, but there has to be some material on
record to show that the petitioners, who are the public servants
have joined hands with the other petitioners whose interest was
involved, as no prima facie case is made out against the present
petitioners, the applications deserve to be allowed.
11. Whereas, learned APP strongly opposed the said
applications and petitions and submitted that the recitals of the FIR
and the documents on record sufficiently shows that all the
petitioners in collusion with each other hatched the conspiracy and
in pursuance of the said conspiracy the measurement was
conducted by showing the presence of Rajendra Chaudhary, who is
already dead. Thus, the offence under Sections 467 and 468 of IPC
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is made out against the present petitioners, and therefore, the
petitions and applications deserve to be rejected.
12. After hearing both sides and on perusal of the entire
material on record, the entire dispute revolves around the mutation
entry in the name of all the legal heirs. As per the allegations of the
complainant, the legal heirs of Meghraj Hiranwar filed a false
affidavit and preferred an application without showing her
grandmother as a legal heir and deprived her from the legal right
and thereby committed an offence. As per the allegations of the
complainant, one Meghraj Hiranwar owned the land and after him
the said land was owned by the five daughters, namely, Anandibai
Ahir, Narmada Chaudhary, Geeta Sangariya and other legal heirs
also, but on 14.09.1981, Homraj Hiranwar filed an affidavit before
the Talathi for mutating name, not showing the name of Anandibai.
The said Anandibai died on 28.01.1998. After the death of
Anandibai, the mother of the complainant namely Alka Katariya is
the only legal heir for the said land at Khasra No.55. She is
deprived of getting her share in the said property. It is further
alleged that one of the legal heir Rajendra Chaudhary though dead
he was shown to be present at the time of measurement and thus,
the petitioners have committed an offence.
13. Before entering into the merits of the matters, it is
necessary to see the directions given by the Hon'ble Apex Court in
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the case of Priyanka Srivastava and another (referred supra).
The Hon'ble Apex Court observed that the learned Magistrate, as we
find, while exercising the power under Section 156(3) CrPC has
narrated the allegations and, thereafter, without any application of
mind, has passed an order to register an FIR for the offence
mentioned in the application. The duty cast on the learned
Magistrate, while exercising power under Section 156(3) Cr.P.C.,
cannot be marginalized. To understand the real purport of the
same, we think it apt to reproduce the said provision:
"156. Police officer's power to investigate
congnizable case. -
(1) Any officer in charge of a police station may,
without the order of a Magistrate, investigate any
cognizable case which a Court having jurisdiction
over the local area within the limits of such station
would have power to inquire into or try under the
provisions of Chapter XIII.
(2) No proceeding of a police officer in any such
case shall at any stage be called in question on the
ground that the case was one which such officer
was not empowered under this section to
investigate.
(3) Any Magistrate empowered under section 190
may order such an investigation as above-
mentioned."
14. By referring the judgment of Devarapalli
Lakshminarayana Reddy Vs. V. Narayana Reddy reported in
(1976) 3 SCC 252, the Hon'ble Apex Court observed that "it may
be noted further that an order made under sub-section (3) of
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Section 156, is in the nature of a peremptory reminder or intimation
to the police to exercise their plenary powers of investigation under
Section 156(1). Such an investigation embraces the entire
continuous process which begins with the collection of evidence
under Section 156 and ends with a report or chargesheet under
Section 173."
15. In Anil Kumar Vs. M. K. Aiyappa, (2013) 10 SCC 705
wherein also the Hon'ble Apex Court observed that "The scope of
Section 156(3) CrPC came up for consideration before this Court in
several cases. This Court in Maksud Saiyed [(2008) 5 SCC 668]
examined the requirement of the application of mind by the
Magistrate before exercising jurisdiction under Section 156(3) and
held that where jurisdiction is exercised on a complaint filed in
terms of Section 156(3) or Section 200 CrPC, the Magistrate is
required to apply his mind, in such a case, the Special
Judge/Magistrate cannot refer the matter under Section 156(3)
against a public servant without a valid sanction order. The
application of mind by the Magistrate should be reflected in the
order. The mere statement that he has gone through the
complaint, documents and heard the complainant, as such, as
reflected in the order, will not be sufficient. After going through the
complaint, documents and hearing the complainant, what weighed
with the Magistrate to order investigation under Section 156(3)
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CrPC, should be reflected in the order, though a detailed expression
of his views is neither required nor warranted. We have already
extracted the order passed by the learned Special Judge which, in
our view, has stated no reasons for ordering investigation."
16. By referring the various decisions of the Apex Court, in
the case of Priyanka Srivastava and another the Hon'ble Apex
Court further observed in Para Nos.27, 28, 29 and 30 as follows :
"27. Regard being had to the aforesaid enunciation of
law, it needs to be reiterated that the learned Magistrate
has to remain vigilant with regard to the allegations
made and the nature of allegations and not to issue
directions without proper application of mind. He has also
to bear in mind that sending the matter would be
conducive to justice and then he may pass the requisite
order. The present is a case where the accused persons
are serving in high positions in the Bank. We are
absolutely conscious that the position does not matter,
for nobody is above law. But, the learned Magistrate
should take note of the allegations in entirety, the date of
incident and whether any cognizable case is remotely
made out. It is also to be noted that when a borrower of
the financial institution covered under the SARFAESI Act,
invokes the jurisdiction under Section 156(3) Cr.P.C. and
also there is a separate procedure under the Recovery of
Debts Due to Banks and Financial Institutions Act, 1993,
an attitude of more care, caution and circumspection has
to be adhered to.
28. Issuing a direction stating "as per the application" to
lodge an FIR creates a very unhealthy situation in
society and also reflects the erroneous approach of the
learned Magistrate. It also encourages the unscrupulous
and unprincipled litigants, like the respondent 3, namely,
Prakash Kumar Bajaj, to take adventurous steps with
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courts to bring the financial institutions on their knees. As
the factual exposition would reveal, Respondent 3 had
prosecuted the earlier authorities and after the matter is
dealt with by the High Court in a writ petition recording a
settlement, he does not withdraw the criminal case and
waits for some kind of situation where he can take
vengeance as if he is the emperor of all he surveys. It is
interesting to note that during the tenure of the
Appellant 1, who is presently occupying the position of
Vice-President, neither was the loan was taken, nor was
the default made, nor was any action under the
SARFAESI Act taken. However, the action under the
SARFAESI Act was taken on the second time at the
instance of the present Appellant 1. We are only stating
about the devilish design of Respondent No.3 to harass
the appellants with the sole intent to avoid the payment
of loan. When a citizen avails a loan from a financial
institution, it is his obligation to pay back and not play
truant or for that matter play possum. As we have
noticed, he has been able to do such adventurous acts as
he has the embedded conviction that he will not be taken
to task because an application under Section 156(3) CrPC
is a simple application to the court for issue of a direction
to the investigating agency. We have been apprised that
a carbon copy of a document is filed to show the
compliance of Section 154(3), indicating it has been sent
to the Superintendent of police concerned.
29. At this stage it is seemly to state that power under
Section 156(3) warrants application of judicial mind. A
court of law is involved. It is not the police taking steps
at the stage of Section 154 of the code. A litigant at his
own whim cannot invoke the authority of the Magistrate.
A principled and really grieved citizen with clean hands
must have free access to invoke the said power. It
protects the citizens but when pervert litigations takes
this route to harass their fellows citizens, efforts are to be
made to scuttle and curb the same.
30. In our considered opinion, a stage has come in this
country where Section 156(3) CrPC applications are to be
supported by an affidavit duly sworn by the applicant who
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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."
17. Thus, in view of the observations of the Hon'ble Apex
Court, there has to be prior applications under Sections 154(1) and
154(3) 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 is 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
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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 Vs. Sate of U.P. [2014] 2 SCC 1 are being filed.
That apart, the learned Magistrate would also be aware of the delay
in lodging of the FIR and by observing the same, the Hon'ble Apex
Court quashed the FIR.
18. In the light of the above said directions of the Hon'ble
Apex Court, it is necessary to see whether the respondent No.2
made a compliance of the same. In application under Section
156(3), the respondent No.2 has mentioned that he has given a
complaint to Wadi Police Station, Deputy Commissioner of Police
Nagpur Zone - 1, and Police Commissioner of Nagpur City on
13.06.2022 but concerned department has not taken action about
the same. However, the complaint nowhere discloses that the
copies of the said complaint are attached with the complaint. In
view of the observation of the Hon'ble Apex Court, in the case of
Priyanka Srivastava and another (referred supra), the
application further not supported by an affidavit. Thus, admittedly,
there is no compliance in view of Section 156(3) of Cr.P.C.
19. Now coming to the merits of the case, there is no dispute
that the property i.e. Khasra No.55 was originally owned by Meghraj
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Hiranwar. After his death, the mutation entry was taken. The 7/12
extract showing the names of legal heirs of Meghraj Hiranwar,
wherein the name of the wife of Rajendra Chaudhary namely Sudha
Rajendra Chaudhary is mentioned. The name of the grandmother
of the respondent No.2 Anandibai was not mentioned. The sale
deed executed in favour of Hasmukh Hirjibhai Rathod and Viren
Jayantilal Thakkar by all the legal heirs to the extent of 2.46 HR out
of 3.28 HR. for the consideration of Rs.1,20,00,000/-. After
execution of the sale deed, the name of the said Hasmukh Hirjibhai
Rathod and Viren Jyantilal Thakkar was entered to the extent of
2.46 HR. Thereafter, the application was filed by the said
purchasers as well as all the legal heirs for measurement of the
lands. The Challan was also obtained by depositing the amount for
measurement on 07.10.2021. Prior to that notice of measurement
was given on 26.10.2021. There is no dispute that the report of the
measurement shows the presence of Rajendra Chaudhary, whereas
his death certificate which is on record shows that on 16.04.2020
itself said Rajendra Chotelal Chaudhary reported to be dead.
20. After going through the entire transactions, there is no
dispute that the dispute between the complainant and other legal
heirs is in the nature of civil dispute. It is well recognized that the
person aggrieved must first exhaust the alternative remedies
available to him in law before approaching the Court of law. In other
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words, he cannot ordinarily approach the Court directly. In the case
at hand, the application filed by the respondent No.2 shows that he
had approached the officer-in-charge of the Police Station, Wadi and
thereafter superior officers and thereafter, filed an application under
Section 156(3) of Cr.P.C., but he has not filed on record the copies
of the said applications, which are addressed to the Police Officers.
In such a situation, the Magistrate in view of the observation of the
Hon'ble Apex Court in Priyanka Srivastava and another's case,
ought not to have ordinarily entertained the application either under
Section 156(3) or under Section 200 of Cr.P.C., so as to direct the
Police for the registration of the FIR, rather, it ought to have
relegated the Complainant to first approach the officer-in-charge of
the Police Station or direct him to file the copies of the same on
record.
21. The second aspect is that the non-applicant No.2 though
filed a Civil Suit bearing No.186/2021 before the learned Civil Judge
Senior Division, making allegations similar to the allegations made
in the impugned FIR, but the said fact is not mentioned in the
complaint or the application.
22. The Hon'ble Apex Court in the case of Vijay Kumar Ghai
& Ors., Vs. State of West Bengal & Ors., (2022) 7 SCC 124,
has held that filing of multiple complaints by same party against
same accused in respect of same incident amounts to an abuse of
wp.422.2023.452.2023.apl.869.2023.870.2023 & 871.2023.Judgments.odt
process. In paragraph Nos.14 and 15, the Hon'ble Apex Court has
observed as under:
"14. Forum shopping has been termed as
disreputable practice by the courts and has no
sanction and paramountey in law. In spite of this
Court condemning the practice of forum shopping,
Respondent 2 filed two complaints i.e. a complaint
under Section 156(3) CrPC before the Tis Hazari
Court, New Delhi on 6-6-2012 and a complaint which
was eventually registered as FIR No. 168 under
Sections 406, 420, 120-B IPC before PS Bowbazar,
Calcutta on 28-3-2013 i.e. one in Delhi and one
complaint in Kolkata. The complaint filed in Kolkata
was a reproduction of the complaint filed in Delhi
except with the change of place of occurrence in
order to create a jurisdiction.
15. A two-Judge Bench of this Court in Krishna Lal
Chawla v. State of U.P19 observed that multiple
complaints by the same party against the same
accused in respect of the same incident is
impermissible. It held that permitting multiple
complaints by the same party in respect of the same
incident, whether it involves a cognizable or private
complaint offence, will lead to the accused being
entangled in numerous criminal proceedings. As such
he would be forced to keep surrendering his liberty
and precious time before the police and the courts,
as and when required in each case."
23. The complainant has alleged that with the help of the
Revenue Officer, the present petitioners have mutated the names
and carried out the measurement and thereby committed an
offence punishable under Sections 420, 467 and 468 of IPC. To
constitute an offence under Section 420 of IPC there has to be (1)
wp.422.2023.452.2023.apl.869.2023.870.2023 & 871.2023.Judgments.odt
Deception of any person, either by making a false or misleading
representation or by other action or by omission; (2) Fraudulently
or dishonestly inducing any person to deliver any property, or (3)
The consent that any person shall retain any property and finally
intentionally inducing that person to do or omit to do anything
which he would not do or omit.
24. In both the aforesaid Sections, mens rea i.e. intention to
defraud or the dishonest intention must be present, and in the case
of cheating it must be there from the very beginning or inception.
25. On the plain reading of the complaint fails to spell out any
of the aforesaid ingredients noted above. The case of cheating
dishonest intention starts with the very inception of the transaction
which appears to be absent in the present case.
26. In the case of Paramjeet Batra Vs. State of
Uttarakhand & Ors., 2013(11) SCC 673, the Hon'ble Apex Court
in paragraph No.12 has observed as under:-
"12. While exercising its jurisdiction under Section 482
of the Code the High Court has to be cautious. This
power is to be used sparingly and only for the purpose of
preventing abuse of the process of any court or
otherwise to secure ends of justice. Whether a complaint
discloses a criminal offence or not depends upon the
nature of facts alleged therein. Whether essential
ingredients of criminal offence are present or not has to
be judged by the High court. A complaint disclosing civil
transactions may also have a criminal texture. But the
High Court must see whether a dispute which is
wp.422.2023.452.2023.apl.869.2023.870.2023 & 871.2023.Judgments.odt
essentially of a civil nature is given a cloak of criminal
offence. In such a situation, if a civil remedy is available
and is, in fact, adopted as has happened in this case, the
High court should not hesitate to quash the criminal
proceedings to prevent abuse of process of the court."
27. In the present case, the learned Magistrate has not kept
himself alive to the aforesaid provision before venturing into
directing registration of the FIR under Section 156(3) of Cr.P.C. The
learned Magistrate has also not considered the observation of the
Hon'ble Apex Court in the case of Priyanka Srivastava and
another (supra). As observed by the Hon'ble Apex Court that the
Parliament in its wisdom has made such a provision to protect the
innocent persons, the legislative mandate, has to be kept in mind.
28. In view of the aforesaid discussion, the writ petitions as
well as the criminal applications deserve to be allowed. Hence, I
proceed to pass following order:
ORDER
(i) The Criminal Writ Petition Nos.422/2023 and
452/2023 and Criminal Application (APL) Nos.
869/ 2023, 870/2023 and 871/2023 are allowed.
(ii) The FIR in connection with Crime No.365/2023
registered with Police Station Wadi, District Nagpur for
the offence punishable under Sections 120B, 420, 465,
467, 471 read with Section 34 of the Indian Penal
Code, is hereby quashed and set aside to the extent of
the present petitioners/applicants namely, Hasmukh
s/o Hirjibhai Rathod, Viren s/o Jayantilal Thakkar,
Ashish Shankarrao Thool, Smt. Ujjwala D/o Ankushrao
Telang Alias Ujjwala Rakesh Landge, Pawankumar s/o
wp.422.2023.452.2023.apl.869.2023.870.2023 & 871.2023.Judgments.odt
Rewaram Kewate and Shri Sunil s/o Ramkrushna Ban
and the order dated 14.06.2023 passed in Misc.
Criminal Application No.3479/2022 by the learned
Judicial Magistrate First Class, Corporation Court No.2,
Nagpur, is hereby quashed and set aside.
The Writ Petitions and the Criminal Applications are
disposed of.
(URMILA JOSHI-PHALKE, J.)
Sarkate.
Signed by: Mr. A.R. Sarkate
Designation: PA To Honourable Judge
Date: 02/04/2026 19:49:23
