2014 ALL MR (Cri) 1344
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
B.R. GAVAI AND Z. A. HAQ, JJ.
Mohammed Zafar S/O. Mohammed Qumar Vs. State Of Maharashtra & Anr.
Criminal Application (APL) No.406 of 2013
17th September, 2013
Petitioner Counsel: Mr. R.R. VYAS
Respondent Counsel: Mr. R.S. NAYAK, Mr. C.N. DESHPANDE
Criminal P.C. (1973), S.482 - Quashing of FIR - FIR lodged against applicant alleging that he had forcibly taken possession of property occupied by complainant - Dispute between parties is of civil nature and not of criminal nature - When applicant had forcibly taken possession of property and since when complainant was in possession of property, not stated in reply - Submission of complainant was vague - Status of eye witnesses as to how they were acquainted with subject matter, not stated - No prima facie case against applicant as it did not make out any case of registration of F.I.R. against applicant - Hence, F.I.R. against applicant is liable to be quashed. (Para 6)
Z. A. HAQ, J. :- Heard Shri R.R. Vyas, the learned Advocate for the applicant, Shri R.S. Nayak, the learned Additional Public Prosecutor for the State/non-applicant no.1 and Shri C.N. Deshpande, the learned Advocate for the non-applicant no.2
3. This is an application under Section 482 of the Criminal Procedure Code for quashing of the First Information Report No.14/2013 registered by the non-applicant no.1 - police station Hudkeshwar against the applicant for the offences punishable under Sections 420, 468, 471, 447, 511 read with Section 34 of the Indian Penal Code.
4. According to the applicant, he and Tarachand Shamrao Ninawe entered into an agreement on 23rd April, 2008 which is hand written on a stamp paper of Rs.50/-. As per the agreement, Shri Tarachand Ninawe agreed to sell plot No.133, situated in Radhanand Gruha Nirman Society, Manewada for Rs.5,00,000/- to the applicant. According to the applicant, an amount of Rs.1,00,000/- was paid by cheque bearing No.676664 drawn on the I.C.I.C.I. Bank, Nagpur to Tarachand Ninawe. According to the applicant, the sale deed was to be executed during the period from 23rd April, 2008 to 23rd January, 2009. According to the applicant, Shri Tarachand Ninawe had executed registered power of attorney dated 25th April, 2008 in favour of the applicant. According to the applicant, original sale deed dated 10th June, 1991 was given to the applicant which showed that Shri Tarachand Ninawe had purchased the said property from Bebitai wd/o Dadasaheb Shirke in the year 1991, the copy of which is annexed to the application. The applicant has also filed copy of the tax receipt dated 30th March, 2007 which shows that Shri Tarachand Ninawe has paid the corporation taxes for the period from 1st April, 2006 till 31st March, 2007. According to the applicant, Shri Tarachand Ninawe had shown the no objection certificate dated 12th September, 1998 issued by the Secretary of Radhanand Nagar Kruti Samiti in his favour for construction on the said plot and the copy of which is filed along with application. According to the applicant, the plot was shown as reserved for park and therefore, the sale deed could not be executed. Therefore, Tarachand Ninawe had requested the applicant for further payment of Rs.1,00,000/- and it was paid to him by cheque dated 17th November, 2012. According to the applicant, he has also paid further amount of Rs.1,00,000/- in 2009 towards part of consideration by way of cheque and an amount of Rs.50,000/- in cash in the year 2011. According to the applicant, the non-applicant no.2 tried to take forcible possession of the plot and it was informed by the applicant to Shri Tarachand Ninawe as the sale deed could not be executed. Shri Tarachand Ninawe lodged a written complaint with non-applicant no.1 on 26th October, 2012 against the non-applicant no.2. The applicant has stated that in order to pressurize the applicant, the non-applicant no.2 lodged F.I.R. alleging that plot No.133 and plot no.134 belonged initially to Dadasaheb Shirke, that Dadasaheb Shirke died on 23rd July, 1989 and he had mutated name of his sister's daughter as the legal heir in membership register of the Society. It was alleged that as Meena Babanrao Dabhade, sister of Dadasaheb Shirke was in need of money for marriage of her daughter she contacted the non-applicant no.2 and the non-applicant no.2 had entered into an agreement for an amount of Rs.1,50,000/- and on 22nd October, 2001 sale deed was executed in his favour. It is alleged that when he went to the property on 25th October, 2012 he was told that sale deed in respect of plot no.133 was executed in favour of Tarachand by Smt. Bebitai Shirke and thereafter the power of attorney was executed in favour of the applicant. It is alleged that sale deed executed in favour of Tarachand Ninawe by Smt. Bebitai Shirke was not legal and Shri Tarachand Ninawe and the applicant had got the sale deed executed by showing Smt. Bebitai Shirke as the wife of Dadasaheb Shirke. According to the applicant, the F.I.R. lodged by the non-applicant no.2 is false and is an abuse of process of law. According to the applicant, the F.I.R. does not make out any offence punishable under Sections 420, 468, 471, 447, 511 read with Section 34 of the Indian Penal Code and therefore, there is no prima facie case against the applicant and the F.I.R. has to be quashed.
5. Shri Deshpande, the learned counsel for the non-applicant no.2 and Shri Nayak, the learned Additional Public Prosecutor for State/non-applicant no.1, supported the registration of the F.I.R. against the applicant and prayed that this is not a fit case for exercising the jurisdiction under Section 482 of the Criminal Procedure Code for quashing the F.I.R. The non-applicant no.1 has filed reply and stated that after the registration of the crime, during investigation, the police tried to search Smt. Bebitai Tarachand Shirke but in spite of their best efforts her address or location cannot be traced out. According to the non-applicant no.1 statements of Yadaorao Raghoji Ingale and Amit Sheshrao Rathod have been recorded who have stated that applicant has forcibly taken possession of the property occupied by the complainant. It is stated that these two witnesses are eye witnesses.
6. We have considered the submissions of the respective parties and the documents placed on record. In our view this is a purely civil dispute and by any means it cannot be a case of criminal prosecution of the applicant. The complaint made by the non-applicant no.2 does not even prima facie show that the necessary ingredients of offence punishable under Sections 420, 468, 471, 447, 511 read with Section 34 of the Indian Penal Code are made out so as to register the F.I.R. against the applicant. In paragraph 5 of the reply of non-applicant no.1 it is stated that the statements of Yadaorao Raghoji Ingale and Shri Amit Sheshrao Rathod are recorded and these two persons are the eye witnesses who have stated that the applicant has forcibly taken possession of the property occupied by the complainant. The submission made by the non-applicant no.1 is vague and does not make out any case of registration of the F.I.R. against the applicant. The status of the two witnesses Yadaorao Raghoji Ingale and Amit Sheshrao Rathod as to how they are acquainted with the subject matter is not stated. It is not stated in the reply of non-applicant no.1 as to when the applicant has forcibly taken possession of the property and since when the complainant was in possession of the property. There is a registered sale deed of 1991 in favour Shri Tarachand Ninawe. Shri Tarachand Ninawe has paid the corporation taxes and tax receipt dated 30th march, 2007 is filed along with the application. There is no counter to this factual aspects. Therefore, we conclude that the registration of the F.I.R. against the applicant is illegal and is an abuse of process of law. The F.I.R. against the applicant has to be quashed.
In the facts and circumstances of the case, the parties to bear their own costs.