Bombay High Court
Namdeo Dadarao Takle And Others vs State Of Maharashtra, Through Its ... on 10 January, 2018
Author: V.M. Deshpande
Bench: V.M. Deshpande
Judgment
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) NO.45 OF 2015
1. Namdeo Dadarao Takle,
Aged about 55 years,
Occupation Agriculture.
2. Sau. Panchaphula Ramrao
Chaube, aged about 45
years, Occupation agriculture.
3. Smt. Indubai Ramrao
Takle, aged about 65
years, Occupation agriculture.
4. Dnyaneshwar Ramrao
Takle, aged about 27
years, Occupation agriculture.
5. Parmeshwar Ramrao
Takle, aged about 31
years, Occupation agriculture.
6. Sau. Sanjivani Prakash
Maske, aged about 45
years, occupation labour.
Applicant Nos.1, 3 to 6 are
r/o Shelu, Bz. Taluka Pusad,
District Yavatmal.
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Judgment
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7. Sau. Chitra Ramnath
Kolekar, aged about 48
years, occupation labour, r/o
Allpuri Police Station,
Wadgaon, District Yavatmal.
8. Sau. Vanmala Vilas
Kolekar, aged about 30
years, Occupation Labour, r/o
Shekalgaon, Police Station
Arni, District Yavatmal. ..... Applicants.
:: VERSUS ::
1. State of Maharashtra,
through its Police Station
Officer, Police Station
Pusad (City), Taluka Pusad,
District Yavatmal.
2. Sanjay Laxmanrao
Banchare, aged about 47
years, Occupation agriculture,
r/o Papinwar Layout,
Pusad, Taluka Pusad, District
Yavatmal.
3. Santoshkumar Chandanmalji
Agrawal, aged about 65 years,
Occupation agriculture and business,
R/o Mahavir Ward,
.....3/-
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Judgment
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Pusad, Taluka Pusad,
District Yavatmal. ..... Non-applicants.
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Shri R.S. Kurekar, Counsel for the applicants.
Shri G.M. Kubade, Counsel for non-applicant No.3.
Shri T.A. Mirza, Addl.P.P. for the State.
=======================================================================
CORAM : V.M. DESHPANDE, J.
DATE : JANUARY 10, 2018.
ORAL JUDGMENT
1. Rule. Rule made returnable forthwith. Heard finally by consent of learned counsel for the parties.
2. Learned counsel Shri R.S. Kurekar for the applicants submits that both the Courts below committed wrong in rejecting application Exhibit 78 which was an application for discharge. He submits that the dispute is purely of civil in nature and, therefore, the Courts below ought to have allowed the application. He relies on the decision of the Honourable Apex Court in the case of Sardool Singh and another ..vs.. Smt. Nasib Kaur, reported at 1987 (Supp) SCC 146.
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3. Learned counsel Shri G.M. Kubade appears for non- applicant No.3/original complainant and learned Additional Public Prosecutor Shri T.A. Mirza appears for non-applicant No.1/State. Though non-applicant No.2 is served, he has not put his appearance. Even otherwise, for the decision of the present application, the presence of non-applicant No.2 is not necessary inasmuch as non- applicant No.2 is the person in whose favour the applicants have executed a sale-deed and he is also one of the accused i.e. accused No.9 in criminal proceedings. Further, the application for discharge was not moved by non-applicant No.2 i.e. original accused No.9 but the application for discharge was moved by the applicants who are accused Nos.1 to 8.
4. It is not in dispute that non-applicant No.3 purchased a land in question vide sale-deed dated 16.6.1988 from Namdeo and Ramrao. Namdeo is applicant No.1. Whereas, applicant Nos.2 to 8 are legal representatives of Ramrao who is one of executants of the sale-
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5. As per the prosecution case, in spite of the fact that the land in question was sold in favour of non-applicant No.3 in the year 1988, the same land was sold by the applicants in favour of non- applicant No.2 original accused No.9. After criminal law was set into motion, the investigating agency completed its entire investigation and was of the opinion that the triable case is made out against all accused. Consequently, the final report was filed in the Court of law. The case was registered in the Court of learned Judicial Magistrate First Class at Pusad vide Criminal Case No.398 of 2013.
6. In the said criminal case, application Exhibit 78 for discharge was filed on behalf of the applicants who are original accused No.1 to 8. The main crux of the contention before learned Magistrate was that the land in question was originally owned by Namdeo, Ramrao, and one Panchaphula and secondly sale deed dated 16.6.1988 was nominal document inasmuch as it was a money lending .....6/-
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7. The applicants never disputed execution of the sale-deed in favour of non-applicant No.3. It is not in dispute that in spite of execution of sale-deed in favour of non-applicant No.3, the sale-deed is execution by them in favour of non-applicant No.2 because according to them, the sale-deed executed in favour of non-applicant No.3 was for money lending transaction.
8. It is to be noted that at the initial stage itself, Criminal Application No.773 of 2012 was filed before this Court for quashing the first information report lodged against the applicants. The Division Bench of this Court on 14.2.2013 permitted the applicants to withdraw the said application with a liberty to file appropriate proceedings. It is crystal clear that since this Court was not inclined to grant any relief in favour of the applicants, that necessitated the applicants to pray for withdrawal of the application for quashing of the first information report.
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9. At the stage of framing of the charge, the Court is not required to evaluate the entire evidence at the stage of considering the application for discharge. The Court is not required to record a finding either of acquittal or conviction but the Court is required to see whether there exists material to frame the charge. Here, it would be useful to reproduce paragraph No.26 from the judgment of the Honourable Apex Court in the case of State of Rajasthan ..vs.. Fatehkaran Mehdu, reported at [2017(3)Mh.L.J. (Cri.)(S.C.) 444] :
"The scope of interference and exercise of jurisdiction under section 397 of Criminal Procedure Code has been time and again explained by this Court. Further, the scope of interference under section 397, Criminal Procedure Code at a stage, when charge had been framed, is also well settled. At the stage of framing of a charge, the Court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused .....8/-
::: Uploaded on - 12/01/2018 ::: Downloaded on - 13/01/2018 01:48:12 ::: Judgment apl45.15 7 8 has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with scheme of Code of Criminal Procedure."
10. The case of the applicant is that the sale-deed executed in favour of non-applicant No.3 was outcome of money lending transaction. Surely, the said cannot be considered without there being adequate evidence available on record especially when the applicants themselves admitted the fact about execution of the sale-deed. Further, the copy of civil suit, on which the applicants are relying, is not placed on record, therefore, this Court is at loss to note averments made in the civil suit. Further, learned counsel for the applicants is .....9/-
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11. No perversity is blinking in any of the orders. Consequently, no case is made out. The criminal application is rejected. Rule is discharged.
JUDGE !! BRW !! ...../-
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