Bombay High Court
Abhiman S/O Sukhdeo Bhosale vs Dilip S/O Manohar Takik And Others on 8 June, 2017
Author: K.K. Sonawane
Bench: S.S. Shinde, K.K. Sonawane
1 Cri.A-6486-15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 6486 OF 2015
Abhiman S/o Sukheo Bhosale
Age: 30 years, Occu: Agri. & Business,
R/o: Neruda Tq. Patoda, District - Beed. ...APPLICANT
versus
1. Dilip S/o Manohar Takik
Age : 29 Occu. Agri./Service
R/o : Umrad Jahangir, Tq. & Dist. Beed
2. Sachin Radhakisan Shelke
Age : Major, Occu. & R/o As above,
3. Sandip S/o Eknath Chavan
Age : Major, Occu. Agri.,
R/o : Shahunagar,
Tq. & Dist. Beed.
4. Sopan S/o Balbhim Shejwal
Age : Major, Occu. & R/o As above
5. Ratipalsingh S/o Keshpalsingh Rajput
Age : 61 yrs, Occu. Pensioner
R/o : Bundelpura, Beed
Tq. & Dist. Beed
6. Bappasaheb Kisan Narwade
Age : 55 yrs. Occu. Business,
R/o Pimparghavan road, Beed
Tq. & Dist. Beed.
7. State of Maharashtra ...RESPONDENTS
.....
Mr. S.J. Salunke, Advocate for applicant
Mr. A.G. Chaudhari, Advocate for Respondent No. 1 to 3 & 6
Mr. S.K. Naikwade, Advocate for Respondent No. 5
Mr. S.G. Karlekar, APP for Respondent No.7
.....
::: Uploaded on - 08/06/2017 ::: Downloaded on - 10/06/2017 00:57:12 :::
2 Cri.A-6486-15
CORAM : S.S. SHINDE AND
K.K. SONAWANE, JJ.
RESERVED ON : 12th APRIL, 2017.
PRONOUNCED ON: 8th JUNE, 2017.
ORAL JUDGMENT :- ( Per : K.K. Sonawane, J.)
1. Rule. Rule made returnable forthwith. Heard finally, with consent of the parties.
2. This is an application under section 378(4) of the Criminal Procedure Code (for short "Cr.P.C.) moved by the applicant- complainant for grant of special leave to present appeal from the order of acquittal of respondents No. 1 to 6 in criminal case initiated upon the complaint bearing Regular Criminal Case No. 390 of 2012 passed by learned Judicial Magistrate, First Class, (Court No. 2), Beed dated 31-10-2015 to redress his grievance.
3. The genesis of the petition culled-out in brief is that, the complainant Shri Abhiman Sukhdeo Bhosale was in need of vacant plot for construction of residential house. Accordingly, in the year 2011, respondent/accused Shri Dilip Manohar Takik approached to the complainant through mediator respondent - accused No. 6 and gave offer to purchase his plot No. 24 located in Survey No. 29/A of village Wasanwadi, Ta. Beed. The consideration amount was fixed at Rs.12,07,800/-. The complainant paid earnest amount of Rs.4,00,000/- and got executed notarized document of agreement ::: Uploaded on - 08/06/2017 ::: Downloaded on - 10/06/2017 00:57:12 ::: 3 Cri.A-6486-15 to sell. It was also agreed that rest of the consideration amount would be paid on 28-01-2011. Respondents No. 2 and 3 were the witnesses of said agreement to sell. It has been alleged that at the time of execution of document of sale-deed it was transpired that respondent No. 5- Ratipalsingh Keshapalsingh Rajput executed a document of sale- deed, as owner of the plot. The complainant made enquiry about the same. Respondents/accused No. 1 to 3 explained that they are the real owners of the property, but it was shown purchased in the name of respondent No. 5 Ratipalsingh. The documents of 7/12 extract, mutation entry, N.A. order etc. were appended with the document of sale-deed. Thereafter, the complainant paid entire consideration amount of Rs. 8,07,800/- to the respondents/ accused Nos. 1 to 6 in presence of witnesses. There was an error in the recitals of sale-deed in regard to Survey number of the property under sale. Therefore, rectification deed was executed in favour of complainant. Accordingly, name of the complainant was mutated in the revenue as well as Gram Panchayat record being owner of the property. The complainant was also paying taxes of the plot to Gram Panchayat. However, on 18-06- 2012 complainant visited to the suit site with intention to make construction of residential house on the plot. But, it was noticed that there was already house constructed on the plot belonging to one Mr. Radhakishan Shankar Londhe. On enquiry, it was learnt that Mr. Radhakishan Londhe purchased the plot from original owner Smt. Lata Navnath Naikwade, which came to be transferred in favour of ::: Uploaded on - 08/06/2017 ::: Downloaded on - 10/06/2017 00:57:12 ::: 4 Cri.A-6486-15 Mr. Radhakisan. The complainant arrived at conclusion the that respondents/accused played mischief and deceived him for wrongful gain. In the result, complainant approached to the Police of Shivajinagar Police Station, Beed to file the first information report (for short "FIR"). But, it was advised to him by the concerned Police to approach the Court of law. Therefore, the complainant rushed to Court of learned Judicial Magistrate First Class, Beed and filed the private complaint for the allegations of cheating and forgery against respondents - accused.
4. The learned Magistrate verified the allegations and after examination of complainant and his witnesses on oath, issued the process against the respondents/accused. In order to establish guilt of the respondents/accused before framing of charge, complainant examined himself on oath at Exhibit-57. He has also adduced evidence of CW-2 Gamesh Baburap Ranjwane at Exhibit-62, CW-3 Narendra Prbhakarrao Holkar at Exhibit-67 and CW-4 Maruti Govindrao Waghamre at Exhibit-70. The learned Magistrate appreciated the versions of complainant and his witnesses and proceeded to frame the charge against respondents/accused under sections 420, 419, 465, 467, 468 and 471 read with section 34 of the IPC. Respondents/accused denied the charges and pleaded not guilty. They claimed for trial. The accused proceeded to cross- examination of complainant and his witnesses. Statements of respondents/accused under section 313 of the Cr.P.C. came to be ::: Uploaded on - 08/06/2017 ::: Downloaded on - 10/06/2017 00:57:12 ::: 5 Cri.A-6486-15 recorded. Respondents/accused in defence adduced the evidence of witness Madhusudan Shamrao Bahegaonkar to prove their innocence. The learned Magistrate appreciated oral and documentary evidence on record and arrived at the conclusion that complainant failed to prove the charges against respondents/ accused beyond all reasonable doubt. In the result, the learned Magistrate proceeded to acquit respondents/accused No. 1 to 6 for the charges pitted against them and passed the impugned order, the validity, legality and propriety of which is to be agitated in the appeal preferred under section 378 of Cr.P.C. Therefore, applicant/complainant preferred present application under Section 378(4) of Cr.P.C. seeking special leave to present the appeal from the impugned order of acquittal of respondent No. 1 to 6 in the criminal proceedings bearing Regular Criminal Case No. 390 of 2012 initiated upon the complaint of applicant/complainant.
5. The learned counsel for the applicant vehemently submitted that impugned findings expressed by learned trial Court is erroneous, illegal and not within purview of law. The learned Magistrate failed to appreciate the circumstances on record in its proper perspective. The learned trial Court ought to have considered that there was transaction in regard to sale of the contentious plot and respondents/accused played mischief for wrongful gain and forged the document of sale-deed executed in favour of complainant. The document produced on record itself proved ::: Uploaded on - 08/06/2017 ::: Downloaded on - 10/06/2017 00:57:12 ::: 6 Cri.A-6486-15 circumstances of cheating and forgery. The applicant/ complainant has good case and hope of success in the appeal. The person, namely, Radhakishan Londhe was the owner of plot and respondents / accused committed mischief and alienated the property of Radhakishan Londhe in favour of complainant for wrongful gain. The documents produced on record are sufficient to prove the fraud on the part of respondents/accused. Hence, he requested to grant special leave to present the appeal against impugned judgment and order of acquittal of respondents/ accused by learned Magistrate in this case.
6. The learned counsel for respondents/accused raised objection to the contentions propounded on behalf of applicant/complainant and submit that findings expressed by learned trial Court are just, proper and reasonable one. The dispute pertains to the contentious plot and was based on documents. The matter-in-issue is required to be determined by the Civil Court. It cannot be said that respondents/accused cheated and deceived the complainant by forgery. Hence, they prayed for dismissal of application.
7. We have considered the arguments canvased on behalf of both sides. We have also perused the documents produced on record including findings expressed by the learned trial Court. It is worth to mention that complainant preferred criminal proceeding against respondents / accused for the allegation of cheating and forgery. It has been alleged that respondent -accused No. 5 - ::: Uploaded on - 08/06/2017 ::: Downloaded on - 10/06/2017 00:57:12 :::
7 Cri.A-6486-15 Ratipalsingh was not the owner of plot No. 24 located in Survey No. 29/A/1 and despite the same he ventured to alienate the same in favour of complainant for wrongful gain and thereby committed an offence of cheating and forgery. It would be reiterated that entire edifice of the complainant's case is rest on the revenue documents as well as documents of sale pertains to plot No. 24 located in Survey No. 29/A/1. It has been alleged that property belonging to Arjun Gore came to be sold in favour of complainant by executing forged document. However, scrutiny of the findings expressed by learned trial Court reflect that the conclusion drawn by the learned Magistrate for acquittal of respondents / accused appears just, proper and reasonable one.
8. It would fallacious to appreciate that respondents/accused cheated the complainant by selling the land of Mr. Radhakishan Londhe by pretending themselves to be owner of the property. The revenue documents reflect that accused No. 5 - Ratipalsingh was the owner of property bearing plot No. 24 in Survey No. 29/A/1 located in village Vasanwadi Beed. Admittedly, the dispute pertains to exact location of the plot No. 24 and its four boundaries. Prima facie it appears that there was no criminal intention of respondents/accused to deceive the complainant/ applicant. In such circumstances, we do not find any propriety to grant special leave to the applicant/complainant to file appeal against impugned order of acquittal of respondents/ accused in this case.
::: Uploaded on - 08/06/2017 ::: Downloaded on - 10/06/2017 00:57:12 :::
8 Cri.A-6486-15
10. In view of attending circumstances on record as discussed above, in case, the appeal is allowed to be filed on behalf of the applicant, it would be futile efforts and dissipate precious time of the Court. In our opinion, the chances of an ultimate conviction are bleak. Therefore, no useful purpose is likely to be served by allowing the applicant to proceed further for appeal against the impugned verdict of acquittal of the learned trial Court. Therefore, we are not inclined to grant special leave as envisaged under section 378(4) of the Cr.P.C. Hence, application being devoid of merits deserves to be dismissed. Accordingly, application stands dismissed. Rule stands discharged. No order as to costs.
Sd/- Sd/-
[ K. K. SONAWANE, J. [ S.S. SHINDE, J.]
MTK
::: Uploaded on - 08/06/2017 ::: Downloaded on - 10/06/2017 00:57:12 :::