Shivcharan Dhandore & Ors. vs State Of Maharashtra & Anr.

(PER : N.S. DESHPANDE, J.)

Heard.

Admit. Heard finally with the consent of learned Counsel for the parties.

The applicants have approached this Hon’ble Court by filing the present application under Section 482 of the Code of Criminal Procedure, 1973, seeking quashing of the First Information Report dated 11.10.2018, registered as Crime No. 575/2018 at Police Station Khamgaon City, District Buldhana, for offences punishable under Sections 420, 463, 467 read with Section 34 of the Indian Penal Code, 1860. The applicants have further prayed for stay to the investigation and filing of charge-sheet.

In accordance with the contents of the First Information Report and the averments made by Non-Applicant No. 2, it is his case that his father, namely Gokulchand Govindlal Sananda, is the lawful and exclusive owner of property bearing Nazul Sheet No. 24-C, Plot No. 2, admeasuring 561.2 sq. meters, together with a three-storeyed superstructure thereon, having purchased the same under a duly registered sale deed dated 22.10.1966. It is further alleged by Non-Applicant No. 2 that Accused Nos. 1, 2 and 5 had earlier instituted Regular Civil Suit No. 89/2007 before the Civil Judge, Junior Division, Khamgaon, against his father, which is presently sub judice. According to Non-Applicant No. 2, having realized that no relief could be secured in the said civil proceedings, accused Nos. 1, 2 and 5 purportedly entered into a conspiracy with Accused No. 6 – the Sub-Registrar – and in collusion with Accused Nos. 3 namely Shashibai Shivcharan Dhandhore (Applicant No. 03), Accused Nos. 4 Sandeep Shivcharan Dhandhore (Applicant No.2) and Accused Nos. 7 namely Shivcharan Kanhaiyyalal Dhandhore (Applicant No. 1), sought to unlawfully dispossess his father from the said premises. It is alleged that although none of these accused persons had any semblance of ownership over the property, Applicant No. 1, acting on behalf of Applicant Nos. 2 and 3, executed purported sale deeds dated 18.09.2018, which were then registered by Accused No. 6 as Document Nos. 3003/2018 and 3004/2018. Further, Non-Applicant No. 2 asserts that prior to such registration, his father had lodged a written objection with Accused No. 6, enclosing all supporting documents to demonstrate that Accused Nos. 1, 2 and 5 had no title whatsoever. Notwithstanding such prior notice and despite full knowledge of the true facts, Accused No. 6 allegedly proceeded to register the said sale deeds intentionally, deliberately and in conspiracy with the other accused persons, purportedly for monetary gain. Aggrieved by this non-applicant no. 2 lodged the present First Information Report.

We have heard Shri Anil Mardikar, Senior Advocate for applicants, Mrs. Shruti Kolhe, APP for non-applicant No. 1/State And Mr. Atharva Manohar, Advocate for non-applicant No.2.

Learned Senior Advocate Shri Anil Mardikar appearing for the applicants submits that even if the allegations in the First Information Report are taken in their entirety, no offence whatsoever is made out against the present applicants, who are bona fide purchasers for valuable consideration of ₹23,75,000/- by registered sale deeds dated 18.09.2018 (Document Nos. 3003/2018 and 3004/2018). He submits that the applicants have purchased the suit property Nazul Sheet No. 24-C, Plot No. 2, area 561.2 sq. mtrs. with three-storeyed superstructure from accused Nos. 1, 2 and 5 namely Seema, Rutuja and Dhananjay Deshmukh, who are the absolute owners thereof as a legal heirs of Ramrao Deshmukh (original owner) whose name is duly reflected in the revenue records and property card since 1960.

Learned Senior Advocate further points out that two civil suits are already pending before the Civil Judge Senior Division, Khamgaon in Regular Civil Suit No. 89/2007 filed by accused Nos. 1, 2 and others against non-applicant No. 2’s father for eviction and possession, and Regular Civil Suit No. 133/2018 filed by non-applicant No. 2’s father against the vendors and others for declaration, permanent injunction and specific performance of an alleged lease agreement wherein temporary injunction was granted on 25.02.2019 in favour of non-applicant No. 2’s father. Thus, the entire dispute is purely civil in nature and has been cleverly converted into a criminal case only to harass the applicants who are lawful and bona fide purchasers.

Per contra, Mrs. Shruti Kolhe, Learned Additional Public Prosecutor for non-applicant No. 1/State, vehemently opposes the application and submits that during the course of investigation it has been revealed that the suit plot was initially granted on permanent lease on 09.10.1919 by the then Raobahadur Keshaorao Janrao Deshmukh in favour of one Devidas Martand Fadke for the purpose of construction of a house. The learned Civil Judge, Khamgaon has observed that the intention behind the said lease was to create a permanent leasehold right. Thereafter, the lease rights passed through a chain of transactions — from Devidas Fadke to Vinayak Thosar, from Vinayak Thosar (by way of mortgage and subsequent sale) to Narhari Kale, from Narhari Kale by registered gift deed dated 11.09.1959 to Janardhan Narhari Kale and Mukund Narhari Kale, and finally from Mukund Narhari Kale and Janardhan Narhari Kale to non-applicant No. 2’s father Gokulchand Govindlal Sananda by registered sale deed dated 22.10.1966.

Learned Additional Public Prosecutor further submits that the sale deed executed by accused Nos. 1, 2 and 5 (Seema, applicants on 18.09.2018 is fraudulent because the vendors had no title to convey inasmuch as the leasehold rights had already been validly transferred to non-applicant No. 2’s father in 1966. She, therefore, contends that the applicants cannot be treated as bona fide purchasers and that the offences of cheating, forgery and criminal conspiracy are prima facie made out from the averments in the First Information Report as well as from the material collected during investigation. 10. Learned counsel for non-applicant No. 2 supports the submissions of the learned Additional Public Prosecutor and further contends that the present applicants had full knowledge of the registered sale deed dated 22.10.1966 executed in favour of non-applicant No. 2’s father, which fact is admitted by the applicants themselves inasmuch as a copy of the said 1966 sale deed has been annexed by the applicants to the present application. Further he submits that on 19.02.2018 applicant No. 1 himself caused a public notice to be published in the Marathi daily “Lokopachar” expressing his intention to purchase the suit property from accused Nos. 1, 2 and 5 and inviting objections. In response thereto, non-applicant No. 2’s father published a reply on 22.02.2018 in the local daily “Khabre Shamtak” (Annexure A-2) clearly stating that he is the owner of the three-storeyed building, holds the plot on leasehold rights, that Regular Civil Suit No. 89/2007 and Regular Civil Suit No. 133/2018 are pending, and that accused Nos. 1, 2 and 5 have no right, title or interest whatsoever in the property.

Learned Senior Advocate in his rejoinder submits that the entire edifice of non-applicant No. 2’s case collapses on a bare reading of the very sale deed dated 22.10.1966 on which non-applicant No. 2 places heavy reliance. The said deed itself categorically records that the vendors Narhari Kale and his sons were only leaseholders under a lease granted on 09.10.1919 for a fixed term expiring on 01.10.2015 and that they had no authority to transfer ownership of the land. The vendors, being mere tenants, could not have conveyed a better title than what they themselves possessed. Thus, non-applicant No. 2’s father acquired, at best, only the leasehold rights that automatically came to an end on 01.10.2015. After the expiry of the lease period, the possession of non-applicant No. 2’s father became wholly unauthorized and that of a trespasser.

Learned Senior Advocate further submits that the public notice dated 19.02.2018 published by applicant No. 1 and the reply dated 22.02.2018 published by non-applicant No. 2’s father, as also the objections sent to the Sub-Registrar on 26.02.2018 and 18.09.2018, lose all significance once it is seen that non-applicant No. 2’s father had no surviving right in the property after 01.10.2015. Mere issuance of a notice by a person having no legal right and non-reply thereto cannot convert a perfectly lawful purchase from the reversioners who stepped in after the expiry of the lease into a criminal offence.

In view of above facts and the record of the matter, it can be seen that the primary allegation against the present applicants is that they have purchased the property in question from such persons who had no valid title to the property which was sold. We are at pains to understand how such an act would constitute an offence punishable under Sections 420, 463 and 467 of the I.P.C. Assuming for a moment that the property was sold by persons who are having no title, admittedly, as can be seen from the sale deeds in question, the applicants before this Court are the purchasers of the said property. Therefore, interpreting the ingredients of the offence liberally, the applicants cannot be said to be associated with the offence of cheating. It is a settled principle of law that for attracting the offence of Section 420 of the IPC what is important is intention to deceive right from the inception. In the present case, there is no such averment nor can it be inferred from the meaningful reading of the First Information Report and supporting the documents that there was intention nurtured by the applicants from the inception of the transaction itself. Therefore, in our view, offence under Section 420 of the IPC is not made out.

As far as offence under Section 463 of the I.P.C. is concerned, it speaks about forgery and contemplates making of any false document with intent to cause damage or injury to the public or to any person. It is not even the non-applicant No.2’s case that any document is forged as contemplated in Section 463 of the IPC which is punishable under Sections 465 and 467 of the I.P.C.

Thus, we are of the view that dispute is essentially pertaining to the title of property and therefore, it is of civil nature. Now a days there is a growing tendency of converting civil matters into criminal one and the litigants resort to filing of First Information Report without there being any offence or mens rea in that regard. We are supported by our view in the recent judgment of the Hon’ble Supreme Court in the case of Inder Chand Bagri Vs. Jagadish Prasad Bagri and another in Criminal Appeal No.5000/2025 wherein the Hon’ble Apex Court after stating the entire law regarding Section 420 of IPC observed that for establishing offence of cheating the complainant is required to show that applicant had fraudulent or dishonest intention at the time of making a promise or representation of not fulfilling the said agreement. Thus, there is no allegation in the complaint indicating either expressly or impliedly any intentional deception or fraudulent/dishonest intention on the part of the applicant right from the time of initiation of transaction. Further more as observed by the Hon’ble Apex Court in the same judgment referring to its judgment in Inder Mohan Goswami Vs. State of Uttaranchal, reported in (2007) 12 SCC 1 that it is the duty of the Court that criminal prosecution is not used as an instrument or for seeking private vendetta or with an ulterior motive to pressurise the accused.

In that view of the matter, we are of the opinion that case would squarely fall within the parameters in laid down of the case of State of Haryana and others vs. Bhajanlal and others reported in 1992 Supp(1) Supreme Court Cases 335 under Section 482 of the Code of Criminal Procedure and Article 226 of the Constitution and laid down the guidelines wherein such powers should be exercised which are as follows:-

Hence, we proceed to pass the following order:-

The criminal application stands disposed of in the above said terms.

Pending application, if any, also stands disposed of.