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2013 DIGILAW 2142 (BOM)

Kamalkishor v. State of Maharashtra

2013-10-11

A.I.S.CHEEMA, K.U.CHANDIWAL

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JUDGMENT K.U. CHANDIWAL, J. 1. Heard. Rule was issued on 13.10.2010 with ad-interim relief in terms of prayer clause (D). 2. Heard both the learned counsels. The Applicants question prosecution vide Crime No. 239 of 2008 registered on 15.10.2008, pursuant to orders passed in Misc. Criminal Application No. 27 of 2008 by learned Judicial Magistrate, First Class. 3. The Respondent No.3 Anil has purchased 2 Acres 20 Gunthas of land vide document No. 1043 by a sale deed dated 5.3.1980, with four boundaries as mentioned therein. The Applicants, trustees have also purchased agricultural property from the same land/same survey number, from same vendor on 4.11.1989. The mute question that has been raised giving rise to afore referred prosecution is, showing incorrect boundaries in sale deed dated 14.11.1989 of the Applicants, to the extent of showing the Respondent No.3 Anil towards eastern side. Mr. Deshmukh asserts, the Applicants are mighty institution and since they have properties in the same survey numbers, by virtue of such incorrect boundaries in sale deed dated 14.11.1989, location of Respondent No.3 property is disturbed and virtually changed, which he asserts to be a deception, a forgery, in order to cause financial loss to Respondent No.3, the purchaser. 4. Learned senior counsel Mr. Dhorde took us to the history of controversy between the parties flowing in several litigations. One Tulshiram asserted tenancy rights in respect of entire property, the part purchased by the Applicants as well as Respondent No.3. He filed Regular Civil Suit No. 972 of 1989 in which Applicants as well as Respondent No.3 were party-defendants. Said suit was prosecuted for virtually ten years and ultimately it was dismissed on 10.12.1999. Injunction was flowing in said Regular Civil Suit No. 972 of 1989 against Applicants, which was questioned in Misc. Civil Application No. 105 of 1991 by the Applicants. The fact remains, the Regular Civil Suit No. 972 of 1989 having been dismissed which has not been revived, purpose of appeal referred to above has become inconsequential. 5. The Applicants filed Regular Civil Suit No. 83 of 2002 for declaration of title, injunction against said Tulshiram who asserted to be a tenant. In said proceedings, compromise was recorded on 1.4.2002. 6. Respondent No.3 filed Regular Civil Suit No. 563 of 2004 against Applicants seeking relief of perpetual injunction for same dispute about boundaries. It was not diligently prosecuted and dismissed in default on 18.7.2008. In said proceedings, compromise was recorded on 1.4.2002. 6. Respondent No.3 filed Regular Civil Suit No. 563 of 2004 against Applicants seeking relief of perpetual injunction for same dispute about boundaries. It was not diligently prosecuted and dismissed in default on 18.7.2008. In between, on 31.3.2008, Respondent No.3 filed present proceedings wherein offence was registered on 15.10.2008. These facts are not in controversy. 7. While exercising powers under Section 482 of Code of Criminal Procedure, 1973 (for short Cr. P.C.), High Court is not denuded of its power to browse, examine and comment on otherwise uncontroverted set of documents. This has been even indicated in the Judgment referred by Mr. Deshmukh in the case of R. Kalyani vs. Janak C. Mehta & other, 2008 DGLS (Soft.) 1146, particularly Paragraph 9. Legal position was again explained by Supreme Court in respect of exercise of powers under Section 482 of Cr. P.C. by High Court, in the matter of Anita Malhotra vs. Apparel Export Promotion Council & another, 2011 ALL SCR 2910. Thus it cannot be said that the Respondent No.3 is taken aback or that the documents with tainted characteristics have been produced before this Court. In the situation, we feel it just, convenient, expedient and also legal to refer and verify afore indicated civil disputes between the parties. 8. Our attention was also invited to the slumber demonstrated by the Respondent No.3 as he was consciously aware about the controversy, purchase of the property by the Applicants by virtue of sale deed dated 4.11.1989, referred to in Regular Civil Suit No. 972 of 1989 wherein Respondent No.3 was one of the defendant. He allowed said proceedings to remain in force upto 1999, did not object about the boundaries or file the prosecution. Even he filed Regular Civil Suit No. 563 of 2004 and waited till 3.3.2008 to challenge the status, nature, description and mention of the boundaries in sale deed dated 4.11.1989. This primarily illustrate mind-set of the Respondent No.3 to squeezing the Applicants at a corner by prosecuting them in criminal Court and impair their reputation by such prosecution. Categories in respect of exercise of powers under Section 482 of Cr. This primarily illustrate mind-set of the Respondent No.3 to squeezing the Applicants at a corner by prosecuting them in criminal Court and impair their reputation by such prosecution. Categories in respect of exercise of powers under Section 482 of Cr. P.C. are illustrated in several pronouncements of Apex Court flowing from R.P. Kapur vs. State of Punjab, 2009 ALL SCR (OCC) 80: AIR 1960 SC 866 , State of Haryana vs. Bhajan Lal, 2013 ALL SCR (OCC) 1: 1992 Supp. (1) SCC 335 and even in Joseph Salvaraj vs. State of Gujarat & other, 2011 ALL SCR 1601: (2011) 7 SCC 59 . The High Court on analysis of prima facie material comes to a conclusion that whether a case proceeds between a civil wrong and criminal wrong, the High Court has to exercise its power under Section 482 of Cr. P.C. If the controversy/dispute between the parties constitute only a civil wrong and not a criminal wrong, the Courts would not permit a person to be harassed although no case for taking cognizance of the offence has been made out Devendra vs. State of Uttar Pradesh, (2009) 3 SCC (Cri.) 461. 9. Re-visiting the facts, we find, Applicants are purchasers of the property in 1989. They could not, in any manner, influence their vendor to specify the boundaries in a particular manner to influence, sabotage rights of the Respondent No.3, already purchaser of 2 Acres 20 Gunthas by virtue of his afore referred sale deed. 10. In the situation, registration of Crime No. 239 of 2008, dated 15.10.2008, registered against the Applicants calls for interference and it is quashed and set aside. Rule made absolute. Ordered accordingly.