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2014 DIGILAW 2052 (BOM)

Subhash Laxmanrao Kadam v. Vasudevan Sankara Nair

2014-09-23

A.M.THIPSAY

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JUDGMENT : A.M. Thipsay, J. 1. Heard Mr. Kocheta, learned Counsel for the petitioner. Heard Mr. Sakhare Dande, learned Counsel for the respondent No. 1. Heard Ms. Malhotra, learned A.P.P. for the State of Maharashtra. Rule. 2. By consent, rule made returnable forthwith. By consent, heard finally forthwith. 3. The petitioner is the accused No. 7 in the complaint case No. 2337 of 2009, pending before the Judicial Magistrate First Class, Pune. The respondent No. 1 herein is the original complainant. The respondent Nos. 2 to 7 herein are the other accused in the said case i.e. accused Nos. 1 to 6. On the complaint of the respondent No. 1 (hereinafter referred to as "the complainant" for the sake of convenience and clarity), the learned Judicial Magistrate First Class issued process against all the accused persons - including the petitioner - in respect of the offences punishable under sections 406 IPC, 420 IPC, 467 IPC, 468 IPC, 469 IPC, 471 IPC read with section 34 of the Indian Penal Code. Being aggrieved by the order issuing process against him the petitioner filed a revision before the Court of Sessions. However, the learned Additional Sessions Judge dismissed the revision application. 4. The petitioner has now approached this Court invoking its constitutional jurisdiction and inherent powers praying that the order issuing process against him as passed by the Magistrate, be quashed and set aside. 5. With the assistance of the learned Counsel, I have gone through the petition and the annexures thereto. I have carefully gone through the complaint and the order passed by the learned Additional Sessions Judge, in revision. 6. In brief, the case of the complainant is that he had entered into an agreement with the accused Nos. 1 to 6 for purchase of a certain land owned by the said accused. That, the complainant also paid an amount of Rs. 70,00,000/- (Rupees Seventy Lac) to the accused Nos. 1 to 6. However, thereafter the accused Nos. 1 to 6 sold the said land to the accused No. 7 i.e. the petitioner. That, all the accused persons acted in furtherance of their common intention and had conspired with one another to commit the alleged offences. 7. In my opinion, there is no case for proceeding against the present petitioner. 1 to 6. However, thereafter the accused Nos. 1 to 6 sold the said land to the accused No. 7 i.e. the petitioner. That, all the accused persons acted in furtherance of their common intention and had conspired with one another to commit the alleged offences. 7. In my opinion, there is no case for proceeding against the present petitioner. If the complaint is read as a whole, the only allegation against the petitioner is that 'he is a subsequent purchaser of the same property which was agreed to be sold by the other accused to the complainant.' That the petitioner would knowingly purchase a land over which the complainant has a claim and thus, create unnecessary difficulties for him, is not easy to accept, but assuming for the sake arguments, that he did so, that, by itself, would not amount to any offence. 8. The learned Counsel for the complainant made a feeble attempt to say that the complainant spells out a case against the petitioner also. He took me through the complaint and contended that as per the version in the complaint, when the original agreement was entered into between the complainant and the accused Nos. 1 to 6, the accused No. 7 i.e. the petitioner was also present. He emphasised that at various places in the complaint, there is a reference to 'all the accused' and that therefore this would include the petitioner also.' 9. I am unable to agree with the learned Counsel. At various places in the complaint, the complainant himself has distinguished the present petitioner from the rest of the accused. For instance, in paragraph 4 of the complaint it is averred as follows:- "During this time, whenever Complainant met accused persons, at that time he found one person i.e. accused No. 7 with them, who used to actively support the accused persons promises and representations." (Emphasis supplied) 10. For instance, in paragraph 4 of the complaint it is averred as follows:- "During this time, whenever Complainant met accused persons, at that time he found one person i.e. accused No. 7 with them, who used to actively support the accused persons promises and representations." (Emphasis supplied) 10. In paragraph No. 6, it is observed "He (complainant) came to know that the accused persons executed "Agreement to Sale" and "Power of Attorney" in favour of their own person i.e. accused No. 7." (Emphasis supplied) Thus, clearly, though the complainant has used a general expression as 'all the accused' at several places in the complaint, he has distinguished between the other accused and the petitioner; and wherever the complainant wanted to make a specific reference to the petitioner, he has made it separately as 'accused No. 7'. 11. The real allegation against the petitioner is found only in paragraph No. 7 of the complaint which reads as under: "The accused No. 7, knowing fully well about the execution of Development Agreement, Possession and Power of Attorney still executed a false document." It is nobody's case that the expression false document' has been used by the complainant in the sense given to the said expression in section 464 of the Indian Penal Code. If it was to be contended so before the Court, such contention would be rejected forthwith as baseless, and therefore, rightly, no such contention is taken. In my opinion, the acts attributed to the petitioner, do not constitute any offence. 12. The learned Counsel for the respondent No. 1 also attempted to suggest that in view of the averments made in the complaint, it should be taken as that the present petitioner had also received the amount out of the amount of Rs. 70 lac paid by him to the other accused.' However, there is no such averment in the complaint. It is, therefore, not possible to read anything in the complaint to the effect that 'part of the amount which the complainant was made to part with, was received by the present petitioner when the said amount was allegedly paid by the complainant to the other accused'. In fact, that, that was not the case of the complainant, was noted by the learned Additional Sessions Judge also. 13. In fact, that, that was not the case of the complainant, was noted by the learned Additional Sessions Judge also. 13. The Additional Sessions Judge, however, did not consider as to whether the acts attributed to the petitioner amounted to any offence. He held that the petitioner was likely to be aware of the fact that the other accused had entered into an agreement with the complainant to sale the land in question to the complainant, but, that, inspite of that, he purchased the land from the other accused. The learned Additional Sessions Judge did not further consider whether this act - believed to have been committed by the petitioner - would amount to any of the alleged offences. 14. The order issuing process against the petitioner as passed by the learned Magistrate, as also the order passed by learned Additional Sessions Judge in Revision, are patently illegal. The same are required to be interfered with in the constitutional jurisdiction of this Court. 15. The petition is allowed. 16. The proceedings of the Criminal Case No. 2337 of 2009 and criminal Revision Application No. 135 of 2010, so far as they relate to the petitioner, are quashed. Rule is made absolute accordingly.