(1) CRI. WP. 874.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 874 OF 2009 Nilkanth S/o Bhagwantrao Munjane, Age : 48 years, Occu.: Advocate, R/o Majge Nagar, Latur, Tq. and Dist. Latur .. Petitioner VERSUS 1] The State of Maharashtra Through Secretary, Home Department, Mantralaya, Mumbai-32 2] The Superintendent of Police, Latur, Dist. Latur 3] The Police Inspector, Gandhi Chowk, Police Station, Latur, Tq. and Dist. Latur (Copy of the respondent no.1 to 3 be served on Public Prosecutor High Court of Judicature of Bombay, Bench at Aurangabad) 4] Sambappa S/o Trayambakappa Girwalkar, Age : 77 years, Occu.: Advocate, R/o Mitra Nagar, Latur, Tq. and Dist. Latur .. Respondents Ms. M.D. Thube Mhase, Advocate for the Petitioner Mr. V.D. Rakh, APP. for the Respondent nos.1 to 3-State Mr. S.V. Natu, Advocate for the respondent no.4 ... CORAM : A.V. NIRGUDE, J. DATED : 25TH MARCH, 2010 ORAL JUDGMENT:- 1] This Writ Petition is filed for seeking (2) CRI. WP. 874.2009 quashing of the FIR filed by the respondent no.2 on 23.8.2009 in Gandhi Chowk Police Station, alleging offences punishable under sections 385, 420, 467, 468, 471, 504, 506 r/w. 34 of the Indian Penal Code. 2] The facts leading to this complaint can be shortly stated as under:- . The respondent no.2-complainant is a practicing lawyer at Latur. The petitioner’s co- accused one Gani was the respondent no.2’s client sometime since prior to 1978. Gani sold certain plot of land to the respondent no.2 in March, 1978. Soon thereafter, the respondent no.2 filed suit R.C.S. no. 80 of 1978 against Gani and his brother, alleging that they were trying to obstruct his possession. Soon thereafter, Gani and his brother filed a consent written statement and on 14.3.1978, by consent of the parties, the civil court passed a decree for perpetual injunction. In view of this, Gani apparently admitted the ownership and possession of the respondent no.2 in respect of the plot of land. Till 1993, there was apparently no dispute between the parties but in 1993, the respondent no.2 once again filed suit R.C.S. no. 578 of 1993 for perpetual injunction against Gani. Again this time, the respondent no.2 alleged that Gani tried to interfere in his possession etc. In the plaint of that suit the respondent no.2 made reference to the earlier suit and the decree passed with consent of Gani etc. (3) CRI. WP. 874.2009 This time, Gani had engaged the petitioner who is also a practicing lawyer of Latur. Gani opposed the suit by not only through a written statement but he even made an Application in suit no. 80 of 1978 seeking setting aside of the consent decree alleging that he had not filed the consent written statement nor did he give his consent for the decree. This Misc. Civil Application filed in R.C.S. no. 80 of 1978 is pending till date since 1993. The suit R.C.S. no. 578 of 1993 is also pending till date. In June, 2009, it seems, Gani showed his interest in prosecuting the Miscellaneous Application filed in Suit no. 80 of 1978. He lodged with the Court, his affidavit in support of his Application saying that this would be his examination-in-chief and the Court adjourned the case for recording cross-examination. Obviously, it was for the respondent no.2 to cross- examine Gani in that case but on the very day when the case was fixed for recording cross-examination, the respondent no.2 filed a memorandum to the District Collector in which he alleged that Gani and the present petitioner formed cartel to harass the various purchasers of lands sold by Gani and his brothers long back in 1978. He alleged that they are trying to extort monies from such purchasers because the value of the land in these areas had increased many folds. The respondent no.2 urged the Collector to look into the matter, else he would sit for hunger strike from 15.7.2009. I am told that the hunger (4) CRI. WP. 874.2009 strike did not begin because appropriate promises were made by the Collector to the respondent no.2. Thereafter, the respondent no.2 filed the present complaint on 28.8.2009, in which he for the first time alleged that about 1-1/2 months prior to the date of the complaint, the petitioner and Gani in presence of two witnesses at broad day light and at a public place threatened him that if he did not pay Rs.15 Lakhs to them, they would not withdraw the cases Gani had filed against him and they would also cut off his limbs and kill him. The respondent no.2 also alleged that after 1978, the petitioner and Gani made a false document showing that the land which Gani had sold to him was further agreed to be sold to third party. He further alleged that such false document was produced before the Court in a Civil Suit and Gani and present petitioner were trying to mislead and cheat the Court. The respondent no.2 further allege that in similar fashion, number of purchasers of land were harassed by filing false complaints based on false documents etc. On the basis of these complaints the Police registered offence under the provisions of the Indian Penal Code which are mentioned above. 3] When the matter was called out for hearing, the parties informed me that the Police not only completed the investigation in the case but have also filed chargesheet. With the help of the learned (5) CRI. WP. 874.2009 Advocates appearing for the parties, I went through the Police papers annexed, chargesheet and I found that at least two witnesses vouched for the incident as the incident that occurred about 1-1/2 months prior to the date of incident and which is described above. The question now is whether this is a fit case to exercise powers under section 482 of the Code of Criminal Procedure to quash the criminal proceedings initiated through the FIR. In my view, it is a fit case to quash the criminal case so far as it relates to offences punishable under section 385, 420, 467, 468, 471 and 504 r/w. 34 of the Indian Penal Code. The prosecution case places reliance only on the incident which is described above to allege extortion and criminal intimidation and intentional insult with intent to provoke breach of peace. Assuming that the incident that is described in the FIR and the statements of the witnesses is truthful, yet it does not constitute offence under section 383 which is defined as under:- "383. Extortion -- Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits "extortion". . The facts mentioned above, do not show that the petitioner and his co-accused had put the complainant in fear of injury, as contemplated under section 383 of the Indian Penal Code because there was no proximity of fear of injury and the person who was (6) CRI. WP. 874.2009 intimidated. The offence under section 385 of the Indian Penal Code, thus is apparently not made out. This also can be said about the offence under section 504 of the Indian Penal Code. The respondent- complainant did not indicate that there was any provocation because due to the threats given by the petitioner and his co-accused. In fact, the witnesses stated that they tried to pacify the petitioner and his co-accused and so, it does not appear that the threats provoked the respondent no.2- complainant or his companions. In view of this, the offence under section 504 of the Indian Penal Code is not made out against the petitioner and his co- accused. As regards cheating and forgery, it is apparent that the respondent no.2 and his witnesses are encore alleging that after Gani sold them lands he approached the Court with a false plea that he had not sold the lands etc. to them. While taking such plea, they stated Gani used certain documents, which they stated were forged and such cases filed by Gani are admittedly pending before the Civil Court and the respondent no.2 is defending his case and the witnesses are also defending their cases. If at all ultimately, the Civil Court comes to a conclusion that Gani had utilised the forged document in support of his case, the Court alone would be able to lodge a complaint against Gani and other perpetrator in view of section 195 of the Code of Criminal Procedure. At this stage, therefore respondent no.2-complainant or (7) CRI. WP. 874.2009 others can-not lodge criminal complaint about the alleged acts of Abdul Gani and his co-accused including the present petitioner. 4] The only offence that can be prima facie seen against the petitioner and his co-accused is the offence of criminal intimidation which is punishable under section 506 of the Indian Penal Code. The definition of criminal intimidation is given in section 503 of the Indian Penal Code, which reads as under:- "503. Criminal intimidation- Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation." 5] At this stage, one has to see only as to whether the ingredients of the offence are seen to be present in the allegation? At this stage the Court can-not examine the truthfulness or otherwise of the allegation and so, this Criminal Writ Petition would succeed partly for the quashing of the criminal proceedings under section 385, 420, 467, 468, 471, 504 r/w. 34 of the Indian Penal Code. The Criminal Writ Petition is partly allowed. The prosecution of the petitioner and his co-accused stands quashed in so far as the offences under section 385, 420, 467, 468, 471 504 r/w. 34 of the Indian Penal Code are (8) CRI. WP. 874.2009 concerned but the prosecution may continue for the offences punishable under section 506 r/w. 34 of the Indian Penal Code against the petitioner and his co- accused Abdul Gani. . The observations in this judgment, as regards the allegations in respect of the offence punishable under section 506 r/w. 34 of the Indian Penal Code, shall not influence the trial Court while dealing with the case. Sd/- (A.V. NIRGUDE, J.) arp