1 CR.WP NO.784/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.784 OF 2009 Sow.Neelam w/o Tejbahadur Singh, Age 55 yrs., Occu: Business and partner of Jalna Land Developers Pvt.Limited r/o at present Dadar ( West) above State Bank of India, Flat No.704, Mumbai. ...PETITIONER VERSUS 1. The Jalna Land Developers through its Partner Salim s/o Kamruddin Shaikh, Age 50 yrs. Occu: Business, r/o Plot No.125, Amir House, Behind Nandanvan Society, Borivli ( West) Mumbai 400 092. 2. The State of Maharashtra Through its Secretary, Mantralaya, Mumbai. ...RESPONDENTS ... Mr.A.I.Pathan, Adv., h/f Mr.Gulam Dastagir Shaikh, Adv., for the petitioner. Mr. V.H.Dighe, APP for respondent State. Mr. B.R.Kedar, Adv., for respondent no.1. ... CORAM: K.U.CHANDIWAL, J. DATE:1/2/2011 *** 2 CR.WP NO.784/2009 PER COURT : 1. Heard. In an unregistered partnership firm, the complainant came with a case that there was alleged agreement to purchase the agricultural property, in the name of partnership firm. There was power of attorney executed jointly in the name of the complainant and the accused. This is so stated in the affidavit in reply with annexures by the complainant Salim Kamruddin Shaikh. 2. On reading the complaint lodged before the learned Chief Judicial Magistrate, Jalna, vide RCC No.226/2009, it is evident that ingredients of Sections 406, 468, 420, 471 of IPC, to which reference is given, do not surface considering the nature of transactions entered into by the said accused/petitioner herein Smt.Neelam Tejbahadur with the prospective purchasers. 3. The unregistered partnership firm may have its rights, showed in the complaint but criminal prosecution is not an answer for it. Nothing prima facie that the petitioner has cheated complainant or that forged documents are prepared. Complainant has remedies in the competent civil forum which he can exhaust. There is nothing to demonstrate even the 3 CR.WP NO.784/2009 unregistered partnership firm has been cheated or by creating fraudulent documents, its hands are changed. 4. Copy of the sale deed placed on record relates to 11 acres and 5 gunthas executed by petitioner Smt.Neelam in favour of Prasannakumar Vinaykuar Kothari. It has reference of earlier sale deed dt.11.2.2005 vide document No.620/05 dt.21.2.2005. Both the parties did not venture to produce said earlier document. Prima facie, it appears, Smt.Neelam had right to sell the property which she had rightly done. I reiterate, the remedies, if any, available to the complainant can be exhausted in competent forum. 5. Learned Counsel for the petitioner placed reliance to the judgment of the Apex Court in the matter of V.Subramaniam Vs. Rajesh Raghuvandra Rao ( 2009(3) Mh.L.J. 946). The Hon'ble Lordships of the Apex Court were dealing with Constitutional validity vis-a-vis Section 69(2A) of the Partnership Act as made applicable in the State of Maharashtra and the Hon'ble Lordships, in the light of the judgment of the Constitution Bench in the matter of Maneka Gandhi V. Union of India and another ( AIR 1978 SC 597) struck down provisions of Section 69(2A) of the Partnership Act. 4 CR.WP NO.784/2009 6. Learned Counsel for the complainant relied to the judgment of State of Haryana Vs. Ch.Bhajanlal and others (A.I.R. 1992 SUPREME COURT 604). the Hon'ble Lordships in the said judgment have expressed the categories in which exercise of powers under Section 482 of Cr.P.C. can be exhausted. The categories are as under: "(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the ac- cused; (b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investi- gation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code; (c) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused; (d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code; (e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; (f) where there is an express legal bar engrafted in any of the provisions of the Code 5 CR.WP NO.784/2009 or the concerned Act (under which a criminal proceeding is instituted) to the institu- tion and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; (g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. " 7. Now, reading the complaint as a whole, I find that the case of State of Haryana and others v. Ch.Bhajan Lal and others comes into play not in favour of the complainant but, it appears, is against the complainant and is in favour of the petitioner Smt.Neelam. Consequently, the proceedings against the petitioner before the learned Chief Judicial Magistrate, referred here-in-above, being without any cause to indicate infraction of Sections 406, 420, 468, 471 of IPC, calls for quashing and hence, dropped and set aside. Petition allowed accordingly. The observations are, prima facie and are not to be used in civil proceedings to favour either parties. (K.U.CHANDIWAL) JUDGE agp/784-09crwp