acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 470 OF 2009 Smt. Mehroo Jahangir Patel ..Petitioner. Vs. Shri Dattatray Chandu Gawad & Anr. ..Respondents --- Mr. V.S. Kapse i/b Mr. Vinod Juwale, for the Petitioner. Mr. A.B. Rai, Advocate i/b Mr. S.H. Joshi, for Respondent no.1. Mrs. U.V. Kejriwal, APP for the State. ---- CORAM: V.R. KINGAONKAR, J. DATED: 24 TH SEPTEMBER 2009 P.C.: 1. Mr. Salvi, learned Advocate holding for Mr. S.D. Patil seeks discharge as the brief is handed over to Mr. Vinod Juwale who has filed Vakil Patra. Mr. S.D. Patil is discharged. 2. By this petition, the petitioner challenges the judgment and order dated 19.11.2006 rendered by the 2nd Additional Sessions Judge, Palghar Thane in criminal revision No.53 of 2006, whereby the respondents came to be discharged from the criminal case bearing R.C.C No. 55 of 2000 pending on file of the learned Judicial Magistrate, Dahanu. 1 1 3. There was an agreement between the petitioner (complainant) and father of the respondents i.e. deceased Chandu. The said agreement for sale of a land was entered into on 25.09.1991. It was agreed between them that necessary sale permission would be obtained for effecting the sale. It appears that deceased Chandu executed the power of attorney in favour of the petitioner (complainant) and she agreed to do the necessary things for obtaining the sale permission. On 21.2.1994 Chandu died. The respondent(accused) is son of the deceased. According to the petitioner, the respondent ratified the agreement of sale. The respondent obtained further amount of Rs.50,000/- in pursuance to the said agreement from her. However, he did not take any steps to obtain sale permission and to fulfill the terms of the agreement. As he did not do needful to obtain permission for sale in spite of notice, she filed complaint case in the court of the learned Judicial Magistrate (2nd) Dahanu. 4. The learned Judicial Magistrate (First Class), Dahanu, recorded evidence of the petitioner and thought it proper to proceed against the respondent and directed framing of the charge against the accused. The respondent challenged the order of the Judicial Magistrate (First Class) by filing the criminal revision application. The Sessions court allowed the criminal revision application by the impugned order. 5. Heard learned counsel. 2 2 6. At the outset, let it be noted that at the inception there was no misrepresentation whatsoever when the agreement was entered into between the petitioner and the father of the respondent. The admissions given by the petitioners have been considered by the learned Sessions Judge, in support of his conclusion that the dispute is only of civil nature without any element of criminal act on the part of the respondent. It is pertinent to note that the petitioner admitted, unequivocally, that each of them was responsible for obtaining sale permission. She admitted that the respondent had not committed any error or fault in respect of execution of the sale deed. She further admitted that had she taken appropriate steps in time, sale permission could have been received even before the death of Chandu. The only act attributed to the respondent is that he had obtained further amount of Rs.50,000/- from the petitioner after the death of Chandu. There is no material on record to infer that he had absolutely no intention to perform his part of the agreement and received Rs.50,000/- from the petitioner by misrepresentation of any fact. 7. At this juncture, it may be noticed in a private complaint case, triable as warrant case, framing of charge can be permitted only when it is found that, material on record is sufficient to warrant conviction, if such material remains unrebutted. Thus, in a private complaint case the criminal court cannot proceed against accused only because there is some 3 3 material available. The material must be such as would be enough convict the accused in case there is no challenge to the same. In absence of such material, the criminal court cannot frame a charge in the case which falls u/s 244 and 245 of the IP Code. In the context of present case, the admissions of the petitioner and the version of PW-2 Ashok Rajput indicated that the element of dishonest intention could not be pointed out and, therefore, the learned Sessions Judge was right while observing that the case is purely of civil nature. 8. In view of the above, the petition is without basis and liable to be dismissed. Accordingly, the petition is dismissed. ( V.R. KINGAONKAR, J. ) 4 4