1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION (APL) NO. 207 OF 2011 SMT. LILABAI PRAKASHCHAND BOTHARA AND 3 OTHERS ..VERSUS.. STATE OF MAHARASHTRA, THROUGH DIST. SUPDT. OF POLICE, YAVATMAL AND 2 OTHS. Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. V. D. Darne, Advocate for the applicants. Mr. Bhagwan M. Lonare, A.P.P. for respondent no.1/State. Mr. J. B. Kasat, Advocate for respondent no.2. CORAM : PRASANNA B. VARALE, J. DATED : 13 th SEPTEMBER , 2011 . Heard Mr. V. D. Darne, the learned counsel for the applicants, Mr. Bhagwan M. Lonare, the learned Additional Public Prosecutor for non-applicant no.1 and Mr. J. B. Kasat, the learned counsel for non-applicant no.2. None appeared for non-applicant no.3, though served. By the present application, the applicants have made the following prayers : 1] Quash and set aside the charges framed under Section 420 of IPC and further be pleased to quash and set aside Criminal Complaint In Regular Criminal Case No. 8/2009 of JMFC (Annexure G) 2] and call the record of the Reg. Cri. Case No. 8/2009 pending on the file of Judicial Magistrate, First Class, Arni 3] Stay further proceedings in Reg. Cri. Case No. 8/2009 pending on the file of Judicial Magistrate, First Class, Arni. 2 The brief facts giving rise to the present application are that non-applicant no.2 Vijay Kashinath Bangirwar had filed a complaint before the Judicial Magistrate, First Class, Arni against the applicants for the offences punishable under Section 419, 420, 406, 465, 471 and 468 of Indian Penal Code alleging that the applicants through non-applicant no.3- Prakashchand Nemichand Kotecha, the Special Power of Attorney holder of the applicants, had agreed to sell the property i.e Plot No. 54, admeasuring 2808 sq.ft. situated at Arni to non-applicant no.2 Vijay Bangirwar for a total consideration of Rs.2,31,400/- and a Demand Draft of Rs.55,000/- drawn on The Yavatmal Urban Co- operative Bank Ltd. was handed over to the applicants towards advance. As per the terms agreed between the parties, the date of registration of sale deed was fixed as 17.05.2007. Though, it was agreed in the Agreement to Sale that the property in question never alienated to anybody else prior to said transaction and as agreed, non-applicant no.2/complainant had been to the office of Sub-Registrar office on 17.05.2007, the applicants and their Special Power of Attorney Prakashchand Kotecha did not turn up. The complainant was, therefore, suspicious and made enquiry in the matter. In the inquiry, it was revealed that the applicants were not the owner of the property in question whereas, Shri Prakashchand Gendmalji Bothra, the husband of applicant no.1 and father of applicant nos.2 to 4, was the owner of it. It was further revealed that during his lifetime, Prakashchand Bothra had appointed non-applicant no.3- Prakachand Kotecha as his Special Power of Attorney and the said property was already sold to one Vitthalrao Baduji Jadhao, by the registered sale deed dated 10.01.1990. The complainant, 3 therefore, filed this complaint alleging that the applicants/ accused, who were aware of the fact that the property in question was already sold in the year 1990 by registered sale deed and with an intention to deceive the complainant and to cause him loss, again sold the same property to him by preparing fabricated documents. The learned Judicial Magistrate, First Class, Arni, by order dated 19.06.2009 issued process against the applicants/accused under Section 420 of Indian Penal Code. The applicants raised objection to the issuance of the process. The learned Magistrate, on considering the enquiry report, submitted by police under Section 202 of the Code of Criminal Procedure, passed the order dated 07.03.2011 and proceeded to frame the Charge against the accused nos.1 to 5 i.e. present applicant nos.1 to 4 and non-applicant no.3. Being aggrieved by the said order dated 07.03.2011, the applicants are before this Court. Mr. Darne, the learned counsel for the applicants submitte that the learned J.M.F.C., Arni has failed to consider that the transaction between the parties was in the nature of civil dispute and the applicants were and are ready to return the amount of Rs.55,000/-, which was handed over towards advance payment. The learned counsel for the applicants, by inviting my attention to the notice dated 20.12.2007 issued by the non- applicant no.2/complainant, which is placed on record, submitted that even by the said notice, the complainant demanded the amount of advance with interest from the applicants. According to the learned counsel for the applicants, as the nature of dispute between the parties is of civil nature, the non-applicant no.2/ 4 complainant ought to have filed a civil suit and instead of doing so with a view to harass the applicants, the non-applicant no.2 has filed the criminal complaint. In support of his submissions, the learned counsel for the applicant has placed reliance on the judgments of the Apex Court in the case of B. Suresh Yadav .vs. Sharifa Bee and another, reported in 2007 DGLS (Soft) 1065 and in the case of Sham Sunder .vs. State of Haryana, reported in 1989 DGLS (Soft.) 402. Mr. Kasat, the learned counsel for non-applicant no.2/ complainant submits that as the applicants were well aware of the fact that during the lifetime of Prakashchand Bothra, the property in question was sold to Vitthalrao Baduji Aade and the act of selling the same property to non-applicant no.2 by accepting the advance amount, clearly spells out the intention of the applicants to deceive non-applicant no.2. The learned counsel for non-applicant no.2 further submitted that the non- applicant no.2 under the impression that the applicants are the owner of the property in question and he is the first purchaser of it, entered into the transaction and also handed over the Demand Draft of Rs.55,000/- to the applicants as earnest amount. He further submitted that when non-applicant no.2 attended the office of Sub-Registrar on 17.05.2007 as agreed between the parties, found that the applicants were not present in the office and whenever he made request to the applicants for completing the transaction, they on one or the other pretext gave evasive replies. The learned counsel further submitted that the non- applicant no.2 on enquiry found that the property in question was 5 already sold to one Vitthalrao Aade. According to the learned counsel, the act of the applicants certainly attracts the offence under Section 415 of Indian Penal Code. The learned counsel lastly submitted that the learned Magistrate found prima facie material against the applicant for framing charge and passed the order dated 07.03.2011, which needs no interference at the hands of this Court. He, therefore, prayed for rejection of the application. Mr. Bhagwan M. Lonare, the learned Additional Public Prosecutor for non-applicant no.1/State has supported the impugned order dated 07.03.2011 and submitted that in the enquiry it was revealed that the property in question was already sold to one Vitthal Aade. the Gram Panchayat record i.e. a copy of extract of No.8 Index, which is placed on record, reveals that the owner of the property in question was Vitthal Baduji Aade. Inspite of knowing this fact, the applicants tried to sell the same property to non-applicant no.2 and as such the applicants have committed an offence. The learned APP also prayed for rejection of the application. On hearing the learned counsel for the respective parties and on perusal of the material placed on record, it reveals that the applicants have failed to make out a case for invoking power under Section 482 of Code of Criminal Procedure. Perusal of the record further reveals that the property in question was already sole to one Vitthalrao Aade during the lifetime of Prakashchand Bothra i.e. the husband of applicant no.1 and father of applicant nos.2 to 4 by registered sale deed dated 10.01.1990. The Gram Panchayat record also reflects the name of Vitthalrao Baduji Aade as the owner of the property in question. This fact was well 6 within the knowledge of the applicants and inspite of knowing this fact, the applicants entered in the transaction with non-applicant no.2. In view of these facts, I am of the opinion that the judgments relied upon by the learned counsel for the applicants are not applicable to the matter at hand. There is considerable merits in the submissions of the learned counsel for the non- applicant no.2 as well as learned APP for non-applicant no. 1/State. The learned Magistrate, Arni on considering the material placed before him found prima facie material against the applicants and proceeded to frame charge against them. Apart from these facts, it is the settled position of law that the power under Section 482 of Cr.P.C. is to be used sparingly. Hence, in my opinion, this is not a fit case to invoke power under Section 482 of Cr.P.C. and the application deserves to be rejected. In the result, the criminal application is rejected. JUDGE Diwale