1 Cri.Appl.No.438 of 2007 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.438 OF 2007 Pandurang S/o.Radhakishan Soni, Age-56 years, Occu-Agriculture and business, R/o.Parli, Tal.Parli, Dist. Beed APPLICANT VERSUS 1. State of Maharashtra 2. Rajabhau Baburao Kirwale, Age-40 years, Occu-Agriculture, R/o.Shirsala, Tal.Parli, Dist. Beed RESPONDENTS Mr.Joydeep Chatterji, learned counsel for the applicant. Mr.N.R.Shaikh, learned A.P.P. for respondent State. Mr.B.R.Sable, learned counsel for respondent no.2. (CORAM : A.V.POTDAR, J.) DATE : 22/03/2011 ORAL JUDGMENT : 1. By the present application u/s. 482 of The Cr.P.C. the applicant has approached this Court to quash the FIR (CR No. 3/2007), registered in Shirsala Police Station of Dist. Beed u/s. 3(1) (viii) of The SC and ST (Prevention of Atrocities) Act of 1989 (In short, Atrocities Act). 2 Cri.Appl.No.438 of 2007 2. Record shows that Rule was issued in this application on 29/03/2007 with interim reliefs in terms of prayer clause 'D'. 3. Today when the application came up for final hearing, heard learned counsel for applicant, and learned A.P.P. for respondent/State, and learned counsel for respondent no.2 (Original complainant), the informant. 4. Considering the submissions across the bar, the facts which are not disputed, can be briefly stated as follows : Applicant herein had filed suit RCS No.56/2004 for perpetual injunction in the Court of Civil Judge, J.D. Parli Vaijnath at Parli. The suit was filed in respect of 1 acre 20R area in consolidation gat no.406, situated at Shirsala. In the said suit, respondent no.2 herein, was arrayed as a defendant. After evidence was recorded in the said suit, the suit came to be dismissed vide judgment and order dated 10/01/2007. It is informed across the bar that some documents are produced to show that the judgment and decree passed by The Civil Judge, J.D. Parli is challenged by way of appeal before the District Judge, Beed, having the Court of Additional District Judge at Ambejogai. On dismissal of the suit on 10/01/2007, complaint came to be lodged by respondent no.2 on 03/12/2007 in Shirsala Police Station of Dist. Beed. On the basis of said complaint, offence came to be registered vide CR No.3/2007. The substance of the complaint is that on 23/03/2004, applicant 3 Cri.Appl.No.438 of 2007 herein has filed civil suit against respondent no.2 and others. The said suit was decided by the Jt.Civil Judge, J.D. Parali vide judgment and order dated 10/01/2007 and the said suit was dismissed with costs. It is alleged that the said suit was vexatious litigation filed by the applicant herein to harass respondent no.2. As the said suit was filed, on receipt of summons, respondent no.2 have to engage an advocate to defend the said suit and have to attend different dates in the Court, for which he had suffered financial loss as well as he had suffered mental torcher, hence the complaint. On the basis of this complaint, an offence was registered for an offence punishable u/s. 3(1)(viii) of The Atrocities Act. 5. During the course of submissions across the bar, learned counsel for applicant, in view of the un-disputed facts, which are referred in paragraphs supra, has taken us through the provisions u/s. 3(1)(viii) of The Atrocities Act, which reads as follows : 3. Punishments for offences of atrocities : (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe - (i) to (vii) ........................... (viii) institutes false, malicious or vexatious suit or criminal or other legal proceedings against a member of a Scheduled Caste or a Scheduled Tribe ; (ix) to (xv) .................... shall be punishable with imprisonment for a term which shall not be less than six months but which may 4 Cri.Appl.No.438 of 2007 extend to five years and with fine. It is urged on behalf of the applicant by drawing attention of this Court towards the finding recorded by the learned Civil Judge, J.D. in his judgment dated 10/01/2007, wherein it is not observed that the suit filed by the applicant herein, who is the plaintiff in the said suit, is a frivolous and vexatious litigation and the litigation was filed only to harass respondent no.2 herein. The complaint required to be considered in the light of the observations of the Civil Court in the judgment dated 10/01/2007. In absence of any finding recorded by the concerned competent court that the litigation is vexatious, merely because after dismissal of the said suit, the complaint was filed that the suit was filed only to harass respondent no.2, the original complainant and thus made out an offence punishable u/s. 3(1)(viii) of the Atrocities Act. As against this, it is urged on behalf of learned counsel appearing for the respondent no.2 original complainant that the suit was dismissed by the learned Jt.Civil Judge-5 with costs, hence to be inferred that the suit filed by the present applicant was false and vexatious suit. Learned A.P.P. for State made it clear that to attract the provisions of section 3(1)(viii) of the Atrocities Act, the finding of the concerned competent Court of law is mandate to come to the conclusion that the litigation is vexatious as the decision is referred by the competent Court of Law and left the matter to the discretion of the Court in the light of observations of the competent civil court referred in the civil suit, which is already on record. 5 Cri.Appl.No.438 of 2007 6. Considering these rival submissions across the bar, merely because civil suit filed by the applicant was dismissed with costs, it can not be termed as vexatious or frivolous civil litigation filed by the applicant against respondent no.2. In the rule of pleadings as laid down under the Code of Civil Procedure, while contesting the suit filed by the plaintiff, the defendants have to plead in their written statement that the suit filed by the plaintiff is vexatious, frivolous and without any cause of action. Secondly, mere pleadings are not sufficient, but the competent civil court also to observe in his judgment that in fact the litigation filed by the plaintiff is false, frivolous and vexatious and filed in the Court of Law only to harass the other side. In absence of such observations by the competent Civil Court, before whom the suit was tried, we can not jump to the conclusion merely because the suit stands dismissed, that the litigation filed by the application was vexatious litigation. In view of this, I am not satisfied that the CR No.3/2007, registered in Shirsala Police Station of Dist. Beed on the complaint of respondent no.2, primafacie discloses commission of an offence u/s. 3(i)(viii) of The Atrocities Act, and if the contents of the complaint prima facie do not disclose commission of an offence, then in law, such complaint ought to be quashed. 7. In view of this, the application succeed. Offence registered vide CR No.3/2007, on the basis of complaint lodged by the 2nd respondent on 03/02/2007 in Shirsala Police Station of Dist. Beed against the present applicant, stands quashed as prayed in terms of 6 Cri.Appl.No.438 of 2007 prayer clause 'A' in the application. 8. Rule is made absolute as indicated above. Application stands disposed of accordingly. (A.V.POTDAR, J.) khs/MAR. 2011/cri.appl.438-07