1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.1518/2008 IN CRIMINAL APPEAL STAMP NO.315/2008 Kokila w/o Ramesh Gaikwad, R/o Ahmednagar. Applicant. V E R S U S Gilbert Dattoba Londhe and another. Respondents. Mr. S. S. Kazi, Advocate for the applicant. Mr. A.K. Gawali, Advocate for respondent. AND CRIMINAL APPLICATION NO.395/2009 IN CRIMINAL APPEAL NO.STAMP NO. 84/2009. Vimal Subhash Borde Applicant. V E R S U S Gilbert Dattoba Londhe and another. Respondents. Mr S.S. Kazi, Advocate for the applicant. Mr.A.K.Gawali, Advocate for respondents. ... CORAM : SHRIHARI P. DAVARE, J. DATE : 24 th JUNE, 2010. 2 PER COURT :- 1. Heard Mr. S.S. Kazi, learned counsel for the applicant and Mr. A.K. Gavali, advocate for respondents. 2. This is an application preferred by the applicant (original complainant) seeking leave to file appeal against the judgment and order of acquittal dated 30.11.2007, rendered by learned Judicial Magistrate First Class-6, Ahmednagar in R.T.C.No.418/1995 (in application No.1518/2008) and in R.T.C.No. 419/1995 (in application No.395/2009), there by acquitting the respondents (original accused Nos. 1 and 2) for the offences punishable under Section 420 and 468 r.w. Section 34 of Indian Penal Code. 3. It is alleged that, the accused Nos. 1 and 2 were owners of the plot No.35 (in criminal application No.1518/2008) and plot No.34 (in Criminal application No.395/2009) of survey No.126/127, situated at Maliwada, District Ahmednagar and accused No.1 was working as Professor, where as accused No. 2 was working as Librarian in Ahmednagar College. It is also alleged that agreement was executed between the complainant and accused persons to purchase the disputed plots and accordingly the complainant gave Rs. 15,000/- to accused from time to time. It is further alleged that entire amount 3 of the sale deed was to be paid by the complainant to the accused and accused were to execute the sale deed in favour of the complainant. Accordingly on 16.8.1994, at about 3.00 to 4.00 p.m., the complainant and accused, allegedly, remained present in the office of Sub-Registrar for execution of the sale deed. 4. However, it is alleged that accused No.1, intended to deceive the complainant, since beginning and therefore, at the time of execution of the sale deed he went away from the office of Sub Registrar. The complainant was under impression that both accused have signed the sale deed but accused No.1 allegedly, did not sign the same. It is also alleged that after obtaining the certified copy of the sale deed, the complainant realize the said fact. Hence, the complainant filed RTC No.418/1995 (In criminal application No.1518/2008) and 419/1995 (in Criminal Application No. 395/2009) against accused persons under section 420, 468 r.w. 34 of Indian Penal Code and process came to be issued against accused persons under said sections as well as charge was framed against them, in respect of said offences and accused persons faced trial for the said charges. 4 5. To substantiate the charges levelled against the accused persons, the prosecution has examined in as much as five witnesses. The complainant examined herself as CW 1, Clerk in Sub Registrar’s Office namely Mr.Nimase as CW 2, Bond writer Mr.Keskar as CW 3, Talathi of Maliwada More as CW 4 and Sub Registrar Mr. Adhari as CW 5. After scrutinizing and appreciating the evidence, learned trial judge, acquitted the accused persons for the charges levelled against them. Being aggrieved and dis- satisfied by the said judgment and order of acquittal dated 30.11.2007, the applicant-original complainant, preferred present application seeking leave to file appeal against the same. 6. I have gone through the impugned judgment and order dated 30.11.2007, as well as record and proceeding with the assistance of learned counsel for the parties, as well as heard the submissions advanced by both the learned respective counsel for the parties. 7. It is significant to note that the complainant has given vital admissions in her cross examination that she had never issued any notice through Advocate to the accused and neither filed any suit for specific performance against them, nor she had initiated any legal action against the 5 accused. She also stated that she had no any documentary evidence in that behalf. She further admitted that contents of the sale deed were not written in her presence nor she was having knowledge that there was any prohibitory order of the court. Further CW 2 Nimse as well as Sub Registrar Mr. Adhari gave vital admissions in their respective testimonies, which clearly hampers the case of the complainant. 8. After assessing the evidence, learned trial judge observed in the impugned judgment that it is necessary to see whether intention to deceive existed at the time when inducement was made and to prove the case under section 420 of Indian Penal Code the evidence to show the criminal mind on the part of the accused. However, considering the above evidence, transaction between the complainant and the accused was of contractual nature and such type of facts can give rise to civil liabilities and criminal prosecution, but if there is no mense ria or if other essential ingredients of offence are lacking, the same facts may not sustained criminal prosecution though a civil action may lie. It is further observed by the learned trial judge that to hold person guilty of cheating, it is necessary to see that he had fraudulent or dishonest intention at the time of making the promise but the complainant failed to prove the case beyond reasonable doubt. Apparently, 6 reasoning adopted by the learned trial judge cannot be faulted with. 9. It also appears that complainant has failed to prove and establish the case beyond reasonable doubt that accused persons had intention to deceive the complainant since the inception of the transaction. Hence, the learned trial judge rightly acquitted the accused persons, from the charges levelled against them and view adopted by the learned trial judge, after analyzing the evidence, is a possible view and no interference therein is warranted in the appellate jurisdiction. Moreover, on perusal of the impugned judgment, I do not find any perversity in the said judgment and order of acquittal and therefore also, there is no necessity to interfere therein. 10. In the result, present application bears no substance, same is devoid of any merits and therefore same stands dismissed and leave to file appeal stands refused and consequently Appeal Under Stamp Nos.315/2008 and 84/2009 stands dismissed. 11. Record and proceeding be sent back to the concerned Court. ( SHRIHARI P. DAVARE, J. ) AAA/ .....