Partly allowed

Bharati Mohanrao Patil and Ors. v. the State of Maharashtra and Anr.

Bombay HC22 Nov 2012WP/1364/2012

Case brief

AI extract

What is this about?

In a criminal writ petition, the High Court examined the maintainability of a prosecution for cheating and criminal breach of trust arising from a property sale dispute. While acknowledging a civil dispute, the court distinguished the case against children who consented to the sale, quashing proceedings against them but allowing it against the principal sellers who allegedly misrepresented facts.

What did the court decide?

Prosecution against petitioner Nos. 3, 4, and 5 (the children) was quashed; prosecution against petitioner Nos. 1 and 2 was allowed.

Bharati Mohanrao Patil and Ors. Vs the State of… — Cheating and Forgery | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO.1364 OF 2012

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Sou Bharati Mohanrao Patil and ors. ...Petitioners v/s

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The State of Maharashtra and anr.

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...Respondents

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Mr Chetan Patil for Petitioners. Mr S.S. Pednekar, APP for State.

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Mr S.R. Borulkar with Mr Manoj Patil for Respondent No.2.

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CORAM : K.U. CHANDIWAL J.

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DATED : 22ND NOVEMBER 2012.

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P.C. :-

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Heard both the learned counsel extensively.

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The petitioner Nos.1 to 5 had agreement of sale in

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respect of immovable property with the respondent No.2 – Sou Madhura. The sale transaction was for Rs.51,00,000/-, Rs.34,00,000/- was received as earnest. The property is in the name of Sou Bharati while Nitin, Nikhil and Kum. Dhanashree are the children of the couple. Nitin, Nikhil and Kum Dhanashree are the consenting parties to the

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agreement of sale (sanskarpatra).

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The learned counsel for petitioners, seller

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of the property canvass that reading the complaint

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as a whole or the dispute raised by the respondent No.2 with the Co-operative Court, no case of criminal infraction of penal statute is made out. The transaction between the parties is purely of civil character and no flavor could be attached with criminal breach of trust of the property or cheating or intimidation.

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In order to stress his point, the learned

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counsel read the complaint and the petition.

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In fact, at this stage, averment in the

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complaint and in particular paragraph 4 illustrate that the petitioners had called the purchaser (original complainant), her sister, husband and

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father at their residence and implored for

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purchasing the property under the pretext of financial exigencies of the petitioners with the

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assurance to comply requisitions of the papers they were allured and confidence was allegedly reposed by the petitioners with the complainant / purchasers. Believing with the statement of the petitioners, as

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per the complaint, even the complainant was made to ensure to release bank installments or to make some payment making expenses of the petitioners.

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Paragraph 3 of the complaint illustrate element of criminal intimidation.

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Non-mentioning of these details in the dispute before the Co-operative Court will not by itself defuse and deflect the canvass projected by the complainant in her criminal prosecution.

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placed reliance to the judgment in the matter of M/s Thermax Ltd. And ors. v/s K.M. Johny and ors., reported in JT 2011(11) SC 241 and particularly paragraph 19 thereof, which reads as under :-

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“19. It is settled law that the essential ingredients for an offence under section 420, which we have already extracted, is that there has to be dishonest intention to deceive another person. We have already quoted the relevant allegations in the complaint and perusal of the same clearly shows that no such dishonest intention can be seen or even inferred inasmuch as the entire dispute pertains to contractual obligations between the parties. Since the very ingredients of section 420 are not attracted, the prosecution initiated is wholly untenable. Even if we admit that allegations in the complaint do make out a dispute, still it ought to be considered that the same is merely a breach of contract and the same cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right from the beginning of the transaction. Inasmuch as there are number of documents to show that appellant Company had acted in terms of the agreement and in a bona fide manner, it cannot be said that the act of the appellant Company amounts to a breach of contract.”

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There cannot be a quarrel and contest on the legal proposition enunciated in the above referred judgment.

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Law is again settled to imprint fact

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situation of one decided case upon another or observations made in the peculiar facts of a given

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case to any or every other case notwithstanding dissimilarity in effect and distinctive features is legally impermissible. Each case, more particularly

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a criminal case, depends on its own facts and the closed similarity between one case and another is not to warrant like treatment.

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The averments in paragraphs 3 and 4 of the

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complaint primarily illustrate that in order to create a clock, a misrepresentation was made by the petitioners particularly petitioner Nos.1 and 2, to ensure that the complainant enters into purchase of property and part with huge amount. Again parting of Rs.34,00,000/- attracts provisions of section 405

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IPC as sale consideration is also a property. It could not be a consideration as owned by the petitioners as was canvassed. The element of cheating is illustrated as the petitioners knew that

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the property had a clog and impediment, still

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ensured and allured the complainant to enter into transaction. The distinct and fraudulent intention

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of inducing the complainant as a fraud is thus

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primarily demonstrated in the complaint.

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Taking these aspects into consideration, it

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cannot be said that the criminal prosecution against

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the petitioner No.1 – Sou Bharati M. Patil or

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petitioner No.2 – Shri Mohanrao B. Patil is uncalled for.

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So far as the children of the couple are concerned, they are from the record consenting

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parties to the document, the property apparently was

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owned by Sou Bharati M. Patil – petitioner No.1 as

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she has been sued in the dispute before the Cooperative Court. Though there is reference in

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paragraph 4 about all the accused / petitioners,

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however, it will have to be restricted to Sou

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Bharati and her husband Mohanrao B. Patil. The

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petition is partly allowed, prosecution as against petitioner No.3 – Nitin, petitioner No.4 – Nikhil

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and petitioner No.5 – Kum Dhanashree is quashed and

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set aside. The observations shall not be considered to be conclusive and determined.

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(K.U. CHANDIWAL J.)

Bharati Mohanrao Patil and Ors. v. the State of Maharashtra and Anr.

Case brief

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What did the court decide?

Bharati Mohanrao Patil and Ors. v. the State of Maharashtra and Anr.

Case brief

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What did the court decide?

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