Quashed

Rajendraprasad Ghurahu Nisha and Ors. v. the State of Maharashtra and Ors.

Bombay HC11 Jul 2013APL/209/2013

Case brief

AI extract

What is this about?

Held that criminal proceedings for forgery and cheating regarding a property sale agreement are quashed. The Court found no criminality in the transactions and held that the civil dispute over possession and specific performance was a suitable forum, labeling the prosecution as an attempt to subvert civil rights.

What did the court decide?

The criminal proceedings initiated against the applicants/userein the FIR dated 16.11.2007 are hereby quashed and set aside.

Rajendraprasad Ghurahu Nisha and Ors. Vs the… — Contract and Commercial Disputes | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPLICATION NO.209 OF 2013

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1.Mr.Rajendraprasad Ghurahu Nishad & Ors. …Petitioners/Applicants

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versus

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1.The State of Maharashtra & Ors. ...Respondents

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Mr.Prashant Maggu, for Petitioners/Applicants.

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Ms.V.S.Mhaispurkar, APP for Respondent no.1-State.

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Ms.A.P.Madhuri i/b. A.P.Madhuri & Associates, for Respondents 2 & 3.

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CORAM : K.U.CHANDIWAL, J.

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DATED : 11^th July, 2013

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P.C. :

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Heard extensively.

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Proceedings pursuant to FIR no.M 01 of 2007 dated 16.11.2007

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for offence under Section 463, 464, 465, 467, 468, 471, 441, 448, 114 read with 120 B of IPC arising out of NRI Police Station, New Mumbai, culminating in RAC no.802 of 2007 (New no.C.C.no. 267 of 2010) pending before the learned JMFC, Vashi, New Mumbai, is sought to be quashed.

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Agreement for sale was entered by the complainant - mother and daughter dated 28.3.2005 in respect of the disputed flat for consideration of Rs.10 lakhs. An initial amount either as earnest or balance was released by the purchaser/applicant herein by a demand draft dated 30.3.2005 of Rs.3 lakhs and another demand draft of Rs.2,25,000/- handed over to the respondents/original complainant.

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Notice dated 19.7.2005 was served upon the seller i.e. original complainant calling upon them to execute sale deed in the manner and in terms of agreement for sale. In paragraph 5 of the said notice, specifically, it was informed that no response to earlier notice dated 25.5.2005, a request was made for the purpose of contract and handing over possession, consequently possession of the flat was handed over to the purchaser/applicant. The said notice was replied on 10.8.2005 by the complainant.

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Thereafter, a report purportedly was filed on 13.8.2005 to the police for alleged event of breaking open the lock on 3.5.2005, she having approached the police even inspite of notice on 25.5.2005. According to her, since the police did not take action, she was forced to file the above referred FIR in the year 2007.

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It is a matter of record that failure on the part of the complainant/seller, suit for specific performance of contract being Suit no.419 of 2005 is filed by the purchaser/applicant. The said suit has been decreed in which on the date of presentation of suit, balance sale consideration of Rs.4,75,000/- was deposited with the Court.

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The matter has another colour. The complainants/sellers filed Special Civil Suit no.21 of 2007 against the applicant/purchaser seeking relief of declaration, injunction. The said suit has been dismissed on 23.2.2010 and no challenge to the same. (Now the learned Counsel appearing for the seller/complainant says, an appeal is pending.) However, this Court has no such record.

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In the said suit, the pleadings of the seller/complainant are crucial to be noted which are as under:-

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“2a. The plaintiffs submit that due to family problems or family adjustments, the plaintiffs decided to sell the suit flat and hence plaintiff no.2 approached to the one Estate Agent named Vickky Maggu who is having office and residing in Sector 9, and put the proposal of selling the suit flat. The said agent contacted plaintiff No.2 and intimated to her of negotiating with one Rajendra Prasad Nisad i.e. defendant no.2 for selling the suit flat.

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b. In view of the negotiations between the plaintiffs and defendant, it was agreed to sell the suit flat for total consideration of Rs.10,00,000/- and accordingly earnest money of Rs.5,001/- is paid to the plaintiffs. Agreement for sale dated 30.03.2005 is executed in between the plaintiff No.2, defendant in the office of Advocate Shri.Mangela. That time the defendant paid Rs.3,00,000/- vide D.D.dated 30.03.2005. Thereafter another demand draft of Rs.2,25,000/- is also given by the defendant to the plaintiffs and the plaintiffs submit that it was agreed to complete the transaction within one month from the date of execution of agreement for sale.”

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Thus, in material terms, the recitals in the agreement for sale and the earnest including the balance payment is accepted.

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In the scenario of the above facts, it is primarily or otherwise difficult to accede to the canvas projected by the complainant that the agreement for sale was forged or that mother of the complainant did not sign it. The second facet of taking illegal possession or otherwise, due course of law is not followed, the long drawn litigation, exchange of documents illustrates that such occupation of the flat was extended to the purchaser/applicant.

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There is no criminality in any of the act of the

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accused/applicant transacting with the original complainants/sellers. If there is any civil wrong, already parties have resorted to the requisite proceedings where they may get respective fruits. However to ensure that the rights of the purchaser are squeezed and to bring him to the terms, naive way of prosecution is certainly initiated. It is to subterfuge the ink of the agreement and solemn undertaking reflected in several documents. The Court will be loath in acting on such chicanery. Consequently, the proceedings initiated against the applicants are quashed and set aside.

Rajendraprasad Ghurahu Nisha and Ors. v. the State of Maharashtra and Ors.

Case brief

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Rajendraprasad Ghurahu Nisha and Ors. v. the State of Maharashtra and Ors.

Case brief

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