Allowed

Vinayak Vasant Papinwar and Ors. v. the State of Maharashtra and Anr.

Bombay HC20 Dec 2017WP/66/2006

Case brief

AI extract

What is this about?

The High Court of Bombay, Aurangabad dismissed criminal proceedings under the SC/ST (PoA) Act and IPC 468 initiated via private complaint alleging fraudulent property sale induced by intoxication, quashing the process due to lack of material evidence of unlawful dispossession.

What did the court decide?

Criminal proceedings arising out of Regular Criminal Case No.99 of 2002 and the order issuing process dated 15.10.2015 are quashed and set aside.

Vinayak Vasant Papinwar and Ors. Vs the State of Maharashtra… — Caste Atrocities | Bombay HC (2017)

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( 1 ) Cri.WP 66 of 2006

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO.66 OF 2006

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1) Vinayak s/o Vasant Papinwar

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Age: 25 years, Occu.: Business, R/o.Bhavani Nagar, Kandhar,

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Kiroda, Tq.Loha, Dist.Nanded.

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2) Vishal s/o Vasant Papinwar Age: 22 years, Occu.: Business, R/o.Bhavani Nagar, Kandhar.

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3) Shilpatai w/o Govindrao Rahatkar Age: 26 years, Occu.: Household, R/o.Bhavani Nagar, Kandhar. ..Petitioners

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VERSUS

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1) The State of Maharashtra

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2) Sau.Kasturabai w/o.Prabhakar Jondhale Age: 32 years, Occu.: Agri. Household, R/o.Kiroda, Tq.Loha, Dist.Nanded. ..Respondents

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...

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Advocate for Petitioners : Mr.S.V.Kurundkar
APP for Respondent No.1 : Mr.G.O.Wattamwar
Advocate for Respondent No.2 : Mr.P.S.Anerao

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CORAM : PRAKASH D.NAIK, J.
RESERVED ON : 20th NOVEMBER, 2017
PRONOUNCED ON: 20th DECEMBER, 2017

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JUDGMENT:-

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1) The petitioners are challenging the criminal

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( 2 ) Cri.WP 66 of 2006

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proceedings arising out of Regular Criminal Case No.99 of
2002 filed before the Court of Judicial Magistrate First
Class, Kandhar, Dist.Nanded.

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2)The respondent No.2 is the complainant. The learned

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Magistrate took cognizance of the complaint filed by the
said respondent for the offence punishable u/s 3(1) (iv)
(v) (ix) (xv) and Section 3(2)(v) of the Schedule Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989
as well as Section 468 r/w Section 34 of the Indian Penal
Code. The cognizance was taken against the petitioners
and the complaint against other accused was dismissed.

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3)The brief allegations made in the complaint are as
follows:-

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(a)The complainant is a member belonging to

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Scheduled Caste and is the resident of Kiroda. The

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accused are not members of Scheduled Castes and

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Scheduled Tribes and are residents of Kandhar. The

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accused Nos.1, 2 and 4 have purchased the

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( 3 ) Cri.WP 66 of 2006

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complainant's land. The accused No.3, 4, 5 and 9 are
relatives of accused Nos.1, 2 and 4. Accused Nos.6,
7, 8, 10, 11 and 12 are the servants of accused Nos.1
and 2.

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(b)The husband of the complainant Mr.Prabhakar s/o
Sambhaji Jondhale is having ancestral landed property

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in Gut Nos.91/1, 92, 105/7, 105/08, 105/9 to the
extent of 10 Acres, 4 Gunthe at village Kiroda,
Tq.Loha. The accused took advantage of alcoholic
addiction of husband of complainant and under the
pretext of offering consideration, they acted in
furtherance of common intention and by playing fraud
and forcing the husband of complainant to consume
Alcohol got executed the Sale Deeds in respect of
ancestral property in the share of husband of
complainant and transferred the same in the names of
accused Nos.1, 2 and 4 from 11.6.2001 to 21.5.2004.
The forged Sale Deeds came to be executed before Sub-

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Registrar, Kandhar by giving false and frivolous

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( 4 ) Cri.WP 66 of 2006

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information.

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c)The accused Nos.1, 2 and 4 have transferred
house property No.634 in the precincts of
Municipality Kandhar by way of forged Sale Deed. The
accused Nos.3,5,6,7,8,9,10,11,12 and 13 assisted in
executing the said transaction in favour of accused
Nos.1, 2 and 4. The action of the accused falls
within the purview of offences described under the
Section 3 of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act r/w Sections 34
and 468 of the Indian Penal Code.

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d)The complaint was made to the Police Station,
Kandhar, however, the Police refused to take
cognizance. Subsequently, the complaint was sent by
registered Post to the Police. The complainant also
approached several authorities for taking action
against the accused, but no action was initiated
against them. Hence, private complaint was filed on

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( 5 ) Cri.WP 66 of 2006

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13.7.2005.

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4)The learned counsel for the petitioners advanced
following submissions:-

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(i)The complaint is false and frivolous. The

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complaint does not make out any offence.

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(ii)The petitioners have purchased the house by
registered Sale Deed on 11.6.2001. The executant of

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the Sale Deed is husband of respondent No.2, who has
delivered the possession of the house in favour of
petitioner No.1. The consideration was paid while
executing the Sale Deed. After execution of the Sale
Deed, the petitioners had applied for mutation of
property in the office of the Municipal Council. The
copy of the Sale Deed has been annexed to the
petition.

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(iii)The application for mutation of property was
allowed and the name of the petitioner No.1 was

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( 6 ) Cri.WP 66 of 2006

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recorded in the Municipal record. The petitioner
No.1 has paid the non-agricultural charges, which is
evident from the receipt. The petitioner No.1 is
paying municipal taxes, which is also supported by
the receipts issued by the Municipal Council. These
documents are annexed to the petition.

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(iv)The petitioner has purchased house and lands and

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house property from the husband of respondent No.2
and in all nine Sale Deeds were executed. Copies of
the Sale Deeds are annexed to the petition. The

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first Sale Deed in respect of house property was

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executed in the year 2001. The complaint was filed
in 2005. It is submitted that the proceedings are
initiated with a view to cause harassment to the
petitioners.

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(v)Out of the nine Sale Deeds, six are of
agricultural lands and one is of house property,

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which is the subject matter of the complaint. The
Sale Deeds were executed at different times.

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( 7 ) Cri.WP 66 of 2006

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(vi)The allegation of the complainant that her
husband was induced to execute the Sale Deeds under
the influence of liquor has no basis. The fact that
the Sale Deed in respect of the house property was
executed in the year 2001 and the complainant was
silent for all these years shows that the complaint
is false and frivolous.

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(vii)The provisions of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, are
not applicable in the impugned complaint. The
petitioner No.1 has lawfully purchased the house
property. The executant has executed Sale Deeds
after receiving consideration and the name of the
petitioner No.1 was recorded in he Municipal record.
The transactions were executed in accordance with the
provisions of the Transfer of Property Act, and
therefore unlawfully dispossessing the owners of the
property does not arise. The complaint therefore
does not make out any offence under the Atrocities

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( 8 ) Cri.WP 66 of 2006

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Act.

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viii)The entire transaction is of civil nature

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and no offences under the Indian Penal Code can be
made out. The transactions were executed with the
husband of the complainant and complaint was filed
belatedly with malafide intentions. The petitioner
No.1 was put into possession after executing Sale
Deed. The complainant started obstructing the
peaceful possession of the petitioner No.1. The
respondent No.2 and others opposed the petitioner
No.1 and his son unlawfully tried to enter in the
property by assaulting them. Complaint was filed
with the Police station Loha and the offence was
registered vide Crime No.56 of 2004 for the offences
punishable u/s 341, 147, 148, 149, 323, 504, 506 of
the Indian Penal Code. The complainant retaliated by
filing a cross complaint vide Crime No.57 of 2004 for

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the offences punishable u/s 143, 147, 148, 149, 342

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of the Indian Penal Code. The ingredients of Section

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468 of the Indian Penal Code are not attracted at
all. The respondent No.2 had raised objection about

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mutation entries in favour of the petitioners in
respect of agricultural lands by Revenue Authority.
The objections were over-ruled. The appeals filed by
respondent No.2 and her husband are dismissed.

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5)The learned counsel for the respondent No.2

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submitted that the learned Magistrate had issued the

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process against the accused on averments made in the
complaint and the material on record. No interference is

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warranted in the order of process. It is further

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submitted that the complaint makes out the offences and

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the Trial Court has rightly issued the process. The

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husband of the complainant was induced to execute the

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Sale Deeds under intoxication and several properties were

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alleged to have been sold to the accused. The

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transactions were doubtful and there is reason to believe
that the documents were forged. The complainant belongs

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to Schedule Castes and Petitioners are deliberately

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( 10 ) Cri.WP 66 of 2006

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dispossessing the complainant or her husband of the
property amounts to the offences stated in the complaint.
It is submitted that the complainant must be given an
opportunity to lead evidence before the Trial Court and
the proceedings should not be quashed at this stage.
Prima-facie case is made out for the issuance of process.
The petitioners are relying upon several documents as a
matter of their defence, which cannot be looked into now
and it would be open to them to lead appropriate defence

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at the time of trial. It is further submitted that the
averments made in the complaint prima-facie makes out a
case for issuance of process. The Trial Court has
considered the fact that the complainant has examined
witnesses in support of her complaint. The said
witnesses examined by the complainant were independent

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persons and after relying upon the evidence of the said
witnesses, process was issued. The statement of the
complainant was recorded, which was also supported by
other witnesses namely Prabhakar Jondhale, the husband of

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the complainant, witness No.3 Pandit Jadhav and said

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( 11 ) Cri.WP 66 of 2006

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witnesses have supported the prosecution's case. In view
of the above, no case is made out to quash the
proceedings.

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6)The complaint was filed on 13.7.2005. The

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complainant alleges offences u/s 3(1) (iv), (v), (ix),
(xv) & 3(2) (v) of the Scheduled Caste and Schedule

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Tribes (Prevention of Atrocities) Act and Section 468 r/w

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Section 34 of the Indian Penal Code. The Trial Court

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took cognizance of the complaint and issued summons to
the accused. The dispute relates to the property, which

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was in the name of the complainant's husband. The
allegation is that the documents were prepared by
inducing the husband of the complainant under the
influence of liquor. The Sale Deed was executed on
11.6.2001. The complaint was filed after about four
years. The petitioners' contention is that the property

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was purchased by executing the Sale Deed on 11.6.2001.

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The executant of the Sale Deed is husband of the

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complainant. The possession is with the petitioners. It

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( 12 ) Cri.WP 66 of 2006

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appears that the petitioners had applied for mutation of
the said property. The Sale Deed is apparently signed by

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the husband of the complainant in the presence of the
witnesses. The property is house premises referred to

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therein which was sold for consideration of

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Rs.1,00,000/-. The consideration is also reflected in

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the Sale Deed. The name of the petitioner No.1 is

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recorded in the Municipality record, which is fortified
by the mutation entry, which has been annexed to the
petition. The petitioner No.1 has also paid the non-
agricultural charges and he has been paying the municipal

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taxes, which is supported by the receipts. It also

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appears that other than the property, which is the
subject matter of the complaint, the petitioners have

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also purchased other landed properties by executing

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documents. The said Sale Deeds were executed at
different times. The allegations of the complainant that

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the husband was induced to execute the documents under

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the influence of liquor speaks volumes of doubt. It is

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therefore, apparent that there is a sale transaction

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( 13 ) Cri.WP 66 of 2006

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between the parties. It is open to the owner of the

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property to challenge the execution of documents by
initiating civil proceedings. Hence, looking into the
documents of the Sale Deeds, it cannot be said that the
accused have committed offence under the provisions of
Schedule Caste and Schedule Tribes (Prevention of
Atrocities) Act or under Penal Code. To constitute the

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said offences prima-facie, there has to be material to

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show that owner of the property has been unlawfully
dispossessed.

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7)In the aforesaid circumstances, no case for issuance

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of process was made out for the said offence. The
documents speaks for itself and as long as the documents

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are in existence and has sanctity of law, the genuineness
cannot be disbelieved. The evidence of the witnesses
examined by the complainant at the time of issuance of
process is not sufficient to issue process because Sale

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Deed is executed between the petitioner No.1 and the

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husband of the complainant, which is signed by the owner

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( 14 ) Cri.WP 66 of 2006

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and the witnesses of the purchaser of the property.
There is no evidence of forgery. There is no declaration
by any Court that the document is illegal of forged.
The criminal proceedings initiated against the
petitioenrs therefore requires to be quashed and set
aside. Hence, I pass the following order:-

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ORDER

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(I) Criminal Writ Petition No.66 of
2006 is allowed.

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(II) The criminal proceedings arising
out of Regular Criminal Case no.99 of
2002 pending before the Court of
Judicial Magistrate First Class,
Kandhar, Dist.Nanded, alongwith order
issuing process dated 15.10.2015 are
quashed and set aside.

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(III) The petition stands disposed
of.

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SPT/Cri.WP 66 of 2006

Vinayak Vasant Papinwar and Ors. v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Vinayak Vasant Papinwar and Ors. v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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