Allowed

Kailas Purushottam Lahoti v. the State of Maharashtra and Anr.

Bombay HC17 Jul 2018APPLN/141/2009

Case brief

AI extract

What is this about?

The High Court quashed an FIR alleging forgery and cheating under the IPC and NI Act. The court found no tangible fraud or loss regarding the sale deed and held that the cheque misuse allegation was misuses of process of law filed after the sibling case.

What did the court decide?

F.I.R. No. 54/2008 is quashed and the proceeding under sections 420, 468, 471 IPC and section 138 NI Act is stopped.

Kailas Purushottam Lahoti Vs the State of Maharashtra and Anr. — Cheque Dishonour | Bombay HC (2018)

¶1

Cri.Appln. No. 141/2009

¶2

¶3

IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD

¶4

CRIMINAL APPICATION NO. 141 OF 2009

¶5

Kailas s/o. Purushottam Lahoti, Age 33 years, Occu. Service, R/o. Jawala Bazar, Tq. Aundha, Dist. Hingoli.

....Applicant.

(Ori. Accused)

Versus

The State of Maharashtra Through Police Station Officer Police Station Hatta, Tq. Aundha Dist. Hingoli.

¶10

Laxminarayan s/o. Badrinarayan Rathi, Age 69 years, Occu. Nil, R/o. Jawala Bazar, Tq. Aundha, Dist. Hingoli.

¶11

....Respondents.

¶12

(Resp.No.2 is Orig. Complainant)

¶13

Mr. Swapnil S. Rathi, Advocate for applicant.

¶14

Mrs. D.S. Jape, APP for respondent No. 1/State.

¶15

Mr. J.V. Patil h/f. Mr. P.R. Katneshwarkar, Advocate for respondent No. 2.

¶16

CORAM : T.V. NALAWADE AND K.L. WADANE, JJ. DATED : JULY 17, 2018.

¶17

JUDGMENT : [PER T.V. NALAWADE, J.]

¶18

The proceeding is filed under section 482 of Criminal Procedure Code for relief of quashing of F.I.R. No. 54/2008 registered with Hatta Police Station, Tahsil Aundha, District Hingoli for the offences punishable under sections 420, 468 and 471 of Indian Penal Code. Both the sides are heard.

¶19

Cri.Appln. No. 141/2009

¶20

¶21

The crime is registered on the basis of F.I.R. given by respondent No. 2. In the F.I.R., he has made allegations in respect of two incidents. According to him, the present applicant has illegally changed the contents of registered sale deed of the year 2004 and borewell is mentioned in the sale deed when initially borewell was not mentioned in the sale deed. Second allegation is made that present applicant has misused the blank cheque which was given to one Dange and by misusing the cheque and by writing the amount of Rs.2,00,000/- on the cheque, the applicant has filed false case under section 138 of Negotiable Instruments Act against the son of the first informant.

¶22

The applicant has produced copy of agreement in respect of agricultural land bearing Gat No. 129. This document shows that there was agreement to sell of 40 R. portion land along with borewell from Gat No. 129 for consideration of Rs.80,000/-. The boundaries of the portion which was to be sold were given in agreement. Copy of sale deed dated 8.11.2004 shows that in the sale deed land admeauring 40 R. was sold along with one borewell. There is copy of mutation which was sanctioned on 15.12.2004 and the mutation shows that entry was made in respect of transfer of 40

¶23

R. land and also in respect of borewell.

¶24

Cri.Appln. No. 141/2009

¶25

¶26

The learned counsel for first informant drew the

¶27

attention of this Court to papers like certified copy of sale deed collected from the office of Sub Registrar. It shows that in the sale deed executed in the year 2004, there was no mention of borewell. This circumstance creates a probability that in the sale deed of the year 2004 the borewell was not mentioned and possibly this thing was added subsequently after registration of sale deed. However, the submissions made show that no portion of land is left with the first informant from Gat No. 129. He sold different portions to different persons. The submissions made show that the first informant did not raise grievance about the mention of borewell before any authority and the allegations came to be made first time in the year 2008 of aforesaid nature. He never took steps by approaching civil court and it is clear that there was agreement in respect of borewell also and possibly due to oversight the borewell was not mentioned. There is one more circumstance against the first informant. It was submitted that the borewell is situated in the portion of 40 R. shown to be sold under the sale deed of 2004. In that case, there was no necessity of mentioning separately borewell in the sale deed. If immovable property is sold then everything attached or embedded to it goes to purchaser. In view of these circumstances, it cannot be said that any loss is caused to the first informant due to so called addition of borewell in the sale deed. The applicant had already become owner

¶28

Cri.Appln. No. 141/2009

¶29

¶30

of the borewell in view of the aforesaid circumstances. To make out

¶31

the offence of forgery or cheating, 'dishonest' or 'fraudulent intention' is required to be made out and for that loss sustained by the first informant is required to be shown. No such loss is sustained by the first informant.

¶32

So far as the other allegation is concerned, it can be said that the F.I.R. was given only after filing of case by applicant under section 138 of Negotiable Instruments Act. In the said case, the accused can take the defence that he had given blank cheque to third party and third party handed over the blank cheque to the present applicant and the cheque is misused. Such contention can be considered as defence in the said case. Ordinarily, such defences are taken. It is clear that only after filing of the case against the son of first informant, the F.I.R. came to be given. This Court holds that it will be misuse of the process of law if further steps are allowed to be taken in respect of the F.I.R. In the result, following order is made.

¶33

O R D E R

¶34

Application is allowed. Relief is granted in terms of prayer clause "C". Rule is made absolute in aforesaid terms.

¶35

[K.L. WADANE, J.] [T.V. NALAWADE, J.]

¶36

ssc/

Kailas Purushottam Lahoti v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Kailas Purushottam Lahoti 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

Parties & counsel

Coram

Case details

Similar cases

Sanjay Vithal Kutwal and Anr. Vs the State of Mah and Ors.

Laxmikant Krushnarao Kulkarni and Ors. Vs Sanjeev Babanrao Bhor and Ors.

Sadashiv Ambadas Gayake Vs the State of Mah and Ors.

Nisar Azgar Ali Tavar Vs the State of Mah and Anr.

The State of Maharashtra Vs Santosh Devidas Mahajan and Others

Padmakar Haribhau Mule and Ors. Vs the State of Maharashtra and Anr.