Dismissed

Hitendra Vinayakrao Upadhyay v. the State of Maharashtra and Others

Bombay HC29 Aug 2023WP/278/2023

Case brief

AI extract

What is this about?

The High Court of Judicature at Bombay dismissed two criminal writ petitions challenging the issuance and non-issuance of criminal process in a cheating case involving the transfer of a liquor license, finding no justification for judicial interference with the revisional court's order.

What did the court decide?

Both Criminal Writ Petitions were dismissed; no interference with the impugned order of the revisional court.

Hitendra Vinayakrao Upadhyay Vs the State of Maharashtra… — Cheating and Forgery | Bombay HC (2023)

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920-WP-942-2023+ .odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO.942 OF 2023

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SHANKARRAO S/O RAJARAM GAUD

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VERSUS

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THE STATE OF MAHARASHTRA AND ANOTHER

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WITH

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CRIMINAL WRIT PETITION NO. 278 OF 2023

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HITENDRA VINAYAKRAO UPADHYAY

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VERSUS

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THE STATE OF MAHARASHTRA AND OTHERS

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...

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Advocate for Petitioner in WP/942/2023 & for Respondent
Nos. 2 to 4: Mr. A. H. Kasliwal

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Advocate for Petitioner in WP/278/2023 & for Respondent
No. 2 in WP/942/2023: Mr. S. S. Jadhavar
APP for Respondents: Mrs. G. L. Deshpande

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...

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CORAM:R.M. JOSHI, J

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DATE:AUGUST 29, 2023

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PER COURT :

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1.With consent, heard finally at the stage of
admission.

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2.These Petitions takes exception to the order

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dated 15.09.2022 passed by learned Additional Sessions
Judge, Parbhani in Criminal Revision Application No.
13/2020 whereby order dated 13.01.2020 passed in R.C.C.
No. 500/2017 by learned JMFC is set aside and process

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was issued against Accused No. 2 – Shankar only.

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Page 1 of 9

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3.For the sake of convenience, parties are

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referred to as complainant and accused.

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4.The facts, in nutshell which have led to the
filing of these Petitions, can be narrated as under:

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Complainant is a partner of liquor shop at
village Zari, Dist. Parbhani. License thereof was
standing in the name of his father. Complainant and
other partners decided to transfer liquor shop premises
with the right in liquor license. Accused contacted him
and showed their willingness to purchase the liquor
premises along with goodwill and liquor license. As per
the contention of complainant, accused were appointed
as Managers by executing Naukarnama on 01.04.2013 for
the period of 1 years and asked to look after day to
day affairs and conduct of the business. Thereafter, it
was decided to transfer the liquor license in favour of
accused herein for consideration of Rs. 25 lacs towards
goodwill. He claims that it was orally agreed that this
amount would be paid prior to transfer of liquor
license. It is contended that pursuant to the said
agreement, complainant and other partners filed an
application before Collector, Parbhani on 08.01.2014

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Page 2 of 9

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for transfer of liquor license in the name of accused.
Though, the said application was filed by them, it was
decided to complete formalities after the amount agreed
is paid. It is alleged that by keeping the complainant
and other partners in dark, accused in collusion with
the Officers of Excise Department got the liquor
license transferred in the name of accused. On the
basis of these allegations, complaint came to be filed
under Section 156(3) of Cr.P.C.

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5.Learned Magistrate did not pass order of
investigation into the crime under Section 156(3) of
Cr.P.C but issued process against the accused persons
by order dated 20.03.2018. The said order was
challenged by filing Criminal Revision Application by
the accused being no. 118/2018. The said application
was allowed by order dated 23.11.2018 and the order
passed by learned Magistrate was set aside for non-
compliance of provisions of Section 202(1) of Cr.P.C.
The matter came to be remanded back to the Magistrate
for decision as per law. Thereafter, learned Magistrate
called report from police under Section 202 of Cr.P.C.
After the said report, learned Magistrate passed order

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Page 3 of 9

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dated 13.01.2020 dismissing the complaint. The said
order was taken exception in Criminal Revision
Application No. 13/2020. The Revisional Court passed
impugned order dated 15.09.2022 and partly allowed the
application. The process was issued against accused
herein. No process was issued against Accused Nos. 1
and 3 in R.C.C. No. 500/2017.

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6.The complainant is aggrieved by non-issuance
of process against accused nos. 1 and 3 whereas accused
no. 2 being aggrieved is issuance of process have filed
these Petitions.

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7.Learned Counsel for Complainant submits that

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there is ample evidence against accused Nos. 1 and 3 in
order to issue process against them. It is submitted
that though the application is filed by the complainant
and other partners for transfer of liquor license,
however, it was never agreed that the amount of
transfer fee would be paid by the accused persons. It
is submitted that the accused no. 3 though challan has
deposited the said amount of transfer fee and hence,
his involvement in the crime is evident. It is
submitted that the material on record in the form of

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Page 4 of 9

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affidavit of accused no. 2 clearly indicates that it
was agreed between the parties that the sum of Rs. 25
lacs would be payable to the complainant by way of
goodwill for the transfer of license. He also drew
attention of the Court to the agreement executed in
this regard on 22.08.2015 pursuant to which 5 cheques
were issued of Rs. 5 lacs each. It is submitted that
subsequently cheques were dishonoured. According to
him, all these facts clearly indicates that all accused
person in furtherance of their common intention have
cheated the complainant and, therefore, the process
ought to have issued against all accused.

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8.Learned Counsel for the Accused defended the
refusal of the issuance of process against accused nos.
1 and 3. It is his submission that there is no evidence
to indicate that these accused persons have committed
any offence as alleged. For the purpose of challenging
the order of issuance of process against accused nos.
2, it is submitted that any agreement for sale of the
license issued by the authority under the provisions of
Maharashtra Prohibition Act would be barred in view of
Section 58 thereof. It is thus, clear that since the

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Page 5 of 9

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object of the alleged crime is barred by the provisions
of law in view of Section 23 of Contract Act, such
contract does not become enforceable. Apart from this,
he submitted that learned JMFC while acquitting
Respondents for the offence punishable under Section
138 of Negotiable Instruments Act has held that the
cheques were not issued against discharge of legally
enforceable debt. He also drew attention of the Court
to the evidence recorded therein which indicate that
some other agreement was also entered into between the
parties in the year 2013, which is suppressed by
complainant. In order to support his submission that
mere breach of contract will not amount to cheating,
reliance is placed on the judgment of Hon’ble Apex
Court in case ofSarabjit Kaur Vs. State of Punjab and
Anr, 2023 SCC OnLine SC 210.

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9.Perusal of the complaint indicates that the
Respondent has specifically alleged that for the

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purpose of transfer of license an amount of Rs. 25 lacs
was agreed to have been paid towards goodwill. The said
contention of Respondent gets support from the
agreement dated 26th August, 2015 between the Petitioner

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Page 6 of 9

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and Respondents wherein it is reaffirmed that a sum of

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Rs. 25 lacs was to be paid on the date of transfer of
license in favour of the Petitioner. Thus, at this
stage, there is evidence on record to indicate that at
the time of delivery of the application for transfer,
under the signature of Respondent, there was deception
played on him with assurance to pay a sum of Rs.25
lacs. It is immaterial as to whether said agreement
would be enforceable in law or not, as validity of said
agreement is not in issue before trial Court. In order
to satisfy essential ingredients to constitute cheating
under Section 415 of Indian Penal Code, there must be
intentional deception to deliver any property and which
act is likely to cause damage to such person. Suffice
it to say that prima facie material placed on record
indicates that there was oral agreement between the
parties and on the basis of assurance of payment of Rs.
25 lacs on the date of transfer of the license signed
form for transfer of license is handed over.
Thereafter, transfer of liquor license is obtained

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without payment of assured amount. It is immaterial
whether the Prohibition Act bars sale of license or
not.

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Page 7 of 9

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10.The distinction will have to be drawn in
respect of any agreement to sale the license and

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deception played on assurance to pay certain amounts.
At this stage, therefore, the learned Revisional Court
was fully justified in issuing process against the
accused no. 2. No inference is called for therein.

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11.As far as challenge to the refusal of the
learned Revisional Court of issuance of process against
accused nos. 2 and 3 is concerned, perusal of the

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record indicate that the liquor license has been
transferred not in favour of them but in favour of co-
accused. The only contention raised by the learned
Counsel for the complainant for seeking issuance of
process against Respondent Nos. 2 to 4 is that Accused
No. 3 has signed Challan while depositing the amount of
transfer fee with the concerned authority. Perusal of
the said document indicates that he never tried to
impersonate him to be license holder. There is nothing
brought on record to indicate that the amount towards
transfer fees could not have been paid except under the
signatures of the license holder. There is no denial of

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the fact that application for transfer of the license

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Page 8 of 9

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is duly signed by the Petitioner himself. Thus, no case
is made out for making Accused Nos. 1 and 3 to undergo
rigor of criminal process for want of prima facie case
against them. No fault can be found in the refusal of
Revisional Court to issue process against them.

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12.In these circumstances, there is no reason or
justification to cause interference with the impugned
order. Hence, both Petitions stand dismissed.

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Malani

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Page 9 of 9

Hitendra Vinayakrao Upadhyay v. the State of Maharashtra and Others

Case brief

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Hitendra Vinayakrao Upadhyay v. the State of Maharashtra and Others

Case brief

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