Bombay High Court
Dilip Visumal Aswani And Another vs Kamlabai Zabbulal Yadao And Another on 26 February, 2026
2026:BHC-NAG:3400-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APL) NO.1 OF 2021
1. Dilip Visumal Aswani,
Aged 50 Years,
Occupation : Agriculturist,
R/o. Plot No.9,
Chhapru Nagar Road,
Chapru Nagar Chowk,
Nagpur.
2. Bhavesh Tulsidas Aswani,
Aged 30 Years,
Occupation : Agriculturist,
R/o. Plot No.9,
Chhapru Nagar Road,
Chapru Nagar Chowk,
Nagpur. ..... APPLICANTS
// VERSUS //
1. Kamlabai Zabbulal Yadao,
Aged 60 Years,
Occupation : Housewife,
R/o. Bhilgaon,
Tahsil Kamptee,
District : Nagpur.
2. State of Maharashtra, through
its Police Station Officer,
Police Station New Kamptee,
Tahsil Kamptee, Nagpur City,
Nagpur. .... NON-APPLICANTS
-------------------------------------------
Mr. Nitin Bargat, Advocate for applicants.
Mr. Satish Uke, Advocate for non-applicant No.1.
Mr. Nikhil Joshi, APP for non-applicant No.2/State.
-------------------------------------------
CORAM : URMILA JOSHI-PHALKE, J.
RESERVED ON : 05.02.2026
PRONOUNCED ON : 26.02.2026
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JUDGMENT :
1. Heard.
2. Admit.
3. Heard finally with the consent of the learned Counsel for
the parties.
4. By this application, the applicants are seeking quashing of
the First Information Report (hereinafter referred to as “FIR”) in
connection with Crime No.410/2020 registered with Kamptee
Police Station, District Nagpur for the offence punishable under
Sections 207, 208, 209, 420, 468, 571, 120-B of the Indian
Penal Code (hereinafter referred to as “IPC“).
5. Brief facts which are necessary for the disposal of the
present application is as under:
The property in dispute P.H. No.18 out of Survey
No.148/3-A admeasuring 1.94 H.R., originally owned by Zabbulal
Bindalal Yadao situated at Mouza Ghorpad, Tahsil Kamptee. On
18.04.2011, said Zabbulal entered into an agreement in favour
of the present applicants to sell the said property. Accordingly,
the earnest amount of Rs.13,48,239/- was paid by cheque and
cash. As per the agreement, Zabbulal Yadao original owner was
required to perform certain part of contract so as to get measure
the land from the T.I.L.R. and thereafter, he has to execute the
said sale deed. However, said Zabbulal Yadao has not performed
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(3)his part of contract and not measured the land. The applicants
after issuance of notice, though present before the Sub-Registrar
office for execution of sale deed on 30.07.2014. Original owner
Zabbulal Yadao failed to come there and to execute the sale
deed. The applicants have sworn an affidavit to show their
presence in the Sub-Registrar’s office. As original owner failed to
execute the sale deed as agreed, the applicants preferred Special
Civil Suit No.662/2014 for Specific Performance of Contract on
22.08.2014. On 11.11.2014, said Zabbulal Yadao had filed
written statement and reply and admitted that he received the
earnest amount, but denied the execution of agreement to sale.
The Civil Judge Senior Division by way of injunction order
restrained Zabbulal Yadao to create third party interest and to
alienate the property in any manner. On 01.08.2016, he filed an
amendment application. During the pendency of the amendment
application on 30.08.2016 said Zabbulal Yadao died and his legal
heirs are brought on record. During pendency of the said suit, it
revealed to the applicants that the legal heirs of Zabbulal Yadao
entered into an agreement with Ramesh Karemore and decided
to form the partnership firm and accordingly, they formed a
partnership firm under the name and style as ‘Shri Trimurti
Builders and Developers’. The partnership deed was executed on
27.01.2017. On 07.02.2017, non-applicant No.1, who is the wife
of Zabbulal Yadao and her daughters executed a relinquishment
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deed in respect of the suit property in favour of son of
non-applicant No.1 Sushil Yadao. It is contention of the present
applicants that the legal heirs of Zabbulal Yadao started
harassing the applicants to withdraw the suit. To pressurize the
present applicants said Sushil Yadao lodged the complaints
against the present applicants on 26.11.2017 with the police.
The Investigating Officer issued a notice to the applicants to
remain present. In response to the notice, the applicants
produced all documents, therefore, no further action was taken
by the police against them. On 15.12.2017, applicants issued
notice to the legal heirs of Zabbulal Yadao and the partners. The
legal heirs of Zabbulal Yadao replied the said notice on
20.12.2017.
6. As the suit was pending against the non-applicant No.1
and other legal heirs. One Yuvraj Humne appeared in Civil Suit
on behalf of the legal heirs of Zabbulal Yadao on the ground that
the legal heirs are not in a position to engage the counsel as
their financial position is weak. But, the said application at
Exh.77 was rejected. On 06.12.2017 Sushil Yadao filed a
complaint before the Magistrate. On 11.02.2019 the said
complaint was rejected, therefore, they filed a complaint against
the police on 07.04.2018. The said complaint was also rejected
on 11.07.2018. On 20.08.2018, the son of the non-applicant
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No.1 filed application under Section 340 of the Code of Criminal
Procedure (hereinafter referred to as “Cr.P.C.”) in Civil Suit. The
said application came to be rejected on 17.03.2020. Subsequent
to the rejection of the application under Section 340 of Cr.P.C.,
they filed an application for rejection of plaint on 27.04.2018.
The said application was also rejected on 17.03.2020. As the
non-applicant No.1 and the other legal heirs were unsuccessful in
the various litigations filed by them. They have filed a RCS
No.74/2018 on 09.07.2018. Again on 04.06.2019 another
application under Section 340 of Cr.P.C. in RCS No.74/2018 was
filed. After hearing both sides, the Civil Judge Junior Division
stayed the Regular Civil Suit i.e. RCS No.74/2018. On
19.08.2019 again son of the non-applicant No.1 Sushil Yadao
filed a MJC No.270/2018 under Section 340 of Cr.P.C. The said
MJC was rejected on 17.03.2020. During the pendency of the
suit filed by the applicants as well as the non-applicant No.1, the
son of the non-applicant No.1 filed an application No.36/N.A.P.-
34/2018-2019 Mouza Ghorpad for converting land for
non-agriculture purpose. The Tahsildar, Kamptee, despite
pendency of the suits, granted permission to convert land in non-
agriculture. Thereafter, on 08.06.2020 the non-applicant No.1
filed another complaint before the learned Judicial Magistrate
First Class bearing No.292/2020. The prayer of the present non-
applicant No.1 and other legal heirs to issue direction under
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Section 156(3) of Cr.P.C. was rejected by the learned Judicial
Magistrate First Class, Kamptee on 15.07.2020 and the
complaint was put for verification. The non-applicant No.1 did
not appear for verification and challenged the order of the
learned Judicial Magistrate First Class before the learned
Additional Sessions Judge, Nagpur without joining the applicants
as a necessary party. The learned Additional Sessions Judge,
Nagpur, allowed the Criminal Revision Application No.161/2020.
The said revision was allowed on 06.08.2020 and the matter is
remanded back to the learned Judicial Magistrate First Class,
Kamptee to decide afresh. On 17.08.2020, the learned Judicial
Magistrate First Class, Kamptee, issued a direction to register the
FIR. In view of that, the FIR was registered against the present
applicants.
7. As per the recitals of the FIR, it was alleged that the
applicants have prepared a forged agreement to sale to grab the
property which is ancestral property and accused No.1 has
signed on the said agreement of sale by forging the signature of
the husband of the non-applicant No.1 and the witnesses are
also fake and thereby cheated the complainant. On the basis of
the said report, police have registered the crime against the
present applicants.
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8. The present application now filed by the applicants for
quashing of the FIR. Learned counsel for the applicants Mr. Nitin
Bargat, submitted that from the entire facts and circumstances it
reveals that the nature of the dispute is civil in nature. The
husband of the non-applicant No.1 entered into an agreement to
sale the said property and accepted the earnest amount. During
the life time the original owner, the husband of the non-applicant
No.1 never contended that he has not received the earnest
amount. His defence before the trial Court shows that he
admitted that he received the earnest amount. His only
contention is that he got acquaintance with the present
applicants through one Umashankar Marothe as he was in need
of financial assistance and the loan amount was supposed to be
returned to Mr. Umashankar Marothe. He denied execution of
the agreement of sale, but his contention before the Civil Court
was never that his signature was forged on the agreement to
sale. As the non-applicant No.1 and other legal heirs could not
succeed in any of the litigation though they have filed the various
applications only to harass the present applicants, this false FIR
came to be lodged. He submitted that after going through the
entire documents even the civil suits and various applications
filed by the non-applicant No.1, it reveals that the dispute is in
the nature of civil dispute and no criminal offence is made out.
He submitted that intention has to be gathered from the
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circumstances. From the recitals of the FIR and documents
nowhere discloses that with a dishonest intention the applicants
entered into an agreement to grab the property of the original
owner. On the contrary, written statement filed by the original
owner before the Civil Court shows that he admitted he received
the earnest amount. This fact is also considered by the Civil
Court while deciding the interim application for injunction and the
learned Civil Judge Senior Division, Nagpur, specifically observed
that the suit property which stands in the name of the defendant.
The agreement came to be executed on which the earnest
amount was paid by cash and cheque. The defendant admitted
about payment received by cheque. Certain conditions which are
required to be fulfilled for execution of sale deed are not
complied by the defendant and the execution of sale deed was
not done and restrained the defendant from creating any third
party interest or alienating the suit property. He submitted that
various attempts were made by the non-applicant No.1 and other
legal heirs to implicate the present accused in the criminal
offence, but all attempts are invain, and thereafter this FIR came
to be lodged. Learned Magistrate has rightly considered that the
dispute is of a civil nature and earlier complaints were rejected.
The complaint which was filed by the non-applicant No.1 was
also not considered by the learned Judicial Magistrate First Class,
Kamptee and initially no directions were issued to register the
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FIR. The learned Additional Sessions Judge, Nagpur fail to
consider all these aspects and the earlier order is passed by the
Civil Court and without hearing the present applicants issued
directions to the Judicial Magistrate First Class to hear the
complaint afresh and issued appropriate directions. The order
passed by the learned Additional Sessions Judge, Nagpur, is
erroneous and liable to be quashed and set aside. In support of
his contention he placed reliance on Manharibhai Muljibhai
Kakadia and Anr. vs. Shaileshbhai Mohanbhai Patel and
Ors. reported in 2012 ALL MR (Cri) 4105 (S.C.)
9. Per contra, learned APP Mr. Nikhil Joshi for the State
strongly opposed the said contention and submitted that the FIR
is registered on the basis of the allegations that the applicants
have forged the signature of the original owner and therefore,
investigation is required to ascertain the said fact. He submitted
that from the recitals of the FIR, the prima facie offence is made
out and therefore, the application deserves to be rejected.
10. Learned counsel Mr. Satish Uke for the non-applicant
No.1 vehemently submitted that the complaint filed by the
non-applicant No.1 after following the guidelines issued in the
case of Priyanka Srivastava Vs. State of U.P.[AIR 2015 SC
(CRI) 800]. He submitted that the FIR remitted back to the
learned Judicial Magistrate First Class to hear the same afresh.
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The learned Magistrate after considering the fact that the legal
heirs, who were having undivided shares in the suit property and
without their consent by manipulating the deceased the
agreement to sale is got executed, issued directions to register
the FIR which is proper, legal one. He submitted that merely
because some civil transaction is pending is not sufficient to hold
that the dispute is of a civil nature. Sometimes even though the
dispute is of a civil nature, the element of criminality whether
existed or not is to be considered. Here in the present case, with
an intention to deceive the non-applicant No.1 and other legal
heirs, the applicants forged the signature of the original owner.
The issue regarding the forgery is the matter of investigation and
therefore, at this stage, it is not a fit case to quash the FIR.
Learned counsel has also placed on record written notes of
arguments. In support of his contention he placed reliance on S.
N. Vijayalakshmi and others Vs. State of Karnataka
reported in 2025 SCC OnLine SC 1575.
11. Before entering into the merits of the entire issue
involved, it is necessary to consider the law regarding quashing
of the FIR in the case of Paramjeet Batra vs State Of
Uttarakhand and Ors. reported in (2013) 11 SCC 673,
wherein the Hon’ble Apex Court in paragraph No.12 has
observed as under:
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“12. While exercising its jurisdiction under Section 482
of the Code the High Court has to be cautious. This
power is to be used sparingly and only for the purpose
of preventing abuse of the process of any court or
otherwise to secure ends of justice. Whether a
complaint discloses a criminal offence or not depends
upon the nature of facts alleged therein. Whether
essential ingredients of criminal offence are present or
not has to be judged by the High Court. A complaint
disclosing civil transactions may also have a criminal
texture. But the High Court must see whether a dispute
which is essentially of a civil nature is given a cloak of
criminal offence. In such a situation, if a civil remedy is
available and is, in fact, adopted as has happened in
this case, the High Court should not hesitate to quash
criminal proceedings to prevent abuse of process of
court.”
12. In another judgment in the case of Vesa Holding (P).
Ltd. Vs. State of Kerla (2015) 8 SCC 293, wherein the
Hon’ble Apex Court in paragraph No.13 observed as under:
“13. It is true that a given set of facts may make out a
civil wrong as also a criminal offence and only because
a civil remedy may be available to the complainant
that itself cannot be a ground to quash a criminal
proceeding. The real test is whether the allegations in
the complaint disclose the criminal offence of cheating
or not. In the present case there is nothing to show
that at the very inception there was any intention on
behalf of the accused persons to cheat which is a
condition precedent for an offence under Section 420
IPC. In our view the complaint does not disclose any
criminal offence at all. The criminal proceedings should
not be encouraged when it is found to be mala fide or
otherwise an abuse of the process of the court. The
superior courts while exercising this power should also
strive to serve the ends of justice. In our opinion in
view of these facts allowing the police investigation to
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continue would amount to an abuse of the process of
court and the High Court committed an error in
refusing to exercise the power under Section 482
Criminal Procedure Code to quash the proceedings.”
13. In the decision of State of Haryana and others Vs
Bhajan Lal and others reported in 1992 Supp. (1) SCC 335,
the Hon’ble Apex Court has considered the statutory provisions
has also the earlier decisions and laid down the parameters
which reads as under:
“(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their
face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against
the accused.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do not
disclose a cognizable offence, justifying an investigation
by police officers under Section 156(1) of the Code
except under an order of a Magistrate within the purview
of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in support of
the same do not disclose the commission of any offence
and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis of
which no prudent person can ever reach a just
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(13)conclusion that there is sufficient ground for proceeding
against the accused.
(6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge.”
14. By referring all these judgments in the case of Usha
Chakraborty and another Vs. State of West Bengal and
another, (2023) 15 SCC 135, the Hon’ble Apex Court has
considered the exercise of powers of quashing and reiterated the
basic requirement and ingredients to bring home the accusations
in different provisions of IPC.
15. Similar view is taken by the Hon’ble Apex Court in the
case of Anukul Singh Vs. State of Uttar Pradesh and Anr. in
Criminal Appeal No.4250/2025 decided on 24.09.2025, on
the basis of various judgments. Thus, what is to be considered is
that while exercising the inherent jurisdiction under Section 482
of Cr.P.C., which is though wide has to be exercised sparingly,
carefully and with caution and only when such exercise is
justified by the test specifically laid down in section itself.
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16. In the light of the well settled law as to the quashing of
the FIR, the facts and circumstances of the present case are to
be looked into.
17. Undisputedly, Zabbulal Yadao was the owner of land
situated at Mouza Ghorpad P.H. No.18, Tahsal Kamptee, District
Nagpur admeasuring 1.94 H.R. out of Survey No.148/3-A. The
documents which is placed on record shows that he entered into
an agreement to sale with the present applicants on 18.04.2011
and earnest amount is received by him to the tune of
Rs.13,48,239/-. The documents further shows that as per the
agreement to sale, he has to measure the land before execution
of sale deed. Thus, some part of the contract was to be
performed by him. As he has not executed the sale deed in
favour of the present applicants, they have issued the notice to
Advocate of the original owner Zabbulal Yadao dated
30.07.2014, indicating that they will remain present in the
Registrar’s office for execution of sale deed. Accordingly, they
were present in the Registrar’s office for execution of sale deed
on 13.08.2014, but Zabbulal Yadao did not turn up. Therefore,
they constrained to file Special Civil Suit No.662/2014. The said
suit was filed by the applicants for specific performance. In
response to the suit summons, Zabbulal Yadao filed his written
statement and denied the contention of the applicants that he
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has executed the agreement of sale. But, he came with a case
that he was in need of financial assistance, he got acquaintance
with Mr. Umashankar Marothe at Nilam Lawns situated at
Kamptee, who introduced himself as a property broker and
moneylender. The said Umashankar Marothe agreed to help by
way of financial assistance to him. Accordingly, he has obtained
the amount through cheque No.755183 and 838157 from the
said Umashankar Marothe. Said hand loan amount to be
returned to Umashankar Marothe along with 2% interest. First
time when he received the suit summons, he came to know that
the agreement of sale is got executed, in fact, he has not
executed any agreement to sale in favour of the present
applicants. Thus, Mr. Zabbulal Yadao accepted that he received
the consideration amount by cheque. Considering this aspect
Civil Judge Senior Division has directed Zabbulal Yadao not to
create any third party interest in the suit property during the
proceedings of the suit.
18. The original owner Zabbulal Yadao, subsequently filed an
application under Order VI Rule 17 of CPC seeking an
amendment contending that he never agreed for sale of his
agriculture property to anybody. However, during the pendency
of this application, he died on 30.08.2016. The said application
came to be rejected. Thereafter, the legal heirs of Zabbulal
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Yadao i.e. son of the said Zabbulal Yadao entered into an
agreement with Ramesh Karemore and partnership deed was
executed on 27.01.2017 to run a partnership firm under the
name as ‘Shri Trimurti Builders and Developers’. It is also
undisputed that the son of the said Zabbulal Yadao namely Sushil
Yadao lodged a complaint against the present applicants by
addressing the application to the Police Inspector, Kamptee
Police Station. It is alleged in the said complaint that the
applicants have prepared the forged agreement to sale and the
signature on the said agreement of sale is not of their father and
thereby present applicants have committed an offence under
Section 120-B, 209, 420, 468, 471 of the IPC. The Investigating
Officer i.e. concerned Police Officer of the said Police Station
issued the notice to the present applicants and present
applicants produced some documents before the said police
officer therefore, further action was not taken against the
present applicants. In the meantime, on 15.12.2017 the present
applicants have issued the notice to the legal heirs of the original
owner Zabbulal Yadao. The said notice was replied by the legal
heirs on 20.12.2017 with a similar contention. It is further
contention of the legal heirs of the original owner that the said
property is ancestral property and the legal heirs are having their
undivided shares and their father cannot sale the said property
without their consent. During the pendency of the suit, one
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Yuvraj Humne also appeared on behalf of the legal heirs with
contention that due to the financial conditions, they are unable to
engage the counsel. Under Order III Rule 1 of CPC, the said
application came to be rejected by the 10 th Joint Civil Judge
Senior Division, Nagpur.
19. As the police have not taken cognizance of the complaint
of the legal heirs of the original owner Zabbulal Yadao, they filed
miscellaneous application before the learned Judicial Magistrate
First Class, Kamptee bearing No.538/2017. The learned
Magistrate has considered the said application and after going
through the documents, he come to the conclusion that the
alleged transactions is between father of the applicants therein
and non-applicants, but during his lifetime the said transaction is
not challenged. The civil litigation is pending between the
parties. The allegations regarding fraud are not substantiated
and therefore, rejected the application. Thereafter, another
application was again filed bearing No.107/2018 before the
learned Judicial Magistrate First Class, Kamptee. The learned
Judicial Magistrate First Class has rejected the prayer of issuing
the directions to register the FIR. The legal representatives of
the original owner also filed an applications under Section 340 of
Cr.P.C. below Exh.75 in the Special Suit, the same also rejected,
then they have filed an application for return of the plaint the
same was also rejected. The legal heirs of the original owner
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challenged the order of the learned Judicial Magistrate First Class
rejecting the prayer to give direction under Section 156(3) of
Cr.P.C. by preferring Criminal Revision Application No.161/2020.
The said revision application is allowed and the Criminal
Application No.292/2020 was again sent to the learned Judicial
Magistrate First Class, Kamptee for deciding a fresh and
thereafter the learned Magistrate allowed the application and FIR
came to be registered against the present applicants.
20. Thus, it is undisputed that civil litigation was pending
between the present applicants and original owner and after his
death, the legal heirs of the original owner. As far as the
allegation regarding forgery of the signature is concerned, it was
never contended by the original owner that the document in
dispute i.e. agreement to sale does not bears his signature, but it
is a forged signature. He only stated that he has not executed
any agreement to sale, but though he filed his written statement
and also filed an application for amendment and none of the
application discloses that he has challenged the signature on the
agreement to sale. On the contrary, the pleading of the original
owner in the written statement shows that though he has
admitted that he has received the earnest amount, but come
with the case that he has received the hand loan amount from
one Marothe through the cheque which is mentioned in the
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agreement to sale. Thus, the contention of the non-applicant
No.1 that the signature on the agreement to sale is a forged
signature and the applicants have forged the same is not
substantiated by the stand taken by the original owner in the
written statement which is filed in a civil suit. It is apparent that
the various applications were filed against the present applicants
but the legal heirs of the original owner could not succeed in it
and thereafter, the said FIR came to be lodged approximately
after four years of the execution of the sale deed. It is pertinent
to note that in the FIR lodged by the non-applicant No.1 against
the present applicants, the aspect of civil litigation and filing of
various applications as well as filing of the previous complaints
which came to be rejected by the learned Magistrate, is not
mentioned and this fact is suppressed while lodging the FIR.
21. The applicants are charged for the offence punishable
under Sections 120-B, 420, 468, 471 read with Section 34 of the
IPC. As per the allegations of non-applicant No.1, the applicants
by hatching conspiracy, prepared the forged document
agreement to sale which does not bear the signature of her
husband Zabbulal Yadao. However, the recitals of the FIR
nowhere disclose that it was the present applicants who have
forged the signatures. On the contrary, the said stand taken in
the FIR is contrary to the stand taken by the original owner in
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the civil suit. Moreover, the earlier filing of the application before
the police as well as previous complaint filed before the learned
Judicial Magistrate First Class bearing No.538/2017 which came
to be rejected, is suppressed by the present non-applicant No.1.
The order passed by the learned Judicial Magistrate First Class
below another complaint application No.107/2018 was also
suppressed by the complainant. On the contrary, entire
documents on record discloses civil transactions. It is true that a
complaint discloses civil transaction may also have a criminal
texture. Whether essential ingredients of criminal offence are
present or not has to be judged by this Court and while judging
the same it must be seen whether a dispute which is essentially
of a civil nature is given a cloak of criminal offence. In such a
situation, if a civil remedy is available and is, in fact, adopted,
the criminal proceeding is to be quashed.
22. In the case of Usha Chakraborty (referred supra)
wherein the Hon’ble Apex Court has considered all these aspects
and held that the materials on record pertaining to the said
pleadings instituted in the Civil Suit, produced in this proceeding
would reveal that the respondent was in fact ousted from the
membership of the trust. In the counter affidavit filed in this
proceeding, the respondent has virtually admitted the pendency
of the suit filed against his removal from the post of Secretary
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and the trusteeship and its pendency. The factum of passing of
adverse orders in the interlocutory applications in the said Civil
Suit as also the prima facie finding and conclusion arrived at by
the Civil Court that the respondent stands removed from the post
of Secretary and also from the trusteeship are also not disputed
therein. Then, the question is why would the respondent conceal
those relevant aspects? The indisputable and undisputed facts
would reveal the existence of the civil dispute on removal of the
respondent from the post of Secretary of the school as also from
the trusteeship.
23. It is further held by the Hon’ble Apex Court that by
non-disclosure the respondent has, in troth, concealed the
existence of a pending civil suit between him and the appellants
herein before a competent civil court which obviously is the
causative incident for the respondent’s allegation of perpetration
of the aforesaid offences against the appellants.
24. It is further observed that the factual position thus would
reveal that the genesis as also the purpose of criminal
proceedings are nothing but the aforesaid incident and further
that the dispute involved is essentially of civil nature. The
appellants and the respondents have given a cloak of criminal
offence in the issue. In such circumstance when the respondent
had already resorted to the available civil remedy and it is
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pending, going by the decision in Paramjeet Batra (supra), the
High Court would have quashed the criminal proceedings to
prevent the abuse of the process of the Court but for the
concealment.
25. Here in the present case also, the pleading instituted in
the civil suit wherein the original owner Zabbulal Yadao though
have not accepted the execution of the agreement of sale, but
have accepted the receipt of the earnest amount. Then, he
made an attempt to amend the pleading which is not accepted
by the civil Court, thereafter various applications and complaints
are filed, the same are not disclosed in the FIR. There was
non-disclosure by the non-applicant No.1 of filing of the civil suit
against the present applicants and various order passed by the
trial Courts.
26. Learned counsel for the non-applicant No.1 placed
reliance on the decision of S. N. Vijayalakshmi and others
(referred supra), wherein also the Hon’ble Apex Court has
considered the judgment of Usha Chakraborty and another
(referred supra) and also referred Paramjeet Batra (referred
supra) and observed that whether a complaint discloses a
criminal offence or not depends upon the nature of facts alleged
therein. Whether essential ingredients of criminal offence are
present or not has to be judged by the High Court. A complaint
apl.1.2021.Judgment.odt
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disclosing civil transactions may also have a criminal texture. But
the High Court must see whether a dispute which is essentially of
a civil nature is given a cloak of criminal offence. In such a
situation, if a civil remedy is available and is, in fact, adopted as
has happened in this case, the High Court should not hesitate to
quash the criminal proceedings to prevent abuse of process of
the court.
27. It is further observed that the obvious caveat being that
the allegations, even if having a civil flavour to them, must prima
facie disclose an overwhelming element of criminality. In the
absence of the element of criminality, if both civil and criminal
cases are allowed to continue, it will definitely amount to abuse
of the process of the Court, which the Courts have always tried
to prevent by putting a stop to any such criminal proceeding,
where civil proceedings have already been instituted with regard
to the same issue, and the element of criminality is absent. If
such element is absent, the prosecution in question would have
to be quashed.
28. At the same time, the allegations to be looked into in the
light of the ingredients of the offence under Section 467 of IPC.
The essential ingredients to constitute the offence punishable
under this section are:
(i) commission of forgery;
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(ii) that such commission of forgery must be in relation
to a document purporting to be
(a) a valuable property; or
(b) a will; or
(c) an authority to adopt a son; or
(d) which purports to give authority to any
person to make or transfer any valuable security;
or
(e) the receive the principle, interest or dividends
thereon; or
(f) to receive or deliver any money, movable
property or valuable security, or any document
purporting to be an acquittance or receipt
acknowledging the payment of money, or
(g) an acquittance or receipt for the delivery of
any movable property or valuable security.
29. The requirement to constitute the offence punishable
under Section 468 IPC are:
(i) Commission of forgery,
(ii) that he did so intending that the document
or electronic record forged shall be used for the
purpose of cheating.
30. The factual position in the present case would reveal that
the dispute arose between the present applicants and the legal
heirs of the original owner as to the agreement of sale executed
by the original owner and after four years, the FIR came to be
lodged by alleging that the signature on the agreement to sale is
forged one. Even accepting the allegation in the FIR, which are
apl.1.2021.Judgment.odt
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not sufficient to constitute the offence punishable under Sections
467 and 468 of IPC.
31. As far as the offence punishable under Section 420 of IPC
is concerned, to constitute the said offence there must be
deception that the accused must have deceived someone; that
by such deception the accused must induce a person:
(i) to deliver any property; or
(ii) to make, alter, destroy a whole or part of the
valuable security or anything which is signed or
sealed and which is capable of being converted
into a valuable property; or
(iii) that the accused must have done so
dishonestly. The offence punishable under
Section 120B, IPC, to constitute criminal
conspiracy, there must be agreement between
two or more persons. The agreement should be
to do or cause to be done some illegal act, or
some act which is not illegal, by illegal means,
provided that where the agreement is other than
one to commit an offence, the prosecution must
further prove; or
(iv) that some act besides the agreement was
done by or more of the parties in pursuance of it.
32. Now the question is whether the allegations in the
aforesaid FIR are sufficient to constitute the alleged offence.
Admittedly, the allegations levelled in the written statement are
contrary to the FIR. Moreover, it is apparent that, the original
owner never alleged that his signature on the said agreement to
apl.1.2021.Judgment.odt
(26)
sale is forged one. Admittedly, the dispute appears to be civil in
nature.
33. Here in the present case, a complaint disclosing civil
transaction and my no stretch of imagination it can be said that
there was intention since inception, and therefore, the offence
under Section 420 of IPC is not made out in the present case.
The offence under Section 467 or 468 of IPC are also not made
out against the present applicants. As far as the conspiracy is
concerned, except the bare allegation, there is absolutely no
material to show that the applicants entered into an agreement
to do an illegal act and in pursuance of the said illegal act, they
have carried out further acts. Admittedly, there would not be a
direct evidence available as far as the conspiracy is concerned,
but there has to be some evidence to show the involvement of
the present applicants in the conspiracy.
34. It is submitted by the learned counsel for the applicants
that the revision was filed by the legal heirs of the original owner
and the Sessions Judge has not considered that the applicants
are not party to the said revision and the order of remitting back
the application is passed behind the back of the present
applicants. He submitted that admittedly, when the complaint
was filed the applicants have no right to agitate their grievances
however, when revision against the dismissal of complaint is
apl.1.2021.Judgment.odt
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filed, persons who are arraigned as an accused in the complaint
have a right to be heard in such a revision application. He placed
reliance on the decision of the Hon’ble Apex Court in the case of
Manharibhai Muljibhai Kakadia and Anr. vs. Shaileshbhai
Mohanbhai Patel and Ors. (referred supra) wherein the
Hon’ble Apex Court has laid down the entire procedure when
application is filed under Section 156(3) of Cr.P.C. as well as
procedure is to be followed when complaint is filed under Section
200 of the Cr.P.C. It is observed by the Hon’ble Apex Court that
Chapter XVI of the Code has Sections 204 to 210. Section 204
deals with the issuance of process by the Magistrate. The process
is issued by the Magistrate if in his opinion there is sufficient
ground for proceeding. Section 210 provides for procedure to be
followed when there is complaint case and police investigation in
respect of the same offence. It reads as under:
“Section 210. Procedure to be followed when there
is a complaint case and police investigation in
respect of the same offence.–(1) When in a case
instituted otherwise than on a police report (hereinafter
referred to as a complaint case), it is made to appear to
the Magistrate, during the course of the inquiry or trial
held by him, that an investigation by the police is in
progress in relation to the offence which is the subject-
matter of the inquiry or trial held by him, the Magistrate
shall stay the proceedings of such inquiry or trial and call
for a report on the matter from the police officer
conducting the investigation.
(2) If a report is made by the investigating police officer
under Section 173 and on such report cognizance of any
apl.1.2021.Judgment.odt
(28)offence is taken by the Magistrate against any person who
is an accused in the complaint case, the Magistrate shall
inquire into or try together the complaint case and the
case arising out of the police report as if both the cases
were instituted on a police report.
(3) If the police report does not relate to any accused in
the complaint case or if the Magistrate does not take
cognizance of any offence on the police report, he shall
proceed with the inquiry or trial, which was stayed by him,
in accordance with the provisions of this Code.”
35. The Hon’ble Apex Court further held that Section 397 of
the Code empowers the High Court or the Sessions Judge to call
for and examine the record of any proceeding before any inferior
court situate within its or his local jurisdiction for the purpose of
satisfying itself or himself as to the correctness, legality or
propriety, inter alia, of any order passed by such inferior court.
The powers of revision are concurrent with the High Court and
the Sessions Judge. By virtue of Section 399, the Sessions Judge
may exercise all or any of the powers which may be exercised by
the High Court under sub-section (1) of Section 401 and while
doing so the provisions of sub-sections (2),(3),(4) and (5) of
Section 401 apply to such power as far as possible.
36. It is further held by the Hon’ble Apex Court that Section
202 of the Code has twin objects; one, to enable the Magistrate
to scrutinize carefully the allegations made in the complaint with
a view to prevent a person named therein as accused from being
apl.1.2021.Judgment.odt
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called upon to face an unnecessary, frivolous or meritless
complaint and the other, to find out whether there is some
material to support the allegations made in the complaint. The
Magistrate has a duty to elicit all facts having regard to the
interest of an absent accused person and also to bring to book a
person or persons against whom the allegations have been
made. To find out the above, the Magistrate himself may hold an
inquiry under Section 202 of the Code or direct an investigation
to be made by a police officer. The dismissal of the complaint
under Section 203 is without doubt a pre-issuance of process
stage. The Code does not permit an accused person to intervene
in the course of inquiry by the Magistrate under Section 202. The
legal position is no more res integra in this regard. More than
five decades back, this Court in Vadilal Panchal Vs.
Dattatraya Dulaji Ghadigaonker and another (1961) 1 SCR
1 with reference to Section 202 of the Criminal Procedure Code,
1898 (corresponding to Section 202 of the present Code) held
that the inquiry under Section 202 was for the purpose of
ascertaining the truth or falsehood of the complaint, i.e., for
ascertaining whether there was evidence in support of the
complaint so as to justify the issuance of process and
commencement of proceedings against the person concerned.
37. It is further held that the object of provisions of Section
202 was to enable the Magistrate to form an opinion as to
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whether process should be issued or not and to remove from his
mind any hesitation that he may have felt upon the mere perusal
of the complaint and the consideration of the complainant’s
evidence on oath. It was further held that an accused person
does not come into the picture at all till process is issued.
38. After considering the entire provisions under Section 156,
200, 201 to 204 and 210 the Hon’ble Apex Court held that:
“(i) There is a distinction to be drawn between the criminal
complaint cases which are at the pre-cognizance stage and
those at the post-cognizance stage. There is a further
distinction to be drawn between the cases at the
post-cognizance but pre-summoning stage and those at
the post-summoning stage.
(2) It is only at the post-summoning stage that the
respondents in a criminal complaint would answer the
description of an ‘accused’. Till then they are like any other
member of the public. Therefore at the pre-summoning
stage the question of their right to be heard in a revision
petition by the complainant in their capacity as “accused”
in terms of Section 401(2) CrPC does not arise.
3) At the post-cognizance but pre-summoning stage, a
person against whom the complaint is filed might have a
right to be heard under the rubric of ‘other person’ under
Section 401(2) CrPC. If the learned MM has not taken the
cognizance of the offence then no right whatsoever accrues
to such “other person” to be heard in a revision petition.
(4) Further, it is not that in every revision petition filed by
the complainant under Section 401(2) CrPC, a right of
hearing has to be given to such “other person” or the
accused against whom the criminal complaint has been
filed. The right accrues only if the order to be passed in the
revision petition is prejudicial to such person or the
accused. An order giving a specific direction to the learned
apl.1.2021.Judgment.odt
(31)
MM to either proceed with the case either at the
post-cognizance or post-summoning stage or a direction to
register an FIR with a direction to the learned MM to
proceed thereafter might be orders prejudicial to the
respondents in a criminal complaint which would therefore
require them to be heard prior, to the passing of such
order.”
39. Thus, it is held by the Hon’ble Apex Court that by virtue
of Section 401(2) of the Code, the suspects get right of hearing
before revisional court although such order was passed without
their participation. The right given to “accused” or “the other
person” under Section 401(2) of being heard before the
revisional court to defend an order which operates in his favour
should not be confused with the proceedings before a Magistrate
under Sections 200, 202, 203 and 204. In the revision petition
before the High Court or the Sessions Judge at the instance of
complainant challenging the order of dismissal of complaint, one
of the things that could happen is reversal of the order of the
Magistrate and revival of the complaint. It is in this view of the
matter that the accused or other person cannot be deprived of
hearing on the face of express provision contained in Section
401(2) of the Code. The stage is not important whether it is
pre-process stage or post process stage.
40. In the light of the above observations, admittedly, in the
revision petition before the Sessions Judge at the instance of
complainant challenging the order of rejection of the prayer for
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issuance of the direction to register the FIR, wherein when the
Sessions Judge come to the conclusion that the order is to be
reversed and it is to be remitted back to the Magistrate then
hearing to the accused was required.
41. Here in the present case, the conduct of the
non-applicant No.1 can be seen from the circumstance that
despite the various applications are rejected either by the civil
Court or by the criminal Court and declined to take cognizance
and specific observation that dispute is of civil nature but
suppressing the earlier order passed by the learned Judicial
Magistrate First Class, a new application was filed by the
non-applicant No.1 and order was obtained to show she has not
come before the court with a clean hands.
42. Thus, for invocation of the offence punishable under
Section 420 of IPC, it is imperative that the accused should have
induced the complainant to part with valuable security and that
such inducement should at the inception, which is absent in the
present case.
43. Thus, on a careful consideration of the facts and
circumstances of the present case and by applying parameters
laid down in various decisions and by applying the above
principles to the facts of the present case, it is apparent that, the
apl.1.2021.Judgment.odt
(33)
dispute between the present applicants and non-applicant No.2 is
purely civil in nature and the essential ingredients of cheating or
forgery are not prima facie made out. There is non-disclosure by
the Non-applicant No.1 regarding pending of civil suit and
various orders passed against her was concealed, which
obviously in view of the decision of the Hon’ble Apex Court in the
case of Usha Chakraborty (supra), is the causative incident.
44. As noticed above a bare perusal of the allegations and the
ingredients would reveal that the allegations are vague and not
sufficient to constitute the essential ingredients to constitute the
alleged offence. Thus, it is an attempt by the non-applicant No.1
to implicate the present applicants in a criminal proceeding
though the dispute involved is a civil nature.
45. In such circumstances, considering all above facts and
circumstances I am of the considered opinion that this is a fit
case, wherein the powers under Section 482 of Cr.P.C. to be
exercised, and therefore, I proceed to pass the following order.
ORDER
(i) The application is allowed.
(ii) The First Information Report in connection with
Crime No.410/2020 registered with Kamptee Police
Station, District Nagpur for the offence punishable
under Sections 207, 208, 209, 420, 468, 571 and
120-B of the Indian Penal Code, is hereby quashed
and set aside to the extent of the present applicants.
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(34)
46. Pending application/s, if any, shall stand disposed of
accordingly.
(URMILA JOSHI-PHALKE, J.)
Sarkate.
Signed by: Mr. A.R. Sarkate
Designation: PA To Honourable Judge
Date: 26/02/2026 19:21:06
