ABDUL ARIF ABDUL KHALIK Vs. SK. RAHAMAN SK. SHERU QURESHI
LAWS(BOM)-2017-11-83
HIGH COURT OF BOMBAY (AT: NAGPUR)
Decided on November 02,2017

Abdul Arif Abdul Khalik And ... Appellant
VERSUS
Sk. Rahaman Sk. Sheru Qureshi And 2 ... Respondents

JUDGEMENT

A.S.CHANDURKAR,J. - (1.) By this application filed under Section 482 of the Code of Criminal Procedure, 1973 (for short, the Code), the applicants who are accused Nos.1 and 2 in Criminal Case No.39/2008 filed by the non-applicant No.1 under Section 420 of the Indian Penal Code (for short, the Penal Code ) have challenged the order issuing process against them which order has been confirmed by the Sessions Court.
(2.) Facts in brief are that the applicants and one Mohd. Idris are three brothers. On 23/03/2004 a partition deed was executed between these brothers dividing Gat No.123 in three parts. Applicant No.1 herein received land admeasuring 1H 68 R from said Gat number which was situated in the middle portion. Applicant No.2 received similar area of land situated on the southern portion while the third brother Mohd. Idris received his share on the northern side. Mutation entries were accordingly taken. On 05/12/2007, an agreement was entered into by the present applicants with the non-applicant No.1 herein for selling of their portion of Gat No.123. The consideration agreed was Rs.2,25,000/- and Rs.50,000/- was received as earnest amount. The non-applicant No.1 filed a suit for declaration and permanent injunction being R.C.S. No.41/2008 praying that the three brothers should get their shares demarcated as he had agreed to purchase the shares of present applicants on 05/12/2007. Thereafter on 25/03/2008 complaint under Section 420 of the Penal Code came to be filed against all the three brothers in which it was stated that possession of the agreed portion was not been handed over to the non-applicant No.1. The learned Magistrate on 23/08/2008 issued process for the offence punishable under Section 420 of the Penal Code. The applicants herein challenged that order by filing revision application which came to be dismissed by the Sessions Court on 06/08/2009. Being aggrieved the present application under Section 482 of the Code has been filed.
(3.) Shri K. J. Tople, learned counsel for the applicants submitted that the dispute was clearly of a civil nature and no element of cheating as contemplated by Section 415 of the Penal Code was shown to be made out in the complaint. According to him on perusal of the entire complaint, it could be seen that the grievance of the non-applicant No.1 was that in the 7/12 extract there was no entry with regard to the specific portions of land from Gat No.123 allotted to each of the accused persons. Though the accused persons were requested to have such entries made, the same were not done. As the applicants did not comply with the promise made by them, they had cheated the non-applicant No.1. The learned counsel submitted that the properties had been duly partitioned and 7/12 extracts had been specifically prepared. Even the pleadings in the civil suit indicated that the applicants were ready to perform their part of agreement and hence permitting a complaint of such nature to proceed further would amount to abuse of the process of law. In support of this submission, the learned counsel placed reliance on judgment of the Honourable Supreme Court in Dalip Kaur & ors. vs. Jagnar Singh and anr. 2009 ALL MR (Cri) 3160.;


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