N.N. Mathur, J. - (1.) By way of instant petition under section 482 Criminal Procedure Code , petitioners seek to quash the FIR No. 133/2004, Police Station, Balotra for the offence under sections 418, 423, 465, 467, 468, 471, 472 and 120-B Indian Penal Code.
(2.) The second respondent-Shyam Sunder filed a complaint in the Court of learned Chief Judicial Magistrate, Balotra alleging inter alia that within the municipal limits of Balotra, there is a Colony known as "Mahaveer Colony", wherein there is a plot No. 32, which was allotted to the first petitioner herein by Balotra Bhawan Nirman Sahakari Samiti Limited on 2.7.1980. The said plot was purchased by him from petitioner-Mohanlal by an oral agreement on 18.7.1980 for a sum of Rs. 10,000/-. A sum of Rs. 5,000/- was got deposited by the first petitioner herein with M/s. Ram Raghav Textiles. The rest of the amount of Rs. 5,000/- was paid to the first petitioner on 7.10.1980. On 13.10.1980, he gave an information to the Housing Society about the purchase of the subject plot. A prayer was also made to issue "patta" in his name. It is further averred that in the year 1983, he utilised the plot for the purpose of godown of his partnership firm viz; M/s. Gupta Road Lines. In order to show the possession over the plot, the details have been given as to the telephone number, the income-tax return, the payment of electricity and water bills etc. It is further averred that second and third petitioners viz; Pawan Kumar and Kamlesh Kumar are the sons of first accused-petitioner Mohanlal. It is alleged that all the three accused-petitioners with an intention to cheat the complainant constituted a bogus Firm in the name of M/s. Uma and Company. The second accused herein made an application for grant of loan to the Bank of Rajasthan Limited in the year 1997 and the plot No. 32, which does not belong to them, was mortgaged with the Bank showing themselves to be its owner. The other accused persons in conspiracy with accused-petitioners Nos. 1 to 3 submitted a false and fabricated verification report to the Bank. Further case of the complainant is that in addition to the Uma Dye Chem Private Limited, another false and fabricated Firm was established as Uma Handicrafts and the loan was obtained by the accused-petitioners herein in the name of said two bogus Firms from the Bank of Rajasthan Limited. The false and fabricated documents were prepared as to the ownership of the house over the plot No. 32. The loan was obtained from the Bank having mortgaged the house over plot No. 32. Further case of the complainant is that the Firm belonging to the accused-petitioners became defaulter and, as such, the Bank filed two claims being Claim No. 61/2002 for Rs. 10,59,000/- and Claim No. 37/2002 for Rs. 11,00,000/- before the Debts Recovery Tribunal. The house in question has been put to auction in the recovery proceedings which actually belongs to the complainant. Learned Magistrate sent the said complaint for investigation under section 156(3) Criminal Procedure Code to the SHO, Police Station, Balotra. The police has registered a case against the petitioners for the offence under sections 423, 465, 467, 468-B, 471, 472 and 120-B Indian Penal Code.
(3.) It is contended by the learned counsel Mr. Sandeep Mehta that the subject plot being No. 32 was purchased by the first petitioner-Mohanlal from Balotra Bhawan Nirman Sahakari Samiti Limited, a registered Society, in the year 1980 on payment of membership fee of Rs. 5,700/-. He raised a construction on the said plot. He was having good relations with the complainant- Shyam Sunder and, as such, permitted him to utilise the said plot. In the year 1993, the accused-petitioners started two business ventures at Jodhpur by the names of Uma Dye-Chem Private Limited and Uma Handicrafts and made application for loan under various heads to the Bank of Rajasthan Limited. Alongwith the said application, the property papers of the plot No. 32 were also submitted for being mortgaged. On enquiry made by the Bank, the factum of possession of Shyam Sunder, complainant, on the said property was disclosed by the petitioners and the report of the advocate in that regard was clear to the effect that the title and ownership of the property in question was with petitioner- Mohanlal. The Bank, therefore, accepted the mortgage and, accordingly, the loan was granted for establishing the business. However, the petitioners could not repay the loan for unavoidable reasons, which led to institution of proceedings by the Bank against the petitioners before the Debts Recovery Tribunal. When the warrant for recovery was issued, the complainant-Shyam Sunder raised objection against the auction and filed an application before the Debts Recovery Tribunal for impleading him as a party in the proceedings claiming that he had purchased the property from the first petitioner-Mohanlal by an oral agreement and he had also raised construction thereon. The said application was rejected by the Debts Recovery Tribunal by order dated 8.10.2002. The complainant also filed a suit for declaration as well as permanent injunction claiming himself to be the owner of the property in question. An application for temporary injunction was also filed which was decided by the order of the District Judge, Balotra dated 15.2.2003. It is held by the District Judge that Shyam Sunder had no right or title over the property in question and that none of the documents produced by him related to the plot No. 32, which was in possession of petitioner-Mohanlal. Learned District Judge also recorded the finding that the construction referred by the complainant pertained to plot No. 37 and not the subject plot being No. 32. It is submitted by Mr. Sandeep Mehta, learned counsel appearing for the petitioners, that this material aspect has been concealed by the complainant. Thus, according to the learned counsel, the claim of the complainant-Shyam Sunder regarding having purchased the plot No. 32 from the petitioners has failed before the Civil Court. The complainant, having failed before the Civil Court with a view to harass and humiliate the petitioners, has filed the complaint. The very continuance of the proceedings is nothing but an abuse of the process of the Court.;