IMPORTANT POINT
Cheating – A third party who is not purchaser under sale transaction, may not be able to make such complaint.

JUDGMENT :

ABHAY S. OKA, J.

FACTUAL ASPECT

1. By the impugned judgment, the High Court has dismissed a writ petition filed by the appellant for quashing a First Information Report (for short, the ‘impugned FIR’) registered at the instance of the 4th respondent for the offence punishable under Section 420 of the Indian Penal Code, 1860 (for short, ‘IPC’).

2. The dispute pertains to the property known as “CAPNIVORIL GUERA”, “CAPNIVORIL MOLLY” or “KAPNI VARIL GHERA” situated in Dhargalim Village, Pernem, Goa, which is described in the Land Registration Office of Bardez under No. 63 at pages 11V of book overleaf of B-1(new) bearing Sy No. 481/0 (for short, ‘the subject property’).

3. On 16th October 2018, the 4th respondent filed twelve separate civil suits in the civil court in Goa, claiming a declaration of his ownership in respect of the subject property. In the suits filed by the 4th respondent, it was contended that the subject property is a common and undivided property in which the 4th respondent has an undivided share, which he inherited from his father. The appellant filed a written statement in the suit on 1st September 2020 and claimed that the property was originally owned by one Sacarama Sadassiva Natecar. On 23rd October 2020, the 4th respondent, through his constituted attorney, filed a complaint with the Superintendent of Police, North Goa District, alleging that the appellant had sold a portion of the subject property without the consent of all the legal heirs of both co-owners. Based on the said complaint, the impugned FIR was registered by the police. The appellant was granted anticipatory bail by the sessions court vide order dated 10th February 2021 in connection with the impugned FIR. On 23rd October 2021, the appellant filed a writ petition before the High Court for quashing the FIR. By the impugned judgment dated 1st March 2023, the High Court dismissed the petition.

SUBMISSIONS

4. The learned senior counsel appearing on behalf of the appellant stated that the appellant is the constituted attorney of Vidhya Natekar and Sanjay Natekar, the vendors under the sale deeds subject matter of the impugned FIR. He submitted that the 4th respondent in his complaint had accepted co-ownership of the vendors in respect of the subject property under the sale deeds. Learned senior counsel submitted that a complaint was filed by the 4th respondent more than two years after the date of institution of the civil suit. Learned senior counsel pointed out how Sacarama Sadassiva Natecar became the owner of the subject property based on documents executed in the years 1928 and 1929. He submitted that Vidhya Natekar and Sanjay Natekar are the legal representatives of Sacarama Sadassiva Natecar. He submitted that both claimed a half share in the subject property in view of the regime of the communion of assets applicable in the State of Goa. He pointed out that, on 10th May 2013, the appellant had published a public notice calling for objections from any interested party concerning the subject property.

5. He pointed out that the ingredients of the offence of cheating under Section 415 of IPC were not made out. He relied upon a decision of this Court in the case of R.K.Vijayasarathy and Anr. v Sudha Seetharam and Anr. (2019) 16 SCC 739. He also relied upon a decision of this Court in the case of Mohd. Ibrahim v State of Bihar (2009) 8 SCC 751. The submission of the learned senior counsel appearing for the appellant is that the registration of the impugned FIR was mala fide. He pointed out that the appellant, apart from being a businessman, is an active member of the Maharashtra Gomantak Party and is a Member of the Legislative Assembly of the State of Goa.

6. Learned senior counsel representing the 4th respondent submitted that the appellant tried to dishonestly misappropriate the property belonging to the 4th respondent, who is a resident of the United States of America, and sold the subject property to third parties. He has done that w