VIBHA KANKANWADI, J.

1. Present application has been filed for invoking inherent powers of this Court, by the original accused No. 2 in order to challenge order of issue of process against him in RCC No. 561 of 2016 by Learned Judicial Magistrate First Class, Ahmednagar for the offence punishable under Sec. 420 of Indian Penal Code.

2. Applicant is Advocate by profession. He has contended that respondent had filed private complaint bearing RCC No. 561 of 2016 against applicant and 8 other persons for the offence punishable under Sec. 406, 409, 417, 418, 420, 465, 468, 469, 471 r/w. 34 of Indian Penal Code. After giving story in the complaint, it has been stated that after the verification of the complainant was recorded, the learned Magistrate has issued process against only the applicant under Sec. 420 of IPC. Complaint against other accused persons has been dismissed, so also under other sections against him. Applicant has contended that the said story is false. No specific role has been attributed to him. No ingredients are made out to attract offence of cheating. The alleged document on which the complainant is relying is false and fabricated. The stamp paper is misused by one Javed Khurshid Shaikh with whom applicant was employed in 2008. He had tried to make inquiry with Notary Shri. R. H. Bora and requested him to give a copy of the document. Notary informed him that his register has been destroyed. In fact, he ought to have preserved the register for 10 years. Even on the face of it, the complaint does not disclose any offence. Learned Magistrate has committed wrong in issuing process only against him. He has therefore, prayed for the setting aside the order of issuance of process against him.

3. Heard learned Advocate Shri. Shaikh Mazhar A. Jahagirdar for applicant and learned Advocate Shri. P. K. Lakhotiya for respondent. Perused the documents on record. It has been submitted on behalf of applicant that complainant has stated that he got acquaintance with applicant in Sub-Registrar's office. Applicant had suggested him the plot No. 16 from S. No. 104/A1 admeasuring 295.25 sq. mt. He went to inspect the property with applicant. He says that it was also informed by the applicant to the complainant that the plot is under litigation and those will be cleared soon. If at all there was any such agreement, then it was not binding on the complainant to enter into. It is stated that agreement to sell was executed before Notary Public. Why a registered document was not got executed is a question, when such a huge amount was allegedly parted with. Applicant has tried to collect the document from Notary, but he says that the register is destroyed. Applicant had also approached police, but cognizance has not been taken. There is no question of cheating by applicant, when he has not entered into any such agreement. Learned Magistrate has dismissed the complaint as against other accused persons, when it is alleged that all the accused had cheated him with common intention. Learned Magistrate has not applied mind before issuing process. He therefore, prayed for setting aside the impugned order.

4. Learned Advocate for the applicant has relied on the decision in Ganesh Vitthaldas Chandak v/s. State of Maharashtra and Ors. [LEX(Bom) 2017 8 107] decided by the Division Bench of this Court, Bench at Nagpur; wherein it has been held that,

“The nature of transaction of agreement to sell is civil in nature. There has to be dishonest intention to deceive another person for making out offence punishable under Sec. 420 of IPC. In order to avoid period of limitation under civil law, criminal proceeding cannot be resorted to”.

He further relied on the decision in Md. Ibrahim and Ors. V/s. State of Bihar and Anr. [(2009) 8 SCC 751]; wherein it has been held that,

“When it is said that execution of a sale deed by a person, purporting to convey a property which is not his, as his property, is not making a false document and therefore not forger