Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Bom) 1688

IN THE HIGH COURT OF BOMBAY
M.S. Sonak, Bharat P. Deshpande, JJ.
Jit Vinayak Arolkar - Appellant
Versus
State of Goa - Respondent
Criminal Writ Petition No. 55 of 2022
Decided On : 01-03-2023

Advocates appeared:
S.S. Kantak, Advocate, Abhijeet Gosavi Neha Kholkar, Advocate, Pravin Faldessai, Advocate, Arun De Sa, Advocate, J.J. Mulgaonkar, Advocate, Sahil Sardessai, Advocate

IMPORTANT POINT
The court established that allegations of cheating under Section 415 of IPC can be sufficient to warrant an investigation, and that the powers under Section 482 of Cr.P.C. should be exercised with caution, emphasizing the need for thorough investigations in cases involving potential criminal conduct.

Headnote:
QUASHING FIR - CHEATING - IPC Sec. 415, Cr.P.C. Sec. 482 - The court discussed the provisions of Section 415 of the IPC, which defines cheating, and Section 482 of the Cr.P.C., which allows for quashing FIRs. The court interpreted that the allegations against the petitioner indicated a prima facie case of cheating, as the petitioner, as a Power of Attorney holder, allegedly sold property without disclosing the co-ownership of the complainant. The court emphasized the need for thorough investigation and the sparing use of quashing powers, ultimately deciding not to interfere with the ongoing investigation.
Fact of the Case:
The petitioner sought to quash FIR No. 177/2020, alleging that it did not disclose the ingredients of Section 420 of IPC and that the dispute was civil in nature. The FIR was filed by Respondent No. 4, claiming the petitioner committed cheating regarding a property, while the petitioner argued that the complaint was politically motivated and that the matter was already under civil litigation.
Finding of the Court:
The court found that the FIR contained sufficient material to suggest a prima facie case of cheating under Section 415 of IPC. It noted that the petitioner, as Power of Attorney, allegedly sold property while knowing that Respondent No. 4 had a claim to co-ownership. The court emphasized the importance of allowing the investigation to proceed without interference.
Issues: Whether the FIR disclosed a cognizable offence under Section 415 of IPC and whether the court should exercise its powers under Section 482 of Cr.P.C. to quash the FIR.
Ratio Decidendi: The court reiterated that the power to quash an FIR should be exercised sparingly and only in rare cases where no cognizable offence is disclosed. It emphasized that the investigation should not be stifled at the initial stage and that the merits of the allegations should not be assessed prematurely.
Final Decision: The petition to quash the FIR was dismissed, allowing the investigation to continue.

JUDGMENT/ORDER

BHARAT P.DESHPANDE, J. - Rule. Rule is made returnable forthwith. With consent of the learned Counsel appearing for the parties, this matter was taken up for final disposal at the stage of admission.

2. Heard learned Senior Counsel Mr S.S. Kantak appearing with learned Counsel Mr Abhijeet Gosavi and Ms Neha Kholkar for the Petitioner, learned Additional Public Prosecutor Mr Pravin Faldessai for the State and learned Counsel Mr Arun de Sa, Mr J.J. Mulgaonkar and Mr Sahil Sardessai for Respondent No.4.

3. The Petitioner is praying for quashing of FIR No.177/2020 initially registered at Pernem Police Station on 26/10/2020 and now transferred to Special Investigation Team of the Economic Offences Cell, on the ground that the FIR nowhere disclosed ingredients of Sec. 420 of IPC and basically the dispute is purely civil in nature.

4. Mr Kantak appearing for the Petitioner strongly contended that though the timing of the FIR was only to prevent the Petitioner from campaigning for his party candidate in the Zilla Parishad Elections. However, Mr Kantak further submitted that he will not press this ground for the purpose of arguing the petition.

5. Mr Kantak then would submit that the Petitioner is a businessman apart from his political engagements and having offices at various places in Goa. He is active in social and political field in the State and contested Goa Assembly Elections of the year 2017 as an independent candidate from Mandrem Constituency. Petitioner also served as Director of Goa Tourism Development Corporation. Mr Kantak then would submit that due to political rivalry, a complaint was lodged by Respondent No.4 on 23/10/2020 alleging that Petitioner committed offence of cheating in respect of property bearing Survey No.481/0 of Village Dhargalim, Pernem Taluka. He then submitted that Respondent No.4 deliberately suppressed pendency of civil proceedings from the year 2018 itself filed by Respondent No.4 against the Petitioner and others in respect of same property, claiming declaration that the Respondent No.4 being the coowner of the said property and praying to set aside the sale deeds. Petitioner appeared before the Investigating Officer and cooperated with the agency. He also filed an application for anticipatory bail which was granted by the Sessions Court.

6. Mr Kantak would then submit that even though Respondent No.4 claimed to be co-owner of the said property, there are absolutely no allegations of any communication between the Petitioner and Respondent No.4 so as to induce Respondent No.4 from disposing off his property. The Petitioner disputes the claim of co-ownership of Respondent No.4. Therefore, according to Mr Kantak, ingredients of Sec. 415 of IPC are not at all made out so as to register FIR.

7. Mr. Kantak placed reliance on the following decisions:-

i. Mohammed Ibrahim and Ors. vs. State of Bihar and Anr., (2009) 8 SCC 751. ii. Prof. R.K. Vijayasarathy and Anr. vs. Sudha Seetharam and Anr., (2019) 16 SCC 739. and

iii. Vikesh K. Harmalkar and Anr. vs. Officer-in-charge/Police Inspector, Mapusa Police Station and Ors., 2022 SCC OnLine Bom 2610.

8. Per contra, the learned Additional Public Prosecutor Mr Faldessai submitted that the Investigating Officer has furnished report in sealed cover as directed by this Court which is self sufficient to show that there is material to register FIR and to prosecute the Petitioner and ingredients of Sec. 415 of IPC are prima facie attracted. He would submit that the Petitioner being Power of Attorney holder of Sanjay Sadashiv Natekar and Vidhya Sadashiv Natekar, illegally sub-divided the said property bearing Survey No.481/0 of Dhargalim village by showing it as the property of only Sanjay Natekar and Vidhya Natekar even though the Petitioner was well aware that this property is also belonging to Respondent No.4 whose name appears in the survey records as cooccupant along with Natekar family. He would submit that the Special Investigation Team constituted by the G