ORDER :

Perused the office note dated 20.12.2019.

The returnable date as mentioned in paragraph 9 of the order dated 27.11.2019 shall read as “16th January, 2020” instead of “16th January, 2019”.

Accordingly corrected paragraph no.9 shall read as under;

“9. Hence, RULE returnable on 16th January, 2020. Mr. Mitesh Amin, learned Public Prosecutor waives service of notice of rule for and on behalf of the respondent – State. Mr. J.R. Dave, learned advocate waives service of notice of rule for and on behalf of respondent no.2 – first informant.”

With this, the office note is allowed.

Registry is directed to issue the corrected writ accordingly.

ORDER :

27/11/2019

1. Heard the learned advocates for the appearing parties.

2. Mr. S.V. Raju, learned Senior Counsel assisted by Mr. Salim M. Saiyed, learned advocate for the applicants submitted that, prima­facie, no offence is made out under any sections mentioned in the FIR. For the purpose, he has pointed out that for the transaction of land in dispute which took place on 27.9.2010, which is produced along with the application at page No.20, is not disputed by any of the appearing parties, reflects that in all Rs.7,75,00,000/­ (Rupees Seven Crore Seventy Five Lakhs) paid to the Executant of the sale deed through cheques. He has further pointed out that so far as consideration amount, except Rs.1,75,00,000/­ (One Crore Seventy Five Lakhs), all paid through cheques, is not disputed by the first informant. It is further submitted that the payment received through cheques of total consideration is not only admitted in the conveyance deed i.e. sale deed itself dated 27.9.2010, over and above that, a receipt in writing of the consideration amount detailing cheque amount, cheque number and date of issue on the very same day, is executed by the executant of the sale deed. Not only that, the receipt of all consideration amount through different cheques is again admitted by an Indemnity Bond cum Declaration, executed again on that very day i.e. 27.9.2010. Therefore, according to his submissions, the first informant has come with the case that part consideration of Rs.1,75,00,000/­ (One Crore Seventy Five Lakhs) paid through 7 different cheques has not been received by the executant of the sale deed against 3 different documentary evidences available on record, duly signed and not disputed by the complainant or the witnesses.

3. He has further submitted that the consideration was paid to the seller through cheques atleast two months prior to the execution of the sale deed. The cheques covering total consideration were issued on different dates. He has further submitted that, as reflected from the FIR, on 14.2.2011 the first informant received the notice from the Income Tax Department and pursuant thereto, the first informant inquired about the payment received through cheques. According to his submissions, though the cheques received, apart from disputed cheques, have been deposited with the Bank within a day or two of the date of issue of the cheques, no prudent persons will ever execute a sale deed without ascertaining whether the full consideration, as mentioned in the documents not only in one but three, are received or not? Still however, according to his submissions, for non­ receipt of the same for the first time grievance was raised in the month of May 2012. He has further submitted that i.e. again after about more than a year of receipt of the notice from the Income Tax Department, not only that, prior to making grievance to any Police Authority, as claimed by the first informant, a suit came to be filed being Civil Suit No.153 of 2012 on 2.3.2012. The copy of the plaint is annexed with the compilation at page No.68.

4. He has further submitted that the suit is filed for cancellation of sale deed as, it is executed without proper consideration and void ab initio making very same claim that out of the consideration amount mentioned in the sale deed, the plaintiffs have not received an amount of Rs.1,7