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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :

NAGPUR BENCH : NAGPUR.

CRIMINAL APPLICATION No. 323 OF 2022.

Mr. Dhirendra Surendra Barlinge,

Aged about 76 years, Occupation -

Business, resident of Flat No.101, Sursheel

Apartment, Plot No.335, Laxmi Nagar,

Nagpur.

... APPLICANT.

VERSUS

1.State of Maharashtra,

through Police Station Officer,

Police Station Sitabuldi,

District Nagpur.

2.Dhananjay s/o Madhukar Lele,

Aged about 49 years, Occupation

Business, resident of Plot No.351,

Khare Town, Dharampeth,

P.S. Sitabuldi, District Nagpur. ... NON-APPLICANTS.

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Mr. S. Kadam, Advocate for the Applicant.

Shri S.M. Ukey, Addl.P.P. for the Non-applicant No.1/State.

Shri A.M. Sudame, Advocate for Non-applicant No.2.

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Rgd.

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CORAM : VINAY JOSHI AND

MRS.VRUSHALI V. JOSHI, JJ

.

DATE : NOVEMBER 14, 2022.

ORAL

JUDGMENT

(Per Vinay Joshi, J) :

This is an application under Section 482 of the Code of

Criminal Procedure seeking to quash the first information report

registered as Crime No.441/2020 with Police Station Sitabuldi,

District Nagpur for the offence punishable under Section 420 of the

Indian Penal Code. Primely it is contended that the transaction is

purely of civil nature, which has been coloured as a criminal case to

pressurize the applicant/accused. It is submitted that the entire

police report does not disclose essential ingredients to constitute an

offence of cheating.

2.

Heard the learned Counsel for the parties. With their

consent the matter is taken up for final disposal at admission stage.

Admit.

Rgd.

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3.

The State as well as the learned Counsel appearing for

non-applicant no.2/informant resisted the application. It is

submitted that the applicant has dishonestly induced the informant

to deliver huge amount and subsequently sold the property to third

party, and thus an offence of cheating is evident. It is submitted that

merely because a civil suit is pending, it does not mean that criminal

proceeding is not maintainable.

4.

At the instance of a report lodged by the informant dated

24.10.2020, a crime was registered. The facts in short are that the

applicant and informant are acquainted with each other. In the year

2012, the applicant had approached to the informant with a proposal

to sell his plot. Accordingly on 06.08.2012, an agreement was

executed by the applicant in favour of the informant to sale his plot.

Within two days of the agreement, the informant has paid an

amount of Rs.6 lakhs by way of cheque towards the agreement.

Later on the applicant has demanded further amount, on which the

informant from time to time paid in cash total amount of Rs.20 lakhs

towards further part consideration. Again on demand, the informant

Rgd.

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has paid further amount of Rs. 5 lakhs by cheque on 18.12.2012, and

thus, paid total part consideration of Rs.31 lakhs to the applicant. It

is informants’ case that in the year 2018 he came to know that a

third party has occupied the plot, and therefore, he made enquiry on

which he learnt that the applicant has sold the subject plot on

27.04.2018 by a registered instrument to some third party, therefore,

the informant has filed a report contending that the applicant has

cheated him for Rs.31 lakhs.

5.

Copy of the agreement to sale dated 06.08.2012 has been

produced on record. Said agreement indicates that the total

consideration was Rs.70 lakhs, out of which at the time of agreement

the applicant has received Rs. 6 lakhs. It is applicant’s case that the

transaction was purely of hand loan. He has borrowed Rs.11 lakhs

from the informant, which he had returned. At the time of

transaction, at the instance of the informant, the applicant has

signed on blank papers, whi