NAYANBHAI JIVANBHAI PATEL Vs. LATABEN

JUDGEMENT

(1.) THE present Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure has been preferred by the applicant-original accused no. 2 to quash and set aside the impugned FIR, being C.R. No. I 38/2010 registered with Valsad Rural Police station for the offences punishable under Sections 406, 420 and 114 of the Indian Penal Code.

(2.) RESPONDENT no. 1-original complainant had lodged the impugned FIR against the applicant-original accused no. 2 and others with Valsad Rural Police Station for the offences punishable under Sections 406, 420 and 114 of the Indian Penal Code alleging /interalia /that on 04/05/2009 original accused no. 1 came to the place of respondent no. 1-original complainant alongwith the applicant and one another Shri Atulkumar Balubhai Bulsara and there were talks with respect to sale of the disputed land in question by original accused no. 1-Shri Nileshbhai Babubhai Naik and they agreed to sell the land in question by demanding Rs. 10 lakhs and the balance amount was to be paid after three months at the time of execution of the sale deed and, therefore, respondent no. 1-original complainant paid Rs. 10 lakhs by two different cheques in favour of Neelam Nilesh Naik-wife of original accused no. 1 in whose name earlier the property stood. It is further alleged that on 22/05/2009 again original accused no. 1-Shri Nileshbhai Babubhai Naik approached respondent no. 1-original complainant and got Rs. 3 lakhs and agreed to execute the sale deed. It is further alleged that subsequently respondent no. 1-original complainant came to know that original accused no. 1-Shri Nileshbhai Babubhai Naik had entered into transaction with respect to the very land with some other person and on inquiry it was found that in fact the said land in question was already sold to the applicant on 16/02/2009 for a sale consideration of Rs. 4,90,000/- and despite the same the accused persons took the aforesaid amount and agreed to sell the same and, therefore, it is submitted that the applicant and other accused persons have committed the offence under Sections 406, 420 read with Section 114 of the Indian Penal Code. Being aggrieved and dissatisfied with the aforesaid FIR, the applicant-original accused no. 2 has preferred the present Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure to quash and set aside the impugned FIR.

(3.) HEARD the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the applicant had already purchased the land in question from the wife of original accused no. 1 on 16/02/2009 by registered sale deed for a sale consideration of Rs. 4,90,000/-. Despite the same, he accompanied original accused no. 1 with other persons and went to the residence of respondent no. 1-original complainant with respect to the very land in question as if the wife of the original accused no. 1 was the owner of the disputed land in question and they entered into the transaction for which Rs. 10 lakhs was given to original accused no. 1-Shri Nileshbhai Babubhai Naik and it is subsequently found that original accused no. 1 had entered into some further transaction and/or the applicant had entered into further transaction for which public notice was given. When the applicant had already purchased the disputed land in question by registered sale deed dated 16/02/2009 he was supposed to inform respondent no. 1-original complainant on 04/05/2009 when he accompanied original accused persons to the residence of respondent no. 1-original complainant and entered into transaction and Rs. 10 lakhs was paid to original accused no. 1 as if the wife of original accused no. 1 is still the owner of the disputed land in question. When the land in question was already purchased by the applicant by registered sale deed dated 16/02/2009, he was supposed to and/or required to inform respondent no. 1-original complainant that in fact he is the owner of the land, who has purchased the same by registered sale deed dated 16/02/2009 and the wife of original accused no. 1 is not the owner of the land in question and, therefore, she was required to warn respondent no. 1-original complainant when respondent no. 1-original complainant paid Rs. 10 lakhs with respect to the land, which was already purchased by the applicant. The aforesaid conduct on the part of the applicant-original accused no. 2 is required to be further investigated when the allegation against the applicant and other persons is for the offences punishable under Section 114 of the Indian Penal Code also. Whether, out of Rs. 13 lakhs paid to original accused no. 1, any amount is received by the applicant or not and/or whether the applicant has gained anything or not are the questions, which are required to be investigated by the Investigating Officer. Under the circumstances, when the averments and the allegation in the FIR prima facie discloses cognizable offence, which are further required to be investigated by the Investigating Officer, according to this Court, this is not a fit case to exercise the powers under Section 482 of the Code of Criminal Procedure and to quash and set aside the impugned FIR at the threshold, without further investigation. At this stage, it is required to be noted that so far as original accused no. 1 is concerned he is declared absconding.