1. By preferring the present criminal application, the applicant has prayed to quash and set aside the charge sheet and proceedings of RTC No.88/2010 on the file of JMFC, Rahuri, which arise out of crime No.98/2010 registered with Rahuri police Station for an offence punishable u/s 420 of the Indian Penal Code.
2. Rule.
3. Rule made returnable forthwith. By consent of the learned counsel for applicant and learned APP, heard finally at the stage of admission itself.
4. The facts, which gave rise to file the present criminal application, may briefly be summarized thus The Collector, Ahmednagar had auctioned a stand strip situated in river bed Mula at Mauje DaradgaonThadi, for the year 200910. The applicant was the highest bidder in the said auction and hence the said auction was granted in favour of the applicant. The applicant had purchased the said auction for Rs.96,00,000/. As per the terms and conditions of the auction, the auction purchaser was required to deposit 1/4th of the auction amount i.e. Rs.24 lacs on or before 30th November 2009. It also appears that as the applicant failed to deposit the said amount, a notice was issued to the applicant by Tahsildar, Rahuri on 04.12.2009. It further appears that the applicant has replied the said notice vide communication dated 09.12.2009. In the said reply, the applicant has contended that though the applicant has deposited an amount of Rs.4,68,000/ in the Treasury towards the purchase of auction, yet due to certain financial difficulty, he would not be in a position to deposit the balance amount and thus, he had shown his inability to deposit the balance amount and also informed that the auction granted in his favour be cancelled and the said sand strip be reauctioned, as per prescribed procedure. It appears that after receipt of this letter, an offence came to be registered against the applicant on 27.03.2010. Hence, the present criminal application for quashing the said offence.
5. In the light of the rival submissions, perused the statements of the witnessesgovernment employees, recorded during the investigation. The said statements disclose that the applicant was the highest bidder, who had accepted the auction of the sand strip in the river bed Mula at Mauje DaradgaonThadi for the sum of Rs.96 lacs and he failed to deposit the 1/4th amount of the auction within a period of 15 days and, therefore, notice was issued to him. All these facts are admitted by the applicant, however, according to him, due to financial difficulties he was not in a position to deposit the amount as per schedule.
6. Accepting the statements of the witnesses recorded during the investigation as it is yet, whether the act alleged against the applicant would constitute an offence punishable u/s 420 of the Indian Penal Code? To consider as to what ingredients are required to constitute an offence punishable u/s 420 of the Penal Code, it is necessary to see the text of section 420, which reads thus
"420. Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
7. Thus, considering the provisions of section 420, it is clear that no property or part of property was delivered to the applicant, as admittedly, the applicant has not excavated any sand from the said sand strip and hence no offence punishable u/s 420 would constitute against the applicant. Second requisite aspect to constitute an offence punishable u/s 420 of the Penal Code is that due to delivery of property there shall be wrongful loss to the owner and wrongful gain to the accused. However, considering the allegations, no property was delivered in possession of the applicant and hence it cannot be said that there is wrongful loss to the Government and wrongful gain to the applicant. On the contrary, as per the terms and conditions of the auction, particularly term No.17, the amount which was deposited by the applicant, was to be confiscated. Condition No.17 and 18 further states that if within the stipulated period the auction holder does not deposit the amount as per conditions, then the Government is at liberty to reauction the said sand strip. Thus, on the failure on the part of the applicant to deposit the amount against purchase of auction, the Government is at liberty to reauction the said sand strip. As per clause 10 of the agreement, the expenses incurred for reauction of the said sand strip are to be recovered from the auction purchaser. Thus, in the conditions itself, remedy is available for recovery of expenses. Learned APP, by pointing out clause 10, has contended that in case of failure on the part of auction purchaser to comply the terms and conditions, he is liable for criminal prosecution. However, fact remains that to constitute an offence punishable u/s 420 of the IPC, it is necessary that ingredients of section 415 must present. After going through the contents of the complaint as well as the statements of the witnesses, it is clear that the action of the applicant would not attract provisions of section 415 for which penal provision is provided u/s 420 of the IPC.
8. Thus, it is clear that the investigation carried out on the complaint in Crime No.98/2010 would not constitute an offence punishable u/s 420 of the IPC against the applicant. Therefore, the charge sheet and proceedings of RTC No.88/2010 on the file of JMFC, Rahuri are liable to be quashed and set aside.
9. In the result, the application succeeds. The charge sheet filed on the basis of Crime No.98/2010 registered with Rahuri police station, is hereby quashed and set aside and consequently the proceedings of RTC No.88/2010 pending on the file of JMFC, Rahuri, are also quashed and set aside.
10. Rule is thus made absolute as indicated above. Criminal application stands disposed of accordingly.