(1) This petition under Section 482 of Cr.P.C.(hereinafter referred to "the Code") has been filed by the petitioners to invoke the extra ordinary powers of this Court to quash First Information Report ( FIR) in connection with Crime No.389/2010 registered at Police Station- Kotwali Seoni, District- Seoni for alleged offence under Sections 420, 467, 468, 469, 471, 120-B/34 of IPC and also the subsequent proceedings.
(2) Undisputed facts of the case are that petitioners No.1 to 3 i.e. Rajendra Patil, Smt. Vidya Mhatre and Preeti Kadam are purchasers and petitioner no.4 Rahul Shelar is power of attorney holder on behalf of petitioners no 2 and 3 for the purchase of certain lands situated at village Dargada Tehsil Lakhanandaun district Seoni belonging to complainant Laxman Singh Sirvaiya by registered sale-deed in the month of February 2010.
(3) In brief, the case of the police is that one Laxman Singh Sirvaiya lodged a report at Police Station Kotwali Seoni, District Seoni on 19.7.2010 (16.7.2010) that he is owner and in possession of whole of the land and the land belonging to his family members situated at village Dargada Tehsil Lakhanandaun district Seoni which are said to be sold to petitioners no. 1 to 3 by registered sale-deed in the month of February 2010 by some unknown miscreants in his name and in the name of his family members and when mutation proceedings were tried to be commenced before Tehsildar, the then Patwari intimated him that not only his land but also lands belonging to his family members of various khasras about 26.50 Hectares land has been sold. On this report Police Kotwali Seoni registered Crime No.389/2010 and lodged FIR for the offence punishable u/s 420, 467, 468, 469, 471, 120-B/34 of IPC against the petitioners.
(4) The allegations against the petitioners are that they were involved in the case through conspiracy. The said sale deeds which are alleged to be fake the registry deeds were executed in their favour though in the name of true owner but the lands were sold by affixing photographs of some unknown persons by doing fraud by the actual culprit who is still unknown.
(5) Learned counsel for petitioners submits that the lands are still in possession of real owner/complainant and petitioners no.1 to 3 are bonafide purchasers and they have invested lakhs of rupees for consideration, not only to get their name but also incurred huge money in purchasing stamp papers to prepare registry and sale deed. His further argument is that no ingredients of cheating are made out and no offence of cheating is available. The purchasers could be the best witnesses but they have not made witnesses in the case but they have been made accused persons in this case. Learned counsel for the petitioners placed reliance in the case of Kamlabai wd/o Inderchand Jain v. State of Madhya Pradesh and anr. Reported in 1999(2) M.P.L.J. Short Note (18) at page 11 wherein it has been said that bonafide purchaser is a good witness. The prosecution has duty to act carefully and not to side with one party or the other. It is abuse of process of the Court of Magistrate as it amounted to negative the availability of evidence itself.
(6) Learned counsel for the State opposes the arguments of the learned counsel for the petitioners. She submits that though petitioners have incurred huge amount in purchasing the land and executing the documents as well as purchasing the stamp papers they cannot be said to be bonafide purchasers.
(7) I have perused the case diary produced by learned Government Counsel appearing on behalf of the State. It revealed that on 19.7.2010 statements u/s 161 Cr.P.C of Laxman Singh complainant, Deepchand Sirvaiya, Rammulal Sirvariya and Keshav Prasad Sirvariya have been taken and copy of registered sale deed dated 16th July 2010 has been seized and it is clear that identity card of Election Commissioner and ration cards were also procured at the time of registration until now after lapse of more than eight months no evidence to the effect that the petitioners were involved in some conspiracy and no evidence to that effect is collected yet.
(8) Learned counsel for the petitioners submitted that reasonable and possible efforts have been taken to verify the facts that the alleged sellers are genuine and their photographs are also affixed in the registered sale deed . He further submits that the police failed to locate the actual culprits whose photographs are affixed in the registered sale deed who had cheated the complainant as well as the petitioners. He further submits that the petitioners are resident of Maharashtra and district Burhanpur which is a quite distinct place from Seoni district where the lands are situated and they could not know the actual facts of ownership of land even after due deligence.
(9) Learned counsel for the petitioners submitted that they applied for mutation in due process but nothing was done it shows that bonafide purchasers did not use any illegality for the purpose of mutation.
(10) Learned counsel for the State could not point out any evidence for involvement of the petitioners in the alleged crime.
(11) Looking to the facts and circumstances of the case the petitioners seems to be bonafide purchasers. All evidence collected so far by the prosecution agency are in favour of the petitioners. If they are bonafide purchasers then they can not be prosecuted as they themselves have been cheated.
(12). Learned counsel for the applicant has placed reliance on K. Ramakrishna v. State of Bihar AIR 2000 SC 3330 in which it is held:
"If upon the admitted facts and the documents relied upon by the complainant or the prosecution and
without weighing or sifting of evidence, no case is made out, the criminal proceedings instituted against the accused are required to be dropped or quashed."
(13). Further learned counsel has placed reliance on Glencore India Pvt. Limited and others v. Metalman Industries Limited and Others ( 2003 (3) MPLJ 161 in which it is observed : "Fraudulent or dishonest intention should exist in order to make out offence of cheating at the time of making inducement or otherwise."
(14) Learned counsel for petitioners has submitted that no case is there against petitioners as there is no specific allegation against them. Reliance has been placed on a decision of Apex Court in Preeti Gupta and Anr. vs. State of Jharkhand and Anr. AIR 2010 SC 3363 in which it has been held by the Apex Court that where no specific allegations in complaint are there against appellants, sister-in-law and unmarried brother-in-law of complainant, then complaint is liable to be quashed. He further submitted that the petitioners are not interfering into the disputed land of complainant and will co-operate the authorities and on their undertaking the proceedings against the petitioners be quashed.
(15) As far as exercise of powers under Section 482 Cr.P.C. are concerned, according to Zandu Pharmaceutical Works Ltd. and others vs. Mohd. Sharaful Haque and another (2005) 1 SCC 122 the Apex Court held that inherent jurisdiction, though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in S.482 Cr.P.C. Power to be exercised ex debito justitiae to prevent abuse of process of Court, but should not be exercised to stifle legitimate prosecution. The test for revival of power u/s 482 Cr.P.C. has been decided and if bare reading of FIR and the material collected in investigation they are taken for consideration as a whole primafacie case is not made out against the petitioners for such type case proceedings should not be allowed to be continued. Power to be exercised ex debito justitiae to prevent abuse of process of Court.
(16) Looking to the above circumstances of the case the cognizance taken by PS Kotwali Seoni and FIR dated 19.7.2010 by which Crime No.389/10 for the offence u/ss 420, 467, 468, 469, 471, 120-B/34 of IPC and subsequent proceedings against the petitioners Rajendra Patil, Smt. Vidya Mhatre and Preeti Kadam are purchasers and petitioner no.4 Rahul Shelar is power of attorney holder on behalf of petitioners no 2 and 3 are hereby quashed.
(17) Consequently, the present petition stands allowed.