The learned senior
counsel appearing on behalf of the appellant stated that the
appellant is the constituted attorney of Reena Natekar and Sanjay
Natekar, the vendors under the sale deeds subject matter of the impugned FIR.
He submitted that the 4th respondent in his complaint had accepted co-ownership
of the vendors in respect of the subject property under the sale
deeds. Learned senior counsel submitted that a complaint was filed by the 4th respondent
more than two years after the date of institution of the civil suit.
Learned senior counsel pointed out
how Sitaram Natekar became the owner of the100
subject property based on documents executed in the years 1928 and 1929. He
submitted that Reena Natekar and Sanjay Natekar120
are the legal representatives of Sitaram Natekar. He submitted that both
claimed a half share in the subject property in view of the regime of
the communion of assets applicable in the State of Goa. He pointed out
that, on 10th May 2013, the appellant had published a public notice calling for
objections from any interested party concerning the subject property.
He pointed out that the ingredients
of the offence of cheating under Section 415 of IPC were not made200 out. The submission of the learned
senior counsel appearing for the appellant is that the registration of
the impugned FIR was mala fide. He pointed out that the appellant, apart from
being a businessman, is an active member of the240 Maharashtra Gomantak Party and is a
Member of the Legislative Assembly of the State of Goa.
Learned senior counsel representing
the 4th respondent submitted that the appellant tried to dishonestly misappropriate
the property belonging to the 4th respondent, who is a resident of the United
States of America, and sold the subject property to third parties.
He has done that300 with the knowledge
that the 4th respondent was a co-owner. He submitted that the supplementary
statement of the 4th respondent was recorded in the impugned FIR. Due to
Covid-19, the investigation could not be carried out based
on the impugned FIR.
He relied upon a decision of this
Court in the case of M/s Vishakha Infrastructure Pvt. Ltd. v State360 of Maharashtra and Ors. and submitted
that the investigation could not be scuttled by
interfering with the FIR at the initial stage of the investigation. He
submitted that an FIR is not an encyclopaedia that can disclose all
facts and400 details of the
offence. He also pointed out that the consideration under the sale deed has
been transferred to the appellant and not to the members of the Natekar family.
He submitted that merely because
civil suits are pending, that is no ground to quash the criminal proceedings
as the conduct of a party may amount to an offence and may also give rise to
civil claims. He relied upon a decision of this Court in the case of
Amit480 Kapoor v Ramesh
Chander and Anr. in this regard. The learned counsel would submit
that an opportunity may be granted500
to the police to complete the investigation by upholding the order of the High
Court. The learned counsel appearing for the State of Goa supported the
impugned judgment and order.
We have carefully perused one of the
sale deeds, which is the subject matter of the impugned FIR. The sale
deeds are similar. The appellant signed the sale deed as the constituted
attorney of Reena Natekar and Sanjay Natekar and also in his capacity as
a confirming party. The said power of attorney executed by Reena Natekar and
Sanjay Natekar in favour of the appellant contains a recital that Reena600 Natekar and Sanjay Natekar, are the
co-owners of the subject property. The legal effect of the sale deeds which are
the subject matters of the impugned FIR is that the ownership rights of Reena Natekar
and Sanjay Natekar were transferred to the purchasers.
It is pertinent to note that civil suits were filed
by the 4th respondent in October 2018. In the suits, he claims to be a co-owner
or person with an undivided share in the subject property. Two years
after the institution of the said suits, the constituted attorney of the
4th respondent filed a complaint with the700
Superintendent of Police on 23rd October 2020. In the complaint, she
stated that the subject property was originally owned by720 the predecessor of the 4th
respondent and Sitaram Natekar.
It is pertinent to note that the constituted
attorney of the 4th respondent has omitted to mention in the complaint that two
years before the filing of the complaint, declaratory suits were filed
by the 4th respondent, which were pending. Interestingly, two years after the registration
of the FIR, on 13th October 2022, the 4th respondent filed a supplementary
complaint with the police alleging that even the said Reena Natekar and800 Sanjay Natekar had also committed an
offence.
Thus, in short, the grievance of the
4th respondent is that the vendors under the sale deeds had only an undivided
share in the subject property, and they could not have sold the840 entire subject property under the sale
deeds. The contention of the appellant is that what is sold is the right, title
and interest of Reena Natekar and Sanjay Natekar. Thus, the dispute between
the parties is predominantly a civil dispute. It is
pertinent to note that the purchasers under the sale deeds have not made
any grievance about the sale900
deeds.
In this case, it is impossible to
understand how the appellant deceived the 4th respondent and how the act of
execution of sale deeds by the appellant caused or was likely to cause damage
or harm to the 4th respondent in body, mind, reputation or property. The
appellant has not purported to execute the sale deeds on behalf of960 the 4th respondent. He has not
purported to transfer the rights of the 4th respondent. There is no allegation
that the appellant deceived the 4th respondent to transfer or deliver the
subject property.
Taking the complaint as correct, the
offence1000 of cheating under
Section 415 of IPC was not made out against the appellant. Moreover, the
complaint was filed by the 4th respondent for the first time after a
time gap of two years from the date of institution of the civil suits.
In the complaint, he suppressed the
fact that civil suits were already filed in which applications for temporary injunction
were made. When there was a dispute over the title, the act of the 4th
respondent of setting1080 in
motion criminal law two years after the date of filing of the suits amounts to
nothing but abuse of the process of law.
Considering the above, the appeal
succeeds. The impugned judgment and order dated 1st March 2023 is set aside,
and FIR No.177 of 2020 initially registered with Pernem Police Station in the
State of Goa, and now transferred to the Special Investigation Team of
the Economic Offences Cell, and proceedings based thereon are hereby
quashed and set aside only as against the appellant.1166
