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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

CRIMINAL WRIT PETITION NO.422 OF 2023

1.Hasmukh s/o Hirjibhai Rathod,

Aged about 71, (Accused Nos.1 & 2)

Occupation : Business,

R/o. Plot No.12, Trimurti Nagar,

Ring Road, Nagpur.

2.Viren s/o Jayantilal Thakkar,

Aged 62,

Occupation : Business,

R/o. Flat No.802, Court Royal,

Behind Batukbhai Jewellers,

Shankar Nagar,

Dharampeth Nagpur. ..... APPLICANTS

// VERSUS //

1.State of Maharashtra, through

Police Station Officer, Police Station, (I.O.)

Wadi, District Nagpur.

2.Adv. Ashish s/o. Dilip Katariya,

Aged about 34 Years, (Ori. Complainant)

Occupation : Advocate,

R/o. Sadar Bazar, Behind Badi Masjid,

Sadar, Nagpur. .... NON-APPLICANTS

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Mr. M. P. Khajanchi, Advocate for petitioners.

Mr. A. M. Joshi, APP for the State.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

WITH

CRIMINAL WRIT PETITION NO.452 OF 2023

1.Ashish Shankarrao Thool,

Age : 41 Years,

Occupation : Service (Revenue Inspector)

Presently posted at Tahsil Office

Mouda.

R/o. L-27, Laxman Nagar,

Manewada, Besa Road,

Nagpur 440034. ..... APPLICANT 2026:BHC-NAG:5237-DB

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// VERSUS //

1.State of Maharashtra Through its

Police Station Officer, Police Station,

Wadi, District Nagpur.

2.Ashish s/o. Dilip Katariya,

Aged 35 Years,

Occupation : Advocate,

R/o. Sadar Bazar, Behind Badi Masjjit

Gauli Pura Nagpur,

Sadar, Nagpur. .... NON-APPLICANTS

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Mr. Nitin Bargat, Advocate for petitioner.

Mr. A. M. Joshi, APP for State.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

WITH

CRIMINAL APPLICATION (APL) NO.869 OF 2023

1.Smt. Ujjwala D/o Ankushrao Telang

Alias Ujjwala Rakesh Landge

Aged about 47 Years,

Occupation : Service,

R/o. Juni Mangalwari,

Near Buddha Vihar,

Ward No.95, C. A. Road,

Nagpur. ..... APPLICANT

// VERSUS //

1.State of Maharashtra, Through

Police Station Officer, Police Station,

Wadi, District Nagpur.

2.Ashish Dilip Katariya,

Aged 37 Years,

Occupation : Advocate,

R/o. Sadar Bazar, Behind Badi Maszid

Gavlipura, Nagpur, .... NON-APPLICANTS

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Ms. Mugdha Chandurkar, Advocate with Mr. Rohan Chandurkar,

Advocate for applicant.

Mr. A. M. Joshi, APP for non-applicant No.1/State.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

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WITH

CRIMINAL APPLICATION (APL) NO.870 OF 2023

1.Pawankumar s/o Rewaram Kewate,

Aged 42 Years,

Occupation : Service,

R/o. 302, 3

rd

Floor,

Shivaji Park Apartment,

Shri Krushna Nagar,

Nagpur. ..... APPLICANT

// VERSUS //

1.State of Maharashtra, Through

Police Station Officer, Police Station,

Wadi, District Nagpur.

2.Ashish Dilip Kataria,

Aged 37 Years,

Occupation : Advocate,

R/o. Sadar Bazar, Behind Badi Maszid

Gavlipura, Nagpur, .... NON-APPLICANTS

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Ms. Mugdha Chandurkar, Advocate with Mr. Rohan Chandurkar,

Advocate for applicant.

Mr. A. M. Joshi, APP for non-applicant No.1/State.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

WITH

CRIMINAL APPLICATION (APL) NO.871 OF 2023

1.Shri Sunil s/o Ramkrushna Ban

Aged about 45 Years,

Occupation : Service,

R/o. Plot No.63, Bhavani Nagar,

Bhandara Road Nagpur,

Near Ganesh Mandir Ward No.16,

Bhandewadi, Nagpur. ..... APPLICANT

// VERSUS //

1.State of Maharashtra, Through

Police Station Officer, Police Station,

Wadi, District Nagpur.

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2.Ashish Dilip Kataria,

Aged 37 Years,

Occupation : Advocate,

R/o. Sadar Bazar, Behind Badi Maszid

Gavlipura, Nagpur, .... NON-APPLICANTS

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Ms. Mugdha Chandurkar, Advocate with Mr. Rohan Chandurkar,

Advocate for applicant.

Mr. A. M. Joshi, APP for non-applicant No.1/State.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

CORAM : URMILA JOSHI-PHALKE, J.

RESERVED ON : 07.03.2026

PRONOUNCED ON : 02.04.2026

JUDGMENT :

1. Heard.

2. Admit.

3. Heard finally with the consent of the learned Counsel for

the applicants and learned APP for the State.

4. By all these petitions, the petitioners/applicants therein

are seeking quashing of the FIR in connection with Crime

No.365/2023 registered with Police Station Wadi, District Nagpur for

the offence punishable under Sections 120B, 420, 465, 467, 471

read with Section 34 of the Indian Penal Code (for short ‘IPC’)

registered under the direction of the learned Judicial Magistrate First

Class Corporation Court No.2, Nagpur dated 14.06.2023.

5. The land Khasra (old No. 55), new Khasra No.55/1 and

55/2 situated at Mouza Lava, Tahsil and District Nagpur was

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originally owned by one Meghraj Asaram Hiranwar and upon his

death, the land has devolved amongst his legal heirs namely Harish

Gopal Hiranwar, Ajay Gopal Hiranwar, Mandakini Gopal Hiranwar,

Smt. Nutan Mukunda Siriya, Dropati Anil Patel, Saraswati Satish

Siriya, Nirupa Sandeep Ahir, Sudha Rajendra Chaudhary and others.

The name of the legal heir Anandibai Gangaram Ahir, maternal

grandmother of the respondent No.2 has not been entered into

revenue records. On 08.11.2007, the affidavit submitted by the

legal heirs of Meghraj Hiranwar and others with the land records

and the name of Anandibai did not appear in the said affidavit, and

therefore, her name was not mutated on record. Out of 3.28 HR,

2.46 HR land was sold by some legal heirs to petitioners in Criminal

Writ Petition No.422/ 2023, namely, Hasmukh Hirjibhai Rathod and

Viren Jayantilal Thakkar. On execution of sale deed, their names

were mutated in the revenue records. The respondent No.2, who is

the legal heir of Anandibai Gangaram Ahir, approached the Police

Station, Wadi on 23.08.2018. The police found dispute of civil

nature and therefore, not taken cognizance. On 02.01.2021, the

respondent No.2 filed an appeal before S.D.O., challenging the

mutation in the name of other legal heirs of Meghraj Hiranwar and

also filed Civil Suit bearing RCS No.186/2021. On 07.10.2020, the

present petitioners i.e. Hasmukh Hirjibhai Rathod and Viren

Jayantilal Thakkar filed an application for joint measurement with

one Rajendra Chaudhary in the office of Deputy Superintendent of

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Land Records, Nagpur. On 12.11.2021 measurement was done.

The Khasra No.55 was divided into two parts i.e. 55/1 and 55/2. As

per mutation, 55/1 was owned by Rajendra Chaudhary, Nalini

Chaudhary, Chandu Chaudhary, Sudhir Chaudhary, Savita Siriya,

Rajesh Siriya, Arun Siriya and Basant Siriya, whereas Khasra No.

55/2 was mutated in the name of petitioners Hasmukh Rathod and

Virendra Thakkar. It is alleged that the Rajendra Chaudhary

expired on 16.04.2020. The application for measurement contains

his signature and at the time of measurement, he was shown to be

present. The petitioners namely Hasmukh Rathod and Virendra

Thakkar sold 2.46 HR to Praful Walme, Kapil Walme, Harshal Kakde,

Vijay Mishra for consideration of Rs. 5,70,00,000/-. Thereafter, the

respondent No.2 filed an application under Section 156 (3) of of the

Code of Criminal Procedure (for short ‘CrP.C.’) and in view of the

directions of the learned Magistrate, the FIR came to be registered

against the present applicants.

6. As per the allegations in the FIR, after the death of

Meghraj Hiranwar, the grandmother of the respondent No.2, who

was one of the legal heirs, who died on 14.09.1981 and after the

death of Anandibai Ahir, Meghraj Hiranwar filed an affidavit before

the Talathi for mutating the name of the legal heirs on record. The

said Anandibai died on 28.01.1998. After the death of the said

Anandibai, the mother of the complainant, namely, Alka Katariya is

the only legal heir for the said land at Khasra No.55. Homraj has

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given a false affidavit and mutated the land illegally. Thereafter the

land was illegally sold by the accused persons to the petitioners in

Criminal Petition No.422/2023. During the pendency of the said

civil suit, accused persons sold out the said land to the third person.

As per the allegations, the petitioners, who are the public servant

also by joining hands with the purchasers and the legal heirs of

Meghraj, committed the offence under Sections 420, 467, 468 and

471 of the IPC.

7. After registration of the crime, the investigation was

carried out and various statements of the witnesses were recorded.

The present petitions are filed by the petitioners/applicants

contending that the dispute is of a civil nature and no criminal

offence is made out.

8. Heard learned counsels for the petitioners Mr. M. P.

Khajanchi, in Writ Petition No.422/2023, Mr. Nitin Bargat, in Writ

Petition No.452/2023 and Ms. Mugdha Chandurkar and Mr. Rohan

Chandurkar in Criminal Application Nos. 869/2023, 870/2023 and

871/2023. Leaned counsels Mr. Khajanchi and Mr. Bargat

submitted that from the recitals of the FIR it reveals that the

dispute is of a civil nature and therefore, the police have not taken

cognizance of the complaint which was filed by the complainant on

23.08.2018 at the Police Station Wadi. Without following the due

procedure under Sections 154, 155, the application under 156(3) of

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Cr.P.C. came to be filed by the respondent No.2. The learned

Magistrate has also not considered that there is no compliance, in

view of the judgment of the Hon’ble Apex Court in the case of

Priyanka Srivastava and another vs State of Uttar Pradesh

and others, reported in (2015) 6 SCC 287 . He submitted that

even accepting the allegation as it is, no offence is made out against

the present applicants, to attract the offence either under Sections

420, 467, 471 of IPC. He submitted that in fact, the application

under Section 156(3) of Cr.P.C. itself is not supported by an

affidavit which is mandatory in nature, in view of the judgment of

the Supreme Court, and therefore, the application under Section

156(3) of Cr.P.C. itself, is not maintainable. On that ground itself

the learned Magistrate ought to have rejected the application. He

further submitted that as far as the petitioners in Writ Petition

No.422/2023 are concerned, who are the purchasers they are not

concerned with the application which was filed by the legal heirs of

Meghraj to enter the names of legal heirs. The dispute as to

whether the grandmother of the respondent No.2 is legal heir or not

to be decided by the Civil Court and thereafter, the question would

arose whether the legal heirs have committed an offence punishable

under Sections 467, 468 of IPC. In view of that, the application

deserves to be allowed.

9. Learned counsel Mr. Bargat submitted that the petitioner

in Writ Petition No.452/2023 is concerned, who is a Revenue

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Inspector. As the application was received for measurement and

thereby he directed to conduct the measurement and other

applicants have conducted the measurement. There is no reason

for him to have knowledge regarding the presence of Rajendra

Chaudhary. So, offence is made out against Ashish Shankarrao

Thool.

10. Learned counsel Ms. Mugdha Chandurkar also reiterated

the said contentions and submitted that except the allegations that

they have conducted the measurement, there is no allegation.

Admittedly, no direct evidence would be available as far as the

conspiracy is concerned, but there has to be some material on

record to show that the petitioners, who are the public servants

have joined hands with the other petitioners whose interest was

involved, as no prima facie case is made out against the present

petitioners, the applications deserve to be allowed.

11. Whereas, learned APP strongly opposed the said

applications and petitions and submitted that the recitals of the FIR

and the documents on record sufficiently shows that all the

petitioners in collusion with each other hatched the conspiracy and

in pursuance of the said conspiracy the measurement was

conducted by showing the presence of Rajendra Chaudhary, who is

already dead. Thus, the offence under Sections 467 and 468 of IPC

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is made out against the present petitioners, and therefore, the

petitions and applications deserve to be rejected.

12. After hearing both sides and on perusal of the entire

material on record, the entire dispute revolves around the mutation

entry in the name of all the legal heirs. As per the allegations of the

complainant, the legal heirs of Meghraj Hiranwar filed a false

affidavit and preferred an application without showing her

grandmother as a legal heir and deprived her from the legal right

and thereby committed an offence. As per the allegations of the

complainant, one Meghraj Hiranwar owned the land and after him

the said land was owned by the five daughters, namely, Anandibai

Ahir, Narmada Chaudhary, Geeta Sangariya and other legal heirs

also, but on 14.09.1981, Homraj Hiranwar filed an affidavit before

the Talathi for mutating name, not showing the name of Anandibai.

The said Anandibai died on 28.01.1998. After the death of

Anandibai, the mother of the complainant namely Alka Katariya is

the only legal heir for the said land at Khasra No.55. She is

deprived of getting her share in the said property. It is further

alleged that one of the legal heir Rajendra Chaudhary though dead

he was shown to be present at the time of measurement and thus,

the petitioners have committed an offence.

13. Before entering into the merits of the matters, it is

necessary to see the directions given by the Hon’ble Apex Court in

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the case of Priyanka Srivastava and another (referred supra).

The Hon’ble Apex Court observed that the learned Magistrate, as we

find, while exercising the power under Section 156(3) CrPC has

narrated the allegations and, thereafter, without any application of

mind, has passed an order to register an FIR for the offence

mentioned in the application. The duty cast on the learned

Magistrate, while exercising power under Section 156(3) Cr.P.C.,

cannot be marginalized. To understand the real purport of the

same, we think it apt to reproduce the said provision:

"156. Police officer's power to investigate

congnizable case. -

(1) Any officer in charge of a police station may,

without the order of a Magistrate, investigate any

cognizable case which a Court having jurisdiction

over the local area within the limits of such station

would have power to inquire into or try under the

provisions of Chapter XIII.

(2) No proceeding of a police officer in any such

case shall at any stage be called in question on the

ground that the case was one which such officer

was not empowered under this section to

investigate.

(3) Any Magistrate empowered under section 190

may order such an investigation as above-

mentioned."

14. By referring the judgment of Devarapalli

Lakshminarayana Reddy Vs. V. Narayana Reddy reported in

(1976) 3 SCC 252 , the Hon’ble Apex Court observed that “it may

be noted further that an order made under sub-section (3) of

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Section 156, is in the nature of a peremptory reminder or intimation

to the police to exercise their plenary powers of investigation under

Section 156(1). Such an investigation embraces the entire

continuous process which begins with the collection of evidence

under Section 156 and ends with a report or chargesheet under

Section 173.”

15. In Anil Kumar Vs. M. K. Aiyappa, (2013) 10 SCC 705

wherein also the Hon’ble Apex Court observed that “The scope of

Section 156(3) CrPC came up for consideration before this Court in

several cases. This Court in Maksud Saiyed [(2008) 5 SCC 668]

examined the requirement of the application of mind by the

Magistrate before exercising jurisdiction under Section 156(3) and

held that where jurisdiction is exercised on a complaint filed in

terms of Section 156(3) or Section 200 CrPC, the Magistrate is

required to apply his mind, in such a case, the Special

Judge/Magistrate cannot refer the matter under Section 156(3)

against a public servant without a valid sanction order. The

application of mind by the Magistrate should be reflected in the

order. The mere statement that he has gone through the

complaint, documents and heard the complainant, as such, as

reflected in the order, will not be sufficient. After going through the

complaint, documents and hearing the complainant, what weighed

with the Magistrate to order investigation under Section 156(3)

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CrPC, should be reflected in the order, though a detailed expression

of his views is neither required nor warranted. We have already

extracted the order passed by the learned Special Judge which, in

our view, has stated no reasons for ordering investigation."

16. By referring the various decisions of the Apex Court, in

the case of Priyanka Srivastava and another the Hon’ble Apex

Court further observed in Para Nos.27, 28, 29 and 30 as follows :

“27. Regard being had to the aforesaid enunciation of

law, it needs to be reiterated that the learned Magistrate

has to remain vigilant with regard to the allegations

made and the nature of allegations and not to issue

directions without proper application of mind. He has also

to bear in mind that sending the matter would be

conducive to justice and then he may pass the requisite

order. The present is a case where the accused persons

are serving in high positions in the Bank. We are

absolutely conscious that the position does not matter,

for nobody is above law. But, the learned Magistrate

should take note of the allegations in entirety, the date of

incident and whether any cognizable case is remotely

made out. It is also to be noted that when a borrower of

the financial institution covered under the SARFAESI Act,

invokes the jurisdiction under Section 156(3) Cr.P.C. and

also there is a separate procedure under the Recovery of

Debts Due to Banks and Financial Institutions Act, 1993,

an attitude of more care, caution and circumspection has

to be adhered to.

28. Issuing a direction stating "as per the application" to

lodge an FIR creates a very unhealthy situation in

society and also reflects the erroneous approach of the

learned Magistrate. It also encourages the unscrupulous

and unprincipled litigants, like the respondent 3, namely,

Prakash Kumar Bajaj, to take adventurous steps with

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courts to bring the financial institutions on their knees. As

the factual exposition would reveal, Respondent 3 had

prosecuted the earlier authorities and after the matter is

dealt with by the High Court in a writ petition recording a

settlement, he does not withdraw the criminal case and

waits for some kind of situation where he can take

vengeance as if he is the emperor of all he surveys. It is

interesting to note that during the tenure of the

Appellant 1, who is presently occupying the position of

Vice-President, neither was the loan was taken, nor was

the default made, nor was any action under the

SARFAESI Act taken. However, the action under the

SARFAESI Act was taken on the second time at the

instance of the present Appellant 1. We are only stating

about the devilish design of Respondent No.3 to harass

the appellants with the sole intent to avoid the payment

of loan. When a citizen avails a loan from a financial

institution, it is his obligation to pay back and not play

truant or for that matter play possum. As we have

noticed, he has been able to do such adventurous acts as

he has the embedded conviction that he will not be taken

to task because an application under Section 156(3) CrPC

is a simple application to the court for issue of a direction

to the investigating agency. We have been apprised that

a carbon copy of a document is filed to show the

compliance of Section 154(3), indicating it has been sent

to the Superintendent of police concerned.

29. At this stage it is seemly to state that power under

Section 156(3) warrants application of judicial mind. A

court of law is involved. It is not the police taking steps

at the stage of Section 154 of the code. A litigant at his

own whim cannot invoke the authority of the Magistrate.

A principled and really grieved citizen with clean hands

must have free access to invoke the said power. It

protects the citizens but when pervert litigations takes

this route to harass their fellows citizens, efforts are to be

made to scuttle and curb the same.

30. In our considered opinion, a stage has come in this

country where Section 156(3) CrPC applications are to be

supported by an affidavit duly sworn by the applicant who

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seeks the invocation of the jurisdiction of the Magistrate.

That apart, in an appropriate case, the learned Magistrate

would be well advised to verify the truth and also can

verify the veracity of the allegations. This affidavit can

make the applicant more responsible. We are compelled

to say so as such kind of applications are being filed in a

routine manner without taking any responsibility

whatsoever only to harass certain persons. That apart, it

becomes more disturbing and alarming when one tries to

pick up people who are passing orders under a statutory

provision which can be challenged under the framework

of said Act or under Article 226 of the Constitution of

India. But it cannot be done to take undue advantage in a

criminal court as if somebody is determined to settle the

scores.”

17. Thus, in view of the observations of the Hon’ble Apex

Court, there has to be prior applications under Sections 154(1) and

154(3) while filing a petition under Section 156(3). Both the aspects

should be clearly spelt out in the application and necessary

documents to that effect shall be filed. The warrant for giving a

direction that an application under Section 156(3) be supported by

an affidavit is so that the person making the application should be

conscious and also endeavour to see that no false affidavit is made.

It is because once an affidavit is found to be false, he will be liable

for prosecution in accordance with law. This will deter him to

casually invoke the authority of the Magistrate under Section

156(3). That apart, we have already stated that the veracity of the

same can also be verified by the learned Magistrate, regard being

had to the nature of allegations of the case. We are compelled to

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say so as a number of cases pertaining to fiscal sphere, matrimonial

dispute/family disputes, commercial offences, medical negligence

cases, corruption cases and the cases where there is abnormal

delay/laches in initiating criminal prosecution, as are illustrated in

Lalita Kumari Vs. Sate of U.P. [2014] 2 SCC 1 are being filed.

That apart, the learned Magistrate would also be aware of the delay

in lodging of the FIR and by observing the same, the Hon’ble Apex

Court quashed the FIR.

18. In the light of the above said directions of the Hon’ble

Apex Court, it is necessary to see whether the respondent No.2

made a compliance of the same. In application under Section

156(3), the respondent No.2 has mentioned that he has given a

complaint to Wadi Police Station, Deputy Commissioner of Police

Nagpur Zone – 1, and Police Commissioner of Nagpur City on

13.06.2022 but concerned department has not taken action about

the same. However, the complaint nowhere discloses that the

copies of the said complaint are attached with the complaint. In

view of the observation of the Hon’ble Apex Court, in the case of

Priyanka Srivastava and another (referred supra), the

application further not supported by an affidavit. Thus, admittedly,

there is no compliance in view of Section 156(3) of Cr.P.C.

19. Now coming to the merits of the case, there is no dispute

that the property i.e. Khasra No.55 was originally owned by Meghraj

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Hiranwar. After his death, the mutation entry was taken. The 7/12

extract showing the names of legal heirs of Meghraj Hiranwar,

wherein the name of the wife of Rajendra Chaudhary namely Sudha

Rajendra Chaudhary is mentioned. The name of the grandmother

of the respondent No.2 Anandibai was not mentioned. The sale

deed executed in favour of Hasmukh Hirjibhai Rathod and Viren

Jayantilal Thakkar by all the legal heirs to the extent of 2.46 HR out

of 3.28 HR. for the consideration of Rs.1,20,00,000/-. After

execution of the sale deed, the name of the said Hasmukh Hirjibhai

Rathod and Viren Jyantilal Thakkar was entered to the extent of

2.46 HR. Thereafter, the application was filed by the said

purchasers as well as all the legal heirs for measurement of the

lands. The Challan was also obtained by depositing the amount for

measurement on 07.10.2021. Prior to that notice of measurement

was given on 26.10.2021. There is no dispute that the report of the

measurement shows the presence of Rajendra Ch audhary, whereas

his death certificate which is on record shows that on 16.04.2020

itself said Rajendra Chotelal Chaudhary reported to be dead.

20. After going through the entire transactions, there is no

dispute that the dispute between the complainant and other legal

heirs is in the nature of civil dispute. It is well recognized that the

person aggrieved must first exhaust the alternative remedies

available to him in law before approaching the Court of law. In other

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words, he cannot ordinarily approach the Court directly. In the case

at hand, the application filed by the respondent No.2 shows that he

had approached the officer-in-charge of the Police Station, Wadi and

thereafter superior officers and thereafter, filed an application under

Section 156(3) of Cr.P.C., but he has not filed on record the copies

of the said applications, which are addressed to the Police Officers.

In such a situation, the Magistrate in view of the observation of the

Hon’ble Apex Court in Priyanka Srivastava and another’s case,

ought not to have ordinarily entertained the application either under

Section 156(3) or under Section 200 of Cr.P.C., so as to direct the

Police for the registration of the FIR, rather, it ought to have

relegated the Complainant to first approach the officer-in-charge of

the Police Station or direct him to file the copies of the same on

record.

21. The second aspect is that the non-applicant No.2 though

filed a Civil Suit bearing No.186/2021 before the learned Civil Judge

Senior Division, making allegations similar to the allegations made

in the impugned FIR, but the said fact is not mentioned in the

complaint or the application.

22. The Hon’ble Apex Court in the case of Vijay Kumar Ghai

& Ors., Vs. State of West Bengal & Ors., (2022) 7 SCC 124 ,

has held that filing of multiple complaints by same party against

same accused in respect of same incident amounts to an abuse of

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process. In paragraph Nos.14 and 15, the Hon’ble Apex Court has

observed as under:

“14. Forum shopping has been termed as

disreputable practice by the courts and has no

sanction and paramountey in law. In spite of this

Court condemning the practice of forum shopping,

Respondent 2 filed two complaints i.e. a complaint

under Section 156(3) CrPC before the Tis Hazari

Court, New Delhi on 6-6-2012 and a complaint which

was eventually registered as FIR No. 168 under

Sections 406, 420, 120-B IPC before PS Bowbazar,

Calcutta on 28-3-2013 i.e. one in Delhi and one

complaint in Kolkata. The complaint filed in Kolkata

was a reproduction of the complaint filed in Delhi

except with the change of place of occurrence in

order to create a jurisdiction.

15. A two-Judge Bench of this Court in Krishna Lal

Chawla v. State of U.P

19

observed that multiple

complaints by the same party against the same

accused in respect of the same incident is

impermissible. It held that permitting multiple

complaints by the same party in respect of the same

incident, whether it involves a cognizable or private

complaint offence, will lead to the accused being

entangled in numerous criminal proceedings. As such

he would be forced to keep surrendering his liberty

and precious time before the police and the courts,

as and when required in each case.”

23. The complainant has alleged that with the help of the

Revenue Officer, the present petitioners have mutated the names

and carried out the measurement and thereby committed an

offence punishable under Sections 420, 467 and 468 of IPC. To

constitute an offence under Section 420 of IPC there has to be (1)

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Deception of any person, either by making a false or misleading

representation or by other action or by omission; (2) Fraudulently

or dishonestly inducing any person to deliver any property, or (3)

The consent that any person shall retain any property and finally

intentionally inducing that person to do or omit to do anything

which he would not do or omit.

24. In both the aforesaid Sections, mens rea i.e. intention to

defraud or the dishonest intention must be present, and in the case

of cheating it must be there from the very beginning or inception.

25. On the plain reading of the complaint fails to spell out any

of the aforesaid ingredients noted above. The case of cheating

dishonest intention starts with the very inception of the transaction

which appears to be absent in the present case.

26. In the case of Paramjeet Batra Vs. State of

Uttarakhand & Ors., 2013(11) SCC 673 , the Hon’ble Apex Court

in paragraph No.12 has observed as under:-

“12. While exercising its jurisdiction under Section 482

of the Code the High Court has to be cautious. This

power is to be used sparingly and only for the purpose of

preventing abuse of the process of any court or

otherwise to secure ends of justice. Whether a complaint

discloses a criminal offence or not depends upon the

nature of facts alleged therein. Whether essential

ingredients of criminal offence are present or not has to

be judged by the High court. A complaint disclosing civil

transactions may also have a criminal texture. But the

High Court must see whether a dispute which is

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essentially of a civil nature is given a cloak of criminal

offence. In such a situation, if a civil remedy is available

and is, in fact, adopted as has happened in this case, the

High court should not hesitate to quash the criminal

proceedings to prevent abuse of process of the court.”

27. In the present case, the learned Magistrate has not kept

himself alive to the aforesaid provision before venturing into

directing registration of the FIR under Section 156(3) of Cr.P.C. The

learned Magistrate has also not considered the observation of the

Hon’ble Apex Court in the case of Priyanka Srivastava and

another (supra). As observed by the Hon’ble Apex Court that the

Parliament in its wisdom has made such a provision to protect the

innocent persons, the legislative mandate, has to be kept in mind.

28. In view of the aforesaid discussion, the writ petitions as

well as the criminal applications deserve to be allowed. Hence, I

proceed to pass following order:

ORDER

(i)The Criminal Writ Petition Nos.422/2023 and

452/2023 and Criminal Application (APL) Nos.

869/ 2023, 870/2023 and 871/2023 are allowed.

(ii)The FIR in connection with Crime No.365/2023

registered with Police Station Wadi, District Nagpur for

the offence punishable under Sections 120B, 420, 465,

467, 471 read with Section 34 of the Indian Penal

Code, is hereby quashed and set aside to the extent of

the present petitioners/applicants namely, Hasmukh

s/o Hirjibhai Rathod, Viren s/o Jayantilal Thakkar,

Ashish Shankarrao Thool, Smt. Ujjwala D/o Ankushrao

Telang Alias Ujjwala Rakesh Landge, Pawankumar s/o

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Rewaram Kewate and Shri Sunil s/o Ramkrushna Ban

and the order dated 14.06.2023 passed in Misc.

Criminal Application No.3479/2022 by the learned

Judicial Magistrate First Class, Corporation Court No.2,

Nagpur, is hereby quashed and set aside.

The Writ Petitions and the Criminal Applications are

disposed of.

(URMILA JOSHI-PHALKE, J.)

Sarkate.