Case Note & Summary
The petitioner, Dada Govindrao Dhabre, challenged the order of issuance of process and direction for framing of charge against him under Sections 420, 463, and 464 of the Indian Penal Code in Complaint Case No. 749 of 2009, passed by the Judicial Magistrate First Class, Court No. 6, Nagpur, and confirmed by the Additional Sessions Judge, Nagpur in Criminal Revision Application No. 83 of 2013. The respondent, Tarabai Subhash Burde, alleged that the petitioner, her real brother, obtained her signature on blank documents on 26/9/2001 under the pretext of mutating names of legal heirs of their father's agricultural property, and later converted those documents into a relinquishment deed, thereby cheating her. The Magistrate issued process on 15/4/2009 and directed framing of charge on 18/1/2013. The petitioner argued that subsequent to the complaint, the respondent filed Special Civil Suit No. 341 of 2009 on 30/3/2009 seeking partition and separate possession of her share in the same agricultural field, based on the same allegations. Relying on Prabhakar Vithal Nalwade v. Prabhu Khemchand Karamchandani, 1998(3) Mh.L.J. 845, the petitioner contended that the criminal complaint was not maintainable. The High Court agreed, holding that when a civil suit for the same cause of action is pending, criminal proceedings are not maintainable. The court quashed the orders of issuance of process and framing of charge, and dismissed the complaint.
Headnote
A) Criminal Procedure - Maintainability of Complaint - Pending Civil Suit - Where a civil suit for partition and separate possession is filed based on the same allegations as a criminal complaint for cheating and forgery, the criminal proceedings are not maintainable - Held that the complaint and subsequent orders of issuance of process and framing of charge are liable to be quashed (Paras 5-7).
Issue of Consideration
Whether criminal proceedings for cheating and forgery are maintainable when a civil suit for partition and separate possession based on the same allegations is pending
Final Decision
The petition is allowed. The orders dated 15/4/2009 and 18/1/2013 passed by the Judicial Magistrate First Class, Court No. 6, Nagpur in Complaint Case No. 749 of 2009 and the order dated 29/10/2013 passed by the Additional Sessions Judge, Nagpur in Criminal Revision Application No. 83 of 2013 are quashed and set aside. The complaint stands dismissed.
Law Points
- Criminal proceedings not maintainable when civil suit for same cause of action is pending
- Complaint under Sections 420
- 463
- 464 IPC quashed due to civil remedy
Case Details
2015 LawText (BOM) (01) 106
Criminal Writ Petition No. 31 of 2014
Shri R. M. Patwardhan for petitioner, Shri S. Savdekar for respondent
Dada s/o Govindrao Dhabre
Tarabai w/o Subhash Burde
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Nature of Litigation
Criminal writ petition challenging orders of issuance of process and framing of charge in a complaint case for cheating and forgery
Remedy Sought
Petitioner sought quashing of orders dated 15/4/2009 and 18/1/2013 passed by the Magistrate and dismissal of the complaint
Filing Reason
Petitioner alleged that the criminal complaint was not maintainable because a civil suit for partition and separate possession based on the same allegations was pending
Previous Decisions
Magistrate issued process on 15/4/2009 and directed framing of charge on 18/1/2013; Additional Sessions Judge dismissed revision on 29/10/2013 confirming those orders
Issues
Whether criminal proceedings under Sections 420, 463, 464 IPC are maintainable when a civil suit for partition and separate possession based on the same allegations is pending
Submissions/Arguments
Petitioner argued that subsequent to the complaint, respondent filed Special Civil Suit No. 341 of 2009 for partition and separate possession based on same allegations, and relying on Prabhakar Vithal Nalwade v. Prabhu Khemchand Karamchandani, the complaint is not maintainable
Respondent's arguments not mentioned in judgment
Ratio Decidendi
When a civil suit for partition and separate possession based on the same allegations as a criminal complaint for cheating and forgery is pending, the criminal proceedings are not maintainable and are liable to be quashed.
Judgment Excerpts
Learned Counsel for the petitioner submits that subsequent to filing of the complaint, which was filed on or about 18/02/2009, the respondent had also filed a civil suit bearing Special Civil Suit No. 341 of 2009 on or about 30/3/2009 claiming reliefs of partition and separate possession of share of the respondent in the agricultural field.
He further submits that the basis of this suit is the allegations in the complaint and, therefore, relying upon the law laid down by this Court in the case of Prabhakar Vithal Nalwade Vs. Prabhu Khemchand Karamchandani reported in 1998(3) Mh.L.J. 845, the complaint itself is not maintainable and as such the order of issuance of process and also subsequent order of framing of charge deserve to be quashed and set aside and the complaint deserves to be dismissed.
Procedural History
Complaint filed on 18/2/2009; Magistrate issued process on 15/4/2009; evidence before charge recorded; Magistrate directed framing of charge on 18/1/2013; petitioner filed Criminal Revision Application No. 83 of 2013 before Sessions Court; Additional Sessions Judge dismissed revision on 29/10/2013; petitioner filed Criminal Writ Petition No. 31 of 2014 before High Court; High Court allowed petition on 13/1/2015.
Acts & Sections
- Indian Penal Code, 1860: 420, 463, 464
