PRAKASH ASHOKRAO MARKADversusJYOTI CHANDRAKANT KASALIWAL

2026:BHC-AUG:46389


                                                                                ALP-76-2025
                                                    -1-

                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      BENCH AT AURANGABAD

                     APPLICATION FOR LEAVE TO APPEAL BY PVT. PARTY NO. 76 OF 2025

                 Prakash Ashokrao Markad
                 Age: 43 years, Occu.: Medical Practitioner,
                 R/o. Shinde-Shiginagar, Bhabanagar Road,
                 Kopargaon, Tq.Kopargaon,
                 District Ahmednagar.                                 ….Applicant
                              Versus
                 Jyoti Chandrakant Kasaliwal
                 Age: 47 years, Occu.: Household,
                 R/o. C/o. Vimal Photo Studio, Main Road,
                 Kopargaon, Tq.Kopargaon,
                 District Ahilyanagar.                                …..Respondent
                                                  …..
                 Mr.Satyam Kumar h/f. Mr.Chandrakant R.Thorat, Advocate for Applicant.
                 Ms.Rani Bharuka - Bora h/f. Mr. Satyajit S. Bora
                                                   …..
                                          CORAM :         ABHAY S. WAGHWASE, J.

                                          Reserved on           : 23-09-2026
                                          Pronounced on         : 05-10-2026
                 ORDER :

                 1.     Original   complainant,   who      is   primarily   dissatisfied   by

                 impugned judgment and order dated 19-12-2024 passed by learned

                 Additional Chief Judicial Magistrate, Kopargaon, thereby acquitting

                 respondent from charge under Section 420 of the Indian Penal Code

                 (IPC), has preferred instant application seeking leave to file appeal.



                 2.     Applicant instituted a private complaint bearing R.C.C. No.126

                 of 2012 on the premise that, respondent/original accused cheated
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and defrauded him by executing a sale deed and selling a plot, which

was already under attachment by the Court order.         On receipt of

above private complaint, learned trial Court issued process and called

upon respondent/accused to answer the charge. On appreciating the

evidence available on record, the learned trial Court acquitted the

accused. Hence, instant application for leave to file appeal.


3.    Learned counsel for applicant pointed out that, applicant had

proved before learned trial Court that accused projected that plot was

free from encumbrance and there was clear title.         That, accused

accepted amount. However, accused had suppressed the fact of said

plot to be mortgaged and encumbered with Bank, which later on i.e.

after sale deed, and after complainant erected house, initiated action

of attachment of the property. According to learned counsel, act of

accused was deliberate and inspite of being aware of encumbrance.

That, there was element of cheating, but learned trial Court failed to

consider and appreciate the same and acquitted accused. He

submitted that, there is a good case but in appeal and so he seeks

leave to file appeal.


4.    Learned counsel for respondent/original accused justified the

order of acquittal by pointing out that, the attachment proceedings
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were subsequent to the sale deed. That, accused was not aware of the

action of the Bank. That, there was no cheating or defrauding

accused. Therefore, learned counsel prays for rejection of application.


5.    Perused the record.    There is no dispute that accused was

owner of a plot and complainant was desirous of purchasing it and

therefore, sale deed was executed on 01-07-2010. It was a registered

sale deed. Complaint was at the instance of applicant and therefore,

obviously there was burden on him to prove the accusations and

allegations of cheating. However, his cross-examination shows that

he has admitted that the plot in question was not attached prior to the

purchase and rather attachment proceedings were subsequent to

purchase.   It has also come in his evidence that after the sale

transaction, name of complainant was reflected in the revenue record

and thereafter, he had also obtained permission to construct the

house and the same was also granted and he erected the house.

Apparently, the attachment proceedings are in consequence to

Darkhast. Complainant also admitted that, he did not challenge the

order of attachment.


6.    It appears that present respondent/accused was mere a

guarantor and she had not mortgaged the said plot. As the principal
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borrower seems to have failed to repay loan in Darkhast proceedings,

the decree holder rather than seeking attachment of property of

borrower, who was principal borrower, had proposed attachment of a

plot of respondent/accused and in such proceedings orders seems to

have passed.


7.    In view of nature of allegations of cheating, it is incumbent

upon complainant to show that accused, since inception, had the

intention to cheat. This requirement is primarily missing from above

evidence. When once complainant has admitted that prior to purchase

of plot, he had taken all due steps to ascertain clear title and

thereafter, entered into sale agreement, role of accused does not

remain.   For above reasons, offence under Section 420 of the IPC is

not made out by complainant. There is nothing to show that accused

was aware of the attachment proceedings but still she entered into

sale transaction. On the contrary, evidence on record shows that at

the time of sale transaction, there was clear title with accused.

      Resultantly, essential ingredients for attracting charge under

Section 420 of the IPC being missing, learned trial Court has made no

error in acquitting accused.    As no good ground is made out for

granting leave, application deserves to be rejected.        Accordingly,

following order is passed :
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              ORDER

      Application is rejected.



                         [ABHAY S. WAGHWASE, J.]
SPT