RAMBHABEN SHAMJI SHAH AND ANRversusTHE STATE OF MAHARASHTRA AND ORS

Sagar Magar                                                     WP-2223-2013.doc


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL WRIT PETITION NO. 2223 OF 2013

1. Smt. Rambhaben Shamji Shah
   Age:- 67 Years,
   Indian inhabitant of Mumbai,
   Residing at 4th Floor,
   Ajanta Apartment. S. V. Road,
   Dahisar (East), Mumbai 400 068.


2. Mr. Dinesh Shamji Shah,
   Age :- 43 Years,
   Indian inhabitant of Mumbai,
   Residing at 4th Floor,
   Ajanta Apartment. S. V. Road,
   Dahisar (East), Mumbai 400 068.                          … Petitioners


              V/s.


1. State of Maharashtra.
   Through Dahisar Police Station.

2. Dattatraya Mukund Bhoir,
   C/309, Bhairavi Apartment,
   Bharucha Marg, Dahisar (E),
   Mumbai – 40 068.

3. The Secretary,
   S.T. Caste Scrutiny Committee
   Having Office at Vartak Nagar,
   Thane (West).                                            … Respondents


                               ______________________

Dr. Abhinav Chandrachud a/w Mr. Saurabh Utangale i/b Utangale & Co. for
the Petitioners.
Ms. Dhanalaxmi Krishnaiyer, APP for the Respondent-State.

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Mr. Vishal Patil a/w Mr. Afsar Ansari for the Respondent No. 2.
Mr. Nilesh Salunke, attached to the Dahisar Police Station is present.
                            ______________________

                            CORAM : RANJITSINHA RAJA BHONSALE, J.

                     RESERVED ON : 17th JULY 2026.
                PRONOUNCED ON : 22nd September 2026.


JUDGMENT :-

1)            By the present petition filed under Article 226 of the Constitution

of India and under Section 482 of the Code of Criminal Procedure, 1973 (for

short, “CrPC”), the Petitioners seek to quash and set aside the impugned FIR

No. 117 of 2013 dated 13th March 2013 registered with the Dahisar Police

Station under Section 420 of the Indian Penal Code (for short, “IPC”) read

with Sections 3(1)(iv) and (v) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 (for short, “SC and ST Act”) at the

instance of Respondent No. 2.

2)            Heard Dr. Abhinav Chandrachud, learned Advocate for the

Petitioners, Ms. Dhanalaxmi Krishnaiyer, APP for the Respondent-State and

Mr. Vishal Patil, learned Advocate for the Respondent No. 2.

3)            The case of the prosecution as alleged is as under:-

3.1)          The FIR has been lodged by Mr. Dattatray Mukund Bhoir on 13 th

March 2013. It is alleged by Respondent No. 2 that, the land bearing CTS No.

1041 A, Survey No. 45, Hissa No. 1, situated at Bharucha Road, Village

Dahisar, Taluka Borivali, admeasuring 3123.10 sq. mtrs., is his ancestral

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property. That, out of the said land, an area admeasuring 877.95 sq. mtrs. was

conveyed to M/s. Girnar Constructions by conveyance deed dated 29 th

December 2001. It was allegedly projected to the family of Respondent No. 2

that, there would be huge profit. That, the conveyance deed was registered.

The same was produced by Respondent No. 2 along with the First Information

Report (for short, “FIR”).

3.2)          It is alleged that, against the conveyance deed, partners of Girnar

Constructions, i.e. Shamji Shah and Naginbhai Narsandas Mehta, had given

an amount of Rs. 3,00,000/- as consideration. That, 3 flats of 740 sq. ft. and

one flat of 400 sq. ft. were to be given to the Respondent No. 2 and family.

That, in respect of one flat of 740 sq. ft., construction cost of Rs. 9,00,000/-

was decided to be given by the family of Respondent No. 2 and other legal

heirs. That, out of the said amount, Rs. 2,50,000/- in cash and Rs. 50,000/-

were given by cheque drawn on Dena Bank, Dahisar East Branch.

3.3)          That, M/s. Girnar Constructions proceeded to construct a building

by the name Shivam Apartment. That, during the said period, Naginbhai

Mehta expired on 30th November 2007 and Shamjibhai Shah expired on 8 th

September 2011. After the death of two partners, the construction of building

was taken over by the legal heirs of Shamjibhai Shah, i.e. Smt. Rambhaben

Shamji Shah (wife) i.e. Petitioner No. 1, Mr. Dinesh Shamji Shah (son) i.e.

Petitioner No. 2, and other partners, viz. Vinubhai Nanabhai Royala, Kanubhai

J. Chaganani, Thakarsibhai Sutaria, Dinesh P. Soni, Harish L. Makhela and


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Ramdev Bahadursing Gohil. That, the construction of building was completed

in the year 2012.

3.4)          After the building was completed, Respondent No. 2 and his

family sought possession of the said flat from Dinesh Shah i.e. Petitioner No.

2. Respondent No. 2 was allegedly informed that, the occupation certificate of

the building was not yet available and, therefore, possession could not be

given. That, therefore the Respondents felt cheated. Other entities on the first

floor were given possession, i.e. a Gym by the name of Maniya, a stationery

shop by the name of Selection on the ground floor, which occupied three

shops, and other 5 to 6 families who have come to reside in the said building.

3.5)          It is further alleged that, in front of the said land, the family of

Respondent No. 2 had a land admeasuring 710 sq. mtrs., which was reserved

for a recreation ground, and that the said land was given to Shamjibhai and

Naginbhai to accommodate the labourers who were working on the

construction of Shivam Apartment. That, huts were built for the labourers,

with an assurance that after the completion of construction of Shivam

Apartment, the said huts would be demolished.

3.6)          After the death of Shamjibhai in the year 2011, his son

Dineshbhai and other partners started looking after the business transactions

of Girnar Constructions. That, they converted the huts into permanent

constructions, i.e. shops, and that, for undertaking the said constructions, they

have submitted forged documents in the office of Municipal Corporation and


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the Collector. That the said area was to be handed over to the Corporation for

a recreation ground and that there was a violation of the law. It is further

contended that, Respondent No. 2 and his family are of Malhar Koli Caste.

That, the accused persons made Respondent No. 2 and his family believe that

they would provide Respondent No. 2 and his family flats in lieu of their land

and by preparing a conveyance deed to that effect, the accused persons

committed financial fraud upon Respondent No. 2 and his family by taking

Rs.2,50,000/- in cash and cheque of Rs. 50,000/-. That accused person

committed fraud against Respondent No. 2 and Government by illegally

constructing permanent shops on Respondent No. 2 and his family’s land

which was reserved for RG (recreational ground) and by submitting false and

fabricated document before concerned authorities. On the aforesaid basis, the

FIR came to be lodged.

4)            Dr. Abhinav Chandrachud, learned counsel appearing for the

Petitioners submitted that:-

4.1)          The offence of cheating cannot be made out against the

Petitioners as the Petitioners were admittedly not concerned nor present at the

inception of the contract nor parties to the conveyance deed or development

agreement. That, before the conveyance deed, a development agreement was

executed on 29th September 1998 and thereafter the registered conveyance

deed was executed on 29th December 2001. That, the conveyance deed was

executed by the husband of Petitioner No. 1 and father of Petitioner No. 2.


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4.2)          That, for establishing the offence of cheating under Section 420

of the IPC, it is necessary for Respondent No. 2 to show that the accused had

fraudulent or dishonest intentions and that there was fraudulent inducement

at the inception of the contract. That, the conveyance deed dated 29 th

December 2001 as well as the development agreement of 1998 was executed

by the legal heirs of Rama Ragho Bhoir in favour of late Shamji Shah in the

year 2001. That, the present Petitioners became partners of Girnar

Construction only in the year 2011 after the death of Shamji Shah on 7 th

September 2011. That, there is no allegation that the Petitioners were present

when the contracts were executed or that they were responsible for the

execution of the contracts.

4.3)          The concept of vicarious liability unless specified by a statute is

unknown to criminal law. That, neither Section 420 of the IPC nor Sections

3(1)(iv) and (v) of the SC and ST Act create any such vicarious liability. That,

the parties had executed at the first instance a development agreement and

then a registered conveyance deed dated 29 th December 2001. That, Section

3(1)(iv) of the SC and ST Act can be invoked when the person wrongfully

occupies or cultivates any land owned by, allotted to, or notified by any

competent authority to be allotted to a member of the SC and ST or gets the

land allotted to him transferred. Further, Section 3(1)(v) penalises the person

who wrongfully dispossesses a member of the SC and ST from his land or

premises or interferes with the enjoyment of rights over the land, premises or


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water. That, the basic and essential ingredient to invoke both the sections is

that the occupation or dispossession must be wrongful. That, in the present

case, the parties have acted is under the registered development agreement

dated 29th September 1998 and registered deed of conveyance dated 29 th

December 2001. That, the development agreement or deed of conveyance

have not been challenged.

4.4)           Mere dispute or the issue over the property or dispute in respect

of an agreement between the parties, one of whom happens to belong to SC

and ST, does not attract or become an offence under the SC and ST Act.

4.5)           The vendors, including Respondent No. 2 and legal heirs of late

Rama Ragho Bhoir have executed a declaration-cum-indemnity dated 1 st

January 2002 expressly declaring that they are not Adivasi and that the said

property never belonged to any Adivasi. That, the bona fide certificate issued

by the Vidya Mandir Dahisar Marathi School records the caste of Respondent

No. 2 as Hindu Kunabi. That, the claim of belonging to the Scheduled Caste

community for the first time was made in Advocate’s notice dated 9 th May

2012, nearly after 15 years after the transaction. That, none of the 7/12

extracts refer to Respondent No. 2 being an Adivasi. That, in view thereof,

knowledge cannot be attributed to late Shamji Shah or to the Petitioners that

the vendors belonged to SC or ST community, nor any act was committed on

that ground.

4.6)           The allegations in respect of labour room, huts cannot attract the


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provisions of Sections 3(1)(iv) and (v) of the SC and ST Act. The FIR would

indicate that, in fact it is the case of Respondent No. 2 himself that, possession

of the said land was handed over to Girnar Construction Co. In view thereof, it

can never be said that Respondent No. 2 or his family were wrongfully

dispossessed within the meaning of Sections 3(1)(v) of the SC and ST Act.

Further in view of the document on record and pleadings nor can it be said

that the Girnar Construction Co. wrongfully occupied the property within the

meaning of Section 3(2)(iv) of the SC and ST Act. That, the said huts have

been removed when the Corporation issued the notice and the Civil Court

passed an order for demolition. The said issue now stands settled and also

resolved by undertaking demolition of the structures in accordance with the

orders.

4.7)          The FIR has been filed at a belated stage. There is no explanation

given for the delay in filing the FIR. Reliance was placed on the judgment in

the case of Kishan Singh v. Gurpal Singh, reported in (2010) 8 SCC 775, to

submit that, in the absence of any plausible explanation for delay in

registration of the FIR, the same would be fatal. That, the same is indicative of

the fact that the complaint is an afterthought and based on the coloured

version of the events.

4.8)          Respondent No. 2 has, in fact, settled the disputes with the

Petitioners. Respondent No. 2, in his communication/statement dated 10 th

November 2017 given to the concerned Police Station, has himself stated that,


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he has settled his dispute with the Petitioners. That, in view of the present

facts, it is clear that the offence arises out of a transaction which is civil and

commercial in nature. That, the parties have resolved their disputes and

continuation of criminal proceedings in such facts would be an exercise in

futility.

5)            Mr. Vishal Patil, learned Advocate for Respondent              No. 2

submitted that :-

5.1)          The FIR makes out a prima facie case against the Petitioners.

That, the Petitioners were denied possession on the ground of non-receipt of

the occupation certificate when other people were granted possession. That,

the conveyance deed was executed by misleading Respondent No. 2 and other

heirs. That, an offence under Section 3(1)(iv) and (v) of the SC and ST Act is

clearly made out. That, the Petitioners have been in illegal occupation and

used the premises belonging to Respondent No. 2 for labour camp. The

Petitioners   have   then   illegally   and   without   permission     constructed

unauthorised shops. That, Respondent No. 2 has been cheated inasmuch as

the predecessor of Respondent No. 2 was given assurance of huge profit.

Considering that the allegations are in respect of the SC and ST Act, what can

be seen is only the FIR.

6)            Ms. Dhanalaxmi Krishnaiyer, learned APP appearing for the State

adopted the arguments advanced by Mr. Vishal Patil, learned Advocate for the

Respondent No. 2.


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7)             Before considering the facts of the present it is necessary to refer

to the certain judgments of the Hon’ble Supreme Court.

7.1)           The Hon’ble Supreme Court in the case of Hira Lal Hari Lal

Bhagwati v. CBI, reported in (2003) 5 SCC 257, while referring to the

essential ingredient of Section 420 has in paragraph 40 observed that :-

              “40. It is settled law, by a catena of decisions, that for establishing
              the offence of cheating, the complainant is required to show that
              the accused had fraudulent or dishonest intention at the time of
              making promise or representation. From his making failure to keep
              promise subsequently, such a culpable intention right at the
              beginning that is at the time when the promise was made cannot
              be presumed….”


7.2)           The Hon’ble Supreme Court in the case of Uma Shankar Gopalika

v. State of Bihar, reported in (2005) 10 SCC 336, in paragraph 6 has observed

that every breach of a contract/agreement cannot amount to cheating and

that a prima facie dishonest inducement at inception is a essential ingredient

to make out a offence of cheating. The relevant portion of paragraph 6 reads

as under :-

              “6. …. It is well settled that every breach of contract would not
              give rise to an offence of cheating and only in those cases breach
              of contract would amount to cheating where there was any
              deception played at the very inception. If the intention to cheat
              has developed later on, the same cannot amount to cheating. In
              the present case it has nowhere been stated that at the very
              inception there was any intention on behalf of the accused persons
              to cheat which is a condition precedent for an offence under
              Section 420 IPC.”


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7.3)          A useful reference may be made to the observations made by the

Hon’ble Supreme Court in the respect of the powers and ambit of the High

Court’s under Section 482 of the CrPC while dealing with an application

seeking quashing of a complaint which is based on the offence under the SC

and ST Act. The Hon’ble Supreme Court in the case of Gulam Mustafa v. State

of Karnataka, reported in (2023) 18 SCC 265 has observed that :-

              “34. Insofar and inasmuch as interference in cases involving the
              SC/ST Act is concerned, we may only point out that a three-
              Judge Bench of this Court in Ramawatar v. State of M.P.
              [Ramawatar v. State of M.P., (2022) 13 SCC 635] , has held that
              the mere fact that the offence is covered under a “special statute”
              would not inhibit this Court or the High Court from exercising
              their respective powers under Article 142 of the Constitution or
              Section 482 of the Code, in the terms below : (SCC pp. 641-42,
              paras 16-17)
                  “16. Ordinarily, when dealing with offences arising out of
                  special statutes such as the SC/ST Act, the Court will be
                  extremely circumspect in its approach. The SC/ST Act has
                  been specifically enacted to deter acts of indignity,
                  humiliation and harassment against members of Scheduled
                  Castes and Scheduled Tribes. The SC/ST Act is also a
                  recognition of the depressing reality that despite undertaking
                  several measures, the Scheduled Castes/Scheduled Tribes
                  continue to be subjected to various atrocities at the hands of
                  upper castes. The Courts have to be mindful of the fact that
                  the SC/ST Act has been enacted keeping in view the express
                  constitutional safeguards enumerated in Articles 15, 17 and
                  21 of the Constitution, with a twin-fold objective of
                  protecting the members of these vulnerable communities as
                  well as to provide relief and rehabilitation to the victims of
                  caste-based atrocities.


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                  17. On the other hand, where it appears to the Court that the
                  offence in question, although covered under the SC/ST Act,
                  is primarily private or civil in nature, or where the alleged
                  offence has not been committed on account of the caste of
                  the victim, or where the continuation of the legal
                  proceedings would be an abuse of the process of law, the
                  Court can exercise its powers to quash the proceedings. On
                  similar lines, when considering a prayer for quashing on the
                  basis of a compromise/settlement, if the Court is satisfied
                  that the underlying objective of the SC/ST Act would not be
                  contravened or diminished even if the felony in question goes
                  unpunished, the mere fact that the offence is covered under a
                  “special statute” would not refrain this Court or the High
                  Court, from exercising their respective powers under Article
                  142 of the Constitution or Section 482 CrPC.”
                                                              (emphasis supplied)
7.4)          The Hon’ble Supreme Court in the case of Karuppudayar v. State,

reported in 2025 SCC OnLine SC 215 has observed that:-

               “17. No doubt, that the power under Section 482 of the CrPC is
               required to be exercised sparingly and with circumspection and
               that too in the rarest of rare cases. It is equally settled that the
               court will not be justified in embarking upon an enquiry as to
               the reliability or genuineness or otherwise of the allegations
               made in the FIR or the complaint. However, the court would be
               justified in exercising its discretion if the case falls under any of
               the clauses carved out by this Court in Paragraph 102 in the
               case of Bhajan Lal (supra)
               18. We find, as already observed herein, that the allegations
               made in the FIR, even if they are taken at their face value and
               accepted in their entirety, do not prima facie constitute an
               offence either under Section 3(1)(r) or under Section 3(1)(s) of
               the SC-ST Act. We are of the considered view that the case
               would fall under the first category, listed by this Court in
               Paragraph 102 in the case of Bhajan Lal (supra).
              19. On a perusal of the order of the High Court, we find that the

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              High Court has not at all considered this aspect of the matter
              though it was strenuously argued on behalf of the petitioner
              before the High Court (Appellant herein) that the allegations
              made in the FIR do not make out a case that the offence is
              committed in public view. The High Court did not even deal with
              the said contention, leave aside considering the same.”
8)            Perused the entire record. Perusal of the FIR would indicate that

the documents in question, i.e. development agreement dated 29 th September

1998 and the conveyance deed dated 29th December 2001, are both registered

documents. The Respondent No. 2 himself has submitted the copy of the

conveyance deed with the FIR. The perusal of the conveyance deed would

indicate that, the same has been executed by and between the Respondent No.

2 and other legal heirs of late Rama Ragho Bhoir and M/s Girnar Construction

Company, a registered partnership firm of which Mr. Shamji Shah, i.e. the

husband of Petitioner No. 1 and father of Petitioner No. 2, was a partner.

Under the said registered documents possession of the land was handed over

to Girnar Construction Co. and permission was granted to develop and

construct the building based on and pursuant to the agreement and

understanding between the parties which is specifically enumerated in the

said development agreement and conveyance deed.

9)            Perusal of the said conveyance deed would indicate that, it makes

a specific reference that the common ancestor of Respondent No. 2, i.e. Rama

Bhoir, had acquired the property in question vide tenancy certificate dated 6 th

October 1965 under the Bombay Tenancy and Agricultural Land Act. That, the


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required permissions from the Collector, Mumbai Sub-urban Division, were

obtained on 4th January 2000 for the sale of the property in favour of Shamji

Shah, who is a partner of Girnar Constructions. The Sub-Divisional Officer,

Mumbai, had issued the letter dated 14 th September 2000 and granted

permission in favour of vendors, namely Mukund Rama Bhoir, Narayan Rama

Bhoir and Gangabai Ganpat Bhoir, to sell and dispose of the said plot of land

to Shamji Shah. The vendors had also obtained corrigendum from the

Additional Collector and CA (ULC), Greater Mumbai, dated 22 nd October

1999, and in view thereof, the vendors were entitled to sell and dispose of the

said plot of land. The record indicates that, against the sale of the land, the

vendors were allotted certain flats. The said conveyance deed is a registered

document. The record also indicates that the Petitioners are not party to the

said document.

10)           On a prima facie basis, the FIR would indicate that, there is no

inducement which has been or could have been offered by the Petitioners. The

Petitioners were not party to the conveyance deed or the development

agreement. In such view of the matter, it prima facie appears that the offence

of cheating under the IPC cannot be invoked against the Petitioners.

11)           As regards the offences under Section 3(1)(iv) and (v) of the SC

and ST Act, the basic and most essential and foundational ingredient of the

offences is “wrongful occupation or cultivation of land” or “wrongful

dispossession” of the person belonging to or being a member of a Scheduled


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Caste or a Scheduled Tribe. In the present case, the FIR itself would indicate

that, Respondent No. 2 has relied upon the registered conveyance deed. As

noted herein, the conveyance deed specifically mentioned the permissions

taken by the parties and the consideration for the said transaction. In such

view of the matter, it cannot be said that the Respondent No. 2 and/or the

other heirs of late Rama Ragho Bhoir were wrongfully dispossessed from the

said land or that Girnar Construction wrongfully occupied the land. As regards

the allegations in respect of the other plots on which labour hutments were

constructed, it is the case of Respondent No. 2 himself that the permissions

were given to construct the said labour hutments. Prima facie the occupation

and use of the lands including the land for putting up labour huts was

permitted. There was a permissive user. In the facts of the present case it

prima facie appears that there is no act of wrongful occupation or wrongful

disposession.

12)           It prima facie appears that a commercial and contractual dispute

in respect of development of property, based on registered documents has

been attempted to be converted into criminal proceedings. I have also noted

that the Petitioner were not party to the agreement or the negotiation and

have came into the picture only in the year 2011.

13)           The Society had also filed a complaint with the Dahisar Police

Station on 10th November 2017, complaining of the fact that Respondent No.

2 had broken the locks and entered into the flats. Further, the Petitioners have


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filed on record an additional affidavit dated 1 st December 2025, wherein the

Petitioners have annexed the copy of the statement of Respondent No. 2 dated

10th November 2017, wherein Respondent No. 2 has inter alia stated that the

issue between Respondent No. 2 and the Petitioners has been settled and that

he has no complaint against the Petitioners. Statement of the Petitioner No. 2,

Dinesh Shamji Shah, has also been recorded, wherein the Petitioner also

stated that the issue between Respondent No. 2 and the Petitioners has been

settled. The said events have not been disputed by the Advocate for the

Respondent No. 2. In fact the       Advocate for Respondent No. 2 has on

instruction, stated that possession of the flats is with the Respondent No. 2.

The record prima facie indicates that the possession of the lands was handed

over under a registered conveyance deed for consideration and on certain

terms and conditions. In respect of the other land, it prima facie appears that

the user was permissive. The parties to the agreement have acted upon and in

accordance with the agreements and understanding. Prima facie no case

under the SC and ST Act is made out. The facts of the matter at the highest

may be a case of a breach of the agreement or a delayed performance of the

obligations, but not a case of cheating or any offence under the SC and ST

Act.

14)           Considering the facts and circumstances of the present case, I am

of the opinion that no case has been made out under Section 420 of the IPC

read with Section 3(1)(iv) and (v) of the SC and ST Act. I am of the prima


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                      facie opinion that this is a fit case to exercise power under Section 482 of the

                      CrPC.

                      15)           Considering the facts of the present case and for the aforestated

                      reasons, I am of the considered view that, the Petitioners have made out a

                      prima facie case for this Court to exercise its inherent powers under Section

                      482 of the CrPC to prevent the abuse of the process of law and to ensure that

                      the ends of justice are meet. Considering the peculiar facts of the present case,

                      in my considered view, the present case fits in category 1 as laid down by the

                      Hon’ble Supreme Court in the case of State of Haryana & Ors. Vs.Bhajan Lal &

                      Ors., reported in 1992 Supp (1) SCC 335.

                      15)           In view thereof, petition is allowed in terms of prayer clause (b).



                                                             (RANJITSINHA RAJA BHONSALE, J.)
SAGAR
SANTOSH
MAGAR
Digitally signed by
SAGAR SANTOSH
MAGAR
Date: 2026.09.22
19:21:30 +0530




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