Bombay High Court

RAMKRISHNA JANARDHAN GOSAVI AND ANR.versusSURESH JANARDHAN GOSAVI AND ANR.

Disposal: Dismissed

Holding

The criminal case is essentially a civil dispute and lacks the ingredients of Sections 420, 422 and 34 IPC, so the criminal proceedings are quashed.

Summary

The petitioners were sued in a civil partition suit, which awarded a share of certain properties to the respondent. Subsequently, the petitioners mortgaged those properties without the respondent's consent, obtained a loan of Rs. 3,00,000 and later repaid it. The respondent filed a criminal complaint alleging cheating under Sections 420, 422 and 34 of the IPC, leading the magistrate to issue process. The petitioners challenged the criminal proceedings by filing a revision, which was dismissed, and then approached the High Court under Article 227 and Section 482 of the CrPC. The High Court held that the matter was essentially a civil dispute, the complaint did not disclose the ingredients of the alleged offences, and therefore quashed the criminal case and set aside the revision order.

Issues considered

Whether the allegations of cheating under Sections 420, 422 and 34 IPC are substantiated in the present facts.
Whether a civil dispute over property rights can give rise to a criminal prosecution under the said sections.
Whether the revisional court erred in upholding the criminal proceedings despite the pending civil appeal.

Legislation cited

Code of Criminal Procedure, 1973 — s. 156(3), 397, 482
Indian Penal Code, 1860 — s. 34, 420, 422

Subjects

cheating
civil dispute
property mortgage
section 420 IPC
section 422 IPC
section 34 IPC
article 227
section 482 CrPC
partition suit

Judgment

908-WP-554-2006 (CR).docx

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIRCUIT BENCH AT KOLHAPUR

CRIMINAL APPELLATE JURISDICTION

CR. WRIT PETITION NO. 554 OF 2006

1. Shri Ramkrishna Janardhan Gosavi
Age 47 years, Occupation Agri & Service

2. Shri Manoj Ramkrishna Gosai
Age 19 years, Occupation Agriculture,
Both R/at : Mahud Budruk, Tal. Sangola,
District Solapur. …...Petitioners.

Versus
1. Shri Suresh Janardhan Gosavi
Age 40 years, Occupation Agriculture & Service
R/o. Mahud Budruk, Tal. Sangola,
District Solapur,
Presently staying at Sujay Nagar,
Akluj, Tal. Malshiras, District Solapur.

2. The State of Maharashtra …...Respondents.

----
 Adv. Umesh Mankapure Adv. Benazir Jamadar, Adv. Siyal Magdum &
Adv. Parth Pitambare for Petitioners.
 Adv. Vishwanath Talkute a/w. Adv. Mahesh Bhosale for the Respondent
No.1.
 Adv. S.H. Yadav, A.P.P. for the Respondent No.2.
-------

Coram : ASHWIN D. BHOBE, J.

Date : 30th September 2026.

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ORAL JUDGMENT:

1. Heard, Mr. Umesh Mankapure, learned Advocate for the Petitioners,

Mr. Vishwanath Talkute, learned Advocate for the Respondent No.1 and Mr.

Yadav, learned A.P.P. for the Respondent No.2-State.

2. By this Petition filed under Article 227 of the Constitution of India read

with Section 482 of the Criminal Procedure Code, 1973 (“Cr.P.C.”), the

Petitioners assail the Judgment and Order dated 13 th October 2005 passed by

the Additional Sessions Judge, Pandharpur (“Revisional Court”), which

rejected the Criminal Revision Application No. 133 of 2004 filed by the

Petitioners, thereby maintaining the Order dated 27 th July 2004 passed by the

Judicial Magistrate First Class, Sangola (“Magistrate”) in Regular Criminal

Case No. 77 of 2004, which issued process against the Petitioners under

Sections 420 and 422 read with Section 34 of the Indian Penal Code, 1860

(“IPC”).

3. The material facts relevant to the present petition are that Respondent

No. 1 instituted Regular Civil Suit No. 88 of 1994 against the Petitioners,

seeking partition and separate possession. The suit was decreed in favour of

Respondent No. 1 on 03.01.2004, whereby he was allotted a share in the house

properties bearing Gram Panchayat House Nos. 549/A and 460/A,

corresponding to City Survey Nos. 349-A, 349-B, 349-C and 349-D, situated

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at Mahud Budruk. Despite knowledge of the said judgment, the Petitioners, in

furtherance of their common intention, mortgaged the said properties with

Pandharpur Urban Co-operative Bank, Sangola Branch, by falsely

representing that the properties were free from any pending court dispute and

obtained a loan of Rs. 3,00,000/-, thereby intending to deprive Respondent

No. 1 of his share and causing him financial loss. Based on these allegations,

Respondent No. 1 filed a private complaint before the Trial Court in Regular

Criminal Case No. 77 of 2004, alleging offences punishable under Sections

420 and 422 read with Section 34 of the Indian Penal Code.

4. The Magistrate, by order dated 22 nd April 2004, passed the following

order:

“Read complaint, heard Advocate. It appears that, matter is related

with civil dispute. Hence, there should be investigation at the hands

of police. Therefore, matter be sent to P.I., Sangola with direction to

hold investigation under Section 156(3) of Cr. P.C. and take action if

necessary and submit the report on or before 07.06.2004.”

5. Subsequently, on 27th July 2004, the Magistrate, upon taking

cognisance of the charge-sheet, issued process in Regular Criminal Case No.

77 of 2004 for offences punishable under Sections 420, 422 and 34 of the

IPC.

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6. Aggrieved by the Order dated 27 th July 2004 passed in Regular

Criminal Case No. 77 of 2004, the Petitioners filed Criminal Revision

Application No. 133 of 2004 under Section 397 of the Cr.P.C. before the

Revisional Court. The Revisional Court, by the Judgment and Order dated

13th October 2005, dismissed the Criminal Revision Application (“impugned

judgment”).

7. Dissatisfied, the Petitioners have approached this Court by way of this

petition.

8. On 5th June 2006, while issuing the Rule, the following order was

passed, granting interim relief:-

“. None appears for respondent No.1 though served. Mr. More,
learned Counsel for the petitioners submits that on 30 th January,
2006, the petitioner has paid the entire amount to the bank with
interest and in view thereof, nothing survives in the complaint
filed by respondent No.1, who is real brother of the petitioner.

2. In view of this, Rule.

3. There shall be ad interim relief in terms of prayer clause (c).”

9. Mr. Umesh Mankapure, learned Advocate for the Petitioners, submits

that the subject matter of Regular Criminal Case No. 77 of 2004 before the

Magistrate is purely a civil dispute inter se between the Petitioners on one

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side and Respondent No.1 on the other, who claim rights in the property. He

submits that the issue of Respondent No.1 having a share in the property is

not concluded. He submits that although Regular Civil Suit No.88 of 1994

was decreed by the Trial Court, the Petitioners filed an appeal before the

District Court. After the appeal was dismissed, the Petitioners are presently

before this Court in Second Appeal No.39 of 2007 and are secured by an

interim order. He submits that the ingredients of Section 420 of the IPC, or

for that matter Section 422 of the IPC, are not made out. He therefore

submits that the impugned judgment of the Revisional Court is liable to be set

aside.

10. Mr. Umesh Mankapure, learned Advocate for the Petitioners, states that

the loan amount of Rs.3,00,000/-, obtained by mortgaging the property, was

repaid by the Petitioners on 13 th January 2006 and that the mortgage has

been cleared.

11. Mr. Vishwanath Talkute, learned Advocate for Respondent No. 1,

submits that the Petitioners had no right to mortgage the property without

the consent of Respondent No. 1, who was held entitled to a share in the

property by the judgment dated 03.01.2004 in Regular Civil Suit No. 88 of

1994. He however does not dispute that the subject matter of Regular Civil

Suit No. 88 of 1994 is pending adjudication before this Court in the Second

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Appeal No.39 of 2007. Mr Vishwanath Talkute submits that although the loan

amount is paid, it was paid after the passing of the impugned judgment.

12. Perused the record with the assistance of the learned Advocates for the

parties.

13. Respondent No. 1 contends that he has a share in the subject property

by virtue of the judgment and decree dated 03.01.2004 passed in Regular Civil

Suit No. 88 of 1994. The grievance in Regular Criminal Case No. 77 of 2004

is that the Petitioners dealt with the said property by obtaining a loan from

Pandharpur Urban Co-operative Bank, Sangola Branch, without the consent of

Respondent No. 1. Respondent No. 1 claims loss on account of the said act of

the Petitioners, thereby constituting the offence.

14. Respondent No. 1 neither states nor claims to have paid any part of the

loan amount to Pandharpur Urban Co-operative Bank, Sangola Branch.

Further, the complaint does not suggest that Respondent No. 1 was

dispossessed of the property after the grant of the loan. The Petitioners have

paid the loan amount.

15. The judgment and decree dated 03.01.2004 passed in Regular Civil Suit

No. 88 of 1994 has not attained finality, as the Second Appeal No. 39 of 2007

in that regard is pending.

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16. A perusal of the complaint does not disclose the ingredients required to

attract the provisions of either Section 420 or Section 422 of the IPC. The

case set up by Respondent No. 1 in Regular Criminal Case No. 77 of 2004 is

predominantly civil in nature and lacks any element of criminality.

17. It would be a different matter if the Pandharpur Urban Cooperative

Bank Limited had lodged a grievance alleging any dishonest intention on the

part of the Petitioners or any misrepresentation by the Petitioners to the

Bank. Mr. Vishwanath Talkute, learned Advocate for the Respondent No.1, in

all fairness, states that the Pandharpur Urban Cooperative Bank Limited has

not filed any complaint.

18. At any rate, the issue of the claims and counterclaims in respect of the

subject property is pending adjudication in the civil lis between the

Petitioners and Respondent No.1.

19. The Revisional Court has not considered the aforesaid aspect of the

matter and appears to have been persuaded by the proposition that a

criminal case is maintainable even if the issue pertains to a civil case.

However, the Revisional Court overlooked that to attract criminal liability, the

ingredients of the offence arising from the transaction must be disclosed. In

the case at hand, the ingredients of the alleged offences are conspicuously

absent.

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20. The impugned judgment suffers from perversity and illegality and

accordingly requires interference in the supervisory jurisdiction of this Court.

This petition is therefore allowed. The impugned judgment and order dated

13th October 2005 in Criminal Revision Application No. 133 of 2004 is

quashed and set aside. Consequently, the order dated 27 th July 2004 in

Regular Criminal Case No. 77 of 2004 is set aside and Regular Criminal Case

No. 77 of 2004 filed by Respondent No. 1 is dismissed.

21. It is clarified that the observations in this order are confined to the

adjudication of the criminal case and shall not influence the pending civil

dispute between the parties.

22. The Criminal Writ Petition No. 554 of 2006 is disposed of.

23. No order as to costs.

[ ASHWIN D. BHOBE, J. ]

Digitally signed
by OMKAR
SHIVAHAR
OMKAR KUMBHAKARN
SHIVAHAR
KUMBHAKARN Date:
2026.10.05
16:18:05
+0530

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