{"id":73889,"date":"2008-09-09T00:00:00","date_gmt":"2008-09-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/brajo-sunder-vs-the-state-of-maharashtra-on-9-september-2008"},"modified":"2019-03-23T21:17:41","modified_gmt":"2019-03-23T15:47:41","slug":"brajo-sunder-vs-the-state-of-maharashtra-on-9-september-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/brajo-sunder-vs-the-state-of-maharashtra-on-9-september-2008","title":{"rendered":"Brajo Sunder vs The State Of Maharashtra on 9 September, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
Brajo Sunder vs The State Of Maharashtra on 9 September, 2008<\/div>\n
Bench: V.R. Kingaonkar<\/div>\n
                                  (1)\n\n\n                             REPORTED\n             IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n                         BENCH AT AURANGABAD.\n\n\n\n\n                                                                    \n              CRIMINAL APPLICATION NO.1692 OF 2006.\n\n\n\n\n                                            \n    Brajo Sunder S\/o Krishnapad\n    Banerjee, Age 64 years,\n    Occ.Business, R\/o 23\/50,\n\n\n\n\n                                           \n    Gandharv Colony, Dhule Road,\n    Jalgaon, Dist. Jalgaon.     ... Applicant.\n\n             Versus\n\n    1. The State of Maharashtra\n\n\n\n\n                                  \n    2. Dr.Champalal Phulchand\n                      \n    Desarda, Age 65 years, Occ.\n    Business, R\/o 28, Parason\n    House\/Venkatesh Nagar,\n    Aurangabad.                 ... Respondents.\n                     \n                                  ...\n\n    Mr.K.C.Sant, advocate for the applicant.\n    Mr.N.H.Borade, A.P.P. for Respondent No.1.\n      \n\n\n    Mr.D.V.Soman, advocate for Respondent No.2.\n   \n\n\n\n                                  ...\n\n                              CORAM : V.R.KINGAONKAR,J.\n                              Reserved on :27.08.2008.\n                              Pronounced on:09.09.2008.\n\n\n\n\n\n    JUDGMENT\n<\/pre>\n
    1.           This    is   an application filed U\/s 482              of<\/p>\n
    the   Cr.P.C.       for quashing proceedings      of     Criminal<\/p>\n
    case arising out of Crime No.I-33\/2005, registered at<\/p>\n
    Bidkin    Police Station for offences U\/s 406, and                420<\/p>\n
    of the I.P.C.\n<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 13:50:15 :::<\/span>
\n                                               (2)<\/span><\/p>\n
    2.                 Admittedly,           there     took place              agreements<\/p>\n
    between       Dr.Champalal              Desarda        and      applicant            Brajo<\/p>\n
    Sunder.            The       former owns a horticultural garden                          in<\/p>\n
    field     Gat No.79 at village Bidkin, styled as “Madhur<\/p>\n
    Keshar       Faludhyan Kendra”, whereas the latter runs                                   a<\/p>\n
    proprietary             business styled as “M\/s India Seeds                            and<\/p>\n
    Horticultural                Firm,     Howrah (Calcutta)”.                 By     mutual<\/p>\n
    agreements          it        was agreed that the               applicant            would<\/p>\n
    supply saplings of Sandal wood plants.                               It was agreed<\/p>\n
    that     the        applicant          would supply saplings                    of    high<\/p>\n
    quality<\/p>\n
                      mango plants of ‘Amrapali’ variety, and that<\/p>\n
    of     Mohogani plants.                The parties entered into                      three<\/p>\n
    separate          agreements.           There is no dispute about                      the<\/p>\n
    fact     that           as     per     terms      of    the       agreement,           the<\/p>\n
    applicant          was        supposed to develop the                  orchard         and<\/p>\n
    garden.            He        agreed to supervise the cultivation                         of<\/p>\n
    the     plants and provide for consultation to take care<\/p>\n
    of     the        plants.            He represented that             the        Amrapali<\/p>\n
    variety of mango plants would give yield after couple<\/p>\n
    of     years        to the extent of part and after                         five       (5)<\/p>\n
    years        of     at        least     500 Kg.        per      tree.           He    also<\/p>\n
    represented             that the Mohogani plants would be                            fully<\/p>\n
    grown        after 25\/30 years.                It was agreed that as                   and<\/p>\n
    when     the applicant or his representative would visit<\/p>\n
    the     orchard\/garden,                he or his representative                      would<\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 13:50:15 :::<\/span>
\n                                           (3)<\/span><\/p>\n
    enter     the     observations and details of visit in                            the<\/p>\n
    visit     book        which was to be maintained by                    the       farm<\/p>\n
    owner     i.e.         Dr.Champalal          Desarda.         It    was        agreed<\/p>\n
    further     that in case the plant will not bear                               fruits<\/p>\n
    then     the applicant would replace the same at his own<\/p>\n
    costs and would cultivate it.                    He would not, however,<\/p>\n
    be     liable to pay any compensation.                     The terms of the<\/p>\n
    agreement dated 6.6.2001, 3l.5.2001 and 4.6.2001 were<\/p>\n
    reduced     into writing as per mutual understanding                                of<\/p>\n
    the parties.<\/p>\n
\n\n\n\n\n                                              \n    3.              There\n                            ig    is     controversy         as     regards           who\n\n    committed breach of the terms of the agreements.                                  The\n                          \n    applicant        alleged that Dr.Champalal Desarda did                            not\n\n    perform his part of the agreement.                       He filed criminal\n\n<\/pre>\n
    proceedings against Dr.Champalal Desarda in the Court<\/p>\n
    at     Howrah.         Thereafter,          employee       of      Dr.Champalal<\/p>\n
    Desarda     lodged          F.I.R.         on    27.3.2005         against        the<\/p>\n
    applicant        at     Bidkin       Police      Station.            The       F.I.R.\n<\/p>\n
    lodged by complainant Vivek, who claims to be liaison<\/p>\n
    Officer     of        Dr.Champalal Desarda, purports                      to    show<\/p>\n
    that     the applicant met his Master in September                              2001<\/p>\n
    and     represented          that     he        deals    in        best    quality<\/p>\n
    saplings.         He        canvassed       utility      of        best    quality<\/p>\n
    saplings        and also showed a video film                    demonstration<\/p>\n
    to     explain        how     wood plantation would                give        better<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 13:50:15 :::<\/span>
\n                                            (4)<\/span><\/p>\n
    yield and benefit.             He assured that the horticultural<\/p>\n
    farm     owner would get plenty of income and there will<\/p>\n
    be no loss.          It was further alleged that Dr.Champalal<\/p>\n
    Desarda        purchased       saplings of sandal             wood     plants,<\/p>\n
    Amrapali        variety       mango     plants      and       saplings          of<\/p>\n
    Mohogani        wood plants.          It was averred in the              F.I.R.\n<\/p>\n
    that     the     applicant visited horticultural farm                       from<\/p>\n
    time     to     time and collected amount of                  Rs.2,00,000\/-<\/p>\n
\n\n    (Rupees        two     lacs)     from the     owner       -    Dr.Champalal\n\n    Desarda.         Allegedly, the applicant subsequently                        did\n\n\n\n\n                                           \n    not     keep     the     promise       and stopped        visits       to     the\n\n    horticultural\n                           \n                           farm.       The saplings provided               by     him\n\n    were     found to be of inferior quality.                     The yield         of\n                          \n    mango     plants was also not as per the assurance given\n\n    by     him.      Consequently,          it   was    alleged          that     the\n\n    applicant        committed       offence of criminal              breach        of\n      \n\n\n    trust and cheating.\n   \n\n\n\n    4.              The      applicant was arrested in                connection\n\n\n\n\n\n    with     Crime No.I-33\/2005, registered on the basis                            of\n\n    the     above        F.I.R.      lodged by said        Vivek.          He     was\n\n    produced        before     the     learned       Judicial       Magistrate,\n\n    Paithan.         The     learned Judicial          Magistrate          granted\n\n\n\n\n\n    Police         custody        remand    as    per     request         of      the\n\n    Investigating Officer.             The Police custody remand was\n\n    extended        further till 28.3.2006.             The       Investigating\n\n\n\n\n                                                        ::: Downloaded on - 09\/06\/2013 13:50:15 :::<\/span>\n                                              (5)<\/span>\n\n\n    Officer,           however, submitted a report dated 24.3.2006\n\n    to     the effect that the Police custody remand was                                 no\n\n    more     needed           thereafter.         The    applicant          was       then\n\n\n\n\n                                                                                     \n<\/pre>\n
    remanded           to Magisterial custody till 5.4.2006.                           The<\/p>\n
    Police        submitted a report dated 28.6.2006                        (Exh.E-1)<\/p>\n
    U\/s 169 of the Cr.P.C..                   The Police report shows that<\/p>\n
    during        investigation            it was found that             the        matter<\/p>\n
    relates           to     Civil dispute between the parties.                        The<\/p>\n
    Police        came           to the conclusion that no             offence,          of<\/p>\n
    Criminal           breach          of trust or cheating, was               revealed<\/p>\n
    from     the           investigation       papers,        and      hence,          the<\/p>\n
    applicant was sought to be discharged.                           An intimation<\/p>\n
    of     such        final        report U\/s 169 of the            Cr.P.C.           was<\/p>\n
    given        to        the     complainant.         It   appears        that       the<\/p>\n
    complainant             filed Protest Petition which is at Exh.1<\/p>\n
    (RCC No.261\/06).\n<\/p>\n
    5.                 The learned Judicial Magistrate considered<\/p>\n
    “C”     summary report filed by the Police and passed                                 a<\/p>\n
    brief order as follows :\n<\/p>\n
             ”                    After    evaluating the          evidence<\/p>\n
             collected by the Investigating Agency, as<\/p>\n
             there          are        sufficient ground to          proceed<\/p>\n
             against             the    accused person.           Hence,        I<\/p>\n
             disagree with the report.”\n<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 13:50:15 :::<\/span>
\n                                        (6)<\/span><\/p>\n
    It    appears      that thereafter the Criminal                   proceedings<\/p>\n
    were instituted against the applicant.\n<\/p>\n
    6.              The applicant impugns the order rendered by<\/p>\n
    the     learned     Judicial       Magistrate        and      the       Criminal<\/p>\n
    proceedings        instituted      pursuant         to the        same.         The<\/p>\n
    applicant alleges that the F.I.R.                   lodged by so-called<\/p>\n
    liaison Officer – Vivek is malafide and was given just<\/p>\n
    to    counter the Criminal proceedings initiated by                             him<\/p>\n
    in    the Court of Chief Judicial Magistrate at                          Howrah.\n<\/p>\n
    He asserts that the entire allegation in the complaint<\/p>\n
    would     not     make    out    any case within            the      ambit       of<\/p>\n
    Section     415     of    the    I.P.C.        He    asserts         that       the<\/p>\n
    allegation        in the complaint to the effect that 50% of<\/p>\n
    the     plants     were of inferior quality are quite                       vague<\/p>\n
    and     moreover, there could be no Criminal intention at<\/p>\n
    the inception when at least 50% of them admittedly are<\/p>\n
    of best quality.         He asserts that the learned Judicial<\/p>\n
    Magistrate        recorded      disagreement           with       the     Police<\/p>\n
    report     without       assigning      any    tangible           reason        and<\/p>\n
    arbitrarily        proceeded      to    take        cognizance           of     the<\/p>\n
    offence     without      there being substratum to infer                        his<\/p>\n
    complicity.         He    urged,       therefore,          to     quash         the<\/p>\n
    Criminal proceedings.\n<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 13:50:15 :::<\/span>
\n                                          (7)<\/span><\/p>\n
    7.              The     Respondent No.2 – Dr.Champalal Desarda<\/p>\n
    resisted          the         application.         He         has         filed<\/p>\n
    affidavit-in-reply.             He     alleges that       the      applicant<\/p>\n
    does     not     possess licence to deal in the business                       of<\/p>\n
    seedlings.        He asserts that the applicant played fraud<\/p>\n
    on     a large number of         agriculturists\/horticulturists.\n<\/p>\n
    He     asserts     that the modus operandi of the                  applicant<\/p>\n
    was     that     he use to allure the customers to                    purchase<\/p>\n
    plants     as     per    terms of the agreement.                He     use     to<\/p>\n
    collect huge amounts from the customers and thereafter<\/p>\n
    use to gradually withdraw himself from the activity of<\/p>\n
    development        of<\/p>\n
                             the horticulture garden              or      orchard.\n<\/p>\n
    The     applicant use to shift his head office and branch<\/p>\n
    offices.          He    use     to     supply    cheap      and       inferior<\/p>\n
    saplings.         He grabbed huge amount with               ill-intention<\/p>\n
    to     dupe and hence, the impugned order of the                       learned<\/p>\n
    Magistrate        is    quite sustainable.           Consequently,             he<\/p>\n
    urged to dismiss the application.\n<\/p>\n
    8.              Mr.Sant,       would    submit       that       the     entire<\/p>\n
    dispute        pertains to Civil liabilities arising out                       of<\/p>\n
    the     contracts.        He would submit that in               respect        of<\/p>\n
    payments        made    under the terms of         agreements,            there<\/p>\n
    could no Criminal breach of trust because such amounts<\/p>\n
    were not entrusted with a view to get back the same or<\/p>\n
    for any specific purpose other than due performance of<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 13:50:15 :::<\/span>
\n                                       (8)<\/span><\/p>\n
    the terms of the agreements.             He would submit that for<\/p>\n
    the     purpose of Section 415 of the I.P.C.                  it ought to<\/p>\n
    be     shown     that at the inception there            was      dishonest<\/p>\n
    intention       present       in the mind of the applicant.                  He<\/p>\n
    would     submit       that after five (5) years period                 there<\/p>\n
    may be shortcoming in respect of yield which is not as<\/p>\n
    per expectation of Respondent No.2 but it does not per<\/p>\n
    se     imply any ingredients of offence of cheating.                         He<\/p>\n
    would     further        submit   that    the    learned            Judicial<\/p>\n
    Magistrate        could not have just shown his disagreement<\/p>\n
    with     the report of the Investigating Officer                     without<\/p>\n
    giving reasons.\n<\/p>\n
                         ig  He argued that the impugned order and<\/p>\n
    the     Criminal       proceedings initiated pursuant                thereto<\/p>\n
    would     amount       to abuse of the process of             the     Court.\n<\/p>\n
    Per     contra, Mr.Soman, would submit that the applicant<\/p>\n
    is     involved     in     similar kind    of    crimes        registered<\/p>\n
    against        him at instance of large number of                customers<\/p>\n
    and     it has become his habit to commit the fraud.                         He<\/p>\n
    would     submit       that    the applicant could not             deal      in<\/p>\n
    seedlings without having license.               He urged to dismiss<\/p>\n
    the application.\n<\/p>\n
    9.              Before I proceed to embark upon examination<\/p>\n
    of     merits, it is worthy to be noted that the                     Protest<\/p>\n
    Petition       filed      by Liaison Officer of the            Respondent<\/p>\n
    No.2     reveals       that the applicant supplied 50% of                   the<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 13:50:15 :::<\/span>
\n                                              (9)<\/span><\/p>\n
    plants as per the terms of the agreement and agreed to<\/p>\n
    supply        the remaining quantity within six (6)                           months.\n<\/p>\n
    It   is       asserted that the applicant supplied                           inferior<\/p>\n
    and cheap quality of the seedlings and did not provide<\/p>\n
    service       for      a     term      of five (5) years               as     per      the<\/p>\n
    agreement.            The       Protest Petition further shows                        that<\/p>\n
    after     institution             of     the      complaint        case          by    the<\/p>\n
    applicant        and        the counter F.I.R.           there         took        place<\/p>\n
    certain       compromise between the parties.                       The relevant<\/p>\n
    averments        made        in     paras 15 and 16          of        the        Protest<\/p>\n
    Petition        are        rather      significant          and        hence,          are<\/p>\n
    reproduced for ready reference.\n<\/p>\n
             \"15.         The         complainant          submits         that\n\n             though        the      accused had compromised                 the\n\n             matter,       he       has      again not kept         up      his\n      \n\n\n             commitments.              The     accused       has           filed\n   \n\n\n\n             contempt          petition against the I.O.                   also\n\n             in     Trial        Court       at      Calcutta.         It        is\n\n\n\n\n\n             pertinent          to     note that on         3    occasions\n\n             when       the      accused          was produced        by     the\n\n             police        before this Honourable Court, the\n\n             accused          has     not made any         complaint            of\n\n\n\n\n\n<\/pre>\n
             ill-treatment at the hands of the police.\n<\/p>\n
             It is very evidence that, the police have<\/p>\n
             acted        under       pressure       and    allowed         the<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 13:50:15 :::<\/span>
\n                                         (10)<\/span><\/p>\n
          accused to go scot-free from the clutches<\/p>\n
          of law.\n<\/p>\n
          16.         The    complainant submits that                       in\n\n\n\n\n                                                           \n          the    month       of March, 2006,               the        accused\n\n          telephoned        Dr.Desarda and expressed                      his\n\n          willingness            to     perform           his     part        of\n\n\n\n\n                                                          \n          obligations        as       per the        agreements           and\n\n          requested         to withdraw the complaint i.e.\n\n          F.I.R.       No.033-2005.                 The     complainant\n\n\n\n\n                                           \n          submits          that       there         was    a     notarised\n\n          agreement\n                       ig    between        the           accused         and\n\n          Dr.Desarda        as        per     which        the        accused\n                     \n          agreed      to     supply           the     short       supplied\n\n          quantities        and replace the died                   plants.\n\n          However,         the accused once again                  cheated\n      \n\n\n          Dr.Desarda          and       did         not    perform        his\n   \n\n\n\n<\/pre>\n
          obligation and on the contrary made false<\/p>\n
          allegation against the Police also.”\n<\/p>\n
    10.         The    learned          Judicial          Magistrate          did      not<\/p>\n
    consider    the    above          averments made             in     the        Protest<\/p>\n
    Petition.      There      is absolutely no reference                         to    the<\/p>\n
    averments in the Protest Petition and consideration of<\/p>\n
    the   record by the learned Judicial Magistrate when he<\/p>\n
    proceeded    to    dis-agree with the report filed by                              the<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 13:50:15 :::<\/span>
\n                                                 (11)<\/span><\/p>\n
    Investigating Officer.                  The averments in para 15 would<\/p>\n
    make it manifest that the parties had arrived at terms<\/p>\n
    of     settlement.          The grievance was that thereafter the<\/p>\n
    applicant        did       not        keep his      commitment.            In     other<\/p>\n
    words,     it        is conspicuous that the parties agreed                            to<\/p>\n
    abandon         the        allegations           regarding        commission           of<\/p>\n
    offences        by        each       other.    It is also         explicit          that<\/p>\n
    somewhere in March 2006, the applicant again expressed<\/p>\n
    willingness to perform his part of the contracts.                                     The<\/p>\n
    F.I.R.     does not show that any survey was conducted by<\/p>\n
    an     expert        to     say that 50% of the saplings                     were      of<\/p>\n
    inferior        quality.\n<\/p>\n
                               ig         There    is   probability            that       the\n\n    applicant        committed negligence in the performance                               of\n                             \n<\/pre>\n
    his part of the terms of the agreements and thereafter<\/p>\n
    the     parties were on cross terms.                      It is also probable<\/p>\n
    that      the         applicant          lost       his    interest          due       to<\/p>\n
    nonfulfillment             of        the terms of the agreement by                    the<\/p>\n
    Respondent        No.2.          This Court is not the fact                    finding<\/p>\n
    Court     and        as     such       no     opinion     as    regards         either<\/p>\n
    probability          can        be     expressed        from      the      available<\/p>\n
    record.         What        emerges         from the record is             that       the<\/p>\n
    dispute     between             the parties is of Civil nature.                        It<\/p>\n
    arose     due        to breach of the terms of                  the      agreements<\/p>\n
    settled between them.\n<\/p>\n
    11.          True,          the       applicant      does         not      have       any<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 13:50:15 :::<\/span>
\n                                            (12)<\/span><\/p>\n
    license to deal in the business of seedlings\/saplings.\n<\/p>\n
    Mr.Soman,           would invite my attention to the provisions<\/p>\n
    of     Section 2(11)(iv) alongwith the provisions of                               the<\/p>\n
    Seeds        (Control)       Order 1983.        I find it difficult                 to<\/p>\n
    countenance contention of Mr.Soman that the applicant,<\/p>\n
    prima facie, has committed any offence, punishable U\/s<\/p>\n
    19     of     the Seeds Act, 1966.             The license is              required<\/p>\n
    under         the        Seeds     (Control)        Order    1983,         but     the<\/p>\n
    violation           of     the     same is not punishable             under        the<\/p>\n
    provisions           of Section 19 of the Seeds Act, 1966.                         The<\/p>\n
    Seeds        (Control) Order 1983 is issued under Section                             3<\/p>\n
    of<\/p>\n
           the Essential Commodities Act.                   Obviously, on              the<\/p>\n
    basis        of     a     private      complaint       offence            regarding<\/p>\n
    violation of the Seeds (Control) Order 1983, cannot be<\/p>\n
    taken        cognizance of.          Nor any such allegation is made<\/p>\n
    in     the        F.I.R.     The learned Judicial Magistrate                      also<\/p>\n
    did         not     take     cognizance        of    the     offence             under<\/p>\n
    provisions           of     the Seeds Act, 1966.            Consequently,             I<\/p>\n
    find        that contention of Mr.Soman, in this behalf,                            is<\/p>\n
    besides           the scope of the present matter.                   He     further<\/p>\n
    submits           that     large    number of other          customers            made<\/p>\n
    similar complaints against the applicant.                            The similar<\/p>\n
    complaints           by other customers do not bolster the case<\/p>\n
    of     the        Respondent No.2.        For the purpose             of     taking<\/p>\n
    cognizance           of     offence, a prima facie case                   ought     to<\/p>\n
    exist.            The     allegations     in the F.I.R.            need      to     be<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 13:50:15 :::<\/span>
\n                                      (13)<\/span><\/p>\n
    considered       on   the face value thereof.             If it can          be<\/p>\n
    said    that from such allegations prima facie                     material<\/p>\n
    is     available to proceed against the accused then                        the<\/p>\n
    learned       Magistrate    would   be     justified            in     taking<\/p>\n
    cognizance on the basis of such F.I.R.\n<\/p>\n
    12.            The fact situation in the present case would<\/p>\n
    make    it explicit that the employee of the                    Respondent<\/p>\n
    No.2    lodged the F.I.R.        without specific material                   to<\/p>\n
    infer     existence of dishonest intention on part of the<\/p>\n
    applicant       at    the   very inception.          The      offence        of<\/p>\n
    cheating<\/p>\n
                   is defined U\/s 415 of the I.P.C.                 The F.I.R.\n<\/p>\n
    does    not show existence of fraudulent intention since<\/p>\n
    inception       of    the transactions between            the      parties.\n<\/p>\n
    The Apex Court in “Inder Mohan Goswami and another Vs.<\/p>\n
    State    of     Uttaranchal and others” 2007 AIR SCW                    6679,<\/p>\n
    observed in para 41 of its judgment :-\n<\/p>\n
            “To     hold a person guilty of cheating                 it<\/p>\n
            is     necessary    to   show    that      he     had      a<\/p>\n
            fraudulent      or dishonest intention at the<\/p>\n
            time     of   making the promise.            From      his<\/p>\n
            mere     failure    to    subsequently          keep       a<\/p>\n
            promise,      one cannot presume that he               all<\/p>\n
            along     had a culpable intention to               break<\/p>\n
            the promise from the beginning.”\n<\/p><\/blockquote>\n
                                                    ::: Downloaded on – 09\/06\/2013 13:50:15 :::<\/span>
\n                                        (14)<\/span><\/p>\n
    The    Apex    Court observed that the Court                must        ensure<\/p>\n
    that Criminal prosecution is not used as instrument of<\/p>\n
    harassment      or       for seeking private vendetta              or     with<\/p>\n
    ulterior motive to pressurise the accused.                     Similarly,<\/p>\n
    in    “Minu    Kumari and another Vs.          State of Bihar               and<\/p>\n
    others”    AIR      2006 Supreme Court 1937           and      “Municipal<\/p>\n
    Corporation         of   Delhi    Vs.    Ram   Kishan       Rohtagi         and<\/p>\n
    others”    AIR      1983    Supreme Court 67, the             Apex      Court<\/p>\n
    succinctly      explained the scope of Section 482 of                       the<\/p>\n
    Cr.P.C.       The Apex Court in “M\/s Kunstocom Electronics<\/p>\n
    (I)    Pvt.    Ltd.\n<\/p>\n
                          ig Vs.    Gilt Pack Ltd.       and another” AIR<\/p>\n
    2002    Supreme      Court 739, held that in case                of     Civil<\/p>\n
    dispute,      the    offence would not come within ambit                     of<\/p>\n
    Section    415 of the I.P.C.            and the process was liable<\/p>\n
    to be quashed.\n<\/p>\n
    13.           Mr.Soman,        seeks    to rely on “Alpic            Finance<\/p>\n
    Limited    Vs.       P.Sadasivan And Another”             A.I.R.          2001<\/p>\n
    Supreme    Court 1226, “Shri Vijay Kumar And others                         Vs.<\/p>\n
    Union   of India and others” A.I.R.              1998 Supreme Court<\/p>\n
    2062 and a judgment of Division Bench of this Court in<\/p>\n
    “Criminal       Writ       Petition       No.415\/2003          (Coram          :\n<\/p>\n
    J.N.Patel and S.T.Kharche, JJ.) decided on 6.10.2004″.\n<\/p>\n
    There are cases and cases.              In “Alpic Finance Limited”\n<\/p>\n
    (supra),      the    Apex Court held that merely because                     an<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 13:50:15 :::<\/span>
\n                                           (15)<\/span><\/p>\n
    act has a civil profile is not sufficient to denude it<\/p>\n
    of    its     criminal        outfit.           It is    not      necessary          to<\/p>\n
    elaborately          to deal with the other case law cited                           by<\/p>\n
    Mr.Soman.           Suffice     it     to say that the              material         on<\/p>\n
    record,       including the averments in the F.I.R., do not<\/p>\n
    bring on surface of the record any substratum to infer<\/p>\n
    presence       of     dishonest intention of the applicant                           at<\/p>\n
    the     inception of the transactions between him and the<\/p>\n
    Respondent          No.2,     nor    the    money          paid       to     him     in<\/p>\n
    pursuance       to     the     terms       of     the    agreement           can     be<\/p>\n
    regarded       as     “entrustment”.             The     averments           in     the<\/p>\n
    F.I.R.        are<\/p>\n
                          not     germane       to     constitution            of       any<\/p>\n
    Criminal       offence nor the learned Judicial                        Magistrate<\/p>\n
    ascribed       any     valid        reasons to proceed              against         the<\/p>\n
    applicant.           His     simple disagreement with the                     Police<\/p>\n
    report       cannot        be foundation to proceed                 against         the<\/p>\n
    applicant       without        there    being any            tangible         reason<\/p>\n
    recorded       by him.        The impugned order is arbitrary and<\/p>\n
    amounts       to colourable exercise of the judicial power.\n<\/p>\n
    Under       these     circumstances, I have no                  hesitation           in<\/p>\n
    holding       that     the     impugned order            and      the      Criminal<\/p>\n
    proceedings          amount     to     abuse of the process                  of     the<\/p>\n
    Court.\n<\/p>\n
    14.           For the reasons aforestated, the application<\/p>\n
    is    allowed.         The     impugned order            and      the      Criminal<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 13:50:15 :::<\/span>
\n                                  (16)<\/span><\/p>\n
    proceedings     instituted      in   pursuance          to       Crime<\/p>\n
    No.I-33\/2005    are    hereby quashed.    The bail bonds              of<\/p>\n
    the   applicant,      if any, be deemed as cancelled as               he<\/p>\n
    stands discharged.\n<\/p>\n
                                    (V.R.KINGAONKAR,J.)<\/p>\n
                       Authenticated Copy<\/p>\n
                   (Pvt.Secy. to Hon’ble Judge)<\/p>\n
    asp\/Crapp169206<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 13:50:15 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Brajo Sunder vs The State Of Maharashtra on 9 September, 2008 Bench: V.R. Kingaonkar (1) REPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.1692 OF 2006. Brajo Sunder S\/o Krishnapad Banerjee, Age 64 years, Occ.Business, R\/o 23\/50, Gandharv Colony, Dhule Road, Jalgaon, Dist. Jalgaon. … Applicant. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-73889","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nBrajo Sunder vs The State Of Maharashtra on 9 September, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/brajo-sunder-vs-the-state-of-maharashtra-on-9-september-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Brajo Sunder vs The State Of Maharashtra on 9 September, 2008 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/brajo-sunder-vs-the-state-of-maharashtra-on-9-september-2008\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"2008-09-08T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2019-03-23T15:47:41+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"15 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/brajo-sunder-vs-the-state-of-maharashtra-on-9-september-2008#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/brajo-sunder-vs-the-state-of-maharashtra-on-9-september-2008\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"Brajo Sunder vs The State Of Maharashtra on 9 September, 2008\",\"datePublished\":\"2008-09-08T18:30:00+00:00\",\"dateModified\":\"2019-03-23T15:47:41+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/brajo-sunder-vs-the-state-of-maharashtra-on-9-september-2008\"},\"wordCount\":2551,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"articleSection\":[\"Bombay High Court\",\"High Court\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/brajo-sunder-vs-the-state-of-maharashtra-on-9-september-2008#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/brajo-sunder-vs-the-state-of-maharashtra-on-9-september-2008\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/brajo-sunder-vs-the-state-of-maharashtra-on-9-september-2008\",\"name\":\"Brajo Sunder vs The State Of Maharashtra on 9 September, 2008 - Free Judgements of Supreme Court & High Court | Legal India\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\"},\"datePublished\":\"2008-09-08T18:30:00+00:00\",\"dateModified\":\"2019-03-23T15:47:41+00:00\",\"breadcrumb\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/brajo-sunder-vs-the-state-of-maharashtra-on-9-september-2008#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/brajo-sunder-vs-the-state-of-maharashtra-on-9-september-2008\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/brajo-sunder-vs-the-state-of-maharashtra-on-9-september-2008#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"Brajo Sunder vs The State Of Maharashtra on 9 September, 2008\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"name\":\"Free Judgements of Supreme Court & High Court | Legal India\",\"description\":\"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.\",\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"alternateName\":\"Free judgements of Supreme Court & High Court of India | Legal India\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/?s={search_term_string}\"},\"query-input\":{\"@type\":\"PropertyValueSpecification\",\"valueRequired\":true,\"valueName\":\"search_term_string\"}}],\"inLanguage\":\"en-US\"},{\"@type\":\"Organization\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\",\"name\":\"Judgements of Supreme Court & High Court | Legal India\",\"alternateName\":\"Legal India\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"logo\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"contentUrl\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"width\":512,\"height\":512,\"caption\":\"Judgements of Supreme Court & High Court | Legal India\"},\"image\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\"},\"sameAs\":[\"https:\\\/\\\/www.facebook.com\\\/LegalindiaCom\\\/\",\"https:\\\/\\\/x.com\\\/Legal_india\"]},{\"@type\":\"Person\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\",\"name\":\"Legal India Admin\",\"image\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"url\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"contentUrl\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"caption\":\"Legal India Admin\"},\"sameAs\":[\"https:\\\/\\\/www.legalindia.com\",\"https:\\\/\\\/x.com\\\/legaliadmin\"],\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/author\\\/legal-india-admin\"}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"Brajo Sunder vs The State Of Maharashtra on 9 September, 2008 - Free Judgements of Supreme Court & High Court | Legal India","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www.legalindia.com\/judgments\/brajo-sunder-vs-the-state-of-maharashtra-on-9-september-2008","og_locale":"en_US","og_type":"article","og_title":"Brajo Sunder vs The State Of Maharashtra on 9 September, 2008 - Free Judgements of Supreme Court & High Court | Legal India","og_url":"https:\/\/www.legalindia.com\/judgments\/brajo-sunder-vs-the-state-of-maharashtra-on-9-september-2008","og_site_name":"Free Judgements of Supreme Court & High Court | Legal India","article_publisher":"https:\/\/www.facebook.com\/LegalindiaCom\/","article_published_time":"2008-09-08T18:30:00+00:00","article_modified_time":"2019-03-23T15:47:41+00:00","og_image":[{"width":512,"height":512,"url":"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1","type":"image\/jpeg"}],"author":"Legal India Admin","twitter_card":"summary_large_image","twitter_creator":"@legaliadmin","twitter_site":"@Legal_india","twitter_misc":{"Written by":"Legal India Admin","Est. reading time":"15 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"Article","@id":"https:\/\/www.legalindia.com\/judgments\/brajo-sunder-vs-the-state-of-maharashtra-on-9-september-2008#article","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/brajo-sunder-vs-the-state-of-maharashtra-on-9-september-2008"},"author":{"name":"Legal India Admin","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea"},"headline":"Brajo Sunder vs The State Of Maharashtra on 9 September, 2008","datePublished":"2008-09-08T18:30:00+00:00","dateModified":"2019-03-23T15:47:41+00:00","mainEntityOfPage":{"@id":"https:\/\/www.legalindia.com\/judgments\/brajo-sunder-vs-the-state-of-maharashtra-on-9-september-2008"},"wordCount":2551,"commentCount":0,"publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"articleSection":["Bombay High Court","High Court"],"inLanguage":"en-US","potentialAction":[{"@type":"CommentAction","name":"Comment","target":["https:\/\/www.legalindia.com\/judgments\/brajo-sunder-vs-the-state-of-maharashtra-on-9-september-2008#respond"]}]},{"@type":"WebPage","@id":"https:\/\/www.legalindia.com\/judgments\/brajo-sunder-vs-the-state-of-maharashtra-on-9-september-2008","url":"https:\/\/www.legalindia.com\/judgments\/brajo-sunder-vs-the-state-of-maharashtra-on-9-september-2008","name":"Brajo Sunder vs The State Of Maharashtra on 9 September, 2008 - Free Judgements of Supreme Court & High Court | Legal India","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/#website"},"datePublished":"2008-09-08T18:30:00+00:00","dateModified":"2019-03-23T15:47:41+00:00","breadcrumb":{"@id":"https:\/\/www.legalindia.com\/judgments\/brajo-sunder-vs-the-state-of-maharashtra-on-9-september-2008#breadcrumb"},"inLanguage":"en-US","potentialAction":[{"@type":"ReadAction","target":["https:\/\/www.legalindia.com\/judgments\/brajo-sunder-vs-the-state-of-maharashtra-on-9-september-2008"]}]},{"@type":"BreadcrumbList","@id":"https:\/\/www.legalindia.com\/judgments\/brajo-sunder-vs-the-state-of-maharashtra-on-9-september-2008#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/www.legalindia.com\/judgments\/"},{"@type":"ListItem","position":2,"name":"Brajo Sunder vs The State Of Maharashtra on 9 September, 2008"}]},{"@type":"WebSite","@id":"https:\/\/www.legalindia.com\/judgments\/#website","url":"https:\/\/www.legalindia.com\/judgments\/","name":"Free Judgements of Supreme Court & High Court | Legal India","description":"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.","publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"alternateName":"Free judgements of Supreme Court & High Court of India | Legal India","potentialAction":[{"@type":"SearchAction","target":{"@type":"EntryPoint","urlTemplate":"https:\/\/www.legalindia.com\/judgments\/?s={search_term_string}"},"query-input":{"@type":"PropertyValueSpecification","valueRequired":true,"valueName":"search_term_string"}}],"inLanguage":"en-US"},{"@type":"Organization","@id":"https:\/\/www.legalindia.com\/judgments\/#organization","name":"Judgements of Supreme Court & High Court | Legal India","alternateName":"Legal India","url":"https:\/\/www.legalindia.com\/judgments\/","logo":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/","url":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","contentUrl":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","width":512,"height":512,"caption":"Judgements of Supreme Court & High Court | Legal India"},"image":{"@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/"},"sameAs":["https:\/\/www.facebook.com\/LegalindiaCom\/","https:\/\/x.com\/Legal_india"]},{"@type":"Person","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea","name":"Legal India Admin","image":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","url":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","contentUrl":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","caption":"Legal India Admin"},"sameAs":["https:\/\/www.legalindia.com","https:\/\/x.com\/legaliadmin"],"url":"https:\/\/www.legalindia.com\/judgments\/author\/legal-india-admin"}]}},"modified_by":null,"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_likes_enabled":true,"jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/73889","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/comments?post=73889"}],"version-history":[{"count":0,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/73889\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/media?parent=73889"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/categories?post=73889"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/tags?post=73889"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}