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Ajay & Another v/s State of Maharashtra & Another

    Criminal Application (Apl) No. 903 of 2015

    Decided On, 19 July 2018

    At, In the High Court of Bombay at Nagpur

    By, THE HONOURABLE MR. JUSTICE P.N. DESHMUKH & THE HONOURABLE MR. JUSTICE M.G. GIRATKAR

    For the Applicants: D.V. Chauhan, Advocate. For the Respondents: R1, M.H. Deshmukh, Additional Public Prosecutor, R2, H.R. Gadhia, Advocate.



Judgment Text

M.G. Giratkar, J.

1. Rule. Rule made returnable forthwith. Heard learned counsels appearing for the parties.

2. By the present application, the applicants have challenged the criminal action started by the respondent no. 1 on the complaint of the respondent no. 2 vide Crime No. 92/2015 and prayed to quash the same.

3. The applicant no. 1 is editor of a weekly newspaper – 'Pharmacist Times' which is published from Nagpur and Pune and the same is duly registered under the Press and Registration of Books Act, 1867. The applicant no. 2 is friend of applicant no. 1 and does wholesale business of medicines in Nagpur. Smt. Kalyani Wagh, who is President of Akhil Bhartiya Pharmacist Welfare Association, Maharashtra received a secret complaint that respondent no. 2 (complainant) – owner of Radhe Multispeciality Clinic, Umrer had done C.C.H. (Certificate Course of Homeopathy) but he was giving allopathic medicines to the patients, mostly children and women.

4. Smt. Wagh took applicant no. 1 into confidence and both of them visited the clinic as dummy customers posing that Smt. Wagh was suffering from vomiting and tonsillitis. She was examined by the complainant and prescribed allopathic medicines. Smt. Wagh purchased allopathic medicines from the medical

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store. Smt. Kalyani Wagh lodged report with the Additional Commissioner, Food and Drugs Department, Nagpur against the complainant (Dr. Arvind Pandit). Complainant was cheating the innocent people by prescribing the allopathic medicines despite being Homeopathic Doctor. She requested the department to take appropriate action against the complainant.

5. Smt. Monica Dhavad, Drug Inspector inspected the clinic run by the complainant and seized allopathic medicines. Respondent no. 2 lodged report against applicants making allegations of extortion of money. Respondent no. 1 mechanically registered the offences punishable under Sections 384, 501 and 502 of the Indian Penal Code against the applicant nos. 1 and 2. Respondent no. 1 asked applicants to appear in the police station on 26-7-2015. On 26-7-2015, applicant no. 2 informed respondent no. 1 that his father was ill and admitted in the hospital. Accused nos. 1 and 2 got anticipatory bail from the Sessions Court. Later on, anticipatory bail came to be rejected. Both the applicants applied for anticipatory bail before this Court at Nagpur Bench and interim bail was granted. But thereafter anticipatory bail came to be rejected by this Court. The applicants approached to the Supreme Court and they are granted anticipatory bail.

6. It is submitted that complainant falsely lodged the complaint against the applicants. Offence punishable under Section 384 of the Indian Penal Code is not made out and, therefore, first information report is liable to be quashed and set aside.

7. Both the respondents opposed the application. Respondent no. 2 has specifically stated that the applicant no. 1 with the help of applicant no. 2 are blackmailing him. No such action was taken by Drug Inspector as alleged by the applicants. Complainant is authorized to do allopathic practice.

8. It is submitted by the respondent no. 2 that applicant no. 1 is a habitual offender. It is his modus operandi to extract money from the doctors by threatening them. At last, respondent no. 2 submitted that no case is made out for quashing FIR, hence, application is liable to be rejected.

9. Heard learned counsel Shri Chauhan for the applicants. He has submitted that offence punishable under Section 384 of the Indian Penal Code is not made out and, therefore, FIR is liable to be quashed and set aside. He has pointed out decision in the case of Isaac Isanga Musumba and ors. Vs. State of Maharashtra and ors. [(2014) 15 SCC 357]. Their Lordships of Apex Court have observed that offence punishable under Section 384 is not made out, therefore, FIR is liable to be quashed. Learned counsel has pointed decision in Writ Petition No. 475/2006 passed by Division Bench of this Court at Principal Seat dated 2482015. From the perusal of cited decision, Division Bench of this Court has observed as under -

'24) As a result of the above discussion, the Writ Petition succeeds. Rule is made absolute in terms of prayer clause (a). We however clarify that we have not expressed any opinion on the liability and the outstanding amount due and payable by the second Respondent. That is a matter which must be resolved by both and by approaching competent Courts. We are only concerned with the request of the Petitioners, a financial institution and its officials for quashing of a criminal complaint. Our order and Judgment is based on the allegations in the complaint and taking note of them alone. It is unfortunate that parties like the complainant take recourse to criminal prosecution despite the caution and warning from the Hon'ble Supreme Court. Such pressure and coercive act takes them nowhere leave alone enabling them to avoid a admitted liability to repay a loan sanctioned by a Bank or public financial institution. There are proper legal remedies available to dispute and challenge the recovery. There civil proceedings can be resorted to for resolving contractual disputes. Any vexatious criminal prosecution of the above is bound to recoil or rebound on the complainant.'

10. The facts in the present petition are very much different. The applicant no. 1 is a blackmailer. Learned counsel Shri Gadhia for respondent no. 2 pointed out chart which is marked as 'X' for identification. It shows that applicant no. 1 is facing 36 criminal cases. Learned counsel Shri Gadhia pointed out decision in Regular Criminal Case No. 91/2012 passed by the Judicial Magistrate First Class (Court No. 2), Chimur, District Chandrapur by which applicant no. 1 along with co-accused convicted for the offences punishable under Section 384, 419 and 420 read with Section 34 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for three years and to pay fine.

11. Judgment cited by learned counsel for the applicants is considered by Division Bench of this Court in the case of Dr. Arun Kumar Barthakur and anr. Vs. State of Maharashtra and ors. [2017(4) Mh.L.J.(Cri.) 185]. The Division Bench of this Court has observed that :

'Offence of extortion and cheating. It would not be proper to quash impugned FIR. The documents relied upon by applicants are also in form of defence. FIR cannot be overlooked by relying upon contentions of applicants-accused and documents relied upon by them. FIR not liable to be quashed.'

12. This Court has observed in the case of Tanaji @ Tillya Dinkar Walgude and ors. Vs. The State of Maharashtra & anr. [2017 ALL MR (Cri) 46] that 'quashing of proceedings for the offences punishable under Section 482, 320 of the Indian Penal Code though it was compounded, allegations made in complaint are of very serious nature. Complaint cannot be quashed on ground that dispute has been amicably settled between parties since offence alleged are against society at large.'

13. From the judgment of Judicial Magistrate First Class, Chimur in Regular Criminal Case No. 91/2012, it is clear that the applicant no. 1 is convicted for the offence punishable under Sections 384, 419 and 420 read with Section 34 of the Indian Penal Code. This fact is not denied by the applicant no. 1. It is the modus operandi of the applicant no. 1 to blackmail doctors by using his newspaper, namely, 'Pharmacist Times'. Documents filed on record by the respondent no. 2 show that the applicant no. 1 published news in respect of complainant by which it appears that complainant who is Doctor is doing illegal practice of allopathy. It is specifically contended that he is doing legal practice and document is attached with his submissions. The applicant no. 1 is facing several offences and more than 36 cases were pending in various Courts at Amravati, Akola, Pune, Nagpur, Aurangabad, Chimur etc. In one of the cases, he is convicted, therefore, it is clear that applicant no. 1 blackmailing the doctors by making sting operation etc.

14. In the recent judgment, Hon'ble Supreme Court in the case of Parbatbhai Aahir alias Parbatbhai Bhimsinhbhai Karmur and ors. Vs. State of Gujarat and anr. [(2017) 9 SCC 641], it is held as under:

'Two significant circumstances adverted to by High Court were, first that appellant-accused were absconding and warrants had been issued against them under S. 70 Cr.P.C., and second that appellants had criminal antecedents. Instance case is not merely one involving a private dispute over a land transaction between two contesting parties, but involves allegations of extortion, forgery and fabrication of documents, utilisation of fabricated documents to effectuate transfers of title before registering authorities and deprivation of complainant of his interest in land on basis of a fabricated power of attorney. If allegations in FIR are construed as they stand, it is evident that they implicate serious offences having a bearing on a vital societal interest in securing probity of titles to or interest in land. Such offences cannot be construed to be merely private or civil disputes but implicate societal interest in prosecuting serious crime. In these circumstances, held, High Court was eminently justified in declining to quash FIR, which was registered under Ss. 384, 467, 468, 471, 120B and 506 Pt. II IPC.'

15. In view of the judgment of Hon'ble Apex Court, FIR against the applicants cannot be quashed looking to their antecedents. Applicant no. 1 is involved in more than 36 offences/crimes pending at various Courts in Vidarbha and Marathwada region. In one of the cases, he is convicted along with co-accused.

16. The applicants have suppressed the material fact from this Court. In this crime registered by the respondent no. 1 on the report of the respondent no. 2, they were granted interim anticipatory bail by the Sessions Court. Thereafter anticipatory bail came to be rejected by the Sessions Court. The applicants moved before this Court. This Court at Nagpur Bench rejected anticipatory bail. The applicants moved before the Supreme Court. On 16-12-2015, Hon'ble Supreme Court in Petition (s) for Special Leave to Appeal (Cri.) No(s). 10644/2015 has passed following order :

'Taken on Board.

Applications for exemption from filing certified copy of the impugned judgment and official translation are allowed.

Heard learned counsel for the petitioners and perused the relevant material.

We do not find any legal and valid ground for interference. The Special Leave Petition is dismissed.'

17. Present application was filed before this Court on 16122015. It is specifically mentioned in the application that they are protected by the Supreme Court by granting anticipatory bail. At the time of hearing on 18-12-2015, it was not pointed out by the applicants to this Court about the order passed by Hon'ble Supreme Court dated 16-12-2015. Therefore, this Court passed the following order on December 18, 2015.

'Heard.

Notice, returnable on 14.1.2016.

Learned Addl. P.P. waives notice for respondent No. 1.

Though the investigation may go on, chargesheet shall not be filed. The applicants state that they will cooperate with the investigating agency. If the applicants cooperate, no coercive steps shall be taken against them.'

18. Above stated order came to be passed by this Court because, order of Hon'ble Supreme Court in Petition (s) for Special Leave to Appeal (Cri.) No(s). 10644/2015 dated 16-12-2015, was not pointed out to this court.

19. Looking to the conduct of applicant no. 1 to blackmail the doctors by threatening them with co-accused is a continuing offence. In one of the criminal cases, he is convicted by the Judicial Magistrate First Class, Chimur along with co-accused. There are 36 criminal cases pending against the applicant no. 1 in the courts at Amravati, Akola, Nagpur, Aurangabad etc. Looking to the conduct of accused/applicants, they are not entitled for reliefs claimed in this application. Moreover, order of Hon'ble Supreme Court dated 16-12-2015 was suppressed by the applicants when the first order was passed by this Court on 18-12-2015. Hence, we do not find any merit in the application. Accordingly, we dismiss the same.

On pronouncement of judgment, learned counsel for applicants seeks extension of interim order dated 18-12-2015 of this Court by which applicants are protected by directing that though the investigation may go on, chargesheet shall not be filed and if applicants cooperate in investigation, no coercive steps shall be taken against them.

This Court while considering this application has observed that order dated 16-12-2015 of the Hon’ble Apex Court rejecting bail application was not brought to the notice of this Court when interim order is passed. In that view of the matter, prayer for extension of interim order dated 18-12-2015 is rejected.

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