Ajay S/O Badrinarayan Soni And Another vs State Of Maharashtra, Through The P.S.O. P.S. Umred, Nagpur And Another

M.G. Giratkar, J

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

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.

The applicant no. 1 is editor of a weekly newspaper â€" '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) â€" 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.

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 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.

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 26Â‐

7Â2015. On 26Â7Â2015, 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.

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.

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.

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.

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.Â

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 24Â8Â2015. 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.â€​

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 coÂaccused 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.Â

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 applicantsÂaccused and documents relied upon by them. FIR not

liable to be quashed.â€​

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.â€​

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'.Â

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.

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 :Â​

“Two significant circumstances adverted to by High Court were, first that appellantÂaccused 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, 120Â​B and 506 Pt. II IPC.â€​

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 coÂ​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 16Â12Â2015, 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.Â

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

Present application was filed before this Court on 16Â12Â2015. 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 18Â12Â2015, it was not pointed out by the applicants to this Court about the

order passed by Hon'ble Supreme Court dated 16Â​12Â​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, chargeÂsheet shall not be filed. The applicants state that they will coÂoperate with the investigating agency.Â

If the applicants coÂ​operate, no coercive steps shall be taken against them.â€​

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 16Â​12Â​2015, was not pointed out to this court.

Looking to the conduct of applicant no. 1 to blackmail the doctors by threatening them with coÂaccused is a continuing offence. In one of the

criminal cases, he is convicted by the Judicial Magistrate First Class, Chimur along with coÂaccused. 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 16Â12Â2015 was suppressed by the applicants when the

first order was passed by this Court on 18Â​12Â​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 18Â12Â2015 of this Court by which applicants

are protected by directing that though the investigation may go on, chargeÂsheet shall not be filed and if applicants coÂoperate in investigation, no

coercive steps shall be taken against them.

This Court while considering this application has observed that order dated 16Â12Â2015 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 18Â12Â‐

2015 is rejected.