Madhya Pradesh High Court
Hemraj Singh Kaurav vs The State Of Madhya Pradesh on 3 April, 2019
Equivalent citations: AIRONLINE 2019 MP 406
HIGH COURT OF MADHYA PRADESH; JABALPUR
M.Cr.C No.52783/2018
Hemraj Singh Kaurav
Vs.
State of Madhya Pradesh
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Present : Hon'ble Shri Justice Vishnu Pratap Singh Chauhan
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Name of counsel for the parties:
Shri Mrigendra Singh, Senior Advocate assisted by Miss. Gucha Rasool
counsel for the petitioner.
Shri Ramji Pandey, Panel Lawyer for the State/respondent.
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ORDER
(Delivered on 03.04.2019)
1. Applicant has filed this petition under Section 482 of Cr.P.C., for quashment of the Criminal Case No.756/2018 pending before JMFC, Gadarwara, District Narsinghpur for the offence punishable under Sections 420 and 406 of IPC registered at Police Station Chichili District Narsighpur vide Crime No.102/2017.
2. Facts giving rise to this petition, in short, are that Dhannalal Soni lodged a written report to the Superintendent of Police Narsinghpur on 25.04.2017 and also lodged FIR in Police Station Narsinghpur for the offence punishable under Sections 420 and 406 of IPC against the applicant with two other persons namely; Bhagchand Kourav and Jai Prakash Soni alleging in both the complaint that the land situated in Khasara No.236 area 1.40 acares recorded in the name of of his mother Makkhan Bai and after the death of Makkhan Bai, the names of her five sons namely Dhannalal Soni 2 (complainant), Tekchand Soni, Vijay Soni, Subhash Soni and Poonam Soni and two daughters; Asha Soni and Vimla Soni were jointly recorded in the revenue record along with other co-owners Jai Prakash Soni and Omkar Singh Soni. Lateron Jai Prakash Soni and Omkar Singh Soni sold out their share to some person and only share of complainant-Dhannalal Soni, his brothers and sisters remained. Lateron, Dhannalal Soni came to know that Jai Prakash Soni, Village Patwari Bhagchand Soni and present applicant Hemraj Kourav under conspiracy got recorded the name of present applicant in place of complainant Dhannalal Soni and his brothers in the area 0.121 Hectare. He has not sold any land to present applicant.
3. Dhannalal Soni filed the appeal against the order of mutation before the Court of SDO (Revenue) Gadarwara, case is pending there. It is further alleged that present applicant, Jai Prakash Soni and Patwari Bhagchand Kourav send this case to the Board of Revenue, Gwalior. Complainant also alleges in the FIR that his sister's name recorded in Khasara No.236/1, but in this area, a land recorded is a temple land, he has neither donated for any temple nor constructed any temple. The applicant and other person Jai Prakash Soni and village Patwari Bhagchand Kourav hatched the conspiracy and recorded wrong name in the revenue record by playing fraud.
4. Actual place of incident is village Chichali where the land is situated. Police Station Narsinghpur after registering the Crime No.0/17 send the FIR to Police Station Chichali District Narsinghpur where Crime No.102/2017 was registered against the applicant and other accused. During investigation revenue record Khasara No. 236/1 and 236/2 and other 3 revenue records were seized and sale deed, on that basis the name of present applicant were recorded in the revenue record was also seized.
5. After investigation, charge-sheet came to be filed before the Court of JMFC Gadawara District Narsinghpur registered as Cr. Case No.756/2018. Being aggrieved by this criminal proceedings, the applicant filed this petition under Section 482 of Cr.P.c. on the ground that he had purchased a part of the land which falls 1/6th [0.09 hectare] share of the total land with the consent of sons of Pannalal i.e. Vijay, Tekchand, Subhash and Bablu on 20.02.1995 and on that basis, applied for recording the name in the revenue record. Thereafter, mutation was done vide order dated 17.05.1995 and in the year 2000, the land was diverted for the commercial purpose and constructed a Hotel thereupon. After a lapse of 19 years complainant Dhannalal, out of greed challenged the mutation order dated 17.5.1995 (Annexure-D-4) before the SDO Gadarwara on 25.2.2014 which is still pending and on 27.04.2017 i.e. after a lapse of 23 years, lodged a complaint before the Police Station Narsinghpur and send a written complaint to the Superintendent of Police, Narsinghpur.
6. Learned Senior counsel for the applicant submits that applicant has falsely been implicated in the case whereas, he has not committed any offence. The dispute between the applicant and complainant Dhannalal is purely of civil nature. Applicant purchased the land near about 23 years ago and complainant remained silent for a period of 23 years. Complainant- Dhannalal can file a civil Suit for declaration of their title and to declare the sale deed and mutation order as null and void before the trial Court but he 4 has filed criminal complaint for blackmailing the applicant. The ingredients of Sections 420 and 409 of IPC prima facie has not made out against the applicant. The complainant and his brothers and sister also sold out the part of the land situate in Khasara No.236 to some person and further Khasara No.236 divided into 16 sub-divisions i.e. Khasara No.236/1 to 236/16. Most of the purchaser got mutated their name in the revenue record. The complainant lodged a forged and fictitious complaint and prayed to set aside the criminal case and criminal proceedings initiated against the applicant.
7. Learned Govt. Adv. for the State vehemently opposes the aforesaid prayer and submitted that there is prima facie material collected during investigation against the applicant and on that basis, the learned trial Court has taken the cognizance of the offence punishable under Sections 406 and 420 of IPC and prayed to dismiss the petition.
8. Heard counsel of both parties and perused the case diary of Crime No.102/2017 registered at Police Station Chichali District Narsinghpur.
9. It is not disputed that the Makkhan Bai is the wife of Pannalal Soni, they have five sons namely Dhannalal Soni, Vijay, Tekchand, Subhash and Bablu and two daughters Asha Bai and Vimla Bai. After the death of Makkhan Bai and Pannalal, the names of the aforesaid legal heirs were jointly recorded in the revenue record. The name of Jai Prakash Soni and other persons were also recorded in the revenue record jointly. It is undisputed that the partition among the co-owners has not been taken 5 place, but as per allegation made by the complainant Dhannalal in the FIR and in his statement recorded under Section 161 of Cr.P.C, the co-owners sold out their shares to some person who in turn recorded their names in the records of rights and in the same way, present applicant Hemraj also recorded his name in the revenue record on the basis of unregistered sale deed. Complainant alleged that he and his brothers have not put their signature on the sale deed nor they have given their consent for mutation. It is also undisputed fact that complainant has not filed any Civil Suit for declaration of their title and declaration of sale deed and mutation order as null and void.
10. After perusal of the case diary, this fact also emerges out that the purchaser of piece of land separated their share and land is divided into separate Khasara i.e. Khasara No.236/1 to 236/16. Complainant Dhannalal further alleged in the FIR and in the statement recorded during investigation that the name of his sisters Asha and Vimla remained in the revenue records and his share is separated as Khasara No.236/1 and also mentioned in the FIR that person who purchased the piece of land constructed their house and some have not constructed the house. In the statement recorded under Section 161 of Cr.P.C., he also stated that his sisters Vimla and Asha in the year 2012 sold out the plot to one Rashid Khan by registered sale deed but did not obtain consent of the complainant and his brothers. In the same manner, Jai Prakash Soni, who recorded as co-owner also sold the land to Hari Om Choudhary and not obtain the consent of Complainant-Dhannalal and his brothers. 6
11. The complainant further stated that the land comes in the share of Pannalal, father of complainant, is .70 decimal. After the death of Pannalal, five brothers and two sisters succeeded ten decimal land equally falls in the share of each successor. He further stated that his sister sold out the land but he has not raised any objection because she might have sold his own share. So many persons claimed title and possession on the disputed land that is why he lodged the report against the Village Patwari, Jai Prakash Soni co-owners of the land and against the present applicant, who purchased the land.
12. It is apparent after perusal of the case diary that applicant purchased a land by unregistered sale deed on 20.02.1995. The signatures of Vijay, Tekchand, Subhash and Bablu are found on the sale deed. Complainant Dhannalal and his brothers denied for the signature. Thereafter, applicant got mutated his name in the revenue record. Mutation of any person recorded after inviting the objection on the mutation and after that revenue Officer mutated the name of person. The revenue record seized during investigation also reveals that the name of present applicant recorded in the revenue record after adopting due process of law. The complainant filed an appeal against the order of mutation dated 17.05.1995. This is purely a civil dispute. The complainant lodged a complaint against the applicant after a lapse of 23 years.
13. It is contended by the Senior counsel for the applicant that NTPC in the year 2012 had acquired some land for set up Super Thermal Power Project near Chichli as a result of rise in the price of land complainant out 7 of greed had challenged the mutation order after a lapse of 19 years in order to create pressure on the applicant. The allegations made in the FIR and the criminal case appears to be of civil nature. The dispute is of a civil nature, and criminal proceedings against the accused would be an abuse of the process of law. The arguments advanced by the counsel for the applicant has force because the applicant instead of adopting the remedy of civil suit, adopted the criminal course for pressuring the applicant.
14. In the case in hand, charge-sheet has been filed against the applicant under Sections 420 and 406 of IPC. Section 420 and 415 of IPC reads thus:
"420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation.--A dishonest concealment of facts is a 8 deception within the meaning of this section.
(a) A, by falsely pretending to be in the Civil Service, inten-
tionally deceives Z, and thus dishonestly induces Z to let him have on credit goods for which he does not mean to pay. A cheats.
(b) A, by putting a counterfeit mark on an article, intentionally deceives Z into a belief that this article was made by a certain celebrated manufacturer, and thus dishonestly induces Z to buy and pay for the article. A cheats.
(c) A, by exhibiting to Z a false sample of an article, inten- tionally deceives Z into believing that the article corresponds with the sample, and thereby, dishonestly induces Z to buy and pay for the article. A cheats.
(d) A, by tendering in payment for an article a bill on a house with which A keeps no money, and by which A expects that the bill will be dishonored, intentionally deceives Z, and thereby dishonestly induces Z to deliver the article, intending not to pay for it. A cheats.
(e) A, by pledging as diamonds article which he knows are not diamonds, intentionally deceives Z, and thereby dishonestly induces Z to lend money. A cheats.
(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money. A not intending to repay it. A cheats.
(g) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract.
(h) A intentionally deceives Z into a belief that A has 9 performed A's part of a contract made with Z, which he has not performed, and thereby dishonestly induces Z to pay money. A cheats.
(i) A sells and conveys an estate to B. A, knowing that in consequence of such sale he has no right to the property, sells or mortgages the same to Z, without disclosing the fact of the previous sale and conveyance to B, and receives the purchase or mortgage money from Z. A cheats."
15. Plain reading of above mentioned Sections goes to show that person deceived to deliver any property to any person or person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived. In this case, how the applicant deceived complainant Dhannalal, is not made out any where. Complainant Dhannalal alleged that one Jai Prakash Soni fraudulently sold out the share of Dhannalal to the present applicant and thereafter, applicant got succeeded to mutate his name in the revenue record. If the whole evidence is taken into consideration, then no case is made out against the applicant for the offence punishable under Section 420 of IPC.
16. Now, come to Section 405 of IPC and Section 406 of IPC. The same reads as under:-
"405. Criminal breach of trust.--Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits 10 "criminal breach of trust".
406. Punishment for criminal breach of trust.--Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
17. As per Section 405 of IPC., there should be some property which is to be entrusted or with any dominion over property, dishonestly misappropriates or converts to his own use. It is apparent that complainant Dhannalal not entrusted the property to the applicant, so prima facie ingredients of the offence is not made out against the applicant.
18. On the basis of foregoing discussions, this Court is of the firm view that there was a appropriate legal remedy for the complainant to file Civil Suit or file an appeal or revision before the revenue Courts but instead of adopting the civil remedy, the complainant initiated criminal proceedings for pressuring the applicant in a short cut method and police without investigating the matter properly filed a charge-sheet against the applicant.
19. Hon'ble Supreme Court in the case of State of Haryana & Ors. Vs. Ch. Bhajanlal & ors. [AIR 1992 SC 604] has culled out some important points for quashing of the FIR or complaint, as under:-
"108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of 11 illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercise.
1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the F.I.R. or complaint are so absured and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the on concerned Act, providing efficacious redress for the grievance of the aggrieved party.12
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
20. On the basis of foregoing discussions and the principle laid down by the Hon'ble Apex Court in the case of Ch. Bhajanlal & ors (supra), the present dispute falls in the category of '5' as mentioned in para 108 of the judgment. The respondents instead of invoking the civil remedy filed a criminal proceedings for pressuring the applicant. In such a situation, the Court can invoke inherent powers envisaged under Section 482 of Cr.P.C., as has been held in para 108 in the case of Ch. Bhajanlal & ors (supra).
21. Hon'ble apex Court in the case of Inder Mohan Goswami & Another vs State Of Uttaranchal reported in (2007) 12 SCC 1, has observed the ambit and scope of Section 482 of Cr.P.C.
"23. This court in a number of cases has laid down the scope and ambit of courts powers under section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under section 482 Cr.P.C. can be exercised:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of court, and
(iii) to otherwise secure the ends of justice.
24. Inherent powers under section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great 13 caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.
27. The powers possessed by the High Court under section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage."
22. In the backdrop of the aforesaid discussions and taking into consideration the principle of law laid down by the apex Court in the case of Inder Mohan Goswami & Another (supra) and in the case of Haryana & Ors. Vs. Ch. Bhajanlal & ors (supra), this Court find that if all the averments made in the FIR and the evidence collected during investigation filed along with the charge-sheet is taken to be true, even then prima facie, the ingredients of Sections 420 and 406 of IPC are not made out against the applicant. The dispute involved in the case is of civil 14 nature. It is the duty of the Court to ensure that criminal proceedings is not use as an instrument of harassment and should not permit the complainant to use this criminal proceeding with ulterior motive to pressure the accused. To prevent the abuse of the process of law and to secure the ends of justice, it becomes imperative to quash the FIR and further criminal proceedings emanating from the FIR.
23. Consequently, this revision petition deserves to be and is hereby allowed. FIR being Crime No.102/2017 and criminal case No.756/2018 pending in the Court of JMFC, Gadarwara District Narsinghpur, so far as present applicant-Hemraj Singh Kaurav, is concerned, is hereby quashed.
(Vishnu Pratap Singh Chauhan) Judge pb Digitally signed by PRASHANT BAGJILEWALE DN: c=IN, o=HIGH COURT OF MADHYA PRADESH JABALPUR, ou=PERSONAL ASSISTANT, postalCode=482001, st=Madhya Pradesh, PRASHANT BAGJILEWALE 2.5.4.20=062bc13272373e2768c883468695ccafcb8f7bf9db7cbd37ad359bc8206 9bcdf, serialNumber=a08ae25aceff18c7a0f94698e1bc6a3ccf1dc9654549200eb1bc8e5d df6349b0, cn=PRASHANT BAGJILEWALE Date: 2019.04.03 17:48:55 +05'30'