Madhya Pradesh High Court
Atul Arora vs State Of M.P. on 28 April, 2017
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1 MCRC No. 2643 of 2012
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
PRESENT:
HON'BLE MR. JUSTICE G.S. AHLUWALIA
Misc. Criminal Case No. 2643 OF 2012
Atul Arora & Ors.
-Vs-
State of M.P. & Anr.
__________________________________________________
Shri Prashant Sharma, Counsel for the applicants.
None for the respondents even in the second round.
__________________________________________________
ORDER
(28/04/2017) This petition under Section 482 of Cr.P.C. has been filed for quashing the proceedings in Criminal Case No. 19/2012 pending before the ACJM, Dabra, District Gwalior.
The necessary facts for the disposal of the present petition in short are that the complainant filed a criminal complaint under Section 200 of Cr.P.C. for offences punishable under Sections 420, 467, 468 r/w and 120-B of IPC on the allegation that the complainant was married to the applicant No.1. After her marriage, the applicants started harassing and treating the complainant with cruelty and accordingly a Crime No.714/2005 for offence under Section 498-A of IPC was registered. The applicants were tried for the offence under Section 498-A of IPC. By judgment dated 30.9.2008, the applicants were convicted under Section 498 A of IPC and were sentenced to suffer two years rigorous imprisonment and a fine of Rs. 500/- with default imprisonment. Being aggrieved by the judgment passed by the Magistrate, the applicants filed 2 MCRC No. 2643 of 2012 an appeal which was registered as Criminal Appeal No.263/2008 and by judgment dated 31.8.2009, the said criminal appeal was partially allowed and the appeal filed by the applicant No.1 was allowed whereas the appeal filed by the applicants No.2 and 3 was dismissed. Similarly, one proceedings under Section 125 of Cr.P.C. was pending between the parties and apart from that on the report of the complainant, the police had filed a charge sheet for offences under Sections 406, 120-B of IPC which are pending. During the pendency of these proceedings, it was agreed upon between the parties that the parties shall give divorce to each other and would withdraw all the cases. Accordingly, as per the conditions of compromise the applicant No.1 gave a demand draft of Rs. 4,00,000/- to the complainant. It was further alleged that the applicants had assured that the complainant can get the draft encashed and accordingly the compromise applications in the pending cases were filed. It was alleged that immediately after handing over the draft to the complainant, the applicants got the said demand draft cancelled whereas the demand draft was in the name of the complainant and, therefore, without information to the complainant, the demand draft could not have been cancelled. The complainant made an application under the Right to Information Act, 2005 for supply of information that on whose application the draft has been cancelled and on what date and for what reason the draft was got cancelled. However, the Bank did not furnish the necessary information. It was further alleged that again on 27.6.2009 another draft of Rs. 4,00,000/- was got prepared by the applicants and the applicant No.1 also submitted an affidavit to the effect that now neither he would stop the payment nor he would get the draft cancelled. It was alleged that again the said draft has been got cancelled by the applicants, thus, a complaint was 3 MCRC No. 2643 of 2012 filed.
The Magistrate by order dated 21.10.2009 passed an order under Section 156 (3) of Cr.P.C. and directed the police to investigate the matter and to file a final report. It appears that accordingly the police registered the FIR against the applicants and the Branch Manager of Bank of Maharashtra and Branch Manager of Indian Bank for offences under Sections 467, 468, 420, 34 of IPC. After completing the investigation it appears that the police filed the charge sheet for offence under Section 420, 34 of IPC against the applicants.
The charge sheet was filed on 30.12.2010 whereas this petition under Section 482 of Cr.P.C. for quashing the criminal proceedings has been filed on 30.3.2012. In the entire petition there is nothing on record to show that whether the charges were already framed on the date when the petition under Section 482 of Cr.P.C. was filed or not. During the argument, it is submitted by the counsel for the applicants that not a single witness has been examined so far in the trial.
It is submitted by the counsel for the applicants that a decree of divorce has been passed and the marital ties between the applicant No.1 and the respondent have been broken. It is further submitted by the counsel for the applicants that the application filed by the respondent under Section 125 of Cr.P.C. has been dismissed. The copy of the agreement which was executed by the parties has also been placed on record by the applicants to show that the respondent had compromised the matter and in the compromise itself it was mentioned that the respondent has received a lump sum amount towards maintenance.
It is submitted by the counsel for the applicants that as the respondent did not comply with her part of agreement and since she did not withdraw the cases and, therefore, the 4 MCRC No. 2643 of 2012 applicants were well within their rights to cancel the demand draft which was initially given to the complainant and, therefore, it cannot be said that the applicants had in any manner cheated the respondent.
It is further submitted by the counsel for the applicants that the Magistrate while passing the order under Section 156 (3) of Cr.P.C. did not record any reasons and, therefore, the said order is bad and further there is nothing on record to show that before filing the complaint, the complainant had ever approached the police authorities.
None appears for the respondent though served. Heard the learned counsel for the applicants. So far as the first contention of the counsel for the applicants that the Magistrate while passing order under Section 156(3) of Cr.P.C. did not assign any reasons is concerned, the submissions made by the counsel for the applicants cannot be accepted at this stage. Undisputedly, the Magistrate passed an order on 21.10.2009. There is nothing on record to show that the applicants had ever challenged the said order. The said order was passed more than seven years ago and much water has flown under the bridge. The police after registering the FIR has filed the charge sheet. Charges have been framed and the matter is pending before the Trial Court for recording evidence of the parties. Under these circumstances, it would not be proper for this Court to set aside the order passed under Section 156 (3) of Cr.P.C. and to quash the subsequent proceedings with a direction to the Magistrate to decide the application under Section 156 (3) of Cr.P.C. afresh.
So far as the merits of the case are concerned, it is apparent that the FIR was lodged in the year 2009 and the charge sheet was filed in the year 2010. Much water must have flown under the bridge. It is the specific case of the 5 MCRC No. 2643 of 2012 complainant that a demand draft of Rs. 4,00,000/- was prepared and was handed over to the complainant and the applications for compromise were filed. The demand draft was cancelled without any information to the complainant. The applications for compromise were also rejected. Again for the second time a demand draft of Rs. 4,00,000/- was prepared, it was again handed over to the complainant but again it was cancelled. It is submitted by the counsel for the applicants that as the demand draft of Rs. 4,00,000/- was given to the complainant by way of permanent alimony for quashment of the proceedings which were pending between the parties on the ground of compromise and the since the compromise could not materalize, therefore, the applicants did not commit any mistake by cancelling the demand draft. However, neither in the complaint nor in the present application there is any detail as to when the demand draft was got cancelled and when the applications for compromise were dismissed. If the demand draft was cancelled prior to the dismissal of the applications for compromise then the stand of the applicants that because of non quashment of the proceedings on the ground of compromise they were well within their right to cancel the demand draft cannot be accepted. Further, the allegations that the demand draft was prepared for twice. First demand draft was prepared on 12.6.2009 which was subsequently cancelled immediately after the preparation of the demand draft and another demand draft was prepared on 27.6.2009 which was also got cancelled. There is nothing on record to show that what is the stage of the trial. From the documents which have been placed on record, it appears that the applications which were filed for compromise in different proceedings were not allowed and were rejected. If the demand draft were cancelled after the rejection of the applications for compromise then the applicants have some case in their favour but if the demand 6 MCRC No. 2643 of 2012 drafts were cancelled immediately after handing over the same to the complainant but prior to rejection of the applications for compromise then the intentions of the applicants would be writ large. In absence of any specific averment by the applicants to the extent that the demand drafts were cancelled only after the rejection of the compromise applications, this Court is of the view that the applicants have no prima facie case for quashment of the proceedings. Under these circumstances, this Court is of the view that it is not a fit case for quashing the FIR, charge sheet, framing of charge and further proceedings by exercising powers under Section 482 of Cr.P.C.
As the disputed questions of fact are involved in the present case, therefore, the defence of the applicants cannot be considered by this Court while deciding the application under Section 482 of Cr.P.C.
It is further made clear that observations in this case have been made considering the limited scope of powers under Section 482 of Cr.P.C. The Trial Court must decide the trial on the basis of the evidence which would ultimately come on record without getting prejudiced by any observation made by this Court in the order.
With aforesaid observation, the petition is dismissed.
(G.S. AHLUWALIA)
(alok) Judge