Madhya Pradesh High Court
Shailendra Shrivas vs The State Of Madhya Pradesh on 30 October, 2017
1
M.Cr.C.No.175/2011
HIGH COURT OF MADHYA PRADESH,
PRINCIPAL SEAT AT JABALPUR
(SINGLE BENCH : HON'BLE SHRI JUSTICE J.P.GUPTA)
M. Cr. C. No.175/2011
Shailendra Shrivas
Vs.
State of Madhya Pradesh
Shri Pushpendra Dubey, Advocate for the petitioner.
Shri Akhilendra Singh, Govt. Advocate for the
respondent/State.
Whether approved for reporting : (Yes / No).
ORDER
(Delivered on 30th day of October, 2017)
1. This petition under Section 482 of the Code of Crimi- nal Procedure has been filed by the petitioner against the order dated 16.12.2010 passed by Addl. Special Judge, Betul, in Criminal Revision No.125/2010 confirming the order dated 12.8.2010 passed by learned J.M.F.C. Betul in criminal case no.4041/2006, whereby the learned Magistrate has framed the charge against the applicant for the offence under sections 420 read with section 34 of the I.P.C.
2. Facts of the case in narrow compass are that the agri- culturist Smt.Raju Bala, w/o Shivchand, has purchased a tractor bearing registration No.MP05-5769 and a trolly bearing registra- tion No.MP05-5770, by taking a loan from Betul District Co-oper- ative Agriculture Rural Development Bank Limited in the year 1997. Due to default in payment of loan amount, the said tractor and trolley was seized and were sold in a auction by the present 2 M.Cr.C.No.175/2011 applicant who was supervisor of the Bank, in a public auction on 14.7.2005. One Harbhajan, s/o Dhanjal Singh has auction pur- chased the said tractor trolley for an amount of Rs.1,15,000/- and a sale certificate was issued. On an application being moved for transferring the vehicle in his name, the R.T.O. informed that the said trolley is in the name of one Krishna Bai Arya. Thus, a com- plaint is made against the present applicant for committing of- fence under section 420 I.P.C. alleging that the applicant has sold the trolley dishonestly and fraudulently to cheat the complainant. On the complaint of the complainant, crime was registered for the offence under section 420/34 I.P.C. and after investigation chal- lan was filed before the trial court.
3. The learned JMFC took cognizance of the offence and framed charge under section 420/34 of the I.P.C. against the ap- plicant. Against the framing of charge, the applicant has preferred a revision before the ASJ Betul. The learned ASJ Betul upheld the order framing charge and dismissed the revision preferred by the applicant.
4. Learned counsel for the applicant submitted that the learned courts below have not considered the material available in right perspective as prima facie there is no sufficient material to prosecute and frame the charge against the applicant. The trolly seized from the defaulter Rajubai was sold out in a public auction and the purchasing amount was accounted in the account of the defaulter. There is no material in the charge-sheet to establish the fact that the applicant has acted fraudulently and dishonestly in the aforesaid transaction and any act is done under the mistake of fact does not constitute an offence of cheating. Further, with re- gard to the same facts and material other co-accused persons have been discharged by the separate order passed by the revisional court. But, the revision filed by the applicant was decided by a dif-
3 M.Cr.C.No.175/2011ferent Judge and thus the same relief has not been extended to the applicant and in this way discrimination has been made against the applicant. Hence, it is prayed that the impugned order be set aside as if the proceedings continue, it would amount to misuse of the process of the court and cause grave injustice to the applicant.
5. On the other hand, learned G.A. opposed the con- tention advanced by learned counsel for the petitioner and prays for rejection of the petition.
6. Having heard learned counsel for the parties and on perusal of the record in this case it appears that the tractor bear- ing registration No.MP05-5769 was seized along with the trolly bearing registration No.MP05-5770 from the possession of Mrs.Raju Bala being the defaulter in payment of instalment with regard to the loan amount taken for purchasing the vehicle from the District Co-operative Agriculture Rural Development Bank Limited and the applicant as per the norms of the Bank sold both the tractor as well as trolley in public auction which was pur- chased by the complaint and the purchase amount was deposited in the account of the defaulter and other co-accused persons and the applicant issued sale-certificate in the name of the com- plainant. A letter is also written to the R.T.O. for transferring the vehicles in the name of the complainant. The R.T.O. however dis- closed the fact that the trolly bearing registration No.MP05-5770 is not in the name of Mrs.Raju Bala whereas the registered owner of the said trolley is one Smt.Krishna bai, therefore, the R.T.O. re- fused to transfer the said tractor and trolley in the name of pur- chaser/complainant. Thereafter, the complainant lodged the FIR against the applicant and co-accused Yado Rao, who was Bank Manager at the relevant time.
7. In this case, the applicant has not acted dishonestly or fraudulently. The alleged irregularity or illegality has been com-
4 M.Cr.C.No.175/2011mitted without verifying the name of the registered owner of the property before selling the same. Certainly, this is a mistake which may affect the legality of the sale transaction; but, it cannot be said that the applicant has committed the alleged offence of cheating. The offence of cheating has been defined under section 415 of the I.P.C. which reads thus :-
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 in-
duces 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 dam- age or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation.--A dishonest concealment of facts is a de- ception within the meaning of this section.
8. Words 'dishonestly' and 'fraudulently' have been de- fined in sections 24 and 25 of the I.P.C. which read thus :-
24. "Dishonestly".--Whoever does anything with the in-
tention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishon- estly".
25. "Fraudulently".--A person is said to do a thing fraudu- lently if he does that thing with intent to defraud but not otherwise.
9. Word defraud is, however, not defined in the I.P.C.; but Hon'ble the Apex Court in the case of State of U.P. V. Ran- jit Singh (1992)2 SCC 617 has interpreted the meaning of word 'defraud' and held as under :-
'The expression 'fraud' involves two elements, namely de- ceit and injury to the person deceived. Injury is something other than economic loss and it will include any harm whatever caused to any person in body, mind, reputation or such others. A benefit or advantage to the deceiver will al- most always cause loss or detriment to the deceived.5 M.Cr.C.No.175/2011
Where, therefore, a document is prepared with the inten- tion to deceive and by means of deceit, an advantage is ob- tained then there is a fraud.
10. Word defraud is, again defined by Hon'ble the Apex Court in the case of Vimla (Dr.) Vs. The Delhi Administra- tion, AIR 1963 SC 1572 wherein it is held as under :-
'The expression 'fraud' involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include and any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advan- tage to the deceiver, will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condi- tion is satisfied'.
11. As per the Standard Dictionary, meaning of word 'de- fraud' is to deprive of some right, interest, or property by deceitful devices; to withhold from wrongfully; to injure by embezzlement; to cheat; to overreach; to withhold from another that which is justily due to him, or to deprive him of a right by deception or arti- fice; to deprive of a right by withholding from another, by indirec- tion or device, that which he has a right to claim or ortain; to de- prive of something dishonestly.
12. In view of the definition of dishonestly and fraudu- lently and of the word defraud, in the present case, there is no averment to bring the act of the applicant under the aforesaid def- initions. Therefore, prima facie, alleged offence of cheating is not constituted against the applicant. Therefore, the order with regard to framing of charge under sections 420 read with section 34 of the I.P.C. is not sustainable in the eyes of law as if the prosecution is continued for the aforesaid offence, it would amount to misuse of the process of court and cause grave injustice to the applicant.
6 M.Cr.C.No.175/201113. In view of the aforesaid discussion, this petition is al- lowed and the impugned orders dated 16.12.2010 passed by Addl. Special Judge, Betul, in Criminal Revision No.125/2010 and the order dated 12.8.2010 passed by learned J.M.F.C. Betul in crimi- nal case no.4041/2006 are set aside. Consequently, proceedings pending before the court below are also quashed.
14. A copy of this order be sent to the concerned court be- low for information and necessary compliance.
(J.P.GUPTA) JUDGE HS