Madhya Pradesh High Court
M.L. Gaur vs The State Of Madhya Pradesh Judgement ... on 16 May, 2014
1
M.Cr.C. No.14466 of 2013
HIGH COURT OF JUDICATURE MADHYA
PRADESH, JABALPUR
SB: HON. SHRI N.K.GUPTA,J
Misc. Criminal Case No.14466/2013
M.L.Gaur & another. A.F.R
-Vs-
State of Madhya Pradesh. Judge
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Shri Anil Lala, Advocate for the applicants.
Shri Prakash Gupta, Panel Lawyer for the respondent-
State.
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ORDER
(Passed on the 16th day of May, 2014) The applicants have preferred the present petition under Section 482 of Cr.P.C. to quash the trial proceeding of the ST No.179/2013 pending before the 11th Additional Sessions Judge, Bhopal for the offence under Sections 406, 420 read with Section 34 of IPC.
2. The brief facts of the case are that the applicants were the office bearers of the Kamdhenu Grih Nirman Sahkari Sanstha Maryadit, Bhopal (hereinafter referred to as "Samiti") at the relevant period. The Samiti mortgaged some of the plots including the Plot No.84 and 86 to the Municipal Corporation Bhopal and during the period of mortgage the applicants sold such plots to one Vandana Chourey and Masood Hussain Jafree whereas no redemption of 2 M.Cr.C. No.14466 of 2013 such plots took place prior to sale, and therefore after due enquiry the Deputy Commissioner, Cooperative Societies, Bhopal sent an FIR to the Police Station Bagh Sewania which was registered vide Crime No.24/2010 and after due investigation a charge sheet was filed.
3. I have heard the learned counsel for the parties.
4. There is no dispute that the applicants were the office bearers of the Samiti in the period when the plots No.84 and 86 were sold to Vandana Chourey and Masood Hussain Jafree. It is also admitted that at the time of sale of such plots were under mortgage to the Municipal Corporation, Bhopal and at the time of sale no redemption took place of such plots. The learned counsel for the applicants has submitted that the overt- act of the applicants may be violation of the provisions of the MP Cooperative Societies Act, 1960 (hereinafter referred to as "Act") or Rules made thereunder, but according to the provisions of the Act, no offence under Section 420 or 406 of IPC could be registered against the applicants. Secondly, it is further submitted that no offence under Section 406 or 420 of IPC was constituted against the applicants. There was a clerical mistake that plots No.84 and 86 were sold to 3 M.Cr.C. No.14466 of 2013 the various members of the Samiti without getting their redemption, whereas redemption of such plots took place prior to such sale. Hence the applicant M.L. Gaur had imposed fine of Rs.500/- on the Administrative Officer of the Samiti, who was dealing with sale, purchase and redemption of the plots. Hence no offence is made out. The applicants are unnecessarily facing the trial which is pending before the Sessions Court.
5. The learned counsel for the applicants has placed his reliance upon the order dated 1.3.2013 passed by the Single Bench of this Court in M.Cr.C. No.2356/2013 (Avdesh Raghuvanshi Vs. State of MP) in which the petition filed under Section 482 of Cr.P.C. was accepted in the same circumstances.
6. First of all it should be considered as to whether the overt-acts of the office bearers of the Samiti fall within the category of a crime under the Act, and whether the crime of IPC can be registered or not. In that respect the judgment of Hon'ble the Apex Court in the case of "State of Madhya Pradesh Vs. Rameshwar & others", [(2009) 11 SCC 424] may be perused, in which it is laid that if the overt-act of the office bearer falls within the category of IPC crime, then such crime shall be registered simultaneously. 4 M.Cr.C. No.14466 of 2013 Similarly, in the case of "M.Natarajan Vs. State by Inspector of Police SPE, CBI, ACB Chennai", [(2008) 8 SCC 413] Hon'ble the Apex Court took the same view that if any overt-act falls within the category of crime under the Act as well as any IPC offence, then the case may also be registered for offences committed under the IPC. Under such circumstances, in the light of the aforesaid judgments of Hon'ble the Apex Court, it would be apparent that if the overt-act of the office bearers of the Cooperative Societies falls within the purview of an offence under the Act as well as IPC offence, then the case has to be registered under the IPC also. The contention advanced by the learned counsel for the applicants cannot be accepted that the applicants were the office bearers of the Samiti and if they have done any overt- act, which is a crime, then only a complaint could be filed under the Act. If any offence under Section 406 or 420 of IPC was made out against the applicants, then certainly the prosecution could be directed for that offence.
7. Secondly, it is to be considered as to whether any offence under Section 420 or 406 of IPC is made out against the applicants or not. For the offence of cheating under Section 420 of IPC, it is for the 5 M.Cr.C. No.14466 of 2013 prosecution to establish prima facie that a cheating as mentioned in Section 415 of IPC was done. According to the provisions of Section 415 of IPC, someone who induces another person dishonestly or fraudulently so much so that he delivers any property to that person or gives consent for the delivery of such a property. The provision explains that dishonestly concealment of facts is a deception within the meaning of that section. In the present case, it would be apparent that the applicants did not disclose the fact that the property was mortgaged before the Municipal Corporation, Bhopal to the purchasers, and therefore they committed concealment. However, it is apparent that the various plots were mortgaged before the Municipal Corporation, Bhopal with the pretext that if the development is not done by the colonizer, then by sale of the mortgaged plots, the Municipal Corporation, Bhopal could complete the development. It is also established that such plots were mortgaged in the year 2003, and thereafter some plots were redeemed. All the plots were redeemed in three steps. Therefore initially the applicants had no dishonest intention as they got redeemed thereafter. If a cheating was intended by the applicants, then there must be some unlawful gain to the applicants and some unlawful loss 6 M.Cr.C. No.14466 of 2013 to anyone involved in the transaction.
8. If the case of the Municipal Corporation, Bhopal is considered that the plots which were mortgaged with the Municipal Corporation were sold without giving intimation to the Municipal Corporation, then by the conduct of the applicants, it would be apparent that the applicants developed the colony, and therefore the Municipal Corporation released the various plots from time to time from the mortgage. The plots No.84 and 86 were also released after sometime. Under such circumstances, no loss was caused to the Municipal Corporation and intention of the applicants cannot be presumed that they cheated the Municipal Corporation, Bhopal.
9. Similarly, the purchasers received their plots and sale deeds were done in their favour. The possession was also handed over and they had no grievance with the applicants, and therefore if the plots were sold when those were mortgaged before the Municipal Corporation, Bhopal, then it may be violation of the provisions of the Act and Rules made thereunder. But it cannot be said that the applicants did any cheating with the purchasers of the plots. Thirdly, the Samiti was constituted for purchase of land and to sell plots to its members. It is not shown by 7 M.Cr.C. No.14466 of 2013 the complainant that any loss was caused to the Samiti as plots No.84 and 86 were sold to the members of the Samiti when the same were under mortgage. Under such circumstances, neither any loss was caused to the Municipal Corporation, Bhopal nor to the purchasers of the plots nor to the Samiti. Hence, intention of the applicants cannot be presumed that they had a dishonest intention. Looking to the statement, given by the applicant No.1 that the transactions were done by the Manager of the Samiti and it is also apparent that some of the plots were redeemed prior to selling of these plots, and therefore it was possible that by mistake the applicants sold the plots No.84 and 86 with the presumption that those were redeemed by the Municipal Corporation, Bhopal, and therefore it may be a matter of clerical error or violation of the various provisions of the Act and Rules made thereunder. But looking to the conduct of the applicants that redemption took place after selling of the plots, the purchasers as well as Municipal Corporation, Bhopal had no grievance against the applicants for the alleged transaction. Hence, prima facie no offence under Section 420 of IPC is made out against the applicants.
10. Similarly, it is alleged against the applicants that they committed an offence of breach of trust. It is 8 M.Cr.C. No.14466 of 2013 true that the entire property of the Samiti was entrusted to the office bearers including the applicants, but object of the Samiti was to sell the plots amongst the members. The complainant could not show that if the plots were sold to the various members when those were mortgaged, then how the misappropriation has been done of the property entrusted to the applicants by the applicants. It was not shown that the applicants sold the plots in lesser amount to the purchasers or they caused any financial loss to the Samiti. If by that transaction no loss was caused to the Samiti and the plots were obtained by the members of the society by sale, then prima facie it cannot be said that the applicants committed any misappropriation of the property entrusted to them. Therefore, no offence of breach of trust is made out against the applicants.
11. The police has not registered the case for the offence under Sections 467, 468 of IPC. However, it would be apparent that the sale deeds executed in favour of the purchasers Vandana Chourey and Masood Hussain Jafree were genuine. They got the possession of the property on the basis of those sale deeds and also title of the property, and therefore those sale deeds were genuine and were executed 9 M.Cr.C. No.14466 of 2013 when the property was under mortgage with the Municipal Corporation, Bhopal, and therefore it cannot be said that the applicants committed any forgery in the present case.
12. On the basis of the aforesaid discussion, prima facie no offence under Sections 420, 406, 467 and 468 of IPC is made out against the applicants. It is possible that the applicants have committed an offence which falls within the purview of Section 75 of the Act, but that offence is cognizable only for JMFC and it is mentioned in Section 76 of the Act that no prosecution shall be instituted under this Act without the previous sanction in writing of the Registrar and such sanction shall not be given without giving to the person concerned an opportunity to represent his case. Therefore, it is for the Judicial Magistrate First Class to take cognizance and cognizance must be taken on the complaint with the permission of the Registrar concerned. Under such circumstances, the police could not proceed with the case for the offence under Section 75 of the Act.
13. The learned counsel for the applicants has placed his reliance upon the judgment of Hon'ble the Apex Court in the case of "State of Haryana Vs. Bhajanlal", (1992 AIR SCW 237) to show the 10 M.Cr.C. No.14466 of 2013 grounds when the power of this Court under Section 482 of Cr.P.C. may be invoked. The relevant grounds laid in the case are as under:
"(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 FIR do not discloss 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)..........
(4) Where, the allegations in the FIR 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."
In the light of the aforesaid judgment, if the FIR lodged by the Deputy Commissioner, Cooperative Societies is considered, then prima facie no offence under Sections 406 and 420 of IPC is made out against the applicants, and therefore it is a fit case in which the applicants should not be directed to face the trial without any basis. The Deputy Commissioner, Cooperative Society made file a complaint for the offence under Section 75 11 M.Cr.C. No.14466 of 2013 of the Act after taking a sanction from the concerned authority.
14. On the basis of the aforesaid discussion, the present petition filed by the applicants under Section 482 of Cr.P.C. can be accepted. Consequently, it is hereby accepted. The registration of offence vide Crime No.24/2010 at Police Station Bagh Sewaniya is hereby quashed. Accordingly, the proceedings of ST No.179/2013 are also quashed. The trial Court is directed to drop the proceedings against the applicants.
15. A copy of this order be sent to the trial Court or information and compliance.
(N.K.Gupta) Judge 16.05.2014 Ansari