Chattisgarh High Court
Sharad Kumar Mishra vs State Of Chhattisgarh on 9 August, 2021
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Sheet
CRMP No. 612 of 2021
1. Sharad Kumar Mishra S/o Shri Nagendra Mishra Aged About 28 Years R/o
30/31, Shivaji Nagar, Ward No. 8, Supela Bhilai District Durg Chhattisgarh
2. Nagendra Kumar Mishra S/o Pratap Narayan Mishra Aged About 54 Years R/o
30/31, Shivaji Nagar, Ward No. 8, Supela Bhilai District Durg Chhattisgarh
3. Ashraf Tawar S/o Shri Salim Tawar Aged About 30 Years Indira Nagar, Camp-2,
Bhilai District Durg Chhattisgarh
---- Petitioners
Versus
1. State Of Chhattisgarh Through The Station House Officer, Police Station Durg
Kotwali, District Durg Chhattisgarh
2. Sunil Kumar Lodha (Jain) S/o Late Shri Gendmal Jain Aged About 52 Years R/o
House No. 62 Aapapura, Durg District Durg Chhattisgarh
---- Respondent
WPCR No. 356 of 2021
• Pradeep Kumar Khandelwal S/o Hazarilal Khandelwal Aged About 58 Years R/o Lotus Talpuri, Bhilai, Tahsil And District Durg Chhattisgarh
---- Petitioner Versus
1. State of Chhattisgarh Through The Station House Officer, Police Station Kotwali Durg, District Durg Chhattisgarh
2. Sunil Kumar Lodha (Jain) S/o Late Gaindmal Jain Aged About 52 Years R/o House No. 62, Apapura, Durg Tahsil And District Durg Chhattisgarh
---- Respondent 09-08-2021 Mr. Sabyasachi Bhaduri, counsel for the petitioners in CRMP No. 612 of 2021.
Mr. Goutam Khetrapal, counsel for the petitioner in WPCR No. 356 of 2021.
Mr. Devendra Pratap Singh, Dy. Advocate General for respondent No.1/State.
Mr. Manish Upadhyay, counsel for respondent No.2/complainant.
Heard on I.A.Nos 1 of 2021 in both the petitions which are applications for grant of interim relief.
Learned counsel for the petitioners in CRMP No. 612 of 2021 would submit that petitioner No.1 is the purchaser of the said property in dispute, petitioner No.2 is the father of the petitioner No.1 and petitioner No.3 is the attesting witness. Learend counsel for the petitioner in WPCR No.356 of 2021 would subhmit that the petitioner is the owner of the shops situated at Supela Market, Bhilai which have been obtained under the valid lease deed executed from year 1992 to 1994 in respect of eight shops i.e., plots No. 13 to 20.
Learned counsel for the petitioners would further submit that respondent No.2 filed a complaint on 17-3-2021 before the Police Station and on the basis of complaint, FIR No. 237 of 2021 has been registered at Police Station, Kotali, Durg for committing offence punishable under Sections 420, 467, 468, 471 and 120-B of IPC. It is further submitted that the petitioners are purchasers and owners of the property and respondent No.2 filed the complaint who is neither beneficiary of transaction nor he has been cheated by any of the petitioners, as such he has no locus standi to file the complaint, therefore, FIR is nothing, but an abuse of process of law. Reliance has been placed on the judgment of Hon'ble Supreme Court in the matter of Mohammed Ibrahim and others vs. State of Bihar and another, reported in (2009) 8 SCC 751 wherein the Supreme Court has observed in paras 19 and 20 which are extracted below:
"19. To constitute an offence under section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived (i) to deliver any property to any person, or
(ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security).
20.. When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed, to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in this case the complaint is not by the purchaser.
On the other hand, the purchaser is made a co- accused.
21.. It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, by reason of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner".
On the other hand, learned counsel for respondent No.2/complainant would submit that the petitioners have executed the agreement of property which belongs to other persons, therefore, they have committed the offence under Section 420 of the IPC. He would further submit that proceeding under Section 146--A of Cr.P.C., has already been initiated and the receiver has been appointed by Sub Divisional Magistrate on 24-4-2020, therefore, offence as alleged by him is made out against the petitioners. He would further rely upon the document (Anenxure R- 2/3) which is a sanction letter issued by the Cholamandalam Finance Company and he would further submit that the property is mortgaged with the finance company, still sale transaction has been done which is an offence as enumerated under Section 420 of the IP.C. It is pertinent to mention here that neither the finance company has approached to this court nor any of the family members of Pradeek Kumar Khandelwal who is alleged to have been cheated by him filed any complaint. The complaint made on the basis of stranger is nothing, but an abuse of process of law, therefore, the petitioners have made out the case for grant of interim relief.
Considering the facts and circumstances of the case, I.A.Nos. 1 of 2021 are allowed and it is directed that further proceedings of FIR dated 17-3-2021 in connection with Crime No. 237 of 2021 shall remain stayed, till the next date of hearing.
List both the cases after six weeks.
Sd/-
(Narendra Kumar Vyas) Judge Raju