Madhya Pradesh High Court
Jagdish Prasad Shivhare vs Gopalsingh Kushwaha on 11 April, 2022
Author: Deepak Kumar Agarwal
Bench: Deepak Kumar Agarwal
01
THE HIGH COURT OF MADHYA PRADESH
CRR 1880/2019
(Jagdish Prasad Shivhare Vs. Gopal Singh Kushwah & ors.)
Gwalior, Dated: 11.04.2022
Shri R.K. Sharma, learned senior counsel with Shri Vijay Kumr
Agarwal, learned counsel for petitioners.
Shri Sanjay Bahirani, learned counsel for respondents.
Petitioners have filed this petition being aggrieved by the order dated 30.03.2019 passed by Special Judge (MPDVPK Act) Gwalior in a complaint filed by the petitioners against respondents under Section 200 CrPC for the alleged offence punishable under Sections 323, 452, 395 of IPC and 11/13 of MPDVPK Act by which their complaint was dismissed under Section 203 CrPC.
In brief, facts of the case for disposal of this criminal revision, are that petitioners have filed a complaint for the offence punishable under Sections 323, 452, 395 of IPC and 11/13 of MPDVPK Act against respondents that petitioner No.1 is father of petitioner No.2. They took premises in the ownership of respondent No.1 situated at Hanuman Colony Bhind Road Gwalior for opening a hotel star gold bar and restaurant on rent on 01.01.2012. After taking the aforesaid premises on rent, they renovated the premises and by taking permission of bar incurred expenditure to the tune of Rs.20-25 lakhs and purchased AC, refrigerators, coolers etc. Upto March 2017, without any hindrance they were running the aforesaid restaurant and 02 bar in the premises of respondent No.1 on rental basis. They got registration in Shops and Establishment and Excise Department. From 15.09.2017 respondent No.1 refused to take rent and directed the petitioner to vacate the premises of respondent otherwise action will be taken to evict them. On 22.09.2017 an application was made to SHO Police Station Gole Ka Mandir for inspecting the premises. Police inspected the premises. Thereafter petitioner No.2 also filed a civil suit for declaration and permanent injunction before XVth Civil Judge Class II Gwalior. On 09.10.2017 in the evening at 4-5 pm Manager of restaurant and bar Rakesh Shivhare informed petitioner No.1 on his mobile that respondent No.1 Gopla alongwith respondent No.2 Umashankar, Sanju, Brijesh, Sandeep, Jeetu and Devendra resident of Jalalpur Gwalior alongwith 20-25 persons came on the rented premises and by breaking lock of restaurant trespassed into the restaurant and looted the furniture, AC, Coolers, fans, deep freezers, crockery and other articles. When Rakesh Shivhare objected, they did marpeet with him. On receiving the information, petitioner No1 alongwith his driver reached on the spot. He saw that manager Rajesh Shivhare lying seriously injured. Articles of restaurant had been robbed by the respondents. Then he had gone to Police Station Gole Ka Mandir and gave a written complaint against respondents. He also made a complaint to the C.M. Helpline.
On the report respondent No.1 a case for the offence punishable under Section 323, 294, 506, 34 of IPC was registered against 03 relatives of petitioner at Police Station Gole Ka Mandir.
When police did not take any action, petitioner filed a complaint before Special Judge (MPDVPK Act) to register a criminal case against respondents under Sections 323, 452, 395 of IPC and 11/13 of MPDVPK Act. In support of the complaint, they produced registration certificate of restaurant and bar. Complaint filed before Police, CM Helpline and higher officers. During investigation statements of both the petitioners and their manager Rakesh, Surendra, Bhikam Singh and head constable Rakesh Mishra were recorded.
It is admitted fact that respondent no.1 Gopal is the owner of aforesaid premises. He gave aforesaid premises to the petitioner on rent in 2012. A civil suit between petitioners and respondent No.1 is also pending for adjudication before the Civil Court. Prima face respondents No.1 evicted the petitioners from his premises but petitioners are not ready to vacate the aforesaid premises.
Eye-witnesses Manager of petitioner Rakesh Shivhare has stated that on 09.10.2017, he was working as Manager in the aforesaid restaurant and bar of petitioner. He was sitting in the parking at that time respondent No.1 alongwith other respondents and 20-25 persons having arms in their hand came in the aforesaid premises and damaged the restaurant and started destroying the articles inside the restaurant. Afterwards by keeping tables, chairs, AC, Cooler, fridge, crockery material and cylinder in a tractor trolley 04 took away. He informed the owner of shop. Thereafter they tried to lodge a report but police did not lodge FIR. Police told them to file a written application. Despite they sustained injuries, Police did not sent them for medical examination.
This witness nowhere in his statement has stated that at what time respondents came in the aforesaid shop which is pertinent. He has alleged that he got injuries but from the side of petitioners no medical report was submitted alongwith complaint despite as per his statement he got himself treated privately. He was having injuries on his back, legs and hands.
Head constable Rakesh Mishra (PW-6) has stated that on 09.10.2017 petitioners filed a written complaint against respondents. On receiving the said complaint he intimated about the same to SHO SI Gajendra pachoria and on his oral instructions after putting the seal of police station on the said complaint, a copy of the same was given to the petitioners.
From the aforesaid facts and circumstances and evidence, it appears that eviction of petitioners from the aforesaid premises was major issue between the parties, due to which petitioners have lodged private complaint. Despite this Police Station Gole Ka Mandir has registered crime on the same day on 09.10.2017 bearing No. 614/2017 under Section 323, 294, 506, 34 of IPC against Manager of petitioner Rakesh Shivhare and Shivram Shivhare on the complaint of respondent, owner of premises Gopal. He has also filed a written 05 complaint against Manager Rakesh Shivhare, Satish Shivhare and Shivram Shivhare and others that they were threatening him. Besides this trial Court in its impugned order has held that petitioners have not submitted any document that property belongs to them. There is a civil suit already pending between the parties.
Learned counsel for petitioner has relied upon Umesh Singh Vs. State of M.P. & Ors. 2019 (2) JLJ 52, Ganesh prasad Garg Vs.General Manager, South East Coal Ltd. and ors. 2018 (3) MPLJ 337, Kamal Shivaji Pokarnekar Vs. State of Maharashtra & ors. 2019 14 SCC 350 and Jagdish Valecha Vs. State of M.P. & ors. 2018 (1) MPLJ (Cri.) 498.
In Sau. Kamal Shivaji Pokarnekar v. The State of Maharashtra :
(2019) 14 SCC 350 , the Apex Court has laid emphasis on the principles laid down in two of its previous judgments namely, State of Karnataka v. M. Devendrappa : 2015 (3) SCC 424 and Indian Oil Corporation v. NEPC India Ltd. & Ors.: (2006)6 SCC 736 and held that quashing of criminal proceedings is called for only when the complaint does not disclose any offence, or the complaint is frivolous, vexatious, or oppressive and further clarified that defences available during a trial and facts/aspects whose establishment during the trial may lead to acquittal cannot form the basis of quashing a criminal complaint. The criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature, if the ingredients of the alleged offence are prima facie made out in 06 the complaint.
In Umesh Singh Vs. State of M.P. & ors. 2019 (2) JLJ 52 in Para 9, the Apex Court has held:
"9. At the stage of taking cognizance and at the initial stage, the Court is not expected to go into the merits and demerits of the case and also examine the sufficiency or otherwise of the material adduced by the prosecution and the merits of the plausible defence set up by the accused. In the present case, the Chief Judicial Magistrate on the basis of charge-sheet and the material placed by the prosecution satisfied that there are prima facie materials to proceed against accused 2 to 5 and thereafter proceeded with the trial and this has been affirmed by the revisional Court also. While so, in our considered view, the High Court ought not to have gone into the merits of the matter and quashed the proceedings. This is all the more so, when the trial has already commenced and one of the witness has been already partially examined."
Upon perusal of the judgments relied upon by the petitioners, this court is of the opinion that these judgments are not applicable to the facts and circumstances of the case.
In view of aforesaid, this Court is of the opinion that learned court below has not committed any error in passing the impugned order. Hence, present criminal revision sans merits and is hereby dismissed.
(Deepak Kumar Agarwal) Judge ojha YOGENDRA OJHA 2022.04.12 19:02:49 +05'30'