Madhya Pradesh High Court
Rajendra vs The State Of Madhya Pradesh on 2 December, 2019
Author: Sunil Kumar Awasthi
Bench: Sunil Kumar Awasthi
1
THE HIGH COURT OF MADHYA PRADESH
CRR No. 5742/2019
(Rajendra Vs. State of Madhya Pradesh)
Shri T.C. Jain, learned counsel for the applicant.
Shri Yogesh Kumar Gupta, learned Public Prosecutor
for the respondent/State.
ORDER
(02/12/2019) The applicant has preferred this petition under Section 397 of Cr.P.C. against the order dated 09.11.2019 passed by First Additional Session Judge, Dhar in Session Trial No.61/2019 whereby charges under Section 420, 467, 468, 471 of I.P.C. and 339 (C) of Madhya Pradesh Municipalities Act, 1961 have been framed against the applicant.
(2). Brief facts of the case are that one Vandana Rathore had submitted a written complaint against the applicant at Police Station Naugaon, District Dhar alleging that she had purchased a plot measuring 15 x 40 sqft. situated at Annapurna Colony, Naugaon, Dhar in the year 1994 for consideration of Rs. 26,000/- and sale deed was executed by the applicant in her favour. However, the possession of the said plot has not been handed over by the applicant to her till date nor he has returned the money. On her asking, the applicant on 10.06.2017 had furnished a affidavit swearing the return of the amount of Rs.4,80,000/- to the complainant. However, he has not paid the aforesaid amount. Now she has learnt that the applicant has sold the said plot to a third party. When they confront the applicant with the demand of the said plot or money, he abused them 2 and threatens her with dire consequences. (3). Complainant Prahlad also made complaint alleging that he had purchased a plot measuring 20 x 40 sqft. for consideration of Rs. 8,000/- in the year 1995, however, the possession of the said plot has not been handed over to him by the applicant nor he has returned the consideration amount. On 26.05.2015, he made complaint against the applicant in Jansunwai, however no action was taken against the applicant. Thereafter he made complaint with the Chief Minister Helpline, then station house officer, Naugaon called the applicant at police Station and on 17.04.2016 he has given in writing that he will give him a plot measuring 20 x 40 sqft at Sai Dham Colony, Dhar but he did not do the same. Now he is threatening to his life. On the basis of the aforesaid complaints, police registered an FIR against the applicant for commission of offence under Section 420, 120-B, 294 and 506 of I.P.C. Later on Section 465, 467, 468, 471 of I.P.C. and Section 339 -C of Madhya Pradesh Municipalities Act were also added. After completion of investigation, charge-sheet has been filed. (4). The trial court fixed the case for framing of charge, then applicant moved an application for discharging him from the aforesaid offences, however, the said application was dismissed vide order dated 09.11.2019 and charges have been framed against the applicant for commission of offence under Section 420, 467, 468, 471 of I.P.C. and Section 339-C of M.P. Municipalities Act. (5). Learned counsel for the applicant has submitted that the trial court has lost sight of the material legal position in 3 framing the charge against the applicant under Section 339- C of M.P. Municipalities Act. The report has been lodged by the unathorised person and also retrospective effect has been given to the provision of the said act allegedly committed in the year 1994 whereas the alleged act has been penalised in the year 1997. It is further submitted that bare perusal of the allegations made in the written complaint, it is apparent that there is no allegation of forgery or using a forged document. Neither any document purporting to be forged by the applicant has been seized by the police. In these circumstances, no offence under Section 420, 465, 467, 468 and 471 of I.P.C. is made out against the applicant. It is further submitted that the matter is of the civil nature and applicant has been roped in the criminal offence for which there is no basis, thus, he prays for setting aside the order dated 09.11.2019 by which charges have been framed against the applicant. (6). Learned counsel for the respondent/State has opposed the prayer made by the applicant by contending that the trial court has not committed any error in framing the charge against the applicant for the aforesaid offence as there exists prima facie case against the applicant. The order does not suffer any illegality and therefore may not be interfered.
(7). I have taken note of rival contentions canvassed on behalf of parties and have perused the record in their context.
(8). To constitute the offence under Section 420 of I.P.C. it is required to establish that 'cheating' within the meaning of 4 Section 415 of I.P.C. was made. From perusal of the charge-sheet, it appears that there is allegation against the applicant that he has sold the disputed plot to complainant Vandna Rathore in the year 1994 and after receiving the consideration amount of Rs. 26,000/- he has executed sale deed in her favour. But, he has not handed over the the possession of the said plot to the complainant and when she demanded her money back then applicant executed an affidavit on 10.06.2017 swearing the return of the amount of Rs. 4,80,000/- to the complainant in lieu of the aforesaid plot, however he has not acted upon the aforesaid promise. Thus, there is specific allegation against the applicant regarding deceive the complainant fraudulently or dishonestly and induce to pay consideration amount, therefore, prima facie charge for the offence under Section 420 of I.P.C. is made out against the applicant. (9) To constitute offence under Section 467, 468 and 471 of I.P.C., it must be established that the false documents be prepared within the meaning of Section 464 of I.P.C. which reads as under:
'464 Making a false document. -- [A person is said to make a false document or false electronic record-- First --Who dishonestly or fradulently--
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any [electronic signature] on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the 342 [electronic signature],with the intention of causing it to be believed that such document or part of document, electronic record or [electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly --Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with [electronic signature] either by himself or by any other person, whether such person be living or dead at the time of such 5 alteration; or Thirdly --Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his 342 [electronic signature] on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
In the instant case, the allegation against the applicant that even after receiving of the consideration amount and execution of the sale deed, he did not hand over the possession of the plot nor returned the money received from the complainant, however, such act does not fall under any of the clauses of Section 464 of IPC which deals with making of false document. Unless, it is established that a false document was made within the meaning of 464 of IPC, offences under Section 467, 468 & 471 of IPC cannot be there. In this regard I have referred to judgment passed by the Apex Court Mohd. Ibrahim & Ors. Vs. State of Bihar and Anr., reported in (2009) 8 SCC
751). Thus, it is revealed from the charge-sheet that, even after accepting all the allegations made therein, the offences alleged against the applicant under 467, 468, 471 of IPC are not at all made out.
(10). So far as the offence under section 339-C of Municipalities Act is concerned, it is alleged that applicant diverts his land or the land of any other persons into plots with object to establishing a colony in breach of the requirements contemplated in Municipalities Act or the rules made in this behalf, commits an offence of illegal colonization. However whether the applicant has developed any colony violating the requirements contemplated under the Municipalities Act and if so then when he has done this act, it can be decided after recording the evidence of the 6 prosecution, therefore, at this stage no ground is available for interfering regarding the charge under Section 339-C of M.P. Municipalities Act.
(11). In view of the aforesaid discussion, the present revision petition is partly allowed. Applicant is discharged from the offence punishable under Section 467, 468 and 470 of I.P.C.,however, trial shall be continue against the applicant for the offence punishable under Section 420 of I.P.C. and 339-C of Municipalities Act in accordance with law.
(S. K. AWASTHI)
praveen JUDGE
Santosh
Digitally signed by Santosh Kumar Tiwari
DN: c=IN, o=High Court of Madhya
Pradesh Bench Indore,
postalCode=452001, st=Madhya Pradesh,
Kumar
2.5.4.20=6786ce47881242387139baa8506 120a45637ac1466d1353133b8571c8d1a1 a9b, serialNumber=0df066b5d65485a7dc86ffb Tiwari be7a15909648313981e4d77f8cf9b0cfee0d 9386d, cn=Santosh Kumar Tiwari Date: 2019.12.19 10:33:34 -12'00' 7