Madhya Pradesh High Court
Ajay Soni vs Girdharilal on 28 March, 2017
1 M. Cr. C. No. 10184/ 2016
(Ajay Soni Vs. Girdharilal & Others)
28.03.2017
Shri Shishir Kumar Saxena, learned counsel for the
petitioner.
Shri S.S. Rajput, learned counsel for respondents
No.1 and 2.
Shri A.K. Shrivastava, learned Panel Lawyer for respondent No.3/ State.
Petitioner has filed this petition under Section 482 of Code of Criminal Procedure, for quashing of the order of cognizance dated 12.01.2016 passed by the JMFC, Guna, in Criminal Case No.100/2016.
The controversy in short is that petitioner is admittedly the Power of Attorney Holder of one- Shri Neeraj Verma. Respondents No.1 and 2 had purchased a plot from one- Shri Nathuram through his Power of Attorney Holder on 02.09.1993 measuring 1,000 sq.ft. The boundaries of said plot were Block No.5 in East, 20 ft. wide road in West, 20 ft. wide road in North and property of seller in South. Thereafter, Shri Neeraj Verma had purchased a plot on 23.12.1993 measuring 1,000 sq.ft. from the Power of Attorney Holder of Shri Nathuram and the boundaries of his plot were- Block No.56 in East, Block No.58 in West, land of others in North and 20 ft. wide road in South. Thereafter, petitioner who is the Power of Attorney Holder of Shri Neeraj Verma, had executed a sale-deed on 25.10.2013 in favour of one- Shri Mahaveer Jain in relation to a plot measuring 800 sq.ft. showing boundaries as plot of Brahmswaroop in East, remaining land of seller after 5 ft. in West, 20 ft. wide road in North and plot of one- Shri Atre in South.
On the basis of such sale-deed, said Mahaveer Jain 2 M. Cr. C. No. 10184/ 2016 (Ajay Soni Vs. Girdharilal & Others) came to take possession of the plot purchased by respondents No.1 and 2 and therefore, respondents No.1 and 2 have filed a private complaint before the Court of JMFC, Guna, in which cognizance has been taken vide order dated 12.01.2016 under the provisions of Sections 420 and 465 of I.P.C.
It is the contention of learned counsel for the petitioner that essentially the dispute is of civil nature and therefore, the private complaint as has been filed by respondents No.1 and 2 was not maintainable and the Trial Court should not have taken cognizance of said private complaint. He has relied on the judgment of Supreme Court in the case of Joseph Salvaraj A. Vs. State of Gujarat & Others as reported in (2011) 7 SCC 59, wherein it has been held that when FIR discloses civil dispute between the parties and several civil suits related to the matter were already pending, then the authorities were not justified in taking cognizance of an offence and the rejection of the petition under Section 482 for quashing of FIR by the High Court was lacking in propriety.
Similarly, reliance has been placed on the judgment of Supreme Court in the case of Paramjeet Batra Vs. State of Uttarakhand & Others as reported in 2013 Cr.L.R. (SC) 67, wherein the dispute was about the profit of the hotel and it's ownership. It was held that civil suit was already pending and therefore, that civil suit will take care of the issue regarding profit of the hotel and it's ownership and the plea of forgery and fabrication of the documents by the appellant can be taken care of by the Civil Court. In this background, it 3 M. Cr. C. No. 10184/ 2016 (Ajay Soni Vs. Girdharilal & Others) was directed that High Court is required to see whether the dispute is essentially of civil nature or is given a cloak of criminal offence and if a civil remedy is available and in fact adopted, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of Court.
Reliance has also been placed on the judgment of Supreme Court in the case of Rajib Ranjan Vs. R.Vijaykumar as reported in (2014) Cr.L.R. SC 563, wherein the facts were that criminal complaint was lodged after losing the civil suit for injunction and the order in the civil suit was affirmed by the High Court by rejecting the writ petition. In view of such facts, lodging of FIR was not held to be bonafide and the Supreme Court was pleased to hold that such FIR amounts to misuse and abuse of the process of law and there was an attempt by the respondents to convert a case of civil nature into criminal prosecution and therefore, the order taking cognizance and the complaint were dismissed.
Learned counsel for the petitioner has also placed reliance on the judgment of Supreme Court in the case of Mohammed Ibrahim & Others Vs. State of Bihar & Another as reported in (2009) 8 SCC 751, wherein in Para- 7, Supreme Court has held that the Courts are required to see whether the material on record prima-facie constitutes any offences against the accused. Hon'ble Supreme Court has dealt with the aspect of growing tendency of the litigants to convert civil disputes into criminal and then, it was held that if a person sells a property knowing that it does not belong to him and thereby defrauds the person who purchases the 4 M. Cr. C. No. 10184/ 2016 (Ajay Soni Vs. Girdharilal & Others) property, the person defrauded i.e. the purchaser may complain that the vendor committed the act of fraudulent cheating, but a third party who is not the purchaser under the deed, may not be able to make such complaint. It has been held that the term 'fraud' is defined in the Code and it means "deliberate deception, treachery or cheating intended to gain advantage". In such background, appeal was allowed in part and order of the Magistrate taking cognizance under Sections 420, 467, 471 and 504 of I.P.C. was quashed.
Learned counsel for respondents No.1 and 2submits that in fact the ratio of the judgments cited by the petitioner is not applicable to the facts and circumstances of the present case inasmuch as there was no pendency of a civil suit and in fact, the petitioner had sold a plot misrepresenting it's boundaries so to form the ingredients of Section 463 of I.P.C. inasmuch as false documents altering the boundaries of the plot as was purchased by Neeraj Verma has been committed while selling it in favour of Mahaveer Jain so to cause loss to respondents No.1 and 2. He has placed reliance on the judgment of Supreme Court in the case of Vijayander Kumar & Others Vs. State of Rajasthan & Another as reported in (2014) Cr.L.R. (SC) 286, wherein it has been held that availability of civil remedy cannot be a ground to quash the criminal proceedings. The real test is whether the allegations made in the complaint discloses a criminal offence or not.
In the present case, it is seen that the boundaries as have been admitted by the petitioner pertaining to the plot which was purchased by Neeraj Verma are 5 M. Cr. C. No. 10184/ 2016 (Ajay Soni Vs. Girdharilal & Others) totally different from the boundaries which have been shown to be that of the plot sold in favour of Mahaveer Jain by the petitioner acting as a Power of Attorney Holder of Neeraj Verma and therefore, in such backdrop that the petitioner has not filed the sale-deed which was executed by him in favour of Mahaveer Jain prima-facie supports the contention of the respondents that in fact, the alteration of boundaries in the sale which was concluded in favour of Mahaveer Jain from the one which was purchased by Shri Neeraj Verma, causes bonafide doubts about the forgery being committed in the sale- deed causing prejudice to the complainant and at this stage, this Court is not inclined to interfere in the complaint as it is matter of evidence which will decide whether the charges framed against the petitioner are made-out or not.
In view of such discussion and the law laid-down by Hon'ble Supreme Court in the case of Vijayander Kumar & Others (Supra), this Court is of the opinion that there is absolutely no bar on filing of a criminal complaint even if there is an angle of civil dispute specially when no civil dispute is pending between the parties.
Similarly, in the case of Rajib Ranjan (Supra), the ratio is that FIR was not found to be bonafide and was found to be in misuse and abuse of process of law.
In the present case, that is not the fact and therefore, this case is also distinguishable on facts.
Further, in the case of Mohammed Ibrahim & Others (Supra), the fact was that even Supreme Court in Para-8 accepted that there may be some civil case having ingredients of criminal offences and if so, will have to be 6 M. Cr. C. No. 10184/ 2016 (Ajay Soni Vs. Girdharilal & Others) tried as criminal offences even if they also amounts to civil disputes, therefore, since this Court is of the opinion that there are ingredients of criminal offence in the act of the petitioner as power of attorney holder of Neeraj Verma in altering the boundaries of the property which was sold in favour of Mahaveer Jain, and thus the complaint cannot be said to be totally baseless, fraudulent or malafide.
In the case of Paramjeet Batra (Supra), there was pendency of civil suit and during the pendency of civil suit on the same subject-matter, allegations of forgery and fabrication of documents were alleged and criminal case was filed; that is also distinguishable under the facts and circumstances of the present case, so also the law laid-down in the case of Joseph Salvaraj A. (Supra), wherein several civil suits were pending, where recourse to criminal proceedings was undertaken to short-circuit the pendency of civil cases; is also not applicable to the present case, therefore, this Court refuses to quash the order of taking cognizance against the petitioner.
In view of the aforesaid, this petition fails and is dismissed.
(Vivek Agarwal) Judge @PK