Madhya Pradesh High Court
Madhusudan Chouhan vs Smt. Snageeta Mathur on 19 August, 2019
Author: Vivek Rusia
Bench: Vivek Rusia
1
HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE
M.Cr.C.No.10793/2015
(Madhusudan Chouhan Vs. Smt. Sangeeta Mathur)
Indore, Dated: 19.08.2019
Shri Amit Singh Sisodia, learned counsel for the
petitioner.
Shri Padmanabh Saxena, learned counsel for the
respondent.
The applicant has filed the present petition under
Section 482 of the Cr.P.C., 1973 against the order dated
13.01.2015 passed by 1st Additional Sessions Judge, Ratlam
whereby the revision has been dismissed and the order
dated 12.07.2011 passed by the JMFC, Ratlam in Criminal
Case No.1276/2009 taking cognizance under Section 420 of
the IPC has been affirmed.
Facts of the case, in short, are as under:
The respondent filed an application under Section 200 of the Cr.P.C before the JMFC, Ratlam seeking cognizance against the present petitioner, his wife and son under Section 408, 417, 420, 487, 488, 471, 120-B of IPC. As per averment made in the complaint, the respondent and the petitioner are known to each other since 2004. At that time, the son of the present petitioner was living in Jaipur, (Rajasthan). The respondent was also residing in Jaipur (Rajasthan). The present petitioner used to visit Jaipur to meet his son Aniket who was studying BDS in Jaipur. As, the son of the petitioner was living with the respondent 2 since April 2006, therefore, they developed a good family terms. In Jaipur the petitioner disclosed that he is not in a position to repay the loan to the bank, therefore, he is interested in selling his house situated at 203, Goyal Vihar, Khajrana, Indore. The respondent agreed to purchase the said house in Rs.15.00 lac, though, the actual market value of the house was Rs.16.50 lac. The petitioner told the respondent that one Praveen Choudhary is living in the said house as tenant and if she wants he may continue as a tenant and he will pay the rent to her. Thereafter, petitioner and respondent both came to Indore and purchased a stamp paper on 01.12.2006 and got executed tenancy agreement between respondent and Praveen Choudhary. Thereafter, they came to Ratlam where respondent paid Rs.5.00 lac in cash to the petitioner and agreed to pay the balance amount in Jainpur. The respondent further pleaded that in Jaipur she gave a cheque of Rs.5.25 lac on 15.02.2006 and thereafter, a cheque of Rs.4.75 lac on 21.02.2006 to the present petitioner. After receiving the said amount the petitioner avoided to execute the sale deed in favour of the petitioner. She further came to know that from the aforesaid amount, the petitioner has repaid the loan and now he is not neither willing to return the said amount nor executed the sale deed in her favour, hence, he cheated her for which he is liable to be punished under Section 408, 417, 420, 487, 488, 471, 120-B of IPC alongwith his wife Meena and son 3 Aniket Chouhan.
In support of complaint, the respondent examined herself. On 27.08.2008 Smt. Sindhu Bala Mathur as Witness No.2, Narendra Kumar as Witness No.3, Gaurav Mathur as Witness No.4. After examining the material on record, the learned JMFC vide order dated 09.02.2009 has dismissed the complaint and discharged the accused.
Being aggrieved by the aforesaid order of discharge the respondent preferred a criminal revision before the session Court. By order dated 17.02.2009, the learned 2 nd ADJ came to the conclusion that the present petitioner and other accused have rightly been discharged from Section 406, 467, 468 & 471 of IPC but the petitioner alone is liable to be prosecuted under Section 420 of the IPC because there is sufficient material against him but the trial Court has committed error while dismissing the entire complaint under Section 203 of IPC. Vide order dated 17.03.2009, leanred ASJ has set aside the order dated 19.02.2009 and remanded the case to the trial Court with the direction to register an offence under Section 420 of IPC against the petitioner.
After the aforesaid order, the learned JMFC vide order dated 12.07.2011 took a cognizance under Section 420 of IPC against the present petition.
Being aggrieved by the order dated 12.07.2011, the petitioner filed a criminal revision before the Additional Sessions Judge. Vide order dated 13.01.2015, the ASJ has 4 dismissed the revision, hence, the present petition under Section 482 of the Cr.P.C. before this Court.
While pursuing the aforesaid complaint and revision, the respondent also filed a civil suit against the petitioner before the ADJ, Ratlam for recovery of Rs.10.00 lac in respect of the same transaction of sale of House No.203, Goyal Vihar, Khajrana, Indore. Vide judgement dated 30.06.2016, the civil suit has been dismissed with the findings that the amount of Rs.10.00 lac given vide two cheques dated 15.02.2006 and 20.02.2006 was not in respect of agreement to sale of the said house. The aforesaid cheques were paid for repayment of the loan taken by the respondent from the present petitioner.
Rival Submissions...
Shri Amit Singh Sisodia, learned counsel for the petitioner submitted that the respondent has wrongly filed the complaint against the present petitioner in respect of a dispute of civil in nature. She has misused the process of law by filing a complaint. Learned JMFC had rightly dismissed the complaint vide order dated 09.02.2009 but the learned ADJ without issuing notice to the present petitioner has wrongly set aside the order dated 09.02.2009. He further submitted that even under Section 398 the Session Court is not having power to frame the charges and direct the Magistrate to proceed with the trial. The revisional Court has committed illegality and acted beyond its jurisdiction in reversing the order of Magistrate 5 and directing him to take cognizance for the offence punishable under Section 420 of IPC. In support of his contention he has placed reliance over the judgement passed by this Court in case of Rewaram Vs. State of M.P.,reported in (2004) 4 MPLJ 351 and Another judgement passed in the case Narendra Jain & Anr. Vs. Shri Sudarshan Foods Pvt. Ltd. & Another, reported in 2008 Cr.L.R (MP) 681.
Shri Amit Singh Sisodia, learned counsel appearing on behalf of the petitioner further argued that learned Magistrate has wrongly framed the charge under Section 420 of IPC. No cause of action accrued at Ratlam as the so called transaction took place either at Jaipur or at Indore. The learned Session Court has also wrongly dismissed the revision without appreciating that the so called dispute between petitioner and respondent is purely of a civil nature and filing of complaint case is nothing but a misuse of process of law. At that relevant point of time the civil suit was also pending for recovery of amount of Rs.10.00 lac but now the suit has also been dismissed with the finding that there was no agreement to sale between petitioner and respondent in respect of sale of the said house, hence, entire process of filing a complaint till framing of charges is fully without jurisdiction, misuse of process of law, hence, liable to be set aside.
Per contra, Shri Padmanabh Saxena, learned counsel for the respondent urged that the petitioner has 6 not filed the present petition under Section 482 of the Cr.P.C against the order dated 17.03.2009, therefore, he cannot assail the aforesaid order before this Court. After the aforesaid order, he appeared before the JMFC and argued on discharges. Learned JMFC has independently examined the complaints and the evidence came on record and came to the conclusion that the prima-facie offence is made out and the petitioner is liable to be tried under Section 420 of IPC. Being aggrieved by the aforesaid order dated 12.07.2011, criminal revision was filed but the Session Court has rightly dismissed the revision, therefore, the present petition though it is filed under Section 482 but it is like a revision and under Cr.P.C the second revision is not maintainable. Against the dismissal of the suit, vide judgement and decree dated 30.06.2016 the respondent has field the first appeal before this Court and the same has been admitted for final hearing, hence, this petition under Section 482 be dismissed and trial Court be directed to proceed with the trial.
Appreciation and conclusion:
As per the allegations made in the complaint, the present petitioner gave a proposal to sale his house to the respondent at Jaipur. Thereafter, they came to Indore and tenancy agreement was executed between respondent and the tenant who is residing in the said house, which made to believe her that petitioner is bona-fidely interested in selling the house to her in Rs.15.00 lac. According to her, 7 they came to Ratlam and where she paid Rs.5.00 lac in cash to the petitioner and thereafter, they came to Jaipur where she paid Rs.10.00 lac by way two cheques. On the basis of same pleadings, she filed a civil suit before the ADJ, Ratlam for recovery of only Rs.10.00 lac. In the said civil suit the present petitioner came up with the defence that the respondent wanted to purchase a Hospital at Jaipur and for which she demanded the amount of Rs.10.00 lac as loan from him. Since, he sold the ancestral house on 07.10.2005 and he was money, therefore, he gave Rs.10.00 lac to the respondent and by way of security she gave two cheques to him. He never agreed to sale the house to the respondent. After appreciating the evidence came on record, the learned ADJ has dismissed the suit vide judgement dated 30.06.2016. The learned ADJ has recorded the finding that before issuance of cheque the present petitioner had already repaid his loan to the bank on 10.02.2006 and 15.02.2006, therefore, the respondent has failed to prove that he agreed to sale the house as he was in need of money for repayment of loan to the bank.
There is no agreement to sale between the petitioner and respondent for sale of house No.203, therefore the question of payment of amount of Rs.5.25 lac and Rs.4.25 vide two cheques cannot be accepted, therefore before the civil Court the respondent has utterly failed to prove any agreement with the present petitioner for sale of the house, therefore, the question of cheating by the present 8 petitioner does not arise.
Initially, the learned Magistrate vide order dated 09.02.2009 discharged the petitioner and other two accused. Thereafter, the respondent preferred a Revision No.52/2009 and it is evident from the order that without notice to the present petitioner the ASJ, vide order dated 17.03.2009 has set aside the order dated 09.02.2009 and directed the JMFC to proceed with the trial against the petitioner under Section 420 of IPC. In view in view of the law laid down by this Court in case of Rewaram (supra) and Narendra Jain (supra), the revisional Court is having power to remand the case back for further enquiry only in three conditions Firstly when the complaint is dismissed under Section 203 of the Cr.P.C, secondly, when compalint under Section 203(4) for want of payment of process free, thirdly, when the accused is discharged at the stage of framing of charges.
Though the petitioner has not specifically challenged the order dated 17.08.2009 in this petition filed under Section 482 of Cr.P.C, but he is praying for quashment of the entire complaint registered against him under Section 420 of IPC. The learned Magistrate after the remand on the basis of order passed by the ASJ has framed the charge under Section 420. Even under Section 482 of the Cr.P.C the High Court is having vide power to pass the order in the interest of justice where the High Court finds that there is a misuse of process of law, therefore, under Section 9 482 can examine the validity of order dated 17.03.2009.
As per the averment made in the complaint, the transaction between petitioner and the respondent is purely of a civil nature and for which the respondent filed the civil suit also for recovery of the amount of Rs.10.00 lac. She has lost the civil suit and first appeal is pending. The Apex Court in its recent judgement passed in the case of The Commissioner of Police & Others Vs. Devendra Anand & Others (Cr.A.No.834/2017, decided on 08.08.2019) has held that the criminal complaint is nothing but a misuse of process of law where the dispute is purely of a civil nature. Relevant portion of the aforesaid judgement is reproduced below:
"4. Having heard the learned counsel appearing on behalf of the parties at length and considering the material on record, we are of the opinion that the criminal proceedings initiated by respondent No. 1 - original complainant is nothing but an abuse of the process of law for settling a civil dispute.
4.1 Even considering the nature of allegations in the complaint, we are of the firm opinion that no case is made out for taking cognizance of the offence under Section 420/34 IPC. The case involves a civil dispute and for settling a civil dispute, the criminal complaint has been filed, which is nothing but an abuse of the process of law."
Therefore, in view of the above, present M.Cr.C. is allowed. The complaint filed against the petitioner is hereby quashed. No order as to cost.
(VIVEK RUSIA) Judge Jasleen Digitally signed by Jasleen Singh Saluja Date: 2019.08.22 17:32:46 +05'30'