Madhya Pradesh High Court
Mohd. Kalim vs The State Of Madhya Pradesh on 26 July, 2017
HIGH COURT OF MADHYA PRADESH AT JABALPUR
Criminal Revision No. : 2253 OF 2015
Mohd. Kalim
- V/s -
State of Madhya Pradesh & Ors.
Present : Hon'Âble Shri Justice S.K.Palo
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Shri K.K.Pandey, learned counsel for the
petitioner.
Shri Shiv Kumar Shrivastava, learned PL for the
respondents/State.
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ORDER
( -07-2017) This revision under Section 397 r/w Section 401 of Cr.P.C has been filed to assail the order dated 12.8.2015, wherein the learned 6th ASJ, Sagar in Session Trial No.164/2015, has framed charge against the petitioner for offence under Section 467, 468, 471 & 420 of IPC. It would be appropriate to mention here that on filing of the application under Section 227 of Cr.P.C, the learned 6th ASJ vide order dated 28.12.2016, dismissed the same, stating that once the Court has proceeded under Section 228 of Cr.P.C, it cannot retract its proceeding to Section 227 of Cr.P.C.
2. Learned counsel for the petitioner during the course of arguments has stated at the bar that the Session Trial is till pending before the learned 6th ASJ Sagar.
3. Brief facts of the prosecution story are that Santosh Kumar Jain, the proprietor of Ashish Traders, Sagar lodged a report at police station Cantt. Sagar, on 17.2.2008, stating that he has cheated for a sum of Rs.31 Lacs by the accused/petitioner Mohd. Kalim. He alleged that complainant is dealing with Tendu Leaves business. He supplies Tendu Leaves to the Bidi Manufacturing Companies. On 10.7.2006, the petitioner Mohd. Kalim, resident of Raghraj Nagar, Satna, contacted the complainant and informed him that Unit No.715 of Tendu Leaves Vikatganj Umaria has been allotted to Mustkin Baig, resident of Bhadbhooja, Talaiya Road Bhopal.
4. The petitioner Mohd. Kalim is the power of attorney holder of Mustkin Baig. He showed the documents to Santosh Kumar Jain. Thereafter, a document was executed between Santosh Kumar Jain and the Petitioner Mohd. Kalim, the power of attorney holder of Mustkin Baig and an advance of Rs.31 Lacs was paid to the petitioner by draft in November, 2006. The draft was to be drawn in favour of the Managing Director M.P. Rajya Laghu Van Upaj Vyapar Vikas Sahkari Sangh Bhopal. After this agreement, the complainant Santosh Kumar Jain contacted M/s B.R. & Company Sagar and agreed to sell it to M/s B.R. & Company Sagar and received an advance of Rs.31 Lacs by draft dated 28.7.2006 in favour of M.P. State Minor Forest Produce P & D Cooperative Federation Limited Umaria. The draft was then sent to the accused Mohd. Kalim but the Tendu Leaves could not be received by the complainant. After repeated request to Mohd. Kalim, for delivery of Tendu leaves, the same has not been received. The petitioner somehow avoided the delivery of Tendu Leaves.
5. On being suspicious, the complainant tried to find out about the petitioner and he could come to know that the petitioner Mohd. Kalim is the servant of Mohd. Saeed Ahmed, resident of Rose villa Satna. Mohd. Saeed Ahmed along with Mohd. Kalim cheated the complainant and a forged power of attorney, said to be executed by Mustkin Baig was shown to him and a draft of Rs.31 Lacs was received by the petitioner and the said Tendu Leaves was obtained by Mohd. Saeed Ahmed. Thus the petitioner and Mohd. Saeed Ahmed on the basis of the forged document, cheated the complainant Santosh Kumar Jain. On this report, Crime No.129/2008 was registered for offence under Section 419, 420, 467, 471 of IPC.
6. After due investigation, charge-sheet has been filed. After committal of the case, the learned 6th ASJ Sagar, has framed charges vide impugned order as mentioned above.
7. Aggrieved by the framing of charge, the petitioner has filed this revision on the ground that the petitioner has already filed a criminal complaint case before the CJM Umaria against Santosh Kumar Jain, on the ground of the agreement dated 10.7.2006. The said agreement is not a valid one and the signature of the petitioner does not match with the signature in the agreement. This complaint is pending adjudication. Santosh Kumar Jain then preferred the Writ Petition No.1644/2006, seeking direction to the petitioner to supply the Tendu Leaves to him. Vide order dated 24.1.2007, this Court has dismissed the petition filed by Santosh Kumar Jain. Mohd. Mustkin Baig who is the proprietor of B.R. & Company, the manufacturer of Bidi No.207 situated at Civil Lines Sagar received lot of Tendu Leaves and advanced the draft of Rs.31 Lacs, which was drawn in the State Bank of India, towards the cost of Bidi. After receiving of the Tendu Leaves by B.R. & Company, the business transaction was over. Santosh Kumar Jain somehow associated with B.R. & Company in personal capacity or as business partner.
8. It is stated by learned counsel for the petitioner that the agreement dated 10.7.2006, is a forged agreement and it does not contain the signature of the petitioner. The same was prepared by the complainant Santosh Kumar Jain. The petitioner has never executed this agreement. In this regard, the petitioner has lodged the report in District-Umaria, shown as Annexure-A8. However, in Annexure-A8 at page-43, the report enclosed by the petitioner is FIR of Crime No.129/2008 dated 17.2.2008 lodged by Santosh Kumar Jain has been wrongly annexed. The petitioner further claimed that the petitioner also filed a Civil Suit before the District Judge Umaria which is Annexure-A9. On perusal of the documents, it is seen that it is a claim for recovery of Rs.1,84,112/- against Meena Pimplapure, the proprietor of M/s B.R. & Company, Manufacturers of "High Class Bidi No.207" and Narayan Prasad Pandey. The Civil Suit was instituted on 7.10.2009.
9. It is further contended by the petitioner that another Civil Suit has been filed by the petitioner against Santosh Kumar Jain, before Civil Judge Class-I Umaria on 13.1.2010, wherein the petitioner Mohd. Kalim has sought a declaration of agreement dated 10.7.2006 to be null and void. This suit was filed on 13.1.2010. Subsequently, a criminal complaint case has also been filed by the petitioner against Santosh Kumar Jain and two other persons under Section 465, 467, 468, 471 & 419 on 25.5.2009, claiming that the agreement dated 10.7.2006 is a forged agreement made by the complainant Santosh Kumar Jain. It is also claimed that the petitioner is the power of attorney holder of Mustkin Baig, Copy of the same is Annexure-P12. Further it is claimed that a civil Suit was also filed by Santosh Kumar Jain as proprietor of Ashish Traders against the petitioner Mohd. Kalim, Mohd. Saeed Ahmed and Mustkin Baig claiming recovery of Rs.16,74,000/- on the basis of the agreement dated 10.7.2006. This civil suit has been registered as Civil Suit No.1B/2009 on 9.7.2009.
10. During the course of arguments, learned counsel for the petitioner placed reliance on documents dated 12.12.2006, wherein it is acknowledged by M/s B.R. & Company about the receiving of Tendu Leaves from Mustkin Baig showing that the said Tendu Leaves have been received by M/s B.R. & company Sagar, from Mustkin Baig.
11. Per-contra, learned Panel Lawyer for the respondents/State vehemently opposed the contentions and submitted that the B.R. & Company has received the Tendu Leaves and subsequently, the same was forwarded to Uttar Pradesh, Karnataka, therefore, the petitioner has never played any forgery, nor cheated anyone.
12. Learned counsel for the petitioner placed reliance on the report of the hand writing expert Rakesh Trivedi dated 30.10.2011, wherein it is held that the signature in the agreement dated 10.7.2006 is not the signature of Mustkin Baig. Contending that the subsequent charges framed against the petitioner on the complaint of Santosh Kumar Jain is not maintainable, the same should not be allowed to proceed. In this regard he referred the following cases : V.R.Dalai & Ors. Vs. Yogendra Naranji Thakkar & Anr. 2008 AIR SCW 4634, Rajeshwar Tiwari & Ors. Vs. Nand Kishore Roy 2010 AIR SCW 5093, Mohd. Khalid Khan Vs. State of U.P. & Anr. 2015 SCW 4813, Vesa Holding Private Limited & Anr. Vs. State of Kerela & Ors. 2015 AIR SCW 2245, Lovely Salhotra Vs. NCT of Delhi & Anr. AIR 2017 SC 2595 & Ajay Pandey Vs. State of MP 2007(1) MPHT
573.
13. In the above cases, the Hon'ble Apex Court has observed that the Court may not allow the proceeding to go on, when there is dispute of civil nature. When no case is made out against the appellant/petitioner, allowing the police investigation to continue on such facts amounts to abuse of process of law.
14. Some of the documents placed on record by the petitioner are not part of the charge-sheet. Therefore, the same cannot be relied upon at this stage. The same can be discussed and taken into consideration by the trial Court at an appropriate time, if the applicant desires to submit the same before the learned trial Court.
15. It would be appropriate to observe hear that the subsequent complaint and civil suit have been filed after the FIR dated 17.2.2008 has been lodged. The Court proceeding before the learned 6th ASJ Sagar has been progressed to an advanced stage. This Court does not deem it fit to make a roving enquiry at this stage.
16. In Radhey Shyam Vs. Kunj Behari & Ors. 1989 Supp (2) SCC 572, the Full Bench of Hon'ble Apex Court has held that :
"Criminal Procedure Code, 1973 - Section 482 - Quashing of charge - At the stage of framing of charge High Court not justified in going into meticulous consideration of evidence and appreciate documents and statements filed by police - On facts, High court's conclusion about inadequacy of evidence, besides being a premature assessment of evidence, is also attributable to wrong premises on which its reasoning is based
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Order quashing charge set aside - Penal Code, 1860, Section 302 read with Section 120-B. Criminal Procedure Code, 1973 - Sections 161 and 482 - Date of recording statement of witness missing - Before recording a finding on such omission the investigation agency must be given opportunity to explain - High Court not justified in putting its assessment under Section 482."
17. Similarly, the Hon'ble Apex Court in similar circumstances in the case of Mahesh Choudhary Vs. State of Rajasthan & Anr. reported in (2009) 4 SCC 439 held as under :
"(A) Criminal Procedure Code, 1973 - S. 482
- Quashing of charge-sheet - Inherent jurisdiction of High Court - Scope and limitations -
Allegations of fraud and forgery - Held, power under is to be exercised to prevent abuse of process of court or to secure ends of justice - Court can quash charge-sheet if allegations in FIR or complaint petition do not disclose commission of offence even if on face value they are taken to be correct in their entirety - While doing so, High Court is not to embark upon appreciation of evidence but to consider only material on record as a allegations made in the FIR or the complaint petition fulfill the ingredients of the offences alleged against the accused - Further held, dispute being premiarily of civil nature is not by itself a ground to quash criminal proceedings because in cases of forgery and fraud there would always be some element of civil nature - Penal Code, 1860, Ss. 420, 467 &
468. (B) Criminal Procedure Code, 1973 - S. 482 - Quashment of charge-sheet - Materials that may be relied on - Document relied on by accused in his defence, held, may not be relied on except in very exceptional circumstances."
18. In the present case, the complainant Santosh Kumar Jain has levelled allegations against the petitioner with regard to the fact that by forging documents, the petitioner has obtained Tendu Leaves. This matter cannot be termed as a civil dispute simpliciter. In this background, the view expressed by the Hon'ble Apex Court in Jayram Vs. State of Maharashtra 2017 (2) SCC 371 may be referred profitably, in which the Hon'ble Apex Court has held as under:
"if on the basis of false and fraudulent documents a claim was made which led to award of compensation in land acquisition matter, the interest of the State was compromised or adversely affected - Hence, matter concerned could not be termed as civil dispute simpliciter - Crime in question therefore rightly registered - Proceedings not liable to be quashed - Appellant however can present his view on merits at an appropriate stage before the court concerned - ..........."
19. Considering the above situation and the legal position and for the reasons aforementioned, it would not be appropriate to set aside the order impugned. Therefore, the present revision is dismissed.
(SUSHIL KUMAR PALO) JUDGE nd