Madhya Pradesh High Court
Sharif Hussain Raja vs Pratap Singh Pawar on 28 September, 2012
1
HIGH COURT OF MADHYA PRADESH; JUDICATURE AT
JABALPUR, JABALPUR
M.Cr.C. No.10515/2011
Sharif Hussain Raja
Versus
Pratap Singh Pawar
***
Shri Satyam Agrawal, counsel for the applicant.
Shri Abhishek Arjariya, counsel for the respondent.
*** O R D E R 28.09.2012 The petitioner has invoked extra ordinary jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, being aggrieved by order dated 11.7.2011 passed by II Additional Sessions Judge, Sehore whereby the order of taking cognizance under Section 420 of IPC against this applicant passed by the Judicial Magistrate First Class, Sehore, was affirmed, with a prayer for setting aside the aforesaid order and further prayer for quashment of the private complaint pending against the applicant.
Facts, in short, giving rise to this petition are that the respondent/complainant has filed a private complaint against this applicant in the Court of Judicial Magistrate First Class, Sehore with an allegation that applicant has entered into an agreement for sale of agricultural land situated in Village Ramgadh, Post Birjisnagar, Tahsil Sehore bearing Khasra No. 99, 110, 111 admeasuring 114 acres for total consideration amount of Rs. 17,09,000/, out of which Rs. 4 lacs has been given as advance. It was further pleaded that applicant told respondent that he is having a power of attorney of real owner. On 2 the basis of the aforesaid statement of the applicant, respondent believed him and gave Rs. 4 lacs as advance and asked him to execute the sale deed but applicant intentionally avoided the execution of sale deed. Thereafter, the respondent came to know that the applicant has no power of attorney executed by the real owner in his favour. It is further pleaded that applicant dishonestly induced the respondent to deliver the advance of Rs. 4 lacs and thereby he deceived him. Initially, learned Judicial Magistrate First Class recorded the evidence under Section 202 of the Cr.P.C. (AnnexureA/2) and dismissed his complaint. Thereafter, respondent/complainant had filed the revision petition before the Sessions Court and same was allowed vide order dated 10.5.2010 (AnnexureA/6). Against the aforesaid order, the applicant had filed a criminal revision No. 922/2010 before this Court and same was allowed vide order dated 28.9.2010. The order passed by the Additional Sessions Judge was set aside and also directed the Sessions Court to rehear the revision petition filed by the respondent. In compliance of the order of this Court, the Additional Sessions Judge heard the revision petition and allowed the same vide order dated 8.11.2010 and learned Magistrate was directed to conduct further inquiry. Thereafter, learned Magistrate took the cognizance under Section 420 of the IPC against this applicant vide order dated 28.3.2011. Being aggrieved by the aforesaid order, the applicant has preferred this revision petition before the Sessions Court which was dismissed vide order dated 11.7.2011. Hence this petition.
Learned counsel for the applicant has submitted that the trial Court as well as Revisional Court have committed illegality in passing the impugned order. It is further submitted that there is no prima facie evidence on record to show the intention of applicant to deceive the respondent, was in existence at the time of execution of agreement. It is further submitted that at the time of execution of 3 agreement applicant wrote in the agreement itself that land was belonging to one Brijkishore Chaturvedi. It is further submitted that Dr. Pramod Shrivastava, witness of complainant, stated that when applicant took the advance of Rs. 4 lacs, respondent had telephonic talk with Brijkishore Chaturvedi, who told him that respondent may purchase the aforesaid land. However, it is further submitted that after execution of the agreement applicant has not executed the sale deed. On the basis of the aforesaid facts, it was argued that there was no intention to deceive the respondent at the time of execution of agreement, therefore, no case under Section 420 of IPC is made out. In this context he placed reliance on I.LR (2012) MP 1766, Namrata Chopra (Mrs.) Vs. Mr. Ashfaz Ahmed Qureshi. It is further submitted that a Civil Suit is also pending between the parties vide AnnexureA/3 wherein applicant/defendant and one of the plaintiff had entered into a compromise, therefore, this matter was of a civil nature. If applicant failed to honour an agreement to sell the land, he cannot be said to have committed the offence of cheating. He placed reliance on 2008 (III) MPJR 197, Tej Singh & others Vs.Rewa Ram & others. It is further submitted that in these circumstances if the aforesaid criminal proceeding shall remain continued it amount to abuse of process of Court and same is liable to quash under Section 482 of the Cr.P.C. To buttress the aforesaid contention he placed reliance on AIR 2008 SC 251, Inder Mohan Goswami and another Vs. State of Uttaranchal and others.
On the other hand learned counsel appearing on behalf of respondent supported the order passed by the Courts below and submitted that at the time of framing of charge the material produced on behalf of accused can be considered. It is further submitted that the High Court cannot consider the said material produced on behalf of the accused for the purpose of invoking its jurisdiction under 4 Section 482 of the Cr.P.C. for quashing the charge framed against the applicant. He placed reliance on (2008) 10 SCC 109, Bharat Parikh Vs. Central Bureau of Investigation and another and prays for dismissal of the petition.
I have heard the parties at length, perused the impugned order and other material placed on record alongwith the private complaint AnnexureA/1 filed by the respondent, statements of respondent and Dr. Pramod Shrivastava recorded under Section 202 of the Cr.P.C. The basic document and cause of action is the agreement to sale (AnnexureA/12). Though complainant pleaded in his complaint (AnnexureA/1) that respondent told him at the time of executing the agreement that he has power of attorney executed by real owner of the property in his favour. Same thing he stated in his statement recorded under Section 200 of the Cr.P.C. On perusal of agreement (AnnexureA/12), it reveals that no such averment of power of attorney find place in the aforesaid agreement. On the contrary, it is specifically written that land belonged to one Brijkishore Chaturvedi. From perusal of the statement of Dr. Pramod Kumar Shrivastava recorded under Section 202 of the Cr.P.C., it reveals that respondent had a telephonic talk with Brijkishore Chaturvedi, who told him that he may purchase the land. From the aforesaid evidence one can easily infer that on the date of the agreement land was in the name of Brijkishore Chaturvedi and before entering into a contract, respondent/complainant had a talk with Brijkishore Chaturvedi, who told him that he may purchase the aforesaid land shows that initially there was no intention to deceive the respondent at the time of execution of agreement. Thereafter, when applicant had not complied with condition of the agreement, respondent may file a civil suit against the applicant and same has filed by him. No doubt from the same set of facts may give rise to both civil and criminal liability but 5 for the purpose of criminal liability mens rea is an essential ingredient of offence of cheating as held by this Court in the case of I.LR (2012) MP 1766, Namrata Chopra (Mrs.) Vs. Mr. A.A. Qureshi.
Now I come to next point of exercising the jurisdiction under Section 482 of the Cr.P.C. by this Court.
Learned counsel for the respondent vehemently argued that at this stage the material produced by accused/applicant cannot be considered and he buttress his argument by placing reliance on (2008) 10 SCC 109, Bharat Parikh Vs. Central Bureau of Investigation and another and (2009) 13 SCC 729, VishnuDutt Sharma Vs. Daya Sapra (Smt) . No doubt during exercising the jurisdiction under Section 482 of Cr.P.C., the High Court must keep in mind that after the stage of framing of charge, the evidence has to be led on behalf of the prosecution to prove the charge and at that time material produced on behalf of the accused may be considered but facts of this case is squarely different. In this case material was not produced by the accused/applicant but same material is in existence since inception i.e. execution of agreement to sale (AnnexureA/12) and further the respondent/complainant and his witness Dr. Pramod Shrivastava disclosing in their statements that respondent had a telephonic talk with Brijkishore Chaturvedi before entering into an agreement. In these circumstances it cannot be said that material was produced later on by accused/applicant. Therefore, principle laid down in the case of Bharat Parikh (supra) is not applicable to the facts of this case. On the contrary, however, the principle laid down in the case of AIR 2008 SC 251, Inder Mohan Goswami and another Vs. State of Uttaranchal and others is applicable to the facts of this case. In this case also, there was no dishonest intention of the applicant at the time of entering into an agreement with the 6 applicant. Mere fact that he could not keep his promise later on it cannot be presumed that he all along had a culpable intention to break the promise from the beginning.
Considering the aforesaid facts and circumstances of the case, I am of the view that it is a civil dispute between the parties and if the criminal proceeding will remain continued it will amount to harassment and abuse to process of Court.
Thus, the petition is allowed and private compliant filed by the respondent under Section 420 of the IPC pending against the applicant in the Court of JMFC, Sehore, is hereby quashed.
(G.S. Solanki) JUDGE ravi