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Madhya Pradesh High Court · body

2000 DIGILAW 783 (MP)

Narpat Singh v. Sampooran Singh

2000-08-07

A.K.GOHIL

body2000
Short Note The petitioner has filed this petition under section 482 of the Code of Criminal Procedure for quashing the order dated 24.6.1999 passed by the Learned Additional Sessions Judge. Indore in Criminal Revision No. 179/99 against the dismissal of revision filed by the petitioner against respondent No. 1 against the order passed by Judicial Magistrate. First Class. Indore in Criminal Case No. 0/99 on 26.6.1999 dismissing private complaint. I have heard the petitioner and Shri S. Abhyankar, learned counsel for Respondent No. 1. None appeared for respondent No.2-State. The submission of the petitioner is that he had filed a private complaint under sections 406, 420, 467, 468 and 471 IPC before the Judicial Magistrate, First Class, Indore on the ground that respondent No. 1 entered into settlement on" 8.2.1989 for sale of House No. 28 situated at Vishnupuri Annex., Indore to the petitioner and took huge amount from the petitioner and promised the petitioner that in view of that money he will handover the vacant possession of the house by completing registration formalities in favour of the complainant/petitioner. Thereafter with a view to cheat the petitioner and also put him to undue lesses, sold the house to another person and also delivered the possession and has not returned the advance money to the petitioner and the intention of respondent No.1 was to cheat the petitioner from very beginning. He has also filed a civil suit which is pending before the Court of IV Civil Judge, Class-II, Indore. Now he has also filed this private complaint under sessions 406, 420, 467, 468 and 471 IPC. The submission of petitioner is that the learned trial Court has wrongly rejected the private complaint simply on the ground that he has already filed a civil-suit and the nature of the dispute is of civil and there is no evidence on record for committing an offence of cheating or fradulently or dishonestly inducing for taking the money and, therefore, private complaint was dismissed against which the petitioner had preferred a revision' before VII Additional Sessions Judge, Indore. The revision was fixed for hearing on 24.6.1999 and was dismissed as he came late to the Court and after dismissal of the revision he filed an application on the same day for its restoration but the same was also dismissed on the ground that the order passed by the learned trial Court is perfectly justified and no case for interference also in the revision is made out, against which the petitioner has preferred this petition for quashment of the orders under inherent powers on the ground that the learned Courts below have ignored the settled law that there is no bar for filing a criminal complaint if on the given facts a criminal case is made out even if a civil proceeding is pending for recovery of the amount. The petitioner has cited the decision reported in the case of S. Ganapathy Konar v. The State (1994 CriLJ NOC 328 : Madras;) in which it has been held that -- "in a case of cheating for the purposes of dishonest intention, accused showing intention, to sell property and asking complainant whether he wants to purchase it, complainant believing his words paying substantial amount as earnest money, on the very next day accused seller executing sale-deed in favour of others, this fact shows dishonest intention of the accused. As such complainant first purchaser can initiate criminal proceedings and need not seek only civil remedy of suit for specific performance’’. It has been held by Patna High Court in the case reported in 1990 CriLJ 773 (National Insurance Company Ltd. and others v. Narendra Kumar Jhanjhri) that-"The law is well-settled that the mere pendency of a civil proceedings concerning the matter involved is no bar to the initiation of criminal proceedings, provided the action complained amounts to a criminal offence. Of course, if the disputes between the parties is purely of a civil nature, the Courts cannot allow the parties to get the disputes settled in a criminal Court by a camouflage of the civil dispute as a criminal matter. The allegations in the complaint, however, disclose criminal offences and if they are true, the respondent cannot escape their liability under the criminal law merely because a civil suit also has been filed against them in respect of the same matter. The allegations in the complaint, however, disclose criminal offences and if they are true, the respondent cannot escape their liability under the criminal law merely because a civil suit also has been filed against them in respect of the same matter. When by his action an accused person incurs both civil and criminal liabilities, the mere fact that his civil liability is being enforced is no ground for an exemption of his criminal liability." It has been further held by the Supreme Court in the case of State of Rajasthan v. M/s Kalyan Sundaram Cemem Industries Ltd. and others (1996 (3) JT (SC) 162) that: "It is settled law that pendency of the criminal matters would not be an impediment to proceed with the Civil Suits. The Criminal Court would deal with offence punishable under the Act." Recently the Apex Court in the case of Rajesh Bajaj v. State NCT of Delhi and others. reported in AIR 1999 SC 1216 . held: "It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions. The crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. The complainant in the instant case has stated in the body of the complaint that he was induced to believe that respondent would honour payment on receipt of invoices, and that the complainant realised later that the intentions of the respondent were not clear. He also mentioned that respondent after receiving the goods have sold them to others and still he did not pay the money. Such averments would prima facie make out a case for investigation by the authorities." Therefore. it is settled position under the law that mere pendency of civil suit for recovery of amount received by the accused is no ground to bar proceedings to Criminal Court. The scope and consequences of both the proceedings are different. The Criminal Court can punish for the wrong committed and the Civil Court can compensate for the wrong. it is settled position under the law that mere pendency of civil suit for recovery of amount received by the accused is no ground to bar proceedings to Criminal Court. The scope and consequences of both the proceedings are different. The Criminal Court can punish for the wrong committed and the Civil Court can compensate for the wrong. In a commercial transaction, there can be both the liabilities. the civil liability as well as criminal liability. I have gone through the statement of the petitioner complainant recorded under section 200 of the Code of criminal procedure. In his statement he states that there was a settlement deed, EX.P/90 between the parties in which the respondent No. I-accused had promised that -- "I would hand over vacant possession by completing registration formalities in favour of Mr. Dang" against the money which he has received. Thereafter the Respondent has sold the mid property to some other person. Said fact show the dishonest intention of the accused person and for that they can be prosecuted in a criminal Court. Considering the statement of the petitioner and the material placed on record it appears that a prima facie case was made out before the trial Court to issue the process against respondent No. 1. When the trial Court has wrongly rejected his private criminal complaint on the ground that civil suit has already been filed and no case is made out for issuing the process and the dispute is of civil nature, in such circumstances this is a fit case for invoking the inherent powers under section 482 of the Code of Criminal Procedure by this Court as the learned Courts below have not properly appreciated the legal position under the law in this case. In the result. this revision is allowed. The impugned orders passed by the Courts below are set-aside and the case is remanded back to the trial Court for issuing the process to respondent No. 1 and to proceed with the case in accordance with law. Record be returned.