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Madhya Pradesh High Court · body

2006 DIGILAW 599 (MP)

Chandrakant Uike v. Rajesh Sharma

2006-04-26

U.C.MAHESHWARI

body2006
Judgment ( 1. ) The applicant complainant has filed this petition u/S. 378(4) of Cr.P.C. for grant of special leave to appeal against the judgment dated 9-12-2002 passed by Sessions Judge Bhopal in Criminal Appeal No. 128/02 acquitting respondent No. 2 by reversing the judgment dated 18-9-2002 passed by the Judicial Magistrate, First Class, Bhopal in Criminal Case No. 1260/02 convicting respondents u/S. 420 and 406 of the IPC and each of them was sentenced for 3 years RI with fine of Rs. 5.000/- in earlier section while two years RI in latter. ( 2. ) The case was arising out of a private complaint initiated by the applicant against respondent. As per averments of the complaint, the respondent No. 1 by executing two different receipts dated 10-6-92 and 3- 7-92 took Rs. 1,40,000/- (Rs. one lakh and fourty thousand only) from the applicant for buying a diesel jeep for him. Subsequent to it as per terms and assurance he neither purchased the jeep nor returned the sum to appellant even on demand, then a notice in this regard was given to respondent No. 1, the same was not complied with. A report was also given to Police on 1-8-1995 but of no avail. Then the complaint was filed. On recording the preliminary evidence u/Ss. 200 and 202 of Cr.P.C. the cognizance for the offence u/Ss. 420 and 406 of the IPC was taken against respondent No. 1. After his appearance the charge was framed, evidence was recorded, on appreciation of it he was held guilty and sentenced by the trial Court as said above. The same was assailed by respondent No. 1 in the subordinate appellate Court. On consideration, the appeal was allowed and the judgment of the trial Court was set aside by acquitting the respondent No. 1 from the alleged charges. Hence applicant has preferred this petition for special leave to appeal. ( 3. ) The learned counsel for the applicant has submitted that the aforesaid amount was given to respondent No. 1 under the assurance and trust for purchasing the jeep and the alleged sum was taken by respondent with aforesaid understanding. Applicant was remained under impression that the respondent will fulfil the terms of contract for which the aforesaid money was entrusted with him. But subsequently it was neither used or spent for the purpose agreed in between them nor returned to applicant. Applicant was remained under impression that the respondent will fulfil the terms of contract for which the aforesaid money was entrusted with him. But subsequently it was neither used or spent for the purpose agreed in between them nor returned to applicant. Thereby respondent No. 1 has committed the offence of breach of trust as well as cheating also. By referring depositions of some witnesses he submitted that the alleged offence was proved against the respondent No. 1 beyond reasonable doubt and he was rightly held guilty by trial Court. There was no circumstance before the subordinate Appellate Court even on reappreciation of the evidence, for setting aside the judgment of the trial Court or acquittal of respondent No. 1 and prayed for leave to appeal. ( 4. ) Having heard, on perusing the record it is apparent that alleged amount of Rs. 1,40,000/- was given to respondent No. 1 under the assurance, promise and agreement to purchase the Jeep for the applicant. So it is apparent that there was an agreement in between the parties with certain terms and conditions the same could have been oral or in writing. In evidence I have not found any circumstance showing any dishonest intention in the mind of either of the parties at the very initial stage or inception of the transaction. But subsequently the terms of transaction was broken by the respondent No. 1. Thus it was a case of breach of contract, gave a civil cause of action to applicant to approach in the Civil Court but not giving any right to file the criminal proceedings in the Criminal Court. ( 5. ) My aforesaid view is fully fortified by the decision of the Apex Court in the matter of Hari Prasad Chamaria v. Bishun Kumar Surekha, reported in AIR 1974 SC 301 in which it was held as under : "4. We have heard Mr. Maheshwari on behalf of the appellant and are of the opinion that no case has been made out against the respondents under Section 420 Indian Penal Code. For the purpose of the present appeal, we would assume that the various allegations of fact which have been made in the complaint by the appellant are correct. We have heard Mr. Maheshwari on behalf of the appellant and are of the opinion that no case has been made out against the respondents under Section 420 Indian Penal Code. For the purpose of the present appeal, we would assume that the various allegations of fact which have been made in the complaint by the appellant are correct. Even after making that allowance, we find that the complaint does not disclose the commission of any offence on the part of the respondents under Section 420 Indian Penal Code. There is nothing in the complaint to show that the respondents had dishonest or fraudulent intention at the time, the appellant parted with Rs. 35,000/-. There is also nothing to indicate that the respondents induced the appellant to pay them Rs. 35,000/- by deceiving him. It is further not the case of the appellant that a representation was made by the respondents to him at or before the time he paid the money to them and that at the time the representation was made, the respondents knew the same to be false. The fact that the respondents subsequently did not abide by their commitment that they would show the appellant to be the proprietor of Drang Transport Corporation and would also render accounts to him in the month of December might create civil liability for them, but this fact would not be sufficient to fasten criminal liability on the respondents for the offence of cheating." ( 6. ) Although the facts and nature of the transaction are different in the aforesaid decisions of the Apex Court but the principle laid down in it is directly applicable to the case at hand. Therefore applicant could not be permitted to prosecute the respondent under the criminal law on the basis of a dispute which gave him a civil cause of action. ( 7. ) Hence, I am of the considered view that an error was committed by the trial Court in holding guilty the respondent No. 1 for the alleged offences while the subordinate appellate Court has not committed any perversity or error in acquitting to the respondent No. 1 by setting aside the judgment of the trial Court. In pursuance of it, the judgment of the appellate Court does not require any interference at this stage. ( 8. In pursuance of it, the judgment of the appellate Court does not require any interference at this stage. ( 8. ) Resultantly, no special leave to appeal could be granted to the applicant hence the petition deserves to be and is hereby dismissed at the stage of motion hearing. However, applicant would be at liberty to file appropriate proceedings before the appropriate forum in accordance with law if the same is permissible. Petition dismissed as indicated above. Petition dismissed.