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2012 DIGILAW 700 (MP)

SARVESH ARORA v. STATE OF M. P.

2012-07-10

ANIL KUMAR SHARMA

body2012
JUDGMENT : 1. This petition has been filed under section 482 of Criminal Procedure Code against the order dated 28-2-2012 passed by IInd Additional Sessions Judge, Shivpuri in Criminal Revision No. 76/2011 confirming the order dated 11-5-2011 passed in Criminal Case No. 459/09 by learned Judicial Magistrate First Class, Shivpuri (Shri Deepak Choudhary) by which charges for the offence punishable under sections 406, 323 and 294 of Indian Penal Code has been framed against the petitioner. 2. The respondent No. 2 has filed a private complaint against the petitioner/accused for criminal breach of trust with regard to vehicle purchased by complainant/respondent No. 2 which is financed by the petitioner/accused by selling it to another person. It is the defence of the petitioner/accused that vehicle has been sold by respondent No. 2 himself as the sale letter has been signed by him, therefore, no criminal breach of trust or any offence has been made out against him. 3. Learned counsel for the petitioner has drawn attention towards the evidence and submitted that the sale letter of the vehicle has been signed by the complainant himself, therefore, it shall be presumed that vehicle has been sold by complainant. Learned trial Court while passing order by which charges have been framed as deferred the consideration of evidence on merit till the disposal of the case. Learned counsel for the petitioner has submitted that dispute between complainant and accused are of civil nature, therefore, no criminal liability arises from the civil act of the petitioner while the learned counsel for the respondent No. 2 has cited a judgment of the Hon'ble Apex Court in the matter of State of Punjab vs. Pritam Chand and others , 2009 STPL(LE) 41367 SC, in which it has been held that for a breach of trust with regard to paddy entrusted to the accused, a criminal case may arise out of breach of contract. 4. 4. On perusal of the orders of the trial Court and learned revisional Court, it is clear that both the Courts have overlooked the provisions of section 245 of Criminal Procedure Code because case has been registered on the basis of a private complaint filed by respondent No. 2 and after taking evidence before charge under section 244 of Indian Penal Code, Court is bound to pass an order framing charge in accordance with provisions of section 245 of Criminal Procedure Code and it can frame charges only when evidence available on record. The provisions of section 245 of Criminal Procedure Code are reproduced below :- "245. When accused shall be discharged. - (1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless." 5. Therefore, looking to the provisions of section 245 of Criminal Procedure Code, Judicial Magistrate is bound to consider the evidence recorded by him and come to the conclusion that if such evidence if unrebutted would warrant the conviction of the accused, otherwise learned Magistrate has to discharge the accused. Therefore, the matter of consideration of evidence cannot be deferred till conclusion of trial. 6. Therefore, the impugned order dated 11-5-2011 passed by the learned trial court framing the charges against the petitioner is hereby quashed and learned trial Court is directed to rehear the parties and pass appropriate orders for framing of charge in the light of provisions of section 245 of Criminal Procedure Code. 7. The petition is allowed and disposed of with the aforesaid direction.