Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 874 (RAJ)

Dhanna Ram v. State of Rajasthan

2013-05-03

VIJAY BISHNOI

body2013
JUDGMENT 1. - This criminal misc. petition has been filed on behalf of the petitioners while challenging the order dated 22.1.2011 passed by the learned Judicial Magistrate First Class Sheoganj in Criminal Original Case No. 718/2007 whereby the learned trial court has rejected the application preferred by the petitioners under Section 239 Cr.P.C. for discharging the petitioners for the offences punishable under Sections 420 and 120B I.P.C. in a pending trial. 2. Brief facts of the case are that the respondent No. 2 has filed a complaint in the Court of Judicial Magistrate Sheoganj with the allegation that he, his wife and his brother had purchased plots No. 64, 65 and 68 through power of attorney holder of the petitioner No. 1 on 23.10.1996 and they were also given possession of the said plots. It is contended that the petitioner No. 1 has fraudulently sold the said plots to the petitioner No. 2 vide registered sale deed dated 14.3.2002 with intention to deprive the respondent No. 2, his wife and his brother from the property in question. The learned Judicial Magistrate forwarded the complaint of the respondent No. 2 for investigation under Section 156(3) Cr.P.C. The police after thorough investigation had filed a negative final report while concluding that the matter is of civil nature and no case of committing of any the criminal offence is made out against the accused persons. 3. On a protest petition preferred on behalf of the respondent No. 2, the learned Magistrate vide order dated 10.9.2007 took cognizance against the petitioners for the offence punishable under Sections 420 and 120B I.P.C. The learned trial court has thereafter framed charges against the petitioners for the offence punishable under Sections 420 and 120B I.P.C. on 24th of Oct, 2008 and the trial of the case is pending before the learned Judicial Magistrate. In the meantime the brother of respondent No. 2 Mahaveer Chand filed a civil suit for cancellation of sale deed dated 14.3.2002 executed by the petitioner No. 1 in favour of petitioner No. 2 for the plot No. 68. In the meantime the brother of respondent No. 2 Mahaveer Chand filed a civil suit for cancellation of sale deed dated 14.3.2002 executed by the petitioner No. 1 in favour of petitioner No. 2 for the plot No. 68. The said suit was registered as Civil Suit No. 78/2005, however, the learned Additional District Judge (Fast Track), Sirohi has dismissed the said suit vide judgment and decree dated 5.10.2009 and upheld the sale deed dated 14.3.2002 executed by the petitioner No. 1 in favour of petitioner No. 2 while holding that power of attorney executed by the petitioner No. 1 in favour of Fateh Singh Rao was cancelled on 1.7.1996 itself and, therefore, Fateh Singh Rao has no authority to sell the plot No. 68 to Mahaveer Chand on 23.10.1996. The learned Additional District Judge (Fast Track) Sirohi has, therefore, refused to declare the sale deed dated 14.3.2002 as void ab initio against the plaintiff. 4. After the judgment and decree dated 5.10.2009 passed by the Additional District Judge (Fast Track), Sirohi in civil suit No. 78/2005, preferred on behalf of the brother of respondent No. 2 Mahaveer Chand against the petitioners and other persons, the petitioners had filed an application under Section 239 Cr.P.C. for their discharge from the charge for which they are being tried. The learned trial court has rejected the said application vide order dated 22.1.2011 while observing that the Court has no power to review its own order as held in Adalat Prasad v. Rooplal Jindal & Ors. reported in 2004 Cr.L.R. (SC) 800. In these circumstances, the petitioners have preferred this criminal misc. petition with a prayer for quashing the proceedings pending against them before the Court of Judicial Magistrate, First Class, Sheoganj, Sirohi in Criminal Case No. 718/2007. 5. Despite service of notice, none has appeared on behalf of the respondent No. 2. 6. Learned counsel for petitioners has argued that in view of the judgment and decree dated 5.10.2009 passed by the learned Additional District Judge (Fast Track) Sirohi in Civil Suit No. 78/2005 the pendency of criminal trial against the petitioner is nothing but an abuse of process of law and, therefore, prayed that the proceedings against the petitioners pending before the learned Judicial Magistrate First Class Sheoganj be quashed. 7. 7. Learned counsel for the petitioners has invited attention of this Court towards the judgment passed by Hon'ble Apex Court in Adalat Prasad (supra) and has argued that in that very case, the Hon'ble Apex Court, while holding that the Magistrate cannot review its order of taking cognizance of framing of charge, has observed that in the absence of any review or inherent power with the subordinate criminal court, the remedy lies in invoking under Section 482 of the Code of Criminal Procedure and argued that the only remedy with the petitioners is to approach this Court by filing this criminal misc. petition under Section 482 Cr.P.C. for quashing the proceedings pending before the learned trial court. 8. The learned counsel for the petitioners has placed the reliance upon the judgments reported in 2013 Cr.L.R. (SC) 67 (Paramjeet Balia v. State of Uttarakhand & Ors.) , (2011) 3 SCC 581 (Radheshyam Kejriwal v. State of W.B.) and 1997 AIR SCW 4084 (M/s Pepsi Food Ltd. v. Special Judicial Magistrate). 9. The learned Public Prosecutor is not in position to dispute the fact that the Civil Court while adjudicating the validity of sale deed dated 14.3.2002 executed in favour of the petitioner No. 2 by the petitioner No. 1 has rejected the claim of the brother of the respondent No. 2 and upheld the sale deed dated 14.3.2002. 10. Court has considered the submissions made on behalf of the petitioners and has perused the impugned order as well as the judgment and decree passed by the learned Additional District Judge (Fast Track), Sirohi dated 5.10.2009 passed in Civil Suit No. 78/2005. 11. It is pertinent to note here that the dispute between the parties was in relation to the sale deed executed by the petitioner No. 1 in favour of the petitioner No. 2 dated 14.3.2002. The respondent No. 2 has filed a complaint while claiming that the power of attorney of petitioner No. 1 has sold the plots to him, his wife and his brother on 23.10.1996 and has also given the possession of the plot to them but later on the petitioner No. 1 has sold the said plot to petitioner No. 2 in a fraudulent manner with intention to deprive the respondent no. 2 and his family members from the plots which have already been sold to them. 2 and his family members from the plots which have already been sold to them. The brother of the respondent No. 2 has preferred a civil suit with a prayer to declare the sale deed dated 14.3.2002 executed by the petitioner No. 1 in favour of petitioner No. 2 as void ab initio against him. The learned Additional District Judge (Fast Track), Sirohi has dismissed the said suit vide judgment and decree dated 5.10.2009 while holding that the sale deed dated 14.3.2002 executed in favour of the petitioner No. 2 by petitioner No. 1 cannot be declared as void ab initio and simultaneously also held that the power of attorney executed by the petitioner No. 1 in favour of Fateh Sngh Rao also cancelled on 1.7.1996 and, therefore, Fateh Singh Rao has no authority to sell the plot in question to the brother of respondent No. 2 on 23.10.1996. In view of the judgment and decree dated 5.10.2009 passed by Additional District Judge (Fast Track) Sirohi in Civil Suit No. 78/2005, this Court feels that there is no point in continuing the proceedings against the petitioners for the offence punishable under Section 420 read with Section 120B I.P.C. for the dispute which has already been tried and decided by the competent Civil Court. The Hon'ble Apex Court in Joseph Salvaraj A v. State of Gujarat & Ors. (2011) 7 SCC 59 while dealing with case wherein an FIR was lodged for committing offence punishable under Sections 406, 420 and 506 I.P.C. and a civil suit for the same dispute was also lodged, has observed as under:- "The appellant cannot be allowed to go through the rigmarole of a criminal prosecution for long number of years, even when admittedly a civil suit has already been filed against the appellant and Respondent 4 complainant, and is still sub judice. In the said suit, the appellant is at liberty to contest the same on the grounds available to him in accordance with law as per the leave granted by the trial court." 12. Here in this case, even the suit preferred on behalf of brother of the respondent No. 2 for the same dispute has already been decided by the Civil Court. 13. Here in this case, even the suit preferred on behalf of brother of the respondent No. 2 for the same dispute has already been decided by the Civil Court. 13. Therefore, in the facts and circumstances of the case and looking to the matter from all angles, this Court is of the considered opinion that the prosecution of the petitioners for commission of alleged offence is clearly an abuse of process of law. 14. The criminal misc. petition is, therefore, allowed. The proceedings pending against the petitioners in the Court of Judicial Magistrate, First Class, Sheojang in Criminal Original Case No. 718/2007 are hereby quashed. The petitioners are discharged from the charges framed against them by the learned trial Court vide order dated 24.10.2008.Petition allowed. *******