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Madhya Pradesh High Court · body

2014 DIGILAW 265 (MP)

Amar Singh Rajput v. Chandrakant Singh

2014-03-04

N.K.GUPTA

body2014
ORDER 1. The applicant has preferred the present petition under section 482 of CrPC against the order dated 30.3.2013 passed by the learned Judicial Magistrate First Class, Jabalpur in unregistered criminal complaint case of the year 2010 (Amar Singh Rajput v. Chandrakant Singh & others) whereby the complaint filed by the applicant for the offence under sections 420, 467, 468, 471 read with sections 34 and 120B of IPC was dismissed under section 203 of CrPC. The applicant has also challenged the order dated 26.9.2013 passed by the learned 8th Additional Sessions Judge, Jabalpur whereby the Revisionary Court directed the trial Court to register the complaint under sections 468 and 471 of IPC. 2. The brief facts of the case are that the applicant moved a criminal complaint before the trial Court that a contract took place between the applicant/complainant and one Narendra Kumar Dubey and his associates that Narendra Kumar Dubey would sell a property in the tune of Rs.7 lakhs and in the contract an overwriting was done and sale price was shown to be Rs.9,48,000/-. The applicant did not have any knowledge that a fake sale price was shown in the sale deed by manipulation. Thereafter a loan of Rs.7,50,000/- was also passed by the respondents No.1 and 2. It was alleged that for seeking higher loan, the sale price was shown to be at higher side. After getting a sum of Rs.5,20,000/- from the Bank, the respondents No.3 to 5 did not start construction and they were not intended to provide that property to the applicant. The applicant has also moved an application before the Consumer Forum, and therefore vide order dated 30.6.2010 the Consumer Forum directed the applicant to pay a sum of Rs.1,80,000/- to the respondents No.3 to 5 and also deposit the installments of the loan and thereafter he would be entitled to get the possession of the property. Hence, the applicant has pleaded that a cheating was done and forgery in the contract deed was made by the respondents. Therefore, a complaint for the offence under sections 420, 467, 468, 471 read with sections 34 and 120B of IPC was filed against the respondents. 3. Hence, the applicant has pleaded that a cheating was done and forgery in the contract deed was made by the respondents. Therefore, a complaint for the offence under sections 420, 467, 468, 471 read with sections 34 and 120B of IPC was filed against the respondents. 3. The learned JMFC Jabalpur after considering the evidence under sections 200 and 202 of IPC vide order dated 30.3.2013 directed that the matter was of civil nature and no offence was made out, therefore dismissed the complaint under section 203 of CrPC. The learned 8th Additional Sessions Judge, Jabalpur vide order dated 26.9.2013 partly allowed the revision and directed the trial Court to register the case under sections 468 and 471 of IPC and to proceed with the case. 4. I have heard the learned counsel for the applicant on the question of admission. 5. At present the applicant has an order in his favour relating to offence under sections 468 and 471 of IPC and the respondents did not prefer any revision or petition under section 482 of Cr.P.C. against that order, and therefore there is no need to discuss the matter relating to offence under sections 468 and 471 of IPC. At present, it is to be seen as to whether the offence under sections 420, 467 of IPC is made out against any of the respondents either directly or with the help of sections 34 or 120B of IPC. 6. After going through the evidence led by the applicant before the trial Court and the order passed by the Chairman, Consumer Forum, it would be apparent that the entire matter is of civil nature and the respondents could not show relating to reason of manipulation and for enhancement of cost of the property agreed between the parties. However, the learned JMFC has discussed the matter in detail that the amount of Rs.7,50,000/- was obtained by the applicant with the help of that manipulation in the contract deed. If the entire contract was of Rs.7 lakhs, then the Bank concerned could not grant of loan of Rs.7.5 lakhs. However, the learned JMFC has discussed the matter in detail that the amount of Rs.7,50,000/- was obtained by the applicant with the help of that manipulation in the contract deed. If the entire contract was of Rs.7 lakhs, then the Bank concerned could not grant of loan of Rs.7.5 lakhs. According to the policy of loan, it would be apparent that the Bank provides some percentage of the sale price of the property and the remaining percentage is to be paid by the consumer in the name of margin money, and therefore if the manipulation in the contract deed would not have taken place, then the applicant could not get the loan amount of Rs.7.5 lakhs. Hence, it would be apparent that the applicant himself participated in the crime if committed. It is not possible that the respondents would have given loan to the applicant without his application and loan was taken directly by the builder from the Bank without knowledge of the applicant. Under such circumstances, if the cheating was done, then it was done with the HDFC Bank and it was done by the applicant along with the respondents, otherwise no such loan of Rs.7.5 lakhs could be sanctioned. 7. For constitution of offence under section 420 of IPC, there should be an element of cheating between the accused and the victim and there should be a financial lose caused by the accused to the victim by that cheating. In the present case, no cheating was done with the applicant, on the contrary he obtained sanction of the loan amount of Rs.7.5 lakhs by making such interpolation in the contract deed so that he would be free from depositing margin money for purchase of the property. Thereafter the builder took the advantage of that modified contract deed which was interpolated for getting higher amount of loan from the Bank. Therefore, it would be apparent that the intention of the builder was changed after sanction of the loan, and therefore it is a matter of civil nature that the builder changed his view from the original contract, but when interpolation in the contract deed was made, then it was very well in the knowledge of the applicant and therefore no cheating was done either by the builder or by the bank authorities. Hence, prima facie no offence under section 420 of IPC is made out against any of the respondents. Therefore, both the Courts below have rightly found that no offence under section 420 of IPC is made out against the respondents. 8. So far as the offence under section 467 of IPC is concerned, forgery if done to create valuable security, will etc, then such offence would be made out, otherwise offence under section 468 or 465 of IPC would be made out. In the present case, the applicant failed to prove that any valuable security etc. was created or forgery was done with that purpose. As discussed above, interpolation in the contract deed was made so that the applicant may get a higher amount of loan from the HDFC Bank, and therefore that document was nothing, but a document prepared for cheating, and therefore at the most offence under section 468 of IPC could be made out which was done against the HDFC Bank. In the present case, no valuable security etc. was created by any of the parties, and therefore no offence under section 467 of IPC is made out against the respondents prima facie. Under such circumstances, if both the Courts below did not register the complaint for the offence under section 467 of IPC, then no illegality has been done by any of the Court below. 9. On the basis of the aforesaid discussion, the complaint filed by the applicant could not be registered for the offence under sections 420 and 467 either directly or with the help of section 34 or 120B of IPC. Under such circumstances, there is no any basis so that any interference can be done in the order of the revisionary Court. Hence, the present petition filed by the applicant under section 482 of CrPC cannot be accepted and it is to be dismissed at motion stage. 10. Though the respondents did not file any revision or petition under section 482 of CrPC against the order of the revisionary Court, but it is apparent that the learned Additional Sessions Judge directed to register a complaint for the offence under sections 468 and 471 of IPC, whereas the learned Additional Sessions Judge could not take cognizance of any case. The right to take cognizance is vested in the Judicial Magistrate First Class. The right to take cognizance is vested in the Judicial Magistrate First Class. Under such circumstances, no such order could be passed by the learned Additional Sessions Judge, Jabalpur, and therefore, it is the duty of this Court under the inherent powers to modify such order. 11. Under such circumstances, the present petition filed by the applicant Amar Singh Rajput under section 482 of CrPC is dismissed at motion stage with a direction that the order dated 26.9.2013 passed by the learned Eight Additional Sessions Judge, Jabalpur is modified that the Magisterial Court shall give an opportunity to the applicant to lead evidence under sections 200 and 202 of CrPC if he wants to lead further and thereafter the Magisterial Court shall pass an appropriate order under section 203 or 204 of CrPC as the case may be according to the facts and circumstances of the case. The Magisterial Court shall not be prejudiced with the observations given by either revisionary Court or this Court. 12. A copy of this order be sent to both the Courts below along with their records for information and compliance. 13. The Magisterial Court is directed to proceed with the case accordingly. The applicant is directed to remain present before the Magisterial Court to prosecute the matter on 25.3.2014, and therefore the office is directed that the copy of this order and the record of the Magisterial Court should be reached to the concerned Court before that date given by this Court.