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Madhya Pradesh High Court · body

2014 DIGILAW 41 (MP)

Manoj Jain v. State of M. P.

2014-01-08

B.D.RATHI

body2014
Judgment: 1. Petitioner has filed this petition by invoking the powers of this Court under Section 482 of the Code of Criminal Procedure, 1973 (for short "the Code") for seeking a relief that the impugned order dated 13-5-2013 (Annexure P-1) passed by the Judicial Magistrate, First Class, Gwalior under Section 156(3) of the Code be quashed and the FIR registered in compliance of the above mentioned order as Crime No. 118/2013 at Police Station Vishwavidayalaya, Gwalior for the offence punishable under Sections 420 and 406 of IPC (Annexure P-2) also be quashed. The facts in brief are that as per the allegations made in the private complaint filed by the respondent No. 2, an agreement of sale was executed by the petitioner in favour of the respondent No. 2 and in pursuance of it, a sum of Rs. 2,00,000/- was paid as a token of advance of the sale consideration and a receipt for the same was also issued, but neither the sale-deed was executed nor the advance money was returned back, therefore, the private complaint was submitted by alleging that the petitioner has committed the offence of criminal breach of trust. 2. Having regard to the arguments advanced by the learned Counsel for the parties, the entire matter has been perused. 3. It is submitted by learned Counsel appearing on behalf of the petitioner that from a bare perusal of the impugned order dated 13-5-2013 (Annexure P-1), it is clear that it was passed mechanically and without application of mind. Learned Magistrate failed to see that the complaint filed before him was disclosing any ground in regard to cognizable offence or not. By passing the above mentioned order, it was also directed by the learned Magistrate that a case be registered against the petitioner, but such an order could not have been passed under Section 156(3) of the Code. 4. It was also submitted by the learned Counsel for the petitioner that on perusal of the complaint filed by the respondent No. 2, dated 17-5-2013 it reflects that the entire matter was in regard to civil dispute in nature and no ingredients of criminal nature were there, therefore, FIR registered against the petitioner may be quashed. 5. 4. It was also submitted by the learned Counsel for the petitioner that on perusal of the complaint filed by the respondent No. 2, dated 17-5-2013 it reflects that the entire matter was in regard to civil dispute in nature and no ingredients of criminal nature were there, therefore, FIR registered against the petitioner may be quashed. 5. In support of his contention, he has placed reliance on the following cases:-- (i) Majjal vs. State of Haryana, (2013) 6 SCC 798 ; (ii) Maksud Saiyed vs. State of Gujarat and others, (2008) 5 SCC 668 ; (iii) Arun Kumar Jain vs. Dinesh Tripathi and others, 2010 (2) MPLJ 621 ; (iv) Anil Mahajan vs. Bhor Industries Ltd. and another, (2005) 10 SCC 228 ; (v) State of Haryana and others vs. Bhajanlal and others, 1992 Supp (1) SCC 335; (vi) Suresh vs. Mahadevapra Shivappa Danannava and another, (2005) 3 SCC 670 ; (vii) Rishi Anand and another vs. Govt. of NCT of Delhi and others, (2002) 4 SCC 72 ; and (viii) Joseph Saharaj A. vs. State of Gujarat and others, (2011) 7 SCC 59 . 6. On the contrary, petition has been opposed by the learned Counsel, Shri Sharma appearing on behalf of the respondent No. 2 on the ground that in passing the impugned order some irregularity may be occurred, but only on that basis the entire proceedings cannot be said to be vitiated. It was also urged by the learned Counsel that a case has already been registered against the petitioner and the matter is under investigation, therefore, no interference can be made by this Court by invoking the powers under Section 482 of the Code. In support of his contention, he has placed reliance on the decisions reported in (2005) 13 SCC 540 , State of Orissa vs. Saro Kumar Sahoo and (2012) 11 SCC 252 , Om Kr. Dhankar vs. State of Haryana and another. 7. After taking into consideration of the entire arguments advanced by learned Counsel for the parties and perusal of the entire material available on record, in the considered opinion of this Court, this petition deserves to be allowed. 8. Dhankar vs. State of Haryana and another. 7. After taking into consideration of the entire arguments advanced by learned Counsel for the parties and perusal of the entire material available on record, in the considered opinion of this Court, this petition deserves to be allowed. 8. So far as the first objection raised by the learned Counsel for the petitioner is concerned, certainly on perusal of the impugned order dated 13-5-2013 passed by the learned Magistrate, it appears that he has not applied the mind simply because he has allowed the application filed under Section 156(3) of the Code and forwarded the complaint to the concerned Police Station to register and investigate the case, but in doing so, he has not assigned any reason that on what basis such an order was being passed. If the facts alleged in the complaint were thoughtfully considered then certainly, the impugned order could not have been passed by the learned Magistrate. But, only on this sole ground, the entire FIR cannot be quashed. 9. So far as the second ground is concerned, it is settled law and the Hon'ble Apex Court in the case of State of Haryana and others (supra), held that the powers under Section 482 of the Code can be invoked for quashment of FIR, where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 10. In this case, on perusal of the entire complaint, which was forwarded by the learned Magistrate for registration and in compliance of that Crime No. 118/2013 at Police Station Vishwavidayalaya, Gwalior for the offence punishable under Sections 420 and 406 of IPC, was registered against the petitioner, Manoj Jain, seems that the entire dispute was civil in nature. At best, the respondent No. 2 may file a civil suit for specific performance of contract or for recovery of amount. Ingredients for criminal offence are prima facie not made out. 11. In view of the above, the judgments relied upon by the learned Counsel for the respondent No. 2 are not helpful. Resultantly, this petition succeeds and is allowed. At best, the respondent No. 2 may file a civil suit for specific performance of contract or for recovery of amount. Ingredients for criminal offence are prima facie not made out. 11. In view of the above, the judgments relied upon by the learned Counsel for the respondent No. 2 are not helpful. Resultantly, this petition succeeds and is allowed. The impugned order dated 13-5-2013 (Annexure P-1) passed by the Judicial Magistrate, First Class, Gwalior and the FIR registered in compliance of the above mentioned order as Crime No. 118/2013 at Police Station Vishwavidayalaya, Gwalior for the offence punishable under Sections 420 and 406 of IPC (Annexure P-2) are hereby quashed.