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2015 DIGILAW 175 (MP)

Prabhulal Gupta v. Ganeshdeen Patel

2015-02-09

M.K.MUDGAL

body2015
JUDGMENT : M.K. Mudgal, J. 1. The petitioner has filed this petition under Section 482 of the Code of Criminal Procedure for quashing the proceedings of criminal case bearing No.546/2009 pending before the Court of Judicial Magistrate First Class, Anuppur against the petitioner accused under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'). 2. The facts of the case, in brief, are that the respondent-complainant filed a criminal complaint dated 13.7.2009 Annexure A/1 under Section 138 of the Act against the petitioner-accused stating that the petitioner- accused received a sum of Rs.13,52,000/- by cheque and cash on the pretext of securing him an area of agriculture land at Village Samatpur and also assuring that he would ensure that possession of the land would also be given to him and if he fails to do so he would return the money paid to him. Though the land was purchased vide Annexure A/4 but the possession of the land could not be secured to the respondent- complainant. On respondent/complainant's asking the petitioner- accused to return the money, he gave him a cheque dated 13.8.2008 for a sum of Rs.13.00 lakhs which was presented by the respondent/complainant to bank for payment but it was dishonoured. Consequently, a notice dated 2.5.2009 Annexure A/3 was given to the petitioner-accused for demand of the cheque amount but the petitioner did not pay him the money. Thereafter, the criminal complaint Annexure A/1 was filed against the petitioner-accused. 3. Learned counsel for the petitioner-accused submits that there is no legal evidence against the petitioner-accused for prosecuting him under 138 of the act as it is a case in the nature of civil dispute which has been converted into the criminal case. Learned counsel further submits that Ramvilas and others have filed a civil suit bearing No. 126/2008 annexure A/6 against the respondent-complainant and vendor of the land Smt Parvatibai Rathore and others for declaration of title, cancellation of sale deed and permanent injunction. The respondent and Smt Parvatibai Rathore both have filed their written statements and pleaded that the possession of the sold agricultural land was given to the respondent. When the possession of the agricultural land was given to the respondent- complainant, he is not entitled to recover the amount as stated in the complaint and for which the alleged cheque in dispute was given by the petitioner-accused to him. When the possession of the agricultural land was given to the respondent- complainant, he is not entitled to recover the amount as stated in the complaint and for which the alleged cheque in dispute was given by the petitioner-accused to him. In the said circumstances, the cheque in dispute was not given for payment of any debt or liability. Learned counsel placing reliance upon the judgment in the case of Rajiv Thaper and others vs. Madan Lal Kapoor, : 2013 SAR (Criminal) 316 SC, has submitted that the powers of Section 482 the Cr.P.C. can be invoked at any stage inspite of the fact that the trial is fixed at the defence stage. Learned counsel further placing reliance upon the judgment in the case Lafarge Aggregates & Concrete India P. Ltd. vs. Sukarsh Azad and others, 2014 SAR (Criminal) 348 argues that the petitioner-accused is ready to deposit the entire amount but, the respondent is not willing to accept the same. Under such circumstances, this Court may direct the petitioner- accused to deposit the entire amount with the trial Court and pass the order for quashing criminal proceedings. 4. Learned counsel for the respondent opposing the submissions made on behalf of the petitioner-accused submits that this petition filed under Section 482 of the Cr.P.C is not maintainable as the order of cognizance dated 14.07.2009 was not challenged by the petitioner-accused when he appeared before the trial court. Thereafter charges were framed against him on 05.10.2009 and the propriety and legality of the said order was also not challenged. The complainant's evidence was closed a long before, thereafter, examination of the accused under Section 313 of the Cr.P.C was carried out on 25.02.2012. When the case was fixed for defence evidence, an application under Section 91 of the Cr.P.C. was filed by the petitioner-accused which was rejected by the Court vide order dated 22.03.2012. The said order was challenged before the Court of Session bearing Criminal Revision No. 27/2012. The said revision was also dismissed vide order dated 10.01.2013. Thereafter, the petitioner- accused filed a petition under Section 482 of the Cr. P.C. bearing M.Cr.C No. 1073/2013 wherein the same allegations and grounds were raised by the petitioner-accused and the said petition was also dismissed vide order dated 28.06.2013. The said revision was also dismissed vide order dated 10.01.2013. Thereafter, the petitioner- accused filed a petition under Section 482 of the Cr. P.C. bearing M.Cr.C No. 1073/2013 wherein the same allegations and grounds were raised by the petitioner-accused and the said petition was also dismissed vide order dated 28.06.2013. Once, the petition filed by the petitioner-accused under Section 482of the Cr.P.C. was dismissed by this court, the instant petition filed by the petitioner-accused again under Section 482 of the Cr.P.C. for the same relief can not be entertained. On the aforesaid grounds, learned Panel Lawyer has prayed for rejection of the petition. 5. Heard the arguments of both the parties. 6. Indisputably, orders of cognizance and framing of charges as referred to earlier were not challenged by the petitioner-accused. The said orders attained finality long before. The contention of the learned counsel for the respondent that the earlier petition filed by the petitioner-accused under Section 482 of the Cr.P.C. decided by order dated 18.06.2013 for the same relief, does not appear to be correct as on perusal of the copy of the said order, it is evident that the said relief was related only to the application filed by the petitioner under Section 91 of the Cr.P.C. which was dismissed by both the courts below. 7. The submissions made on behalf of the petitioner-accused as stated earlier cannot be considered and accepted in this petition as the case pending before the trial court is at the fag end of adjudication. All the issues involved in the case, may be agitated before the trial court which is very well competent to decide the same. As per para 22 of the cited judgment, in the case of Rajiv Thapar & Others vs. Madan Lal Kapoor (supra), the inherent powers under Section 482 of the Cr.P.C. can be invoked even after framing of charges but it should be exercised cautiously and in exceptional circumstances. The para 22 reads as under: "The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion that his/their defence is based on sound, reasonable and indubitable facts; the material produced in such, as would rule out and displays the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject the overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice." In the instant case, the petitioner neither challenged the order of cognizance nor did he challenge the propriety and legality of charges. Apart from this, he could have prayed for quashing the proceedings of the criminal case in the earlier petition filed by him under Section 482 of the Cr.P.C., however, he did not do so. In the aforesaid circumstances, this court does not deem it fit to invoke the powers of Section 482 of the Cr.P.C. for quashing the proceedings pending before the trial court. 8. In the aforesaid circumstances, this court does not deem it fit to invoke the powers of Section 482 of the Cr.P.C. for quashing the proceedings pending before the trial court. 8. So far as the prayer made on behalf of the petitioner-accused to deposit the entire money of the cheque in issue before the trial court is concerned, that prayer can also be not accepted in this case. The said prayer should have been made before the trial court at the first hearing of the case when the petitioner-accused appeared before the court but he did not do so. The prayer made at the fag end of the trial after a long period of five years does not appear to be just and proper for being accepted under Section 482 of the Cr.P.C. of this court. Hence, the said prayer is hereby rejected. 9. In view of the above analysis of the facts and circumstances of the case, the petition filed by the petitioner being merit less is hereby dismissed. The effect of the stay order dated 20.11.2014 is hereby vacated. 10. Copy of this order be sent to the trial court immediately for information and necessary action.