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Madhya Pradesh High Court · body

2016 DIGILAW 209 (MP)

Ghanshyam Sarraf v. State of M. P.

2016-03-09

N.K.GUPTA

body2016
ORDER 1. The applicants have challenged the order dated 3.9.2015 passed by the Second Additional Sessions Judge, Shivpuri in Criminal Revision No.161/2012, whereby the revision filed by the applicants was dismissed and the order dated 20.12.2012 passed by the Judicial Magistrate First Class, Shivpuri in Criminal Case No.483/2006 was confirmed, in which a complaint was registered against the applicants of the offences punishable under sections 420, 468 and 471 of IPC. 2. Facts of the case in short are that respondent No.2-Badri Prasad has lodged a criminal complaint against the applicants and two other persons that fake documents were prepared in the name of respondent No.2-Badri Prasad that he had purchased a tractor by taking loan from applicant No.1 and finance was given by applicant No.2 being office bearer of the concerned Finance Company; whereas the tractor was purchased by one Bhuralal Sen, father of the respondent No.2. Thereafter when the tractor was given to the concerned service centre of applicant No.2, it was not returned and it was sold to one Vijay Singh Rawat. The tractor was never surrendered by the respondent No.2 and by forgery, a false transaction was done by the applicants. Initially, the complaint was registered vide order dated 19.6.2006 by the Judicial Magistrate First Class, Shivpuri, but the Sessions Judge Shivpuri vide order dated 20.11.2006 in Criminal Revision No.177/2006 has remanded the case and directed to examine the RTO files etc. and thereafter to pass a consequential order. Thereafter, the trial Court vide order dated 20.12.2012 registered the complaint and the revisionary Court confirmed the order passed by the trial Court. 3. After considering the submission advanced by the parties and looking to the facts and circumstances of the case, it appears that the tractor was purchased by respondent No.2 on the basis of a loan taken from applicant No.2. He has issued various cheques of installments and when the cheque was dishonoured, Mahindra and Mahindra Finance Service Limited had moved a complaint under section 138 of the Negotiable Instruments Act and vide judgment dated 15.6.2013 passed by the Judicial Magistrate First Class, Bhopal, the respondent No.2-Badri Prasad Sen was convicted of the offence under section 138 of the Negotiable Instruments Act and sentenced for one year's rigorous imprisonment with fine of Rs.1,40,000/-. In Criminal Appeal No.636/2013, 10th Additional Sessions Judge, Bhopal vide judgment dated 28.10.2014 dismissed the appeal. In Criminal Appeal No.636/2013, 10th Additional Sessions Judge, Bhopal vide judgment dated 28.10.2014 dismissed the appeal. Under these circumstances, it would be apparent that if the loan was not taken by the respondent No.2, then he was not required to issue any cheque and he could not be convicted for the offence under section 138 of the Negotiable Instruments Act. The respondent No.2 has taken the same plea before the Magisterial Court as well as in appeal, in the case of section 138 Negotiable Instruments Act, but that plea was not proved. Under these circumstances, prima facie on the the basis of the various documents of loan and finance, on which the respondent No.2 has appended his signatures, it appears that no forgery or cheating was done by the applicants while grant of loan and providing the tractor to respondent No.2. Respondent No.2 has failed to prove that the tractor was purchased by his father; but contrary it appears that his father was a guarantor to the transaction which took place between respondent No.2 and the concerned Finance Company. 4. So far as the second part of transaction that the respondent No.2 gave the tractor for repairing and it was fraudulently transferred to one Vijay Singh is concerned, it was for the respondent No.2 to show that he never agreed to surrender the tractor or to get the tractor sold by the Finance Company. If he would have given the tractor for repairing and it was not returned, then he must have lodged a timely FIR before the concerning police station about crime committed by the applicants, but it was not done by the respondent No.2. It would be apparent that the cheque issued by the respondent No.2 was dishonoured and he was convicted due to such of his overtact under section 138 of the Negotiable Instruments Act and therefore the respondent No.2 had no option except to surrender the tractor. His conduct that he did not lodge any FIR of theft or breach of trust against the concerned institution, to whom he gave the tractor for repairing, clearly indicates that he was agreed for such surrender of the tractor and its sale. In such circumstances, the entire transaction, which took place between the applicants and the respondent No.2, is nothing but a transaction of civil nature. In such circumstances, the entire transaction, which took place between the applicants and the respondent No.2, is nothing but a transaction of civil nature. Prima facie, it could not be established that the applicants have forged any documents or they cheated with the respondent No.2. While considering the registration of a complaint, the accused is not permitted to interfere in the proceedings. However, in the present case, when the case was remanded all the documents were filed by the accused persons and those were available to the trial Court. The trial Court did not take care of the observations made by the Sessions Court in Criminal Revision No.177/2006, in which it was mentioned that prima facie no offence is made out and if any additional evidence is adduced by the respondent No.2, then the matter be reconsidered. Unfortunately, the respondent No.2 did not adduce any additional evidence, but the additional evidence is adduced by the applicants and therefore the observations made by the Sessions Judge, Shivpuri were binding upon the trial Court and the trial Court cannot record different finding if no additional document was filed by the respondent No.2. 5. On the basis of the aforesaid discussions, the respondent No.2 has failed to prove that the applicants have committed any cheating or they forged any document for the purpose of cheating. The Magisterial Court has wrongly registered a criminal complaint for the offences under sections 420, 468 and 471 of IPC against the applicants. 6. Consequently, the present petition under section 482, CrPC filed by the applicants appears to be acceptable, hence, it is hereby accepted. The order dated 3.9.2015 passed by the Second Additional Sessions Judge, Shivpuri in Criminal Revision No.161/2012 and the order dated 20.12.2012 passed by the Judicial Magistrate First Class, Shivpuri in Criminal Case No.483/2006 are hereby set aside and consequently the complaint filed by the respondent No.2 against the applicants is hereby dismissed under section 203 of CrPC. Applicants No.1 and 2 were the main accused persons and the remaining accused persons were added as a party because accused Kok Singh was a salesman who facilitate the respondent No.2 for grant of loan; whereas accused Vijay Singh Rawat is added as accused because he purchased that tractor on resale. When the complaint is dismissed for the main accused persons, it would be appropriate to dismiss it completely. When the complaint is dismissed for the main accused persons, it would be appropriate to dismiss it completely. Hence, the complaint filed by the respondent No.2 is hereby dismissed and the trial Court is directed to drop the proceedings against all the accused persons.