Research › Search › Judgment

Madhya Pradesh High Court · body

2016 DIGILAW 46 (MP)

Jagdish Makhija v. State of M. P.

2016-01-18

N.K.GUPTA

body2016
ORDER 1. The applicant has challenged the order dated 27.1.2015 passed by 3rd Additional Sessions Judge, Gwalior whereby charge of offence under sections 120B, 420 r/w section 34 of IPC, 471 r/w section 347 of IPC and 506 Part-II of IPC were framed against the applicant in S.T. No.544/2014. 2. Facts of the case, in short, are that one Hemant had tried to sale the property of the applicant which is situated at Samadhiya Colony, Gwalior to one Yogesh Katri by showing that Hemant had power of attorney. In that dealing Manoj has participated as mediator. When the sale deed was produced for registration, the Sub-Registrar had found that the power of attorney was fake and therefore he sent the FIR to the SHO, Hujrat Kotwali, Distt. Gwalior After registration on of the case, on the request made by Yogesh Khatri, the police added name of the applicant as accused in the case that he was also involved in the conspiracy and therefore, charge-sheet was involved in the conspiracy and therefore, charge-sheet was filed against the accused persons including the applicant. Thereafter, the trial Court heard the learned counsel for the parties and framed the charges against the applilcant also for the offence as mentioned above. 3. After considering the submissions made by learned counsel for the parties and looking to the facts and circumstances of the case, it would be apparent that the FIR was lodged by Sub-Registrar Deed and Documents finding that fake power of attorney was prepared by Hemant, Manoj and Nagendra Hasa Ji for the transaction in which Yogesh has to purchase the land. Since Yogesh Khatri was purchaser it was for him to get the property at lesser price due to forgery of power of attorney and therefore, erroneous approach was taken by the police thinking that Yogesh was victim. If Yogesh has stated that the applicant has also received some money then there was no need to the applicant to execute a fake power of attorney and in that case no offence will be made out against any of the accused persons because in that case the entire transaction would have became a civil transaction. Under these circumstances, if entire documents collected by the prosecution are considered then it would be apparent that the applicant Jagdish was victim in whose name power of attorney was prepared in favour of Hemant. Under these circumstances, if entire documents collected by the prosecution are considered then it would be apparent that the applicant Jagdish was victim in whose name power of attorney was prepared in favour of Hemant. It appears that the prosecution, to loose the evidence of other persons made the applicant Jagdish as an accused and relieved the purchaser Yogesh Khatri. The trial Court shall have every right to consider the matter of Yogesh Khatri, if any application is moved under section 319 of CrPC, but looking to the evidence collected by the prosecution no role of the applicant is established. On the contrary, according to the FIR he was victim in the case. 4. It is settled view of the apex Court that in absence of any rebuttal and by evidence collected by the prosection, and if the accused can be convicted of any particular offence then charge of that offence should be framed. In the present case, except allegation made by Yogesh Khatri there is nothing against the applicant. If he was involved in the sale of the property, there was no need to the applicant to prepare a fake power of attorney Hence, there is no case in which it may be said that the applicant cheated anyone or he was involved in the conspiracy of forgery. However, if he was interested to sale the land to Yogesh Khatri then he should have executed the sale deed directly. 5. Under these circumstances, if collected evidence of the prosecution is examined then prima facie no case is made out against the applicant. Trial Court has framed charges against the applicant. Trial Court has framed charges against the applicant without any basis. especially when the Sub-Registrar Deed and Documents has found that forgery of power of attorney was done to cause loss to the applicant Jagdish. Under these circumstances, the impugned order passed by the Third Additional Sessions Judge, Gwalior is contrary to the settled principle of law and it is almost perverse. 6. On the basis or aforesaid discussions, this is a good case in which revisionary power of this Court should be exercised in favour of the applicant. 7. Consequently, ‘this criminal revision filed by the applicant Jagdish Makhija is hereby allowed. 6. On the basis or aforesaid discussions, this is a good case in which revisionary power of this Court should be exercised in favour of the applicant. 7. Consequently, ‘this criminal revision filed by the applicant Jagdish Makhija is hereby allowed. The impugned order dated 27.1.2015 passed by the Third Additional Sessions Judge, Gwalior so far as it relates to framing of charge against the applicant Jagdish Makhija is concerned is hereby set aside. The applicant Jagdish Makhija is discharged from the charges appended by the trial Court. 8. Copy of this order be sent to the trial Court for information and compliance that, the proceedins of the case shall be dropped against the applicant Jagdish Makhija.