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Madhya Pradesh High Court · body

2016 DIGILAW 491 (MP)

Vinod Sharma v. Shivaji Rao Thorat

2016-06-22

U.C.MAHESHWARI

body2016
ORDER : U.C. Maheshwari, J. 1. Shri Mahaveer Pathak, learned counsel for the applicant. 2. Heard on the question of admission. 3. The applicant-complainant has filed this petition under section 482 of Cr.P.C. being aggrieved by the order dated 4.9.2014 passed by the Fourteenth Additional Session Judge, Gwalior in Criminal Revision No.298/2013 affirming the order dated 4.9.2013 passed by the Judicial Magistrate First Class, Gwalior in Criminal Case No.8226/2013 (Private Complaint) whereby in a private complaint of the present applicant on appreciation of the prima facie evidence recorded under sections 200 and 202 of Cr.P.C. the cognizance of the offence of section 138 of the Negotiable Instruments Act was taken only against the respondent no.1 while the cognizance in other sections of India Penal Code i.e. 420, 406 and 120-B of IPC was not taken against the respondent no.1-Shivaji Rao Thorat as well as against the respondent no.2-Smt. Sangeeta Mahadik. 4. The applicant’s counsel after taking me through the petition as well as the impugned order of the Session Court as well as the order of the Trial Court and other papers placed on the record argued that on proper appreciation of the evidence recorded under sections 200 and 202 of Cr.P.C. the Trial Court was bound to take the cognizance against both the respondents for the aforesaid all the offences, but under the wrong premises the cognizance of section 138 of the Negotiable Instruments Act was taken only against the respondent no.1 and cognizance of the other offences was not taken against such respondent no.1 and the cognizance of any of the offences was not taken against the respondent no.2. On filing the revision on the turn of the Revisional Court also has not considered the matter with appropriate approach. Keeping in view the basic language of the concerning sections in which the punishment for practicing the fraud, breach of trust and criminal conspiracy have been defined and the revision was also dismissed by affirming the order of the Trial Court. 5. In support of the aforesaid arguments by referring the facts of the case applicant’s counsel said that the respondent no.2-Smt. Sangeeta Mahadik was the owner of some alleged immovable property and she entered in an agreement with the present applicant to sale the same in consideration of Rs. 5. In support of the aforesaid arguments by referring the facts of the case applicant’s counsel said that the respondent no.2-Smt. Sangeeta Mahadik was the owner of some alleged immovable property and she entered in an agreement with the present applicant to sale the same in consideration of Rs. 13,00,000/- before the year 2012 according to the Gregorian calender and such transaction was oral transaction and according to the terms, the sale deed was to be executed by the respondent no.2 in favour of the applicant because the consideration was already taken by her. As per further submissions, in order to execute the sale deed the respondent no.2 has authorised the respondent no.1- Shivaji Rao Thorat to execute the sale deed of the aforesaid immovable property on the basis of consideration which was taken by the respondent no.2. In spite such direction respondent no.1-Shivaji Rao Thorat was not executed the sale deed of such property on the basis of power of attorney given by the respondent no.2 in his favour and was demanding again the consideration of Rs. 13,00,000/- of such property. So in order to purchase the property the present applicant had given again Rs. 13,00,000/- to respondent no.1-Shivaji Rao Thorat and in order to protect the interest to recover such sum the applicant has also taken over the cheques of such sum of Rs. 13,00,000/-. He also said that when after taking such consideration twice by the Shivaji Rao Thorat he had not executed the sale deed of the property in favour of the present applicant. On asking the respondent no.2 in this regard, she has not taken any care for execution of the sale deed then the applicant came to know that she has been defrauded by practicing the fraud under criminal conspiracy of the respondents no.1 and 2, according to which even after taking the consideration of Rs. 26 Lacs by giving cheques of Rs. 13 Lacs to Shivaji Rao Thorat the sale deed of the property was not executed. 26 Lacs by giving cheques of Rs. 13 Lacs to Shivaji Rao Thorat the sale deed of the property was not executed. So in such premises, in view of the evidence adduced by the applicant under sections 200 and 202 of Cr.P.C. there was sufficient circumstance before the Trial Court to take cognizance of aforesaid all the offences against both the respondents, but neither the Trial Court has considered such aspect nor the Revisional Court has considered the same and applicant’s counsel prayed to set aside the order of both the subordinate Courts by allowing this petition by taking over the cognizance for all the alleged offences and prayed to send the matter to the Trial Court with a direction to decide afresh on merits in accordance with the procedure. 6. Having heard the counsel, keeping in view the arguments advanced, I have carefully gone through the papers placed on record along with the petition as well as the impugned order it is apparent that somewhere before the year 2012 as alleged some oral transaction has taken place between the applicant and respondent no.2 regarding some property of the respondent no.2 in consideration of Rs. 13 Lacs and pursuant to that respondent no.2 was bound to execute the sale deed, but in this respect no document has been filed on the record to show the terms and conditions of such contract. In such premises according to the case of the applicant himself it was a bona fide transaction of agreement to sale of the property between the parties and subsequently because of one reason or other if the contract was broken by either of the parties then as it was settled preposition it is a civil dispute and could not be treated as criminal dispute between the applicant and respondent no.2 and in such premises the applicant had a right to file a suit for specific performance on the basis of the available grounds and the circumstances as in accordance with the procedure prescribed under the Specific Relief Act, but the remedy of the private complaint against the respondent no.2 was not available to the applicant. So far as the respondent no.1 is concerned when after giving the authorisation by the respondent no.2 to respondent no.1 to execute the sale deed, although in this regard no authenticated document is available on the record. So far as the respondent no.1 is concerned when after giving the authorisation by the respondent no.2 to respondent no.1 to execute the sale deed, although in this regard no authenticated document is available on the record. If he had not executed the sale deed then there was no question to make the repayment of consideration of Rs. 13,00,000/- to the respondent no.1 and if such payment of consideration was made to the respondent no.1 after obtaining the cheques of such sum to secure the recovery of such sum from the respondent no.1 and the sale deed was not executed then on the basis of the cheques the applicant was having right to recover the sum in accordance with the procedure, and therefore, this transaction was also related to the civil transaction, but in any case, it was a case relating to Negotiable Instruments Act, the Trial Court and the Revisional Court have not committed any error in taking the cognizance of the offence against the respondent no.1 under section 138 of the Negotiable Instruments Act. In such premises, I have not found any error, irregularity, illegality or anything against the propriety of the law in the impugned order dated 4.9.2014 of the Revisional Court as well as impugned order dated 4.9.2013 of the Trial Court. As such I have not found any question or circumstance in the present matter filed under section 482 of Cr.P.C. requiring any interference in the impugned order under the inherent powers of this Court under section 482 of Cr.P.C. and in such premises this petition deserves to be dismissed. 7. Even otherwise it is a settled preposition of law that after filing the revision and deciding the revision against the order of the Trial Court the person like the applicant is not entitled to file second revision under the garb of section 482 of Cr.P.C. as M.Cr.C., so in such premises also this petition is not entertain able. In view of the aforesaid, I have not found any material circumstance in which this Court can interfere in the impugned order under section 482 of Cr.P.C., hence, this petition deserves to be and is hereby dismissed. In view of the aforesaid, I have not found any material circumstance in which this Court can interfere in the impugned order under section 482 of Cr.P.C., hence, this petition deserves to be and is hereby dismissed. However, before parting with the case at the request of the applicant’s counsel, it is observed that applicant shall be at liberty to file the appropriate civil proceedings against the respondents under the appropriate provisions before the appropriate forum which is permissible under the existing law with respect of the alleged transactions.