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Madhya Pradesh High Court · body

2016 DIGILAW 541 (MP)

Chandra Shekhar v. State of M. P.

2016-07-11

VED PRAKASH SHARMA

body2016
ORDER 1. Legality, correctness and propriety of the order dated 16.11.2010 passed by the 4th Additional Sessions Judge, Gwalior in S.T. No.321/2010 has been challenged in this revision, preferred under section 397/401 of Code of Criminal Procedure, 1973 for short “the Code”. 2. Vide the impugned order, charges for offences under sections 420, 467, 468 and 471 read with section 120B of IPC have been framed against the petitioner and five other accused persons 3. The relevant facts, necessary for disposal of the instant revision, briefly stated, are that a written complaint was made by one Smt. Rajrajeshwari Angre wife of Late Sardar Sambhajirao Angre against the petitioner and five other persons to the effect that pursuant to a criminal conspiracy hatched by the petitioner and five other persons namely Adiraj, smt. Shalni Joshi, Smt. Nutan Joshi, Smt. Jyotsna Angre and Smt. Jyanti Joshi. The property, which, in a family partition fell in the share of Sardar Sambhajirao Angre and after his death was inherited by the complainant, had been fraudulently sold be Smt. Jyotsha Angre and Adiraj Angre in favour of Smt. Shalani Joshi, Smt Jayanti Joshi and Smt.Nutan Joshi, vide sale deed dated 27.4.2004 therefore, appropriate action under the penal law be taken against them. 4. On the basis of this complaint first information report was registered in Police Station, Kotwali Lashkar bearing Crime No.353/2009, for the offences under sections 420, 467, 468, 471 and 406 read with 120B of IPC and after investigation, the petitioner along with other five persons named in the FIR were charge sheeted for the aforesaid offences. 5. The plea raised on behalf of the petitioners is that there is a civil dispute with regard to the disputed property between the parties, the property which is the subject-matter of sale deed has been sold under a valid title and that the claim of Smt. Shalni Joshi in this regard was accepted by the civil Court by way of judgment and decree dated 21.2.1987 passed by 5th Civil Judge Class-II, Gwalior in Civil Suit No.557-A/85 preferred against Kanhojirao Angre the husband of Smt. Jyotsna Angre and father of Adiraj, the seller. Therefore, the prosecution of the petitioner is nothing but blatant misuse of the criminal process. 6. The learned trial Judge, vide impugned order, has rejected the aforesaid plea and directed for framing of charges as stated herein above. 7. Therefore, the prosecution of the petitioner is nothing but blatant misuse of the criminal process. 6. The learned trial Judge, vide impugned order, has rejected the aforesaid plea and directed for framing of charges as stated herein above. 7. The learned counsel appearing on behalf of the petitioner has submitted that the necessary ingredients to constitute offence of “cheating” which has been defined in section 415 of IPC (for short IPC) are not made out even if all the allegations made in the complaint are accepted on their face value. It is further submitted that there is nothing in the complaint made by the complainant Smt. Rajrajeshwari Angre to indicate that it is a case of “making false document” as defined in section 464 of IPC, which is sine qua non for constituting offence under sections 467 and 468 of IPC, therefore, the learned trial Judge has committed a serious error in framing charge for the offences under sections 420, 467, 468 and 471 read with 120B of IPC. Hence, the petitioner deserves to be discharged from the aforesaid matter. 8. It has been further contended by the learned counsel for the petitioner that no specific role has been attributed to him in respect of the alleged offence except the fact that he happens to be the husband of purchaser Smt. Shalni Joshi, therefore, the learned trial Judge has committed a serious illegality in framing of charges against him. 9. Per contra, the learned counsel for the respondents has submitted that prima facie all the ingredients to constitute the offence under sections 420, 467, 468 and 471 read with 120B of IPC were available in the case and therefore, no interference is called for in the impugned order. 10. I have heard the learned counsel for the parties and perused the record. 11. Before considering the arguments raised on behalf of the respective parties, it would be appropriate to look into the legal position with regard to framing of charge, discharge and quashing of charge. 12. As regards law relating to framing of charge, in State of M.P. v. S.B. Johari and others [ 2000(1) JLJ 142 = AIR 2000 SC 665 ], it has been held as under : “It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed.” Dealing with the issue of quashment of charge, it has further been held as under in the aforesaid case : “The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case there would be no sufficient ground for proceeding with the trial.” 13. In Niranjan Singh Karam Singh Punjabi etc. v. Jitendra Bhimraj Bijjayya etc. [ AIR 1990 SC 1962 ], the issue as to whether at the stage of framing the charge, trial Court should marshal the materials on the record of the case was considered by the apex Court in the light of the provisions contained in sections 227 and 228 of the CrPC as well as its earlier decisions in State of Bihar v. Ramesh Singh [ (1977)4 SCC 39 ], Union of India v. Prafulla Kumar Samal [ (1979)3 SCC 4 ], and Supdt. of Remembencer of Legal Affairs, West Bengal v. Anil Kumar Bhunja [ (1979)4 SCC 274 ] and it was held as under :- "From the above discussion it seems well settled that at the sections 227 and 228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose shift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case." 14. The Court may for this limited purpose shift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case." 14. In this connection reference can also be made to the pronouncement of the apex Court in the case of State of Haryana and others v. Bhajan Lal and others [1992 Supp (1) SCC 335], wherein it has been held that even if after accepting all the allegations made in the charge-sheet the alleged offence is not made out, then it will be appropriate to quash the charges qua the person against whom the offence is not made out. 15. In the instant case, even after accepting all the allegations made in the charge sheet at its face value, it cannot be said that the necessary ingredients to constitute offences under sections 420, 467, 468 and 471 read with 120B of IPC are present against the petitioner because no specific allegation has been made against him as regards offence of cheating under section 420 IPC or offence under sections 467, 468 and 471 IPC which require that making of false document should be there, hence charges framed against him are liable to be quashed. 16. Accordingly, the petition is hereby allowed. The impugned order to the extent it relates to the present petitioner is hereby set aside and the petitioner is discharged from the aforesaid charges levelled against him. Sanjay Gupta for petitioner; R. B. S. Tomar, Public Prosecutor for respondents/State; V. D. Sharma for complainant.