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2017 DIGILAW 1190 (MP)

Badri Narayan Sharma v. State of M. P.

2017-11-21

C.V.SIRPURKAR

body2017
ORDER 1. This criminal revision is directed against order dated 25.1.2017 passed by the Court of First Additional Sessions Judge, Mauganj, District Rewa in Sessions Trial No.417/2015 whereby a charge under section 420 read with section 120B of the IPC was framed against petitioner Badri Narayan Sharma and charges under sections 465, 468 and 420 of the IPC was framed against co-accused persons Shyamwati and Santosh and under section 471 of the IPC against co-accused Devendra Kumar. 2. The facts giving rise to this criminal revision may briefly be stated thus: victim Anil Kumar Mishra filed a complaint with Commissioner, Rewa to the effect that he is owner of agricultural land Survey No.70/2 admeasuring 0.50 acres, situated in Village Daruwa. Co-accused Shyam Kali was Sarpanch of the Village. Co-accused Santosh Kumar was Panchayat Secretary and co-accused Devendra Kumar was Patwari of concerned Halka. Petitioner/accused Badri Narayan Sharma filed an application with the Sarpanch for mutation of his name on Survey No.70/2 admeasuring 0.50 acres. Acting on aforesaid application, co-accused persons Shyam Kali, Santosh Kumar and Devendra mutated the name of petitioner Badri Narayan Sharma on aforesaid land. Victim Anil Kumar Mishra had not transferred the land in favour of petitioner Bandri Narayan in any manner. Co-accused persons Shyam Kali, Santosh Kumar and Devendra Kumar had no jurisdiction to order mutation of revenue land, yet they conspired with Badri Narayan Sharma and mutated his name on aforesaid land. On the complaint filed before the Commissioner Rewa by victim Anil Kumar Mishra, an inquiry was conducted and charge-sheet against co-accused persons Shyam Kali, Santosh Kumar and Devendra Kumar under sections 420, 465, 468, 471, 120B and 201 read with section 34 of the IPC was filed. 3. By order dated 23.2.2016, the trial Court observed that the mutation was effected on an application made to the Sarpanch by present petitioner Badri Naryan Sharma. There were clear allegations that Badri Narayan Sharma, in collusion with co-accused Shyam Kali, Santosh Kumar and Devendra Kumar had got the land illegally mutated in his favour, yet no charge-sheet was filed by the police against present petitioner Badri Narayan Sharma. Even the application made to Sarpanch by petitioner Badri Narayan Sharma, on the basis of which the mutation was ordered, was not filed along with the charge-sheet. Even the application made to Sarpanch by petitioner Badri Narayan Sharma, on the basis of which the mutation was ordered, was not filed along with the charge-sheet. The trial Court summoned the investigating officer to explain this lapse; however, he failed to give any cogent explanation for the same. Consequently, placing reliance upon the judgment rendered by the Supreme Court in the case of Dharampal v. State of Haryana, Criminal Appeal No.865 of 2004, decided on 18.7.2013 (SC)5, Judge Bench, the trial Court took cognizance of the offence against present petitioner Badri Narayan Sharma and issued an arrest warrant against him. After his appearance before the Court, a charge under sections 420 and 120B of the IPC was framed against him by impugned order dated 25.1.2017. 4. Learned counsel for the petitioner submits that the mutation effected by Sarpanch was illegal and it was set aside by Revenue Authorities. The appeal against order is pending. This is a civil matter and there was no criminal intent involved. The civil suit in the matter has been filed earlier. There is no evidence that the petitioner conspired with other co-accused persons to commit the offence. At any rate, the offence under section 420 of the IPC is not constituted in the matter. 5. Learned panel lawyer for the respondent/State on the other hand has supported the impugned order. 6. On perusal of the record and due consideration of rival contentions, the Court is of the view that this criminal revision must succeed for the reasons hereinafter stated. 7. The trial Court has framed a charge under sections 420 and 120B of the IPC against petitioner Badri Narayan Sharma. He is alleged to have entered into a conspiracy with co-accused persons Shyam Kali, Santosh Kumar and Devendra Kumar and got the land mutated in his favour by the Sarpanch on the basis of forged documents and thus, he cheated victim Anil Kumar Mishra. 8. The offence of cheating has been defined under section 415 of the IPC, which sans illustration, reads as hereunder : 415. 8. The offence of cheating has been defined under section 415 of the IPC, which sans illustration, reads as hereunder : 415. Cheating --Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. Explanation. -- dishonest concealment of facts is a deception within the meaning of this section. 9. To constitute offence of cheating it is necessary that the person deceive must be fraudulently or dishonestly induced to deliver any property to any person, or the person deceived must be fraudulently or dishonestly induced to consent that any person shall retain any property, or the person deceived must be fraudulently or dishonestly induced to do or omit to do anything which he would not do or omit to do, if he were not so deceived. It is also necessary that such act or omission must have caused or likely to cause damage or harm to the person deceived in body, mind, reputation or property. 10. In the present case, no such situation exists. Neither the victim was induced by the petitioner to deliver any property to any person, nor was a consent obtained from him that any person shall retain any property. It cannot also be said that the petitioner fraudulently or dishonestly induced the victim Anil Kumar Mishra to do or omit to do anything which he would not do or omit to do, if he were not deceived. Thus, none of the ingredients essential to constitute an offence under section 415 of the IPC exists in the case. Thus, the charge under section 420 of the IPC is not sustainable and is liable to be set aside. However, it is required to be examined by the trial Court whether prima facie there is material against the petitioner to presume that he conspired with other co-accused persons, who committed offences punishable under sections 465, 468 and 471 of the IPC and frame a charge accordingly. 11. Consequently, this criminal revision succeeds in part. 12. However, it is required to be examined by the trial Court whether prima facie there is material against the petitioner to presume that he conspired with other co-accused persons, who committed offences punishable under sections 465, 468 and 471 of the IPC and frame a charge accordingly. 11. Consequently, this criminal revision succeeds in part. 12. The charge framed under section 420 of the IPC against petitioner Badri Narayan Sharma by impugned order dated 25.1.2017 is set aside. 13. The trial Court is directed to consider whether a charge can be framed against the petitioner for having conspired with coaccused persons Shyam Kali, Santosh Kumar and Devendra Kumar for committing offences punishable under sections 465, 468 and 471 of the IPC, as per law and proceed accordingly.