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Madhya Pradesh High Court · body

2017 DIGILAW 412 (MP)

Mahesh Dudhani v. State of M. P.

2017-03-27

J.P.GUPTA

body2017
ORDER : 1. This petition under section 482 of the Code of Criminal Procedure has been filed by the petitioners for quashing and setting aside the proceedings pending in the Court of Judicial Magistrate First Class, Pipariya, District Hoshangabad against them in Criminal Case No. 364/2013 arising out of the Crime No. 367/2011 for offences under sections 406, 420, 467, 468, 448 and 120-B of the Indian Penal Code registered at Police Station Pipariya, District Hoshangabad. 2. Facts of the case in narrow compass are that the petitioners are the purchaser of the industrial property belonging to the respondent No. 2 - M/s Kabra Agro Industries Limited, which was purchased in the year 2002 through auction sale conducted by the Commercial Tax Department of the Government of M.P. with regard to recovery of the dues of the tax amount. The aforesaid property was also attached by the M.P. Finance Corporation and the M.P. State Electricity Board with regard to recovery of their dues. The aforesaid Kabra industry was also declared a Sick industry by the B.I.F.R. on 5-3-1999. On receiving complaint regarding illegality and impropriety conducted in the auction procedure, the Collector Hoshangabad by exercising powers under section 50 of the M.P. Land Revenue Code vide order dated 23-12-2013 set aside the auction procedure and directed for initiation of the criminal proceedings against the persons responsible. The Managing Director of the M/s Kabra Agro Industries Ltd. i.e. respondent No. 2 submitted a complaint under section 156 (3) of the Criminal Procedure Code before the JMFC, Piparia, District Hoshangabad alleging that the accused persons by entering into a criminal conspiracy and by playing fraud established a firm in the name of M/s Arjun Palia Banskheda which tried to grab the said property by illegal means and with mala fide intention; and the accused persons with the connivance of the officers of the Commercial Tax Department and by hatching into criminal conspiracy prepared forged documents and Panchnama with intention to cheat the complainant. It is also alleged in the complaint that the applicants with the connivance of the officers of the Commercial Tax Department purchased the property on very low price and the officers of the Commercial Department without considering the fact that the property was also attached by the other departments and was declared sick industry, took possession forcefully and misappropriated some property of the industry. The complaint was sent to the Police Station Piparia and the Police submitted report before the concerned JMFC on 7-3-2011 that in the preliminary inquiry, only some procedural errors have been found in the auction sale of the property and no cognizable offence is made out against anybody. This report was not accepted by the Court concerned and the Police was further directed to record FIR and make afresh investigation. After that, on completion of the investigation, a charge sheet for the offence under sections 406, 420, 467, 468, 448 and 120-B of the Indian Penal Code has been filed against the applicants. 3. The petitioners seek quashment of the aforesaid charge sheet and further proceedings on the ground that they are innocent. They have not hatched any conspiracy with the officers of the Commercial Tax Department. The property was auctioned by the Commercial Tax Officer and in the public auction, the petitioners had purchased the said property by putting the highest price in the auction. They have not prepared any forged document and have not committed any fraud with anybody. After issuing sale certificate, they got possession in the legal manner but the Collector, Hoshangabad has set-aside the auction procedure on account of so called irregularities and disobeying the directions of this Court issued on 3-12-2001 in the Writ Petition No. 4325/2001 and considering the sale price very low in comparison to the actual price of the property. According to the order of the Collector it is found that the officers of the Commercial Tax Department have committed illegality or irregularity and they are also liable to be dealt with under the criminal law. In the order of the Collector against the petitioners, nothing has been pointed out but the police have filed challan against the petitioners only and none of the officers of the Commercial Tax Department has been charge sheeted while the petitioners have not committed any act which may be said to be constituted any offence. The petitioners have not violated any direction given in the W.P. No. 4325/2001 as they were not the party in the case and the direction was given only against the M.P. State Electricity Board with regard to recovery of its dues as the company was sick industry. 4. The petitioners have not violated any direction given in the W.P. No. 4325/2001 as they were not the party in the case and the direction was given only against the M.P. State Electricity Board with regard to recovery of its dues as the company was sick industry. 4. It is further submitted that in view of the totality of the facts and circumstances, no alleged offence is made out against the petitioners. Similarly, with the oblique motive and to wreck vengeance patently false, frivolous and vexation allegations have been made against the petitioners to put them to unnecessary harassment and it is nothing else but misuse of provisions of law. It is also submitted that very ingredients to constitute the offence is completely missing and there is no evidence on record to justify initiation of the aforesaid proceeding then the interest of justice requires to set aside the entire proceedings. Hence, the aforesaid proceedings be quashed. 5. Learned Government Advocate appearing on behalf of the State has submitted that from the charge sheet, prima facie, commission of the aforesaid offences by the petitioners are made out. Hence, the petition be dismissed. 6. With regard to the quashment of the criminal proceedings under section 482 of the Criminal Procedure Code the Hon’ble Apex Court in the case of Hridaya Ranjan Prasad Verma and Others vs. State of Bihar and Others, (2000) 4 SCC 168 it has been observed in Paras 8, 9 and 10 which are as under:- Para 8 - In the case of State of Haryana and Others vs. Bhajan Lal and Others, 1992 Supp. (1) SCC 335, this Court in the back drop of interpretation of various relevant provisions of the Code of Criminal Procedure under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under section 482 of the Criminal Procedure Code gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the Court or otherwise to secure the ends of justice, making it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercise: (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under section 156(1) of the Code except under an order of a Magistrate within the purview of section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala-fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. Para 9 - In the decision this Court added a note of caution to the effect that the power of quashing a criminal proceeding should be exercised “very sparingly and with circumspection and that too in the rarest of rare cases.” Para 10 - The principles laid down in this decision have been followed in several decisions of this Court like Rupan Deol Bajaj vs. Kanwar Pal Singh Gill, (1995) 6 SCC 194 , Rajesh Bajaj vs. State NCT of Delhi, (1999) 3 SCC 259 , State of Kerala vs. O.C. Kuttan, (1999) 2 SCC 651 , P.S. Rajya vs. State of Bihar, (1996) 9 SCC 1 and State of Orissa vs. Bansidhar Singh, (1996) 2 SCC 194 . 7. Here it would be appropriate to see the provisions related to the offences under sections 406, 420, 467, 468, 448 and 120-B of the Indian Penal Code which read as under:- “405. Criminal breach of trust - Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust.” 406. Punishment for criminal breach of trust - Whoever commits criminal beach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 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.” 420. Cheating and dishonestly inducing delivery of property - Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 463. Forgery - Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. 467. Forgery of valuable security, will, etc. 467. Forgery of valuable security, will, etc. - Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. 464. Making a false document - A person is said to make a false document or false electronic record: First - Who dishonestly or fraudulently: (a) makes, signs, seals or executes a document or part of a document. (b) makes or transmits any electronic record or part of any electronic record. (c) affixes any electronic signature on any electronic record. (d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed. Secondly - Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration. Thirdly - dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration. 468. 468. Forgery for purpose of cheating - Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 442. House trespass - Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit “house-trespass.” 448. Punishment for house-trespass - Whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. 120-A. Definition of criminal conspiracy - When two or more persons agree to do, or cause to be done: (1) an illegal act. (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:- Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. 120-B. Punishment of criminal conspiracy: (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.” 8. Now, the question is that from the material available in the charge sheet, what facts and circumstances emerge with regard to aforesaid offence. Now, the question is that from the material available in the charge sheet, what facts and circumstances emerge with regard to aforesaid offence. On reading all the material of the charge sheet and accepting the allegations to be true, it only emerges that some irregularities or illegalities were committed by the officers of the Commercial Tax Department in the process of auction of the property and they have accepted the bid offered by the petitioners which was the highest but was lesser than the actual price of the property. It is alleged that the actual price of the property, according to the balance sheet of the Company, was Rs. 5,59,70,149/- and according to the valuation report of the District Registrar, only the land was valued Rs. 1,85,81,821/-. While this land along with other properties was auctioned on the price of Rs. 1 crore 2 lakh. In the charge sheet against the petitioners for prosecuting them with regard to the commission of the aforesaid offence, these are only the circumstance and on that ground it has been said that the petitioners have hatched conspiracy with the officers of the Commercial Tax Department to get the aforesaid property illegally and dishonestly and have committed criminal breach of trust, cheating, forgery and fraud. 9. From the record it appears that the officers of the Commercial Tax Department had made several attempts to sell out the property and at the 7th time, they had auctioned the property and accepted the offer of the petitioners which was highest. If any illegality or irregularity has been committed by the officers of the Commercial Tax Department in the process of auction, the purchasers who bonafidely participated in the auction process cannot be held to be culprit for hatching conspiracy with the officers conducting the auction sale unless there is directly or indirectly facts and circumstances disclose or indicate any connivance with the officers. In this regard, in this case there is no material to suggest or indicate the aforesaid connivance with the officers of the Commercial Tax Department. Similarly, only on the basis that the highest bid was less in comparison with the so called actual price of the property, it cannot be inferred that the purchasers had any connivance with the officers of the Commercial Tax Department to get the property dishonestly or illegally. 10. Similarly, only on the basis that the highest bid was less in comparison with the so called actual price of the property, it cannot be inferred that the purchasers had any connivance with the officers of the Commercial Tax Department to get the property dishonestly or illegally. 10. It is the matter of common knowledge that ordinarily in the public auction conducted by the State or its department, sale price remains less in comparison to the actual market price. Hence, in view of the aforesaid common phenomena of the matter, only on the aforesaid ground, no adverse inference can be drawn. This circumstance only indicates suspicion or malice in the bid but only this suspicion cannot take place the proof of the aforesaid allegations. From the facts and circumstances of the case, against the petitioners no offence under sections 406 and 448 of the Indian Penal Code is made out as they entered into the property after getting sale certificate in legal manner and the Security Guard Ajeet Kumar Kesariya had not disclosed in his statement that thereafter, the petitioners have taken away any property of the industry and there is no other evidence in this regard. 11. Similarly, the petitioners have not dishonestly or otherwise induced the officers of the Commercial Tax Department or any other person to deliver them any property. They got the property on the basis of the highest bid offered in the public auction. Therefore, no offence of cheating is made out against them. So far as the commission of offences punishable under sections 466 and 467 of the Indian Penal Code are concerned, there is no evidence on record to show that the petitioners fabricated or forged any document. The allegations are that the wrong facts were mentioned in the Panchnama prepared by the officers of the Commercial Tax Department. But, these allegations would not come in the purview of preparation of forged documents or to use any forged document to get any illegal benefits by the petitioners. 12. In view of the aforesaid discussion, it is crystal clear that the complaint or the FIR and the evidence collected in support of the allegations do not disclose commission of any offence and do not make out a case against the petitioners. 12. In view of the aforesaid discussion, it is crystal clear that the complaint or the FIR and the evidence collected in support of the allegations do not disclose commission of any offence and do not make out a case against the petitioners. It appears that the Managing Director of M/s Kabra Agro Industries has made complaint maliciously with an oblique motive for taking wreck vengeance from the accused persons with a view to spite them due to private and personal grudges. Therefore, this case falls under the categories of 3 and 7 as discussed in the case of State of Haryana vs. Bhajan Lal, 1992 Supp. (1) SCC 335. And it is a case where the materials submitted with the charge sheet are taken at their face value and accepted in its entirety then also it does not make out a case against the accused persons. In such a situation, continuation of criminal proceeding against the petitioners will be an abuse of process of the Court. Therefore, the aforesaid criminal proceedings against the petitioners deserve to be set-aside. Hence, this petition is allowed and proceedings against the petitioners in Criminal Case No. 364/2013 pending in the Court of Judicial Magistrate First Class, Pipariya, District Hoshangabad, arising out of the Crime No. 367/2011 for offences under sections 406, 420, 467, 468, 448 and 120-B of the Indian Penal Code registered at Police Station Pipariya, District Hoshangabad, are hereby quashed. A copy of this order be sent to the concerned Court below for information and necessary compliance.