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Madhya Pradesh High Court · body

2017 DIGILAW 888 (MP)

Prabhatchand Samaiya v. Rajendra Kour

2017-08-03

SUSHIL KUMAR PALO

body2017
ORDER 1. This criminal revision has been filed by the accused/applicant under section 397 read with section 401 of the CrPC, assailing the order dated 26.12.2016, passed by 3rd A.S.J, Sagar, in S.T. No. 57/2015, wherein charges have been framed against the applicant/accused for offence under sections 420, and 467 of IPC. 2. The respondent/complainant's case in brief is that the respondent No.2 lodged a report against the applicant and filed a criminal complaint case before the JMFC, Sagar alleging that vide sale deed dated 30.5.1974 the complainant sold a piece of land ad-measuring 50x100 = 5000 sq. ft. situated at Khasra No.196/2, Patwari Halka No.17 (New Patwari Halka No.71) at village Rajakhedi, District Sagar to the petitioner. This land is adjacent to the land of Sheel Sahgal in the north-south area. Other land of the seller/complainant was existed beside the land sold. The accused/applicant manipulated and forged the documents. A part of the land he purchased was sold to other accused persons namely Vijay Kumar, Ajay Kumar, Rishabh, Suresh and Nandini on 24.7.1990. Part of the remaining land of the complainant has been sold by the petitioner/accused to respondents No. 2 and 3. By the second sale deed made in favour of respondents Ajay Kumar, Rishabh Kumar, Suresh Kumar the petitioner sold part of land belonged to the complainant. Therefore, complaint has been filed for offence under sections 420 , 467 and 471 of the IPC read with section 34 of IPC. On this complaint the learned JMFC took cognizance for offences mentioned above by order dated 10.10.2014. 3. This order of taking cognizance under sections 420, 467 and 471 of the IPC was challenged by the applicant, in Criminal Revision No. 418/2015. A Co-ordinate Bench of this Court on 18.4.2016 decided the same and dismissed the revision. Subsequent thereto, the case was committed to session Court. It is then registered as S.T. No.57/2015, wherein the learned 3rd ASJ framed charges under sections 420 and 467 of IPC against the applicant/accused by the impugned order dated 26.12.2016. 4. The applicant has claimed that the complaint is gross abuse of process of law and no criminal offence has been committed. By two sale deeds dated 24.7.1990 land area admeasuring 2370 sq.ft. each out of the entire area of 5000 sq.ft., which is admittedly the ownership and possession of the accused/applicant was sold. 4. The applicant has claimed that the complaint is gross abuse of process of law and no criminal offence has been committed. By two sale deeds dated 24.7.1990 land area admeasuring 2370 sq.ft. each out of the entire area of 5000 sq.ft., which is admittedly the ownership and possession of the accused/applicant was sold. The map appended to the sale deeds leaves no room of doubt that only 2370 sq.ft. each has been sold by the applicant to third parties. The entire allegation leveled by the complainant is false. After twenty four years of executing the sale deed, the complainant has“lodged this report. In order dated 19.2.2014 the Commissioner, Sagar has categorically stated that remedy available to the complainant is to file a civil suit and get the issue adjudicated as regarding the area under her ownership. In the report dated 20.8.2014 called by learned JMFC, Sagar, police has mentioned it categorically, that no case of any forgery or cheating is culled out as per the allegations. Though the land purchased by the applicant/accused is 5000 sq.ft. But in the revenue record the land was shown to be of area of land mutated in the name of the applicant is 10000 sq.ft. only. 5. The applicant filed application before the learned trial Court but the same was dismissed in a mechanical and cavalier manner and charges have been framed. The applicant, therefore, prays that the order dated 26.12.2016 passed by 3rd ASJ, Sagar be set aside. 6. Learned counsel for the respondent opposed the contentions and submitted that the order dated 18.4.2016 passed by the Co-ordinate Bench of this Court has discussed all the issues now raised and held that the matter relates to a civil dispute. However, it contends elements of criminal offences as well. No ground has been made out for interfering with the order dated 10.10.2014, wherein cognizance has been taken and process against the accused/applicant has been issued. 7. Counsel for the respondent further contends that in the criminal revision, this Court vide order dated 18.4.2016 has“expressed its view and after its dismissal this revision is not maintainable. 8. No ground has been made out for interfering with the order dated 10.10.2014, wherein cognizance has been taken and process against the accused/applicant has been issued. 7. Counsel for the respondent further contends that in the criminal revision, this Court vide order dated 18.4.2016 has“expressed its view and after its dismissal this revision is not maintainable. 8. Counsel for the applicant placed reliance in the case of Prembai and others v. Ghanshyam and others [ 2010(2) JLJ 271 = 2010(3) MPLJ 345 ], which is with regard to a suit for injunction, where defendants threatened to invade plaintiff's right to enjoy his property and the dispute as to encroachment, wherein spot inspection is held to be necessary. This citation does not help the applicant in any manner because the present matter is a criminal complaint. 9. Counsel for the applicant placed reliance on All Cargo Movers (I) Pvt. Ltd. v. Dhanesh Badarmal Jain and another [ AIR 2008 SC 247 ], wherein it has been held that :- Complaint petition not containing averments in regard to ingredients of offence ? Allegations of negligence and breach of contract on part of carriers and their agent Breach of contract simpliciter does not constitute offence civil suit also pending Criminal petition filed one year after filing of civil suit Court in such a case, cannot notice, correspondences exchanged by parties and other admitted documents for finding out whether allegations were prima facie made order taking cognizance against appellant set aside. Reliance has also been placed in the case of State of Karnataka v. L. Muniwamy and others [ AIR 1977 SC 1489 ], wherein the apex Court has observed at paragraph 10 that :-for the purpose of determining whether there is sufficient ground for proceeding against an accused the Court possesses a comparatively wider discretion in the exercise of which it can determine the question whether the material on the record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible.� 10. The applicant also placed reliance on Suresh v. Mahadevappa Shivappa Danannava and another [ (2005)3 SCC 670 ], wherein it has been held that :- Order taking cognizance of alleged offence Sustainability of Delay/laches in filing complaint Dispute of civil natureAbsence of ingredients of alleged offence of cheating The said complaint was not at all maintainable at this distance of time It was liable to be dismissed on the question of inordinate laches on the part of the complainant himself The order of the Magistrate taking cognizance of the alleged offence, as confirmed by the High Court in revision was not sustainable. 11. The applicant further tried to fortify his view by a decision of State Represented By DSP, SB CID, Chennai v. K.V. Rajendran and others [ (2008)8 SCC 673 ], wherein it has been held that :- Re-opening of a case under section 482 CrPC against the statutory prescription of section 362 Permissibility of - Court cannot give a go by to statutory provisions and instead evolve a provision in the garb of inherent jurisdiction. The present case is not re-opening of a case after a long gap. 12. Per contra, learned counsel for the respondent placed reliance claiming that the objections raised by the applicant“has been earlier decided in Criminal Revision No. 418/2015. Therefore, on the same grounds after framing of the charge, the applicant's revision is not maintainable. There is sufficient ground to proceed against the applicant. He placed reliance on State of M.P. v. S.B. Johari and others [ (2000)2 SCC 57 ], wherein it has been held that :- Criminal Procedure Code, 1973 sections 227 and 228, 401 and 397 and 482 Discharge Court has only to see whether prima facie there was sufficient ground for proceeding against the accused. It cannot appreciate the evidence to arrive at a conclusion in the matter on facts, held, High Court in revision erred in quashing the charge framed against the accused by trial Court by appreciating the material produced by the prosecution and on that basis deciding that accused was not guilty Constitution of India Art. 226 Quashing of criminal charge Prevention of Corruption Act, 1947, sections 5(1)(d) and 5(2).� 13. On perusal of the record, it is found that at the time of purchase of the land, the applicant/accused purchased 50x100 i.e. 5000 sq.ft. of the land. On perusal of the record, it is found that at the time of purchase of the land, the applicant/accused purchased 50x100 i.e. 5000 sq.ft. of the land. But in the revenue record the land purchased is shown as 10000 sq.ft, which is not correct. There is allegation of him being in connivance with the Revenue Officers entered the false entries in the revenue record. Subsequently, the petitioner sold the land to 23x108 sq.ft. = 2370 sq.ft. in the year 1990, to Rishabh Jain and others. 14. The length of 108 ft. shown in the second sale deed gives a clear picture that excess land have been sold by the petitioner to Rishabh Jain and others. The length of 114 ft. and 118 ft. indicates excess land has been sold prima facie. 15. At the stage of framing of charge, prima facie case is to be seen. At this stage, it is not necessary to make a roving inquiry. If the prima facie evidence is available on record, the Court is justified in framing of charge, therefore, at this stage there is grave suspicion and hence, the trial Court is within his right to frame charges. 16. The co-ordinate Bench of this Court by a detailed order on 18.4.2016, has given a finding. This Court do not subscribe to another view. Therefore, this petition is dismissed.