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2019 DIGILAW 135 (MP)

MAYANK s/o RAVINDRA BHUSARI v. STATE OF M. P.

2019-02-11

VANDANA KASREKAR

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ORDER: – Shri Vishal Baheti, learned counsel for the applicants. Shri Arvind Sharma, learned Government Advocate for the Non-applicant/State. Heard on the question of admission. The applicants have filed this application under section 482 of the Code of Criminal Procedure for quashment of the FIR as well as the charge-sheet. 2. The brief facts of the case are that the applicant Nos. 1 and 2 are the owner of the property situated at 731 and 732, Usha Nagar Extension, Indore. The applicants intending to construct a residential-cum-commercial building on the said piece of land, therefore, they have obtained a building permission from the Indore Municipal Corporation on 13-2-2009. Accordingly the applicants have raised the constructions in accordance with the building permission. A false complaint has been made against the applicants regarding unauthorized constructions made by the applicants. The applicants, therefore, preferred an appeal under section 403(2) of the M. P. Municipal Corporation Act, 1956 before the Appeal Committee of Indore Municipal Corporation, Indore. The Appeal Committee after hearing both the parties passed an order dated 2-7-2009 and ordered for compounding of the alleged unauthorized construction and use of property to the tune of Rs. 30,000-00. The applicants have deposited the compounding charges of Rs. 30,000-00 on 7-9-2009. After passing the compounding order, no objection has been issued to the applicants on 26-6-2009 for letting out the premises. After getting the NOC, the applicants were served with notices dated 1-7-2016 issued by the Building Officer, Indore Municipal Corporation for demolition of the building of the applicants. Being aggrieved by these notices, the applicants filed a Writ Petition No. 4551 of 2016 before this Court and initially an interim order has been passed in favour of the applicants on 5-7-2016. The said writ petition was subsequently admitted for final hearing and the interim order was directed to be continued till the final disposal of the writ petition. That as the Municipal Corporation failed to get success in the aforesaid matter, therefore, sent a letter dated 22-4-2017 to the police station and it was alleged that the Axis Bank has given the NOC and rent agreement and the aforesaid NOC and the documents obtained under the Right to Information Act was forged. That as the Municipal Corporation failed to get success in the aforesaid matter, therefore, sent a letter dated 22-4-2017 to the police station and it was alleged that the Axis Bank has given the NOC and rent agreement and the aforesaid NOC and the documents obtained under the Right to Information Act was forged. On the basis of the aforesaid complaint, the Non-applicant has registered an FIR on 13-7-2017 in the aforesaid matter under sections 420, 467, 468, 471 and 34 of the Indian Penal Code. Thereafter investigation was completed and charge-sheet was filed before the Trial Court. Being aggrieved by that, the applicants filed Misc. Criminal Case No. 9343 of 2017 challenging the said FIR. The said Misc. Criminal Case was withdrawn by the applicants vide order dated 5-9-2017 with a liberty to file a fresh petition if eventually a charge-sheet is filed against the applicants. Therefore, the present application has been filed. 3. Learned counsel for the applicants argues that from bare perusal of the FIR, it appears that no offence as alleged by the non-applicant have been committed by the applicants. He further submits that the civil dispute has been converted into criminal offence by the Non-applicant. He further submits that the alleged illegal construction has been compounded by the Municipal Corporation and the applicants has also deposited the compounding fees. Therefore, after compounding, it cannot be said that the said construction is an illegal construction. He further submits that the so called NOC has been issued in favour of the applicants in the year 2009 and the Corporation has not raised any dispute for a period of about 8 years and so far as ownership of the building is concerned, it is already pending before this Court in a writ petition. He further submits that no offence under sections 420, 467, 468, 471 and 120-B of the Indian Penal Code has been committed by the applicants. The basic ingredients required to be attributed for constituting the offence so alleged in the complaint are conspicuously missing as the dispute between the parties is adjudicated by the Appeal Committee of the Corporation. He further submits that no offence under sections 420, 467, 468, 471 and 120-B of the Indian Penal Code has been committed by the applicants. The basic ingredients required to be attributed for constituting the offence so alleged in the complaint are conspicuously missing as the dispute between the parties is adjudicated by the Appeal Committee of the Corporation. Learned counsel for the applicants relies on the judgment passed by the Apex Court in the case of Mohammed Ibrahim and others vs. State of Bihar and another reported in (2009) 8 SCC 751 and in the case of Anil Mahajan vs. Bhor Industries Ltd. and another reported in (2005) 10 SCC 228 . In such circumstances he submits that the application be allowed. 4. Learned Government Advocate argues that there are ample evidence for connecting the applicants for alleged crime and there is no prima-facie case in favour of the applicants for quashment of the FIR and charge-sheet. 5. Heard learned counsel for the parties and perused the record. 6. In the present case, the applicants are the owners of the property situated at 731 and 732, Usha Nagar Extension, Indore. They have applied for the building permission before the Municipal Corporation and after getting the building permission they have raised their constructions. After completion of construction, some complaints were made against the applicants. The applicants, therefore, filed an appeal before the Appeal Committee for regularizing the said construction. The Appeal Committee vide order dated 7-9-2009 has allowed the appeal preferred by the applicants and compounded the alleged unauthorized construction and use of the property by depositing the amount of Rs. 30,000-00. Accordingly the applicants have deposited the said charges of Rs. 30,000-00. Thus, the alleged violation has already been compounded by the Municipal Corporation. Thereafter notices of demolition were issued to the applicants on 1-7-2016. The applicants have challenged the said notices in Writ Petition No. 4551 of 2016 and the said writ petition has already been admitted for final hearing and interim relief granted to the applicants was directed to be continued till the final disposal of the writ petition. Thereafter Indore Municipal Corporation has sent a letter to the concerned Police Station on 22-4-2017 alleging that the Axis Bank has given certain documents to the non-applicant which shows that these documents are forged. Thereafter Indore Municipal Corporation has sent a letter to the concerned Police Station on 22-4-2017 alleging that the Axis Bank has given certain documents to the non-applicant which shows that these documents are forged. Therefore, on the basis of the aforesaid complaint, the non-applicant registered an FIR on 13-7-2017 against the applicants under sections 420, 467, 468, 471 and 34 of the Indian Penal Code. Against the said, the applicants have filed this application for quashment of the FIR as well as the charge-sheet. From perusal of the FIR and charge-sheet, it reveals that the dispute in question is a civil dispute. So far as offences under sections 420, 467, 468 and 471 of the Indian Penal Code are concerned, section 420 of the Indian Penal Code deals with the cheating and dishonestly inducing delivery of property. In this case the applicants on the basis of the allegations made in the FIR it appears that the applicants have not dishonestly inducing any person to deliver any property to any person and they have also not alter or destroy the whole or any part of a valuable security. Thus, the basic ingredients of section 420 of the Indian Penal Code are lacking in the FIR. So far as sections 467 and 468 of the Indian Penal Code are concerned, it deals with the forgery of valuable security for the purpose of cheating. From perusal of the said sections, it reveals that it deals with the valuable security or a will or an authority to adopt a son. In the present case, the documents in the question neither a valuable security nor Will and, therefore, the ingredients of this section are also lacking in the present case. 7. The Apex Court in the case of Mohammed Ibrahim and others (supra) in para 14 has held as under : – “14. An analysis of section 464 of the Penal Code shows that it divides false documents into three categories: 1) The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed. 2) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person. 3) The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration. In short, a person is said to have made a ‘false document’, if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.” 8. The said paragraph deals with the “false documents” which has been categorized into three categories. In the present case, case of the applicants does not fall within any of these categories. Therefore, the documents cannot be said to be false documents. 9. In the FIR also there is no averments about the dishonestly or fraudulently intention of the applicants at the time of entering into rent agreement with the Bank. 10. In view of the aforesaid, this application is allowed. The FIR and charge-sheet are also quashed.