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Madhya Pradesh High Court · body

2019 DIGILAW 591 (MP)

MADHUSUDAN CHOUHAN v. SANGEETA MATHUR

2019-08-19

VIVEK RUSIA

body2019
JUDGMENT : 1. Shri Amit Singh Sisodia, learned counsel for the petitioner. Shri Padmanabh Saxena, learned counsel for the respondent. The applicant has filed the present petition under section 482 of the Criminal Procedure Code, 1973 against the order dated 13-1-2015 passed by 1st Additional Sessions Judge, Ratlam whereby the revision has been dismissed and the order dated 12-7-2011 passed by the JMFC, Ratlam in Criminal Case No. 1276/2009 taking cognizance under section 420 of the Indian Penal Code has been affirmed. 2. Facts of the case, in short, are as under: 3. The respondent filed an application under section 200 of the Criminal Procedure Code before the JMFC, Ratlam seeking cognizance against the present petitioner, his wife and son under sections 408, 417, 420, 487, 488, 471, 120-B of Indian Penal Code. As per averment made in the complaint, the respondent and the petitioner are known to each other since 2004. At that time, the son of the present petitioner was living in Jaipur (Rajasthan). The respondent was also residing in Jaipur (Rajasthan). The present petitioner used to visit Jaipur to meet his son Aniket who was studying BDS in Jaipur. As, the son of the petitioner was living with the respondent since April 2006, therefore, they developed a good family terms. In Jaipur the petitioner disclosed that he is not in a position to repay the loan to the bank, therefore, he is interested in selling his house situated at 203, Goyal Vihar, Khajrana, Indore. The respondent agreed to purchase the said house in Rs. 15.00 lakhs, though, the actual market value of the house was Rs. 16.50 lakhs. The petitioner told the respondent that one Praveen Choudhary is living in the said house as tenant and if she wants he may continue as a tenant and he will pay the rent to her. Thereafter, petitioner and respondent both came to Indore and purchased a stamp paper on 1-12-2006 and got executed tenancy agreement between respondent and Praveen Choudhary. Thereafter, they came to Ratlam where respondent paid Rs. 5.00 lakhs in cash to the petitioner and agreed to pay the balance amount in Jainpur. The respondent further pleaded that in Jaipur she gave a cheque of Rs. 5.25 lakhs on 15-2-2006 and thereafter, a cheque of Rs. 4.75 lakhs on 21-2-2006 to the present petitioner. Thereafter, they came to Ratlam where respondent paid Rs. 5.00 lakhs in cash to the petitioner and agreed to pay the balance amount in Jainpur. The respondent further pleaded that in Jaipur she gave a cheque of Rs. 5.25 lakhs on 15-2-2006 and thereafter, a cheque of Rs. 4.75 lakhs on 21-2-2006 to the present petitioner. After receiving the said amount the petitioner avoided to execute the sale deed in favour of the petitioner. She further came to know that from the aforesaid amount, the petitioner has repaid the loan and now he is not neither willing to return the said amount nor executed the sale deed in her favour, hence, he cheated her for which he is liable to be punished under sections 408, 417, 420, 487, 488, 471, 120-B of Indian Penal Code along with his wife Meena and son Aniket Chouhan. 4. In support of complaint, the respondent examined herself. On 27-8-2008 Smt. Sindhu Bala Mathur as Witness No. 2, Narendra Kumar as Witness No. 3, Gaurav Mathur as Witness No. 4. After examining the material on record, the learned JMFC vide order dated 9-2-2009 has dismissed the complaint and discharged the accused. 5. Being aggrieved by the aforesaid order of discharge the respondent preferred a criminal revision before the Session Court. By order dated 17-2-2009, the learned 2nd ADJ came to the conclusion that the present petitioner and other accused have rightly been discharged from sections 406, 467, 468 and 471 of Indian Penal Code but the petitioner alone is liable to be prosecuted under section 420 of the Indian Penal Code because there is sufficient material against him but the trial Court has committed error while dismissing the entire complaint under section 203 of Indian Penal Code. Vide order dated 17-3-2009, learned ASJ has set aside the order dated 19-2-2009 and remanded the case to the trial Court with the direction to register an offence under section 420 of Indian Penal Code against the petitioner. 6. After the aforesaid order, the learned JMFC vide order dated 12-7-2011 took a cognizance under section 420 of Indian Penal Code against the present petition. 7. Being aggrieved by the order dated 12-7-2011, the petitioner filed a criminal revision before the Additional Sessions Judge. Vide order dated 13-1-2015, the ASJ has dismissed the revision, hence, the present petition under section 482 of the Criminal Procedure Code before this Court. 7. Being aggrieved by the order dated 12-7-2011, the petitioner filed a criminal revision before the Additional Sessions Judge. Vide order dated 13-1-2015, the ASJ has dismissed the revision, hence, the present petition under section 482 of the Criminal Procedure Code before this Court. 8. While pursuing the aforesaid complaint and revision, the respondent also filed a civil suit against the petitioner before the ADJ, Ratlam for recovery of Rs. 10.00 lakhs in respect of the same transaction of sale of House No. 203, Goyal Vihar, Khajrana, Indore. Vide judgement dated 30-6-2016, the civil suit has been dismissed with the findings that the amount of Rs. 10.00 lakhs given vide two cheques dated 15-2-2006 and 20-2-2006 was not in respect of agreement to sale of the said house. The aforesaid cheques were paid for repayment of the loan taken by the respondent from the present petitioner. Rival Submissions : 9. Shri Amit Singh Sisodia, learned counsel for the petitioner submitted that the respondent has wrongly filed the complaint against the present petitioner in respect of a dispute of civil in nature. She has misused the process of law by filing a complaint. Learned JMFC had rightly dismissed the complaint vide order dated 9-2-2009 but the learned ADJ without issuing notice to the present petitioner has wrongly set aside the order dated 9-2-2009. He further submitted that even under section 398 the Session Court is not having power to frame the charges and direct the Magistrate to proceed with the trial. The revisional Court has committed illegality and acted beyond its jurisdiction in reversing the order of Magistrate and directing him to take cognizance for the offence punishable under section 420 of Indian Penal Code. In support of his contention he has placed reliance over the judgment passed by this Court in case of Rewaram vs. State of M.P., reported in (2004) 4 M.P.L.J. 351 and another judgment passed in the case Narendra Jain and anr. vs. Shri Sudarshan Foods Pvt. Ltd. and another, reported in 2008 Cr.L.R (MP) 681. 10. Shri Amit Singh Sisodia, learned counsel appearing on behalf of the petitioner further argued that learned Magistrate has wrongly framed the charge under section 420 of Indian Penal Code. No cause of action accrued at Ratlam as the so called transaction took place either at Jaipur or at Indore. 10. Shri Amit Singh Sisodia, learned counsel appearing on behalf of the petitioner further argued that learned Magistrate has wrongly framed the charge under section 420 of Indian Penal Code. No cause of action accrued at Ratlam as the so called transaction took place either at Jaipur or at Indore. The learned Session Court has also wrongly dismissed the revision without appreciating that the so called dispute between petitioner and respondent is purely of a civil nature and filing of complaint case is nothing but a misuse of process of law. At that relevant point of time the civil suit was also pending for recovery of amount of Rs. 10.00 lakhs but now the suit has also been dismissed with the finding that there was no agreement to sale between petitioner and respondent in respect of sale of the said house, hence, entire process of filing a complaint till framing of charges is fully without jurisdiction, misuse of process of law, hence, liable to be set aside. 11. Per contra, Shri Padmanabh Saxena, learned counsel for the respondent urged that the petitioner has not filed the present petition under section 482 of the Criminal Procedure Code against the order dated 17-3-2009, therefore, he cannot assail the aforesaid order before this Court. After the aforesaid order, he appeared before the JMFC and argued on discharges. Learned JMFC has independently examined the complaints and the evidence came on record and came to the conclusion that the prima facie offence is made out and the petitioner is liable to be tried under section 420 of Indian Penal Code. Being aggrieved by the aforesaid order dated 12-7-2011, criminal revision was filed but the Session Court has rightly dismissed the revision, therefore, the present petition though it is filed under section 482 but it is like a revision and under Criminal Procedure Code the second revision is not maintainable. Against the dismissal of the suit, vide judgment and decree dated 30-6-2016 the respondent has filed the first appeal before this Court and the same has been admitted for final hearing, hence, this petition under section 482 be dismissed and trial Court be directed to proceed with the trial. Appreciation and conclusion : 12. As per the allegations made in the complaint, the present petitioner gave a proposal to sale his house to the respondent at Jaipur. Appreciation and conclusion : 12. As per the allegations made in the complaint, the present petitioner gave a proposal to sale his house to the respondent at Jaipur. Thereafter, they came to Indore and tenancy agreement was executed between respondent and the tenant who is residing in the said house, which made to believe her that petitioner is bona fidely interested in selling the house to her in Rs. 15.00 lakhs. According to her, they came to Ratlam and where she paid Rs. 5.00 lakhs in cash to the petitioner and thereafter, they came to Jaipur where she paid Rs. 10.00 lakhs by way of two cheques. On the basis of same pleadings, she filed a civil suit before the ADJ, Ratlam for recovery of only Rs. 10.00 lakhs. In the said civil suit the present petitioner came up with the defence that the respondent wanted to purchase a Hospital at Jaipur and for which she demanded the amount of Rs. 10.00 lakhs as loan from him. Since, he sold the ancestral house on 7-10-2005 and he has money, therefore, he gave Rs. 10.00 lakhs to the respondent and by way of security she gave two cheques to him. He never agreed to sale the house to the respondent. After appreciating the evidence on record, the learned ADJ has dismissed the suit vide judgment dated 30-6-2016. The learned ADJ has recorded the finding that before issuance of cheque the present petitioner had already repaid his loan to the bank on 10-2-2006 and 15-2-2006, therefore, the respondent has failed to prove that he agreed to sale the house as he was in need of money for repayment of loan to the bank. There is no agreement to sale between the petitioner and respondent for sale of house No. 203, therefore the question of payment of amount of Rs. 5.25 lakhs and Rs. 4.25 vide two cheques cannot be accepted, therefore before the civil Court the respondent has utterly failed to prove any agreement with the present petitioner for sale of the house, therefore, the question of cheating by the present petitioner does not arise. 13. Initially, the learned Magistrate vide order dated 9-2-2009 discharged the petitioner and other two accused. 4.25 vide two cheques cannot be accepted, therefore before the civil Court the respondent has utterly failed to prove any agreement with the present petitioner for sale of the house, therefore, the question of cheating by the present petitioner does not arise. 13. Initially, the learned Magistrate vide order dated 9-2-2009 discharged the petitioner and other two accused. Thereafter, the respondent preferred a Revision No. 52/2009 and it is evident from the order that without notice to the present petitioner the ASJ, vide order dated 17-3-2009 has set aside the order dated 9-2-2009 and directed the JMFC to proceed with the trial against the petitioner under section 420 of Indian Penal Code. In view of the law laid down by this Court in case of Rewaram (supra) and Narendra Jain (supra), the revisional Court is having power to remand the case back for further enquiry only in three conditions. Firstly when the complaint is dismissed under section 203 of the Criminal Procedure Code, secondly, when complaint under section 204(4) for want of payment of process fee, thirdly, when the accused is discharged at the stage of framing of charges. 14. Though the petitioner has not specifically challenged the order dated 17-8-2009 in this petition filed under section 482 of Criminal Procedure Code, but he is praying for quashment of the entire complaint registered against him under section 420 of Indian Penal Code. The learned Magistrate after the remand on the basis of order passed by the ASJ has framed the charge under section 420. Even under section 482 of the Criminal Procedure Code the High Court is having wide power to pass the order in the interest of justice where the High Court finds that there is a misuse of process of law, therefore, under section 482 can examine the validity of order dated 17-3-2009. 15. As per the averment made in the complaint, the transaction between petitioner and the respondent is purely of a civil nature and for which the respondent filed the civil suit also for recovery of the amount of Rs. 10.00 lakhs. She has lost the civil suit and first appeal is pending. 15. As per the averment made in the complaint, the transaction between petitioner and the respondent is purely of a civil nature and for which the respondent filed the civil suit also for recovery of the amount of Rs. 10.00 lakhs. She has lost the civil suit and first appeal is pending. The Apex Court in its recent judgment passed in the case of Commissioner of Police and others vs. Devendra Anand and others, Cr.A. No. 834/2017 decided on 8-8-2019 has held that the criminal complaint is nothing but a misuse of process of law where the dispute is purely of a civil nature. Relevant portion of the aforesaid judgment is reproduced below : “4. Having heard the learned counsel appearing on behalf of the parties at length and considering the material on record, we are of the opinion that the criminal proceedings initiated by respondent No. 1 – original complainant is nothing but an abuse of the process of law for settling a civil dispute. 4.1 Even considering the nature of allegations in the complaint, we are of the firm opinion that no case is made out for taking cognizance of the offence under section 420/34 Indian Penal Code. The case involves a civil dispute and for settling a civil dispute, the criminal complaint has been filed, which is nothing but an abuse of the process of law.” 16. Therefore, in view of the above, present M.Cr.C. is allowed. The complaint filed against the petitioner is hereby quashed. No order as to cost.