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2023 DIGILAW 427 (MP)

Swapnil Sohane v. Sunil Arora

2023-03-28

ANJULI PALO

body2023
ORDER 1. This revision under section 397/401 of the Code of Criminal has been filed by the applicants being aggrieved by order dated 31.12.2018 passed by the Second Additional Sessions Judge, Waraseoni in Criminal Revision No.95/2016 whereby the order of Additional Chief Judicial Magistrate, Waraseoni dated 01.12.2016 has been set aside. 2. As per applicants the order passed by the trail Court has been perversely set aside by the lower revisional court because it failed to understand that when compromise has already been made under section 138 of the Negotiable Instruments Act (for short "NI Act"), the direction for registration of a criminal case in respect of same transaction, is abuse of process of Court. 3. In brief, the facts of the case are that respondent filed a criminal case under section 420, 467, 468, 471, 34 of the Indian Penal Code on the ground that applicants have entered into sale agreement in respect of certain agricultural lands, which could not be materialized, due to mortgage and sale of such lands to other persons. The respondent filed a complaint under section 138 of N.I. Act, which was subsequently compromised, as stated earlier. The Additional Chief Judicial Magistrate, Waraseoni vide order dated 01.12.2016 refused to issue direction under section 156(3) of Cr.P.C. for registration of FIR against the applicants and directed the Police to submit an information with regard to enquiry conducted in respect of earlier complaints. Thereafter, the respondent filed a revision before the First Additional Sessions Judge, Waraseoni alleging that the learned trial Court has wrongly rejected the application under section 156(3) of Cr.P.C., even though there was sufficient ground to call for the report. The respondent has cheated the applicants. The property which was under agreement for sale has already been sold to some other persons and it was mortgaged with the Bank. It cannot be said that the dispute was purely of civil nature. Hence, order passed by the trial Court is liable to be set aside. 4. The revision filed by the respondent has been allowed with a direction to the trial Court to proceed under section 156(3) of Cr.P.C. and register case against the respondent because it is a case of cheating. The offences under section 138 of NI Act and the one under section 420 of IPC are entirely different. Hence, the order passed by the trial Court has been set aside. The offences under section 138 of NI Act and the one under section 420 of IPC are entirely different. Hence, the order passed by the trial Court has been set aside. Against the aforesaid order this revision has been filed to set aside the order passed by Second Additional Sessions Judge, Waraseoni passed in CRR No.95/2016. 5. Learned counsel for the applicants submitted that impugned order is bad in law as the revisional court without appreciating the grounds mentioned under section 156(3) Cr.P.C. in proper perspective. It further failed to consider that compromise has already been arrived in proceeding u/s 138 of NI Act, then in such a situation direction for registration of criminal case is unsustainable. The parties were having transaction which was purely of civil nature and, therefore, same cannot be converted into criminal proceedings. The impugned order reflects non-application of mind. Learned counsel in support of his contentions has placed reliance on the decisions in the cases of Manoj Jain Vs. State of M.P and another, 2014 (3) MPHT 302 , Sachin Raosaheb Jadhav Vs. State of Maharashtra, 2015 Cr.L.J. 733, Vijayander Kumar Vs. State of Rajasthan, Laws (SC) 2014, K. Thankamani and etc. Vs. The Inspector General of Police Kozhikode and others, 2002 Cr.L.J. 1992, Kamlesh Pathak and others Vs. State of Madhya Pradesh and another, 2005 (3) MPHT 426 , Ramdev Food Products Pvt.Ltd. Vs. State of Gujarat, 2015 Cri.L.J. 2382 and Mangli Prasad and others Vs. Additional Sessions Judge and another, 1996 Cri.L.J. 3596. 6. In the present case, there is no dispute that the applicants executed sale agreements in respect of lands bearing Khasra No.692/7, 693/7 & 694/7 area being 0.10 hectares and Khasra No.695/3 & 696/9 area 0.129 hectares, total area 0.230 hectares for consideration of Rs.9 lacs in favour of the complainant and his mother on 22.3.2014 and received Rs.8 lacs and there was balance of Rs.1 lac. Similarly, the applicant No.2 has executed sale agreement in respect of land situated at Kh.No.602/4 area 0.117 hectares, PH No.24, village Mehandiwara, Tahsil Waraseoni, District Balaghat in favour of the complainant for a sale consideration of Rs.10 lacs and received Rs.9 lacs and there was balance consideration for Rs.1 lac which was to be given at the time of registration. Similarly, the applicant No.2 has executed sale agreement in respect of land situated at Kh.No.602/4 area 0.117 hectares, PH No.24, village Mehandiwara, Tahsil Waraseoni, District Balaghat in favour of the complainant for a sale consideration of Rs.10 lacs and received Rs.9 lacs and there was balance consideration for Rs.1 lac which was to be given at the time of registration. Thus, in respect of both the sale agreements they received Rs.8 lacs and Rs.9 lacs, i.e. total Rs.19 lacs and balance Rs.1 lac for each of agreements remained, which was agreed to be paid at the time of registration i.e. on 31.1.2015 and 15.2.2015 respectively. But, there is allegation against the applicant No.1 that he mortgaged the aforesaid land in favour of State Bank, Waraseoni on 06.11.2013. 7. Likewise, the allegation against applicant No.2 is that she sold her land on 23.10.2013 to one Jagmohan s/o Gurudeo Singh. Subsequently, they have entered into sale agreement in favour of the respondent, therefore, the necessary factors for cheating are available in the present case. The applicants are very well aware about the mortgage and previous sale deeds. Even they executed sale agreement in favour of the complainant and his mother, and received total sale consideration of Rs.17 lacs. 8. In the prosecution under section 138 of NI Act the mens rea i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. But, in prosecution under section 420 of IPC the issue of mens rea can be relevant. There may be some overlapping of facts in the cases under section 420 of IPC and section 138 of NI Act, but ingredients of offences are entirely different. The essential ingredients of offence punishable under section 420 of IPC are - (i) There must be deception i.e. the accused must have deceived someone; (ii) That by the said deception. The accused must induce a person, (a) to deliver any property; or (b) to make, alter or destroy the whole or part of the valuable security or anything which is signed or sealed and which is capable of being converted into a valuable property. (iii) That the accused did so dishonestly. Both the cases are different. The dispute between the parties is not purely of civil nature. Hence, the case laws cited by the applicants are not applicable to the case at hand. (iii) That the accused did so dishonestly. Both the cases are different. The dispute between the parties is not purely of civil nature. Hence, the case laws cited by the applicants are not applicable to the case at hand. There may be compromise in proceedings under section 138 of the Negotiable Instruments Act, but on the aforesaid reasons the proceedings under section 420 of IPC cannot be quashed. 9. In the result, there is no merit in the revision. Accordingly, it is dismissed.