Shri Shridhar Vinayak Modgi vs Shri Ravindra Khanderao Hajare ...
2002 Latest Caselaw 1051 Bom

JUDGMENT

J.G. Chitre, J.

1. Heard counsel for the parties.

2. The petitioner is challenging the order which has been passed by the J.M.F.C. dated 7.10.1997 whereby the learned Magistrate has issued the process taking the cognizance of the complaint filed by Respondent No. 1 in context with the offences punishable under provisions of Section 420, 406, 417, 418 of IPC. The contention of the petitioner is that when a civil suit is pending in respect of the same property, in context with the same transaction, there cannot be a criminal prosecution in respect of the same. Shri Gupte has submitted that the contentions raised by the petitioner in the petition challenging the said order are not correct and do not deserve to be entertained. He submitted that when this Court is requested to exercise the powers in view of provisions of Section 482 of Criminal Procedure code, 1973 (hereinafter referred to as "Code" for convenience), this Court has to be very cautious in exercising such power. He submitted that as far as the challenge put to said order is concerned, the petition will have to be dismissed.

3. This Court finds force in the submissions advanced by Shri Gupte. There is no provisions of law restricting such initiation of criminal prosecution on the same set of facts and circumstances which have been placed before the Court for adjudication in a civil suit. There is no applicability of doctrine of "Res judicate" in criminal trials. A defendant in a civil suit can also be prosecuted on the same set of facts and circumstances if they decipher an offence or offences. if such a complaint in filed before a criminal court what the criminal court has to do is to apply its judicial mind and ascertain whether an offence has been spelled out by the averments made in the complaint by itself. For such satisfaction the annexures to complaint can also be seen. The Court is at liberty to examine the complainant alone or with other witnesses produced by him for satisfying itself in this context as indicated by Chapter XV of the Code, more particularly in view of provisions of Sections 200, 202 of the Code.

4. In the present case, the complainant alleged that the petitioner purchased Block No. 165 from Ambegaon measuring 24 Ares from the petitioner by paying him consideration in terms of money. He has also alleged that while purchasing the said land the complainant trusted the petitioner and trusted the entires in the 7 x 12 extracts shown to him by the petitioner. He further alleged that though 24 Ares land was to be sold to him, the complainant-respondent No. 1 was given only 8.5 Ares and when a suit was filed he filed the mischievous written statement and denied the averments made by respondent No. 1-complainant.

5. Section 415 of IPC provides that 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". Explanation provided to this section provides that a dishonest concealment of facts is a deception within the meaning of this section. Therefore, if the averments-allegations made in the complaint are seen, it would reveal that prima facie a case in context with an offence indicated by provisions of Section 415 of IPC had been made out which is co-related with Section 420 of IPC so far as the present case is concerned because the respondent No. 1 has delivered cash to the petitioner in respect of the said purchase transaction and in view of that a sale deed was executed by the petitioner in favour of respondent No. 1 and certain amount was handed over to him. Thus, the learned Magistrate was right is issuing the process in the context with an offence which is punishable under provisions of Section 420 of IPC.

6. Section 417 can also be considered in this context but when the property has been parted with by the person so deceived, Section 417 would not come in picture because that section indicates the transaction of cheating simplicitor. Here the person deceived has parted with the property and therefore offence indicated by Section 420 I.P.C. would come in picture. Therefore, the Magistrate committed the error in issuing the process in context with an offence punishable under Section 417 of IPC.

7. Section 418 would not also come in picture at all because there was no duty on the petitioner to protect the interest of respondent No. 1 In the same way Section 406 would not also come in picture because there is no entrustment of the property and there is no directions given to the petitioner to execute the trust and behave in that context and there is no allegation that the petitioner committed a criminal breach of trust.

8. Thus, the cognizance taken by the Magistrate in respect of the offence punishable under Section 406, 417, 418 of IPC stands quashed. The Magistrate Courts are cautioned that they should before issuing the process consider the provisions of law in context with the allegations made by the complainant in the complaint presented before such Courts. They have to be careful in seeing that they do not burden such accused with unnecessary offences which complaint does not decipher keeping in view the provisions of law prevalent. It causes the agony, expenditure to such person/persons.

9. Thus, the petition stands partly allowed. The order taking the cognizance passed by the Magistrate, Pen dated 7.10.97 sands modified. Petitioner to face the prosecution before that Court in respect of Section 420 of IPC only. Stay to the hearing of the said criminal prosecution passed in view of the order of this Court dated 19-11.97 stands vacated. The petitioner should remain present before that court on 29-10-2002. If he does not remain present, the said Court should issue a summons to him directing him to appear before it on a particular date which should be fixed by that Court. Record if called be dispatched to that Court.