Chattisgarh High Court
Nitin Jain vs Vikrant Kumar Shukla And Anr on 1 October, 2021
Page 1 of 11
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRMP No. 127 of 2016
Reserved on : 02.08.2021
Delivered on : 01.10.2021
Nitin Jain, S/o Tikamchand Jain, Aged About 38 Years, R/o Chawal
Line, Hatri Bazar, Durg, Police Station- City Kotwali, Durg, District-
Durg (C.G.)
---- Petitioner
Versus
1. Vikrant Kumar Shukla, S/o Late Ajhakumar Shukla, Aged About
38 Years, R/o Purani Basti, Kohka, Bhilai, Police Station-
Supela, Bhilai, District- Durg (C.G.)
2. Jitendra Singh Gil, S/o D.S. Gil, Aged About 38 Years, R/o
Quarter No. 410, Street No. 1/A, Shanti Nagar, Police Station-
Supela, Bhilai, District- Durg (C.G.)
---- Respondents
For Petitioner : Ms. Fouzia Mirza, Sr. Advocate
with Ms. Smita Jha, Advocate.
For respondents : Mr. Shrawan Agrawal, Advocate.
Hon'ble Shri Justice Narendra Kumar Vyas
C.A.V. ORDER
1. The petitioner has filed the present petition under Section 482 of
the Code of Criminal Procedure, 1973 challenging the order
dated 14.08.2015 (Annexure A/4) passed by learned Judicial
Magistrate First Class, Durg (C.G.) by which, the complaint filed
by the petitioner for registration of offence against the
respondents for committing offence punishable under Sections
420, 467, 468, 471 read with Section 120B of I.P.C. has been
dismissed by recording finding that after appreciating the
preliminary evidence, there is no sufficient ground to proceed
further. Thereafter, Criminal Revision No. 178/2015 (Annexure
A/1) preferred by the petitioner has also been dismissed by
Additional Sessions Judge, Durg (C.G.) vide order dated
14.10.2015. Both the orders have been assailed by the
petitioner in this petition.
2. The facts projected by the petitioner, in brief, are that the
petitioner and respondent No. 1 entered into an agreement on
11.12.2012 for sale of diverted residential land area
admeasuring 0.33 Hectare bearing Khasra No. 258/38 situated
at Village- Borsi, Patwari Halka No. 19/23, Revenue Circle Durg-
01, Tahsil & District- Durg (C.G.) for Rs. 1,15,00,000/-. The
petitioner in pursuance of the said agreement paid Rs.
16,00,000/- in cash and Rs. 9,00,000/- through cheque No.
04041243 dated 17.12.2012 drawn at IDBI Bank Limited,
Branch- Durg. As such, total Rs. 25,00,000/- was paid as
advance and remaining amount of Rs. 90,00,000/- was to be
payable at the time of execution of sale deed. The agreement
was signed by respondent No. 1. The agreement dated
11.12.2012 was cancelled due to non-demarcation report and
another agreement dated 13.01.2014 was executed between
the petitioner and respondent No. 1, wherein, respondent No. 2
has signed in the agreement as witness.
3. It has been contended by learned counsel for the petitioner that
respondent No. 2 has himself approached the petitioner for sale
of land and even respondent No. 2 is involved in the criminal
conspiracy with respondent No. 1. After execution of second
agreement, the petitioner approached respondent No. 1 on
13.01.2014 for execution of sale deed, but they avoided the
same. The petitioner sent legal notice on 30.01.2014 with regard
to registration of agreement, but no reply has been submitted by
respondent No. 1 and when the petitioner requested him to
release the amount, he refused the same. Thus, the respondent
No. 1 & 2 have committed offence of cheating to the petitioner
and committed fraud of Rs. 25,00,000/- with the petitioner. The
petitioner has made complaint on 30.04.2015 to the In-charge,
Police Station- Durg, but no action has been taken, therefore,
the petitioner has filed complaint under Section 156 (3) of the
Cr.P.C. before the Judicial Magistrate First Class.
4. The petitioner to substantiate his contention, recorded
preliminary statement of himself, Anupam Jain, Pushpendra Jain
on 16.07.2015. The petitioner/complainant has deposed that
respondents have not executed any agreement with owner of
the property and has received the said amount as advance,
thus, they have committed fraud. The other witnesses examined
by the complainant have also deposed that the complainant has
requested representative of Anupam Jain with regard to
examination of the land, but he has said that no agreement has
been executed by respondents on behalf of Anupama Jain, thus,
they have committed fraud. The other witnesses have also
deposed in the same manner. The learned Judicial Magistrate
vide its order dated 14.08.2015 dismissed the complaint filed by
the petitioner by recording finding that "ifjoknh }kjk ,d iUus dk
cSad dk LVsVesaV dh Nk;kizfr is'k fd;k x;k gSA mDr cSad LVsVeasV esa izFke
i`"B layXu ugh gksus ds dkj.k ;g Li"V ugh gS fd mDr LVsVesaV fdl cSad
ds fdl O;fDr ds fdl [kkrk Øekad dk gSA mDr cSad LVsVesaV ls fnukad
[email protected]@2012 dk foØkar 'kqDyk dks ukS yk[k :- vkgfjr gksuk nf'kZr gksrk
gSA mDr vkgj.k psd Ø- 40123 ds ek/;e ls fd;k tkuk izrhr gksrk gS
tcfd ifjokn i= esa ukS yk[k :- psd Øa- 04041243 ds ek/;e ls vfHk;qDr
dks iznku fd;k tkuk mYysf[kr gSA
mDr leLr rF;ksa dks ,d lkFk laiw.kZrk esa fopkj djus ij izdj.k esa
ifjoknh rFkk lk{khx.k ds izkjafHkd lk{; dh iqf"V ugh gksuk ,oa vkxs
dk;Zokgh djus gsrq i;kZIr vk/kkj ugh gksuk izrhr gksrk gSA "
5. Thereafter, the petitioner preferred Criminal Revision No.
178/2015 before Sessions Judge, Durg which was transferred to
Additional Sessions Judge, Durg and the same was dismissed
by the Revisional Court by recording finding that there is dispute
between the revisioner and the respondents, which is of civil in
nature and civil dispute cannot be converted into criminal case,
as such, the learned Judicial Magistrate First has not committed
any illegality or irregularity in dismissing the complaint filed by
the petitioner. Accordingly, the revision application filed by the
petitioner has also been dismissed. The learned Revisional
Court has also recorded finding that in absence of any report, it
cannot be believed that respondent No. 1- Vikrant Kumar Shukla
has taken cash for Rs. 16,00,000/- and Rs. 9,00,000/- by
cheque as the petitioner failed to examine the witnesses from
the bank.
6. Learned counsel for the petitioner would further submit that it is
well settled by Hon'ble the Supreme Court that at the time of
issuance of process, the probity of the materials on record by
the prosecution or complainant has to be accepted as true for
that particular stage. The averments in the complaint and the
preliminary evidence and the documents on record certainly call
for issuance of process. It has been further well settled by
Hon'ble the Supreme Court that the Magistrate making an
enquiry under Sections 200 and 202 of Cr.P.C. has no
jurisdiction to weigh the evidence in golden scales as has been
done by both the courts below at this stage. It is the bounden
duty of the Magistrate to elicit all facts not merely with a view to
protect the interest of an accused who is absent but also with a
view to book a person against whom the allegations have been
made. What has to be seen is that whether there are sufficient
grounds for proceeding and not to see whether there are
sufficient grounds for conviction.
7. On the other hand, learned counsel for the respondents would
submit that initially agreement was executed on 11.12.2012 and
after its cancellation, subsequent agreement took place on
30.01.2014, but this long period, no complaint or objection was
raised by the petitioner/complainant. Even in the notice dated
30.01.2014, he would submit that he was cheated and it is
purely a civil dispute, which the petitioner has converted the
same into criminal case. He would rely upon the judgments of
Hon'ble the Supreme Court, where the civil dispute is existing
between the parties, invoked into criminal proceeding, which is
nothing but an abuse of process of law. Learned counsel for the
respondents would rely upon the judgments in Inder Mohan
Goswami & another Vs. State of Uttaranchal & others
reported in (2007) 12 SCC 1 (Page 42 & 46), Vesa Holdings P.
Ltd. & another Vs. State of Kerala & others, reported in
(2015) 8 SCC 293 (Page 12), Dalip Kaur & others Vs. Jagnar
Singh & another, reported in (2009) 14 SCC 696 (Para 10 &
12) & Mehmood Ul Rehman Vs. Khazir Mohmmad Tunda &
others, reported in (2015) 12 SCC 420 (Para 21 & Para 18, 19
& 20).
8. I have heard learned counsel for the parties and perused the
documents with utmost satisfaction.
9. From bare perusal of the complaint, it is crystal clear that the
complainant has enquired representative of owner of the land,
then he has informed that no agreement has been executed
between the petitioner & respondent No. 1 with regard to sale of
the property. No agreement has been executed and the
respondents are not owner of the land, but they have executed
agreement for the land that they do not owned, therefore, prima
facie, it is established that the respondents have caused loss by
criminal conspiracy and committed fraud with the petitioner by
taking a huge amount of Rs. 25,00,000/- as advance.
10. Hon'ble the Supreme Court in Kewal Krishan Vs. Surajbhan1,
has held in para 10 which is extracted as under.
"10. In the instant case, there was prima facie
evidence against Suraj Bhan accused which
required to be weighed and appreciated by the
Court of Session. At the stage of Sections 203 and
204, Criminal Procedure Code in a case
exclusively triable by the Court of Session, all that
the Magistrate has to do is to see whether on a
cursory perusal of the complaint and the evidence
recorded during the preliminary inquiry under
Sections 200 and 202, Criminal Procedure Code,
there is prima facie evidence in support of the
charge leveled against the accused. All that he has
to see is whether or not there is "sufficient ground
for proceeding against the accused. At this stage,
the Magistrate is not to weigh the evidence
meticulously as if he were the trial court. The
(1980) (suppl) SC 499
standard to be adopted by the Magi trate in
scrutinising the evidence is not the same as the
one which is to be kept in view at the stage of
framing charges. This Court has held in Ramesh
Singh's case (ibid), that even at the stage of
framing; charges the truth, veracity and effect of
the evidence which the complainant produces or
proposes to adduce at the trial, is not to be
meticulously judged. The standard of proof and
judgment, which is to be applied finally before
finding the accused guilty or otherwise, is not
exactly to be applied at the stage of framing
charges. A fortiori, at the stage of Sections
202/204, if there is prima facie evidence in support
of the allegations in the complaint relating to a
case exclusively triable by the Court of Session,
that will be a sufficient ground for issuing process
to the accused and committing them for trial to the
Court of Session".
11. Hon'ble the Supreme Court in Chandra Deo Singh vs. Prakash
Chandra Bose2, has observed in para 7 to 9 which are
extracted as under.
"7. Taking the first ground, it seems to us clear
from the entire scheme of Ch. XVI of the Code of
Criminal Procedure that an accused person does
not come into the picture at all till process is
issued. This does not mean that he is precluded
from being present when an enquiry is held by a
Magistrate. He may remain present either in
person or through a counsel or agent with a view
to be informed of what is going on But since the
very question for consideration being whether he
should be called upon to face an accusation, he
has no right to take part in the proceedings nor
has the Magistrate any jurisdiction to permit him
to do so. It would follow from this, therefore, that it
would not be open to the Magistrate to put any
question to witnesses at the instance of the
person named as accused but against whom
process has not been issued ; nor can he
examine any witnesses at the instance of such a
person. of course, the Magistrate himself is free to
put such questions to the witnesses produced
before him by the complainant as he may think
proper in the interests of justice. But beyond that,
he cannot go. It was, however, contended by Mr.
Sethi for respondent No. 1 that the very object of
the provisions of Ch. XVI of the' Code of Criminal
AIR 1963 SC 1430
Procedure is to prevent an accused person from
being harassed by a frivolous complaint and,
therefore, power is given to a Magistrate before
whom complaint is made to postpone the issue of
summons to the accused person pending the
result of an enquiry made either by himself or by a
Magistrate subordinate to him. A privilege
conferred by these provisions can, according to
Mr. Sethi, be waived by the accused person and
he can take part in the proceedings. No doubt,
one of the objects, behind the provisions of s.
202, Cr.P.C. is to enable the Magistrate to
scrutinise carefully the allegations made in the
complaint with a view to prevent a person named
therein as accused from being called upon to face
an obviously frivolous complaint. But there is also
another object behind this provision and it is to
find out what material there is to support the
allegations made in the complaint. It is the
bounden duty of the Magistrate while making an
enquiry to elicit all facts not merely with a view to
protect the interests of an absent accused person,
but also with a view to bring to book a person or
persons against whom grave allegations are
made. Whether the complaint is frivolous or not
has, at that stage, necessarily to be determined
on the basis of the material placed before him by
the complainant. Whatever defence the accused
may have can only be enquired into at the trial. An
enquiry under s. 202 can in no sense be
characterized as a trial for the simple reason that
in law there can be but one trial for an offence.
Permitting an accused person to intervene during
the enquiry would frustrate its very object and that
is why the legislature has made no specific
provision permitting an accused person to take
part in an enquiry. It is true that there is no direct
evidence in the case before us that the two
persons who were examined as court witnesses
were so examined at the instance of respondent
No. 1 but from the fact that they were persons
who were alleged to have been the -associates of
respondent No. 1 in the first information report
lodged by Panchanan Roy and who were alleged
to have been arrested on the spot by some of the
local people, they would not have been
summoned by the Magistrate unless suggestion
to that effect had been made by counsel
appearing for respondent No. 1. This inference is
irresistible and we hold that on this ground, the
enquiry made by the enquiring Magistrate is
vitiated. In this connection; the' observations of
this court in Vadilal Panchal v. Dattatraya Dulaji
Ghadigsonkar (1), may usefully be quoted "The
enquiry is for the purpose of ascertain- ing the
truth or falsehood of the complaint that is, for
ascertaining whether there is evidence in support
of the complaint so as to justify the issue of
process and commencement of proceedings
against the person concerned. The section does
not say that a regular trial for adjudging the guilt
or otherwise of the person complained against
should take place at that stage for the person
complained against can be legally called upon to
answer the 'accusation made against him only
when a process has issued and he is put on trial."
8. Coming to the second ground, we have no
hesitation in holding that the test propounded by
the learned single judge of the High Court is
wholly wrong. For determining the question
whether any process is to be issued or not, what
the Magistrate has to be satisfied is whether there
is "sufficient ground for proceeding" and not
whether there is sufficient ground for the
conviction. Whether the evidence is adequate for
supporting the conviction can be determined only
at the trial and not at the stage of enquiry. A
number of decisions were cited at the bar in which
the question of the scope of the enquiry under s.
202 has been considered. Amongst those
decisions are : Parmanand Brahmachari v.
Emperor, 1930 Pat 30, Radha Kishun Sao v. S.
K. Misra, AIR 1949 Pat 36, Ramkisto Sahu v. The
State of Bihar, AIR 1952 Pat 125; Emperor v. J.
A. Finan, AIR 1931 Bom 524 and Baidya Nath
Singh v. Muspratt ILR 14 Cal 141. In all these
cases, it has been held that the object of the
provisions of s. 202 is to enable the Magistrate to
form an opinion as to whether process should be
issued or not and to remove from his mind any
hesitation that be may have felt upon the mere
perusal of the complaint and the consideration of
the complainant's evidence on oath. The courts
have also pointed out in these cases that what the
Magistrate has to see is whether +,here is
evidence in support of the allegations, of the
complainant and not whether the evidence is
sufficient to warrant a conviction. The learned
judges in some of these cases have been at pains
to observe that an enquiry under HYPERLINK
"https://indiankanoon.org/doc/1149595/" s. 202 is
not to be likened to a trial which can only take
place after process is issued, and that there can
be only one trial. No doubt, as stated in sub-s. (1)
of s. 202 itself, the object of the enquiry is to
ascertain the truth or falsehood of the complaint,
but the Magistrate making the enquiry has to do
this only with reference to the intrinsic quality, of
the statements made before him at the enquiry
which would naturally mean the complaint itself,
the statement on oath made by the complainant
and the statements made before him by persons
examined at the instance of the complainant.
9. This brings us to the third ground. Section 203
of the Code of Criminal Procedure which
empowers a, Magistrate to dismiss a complaint
reads thus :
"The Magistrate before whom a complaint is
made or to whom it has been transferred,
may dismiss the complaint, if, after
considering the statement on oath (if any) of
the complainant and the witnesses and, the
result of the investigation or inquiry, if any,
under s. 202, there is in his judgment no
sufficient ground for proceeding. In such
case he shall briefly record his reasons for
so doing."
12. Hon'ble the Supreme Court in State of Bihar vs. Ramesh
Singh3, has observed in para 5 which is extracted as under:
"5. In Nirmaljit Singh Hoon v. The State of
West Bengal and an- other(1)-Shelat, J.
delivering the judgment on behalf of the
majority for the Court referred at page 79 of
the report to the earlier decisions of this Court
in Chandra Deo Singh v. Prakash Chandra
Bose(2) where this Court was held to have
laid down with reference to the similar
provisions contained in sections 202 and 203
of the Code of Criminal Procedure, 1898 "that
the test was whether there was sufficient
ground for proceeding and not whether there
was sufficient ground for conviction, and
observed that where there was prima facie
evidence, even though the person charged of
an offence in the complaint might have a
defence, the matter had to be left to be
decided by the appropriate forum at the
appropriate stage and issue of a process
could not be refused." Illustratively, Shelat J,
further added "Unless, therefore, the
Magistrate finds that the evidence led before
him is self-contradictory, or intrinsically
1977 (4) SCC 39
untrustworthy, process cannot be refused if
that evidence makes out a prima facie case."
13. From bare perusal of the complaint, it is crystal clear that prima
facie, allegation of commission of offence is made out in the
complaint against the respondents. As such, there is sufficient
material before the Judicial Magistrate First Class to issue
process to the respondents, despite this he has dismissed the
complaint which prima facie, suffers from non-application of mind
and thereafter the revisionary court has committed illegality in
rejecting the revision filed by the petitioner. Even, it has been
fairly settled by Hon'ble Supreme Court that though there may be
a civil dispute between the parties, but filing of a criminal case is
not barred as held by the Hon'ble Supreme Court in Priti Saraf
and another Vs. State of NCT of Delhi and another 4, wherein
it has been held paras 31 and 32 which are extracted as under.
"31. Be it noted that in the matter of exercise of
inherent power by the High Court, the only
requirement is to see whether continuance of the
proceedings would be a total abuse of the
process of the Court. The Criminal Procedure
Code contains a detailed procedure for
investigation, framing of charge and trial, and in
the event when the High Court is desirous of
putting a halt to the known procedure of law, it
must use proper circumspection with great care
and caution to interfere in the
complaint/FIR/charge-sheet in exercise of its
inherent jurisdiction.
32. In the instant case, on a careful reading of the
complaint/FIR/charge-sheet, in our view, it cannot
be said that the complaint does not disclose the
commission of an offence. The ingredients of the
offences under Sections 406 and 420 IPC cannot
be said to be absent on the basis of the
allegations in the complaint/FIR/charge-sheet.
We would like to add that whether the allegations
in the complaint are otherwise correct or not, has
to be decided on the basis of the evidence to be
led during the course of trial. Simply because
there is a remedy provided for breach of contract
or arbitral proceedings initiated at the instance of
the appellants, that does not by itself clothe the
court to come to a conclusion that civil remedy is
AIR 2021 SC 1531
the only remedy, and the initiation of criminal
proceedings, in any manner, will be an abuse of
the process of the court for exercising inherent
powers of the High Court under Section 482
CrPC for quashing such proceedings".
14. Thus, considering the facts from all angles, it is clear that the
learned Judicial Magistrate has committed illegality in dismissing
the complaint and thereafter the Revisional Court has further
committed material irregularity in dismissing the criminal revision
filed by the petitioner. Considering totality of facts and
circumstances of the case, I am of the view that the orders
passed by learned Judicial Magistrate First Class, Durg and
learned Additional Sessions Judge, Durg are liable to be and are
hereby set aside.
15. Learned Judicial Magistrate First Class, Durg is directed to
register the complaint and proceed with the matter in accordance
with law. It is made clear that this Court has not expressed
anything on merit of the case and it is for the learned Judicial
Magistrate First Class to apply his mind after considering the
facts of the case, evidence adduced before it during the course
of trial in accordance with law.
16. With the aforesaid observations and directions, the instant
petition is allowed.
Sd/-
(Narendra Kumar Vyas)
Judge
Arun
