Dilip Shivhare vs The State Of Madhya Pradesh
2021 Latest Caselaw 6778 MP

                                                       1


        HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
                          JABALPUR.

(SINGLE BENCH : HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA)
                                     M.Cr.C.No. 39710/2020
                                            Dilip Shivhare
                                                      Vs.
                                  State of Madhya Pradesh
----------------------------------------------------------------------------------------------------------------
Ms. Samridhi Arora, Advocate along with Shri Somit Raizada,
Advocate for the petitioner.
Shri Sachindra Raghuwanshi, Panel Lawyer for the respondent
/ State.
Shri Umesh Tripathi, Advocate for the objector.
----------------------------------------------------------------------------------------------------------------
Whether approved for reporting : (Yes / No).
                                                ORDER

(25-10-2021)

This petition under Section 482 of the Code of Criminal

Procedure has been filed by the petitioner for quashment of the

FIR registered at Police Station Habibganj, District Bhopal (MP) for

the offence punishable under Sections 420 and 406 of the IPC and

the charge sheet and further proceeding in consequent thereto.

2. Facts giving rise to this petition, in shorts, are that the

petitioner entered into a partnership deed with the complainant -

Ashok Kumar Dubey on 10.4.2018, for the firm name and style of

M/s Dilip Shivhare by creating 10 percent partnership right in

favour of the complainant. The complainant time and again asked

for money from the petitioner, but the petitioner has never

returned the amount. It is further alleged that total amount of

Rs.1,50,00000/- (One Crore and Fifty Lacs only) has been

transferred from the Bank Account of complainant to the Bank

Account of the petitioner.

3. It is submitted by counsel for the petitioner that the

matter is purely a civil dispute of recovery of money between two

contracting parties and no element of criminality can be attributed

to the petitioner in the present case. No material of cheating and

Criminal Breach of Trust is made out against the petitioner and if,

any dispute arises with respect to partnership deed, the matter

may be referred to an Arbitrator and the award passed by the

Arbitrator shall be binding on all.

4. In support of her submissions, learned counsel for the

petitioner has relied upon the judgments of Hon'ble the Apex

court passed in the cases of Dilip Singh vs. State of M.P. and

another in Criminal appeal no.53/21 (arising out of SLP (Cri)

No.10484/19; Kapil Agarwal and others vs. Sanjay Sharma and

others in criminal appeal no.142/21 and Anand Kumar Mohatta and

another vs. State (NCT of Delhi), Department of Home and

another (2019) 11 SCC 706. Further relying upon the judgments of

this Court passed in the cases of Girish Bhatnagar vs. State of M.P

passed in M.Cr.C. No.4639/2017 decided on 28.04.2017; Jay Kumar

Dwivedi and others vs. State of M.P. and others passed in

M.Cr.C.No. 5654/2015 decided on 15.09.2017 and Aas Mohammad

vs. State of Madhya Pradesh passed in M.Cr.C.No.8789/2016

decided on 17.11.2016, prayed that the petition be allowed and the

FIR as well as the charge sheet and further proceeding in

consequent thereto be also quashed.

5. Per contra, learned counsel appearing on behalf of the

State has opposed the petition and prayed for its dismissal.

6. The learned counsel for the Objector has stated that

the petitioner has cheated him with Rs.1,73,33,596/-. The petitioner

is a habitual offender and he is involved in many cases of fraud and

forgery and also in other criminal cases at different places in

Madhya Pradesh even he has not paid dues of Excise Department.

Further submitted that as per the excise policy of M.P., the license

of the liquor shop is not permitted to enter into any partnership it

has been prohibited. The alleged partnership deed dated

10.04.2018 is a void document. The petitioner knowingly entered

into partnership with objector whereas he is one of the old liquor

contractor and was well aware that sub-letting of the contract for

running liquor shop or entering into a partnership was prohibited

as per the tender condition as well as license condition of the

liquor shop. Further submitted that the Assistant Commissioner

(Excise) also wrote a letter to the D.I.G. (Police), Bhopal, dated

15.7.2019 mentioning therein that the petitioner has not been

given any consent for sub-letting of the contract. Relying upon a

judgment of the Apex Court passed in the case of Kaptan Singh vs.

State of Uttar Pradesh and others in Criminal appeal no.787/21

decided on 13th August, 2021, prayed that the present petition has

been filed with mala fide intention and the same be dismissed.

7. I have heard learned counsel for the parties and have

minutely perused the entire material available on record.

8. It is evident that the petitioner persuaded the objector

to become as a partner after he has been granted licence, for

which no permission from Excise Department has been obtained. It

was not permitted by the rule that after obtaining of licence the

petitioner can induct a new partner in the business, so it is very

clear that from the very inception, petitioner acted with deception,

and on misrepresentation petitioner allured the objector to give

the petitioner Rs.80 lac by way of partnership deed and Rs.70 lac

by way of loan agreement.

9. The aforesaid cases relied upon by learned counsel for

the petitioner are of no avail in the present case because there was

deception from the very inception when the petitioner executed a

partnership agreement with the complainant. The petitioner has

been misleading the complainant and concealing the fact by way

of deception in the name of partnership agreement, petitioner

obtained Rs.80 lac and subsequently, in the name of loan

agreement received Rs.70 lac from the objector. Apart from it,

most of the cases upon which reliance has been placed by the

petitioner are relating to the Excise Act whereas the present case

is relating to the offence under Sections 420 and 406 of the IPC.

10. It is also evident from the record that the petitioner is

habitual to deceit the innocent people like the complainant and

several criminal cases of similar nature are registered at different

police station. Apart from it, on the one hand, the petitioner

himself made offer for depositing Rs.35 lacs and on the other hand,

he is not paying any heed to the orders passed by this Court as well

as by the trial court. After getting the bail order from the CJM,

Bhopal, he has not deposited Rs.35 lacs within 30 days from the

date of order and he is absconding, because of which, arrest

warrant has been issued against him and a show notice has also

been issued to his surety and resultantly, trial is held up for last

one and half year. The conduct of the petitioner itself shows that

he is a person of criminal mentality and profusely enjoying the life.

This is an anecdote of the petitioner.

11. The parameters of the jurisdiction of the High Court, in

exercising jurisdiction under Section 482 Cr.PC, are now almost

well-settled. Although it has wide amplitude, but a great deal of

caution is also required in its exercise. The requirement is, the

application of well known legal principles involved in each and

every matter. Adverting back to the facts of the present case, this

Court does not find any material on record which can be stated to

be of sterling and impeccable quality warranting invocation of the

jurisdiction of this Court under Section 482 Cr.PC at this stage.

More so, the defence as raised by the petitioner in the petition

requires evidence, which cannot be appreciated, evaluated or

adjudged in the proceedings under Section 482 of Cr.PC and the

same can only be proved in the Court of law. In this regard,

reliance can be placed upon decision of Hon'ble Apex Court

passed on January 31, 2020 in the case of "State of Madhya

Pradesh Vs. Yogendra Singh Jadon & Anr"., Criminal Appeal No.

175 of 2020 (Arising out of SLP (Criminal) No. 172 of 2017), wherein

it has been held that "the power under Section 482 of the Code of

Criminal Procedure, 1973 cannot be exercised where the

allegations are required to be proved in Court of law".

12. Accordingly, the petition is dismissed. However, the

Trial Court shall certainly consider and deal with the contentions

and the defence of the petitioner in accordance with law.

13. It is also made clear that the trial Court shall not

influence any of the observation made by this Court in this order at

the time of final disposal of the case.

(ARUN KUMAR SHARMA) JUDGE

JP/-

Digitally signed by JITENDRA KUMAR PAROUHA Date: 2021.10.26 11:02:46 +05'30'