Jagdish Prasad Shivhare vs Gopalsingh Kushwaha
2022 Latest Caselaw 5237 MP

                                                                      01

         THE HIGH COURT OF MADHYA PRADESH
                       CRR 1880/2019
  (Jagdish Prasad Shivhare Vs. Gopal Singh Kushwah & ors.)

Gwalior, Dated: 11.04.2022
      Shri R.K. Sharma, learned senior counsel with Shri Vijay Kumr

Agarwal, learned counsel for petitioners.

      Shri Sanjay Bahirani, learned counsel for respondents.

Petitioners have filed this petition being aggrieved by the order

dated 30.03.2019 passed by Special Judge (MPDVPK Act) Gwalior in

a complaint filed by the petitioners against respondents under Section

200 CrPC for the alleged offence punishable under Sections 323, 452,

395 of IPC and 11/13 of MPDVPK Act by which their complaint was

dismissed under Section 203 CrPC.

In brief, facts of the case for disposal of this criminal revision,

are that petitioners have filed a complaint for the offence punishable

under Sections 323, 452, 395 of IPC and 11/13 of MPDVPK Act

against respondents that petitioner No.1 is father of petitioner No.2.

They took premises in the ownership of respondent No.1 situated at

Hanuman Colony Bhind Road Gwalior for opening a hotel star gold

bar and restaurant on rent on 01.01.2012. After taking the aforesaid

premises on rent, they renovated the premises and by taking

permission of bar incurred expenditure to the tune of Rs.20-25 lakhs

and purchased AC, refrigerators, coolers etc. Upto March 2017,

without any hindrance they were running the aforesaid restaurant and

bar in the premises of respondent No.1 on rental basis. They got

registration in Shops and Establishment and Excise Department. From

15.09.2017 respondent No.1 refused to take rent and directed the

petitioner to vacate the premises of respondent otherwise action will

be taken to evict them. On 22.09.2017 an application was made to

SHO Police Station Gole Ka Mandir for inspecting the premises.

Police inspected the premises. Thereafter petitioner No.2 also filed a

civil suit for declaration and permanent injunction before XVth Civil

Judge Class II Gwalior. On 09.10.2017 in the evening at 4-5 pm

Manager of restaurant and bar Rakesh Shivhare informed petitioner

No.1 on his mobile that respondent No.1 Gopla alongwith respondent

No.2 Umashankar, Sanju, Brijesh, Sandeep, Jeetu and Devendra

resident of Jalalpur Gwalior alongwith 20-25 persons came on the

rented premises and by breaking lock of restaurant trespassed into the

restaurant and looted the furniture, AC, Coolers, fans, deep freezers,

crockery and other articles. When Rakesh Shivhare objected, they did

marpeet with him. On receiving the information, petitioner No1

alongwith his driver reached on the spot. He saw that manager Rajesh

Shivhare lying seriously injured. Articles of restaurant had been

robbed by the respondents. Then he had gone to Police Station Gole

Ka Mandir and gave a written complaint against respondents. He also

made a complaint to the C.M. Helpline.

On the report respondent No.1 a case for the offence punishable

under Section 323, 294, 506, 34 of IPC was registered against

relatives of petitioner at Police Station Gole Ka Mandir.

When police did not take any action, petitioner filed a

complaint before Special Judge (MPDVPK Act) to register a criminal

case against respondents under Sections 323, 452, 395 of IPC and

11/13 of MPDVPK Act. In support of the complaint, they produced

registration certificate of restaurant and bar. Complaint filed before

Police, CM Helpline and higher officers. During investigation

statements of both the petitioners and their manager Rakesh,

Surendra, Bhikam Singh and head constable Rakesh Mishra were

recorded.

It is admitted fact that respondent no.1 Gopal is the owner of

aforesaid premises. He gave aforesaid premises to the petitioner on

rent in 2012. A civil suit between petitioners and respondent No.1 is

also pending for adjudication before the Civil Court. Prima face

respondents No.1 evicted the petitioners from his premises but

petitioners are not ready to vacate the aforesaid premises.

Eye-witnesses Manager of petitioner Rakesh Shivhare has

stated that on 09.10.2017, he was working as Manager in the

aforesaid restaurant and bar of petitioner. He was sitting in the

parking at that time respondent No.1 alongwith other respondents and

20-25 persons having arms in their hand came in the aforesaid

premises and damaged the restaurant and started destroying the

articles inside the restaurant. Afterwards by keeping tables, chairs,

AC, Cooler, fridge, crockery material and cylinder in a tractor trolley

took away. He informed the owner of shop. Thereafter they tried to

lodge a report but police did not lodge FIR. Police told them to file a

written application. Despite they sustained injuries, Police did not

sent them for medical examination.

This witness nowhere in his statement has stated that at what

time respondents came in the aforesaid shop which is pertinent. He

has alleged that he got injuries but from the side of petitioners no

medical report was submitted alongwith complaint despite as per his

statement he got himself treated privately. He was having injuries on

his back, legs and hands.

Head constable Rakesh Mishra (PW-6) has stated that on

09.10.2017 petitioners filed a written complaint against respondents.

On receiving the said complaint he intimated about the same to SHO

SI Gajendra pachoria and on his oral instructions after putting the seal

of police station on the said complaint, a copy of the same was given

to the petitioners.

From the aforesaid facts and circumstances and evidence, it

appears that eviction of petitioners from the aforesaid premises was

major issue between the parties, due to which petitioners have lodged

private complaint. Despite this Police Station Gole Ka Mandir has

registered crime on the same day on 09.10.2017 bearing No.

614/2017 under Section 323, 294, 506, 34 of IPC against Manager of

petitioner Rakesh Shivhare and Shivram Shivhare on the complaint of

respondent, owner of premises Gopal. He has also filed a written

complaint against Manager Rakesh Shivhare, Satish Shivhare and

Shivram Shivhare and others that they were threatening him. Besides

this trial Court in its impugned order has held that petitioners have not

submitted any document that property belongs to them. There is a

civil suit already pending between the parties.

Learned counsel for petitioner has relied upon Umesh Singh

Vs. State of M.P. & Ors. 2019 (2) JLJ 52, Ganesh prasad Garg

Vs.General Manager, South East Coal Ltd. and ors. 2018 (3)

MPLJ 337, Kamal Shivaji Pokarnekar Vs. State of Maharashtra

& ors. 2019 14 SCC 350 and Jagdish Valecha Vs. State of M.P. &

ors. 2018 (1) MPLJ (Cri.) 498.

In Sau. Kamal Shivaji Pokarnekar v. The State of Maharashtra :

(2019) 14 SCC 350 , the Apex Court has laid emphasis on the

principles laid down in two of its previous judgments namely, State of

Karnataka v. M. Devendrappa : 2015 (3) SCC 424 and Indian Oil

Corporation v. NEPC India Ltd. & Ors.: (2006)6 SCC 736 and held

that quashing of criminal proceedings is called for only when the

complaint does not disclose any offence, or the complaint is frivolous,

vexatious, or oppressive and further clarified that defences available

during a trial and facts/aspects whose establishment during the trial

may lead to acquittal cannot form the basis of quashing a criminal

complaint. The criminal complaints cannot be quashed only on the

ground that the allegations made therein appear to be of a civil nature,

if the ingredients of the alleged offence are prima facie made out in

the complaint.

In Umesh Singh Vs. State of M.P. & ors. 2019 (2) JLJ 52 in

Para 9, the Apex Court has held:

"9. At the stage of taking cognizance and at the initial stage, the Court is not expected to go into the merits and demerits of the case and also examine the sufficiency or otherwise of the material adduced by the prosecution and the merits of the plausible defence set up by the accused. In the present case, the Chief Judicial Magistrate on the basis of charge-sheet and the material placed by the prosecution satisfied that there are prima facie materials to proceed against accused 2 to 5 and thereafter proceeded with the trial and this has been affirmed by the revisional Court also. While so, in our considered view, the High Court ought not to have gone into the merits of the matter and quashed the proceedings. This is all the more so, when the trial has already commenced and one of the witness has been already partially examined."

Upon perusal of the judgments relied upon by the petitioners,

this court is of the opinion that these judgments are not applicable to

the facts and circumstances of the case.

In view of aforesaid, this Court is of the opinion that learned

court below has not committed any error in passing the impugned

order. Hence, present criminal revision sans merits and is hereby

dismissed.

(Deepak Kumar Agarwal) Judge ojha

YOGENDRA OJHA 2022.04.12 19:02:49 +05'30'