Prakash Paliya vs Smt. Suman Prajapati
2022 Latest Caselaw 1459 MP

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        The High Court Of Madhya Pradesh
                        Bench Gwalior
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SB:- Hon'ble Shri Justice Rajeev Kumar Shrivastava

MCRC No. 35016 of 2021

Prakash Paliya vs.

Smt. Suman Prajapati

============================== Shri Gaurav Mishra, counsel for the petitioner. Shri Lallan Mishra, counsel for the respondent.

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Reserved on                                   24/01/2022
Whether approved for reporting              ......../........
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                                  O R D ER
                         (Passed 02/02/2022)

Per Rajeev Kumar Shrivastava, J

By invoking the inherent power of this Court, the instant petition

has been preferred by petitioner u/S. 482 of CrPC for quashment of

Private Complaint No.697/2014 as well as subsequent criminal

proceedings pending before Court of JMFC, Sabalgarh, District Morena.

(2) In nutshell, facts giving rise to present petition are that

respondent complainant filed a Private Complaint before Court of

JMFC, Sabalgarh, District Morena alleging that on 10/07/2013, her

husband had purchased a Hero Honda CD Deluxe motorcycle from the

agency of petitioner and on 09/08/2013, he had paid Rs.6,500/- for

registration and insurance of vehicle. Thereafter, husband of petitioner,

namely, Rampratap Prajapati expired on 30/08/2013 by which Merg

No.0/13 u/S.174 of CrPC was recorded at Police Station Morar.

Thereafter, respondent requested petitioner as well as made a complaint

to In-charge Police Station Kailaras, and the Superintendent of Police,

Morena for getting registration and insurance of the vehicle in question

but of no avail.

(3) The statements of the complainant and her witness Bijendra were

recorded u/Ss. 200 & 202 of CrPC. It is pleaded by the complainant that

her husband had purchased the said vehicle in the year 2013 and

Rs.6,500/-, in advance, was given to the petitioner for registration and

insurance of vehicle. On 30/08/2013, after death of her husband, again

and again, she requested the petitioner to get vehicle registered and to

hand over insurance papers but of no avail, therefore, she submitted a

complaint before police authorities vide Annexure C1. The complainant

also produced evidence regarding postmortem of her husband-deceased,

receipt in regard to purchase of vehicle and a complaint made to police

authorities, on the basis of which it was found that on 10/07/2013, the

husband of petitioner had purchased the aforesaid vehicle from M/s.

Adarsh Auto Sales and Rs.6,500/- was given in advance on 09/08/2013

vide Annexure C5 to the petitioner for registration and insurance of

vehicle.

(4) Learned JMFC, vide order 13/08/2018, after perusing the

documents available on record and recording the statements of

complainant and her witness, took cognizance against the petitioner u/S.

406 of IPC.

(5) Respondent filed a complaint under Section 12 of Consumer

Protection Act before the District Consumer Forum Morena. Summons

was issued to petitioner, who denied to accept same. Neither petitioner

could appear before the Forum nor file any reply. Afterwards, the

respondent filed an affidavit along with some documents and

photographs and an ex parte order was passed on 19/08/2015 by the

Forum in Claim Case No. 207 of 2014 and it was directed that petitioner

shall pay Rs.6,500/- along with interest @ 8% p.a. to complainant within

a period of thirty days including Counsel fee and cost of complaint i.e.

Rs.1,500/-. In pursuance of order passed by the Forum, petitioner paid

an amount of Rs.9,085/- to the complainant respondent through a cheque

vide Annexure P3. Being aggrieved by the order of taking cognizance

dated 13/08/2018, passed by the learned JMFC, Sabalgarh, the present

petition has been filed, at the instance of the petitioner.

(6) Challenging the impugned order passed by the learned JMFC, it

is submitted by learned counsel for the petitioner that the complainant

has no locus to file a private complaint. It is submitted that the instant

complaint is nothing, but the abuse of process of law in order to create

pressure on the petitioner to take financial advantage. Learned JMFC has

committed a material irregularity or illegality in taking cognizance

ignoring the fact that in compliance of order dated 19/08/2015, passed

by the Forum, the petitioner has already paid an amount of Rs.9,085/- to

the respondent through a cheque. Therefore, the complainant has made a

false and vexatious private complaint, which is liable to be set aside. It is

further submitted that there is bar to take cognizance after lapse of

period of limitation as per the provisions of Section 468 of CrPC and no

Court shall take cognizance of an offence after expiry of period of

limitation. Therefore, the criminal proceedings have been maliciously

initiated with an ulterior motive against the petitioner. It is further

submitted that from the report submitted by police authorities before

Court of JMFC, it is evidence that no offence under Section 406 of IPC

is made out against the petitioner. Therefore, in the light of judgment

passed by Hon'ble Apex Court in the matter of Satish Mehra vs. State

of NCT of Delhi and Anr, reported in AIR 2013 SC 506, the criminal

proceedings can be quashed at the advanced stage. Hence, prayed for

setting aside the order of taking cognizance by the Court of JMFC, dated

13/08/2018 by allowing this petition.

(7) Per contra, counsel for the respondent supported the impugned

order passed by the learned JMFC. It is submitted that the petitioner has

committed an offence of criminal breach of trust, therefore, the petitioner

is liable to be punished under Section 406 of IPC. Learned JMFC has

rightly taken cognizance after perusing documents or evidence available

on record. Therefore, petition deserves for its dismissal.

(8) Heard the learned counsel for the parties at length and perused the

impugned orders as well as documents available on record.

(9) Section 406 of IPC reads as under:-

''406.Punishment for criminal breach of trust.-- Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.''

(10) So far as the provisions for taking cognizance by a Magistrate is

concerned, Section 468 of CrPC runs as under:-

''468. Bar to taking cognizance after lapse of the period of limitation.

''(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub- section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be-

(a) six months, if the offence is punishable with fine only

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c)three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years.

For the purposes of this section, the period of limitation in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.''

(11) The Hon'ble Supreme Court in the matter of Kamal Shivaji

Pokarnekar v. State of Maharashtra, reported in (2019) 14 SCC 350

has held that quashing the criminal proceedings is called for only in a

case where the complaint/FIR does not disclose any offence or is

frivolous, vexatious, or oppressive. If the allegations set out in the

private complaint/FIR do not constitute the offence of which cognizance

has been taken by the Magistrate, it is open to the High Court to quash

the same. It is not necessary that a meticulous analysis of the case should

be done before the Trial to find out whether the case would end in

conviction or acquittal. If it appears on a reading of the complaint/ FIR

and consideration of allegations therein, in the light of the statement

made on oath that the ingredients of offence are disclosed, there would

be no justification for the High Court to interfere in the matter.

Similarly, in the case of State of Harayana Vs. Bhajan Lal & Others

reported in 1992 SCC (Cri) 426 the Hon'ble Apex court has observed as

under:-

''(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;

(2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code ;

(3) where the un-controverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;

(4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code;

(5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no

prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; (6) where there is an express legal bar engrafted in any of the provisions of the code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

(7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. ''

(12) Considering the aforesaid backdrop of the case, it is crystal clear

that this petition is not maintainable against the private complaint made

by the complainant/ respondent, however, it is open to the petitioner/

accused to approach before the Court of JMFC over the place of offence

if he deems appropriate and in turn, the concerning JMFC will follow the

procedure prescribed under the provisions of Criminal Procedure Code.

It is made clear that this Court has not expressed any opinion on the

merit of case whether the private complaint discloses any criminal

offence or not.

(13) So far as the relief claimed by the petitioner is concerned, the

same is dependable upon the evidence collected during the trial of case,

therefore, at this juncture, protection cannot be exceeded to the petitioner

and the same is liable to be rejected. So far as the grievance raised by the

petitioner for quashment of criminal proceedings as well as for setting

aside the order of taking cognizance is concerned, it is not for this Court

to interfere in this matter by exercising the powers under Section 482

CrPC and it is for the trial Court/Magistrate to consider the material

evidence collected during trial and decide the same in accordance with

law.

(14) Accordingly, this petition lacks merits and is hereby dismissed.

The reasons assigned by this Court while dismissing this petition are

sound reasons and, thus, call for no interference. In the present case, no

grave miscarriage of justice has occurred which would warrant

interference by this Court u/S. 482 CrPC. It is needless to mention here

that learned trial Magistrate/ Judge shall proceed with the trial on his

own discretion without being influenced from order of this Court. This

Court feels it appropriate to issue a word of caution that the observations

in this order have been made by the Court considering the limited scope

of interference. The Trial Magistrate/Judge is expected to decide the trial

strictly in accordance with the evidence which would come on record

without getting prejudiced by any of the observations.

(Rajeev Kumar Shrivastava) Judge

MKB

Digitally signed by MAHENDRA BARIK Date: 2022.02.03 11:32:46 +05'30'