Madhya Pradesh High Court
Vinod Kumawat vs Somsundar Nadar on 1 December, 2023
Author: Vivek Rusia
Bench: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 1 st OF DECEMBER, 2023
MISC. CRIMINAL CASE No. 38449 of 2023
BETWEEN:-
1. M/S LAKSHMI DAL MILL A PARTNERSHIP FIRM
HAVING ADDRESS AT B/7/269/1,2 BYE PASS ROAD
UNJAMPATTI THENI (TAMIL NADU)
2. SOMASUNDARAM S/O SHAKTIVEL NADAR, AGED
ABOUT 61 YEARS, OCCUPATION: BUSINESS 1530,
KOTTAIKALAM STREET THENI DISTRICT THENI
TAMIL NADU (TAMIL NADU)
3. MAHESH @ MAHESHWARAN S/O SHAKTIVEL
NADAR, AGED ABOUT 60 YEARS, OCCUPATION:
BUSINESS 1530, KOTTAIKALAM STREET THENI
DISTRICT THENI TAMIL NADU (TAMIL NADU)
4. SHRAWAN KUMAR S/O ARUNACHALAM, AGED
ABOUT 52 YEARS, OCCUPATION: SERVICE 14A/2,
FOREST ROAD, SECOND STREET THENI DISTRICT
THENI TAMIL NADU (TAMIL NADU)
.....APPLICANT
(BY SHRI BALDEEP SINGH GANDHI, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH STATION
HOUSE OFFICER THROUGH POLICE STATION
SANYOGITAGANJ INDORE (MADHYA PRADESH)
2. VINOD KUMAWAT S/O LAXMINARAYAN
KUMAWAT, AGED ABOUT 58 YEARS,
OCCUPATION: BUSINESS B-8/29, BASANT VIHAR,
NANAKHEDA UJJAIN (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SUDHANSHU VYAS, ADVOCATE)
MISC. CRIMINAL CASE No. 9690 of 2014
Signature Not Verified
Signed by: RAVI PRAKASH
Signing time: 12/4/2023
6:55:38 PM
2
BETWEEN:-
VINOD KUMAWAT S/O LAXMINARAYAN KUMAWAT,
AGED ABOUT 46 YEARS, OCCUPATION: BUSINESS 227
IIND FLOOR RAJ PLAZA CHHAWNI INDORE (MADHYA
PRADESH)
.....APPLICANT
(BY SHRI SUDHANSHU VYAS, ADVOCATE)
AND
1. SOMSUNDAR NADAR S/O SHRI SHAKTIVEL, AGED
ABOUT 51 YEARS, OCCUPATION: BUSINESS 1530
KOTTUIKALAM PERIYAKULAM MAIN ROAD
THENI TOWN DISTT.THENI (TAMIL NADU)
2. MAHESH @ MAHESHWARAN S/O SHRI
SHAKTIVEL, AGED ABOUT 49 YEARS,
OCCUPATION: BUSINESS 1530, KOTTUIKALAM
PERIYAKULAM MAIN ROAD, THENI TOWN
DISTRICT THENI TAMILNADU (TAMIL NADU)
3. SHRAWANKUMAR @ SARVAN KUMAR S/O SHRI
ARUNACHALAM, AGED ABOUT 41 YEARS,
OCCUPATION: SERVICE FOREST ROAD, SECOND
GALI THENI TOWN DISTRICT THENI TAMILNADU
(TAMIL NADU)
4. P.S. SANYOGITAGANJ STATE OF M.P. INDORE
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI BALDEEP SINGH GANDHI, ADVOCATE)
MISC. CRIMINAL CASE No. 8849 of 2015
BETWEEN:-
S. SOMASUNDARAM S/O SHRI S. SAKTHIVEL, AGED
ABOUT 52 YEARS, OCCUPATION: BUSINESS 1530,
KOTTAIKALAM STREET, PERIYAKULAM ROAD THENI
(TAMILNADU) (TAMIL NADU)
.....APPLICANT
(BY SHRI RAJESH YADAV APPEARING ON BEHALF OF SHRI VIVEK
SINGH, ADVOCATE)
AND
Signature Not Verified
Signed by: RAVI PRAKASH
Signing time: 12/4/2023
6:55:38 PM
3
1. THE STATE OF MADHYA PRADESH STATION
HOUSE OFFICER THRU. P.S. SANYOGITAGANJ,
INDORE (MADHYA PRADESH)
2. VINOD KUMAWAT S/O LASHMINARAYAN
KUMAWAT, AGED ABOUT 48 YEARS,
OCCUPATION: BUSINESS 8/29, BASANT VBIHAR
,NANAKHEDA, UJJAIN (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SUDHANSHU VYAS, ADVOCATE)
These applications coming on for order this day, the court passed the
following:
ORDER
Regard being had to the similitude of the offence, with the joint request of
the parties, these M.Cr.Cs. are finally heard and being decided by this common
order. Facts of M.Cr.C. No.38449 of 2023 are narrated hereunder.
02. The applicants have filed the present M.Cr.C. under Section 482 of
the Code of Criminal Procedure, 1973 seeking quashment of F.I.R. registered at
Crime No.711/2014 at Police Station - Sanyogitaganj for offence punishable
under Section 420/34 of the Indian Penal Code. The applicants are also
challenging the order dated 22.07.2023 passed by Judicial Magistrate First
Class, Indore, whereby the application filed under Section 239 of the Cr.P.C.
has been rejected.
03. Draped in brevity, the relevant facts are that complainat filed a private
complaint under Section 200 of the Cr.P.C. before the Court of JMFC, against
the present applicants alleging commission of offence under Sections 420 &
406 of the IPC disclosing that he is a proprietor of a Firm namely Venkateshwar
& Company having TIN, CST Number and Mandi License No.V98. Applicants
No.2 to 4 are partners of M/s Lakshmi Dal Mill (applicant No.1) engaged in the
business of food grains.
04. In the month of March, 2012, they came to the shop of complaint at
Raj Plaza through broker Suresh Kumawat and submitted an offer to do the
business of sale and purchase of grains. On the basis of said dealing, the
complainant started sending the food grains to the accused / applicants to the
State of Tami Nadu. In the month of April, 2012, the opening balance was
Rs.32,43,108/- which they agreed to pay to the complainant. Thereafter, the
complainant sold various food grains up to 18.04.2013 valued Rs.5,60,28,197/-
out of which the applicants paid only Rs.4,52,03,570/-. According to the
complainant, by way of planning the accused persons initially purchased the
goods and paid the amount but later on, they have withheld the payment and
finally, declined to make the payment of Rs.1,08,24,627/-, therefore, they said
to have committed cheating with him and breach of trust. It is further submitted
that the complainant visited the State of Tamil Nadu on 07.09.2013 and only
lame excuses and promises were given for payment, thereafter, they stopped
contacting him. Hence, the complaint was made to the police, but the same was
not registered. In support of the complaint, statements of witnesses were
recorded before the Court. Thereafter, the learned Magistrate issued a direction
on 24.09.2014 to Police Station - Sanyogitaganj under Section 156 of the
Cr.P.C. for conduct an investigation. After registration of F.I.R. at Crime
No.711/2014, charge-sheet was filed on 22.02.2016 under Section 420/34 of the
IPC. Now, the charges have been framed and the trial is pending since then.
05. The applicants filed an application under Section 239 of the Cr.P.C.
for discharge. The application was opposed by the complainant and vide order
dated 22.07.2023, learned Court has dismissed the same. The learned Court has
examined the role of each and every applicants / accused and found that there is
no material in the charge-sheet which can be considered to discharge them.
Applicant No.3 - Mahesh @ Maheshwaran has admitted the business
transaction from the year 2010 - 13 and pleaded that entire amount has been
paid and there is a recovery of Rs.8,00,000/- from the complainant, however,
no such document has been filed, therefore, the learned Court has rejected the
aforesaid contention. Hence, the present M.Cr.C. is before this Court.
06. Learned counsel for the applicants placed reliance upon a judgment
delivered by the Apex Court in the case of Anil Mahajan v/s Bhor Industries
Limited & Another reported in (2005) 10 SCC 228, wherein the Apex Court
has held that fraudulent and dishonest intention must be shown to be existing
from the very beginning of the transaction and mere allegation of failure to
keep the promise at a subsequent stage, offence of cheating cannot be made
out.
07. I have heard learned counsel for the parties at length and perused the
record.
08. The complainant in his complaint as well as statement specifically
alleged that from the very inception their intention was to commit breach of trust
and forfeit his money in a planned way.
09. Even otherwise, the complainant is fighting for his claim since 2014.
Offences which punishable under Section 420 of the IPC is a compoundable
offence. The applicants / accused are businessman and they could have
submitted an offer for settlement of this dispute instead of contesting the case
since last more than nine years. Had they bonafide intention towards
respondent No.2, who is small business trader in their comparison, they would
have offered for settlement with him. It was very difficult for the complainant to
fight against these applicants by visiting again and again to the State of Tamil
Nadu to recover his amount, therefore, it would not be proper to interfere with
the trial at this stage after a lapse of nine years.
10. In view of the above, M.Cr.C. No.38449 of 2023 stands dismissed.
The order passed by this Court in this case shall govern M.Cr.C. No.8849 of
2015 also, hence, the same is also dismissed.
11. The complainant has also filed M.Cr.c. No.9690 of 2014 seeking
quashment of order dated 17.11.2014, whereby the accused persons namely
Somsundar Nadar, Mahesh @ Maheshwaran & Shrawankumar @ Sarvan
Kumar were granted bail.
12. There is no allegation that the accused persons have misused the
liberty of bail or obtained the bail by presenting wrong fact by misleading the
Court. The offence punishable under Section 420 of the IPC is traiable by
Magistrate. In view of the law laid down by the Apex Court in the case of
Arnesh Kumar v/s The State of Bihar reported in (2014) 8 SCC 2734,
bail has rightly been granted. No case for quashment of order dated
17.11.2014 is made out.
13. Accordingly, M.Cr.C. No.9690 of 2014 also stands dismissed.
Let a copy of this order be kept in the connected M.Cr.Cs. also.
(VIVEK RUSIA)
JUDGE
Ravi
