Madhya Pradesh High Court
Manali vs The State Of Madhya Pradesh on 26 June, 2023
Author: Prem Narayan Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
ON THE 26 th OF JUNE, 2023
CRIMINAL REVISION No. 2391 of 2023
BETWEEN:-
MANALI D/O SUBASH CHANDRA AGARWAL,
AGED ABOUT 39 YEARS,
OCCUPATION: BUSINESS
R/o. 175 VIDHYA NAGAR, DISTRICT INDORE (MADHYA
PRADESH)
.....PETITIONER
(SHRI PRAMOD C. NAIR - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
STATION HOUSE OFFICER THROUGH
POLICE STATION AMBEDKAR NAGAR,
DISTRICT INDORE. (MADHYA PRADESH)
.....RESPONDENTS
( SHRI GOURAV RAWAT - DY. GOVT. ADVOCATE)
T h is revision coming on for orders this day, t h e cou rt passed the
following:
ORDER
With consent of the parties heard finally.
This criminal revision under Section 397/401 of Cr.P.C.has been filed by
the petitioner being aggrieved by the order dated 23.03.2023 passed by the Fifth
Additional Sessions Judge, Dr. Ambedkar Nagar, District Indore, wherein
charges under Section 420 of IPC in alternate Section 420/34, 409 of IPC, 1860
has been framed against the petitioner.
2. The petitioner has filed this revision petition on various grounds and
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Signed by: SUMATHI
Signing time: 28-06-
2023 18:20:53
submitted that learned trial Court has wrongly framed the charges without
considering evidence available on record. During the course of arguments, Shri
Nair has contended that the case against the applicant along with one co-
accused Mahesh Mittal has been falsely framed by FIR No.229/2019 on the
basis of written complaint of the complainant. It is further submitted that in the
course of investigation the charge of Section 409 of IPC was enhanced as per
allegation of prosecution the appellant along with her partner had executed the
sale agreement with the complainant and according to agreement it was
contracted that plot no.75 and 76 will be sold to complainant and in accordance
with the agreement, Rs.10.00 lakhs was received as advance. The said
agreement was executed on 06.05.2016, but the sale deed could not be
executed due to non obtaining completion certificate from RERA Real Estate
(Regulation and Development) Act, 2017.
3. Learned counsel for the petitioner has also contended that in the bail
petition, Hon'ble High Court has opined that prima facie, the dispute is purely
of civil nature, therefore, the charges framed against the petitioner is not in
accordance with law, hence the charges framed by learned trial Court are
therefore, not sustainable and it is requested to set aside the same.
4. Learned counsel for the State vehemently opposed the contentions of
the petitioner and submitted that defence of the petitioner cannot be considered
at the stage of framing of charges. The opinion expressed in bail order is not
binding upon the merits. The case is purely related to cheating and breach of
trust. Hence there is no infirmity or illegality in the order passed by the learned
trial Court accordingly, the revision petition filed by the petitioner deserves to
be dismissed.
5. In the considered opinion of this Court at this stage is that the only
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2023 18:20:53
point of determination in this case is as to whether the order of learned trial
Court dated 23.03.2023 is suffering from incorrectness, illegality or
impropriety?
6. In the light of the revision petition and the arguments advanced by
learned counsel for the parties, the impugned order of framing of charges has
been scrutinized in purview of the available record. As per prosecution case,
the execution of agreement of sale between the petitioner and the accused is an
admitted fact. It is also an admitted fact that during execution of agreement, the
petitioner has obtained Rs.10.00 lakhs from the complainant as consideration of
sale of property. On perusal of the record it emerges that the said consideration
of Rs.10.00 lakhs was only returned when the order of bail petition was passed
in favour of the petitioner. It is also unearthed by statement of the prosecution
witnesses recorded under Section 161of Cr.P.C the petitioner had denied to
execute the said sale deed in spite of continuous requests. Keeping advance
money of Rs.10.00 lakhs for a long time without any intention to execute the
sale deed creates the dishonest intention to deceive the complainant which is a
vital ingredient of cheating. So far a s charges under Section 409 of IPC is
concerned, as per prosecution case the petitioner is working as attorney or
agent of her father hence the charge framed under Section 409 of IPC is also
warranting no interference.
7. As far as the documents regarding defence are concerned at the stage
of framing of charges the defence of the accused could not be considered as
per the law. In this regard the law laid down by Hon'ble Apex Court in the case
o f State of Orissa vs. Debendranath Padhi reported as 2004 lawsuit SC
1408 is worth referring here:
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2023 18:20:53
"Further, at the stage of framing of charge roving and
fishing inquiry is impermissible. If the contention of the
accused is accepted, there would be a mini trial at the stage
of framing of charge. That would defeat the object of the
Code. It is well-settled that at the stage of framing of
charge the defence of the accused cannot be put forth."
8. The aforesaid stand of the Full Bench of Hon'ble Apex Court has also
been endorsed by Hon'ble Apex Court in another case rendered in VLS
Finance Limited vs. S.P. Gupta and another reported as 2016 Law suit SC
111. Further in this context, the land mark judgment of Hon'ble Supreme Court
rendered in the case of Maharashtra State vs. Priya Sharan Maharaj & Ors.
reported in AIR 1997 SC 2041 is propitious to reproduce here:
"The law on the subject is now well settled, as pointed out
in Niranjan Singh Punjabi v. Jitendra Bijjaya [(1990) 4 SCC
76 : 1991 SCC (Cri) 47 : AIR 1990 SC 1962] that at
Sections 227 and 228 stage the Court is required to
evaluate the material and documents on record with a view
to finding out if the facts emerging therefrom taken at their
face value disclose the existence of all the ingredients
constituting the alleged offence. The Court may, for this
limited purpose, sift the evidence as it cannot be expected
even at that initial stage to accept all that the prosecution
states as gospel truth even if it is opposed to common
sense or the broad probabilities of the case. Therefore, at
the stage of framing of the charge the Court has to consider
the material with a view to find out if there is ground for
presuming that the accused has committed the offence or
that there is not sufficient ground for proceeding against
him and not for the purpose of arriving at the conclusion
that it is not likely to lead to a conviction."
9. In this respect the learned trial Court has also referred to the judgments
of Hon'ble Supreme Court rendered in Sanghi Brothers (Indore) Pvt.Ltd vs
Sanjay Choudhary & Ors, reported in (2008)10 SCC 681, Soma
Chakraborty vs. State, reported in (2007)5 SCC 403 and Onkar Nath
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2023 18:20:53
Mishra & Ors vs State (NCT Of Delhi), reported in (2008) 2 SCC 561. In
these judgments, it is well settled by Hon'ble Supreme Court that at the stage of
framing of charges the probative value of the material on record cannot be gone
into, and the material brought on record by the prosecution has to be accepted
as true at that stage.
10. Before framing a charge the Court must apply its judicial mind on the
material placed on record and must be satisfied that the commitment of offence
by the accused was possible. At the juncture of framing of charges, the Court
has to prima-facie examine whether there is sufficient ground for proceeding
against the accused. The Court is not required to evaluate or analyse the
evidence in order to arrive at the conclusion that the materials furnished by
prosecution are sufficient for convicting the accused or not. In the case at hand
the finding of learned trial Court regarding prima-facie case against the accused
appears to be correct.
11. On this aspect the view of Hon'ble Apex Court rendered in a recent
case of State through Dy. Superintendent of Police vs. R. Soundirarasu etc.
reported as AIR 2022 SC 4218 is worth mentioning here:
"Thus, the revisional power cannot be exercised in a casual or
mechanical manner. It can only be exercised to correct
manifest error of law or procedure which would occasion
injustice, if it is not corrected. The revisional power cannot be
equated with appellate power. A revisional court cannot
undertake meticulous examination of the material on record as
it is undertaken by the trial court or the appellate court. This
power can only be exercised if there is any legal bar to the
continuance of the proceedings or if the facts as stated in the
charge-sheet are taken to be true on their face value and
accepted in their entirety do not constitute the offence for
which the accused has been charged. It is conferred to check
grave error of law or procedure."
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Signed by: SUMATHI
Signing time: 28-06-
2023 18:20:53
12. In the light of the aforesaid principles of law and factual matrix of
the case, there is no illegality, perversity or infirmity found in the impugned
order of the learned trial Court regarding framing of charges against the
petitioner, hence no interference is warranted by this Court. As a result thereof,
this revision petition, being devoid of merits, is dismissed and the impugned
order dated 23.03.2023 is hereby affirmed.
Certified copy, as per rules.
(PREM NARAYAN SINGH)
JUDGE
sumathi
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Signed by: SUMATHI
Signing time: 28-06-
2023 18:20:53
