Madhya Pradesh High Court
Sheikh Hyder Ali Choudhary vs Bhojraj Parmeshwar Karkera on 4 March, 2024
Author: Dinesh Kumar Paliwal
Bench: Dinesh Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
ON THE 4 th OF MARCH, 2024
CRIMINAL REVISION No. 248 of 2006
BETWEEN:-
1. SHEIKH HYDER ALI CHOUDHARY S/O SHEIKH
AHMAD ALI CHOUDHARY, AGED ABOUT 67
YEARS, R/O SHAKOOR BUILDING, FIRST FLOOR
FLAT NO.2, NEAR HARIJAN KALYAN POLICE
STATION BADI OMTI JABALPUR (MADHYA
PRADESH)
2. SMT.ANWARI W/O SHEIKH HYDER ALI
CHOUDHARY, AGED ABOUT 62 YEARS, R/O
SHAKOOR BUILDING, FIRST FLOOR FLAT NO.2,
NEAR HARIJAN KALYAN POLICE STATION BADI
OMTI JABALPUR (MADHYA PRADESH)
3. SHEIKH KAYADAT ALI CHOUDHARY S/O SHEIKH
HYDER ALI CHOUDHARY, AGED ABOUT 27 YEARS
R/O SHAKOOR BUILDING, FIRST FLOOR FLAT
NO.2, NEAR HARIJAN KALYAN POLICE STATION
BADI OMTI JABALPUR (MADHYA PRADESH),
.....APPLICANTS
(NONE)
AND
1. BHOJRAJ PARMESHWAR KARKERA S/O SHRI
PARMESHWAR KARKERA, AGED ABOUT 64
YEARS, R/O RAJ SHREE SAHU MARG (TELI GALI)
ANDHERI EAST MUMBAI (MAHARASHTRA)
2. THE STATE OF M.P. (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI J. S. PARIHAR-PANEL LAWYER FOR RESPONDENT NO.2/STATE)
Th is revision coming on for hearing this day, th e court passed the
following:
Signature Not Verified
Signed by: BIJU BABY
Signing time: 3/6/2024
11:01:30 AM
2
ORDER
None has appeared for the applicants. Learned Panel Lawyer for State is
heard.
2. It is an admitted revision, therefore it would be proper to decide it on
merit.
3. This revision under Section 397/401 of Cr.P.C. has been filed by the
applicants/complainants assailing the appeal judgment dated 25.10.2005 passed
by 5t h ASJ Jabalpur (M.P.) in Criminal Appeal No.318/2005 (Bhojraj
Parmeshwar Karkera vs. State of M.P. and others) whereby respondent
No.1/accused has been acquitted of the offence under Section 420 of IPC and
judgment dated 05.07.2005 passed by JMFC Jabalpur in Criminal Case
No.127/05 has been set aside.
4. On perusal of the judgment passed by Courts below, it is apparent that
a complaint was preferred by the applicants No.1 & 2 herein before the trial
Court. They are husband and wife and applicant No.3 is their son. It was
averred in the complaint that respondent/accused had induced them to invest
money in the business of Firm Omex Builder and Contractor. On 03.11.83,
accused received Rs.1,70,000/- as fixed deposit from applicant no.1 and
thereafter accused received Rs. 1,50,000/- on 23.10.91 as debt. On 19.06.92,
accused/respondent received Rs.2,30,000/- and executed Ex.P/3 document.
Again on 24.09.92, accused took a loan of Rs.1,30,000/- at the pretext of
booking of flat. As such, accused in total received Rs. 8,30,000/- from
applicant No.1/complainant. Thereafter on 15.07.92 and on 30.07.92 accused
gave three cheques, one cheque of Rs.25,000/- and two cheques of
Rs.10,000/-10,000/- each. When these cheques were presented in the bank they
stood dishonoured. However, accused paid aforesaid amount through demand
draft and paid Rs.5000/- in cash. It was averred that document executed on
24.09.92 is a forged document and he had received Rs.2,30,000/- by inducing
dishonestly with a fraudulent purpose. Therefore he was convicted by the trial
Court.
5. In appeal, learned Appellate Court re-appreciated the evidence of
witnesses and found that Anwari Choudhary (PW-2) and H.M. Shakeel (PW-3)
no where stated they had given money for booking a flat. In cross-examination,
H.M. Shakeel (PW-3) admitted that transaction was made for getting profit. No
agreement was produced before the Courts. Therefore, learned Appellate Court
rightly concluded that there was some loan transaction between the parties and
the allegation made by complainant that Rs.2,30,000/- were given to book the
flat is false. As such on screening of the evidence of the witnesses on record, it
is apparent that transaction between the parties was of civil nature and no
offence under Section 420 of IPC was made out because from the receipts
Ex.P/5, P/6 and D/3 to D/52, it is apparent that respondent had returned money
to the applicant from time to time. Thus, on scrutinizing of the evidence of
witnesses on record, it is apparent that learned Appellate Court has rightly come
to the conclusion that there was a loan transaction between the parties.
Therefore, learned trial Court was not justified to convict the respondent
No.1/accused for commission of offence under Section 420 of IPC as
necessary ingredients of Section 420 of IPC are completely missing.
6. In view of above and on meticulous examination of evidence of
witnesses on record, this Court finds no illegality, impropriety and
incorrectness in the appellate judgment.
7. Therefore, this revision being misconceived and without any merit, is
dismissed.
8. Trial Court record along with a copy of order be sent down to Court
concerned through Sessions Judge, Jabalpur.
(DINESH KUMAR PALIWAL)
JUDGE
b
