THE HIGH COURT OF MADHYA PRADESH [ACT]No.9223/2016 (Ahosk Malpani vs. M/s Sanghi Brothers (Indore) Ltd.) 1 Indore, Dated: 22.03.2018 Shri [ENTITY], learned senior counsel assisted by Shri [ENTITY], learned counsel for the applicant. Shri [ENTITY], learned senior counsel assisted by Shri [ENTITY], learned counsel for the respondent. ORDER
This application under [SECTION] [ACT] has been filed by the accused taking exception to the order passed by the trial Court on 15.07.2013 passed in [CASE NUMBER] purportedly in compliance of the order passed by this Court on 02.03.2009 while disposing of [ACT] No.275/2008 as well as confirming order dated 04.03.2016 passed by the Additional Sessions Judge, Indore in [CASE NUMBER].
2. Before adverting to the factual matrix in hand, it is expedient to quote the relevant operative part of the order passed by this Court on 02.03.2009 (supra) :-
"In the present case the complaint was filed by the respondent in the year 2000 wherein the allegation against the petitioner is that petitioner has obtained the vehicles by cheating the respondent and thereafter misappropriated the properties. At the initial stage the petitioner has examined [ENTITY] as PW- 1, [ENTITY] as PW-2 and [ENTITY] as PW-3. After being satisfied prima facie that learned trial court took cognizance and notices were issued, thereafter again the petitioner has examined these witnesses except [ENTITY], at that time one more witness was examined namely [ENTITY]. It is true that the petitioner also submitted the report of the handwriting expert to demostrate that agreement does not bear the signature of the petitioner. At the stage of framing of charge the court has to make prima facie opinion that the offence is made out. When the offence is relating to documentary evidence then at the stage of 245 or 246 [ACT], court is not required to decide that the document is valid one or not because that fact can be decided at the time THE HIGH COURT OF MADHYA PRADESH (Ahosk Malpani vs. M/s Sanghi Brothers (Indore) Ltd.) of conclusion of trial.
In view of this, no illegality has been committed by the learned courts below in passing the impugned orders. Since charge has yet to be framed, therefore learned court below before framing of charge shall hear the arguments of the petitioner and petitioner shall be at liberty to demonstrate that even if the ingredients of the complaint and the evidence adduced by the respondent is taken into consideration in toto then too no offence has been committed by the petitioner. It is also made clear that learned court below shall pass the appropriate order without being impressed by any of the observation made by this court while deciding the case."
(Emphasis supplies)
3. A private complaint under [SECTION] [ACT] has been filed by the respondent alleging 'breach of trust and cheating' as defined under [SECTION] and [SECTION] of [ACT] on the part of the accused with the allegation that accused taking advantage of good relationship with the Directors of the Company managed to procure three dumpers, two JCB machines and one car on lease, and thereafter, converted into hire purchase agreement with an assurance of repayment of the value of the same, but, defaulted in making payment. In support of the said complaint, the complainant [ENTITY] and two witnesses, namely; [ENTITY] and [ENTITY] were examined at pre-charge stage. Upon registration of the complaint, process was issued to the petitioner. Thereafter, complainant [ENTITY] though examined and cross-examined, but the other witness [ENTITY] was not made available for examination, and instead, one [ENTITY] was examined. Other witness [ENTITY] was also examined.
4. The petitioner thereafter filed an application under [SECTION] HIGH COURT OF MADHYA PRADESH (Ahosk Malpani vs. M/s Sanghi Brothers (Indore) Ltd.) 245 [ACT] for discharge.
5. The trial court rejected the application giving rise to [ACT] No.275/2008 wherein this Court has passed an order on 02.03.2009, operative portion whereof has been quoted above.
6. Shri [ENTITY], learned senior counsel appearing for the petitioner contends that in the light of the order passed by this Court, the trial court was required to address as to whether the ingredients of the alleged offences are available in the complaint, and thereafter, pass necessary orders. The ingredients are as under :-
"The ingredient of [SECTION] 'Criminal breach of trust' is that the accused must have been entrusted with property or dominion over it and (2) the accused must have misappropriated the property or disposed of that property in violation of such trust. The Hon'ble Supreme Court in the case of [PRECEDENT] has held that an offence under [SECTION], [ACT], can be said to have been committed only when all the ingredients of that offence as defined in the statute are found to have been satisfied. The Hon'ble Supreme Court in the case of [PRECEDENT] has held that the doctrine of public trust cannot be invoked in fixing the criminal liability and the whole matter is to be decided on the principles of criminal liability.
The ingredient of [SECTION] Cheating are as under:-
(1) Deception of any person.
(2) (a) Fraudulently or dishonestly inducing that person
(i) to deliver any property to any person; or
(ii) to consent that any person shall retain any property; or
(b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
7. According to him, the complaint on its face value does not THE HIGH COURT OF MADHYA PRADESH (Ahosk Malpani vs. M/s Sanghi Brothers (Indore) Ltd.) suggest commission of offence either that of 'criminal breach of trust' as defined under [SECTION] [ACT] or that of 'cheating' under [SECTION] [ACT], inter-alia, contending that to constitute commission of offence, the first and foremost requirement is that of existence of an element of mens-rea, apart from fulfillment of other ingredients of the given offence. Para 2 of the complaint makes an evasive narration of facts alleging undue advantage taken by the petitioner of his good relationship with Directors of the company, but without naming directors in the matter of procurement of vehicles named above. He further contends that unless, the person named is taken into confidence to commit the offence of breach of trust and that of cheating, the ingredients are not fulfilled as mere assertion in the complaint of the alleged offence do not constitute the offence. That apart, narration of facts in the complaint in fact are in the realm of dispute of non- payment of the outstanding dues against the sale of vehicles and the dispute is primarily and predominantly that of civil nature. Hence, such a dispute cannot be given the colour of alleged act of criminal breach of trust or that of cheating.
8. Learned senior counsel further contends that the court below is required to take into account while dealing with a criminal complaint before taking cognizance thereof, as to whether, the alleged act in the complaint shall tantamount to commission of offence and it is the duty and obligation of the criminal court to exercise the jurisdiction with caution before issuing a process. He placed reliance upon the judgment of the Hon'ble Supreme Court in the case of G. Sagar Suri & Anr. vs. THE HIGH COURT OF MADHYA PRADESH (Ahosk Malpani vs. M/s Sanghi Brothers (Indore) Ltd.) State of U.P. & Ors. reported in [PRECEDENT] to bolster his submission.
9. Learned senior counsel further contends that in fact the instant proceeding initiated under [SECTION] [ACT] is an abuse of process of law and it shall be in the ends of justice for quashment of the criminal proceedings as further continuance of the same shall perpetuate into injustice and prevent dispensation of justice. He placed reliance upon the judgment of Hon'ble Supreme Court in the case of [PRECEDENT] to bolster his submission.
10. While criticizing the order impugned learned senior counsel contends that the trial Court has not addressed on serious questions as against sustainability of the complaint vis-a-vis the ingredients of the alleged offence. The trial court, in fact, construed the order passed by this Court as if it was required to re-decide the application for discharge under [SECTION] [ACT] instead [SECTION] [ACT], as is well deducible from the direction contained in the order passed by this Court. In other words, the trial court was required to exercise the power under [SECTION] [ACT] to ascertain whether ingredients of the offence are available in the complaint before proceeding with the trial on the complaint. That has not been done. Instead, the trial Judge by the impugned order has conveniently avoided to address the contention advanced in that behalf and, eventually held that the application under [SECTION] [ACT] is dismissed whereas no such application was pending before him while the THE HIGH COURT OF MADHYA PRADESH (Ahosk Malpani vs. M/s Sanghi Brothers (Indore) Ltd.) impugned order was passed.
11. Learned senior counsel submits that the approach of the trial court in compliance of the High Court's order (supra) was casual and influenced by predetermined notion having held that the objections with reference to the statements of the witnesses though touching the very existence of the allegations shall be dealt with during trial. According to him, there is no compliance of the order passed by this Court. Hence, prays either to quash the private criminal complaint or remit the case back to the trial court for decision afresh on the objections of the petitioner against the sustainability of the complaint in the light of the order passed by this Court (supra).
12. Per contra, Shri [ENTITY], learned senior counsel appearing for the respondent has raised a preliminary objection as against maintainability of the instant application under [SECTION] [ACT] as the same tantamounts to second revision, after dismissal of the revision petition by the Sessions Court by order dated 04.03.2016 (supra) as the same is barred under [SECTION] [ACT] Learned senior counsel relied upon the judgment of the Hon'ble Supreme Court in the case of [PRECEDENT] to bolster his submission.
13. Learned senior counsel further submits that the trial Court did not commit any illegality while passing the impugned order. The order so passed has been confirmed by the revisional court. Both the courts below have applied correct principles of law related to the scope of jurisdiction of the court at the stage of THE HIGH COURT OF MADHYA PRADESH (Ahosk Malpani vs. M/s Sanghi Brothers (Indore) Ltd.) framing of charge. He submits that the trial court only required to record its prima-facie satisfaction on the complaint and nothing beyond. He placed reliance upon the judgments in the cases of [PRECEDENT], [PRECEDENT] and [PRECEDENT]. Therefore, on the touch stone of law so laid down, the trial court has not committed illegality while passing the impugned order.
14. Heard learned counsel for the parties.
15. As regards the objection against the maintainability of this application under [SECTION] [ACT], the law as laid down by the Hon'ble Supreme Court in the case of [PRECEDENT] is relevant to be quoted.
" In case the impugned order clearly brings out a situation which is an abuse of the process of the Court, or for the purpose of securing the ends of justice, interference by the High Court is absolutely necessary, then nothing contained in [SECTION] can limit of affect the exercise of the inherent power by the High Court. Such cases would necessarily be few and far between. One such case would be the desirability of the quashing of, a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction "
16. In the case of [PRECEDENT], the Hon'bel Supreme Court observed as under :-
"The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a THE HIGH COURT OF MADHYA PRADESH (Ahosk Malpani vs. M/s Sanghi Brothers (Indore) Ltd.) particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."
17. In the case of [PRECEDENT] has held as under :-
"It is well settled that the object of the introduction of Sub- section (3) in [SECTION] was to prevent a second revision so as to avoid frivolous litigation, but, at the same time, the doors to the High Court to a litigant who had lost before the Sessions Judge was not completely closed and in special cases the bar under [SECTION] could be lifted. In other words, the power of the High Court to entertain a petition under [SECTION], was not subject to the prohibition under [SECTION] of the Code, and was capable of being invoked in appropriate cases. Mr. [ENTITY]'s contention that there was a complete bar under [SECTION] of the Code debarring the High Court from entertaining an application under [SECTION] thereof does not, therefore, commend itself to us."
18. Now, turning to the case in hand, this Court while disposing of [ACT] No.275/2008 on 02.03.2009 (supra) issued directions for compliance by the trial court in excise of the power under [SECTION] [ACT] quoted above, while responding to the plea of the petitioner that the alleged complaint is vexatious based on concocted document and non-existent facts tantamounting to misuse of process of law.
19. The petitioner had approached the trial court to address on THE HIGH COURT OF MADHYA PRADESH (Ahosk Malpani vs. M/s Sanghi Brothers (Indore) Ltd.) the availability of the ingredients of offence in the complaint vis- a-vis other material placed on record by way of documentary/oral evidence before proceeding with the trial. The trail court has chosen not to address on such pleas and concluded that such pleas shall be addressed during trial. As such, the trial court has patently refused to exercise the jurisdiction and the revisional court has affirmed the same. In the opinion of this Court and under the circumstances for securing interest of justice, interference by this Court exercising the inherent jurisdiction is necessary.
20. True it is that the revisional court has affirmed the said order but, the basic question as regards sustainability of the complaint has not been addressed by either of the courts below with the justification that at the stage of framing of charge only prima-facie satisfaction is to be recorded.
21. I am afraid even such requirement is not found to be fulfilled/satisfied by the trial court while passing the impugned order and, therefore, it cannot be said to be in compliance of the order passed by this Court, quoted above. There is a distinction as regards scope of enquiry in the matter of quashing of the complaint and in the matter of framing of charge on a private complaint. The trial court was required to address on the question of sustainability of the complaint in the light of the order passed by this Court. It appears that the trial court misconstrued and misinterpreted the order passed by this Court. In fact, the trial court was required to pass an order under [SECTION] [ACT] That appears to have not been done. The principles underlying THE HIGH COURT OF MADHYA PRADESH (Ahosk Malpani vs. M/s Sanghi Brothers (Indore) Ltd.) the judgments cited by learned senior counsel for the respondent/complainant are beyond the cavil of doubt, but are of no assistance to the respondent/complainant, as this Court has examined the order impugned in the context of the directions issued by this Court while disposing of [ACT] No.275/2008 (supra) and the scope of jurisdiction of the trial court in that context.
22. Consequently, the impugned orders since are not found to have been passed in right earnest as directed by this Court in [ACT] No.275/2008 (supra), the same is not sustainable and set aside. The trial court is directed to re-examine the complaint and the evidence placed on record while dealing with the objections raised by the petitioner in the light of the directions issued by this Court (supra) and pass an order exercising the power under [SECTION] [ACT], as expeditiously as possible.
23. This [ACT] stands allowed to the aforesaid extent and disposed of.
24. It is made clear that the observations, if any, made by this Court are only for the purposes of disposal of [ACT] and the trial court is required to give its finding without being influenced by the order so passed by this Court.
25. Registry is directed to transmit the record to the trial court, immediately.
([ENTITY]) Judge Kafeel