ugh §$n§b IIN THE HON’BLE HIGH COURT OF CHHATTISGARH AT BILASPUR er.M.P; No.53 g /2oo7*" PETITIONER NON APPLICANT k W w 5 W Rameshwar Sharan Singh Dev, S/(x A Shiv Bahadur Singh, Aged about 53 years, R/o: Dhaurpur Palace, Police Line Ambikapur, Police Station Ambikapur, District Surguja (CG) ““ \).,‘\..« 0 VERSUS ” i RESPONIfE§Tgo \\ Krishna Prasad Gupta, S/o. Vishnu AP ‘N‘T Prasad Gupta, Aged about 58 years, R/o. Deviganj Road, Ambikapur, District Surguja,(CG) PETIION UND R SECTION 482 OF THE CODE OF CRIMINAL ‘ ‘ PROCEDURE 1973 / ‘ a A T 1 HIGH Qf3UR? OF CHHA?T§S$ARH. $ELA$§3EJR Cr. NLP Rm. 553 a? 23$? Single Bemh: Han’bSe Mr. Ty. Shanna, Jadge APPL‘ICANT Rameshwar Sharan Singh Dev, S/e Shiv Bahadur Singh, Aged abcut 53 years, Rfo Dhaumur Paiaca Poiice Line Ambmapur, Peiice Station Ambikapur. Dis€rici8arguja (CG) Vemu$ Krishna Prasaci Gupia S/o Vishnu Prasad Gupta, Aged about 58 years, R/o Deviganj Raad‘, Ambikapur, District 3 _ Sarguja PETiTiON UNER SECTBGN 482 OF THE CG§E GF CRIMINAI. PRGCEDURE 1$?3. Piesem: Shri Manoi Paraniape counsel for the aapiicam. Shri Praniod Kuéqér Verma Sr. Advocéte with Shri Sumit Verma coun$ei far the non—appiicant. i GRDER (Passed on 23--February, 2008) The applicant has prefen’ed this petition against the order dated 31.1Q.2607, passed by the learned Sessions Judge! Sarguja, Ambikapur in Criminal Revisicn N0. 26$f20€i6 by which the order dated 189.2966 passed by the Judiciai Magistrate First Ciass, Ambikapur, was set aside. 2. Non-applicant filed a compiaint under section 420 of the IPC against the present applicant befare the Judiciai Magistrate First ciass. After examining the compiainant and his witnesses under section 200 of the Code of Criminai Procedure (for snort the Code) anot obtaining i the report under section 156(3) oi the Ceee iearned Magistrate _ ;;/ d%smisse~:i iha ccm‘elami umier semian 2&3 0f i%ie Sarge. Avainst the ‘ § omer ‘pas‘sed by legmw Magi$trata revisioa wa3 preferred befoa'a SessidnsJudw, Ambikapur. Learned $essi$n$ Judge aHaWaed the revisicm and set aside tha omer passed by Iaamed Magés‘tmie am: ci§rected for registratiom sf the mmmaint Lima,“ Seczmn 420 of {he WC. x - ‘ The appiicam ha'a‘ triad m impeach the emer pas$ed by ieamed \on ihe gfound tha’t Whiie gassing the owe? in revisien Couri wazs mt amb’étent t0 direct ‘ihe Judis§ai Magistra‘ze Fim C§a3$ _ § for reg§st¥atien of me (:Qmpiaint under seczian 420 of the QPC. 4. Hemcé caLmsei f0! the parties aad pemSed the owe? Empugnea‘ arid the orda“ of :he JuéédaE Magistrate First Ciass, and aim the dacumenis fiieci by the parties. 5i Perusei of the compiaint shows that the present appiicant is no’: ihe Qwner of land beafing khasra No. 4979 area 0.210 Hectares but kmwing weii this fact he entered into an agreement for saie of ihe said arid. witri the neneeeiicant and reeeived Rs. 50,DOO/— as advance err $122004 but he did not execute the saie deed in iavour of the non- appiicent. After inquiry non—appiicant came to know that the appiicant is not the owner of the property in question and with a View to deceive him the aooiicant has shown himseif to be the owner of the said property and entered into an agreement with the non-appiicant for safe of the same. Moreover, the appiicant has not returned the advance sum of Rs. 50,000/- to the non-appiicant. 6. Afterexamining the complainant and the witnesses, learned Judicial Magistrate First Class arrived at the conclusion that since the dispute is of civH nature, it does not constitute the effence nunishable under sec§icn 420 of the IPC, and dismissed the compiaini. 7. In fevision after taking into considem‘imn the'material availabie - on record the learned Sessions Judge whiie allowing the revision and directing for registration of the comiaint under section 420 of the IPC bxrzthe" impugned order has arrived at the conclusion tha‘: the appiicant ’is mt ner of the aforesaid mentioned property but by conceaiiog the truth ‘ ed; into an agreement with the non—appiicant for its e ' sale and this important fact was not consioiered by the Judiciai Magistrate First Ciass. 8. it is argued on behaif of the appiioant that there is no materiai avaiiabie on record for taking cognizance and issuing of process under Section 203 of the Code. it is aiso submitted that the disnute invoived in this case is purely of civii nature it is submitted that whiie deaiing with the powers under Section 398 of the Code the Revisionai Court is not competent to pass the order for registration of the compiaint and therefore the order impugned suffers from jurisdictional error. Reliance is placed on behalf of the applicant on the decision of the High Court of Madhya Pradesh in the matter of Rajaram Gupta and others Vs. Dheramchand Gupta and others reported in 1&83 i‘iiPLJ 5a in which it is heid that the only order that can he made by the revising Court under section 398 of the Code is for a “further enquiry”. No direction in the nature of putting any impediment in the judicial discretion to be exercised by the Lower Court has to be made. Further reiiance'is pieced on the decision of the Supreme Court in the matter of Ganesh Narayan Hegde Vs. S. Bangarappa and others reported in (’i 995%- w r $CC M in which it is held that dismissal 0f rev§s§on by Sessions Judge doe3 not bar the High Court from exercising ifs inherent powers. Hewever, the High Court shouid not act as a seccnd revisionai court nor‘can it enter into merits of the case and pronounce upen the truth amt correctness of the complaint or defence it can interfere onty to prevent abuse of process of court or otherwise to secure the ends of mgr reliance is placed on the decision of the Supreme Court uresh vs. Mahadevappa Shivappa §enannava reponedgin" 2005 AIRKSCW 989 in which it is held that if the allegations in the complaint make out a civil dispute and the complaint is time barred, then no order taking cognizance and issuing process can be passed. 9. it is submitted that the act alleged against the appiicant is purely of civil nature and therefore initiation of criminal proceedings would amount to abuse of process of law. Retiance is pieced on the decision of the Supreme Court in the matter of Wits indian Oit Corporation Vs. Mfs NEPC indie Ltd. and others reported in 2d0$ NR SCW 3839 in which it is held as under: i ‘While on this issue, it is necessarv to take notice of a - growing tendency in business circies to convert purely civil disputes into criminal cases. This is obviously on account of a prevaient impression that civil law remedies are time consuming and‘do not adequately protect the interests of fenders/creditors. Such a tendency is seen in several family disputes also, leading to irrer‘rievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminar’ prosecution, there is ' a Iikeiihood of imminent settlement. Any effort to settle civil disputes and claims, which do not invoive any criminai offence, by 1 applying pressure though criminal prosecution could be deprecated and discouraged. " S 7§{ Q. Om the other hand the order impugned is supported by éhe counsse! :far ihe nan-appiicani l: is submmw on behai?‘ sf the non- appiicant that the order msaed by the reviSianai Comt is seif expianatow and the materia! avaitable on recard §s sufficient far taking cognizance and issuing bro-sass against me appEcam esaeciailv in tha iight of the orderdated 18.7.2002 passed §n Civil Suit No. 82~N1§9$3 ‘ ' §ecificauy stated that the land bearing khasra No. 4978 is recorded'in th e of the appiicant but the mutation is iltegai and no titie is created m favdur. of the appiioant. Property in dispute in Civil Suit No. 82-N1 999 was‘ the [and beaiing Khasra No.4982 but Whiie discussing the case of the parties it is specificaiiy mentianed in the ordei' that the land bearinq Khasra No. 4979 ie recorded in the name of the appiicant but the iand does not beiong to him. After passing of the order in the civil case the applicant was required to get the order rectified. lt was also his duty to inform the facts to the non—appiicant but without informing the facts he entered into‘an agreement for sale of the said nropertv with him. it is submitted on behalf of the non applicant that the facts of the case may constitute a civii dispute but at the same time they also make out a criminal case for deceiving a person fraudulently and dishonestiy to deliver the property which is punishabie under section 420 of the IPC. 10. Material avaiiabie on record does not show oniy the dispute of civil nature but it also shows sufficient around for initiation of the criminal proceedings against the appiicant. While deaiing with revisional power under section 398 of the Code the High Court or the Sessions Court may direct the Chief Judiciai Magistrate for making n & @ inquiry jnto the camplaint which has been dismissed under section 203 of the Code. Inquiry under section 398 ofthe Qede iS not further inquiry and the trial Ccurt is mt required ta take additiona! eviderice. Further inquiry inciudes recomideraticri ofthe materiai availabie on record. 11. Whiie taking cognizance and issuing procees under section 204 of the Code, the Judiciai Magistrate #irs‘i Class is required to consider prime facie case for issuing process is made out on the te ai“ produced by the compieinant. if on the materie! produce‘dgbiy e commainant it appears that the aiieged offence is also a dispute of civii nature then also the Magistrate is competent to take cognizance and issue process under section 204' of the Code. Court while deaiing with revisionai jurisdiction under section 398 of the Code is required to pass an order in terms of Section 398 of the Code for further inquiry and further inquiry envisaged under section 398 of the Code does not necessarily inciude any further recording of evidence or ceiling of material. Re-appreciation of the material available on record and reconsideration of the facts wouid inciude the words "further inquiry”. x \g whe’g basis o 12. Learned Sessions Judge White passing the order impugned has directed registration of the complaint under section 204 of the IPC. Technically, the order directing registration of the complaint under section 420 of the IPC is not in accordance with the provisions contained in section 398 of the Code. 13. Consequentiy, the revision is partly aiiowed and the order impugned is modified to the extent that the direction for registration of compiaint for the offence punishable under section 420 of the IPC is « a f ‘ m, Q set aside. Learned Judicial Magistrate First Ciass, Ambikapur, i3 directéd to re—appreciate the material avaiiable an record and pass the order afresh.