Girjesh Soni vs Radheshyam Guru

N.K. Gupta, J.—The applicant has moved a petition u/s 482 of the Cr.P.C. against the order dated 16.6.2010 passed by the learned 5th Additional Sessions Judge, Sagar in criminal revision No. 62/2010, whereby the order dated 29.1.2009 passed by the learned Chief Judicial Magistrate, Sagar in a complaint case No. 203/2007 was confirmed, whereby he framed the charges of offence punishable u/s 420 of IPC against the applicant. The facts of the case, in short, are that, the respondent No. 1 has lodged a criminal complaint against the applicant and other two persons that in the year 1988, the respondent No. 1 was interested to purchase a plot in Makroniya area of Sagar city. It was informed to him that the applicant was developing a colony Jyoti Nagar in that area. He was developing the colony in the land bearing survey No. 95/01. The applicant informed him that one plot having size 30 X 50 Square feet was available and a contract took place between the parties. On 30.5.1988, a sale deed was executed and it was executed by the co-accused Leeladhar and Champa Bai because the plot was in the names of those two persons and possession was given to the respondent No. 1. He constructed a house on that plot. In the year 1999, one Prem Kumar informed him that he had purchased that plot adjacent to the plot of the complainant but, the particulars of the plot purchased by the respondent No. 1 were the same as to Prem Kumar. When the complainant went to the applicant, a modification deed was certified with the help of the co-accused Leeladhar and Champa Bai and the complainant was assured that the meets and bounds of the plot as mentioned in the sale deed dated 30.5.1988 shall remain same. In the year 1998, Prem Kumar had lodged a civil suit, which was decreed with the direction that the house of the complainant be demolished and possession of the plot be handed over to Prem Kumar. Both the applications filed by the complainant were dismissed and ultimately, it was found that the plot was owned by Prem Kumar. Under such circumstances, the complainant has lodged a criminal complaint against the applicant and other two accused persons. The complaint was registered and the evidence before charge was adduced. Thereafter, the learned Chief Judicial Magistrate found that prima facie, no offence punishable under sections 418, 423, 469 or 468 of IPC is made out against the applicant but, offence punishable u/s 420 of IPC shall constitute with the help of section 34 of IPC.

I have heard the learned counsel for the parties.

The learned counsel for the applicant submits that the applicant was not at all involved in the sale of the plot. Those plots were sold by Leeladhar and Champa Bai and therefore, it cannot be said that he did any cheating with the complainant. It is further submitted that initially an agreement took place between the complainant and other accused persons on 2.2.1988. At that time no other plot was sold and therefore, the spot map shown in the agreement, indicates that on the North, South and West of the plot, the land was shown to be that of the seller, whereas a main road was shown in the Eastern side but, according to the contract, the complainant did not give the entire amount and therefore, no registry could be performed. Thereafter, by mistake, the plot was sold to one Prem Kumar Kanojiya and since sale deed was an earlier sale deed, he had won his civil suit. The meets and bounds of the plot sold to the complainant were changed and modified but, he himself constructed a house on the plot of Prem Kumar Kanojiya by his own mistake. It was a dispute of civil nature and no cheating was done by the applicant or other accused persons. The learned counsel for the applicant has placed his reliance upon the judgments passed by Hon''ble the Apex Court in case of Rama Devi Vs. State of Bihar and Others, and George Zacharia alias Raju Karuvamplakka Vs. T.K. Varghese and Another, . Reliance is also placed upon the order passed by the single Bench of this Court in case of "Arun Kumar Vs. State of M.P.", [(1982) WN Note 509] to show that the matter was a civil matter and prosecution for offence punishable u/s 420 read with section 34 of IPC could not be initiated.

On the other hand, the learned counsel for the respondent No. 1 has submitted that if it was in the knowledge of the sellers that the plot which was allotted to the complainant in the agreement, was already sold to Prem Kumar then, in the sale deed of the complainant a different vacant plot should be given to the complainant. When the complainant intimated that another purchaser Prem Kumar is claiming the same plot then, a modification was directed before the notary, whereas modification was required to be done before the Sub Registrar, Deeds and Documents. Under such circumstances, the complainant was not given any other plot by the sellers and he was directed to continue with the possession of the property which was already sold to Prem Kumar and therefore, the complainant had to contest the civil suit upto second appeal and ultimately, he had to vacate the plot. If the entire overt-acts of the sellers are considered then, it is a clear cut case of cheating. They could supply another plot to the complainant or they could return his sale amount with the pretext that no plot remained for the complainant but, the sellers have cheated the complainant and they sold a plot which was already sold to Prem Kumar. The accused Champa Bai and Leeladhar were the owners of the land bearing survey No. 95/01 and the applicant was developing a colony and he was selling the plots with the help of the owners of the agricultural land. Under such circumstances, the charges are properly framed against the applicant.

After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is apparent that the sellers have sold the same plot to the complainant, which was already sold to one Prem Kumar. It was not a clerical mistake but, when the complainant approached to the sellers, a modification deed was certified before the notary to create an eye wash to the complainant and ultimately, the complainant lost his civil suit and he had to vacate the plot, whereas, he had already constructed a house on that plot. Under such circumstances, prima facie, it is a case of cheating. It is not simply a civil transaction.

Since prima facie it is a case of cheating and therefore, the judgment passed by Hon''ble the Apex Court in case of Ramadevi (supra) and George Varghese (supra) and orders passed by the single Bench of this Court in cases of Arun Kumar (supra) cannot be applied in the present case due to difference in the factual position. So far as the overt-act of the applicant is concerned, it would be apparent that Krishna Murari Sen (P.W. 1) and Radheshyam Guru (P.W. 2) have stated about the entire transaction and it is prima facie clear that Leeladhar and Champa Bai were the sellers of the land being the landlords and the applicant was the actual seller, who committed the crime with the help of other co-accused persons. The fruits of the sale were obtained by the applicant. Under such circumstances, the testimony of Krishna Murari Sen and Radheshyam Guru cannot be overlooked at this stage. By evidence of these two persons, prima facie, a case for offence punishable u/s 420 read with section 34 of IPC is made out against the applicant and therefore, if the trial Court has framed the charge of offence punishable u/s 420 read with section 34 of IPC against the applicant then, no mistake has been committed by the trial Court.

On the basis of the aforesaid discussion, there is no reason by which the present petition u/s 482 of the Cr.P.C. filed by the applicant Girjesh Soni may be accepted. Consequently, the petition u/s 482 of the Cr.P.C. filed by the applicant Girjesh Soni is hereby dismissed.

Since the petition is dismissed the interim stay granted vide order dated 25.2.2011 is also automatically vacated. A copy of the order be sent to the trial Court with the direction that the trial Court shall proceed with the trial, without any delay.