Heeralal Mishra (Pyasi) vs State of Madhya Pradesh

This application is filed under Section 482 Cr.P.C. and is directed against the order passed by learned Judicial Magistrate First Class, Indore, in Criminal Case No.42816/2014, whereby learned Judicial Magistrate took cognizance against the present applicant under Section 420 of IPC.

The relevant facts for disposal of this application are that the respondent filed a criminal complaint against the present applicant under Section 420, 465, 467, 468 and 506 of IPC. Two witness were examined under Section 200 Cr.P.C. by the Magistrate. According to the facts stated in the complaint, the present applicant is the President of ''Madhuri Grih Nirman Sanstha''. The complainant took one plot on 23.08.1988 and deposited Rs.1,200/-, and thereafter, Rs.8,500/- against the price money of the plot. Thereafter, the present applicant informed the complainant by a letter dated 06.07.1996, that a railway line was passing through the land, and therefore, it was not possible to allot him the plot. When the complainant contacted Town and Country Planning Department, he was informed that there was no plan of any railway line passing through the relevant survey number. Thereafter, on many occasions, the complainant requested the accused to allot him the plot and hand over him the possession of the plot. However, no action was taken, and thereafter, he filed various complaints to senior police officer, but no action was taken, and therefore, the complaint was filed.

According to the averment made in the application, the complainant first filed a civil suit against ''Madhuri Grih Nirman Sanstha'', which was registered as Civil Suit No.CS29A/2001, th which was disposed of by judgment dated 20.08.2004 by 10 Civil Judge Class-I, Indore. The suit was dismissed. Against the judgment of dismissal, first appeal was filed before Additional District Judge, Indore, which was registered as F.A. No.5/2005. This appeal was also dismissed on 16.02.2005, and thereafter, a second appeal was filed before this Court, which was dismissed on 12.09.2007. After loosing his case before the Civil Court, the complainant approached the Deputy Registrar, Co-operative Societies under Section 64(1) of Madhya Pradesh Co-operative Societies Act. This matter was also disposed of by Deputy Registrar on 29.09.2015, and thereafter, after loosing from all the forums, the complaint was filed. (i) the applicant filed this application on the ground that no prima facie ingredients are present making out the case under Section 420 of IPC. (ii) the applicant acted as President of the society and he was not acting in his personal capacity. Whatever actions were taken by him were taken by the society and resolutions was passed by the society, and therefore, he personally cannot be held liable for any offence. The main dispute of the complainant is with the Sanstha and not with the applicant personally. (iii) the complainant is trying to convert the civil dispute into a criminal dispute, and thereafter, it is clear abuse of process of the Court.

Learned counsel for the respondent submits that the order taking cognizance is a revisable order, and therefore, the applicant should have filed a revision before revisional Court before approaching this Court and for this purpose, he cites the judgment of Hon''ble the Apex Court in case of Prabhu Chawla Vs. State of Rajasthan AIR (2016) SC 4245. In this case, it was held by the Hon''ble Apex Court that though the powers under Section 482 of High Court are not curtailed or governed by any other provisions in the Court, however, restrain must be observed by the High Court. Wherever efficacious remedy of revision was available, the applicant should be directed to first file a revision and then approach this Court.

In this view of the matter, looking to the facts stated in the application, this application is disposed of with direction to both the parties to appear before the Sessions Court, Indore, on 19.04.2017. The applicant is directed to file a revision against the order. It is further directed that the revisional Court shall take into consideration the fact that the applicant was pursuing his remedy before this Court while calculating period of limitation for filing a revision.

With such observations and directions as aforesaid, the matter stands disposed of.