Mohd. Shamshad and Another vs State of U.P. and Another

R.A. Singh, J.—I have heard Shri Anoop Trivedi, learned Counsel for the revisionist, Shri Devendra Dahma learned Counsel appearing for Respondent No. 2 and learned A.G.A. for Respondent No. 1 on this revision at length and perused the record.

This revision was reserved for judgment. Now I proceed to decide this revision through this judgment.

This revision has been filed against the order dated 18.3.2008 passed by Chief Judicial Magistrate Aligarh in Criminal Case No. 2081 of 2008, State v. Mohd. Shamshad and Anr. whereunder the cognizance was taken and the revisionists were summoned to face trial under Sections 420, 471 and 506, I.P.C.

It transpires from the record that the Respondent No. 2 Radhey Lal Sharma lodged a first information report against Mohd. Shamshad and Mohd. Ashfaq on 10.1.2008 at 5.30 p.m. at P.S. Banna Devi district Aligarh with this allegation that on 24.3.2003 Mohd. Shamshad executed an agreement to sell in favour of the informant Radhey Lal Sharma and another in respect of his land of khasra No. 673 measuring 3 biswa, khasra No. 674 area 8 biswa, khasra No. 675 area two biswa, 676 area 6 biswa and khasra No. 691 measuring 18 biswa situated at Qasba Koil near Gular Road, district Aligarh after receiving Rs. 20,000 as advance money. The complainant, Radhey Lal Sharma asked Mohd. Shamshad several times to execute the sale deed after receiving the rest of consideration but he made pretext one or another. The complainant came to know about dishonesty of the accused Mohd. Shamshad at the time when a dispute arose between Km. Sarika Varshney alias Bhawna and Mohd. Ashfaq, brother-in-law of Mohd. Shamshad in respect of the same land, to this effect that accused Mohd. Shamshad and Mohd. Ashfaq executed a sale deed in favour of Sarika alias Bhawna on 6.9.2005 by concealing the agreement executed by them in favour of informant and thereafter Mohd. Shamshad further executed a sale deed on 28.3.2006 in favour of Ashfaq. Thus, accused persons committed cheating and forgery by executing the sale deed in respect of same land which was already agreed to be sold to the informant.

The record would further show that a case under Sections 420, 471 and 506, I.P.C. was registered against the accused Mohd. Shamshad and Mohd. Ashfaq and investigated by the police and on completion of investigation, the police submitted the charge-sheet against both accused persons. Learned Chief Judicial Magistrate took cognizance and summoned the accused persons to face the trial under Sections 420, 471 and 506, I.P.C. vide his order dated 18.3.2008, aggrieved by which the revisionist filed this revision on the ground that the court below passed the impugned order in most cryptic, arbitrary and unreasonable manner while the matter was of civil nature and the same had arisen out of non-execution of sale deed in pursuance of agreement to sell, but the Respondent No. 2 dragged this dispute of civil nature into criminal litigation in order to pressurise the revisionist to execute the sale deed in respect of disputed land. The revisionist Mohd. Shamshad also filed O.S. No. 257 of 2008 against Mohd. Naushad, Deependra Pal Singh and Radhey Lal Sharma for declaration and permanent injunction in respect of the same land in the Court of Civil Judge (Senior Division), Aligarh which could not be decided so far and the notices were issued to all the Defendants and thus informant Respondent No. 2, Radhey Lal Sharma lodged a first information report which amounted to gross abuse of process of law and the learned Magistrate committed illegality in passing the order in question under revision.

The learned Counsel for the revisionist contended that in above O.S. No. 257 of 2008, the revisionist Mohd. Shamshad categorically admitted that he executed an agreement to sell in respect of above property in favour of the Defendant for consideration of Rs. 50,000 and also received Rs. 20,000 as earnest money and it was agreed that the sale deed of the property would be executed within one year in favour of the Defendants from the date of agreement after receiving payment of balance consideration. The revisionist/Plaintiff several times requested the Defendants to get the sale deed executed in their favour and also served notices upon them, but none of them turned up on the date fixed in the office of Sub-Registrar and thus the amount of earnest money stood forfeited in favour of the revisionist.

The learned Counsel for the revisionist further contended that no cheating or forgery was committed by the revisionist in respect of land in dispute and the first information report was lodged with mala fide intention.

A counter-affidavit of Shri Radhey Lal Sharma, Respondent No. 2 was filed to this effect that the present revisionist also filed Criminal Misc. Application No. 9336 of 2008, Mohd. Shamshad and Anr. v. State of U.P. and Anr. with a prayer to quash the charge-sheet in the said case and also to quash the order dated 18.3.2008, passed by the Chief Judicial Magistrate and even then the revisionist filed this revision in respect of the same prayer made in above criminal misc. application which was finally disposed of on 24.4.2008.

It transpires from the record that the said Application No. 9336 of 2008 moved u/s 482 of Code of Criminal Procedure was disposed of by this Court on 24.4.2008, however, the revisionist filed this revision by concealing material facts of above proceedings initiated u/s 482, Code of Criminal Procedure The evidence collected by the Investigating Officer completely supported the case of prosecution in above criminal case and the Investigating Officer submitted charge-sheet on 28.2.2008 against the revisionist having found sufficient and ample evidence. The criminal case cannot be said to be barred in the event of pendency of the civil suit and both criminal and civil case can proceed simultaneously.

On perusal of order dated 24.12.2008, passed by this Court in Criminal Misc. Application No. 9336 of 2008 u/s 482, Code of Criminal Procedure it is apparent that this Court has found sufficient material against the revisionist and on the basis of material collected by Investigating Officer prima facie offence is made out against the revisionist and no illegality or irregularity has been found by filing the charge-sheet and thus the prayer for quashing the charge-sheet has been refused. The order dated 24.4.2008, passed by this Court is reproduced as below:

Heard learned Counsel for the applicants and learned A.G.A.

This application has been filed with prayer to quash the charge-sheet in Case No. 15 of 2008 under Sections 420, 471 and 506, I.P.C. P.S. Banna Devi, district Aligarh pending in the Court of C.J.M., Aligarh vide Case No. 2081 of 2008.

From the perusal of the record, it appears that on the basis of material collected by the Investigating Officer, the prima facie offence is made out. Therefore, there is no irregularities or illegality in filing the charge-sheet, the prayer for quashing the charge-sheet is refused.

After perusing the record and considering the nature of the allegations it is directed that in case the applicants appear before the Court concerned within 30 days from today and apply for bail, the same shall be considered and disposed of on the same day by the courts below. It is further directed that in case applicants move application or discharge, the same shall be considered by a reasoned order in accordance with the provisions of law.

With this direction, the application is finally disposed of.

The original record of Criminal Misc. Application No. 9336 of 2008 moved u/s 482, Code of Criminal Procedure has been produced before this Court in which this Court has categorically passed above order dated 24.4.2008 alleging that on the basis of material collected by Investigating Officer prima facie offence is made out against the revisionist Mohd. Shamshad and there is no illegality or irregularity in filing the charge-sheet and thus the prayer for quashing the charge-sheet has been refused, but the revisionist has further filed this revision with similar prayer which cannot be said to be maintainable.

The learned Counsel for the revisionist has relied upon the decision passed in the case of Dilip Kaur and Ors. v. Jagnor Singh and Anr. LXVI(2009) ACC 734, wherein Hon. Apex Court has held that offence of cheating would be constituted when the accused had fraudulent or dishonest intention at the time of making promise or representation. A pure and simple breach of contract does not constitute offence of cheating, High Court should have posed a question as to whether any act of inducement on the part of appellant had been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception.

The learned Counsel for the revisionist has further relied upon the decision passed by Apex Court in the case of Md. Ibrahim and Others Vs. State of Bihar and Another, wherein Hon''ble Apex Court has observed as follows:

This Court has time and again drawn attention to the growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes. But at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tied as criminal offences, even if they also amount to civil disputes.

Learned Counsel for the Respondent No. 2 has relied upon the decision of Apex Court passed in the case of State Represented by State rep. by D.S.P., S.B.C.I.D., Chennai Vs. K.V. Rajendran and Others, , wherein Hon. Apex Court has held that Section 362 of Code of Criminal Procedure prohibits Court from making alteration in judgment after final order or judgment was signed by Court disposing of the case finally except to correct clerical or arithmetical mistake. The learned Counsel for the Respondent No. 2 categorically advanced his argument that this Court at the time of finally deciding the Criminal Misc. Application No. 9336/08 u/s 482, Code of Criminal Procedure has held that prima facie offence is made out against the revisionist/applicant and thus there is no sufficient ground to quash the charge-sheet filed against him or to set-aside the order passed by the Chief Judicial Magistrate in above criminal case and now this Court is not competent to review the said order passed by the Chief Judicial Magistrate in this revision.

Hon''ble Apex Court in the case of State Rep. By D.S.P. S.B.C.I.D. Chennai v. K.V. Rajendran and Ors. has observed that High Court cannot reopen and decide the case in exercise of power u/s 482, Code of Criminal Procedure when Section 362 of Code of Criminal Procedure bars this.

The Apex Court has relied on the decision passed in the case of Hari Singh Mann. v. Harbhajan Singh Bjwa and Ors. JT 2000 (2) SC 270 : 2001 (1) SCC 169 : 2000 (3) ACR 2678 (SC),wherein following observation were made:

There is no provision in the Code of Criminal Procedure authorizing the High Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 has extended the bar of review not only to judgment but also to the final orders other than the judgment. Section 362 is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of statutory provision becomes functus officio and is disentitled to entertain a fresh prayer for the same relief unless the former order is set aside by a court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or an arithmetical error.

In the present case, former order passed by this Court in criminal misc. application moved u/s 482, Code of Criminal Procedure has not been set-aside by the Court of competent jurisdiction and thus this Court becomes functus officio because the same order has become final and has not been challenged any where. Consequently, order passed by this Court in above criminal misc. application cannot be altered by allowing the present revision which would amount to change the said order passed by this Court u/s 482, Code of Criminal Procedure while this Court has categorically observed that prima facie offences under Sections 420, 471 and 506, I.P.C. are made out and there is no illegality or irregularity in filing the charge-sheet and thus the prayer to quash the charge-sheet has been refused. Consequently the prayer to quash the subsequent proceeding has also been refused by this Court and thus this revision is not maintainable in view of the above provisions of law and principle laid by Hon. Apex Court.

Consequently the revision lacks merit and is dismissed.