Nagendra Prasad vs Ram Sunder Patel and Another

N.K. Gupta, J.—The applicant has challenged the order dated 2.1.2004 passed by the learned Second Additional Judge to First Additional Sessions Judge, Sidhi in criminal revision No. 109/2001, whereby the order dated 4.5.2001 passed by the learned Chief Judicial Magistrate, Sidhi in criminal case No. 458/2001 was confirmed, in which the learned CJM has registered a criminal complaint against the applicant and other co-accused persons for offence punishable under sections 466, 471, 420, 120B of IPC. The facts of the case, in short, are that, the complainant Ram Sunder Patel had filed a criminal complaint before the Chief Judicial Magistrate, Sidhi that he was in possession through his brothers Ramgopal and Ramlakhan on the land bearing survey No. 451 and 456 of village Dithora since the year 1953-54. The applicant was in habit to usurp the lands of various agriculturists and therefore, by a fraudulent manner, he got his name mutated on the aforesaid lands in the year 1989-90. Tahsildar, Rampur Naikin vide order dated 5.7.1997 directed to enter the name of Ramgopal and Ramlakhan in the revenue records. Thereafter, the applicant lodged an appeal before the SDO, Churhat and the matter was remanded that in case No. 62 and 69 pending amongst the various parties may be considered and all aggrieved persons may be examined and thereafter, a fresh order be passed. However, reader of Tahsildar who was also made as an accused No. 3 sent the matter to the accused No. 1, who did not have the jurisdiction of village Dithora and thereafter, he passed an order which was not according to the compliance of order passed by the SDO and therefore, a wrong order was passed due to conspiracy. After considering the preliminary evidence, the learned Chief Judicial Magistrate, Sidhi registered a criminal complaint against the applicant and other accused persons. In criminal revision filed by the applicant and one Patwari Sheetla Prasad Choubey, the learned Additional Sessions Judge dismissed the revision.

I have heard the learned counsel for the parties.

The learned counsel for the applicant has submitted that no handing over or taking over of property was done by any party and therefore, no offence of cheating was made out. In support of his contention, the judgment passed by Hon''ble the Apex Court in case of Ajay Mitra Vs. State of M.P. and Others, was referred. It is prayed that no offence is made out against the applicant. He was the landlord of the land from very beginning and therefore, in mutation, name of the respondent No. 1 could not be mutated.

None appeared for the respondent No. 1 though notice of the petition was served upon him.

The learned G.A. did not say anything either in favour of the applicant or the respondent No. 1 because it was a complaint case.

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 offence of cheating u/s 420 of IPC does not consist of handing over of movable property but, it has some larger meaning as shown in section 415 of IPC. The judgment passed by Hon''ble the Apex Court in case of Ajay Mitra (supra) deals with the part of offence u/s 420 of IPC relating to movable property. By making an order against the respondent No. 1 by a Tahsildar, who did not have any jurisdiction, certainly gives an unlawful gain to the applicant and that gain is obtained by way of cheating. Under such circumstances, it cannot be said that no offence punishable u/s 420 of IPC is made out against the applicant. Also, as per pleadings of respondent No. 1, it is alleged that the applicant as well as revenue officers entered into a criminal conspiracy and therefore, forgery was done and the applicant got the ultimate advantage due to order passed by the accused No. 1 Tahsildar. When a complaint is registered for other offences also, then, it cannot be said that since no offence u/s 420 of IPC is made out and therefore, the applicant may be released or discharged.

Prima facie it is a case of conspiracy and everything depends upon the factual position. Appreciation of evidence cannot be done at this stage, it should be done by the trial Court. By orders passed by the civil Court in the matter, does not create any effect on the criminal conspiracy prima facie done by the applicant and other co-accused persons. Under such circumstances, no illegality or infirmity is visible in the order passed by both the Courts below and therefore, there is no reason by which the present petition u/s 482 of the Cr.P.C. filed by the applicant Nagendra Prasad may be accepted. Consequently, it is hereby dismissed. A copy of the order be sent to both the Courts below for information.