Prabhat Chand vs State of M.P. and Others

C.V. Sirpurkar, J.—1. This criminal revision under Section 397/401 of the Cr.P.C. filed on behalf of petitioner/accused Prabhat Chand is directed against the order dated 10.10.2014 passed by the Court of JMFC, Sagar, in Criminal Case No. 402/2013 (Smt. Rajendra Kaur and Another Vs. Prabhat Chand and Others), whereby learned Magistrate had directed to issue processes against the accused No. 1/petitioner No. 1 Prabhat Chand for the offence punishable under Sections 420, 467 and 471 of the IPC.

The facts giving rise to this criminal revision may briefly be stated thus: It is not in dispute that the complainant had sold a plot of land admeasuring 50" x 100" (5000 sq.ft.) to petitioner Prabhat Chand comprised in survey No.196/2 by registered sale deed dated 03.05.1974 and had delivered the possession thereof. However, the petitioner Prabhat Chand by intentionally tampering with the original documents and forging some documents, sold a part of aforesaid land admeasuring 21.6" x 114/118" (2370 sq.ft.) to co-accused Vijay Kumar and another part of the land admeasuring 23" x 108/118" (2370 sq.ft.) by two separate registered sale deeds on 24.07.1990.. Thus, though the total area of the land sold to aforesaid two co-accused persons i.e. 4740 sq.ft. was less than the area of the plot (5000 sq.ft.) purchased by the accused Prabhat Chand from the complainant, the depth of the land sold by him exceeded 100"; as such, he sold the land which did not belong to him. It was further submitted that the accused Prabhat Chand by keeping the then Patwari in dark got an area of 10000 sq.ft. instead of 5000 sq.ft., mutated in his name.

Learned trial Court called for a report from the police under Section 156(3) Cr.P.C. After considering the report of the Senior District Registrar of District-Sagar dated 19.02.2014 and order of Tehsildar dated 10.04.2013 held that the petitioner/accused Prabhat Chand was prima facie guilty of selling the land that did not belong to him and was also guilty of getting his name mutated upon 10000 sq.ft. land, instead of 5000 sq.ft. land sold by the complainant to him and thus, there was sufficient ground for proceedings against him under aforesaid provisions of IPC, directing issuance of processes against Prabhat Chand. The co-accused persons; however, were not proceeded against.

The order issuing processes has been challenged before this Court mainly on the following grounds:

(i) In the investigation report called for by the trial Court and submitted by the police, it has been held that no offence against the accused Prabhat Chand is made out and earlier reports made by the complainant to the police, have been held to be baseless.

(ii) There was inordinate delay and latches in filing this private complaint as the land was mutated in the year, 1982 and was sold to co-accused persons in the year, 1990; whereas, this private complaint has been filed after a delay of 24 years, in the year 2014.

(iii) The dispute is predominantly of civil nature; therefore, appropriate remedy would be a civil suit. The criminal proceedings cannot be allowed to be abused by way of shortcut to other remedies available under the law.

(iv) This complaint has been filed through the power of Attorney Holder. The power of Attorney holder has no authority to depose on behalf of the complainant.

On aforesaid grounds, it has been prayed that the order issuing processes and the proceedings arising therefrom be quashed.

Learned counsel for the respondent/complainant has supported the order issuing process contending that the petitioner had not only sold the land, which did not belong to him but had also got 10000 sq.ft. land instead of 5000 sq.ft. belonging to the complainant, mutated in his name; as such, learned trial Court after taking the entire material available on record, had passed a detailed and cogent order in support of the direction for issuing process against the accused Prabhat Chand. As such, the impugned order should not be lightly interfered with.

On due consideration of rival contentions and perusal of record of the trial Court, this Court is of the view that this criminal revision must fail for the reasons herein after stated:

With regard to the scope of interference by a Higher Court in the order of a Magistrate issuing process under Section 204 of the Cr.P.C., the Supreme Court has held in the celebrated case of Nagawwa V. Veeranna Shivalingappa Konjalgi, , AIR 1976 SUPREME COURT 1947 that it is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court, or even the Supreme Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations are totally foreign to the scope and ambit of an inquiry under Section 202 which culminates into an order under Section 204.

The Supreme Court went on to observed that in following cases order of the Magistrate issuing process against the accused can be quashed or set aside:

(1) Where the allegations made in the complaint or the statement of the witness recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like. (Para 5)

In the backdrop of aforesaid legal position, the Court shall proceed to examine the grounds raised by the petitioner/accused Prabhat Chand one by one.

It is true that the police report called for by the Court, goes against the complainant. It has been stated in the police report dated 28-10-2014 that earlier also, the complainant had made a report to the police in this regard, which was duly enquired into. The information was called for from the Office of Sub-Registrar, Sagar and the Revenue Department; however, no sufficient evidence was discovered with regard to any forgery or conspiracy.

It may be seen that the report dated 28.10.2014 was cryptic and has no explanation as to how the land in excess of depth of 100 ft. on the road from Sagar to Makroniya, could be sold. It also not did not touch upon the aspect as to how the land admeasuring 10000 sq.ft. instead of 5000 sq.ft., was mutated in the name of accused Prabhat Chand. It lays too much emphasis on earlier enquiries, which had gone against the complainant. However, that precisely was the reason why she was compelled to file a private complaint; as such, learned trial Court committed no error in ignoring the police report.

The second ground that has been raised is with regard to inordinate delay and latches. Inviting attention of the Court to the judgments rendered by the Supreme Court in the cases of Suresh Vs. Mahadevappa Shivappa Danannava & Anr., , (2005) 3 SCC 670 and M/s. Thermax Ltd. Vs. M.K. Johny and others, , 2011 (11) SCALE 128, it has been argued that there has been a delay of 24 years in filing this private complaint; therefore, it is liable to be dismissed on this ground alone.

It is true that there has been a very long delay in filing this private complaint; however, there is no limitation for the offence punishable under Sections 420, 467 and 471 of the IPC and there is a clear indication of wrong doing in the present case; therefore, the impugned order cannot be set aside on the ground of latches alone.

The third ground has been taken on behalf of the petitioner is that the proceedings is predominantly of civil nature and the appropriate remedy for the petitioner is a civil suit. In these circumstances, the complainant cannot be allowed to pressurize the accused Prabhat Chand by filing a private complaint for a dispute which is predominantly a civil dispute. In this regard, the petitioner has invited attention to the judgments rendered by the Supreme Court in the cases of G. Sagar Suri Vs. State of U.P. and Others, , (2000) 2 SCC 636 and State of Karnataka Vs. L. Muniswamy and others, , AIR (1977) SC 1489. It is true that this is basically a civil dispute; however, it contains elements of criminal offences as well. In this regard, the report of the Registrar, District-Sagar dated 19.02.2014 may profitably be referred to, wherein it has been observed that the land purchased by accused Prabhat Chand from the complainant had depth of 100 ft. from Sagar Makroniya Road; thus, the petitioner accused was not entitled to sell the land, which exceeded 100 ft. in depth regardless of the fact that the total area of the land was less than 5000 sq.ft.. For such an authorized sale, only the seller can be held responsible. Likewise, Tehsildar in his order dated 10.04.2013 passed in Revenue Case No. 2709-B/121 year 11-12, observed that 10,000 sq.ft. of land comprised in survey No. 196/43, 61 admeasuring 0.23 acres stands in the name of accused Prabhat Chand; whereas, he had purchased 5000 sq.ft. of land only, from complainant comprised in survey No. 196/2 by registered sale deed. Thus, it is not clear as to how the remaining 5000 sq.ft. of land was mutated in his name. The Tehsildar further observed that it appears that the accused Prabhat Chand got additional 5,000 sq.ft. land mutated in his name by keeping the then Patwari in dark. Aforesaid order of Registrar was challenged by accused Prabhat Chand before the Sub-Divisional Officer in Revenue Case No. 443B/121-12-13. The SDO by his order dated 12.01.2014 has upheld the order passed by the Tehsildar. Thus, the Revenue Courts have also held in favour of the complainant. As such, it is apparent from the report of the Registrar, Sagar and orders passed in revenue case by Tehsildar and the Sub-Divisional Officer that the elements of criminal offence are also present in this case and this is not a purely civil dispute.

The last ground that has been raised by the petitioner/accused is that the statements under Section 200 Cr.P.C. were made on behalf of the complainant Rajendra Kaur by her daughter Shobhna Gopal. Inviting attention to the judgments rendered by the Supreme Court in the case of Vidhyadhar Vs. Manikrao and Another, , (1999) 3 SCC 573, it has been argued that the Power of Attorney Holder cannot enter into the witness box on behalf of the complainant. As such, it has been contended that the order issuing process on the basis of statements of Power of Attorney Holder, is liable to be quashed.

It is true that the trial Court has not recorded the statements of Rajendra Kaur but has recorded the statements of her daughter Shobhna Gopal under Section 200 of the Cr.P.C.; however, Shobna Gopal has not stepped into the witness box as power of Attorney holder of the complainant but has done so in her capacity as a co-complainant. It has been stated that the complainant Rajendra Kaur is 81 years old and does not keep good health; therefore, co-complainant Shobna Gopal has deposed in the case on the basis of her personal knowledge. In any case, this private complaint is not dependent as much on oral testimony as on record. Thus, no damage is caused to the case of the complainant by failure of complainant Rajendra Kaur to step into the witness box for deposing in favour of the complaint under Section 200 of the Cr.P.C.

In aforesaid view of the matter, no ground has been made out for interfering with the order of the Court of JMFC, Sagar, dated 10.10.2014 issuing process against the accused Prabhat Chand and interdicting the proceedings arising therefrom.

Consequently, this criminal revision deserves to be and is accordingly dismissed.