RATANCHAND Vs. RAJENDRA

JUDGEMENT

(1.) The applicants have invoked the extra ordinary jurisdiction of this Court under Section 482 of Criminal Procedure Code (in short Cr.P.C.) for quashing the order dated 03.11.2017 passed by the Judicial Magistrate First Class, in criminal Case No 3802998/2017 whereby the cognizance for the offence under Section 420, 120-B/34 of I.P.c. has been taken against the applicants. Further quashing of criminal case No MP09010680672017 has also been sought, which has been registered in furtherance to the private complaint.

(2.) The facts of the case which are relevant for deciding the present application are that the respondent filed a private complaint against the applicants for commission of offence under Section 420 and 120-B of I.P.C. before the Judicial Magistrate First Class, Indore agitating that he is the co- owner of the house No.1, Dubey Colony, Madikbag Road, Indore alongwith his brother Dilip Bhusari and Ravindra Kumar Bhusari. They entered into an agreement to sell the said house to the applicants. Pursuant thereto, applicants/accused instituted civil Suit No. 20-A/2006 for specific performance of the contract against the complainant. This suit was decided on 21.04.2007 on the basis of compromise. According to the conditions of the compromise consideration amount of Rs. 21,00,000/- was payable by the applicants on 30.04.2007 by bank draft. At the time of execution of registered sale deed applicant No.1 stated that he could not arrange the consideration amount therefore he wanted to pay the consideration amount by taking loan from the ICICI Bank. Under these circumstances the sale deed was got executed under the protest that balance consideration amount would be paid through three different cheques (described in the sale deed) which were delivered to the complainant. Infact, these cheques were not handed over to the complainant on 01.03.2017 instead they were merely described on the basis of the proceedings for loan from ICICI Limited Bank, Indore. It was assured that payment would be made later on by Pay Orders. Thus, signatures of the complaint and his brothers were obtained on the registered sale deeds by playing fraud. It is further alleged that photocopies of the cheques were handed over, which were copies of Pay orders. Accordingly, balance consideration was not paid at all and all three sale deeds are, thus, without consideration and later on the applicants had closed their loan transaction with the ICICI Bank. Applicants also got possession of the aforesaid house through the execution proceedings from the Civil Court and by this Act, the applicants committed fraud and cheated the complainant. He made a complaint to the police Station, Juni Indore but the police did not take any action, then he was forced to file private complaint against the applicants.

(3.) After filing of the aforesaid complaint, the statement of the complainant and his witness Ankit Jain were recorded under Section 200 and 202 of Cr.P.C. to enable the concerned Magistrate to consider regarding taking cognizance on the complaint. After recording the statement of the complainant and his witness, Judicial Magistrate First Class, Indore dismissed the complaint vide order dated 02.06.2011 holding that the dispute is of a civil nature and complainant is free to take civil remedy which is available to the complainant. Being aggrieved by the aforesaid order the complainant/ respondent preferred revision petition before the Court of Session, which was registered as criminal revision No532/2011. The special Judge, Indore vide order dated 07.08.2013 remitted the matter to the Judicial Magistrate First Class for fresh enquiry after calling the concerning bank officers witnesses with complete record. Thereafter, the complainant/ respondent examined Mr. Swanand Joshi Credit Manager of ICICI bank Indore on 06.07.2017 under Section 202 of Cr.P.C. Who stated that cheques mentioned in the sale deed were not handed over to the vendor and loan account was closed. Then vide order dated 03.11.2017, learned Judicial Magistrate First Class issued process against the present applicant upon finding prima facie case for the offence under Section 420 and 120- B/34 of I.P.C against the applicant. This order is subject matter of challenge before this Court in the instant petition.