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Rohit Mathur vs The State Of Madhya Pradesh on 24 April, 2017

1
M.Cr.C. No. 2719/2016

Rohit Mathur Vs. State of M.P. Anr.

24 .04.2017
Shri V.D. Sharma, Advocate for the petitioner.
Ms. Sudha Shrivastava, Panel Lawyer for the respondent /

State.

Shri Sandeep Bhadoriya, counsel for the respondent No.2.

1. The inherent powers of this Court u/s.482 Cr.P.C. are invoked
for quashment of the criminal prosecution triggered by FIR dated
21.02.2016 bearing Crime No.70/2016 registered at Police Station
Thatipur, District Gwalior alleging offence punishable u/Ss. 420, 467,
468, 120B IPC.

2. Learned counsel for the rival parties are heard.

3. Brief facts giving rise to the present case are that complainant
Sunil Rajauriya made written complaint to police primarily alleging
that he had purchased the property in question from one Smt.
Shakuntala Shrivastava W/o Ambika Shrivastava vide sale deed
executed on 20.08.2010 followed by entering of the name of
complainant as owner of the said property in the records maintained
by Municipal Corporation, Electricity Department and M.P. Housing
Board and since then complainant owns and possesses the said
property.

3.1 It was further alleged that since prior to the above said sale in
favour of the complainant the property in question was occupied by
one Shri Vijay Mathur ( father of the petitioner herein) as tenant of Rs.
2,000/- per month. It is further alleged that factum of sale of property
in favour of complainant was made known to the said tenant. Further
it is alleged by the complainant that late Ambika had been allotted the
said property under the 1976 Scheme of the M.P. Housing Board by
deed dated 27.09.1997 in which Smt. Shakuntala was shown as
nominee of her husband. Thereafter it is alleged by the complainant
that said Vijay Mathur despite having knowledge of the fact that late
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M.Cr.C. No. 2719/2016

Ambika during his life time did not alienated the said property,
prepared a forged document and got his name mutated as owner of
the said property in connivance with the employees of M.P. Housing
Board.

3.2 It is further alleged that this mutation is based on forgery which
was committed on 30.01.1999 which fact was suppressed from the
complainant as the said Vijay Mathur continued to act as tenant of the
complainant by regularly paying rent to the complainant. It is also
alleged that said Vijay Kumar further got issued the NOC in his name
on 06.05.2000 qua the said property. The complainant further alleges
that when application was made before the Housing Board for
mutating the name of complainant as owner of the house, the
knowledge of said forgery committed by Vijay Mathur came to light.
The complainant further alleges that he made written complaint to the
Housing Board which led to conduction of inquiry and disciplinary
action against certain employees of the Housing Board.
3.3. In the above factual background, the FIR alleging cheating was
lodged by complainant Sunil Rajauriya alleging offence against the
petitioner, who is Rohit Mathur S/o Vijay Mathur.
3.4. Learned counsel for the petitioner has submitted that entire
allegation contained in the FIR and other material collected by the
prosecution alleges offence against Vijay Mathur and not against the
petitioner Rohit Mathur. In support of challenge to the FIR and
consequential proceedings, it is alleged by the petitioner that entire
issue relates to civil dispute with no criminal colour attached to it. It is
submitted that a civil suit was filed by Vijay Mathur, father of the
petitioner, in respect of the same property which was decreed in
favour of Vijay Mathur directing the Housing Board and LRs of
Shakuntala and Sunil Rajauria to execute the sale deed in favour of
Vijay Mathur. Aggrieved, the LRs of Shakuntala and Sunil Rajauriya
filed FA No. 66/2014 which is pending adjudication before this Court
where interim order of status quo continues to subsist. It is further
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M.Cr.C. No. 2719/2016

submitted by learned counsel for the parties that another civil suit for
eviction under Section 12(1)(A)(E) and M.P. Accommodation Control
Act by Sunil Rajauriya was decreed in his favour against which civil
appeal was unsuccessfully filed by the Vijay Mathur, father of the
petitioner. Thereafter second appeal has been filed which is pending
adjudication till date.

3.5 It is further submitted by counsel for the petitioner that all the
transactions of sale and mutation in respect of land in question took
place till August, 2015 till when the father of the petitioner, Vijay
Mathur, was very much alive. In August, 2015 Vijay Mathur expired.
3.6 Learned counsel for the petitioner has placed reliance on the
following judgments :-

(i) (Inder Mohan Goswami And Anr Vs. State of Uttranchal
and Ors.) reported in (2008) 1 SCC (Cri.) 259 the relevant
paragraph 46 is reproduced below :-

“46. The court must ensure that criminal prosecution is
not used as an instrument of harassment or for seeking
private vendetta or with an ulterior motive to pressurize
the accused. On analysis of the aforementioned cases,
we are of the opinion that it is neither possible nor
desirable to lay down an inflexible rule that would
govern the exercise of inherent jurisdiction. Inherent
jurisdiction of the High Courts under Section 482
Cr.P.C. though wide has to be exercised sparingly,
carefully and with caution and only when it is justified by
the tests specifically laid down in the Statute itself and in
the aforementioned cases. In view of the settled legal
position, the impugned judgment cannot be sustained.”

(ii) (Mahindra Mahindra Financial Services Ltd. and Anr Vs.
Rajiv Dubey) reported in (2009) 1 SCC (Cri.) 603, the relevant
paragraph 18 is reproduced below :-

“18. It is interesting to note that the respondent does
not dispute issuance of cheques. Even a casual reading
of the complaint does not show that the ingredients of
Section 406 IPC are in any event made out. It is also not
understandable as to how Section 294 has any
application to the facts of the case much less Section
506 IPC. In addition to this, perusal of the complaint
apparently shows the ulterior motive. It is clear that the
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M.Cr.C. No. 2719/2016

proceeding initiated by the respondent clearly amounted
to abuse of the process of law.”

(iii) (Kishan Singh (Dead) Thr. Lrs. Vs. Gurpal Singh and
Ors.) reported in (2010) 3 Supreme Court Cases (Cri.) 1091,
the relevant paragraph 22 is reproduced below :-

“22. In cases where there is a delay in lodging an FIR,
the Court has to look for a plausible explanation for
such delay. In absence of such an explanation, the
delay may be fatal. The reason for quashing such
proceedings may not be merely that the allegations
were an afterthought or had given a coloured version of
events. In such cases the court should carefully
examine the facts before it for the reason that a
frustrated litigant who failed to succeed before the Civil
Court may initiate criminal proceedings just to harass
the other side with mala fide intentions or the ulterior
motive of wreaking vengeance on the other party.
Chagrined and frustrated litigants should not be
permitted to give vent to their frustrations by cheaply
invoking the jurisdiction of the criminal court. The court
proceedings ought not to be permitted to degenerate
into a weapon of harassment and persecution. In such a
case, where an FIR is lodged clearly with a view to spite
the other party because of a private and personal
grudge and to enmesh the other party in long and
arduous criminal proceedings, the court may take a view
that it amounts to an abuse of the process of law in the
facts and circumstances of the case. (vide : Chandrapal
Singh Ors. Vs. Maharaj Singh Anr., AIR 1982 SC
1238; State of Haryana Ors. Vs. Ch. Bhajan Lal
Ors., 1992 Supp (1) SCC 335; G. Sagar Suri Anr. Vs.
State of U.P. , (2000) 2 SCC 636 ; and Gorige Pentaiah
Vs. State of A.P., (2008) 12 SCC 531).”

(iv) (Keki Hormusji Gharda and Ors. Vs. Mehervan Rustom
Irani Anr.) reported in (2009) 2 SCC (Cri.) 1113 the relevant
paragraphs 18, 19 and 20 are reproduced below :-

“18. In Pepsi Foods Ltd. Vs. Special Judicial
Magistrate (1998) 5 SCC 749 this Court held as under:
(SCC p.760, para 28)

28. Summoning of an accused in a criminal case is
a serious matter. Criminal law cannot be set into
motion as a matter of course. It is not that the
complainant has to bring only two witnesses to
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M.Cr.C. No. 2719/2016

support his allegations in the complaint to have the
criminal law set into motion. The order of the
Magistrate summoning the accused must reflect
that he has applied his mind to the facts of the case
and the law applicable thereto. He has to examine
the nature of allegations made in the complaint and
the evidence both oral and documentary in support
thereof and would that be sufficient for the
complainant to succeed in bringing charge home to
the accused. It is not that the Magistrate is a silent
spectator at the time of recording of preliminary
evidence before summoning of the accused. The
Magistrate has to carefully scrutinize the evidence
brought on record and may even himself put
questions to the complainant and his witnesses to
elicit answers to find out the truthfulness of the
allegations or otherwise and then examine if any
offence is prima facie committed by all or any of the
accused.”

19. Even as regards the availability of the remedy of
filing an application for discharge, the same would not
mean that although the allegations made in the
Complaint Petition even if given face value and taken to
be correct in its entirety, do not disclose an offence or it
is found to be otherwise an abuse of the process of the
Court, still the High Court would refuse to exercise its
discretionary jurisdiction under Section 482 of the Code
of Criminal Procedure.

20. Indisputably, there might have been some delay
on the part of the appellants in approaching the High
Court but while adjusting equity the High Court was
required to take into consideration the fact that in a
case of this nature the appellants would face
harassment although the allegations contained in the
Complaint Petition even assuming to be correct were
trivial in nature. The High Court furthermore has failed
to take into consideration the fact that in the first
information report no allegation in regard to acts of
common intention or common object on the part of the
appellants was made out. Appellants were not named
as accused therein. It is, therefore, really difficult to
appreciate as to on what basis the Complaint Petition
was filed.”

4. Per Contra, learned counsel for the respondent submits that
initially complaint was made on 15.12.2015 by the complainant which
did not invoke any response from the police and therefore
6
M.Cr.C. No. 2719/2016

Superintendent of Police was approached which led to lodging of FIR
in question.

4.1 It is submitted that Annexure A/4 which is a joint affidavit is a
forged document as the signature of Late Ambika is fake. It is further
submitted that the Housing Board has conducted inqiury and found its
employees to be guilty for having connived with Vijay Mathur. The
decision of this Court ILR [2014] M.P. 1123 (Daulat Singh
Vishwakarma and Ors. Vs. State of M.P.) is pressed into service. The
relevant para 8 of said judgment is reproduced below :-

“8. It is undisputed fact from the FIR and other papers
available on the record that respondent No.2/ complainant
entered into an agreement with the Board on 17.7.1985 to
purchase MIG type house under the scheme of higher
purchase, which were being constructed at 41, Tilinaka Sagar
and according to the terms and conditions of such agreement
the respondent No.2 had deposited it’s regular installments up
to 4.6.2002 and after making such entire payment by
respondent No.2 the Housing Board and its official had to
execute a sale deed of the aforesaid house in favour of the
respondent No.2 and unless such sale deed is executed in
favour of the respondent No.2 mere on the basis of aforesaid
affidavit of some proceeding of the Civil Court no NOC could
have been issued by the applicants or any other official of the
Housing Board in favour of other persons except the allottee
respondent No.2. For the sake of argument if it is taken into
consideration that any agreement if was executed by the
respondent No.2 in favour of the co-accused Devendra Singh
Thakur under the mediator-ship of Arvind Singh Thakur, who is
brother in law of such Devendra Singh, even then to defeat the
interest of the State Government with respect of the revenue
without executing the sale deed in favour of the respondent
No.2 the applicants did not have any authority to issue NOC to
transfer the property in favour of Devendra Singh Thakur
directly by the M. P. Housing Board because the consideration
was never deposited with the Housing Board by the accused
Devendra Singh. The investigating agency also collected the
evidence which prima-facie show that the agreement which
had taken place between respondent No.2 and said Devendra
Singh has been cancelled by respondent No.2 and the amount
of earnest money/ the part consideration was also returned to
the above mentioned prospective purchaser. So there was no
circumstance in existence to issue any NOC to transfer the
aforesaid property to Devendra Singh Thakur directly from the
Housing Board. But mere to defeat the interest and title of the
7
M.Cr.C. No. 2719/2016

respondent No.2 without his consent, so also with intention to
cause the wrongful loss to the Government revenue, which
could have been received by the State on execution of one
sale deed in favour of the respondent No.2 and thereafter in
favour of the purchaser Devendra Singh Thakur (if the
agreement had not been cancelled), the applicants by
misusing their power and authority with dishonest intention had
forged and fabricated the NOC contrary to the rules and
regulations just to extend the benefit to Devendra Singh
Thakur the co- accused and thereby prima-faice they have
committed the alleged offence for which the charges have
been framed by the trial Court.”

5. It is pertinent to observe that in the entire prosecution story and
the FIR, the allegation is primarily against Vijay Mathur, who has
since expired in August , 2015. The petitioner Rohit Mathur has been
named on certain places along with the name of Vijay Mathur by
alleging that Rohit was working in connivance with Vijay Mathur with
no specific allegation or instances in regard to involvement of the
petitioner in the offence of cheating.

6. The definition of cheating under Section 415 IPC is reproduced
below for convinence and ready reference :-

“415. Cheating -Whoever, by deceiving any person,
fraudulently or dishonestly induces the person so deceived to
deliver any property to any person, or to consent that any
person shall retain any property, or intentionally induces the
person so deceived to do or omit to do anything which he
would not do or omit if he were not so deceived and which act
or omission causes or is likely to cause damage or harm to
that person in body, mind, reputation or property, is said to
“cheat”.

Explanation- A dishonest concealment of facts is a deception
within the meaning of this section.”

7. From the above, it is evident that even on prima facie basis the
offence of cheating gets constituted when there is inducement by the
accused to the victim to do an unlawful thing compelling any
person to deliver any property which is likely to cause damage or
harm to that person in body, mind, reputation or property. Thus the
concept of cheating comes into being when two basic ingredients of
inducement followed by delivery of property by the person deceived
8
M.Cr.C. No. 2719/2016

co-exist.

8. In the instant case, the FIR and the supporting documents do
not reflect any overt act on the part of the petitioner to indulge in
inducement. The term “induce” is defined in the Merriam-Webster’s
Collegiate Dictionary as follows :-

“a: to move by persuasion or influence
b : to call forth or bring about by influence or stimulation “.

9. From the above, it is evident that the allegation should contain
some overt act of persuasion or influence caused by the petitioner to
the complainant.

10. The allegation contained in the FIR are silent in that respect.
This Court will be failing in its duty without referring to the explanation
provided in Section 415 IPC which includes dishonest concealment
within the parameters of deception. In this respect it is seen that
dishonest concealment of fact amounts to deception which may
induce person induced to deliver any property causing him harm in
body, mind, reputation or property.

11. In the present case the allegation of concealment and
connivance in mutating the name in the records of the property in
question is against Vijay Mathur and not against petitioner. The
petitioner has merely bean named along with Vijay Mathur by making
bald and vague allegation that he too knew about the concealment
and inducement exercised by Vijay Mathur with no allegation of how
and in what manner and when any act was committed by petitioner
which may construe to be inducement or concealment.

12. This Court is afraid that this kind of vague and unspecific
allegation in FIR are not good enough to trigger a proceeding as
serious as investigation.

13. The Apex Court in the case of (Hridaya Ranjan P.D. Verma Vs.
State of Bihar) reported in AIR 2000 SC 2341 succinctly described
the basic ingredients necessary for constitution of offence of
cheating.

9

M.Cr.C. No. 2719/2016

14. Crime investigation is a pious duty of the police authorities to
probe in the dark by travelling from unknown to known to reach the
truth and unravel the mystery by collecting cogent evidence which is
good enough to atleast prima facie reflect existence of basic
ingredients of any offence alleged, failing which no investigation as
contemplated by Chapter- XII of Cr.P.C can commence by setting the
law into motion to the peril of the accused.

15. It seems that the police authorities have registered the FIR in
casual and perfunctory manner without ensuring prima facie
existence of basic ingredients of offence of cheating against the
petitioner. The verdict of Apex Court in ( State of Harayana Ors. V.
Bhajan Lal and Ors.) reported in 1992 Supp (1) SCC 335. para 102
(1) comes to rescue the petitioner. For convenience and ready
reference the relevant extract is reproduced below :-

“102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of the
principles of law enunciated by this Court in a series of decisions
relating to the exercise of the extraordinary power under Article
226 or the inherent powers under Section 482 of the Code which
we have extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such power
could be exercised either to prevent abuse of the process of any
Court or otherwise to secure the ends of justice, though it may
not be possible to lay down any precise, clearly defined and
sufficiently channelised and inflexible guidelines or rigid formulae
and to give an exhaustive list of myriad kinds of cases wherein
such power should be exercised:

(1) where the allegations made in the first information
report or the complaint, even if they are taken at their
face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against
the accused.

(2) where the allegations in the first information report
and other materials, if any, accompanying the F.I.R. do
not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in support of
the same do not disclose the commission of any offence
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M.Cr.C. No. 2719/2016

and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis of
which no prudent person can ever reach a just conclusion
that there is sufficient ground for proceeding against the
accused.

(6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act
under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the
grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance
on the accused and with a view to spite him due to private
and personal grudge.”

16. Considering the law laid down by the Apex Court in the case of
Bhajan Lal (supra) the case of the petitioner squarely falls within the
clause 1 of para 102 of the said judgment. The allegations contained
in the prosecution story do not disclose constitution of offence even
on prima facie basis against the petitioner. Mere vague and
unspecific allegations by alleging that petitioner was also involved in
the offence alleged against the father would not be sufficient to
constitute the offence of cheating. The basic ingredients necessary
for constitution of offence of cheating are missing in the present
matter.

17. In view of the above, the instant petition filed under Section 482
Cr.P.C deserves to be allowed and FIR dated 21.02.2016 bearing Crime
No.70/2016 420 registered at police station Thatipur, District Gwalior
and consequential proceedings qua the petitioner which are presently
pending in trial, are quashed.

(Sheel Nagu)
sarathe Judge

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