Bhawani Singh Vs. Ram Swaroop

Bhawani Singh vs Ram Swaroop

Type Court Judgment Court Rajasthan Decided Feb 18, 1987

~2 min read

https://sooperkanoon.com/case/766462

For advocates & juniors · 7-day free trial

Brief this judgment before chambers

Stop skimming 50 pages - get an 18-section AI Brief on this case, ask scoped follow-ups, and find related precedents with Semantic Search. Full trial, no card required.

18-section brief - facts, issues, ratio, relief
Ask this case - answers cite the judgment
Semantic search - find precedents by meaning
Research drawer - sections, cites, related cases

Citation: sooperkanoon.com/766462
Court: Rajasthan High Court
Judge: Guman Mal Lodha, J.
Decided On: Feb 18, 1987
Case Number: S.B. Cr. Misc. Petition No. 473 of 7986
Subject: Criminal

Case Summary

AI-generated summary - not the official court judgment text.

Penal Code - Section 210--Decree obtained fraudulently for sum not due--Payment not got verified in executing Court--Held, prosecution is unjustified.;The earlier payment on the basis of which prosecution has been launched was never got verified in the executing court as required by Order 21, Rule 2, CPC and, theref...

Key legal issue: Criminal

Parties & Advocates

Appellant / Petitioner

Bhawani Singh

Respondent

Ram Swaroop

Legal References

Cases Referred: B.K. Bhomik v. Princess Confectionary and Ors.
Reported In: 1987(1)WLN661

Excerpt

penal code - section 210--decree obtained fraudulently for sum not due--payment not got verified in executing court--held, prosecution is unjustified.;the earlier payment on the basis of which prosecution has been launched was never got verified in the executing court as required by order 21, rule 2, cpc and, therefore, launching of the prosecution under section 210, i.p.c. in the specific and special circumstances of this case appears to be wholly unjustified. this is more so because earlier attachment was made in 1976 and no plea of earlier payment was taken in the objection file.;application partly accepted - .....submitted that section 482, cr. p.c. cannot be invoked and in support of his submission he relied upon the judgment of the supreme court in sooraj devi's case 1981 cr. lr 174. head note b reads as under:the inherent power of the court cannot be exercised for doing that which is specifically prohibited by the code. the inherent power of the court is not contemplated by the saving provision contained in section 362 and, therefore, the attempt to invoke that power can be of no avail.4. he also relied upon the judgment of calcutta high court in b.k. bhomik v. princess confectionary and ors. 1979 cr.lj 1473.5. there cannot be any dispute about the principles laid down in the above two judgments, but they have got no application in the facts and circumstances of the present case.6. the earlier payment on the basis of which prosecution has been launched was never got verified in the executing court as required by order 21, rule 2, cpc and, therefore, launching of the prosecution under section 210, i.p.c. in the specific and special circumstances of this case appears to be wholly unjustified. this is more so because earlier attachment was made in 1976 and no plea of earlier payment was taken in the objection file.7. consequently, the direction for prosecution under section 210, i.p.c. only is quashed. it would not mean that the finding of the lower court regarding earlier payment is nullified.8. the application under section 482, cr.p.c. is accepted to this limited extent only.

Full Judgment

Guman Mal Lodha, J.

1. This is an application under Section 482, Cr.P.C. against the order dated 18-6-1986 of the Addl. Sessions Judge, Dholpur in Criminal Appeal No. 43/85.

2. Mr. Tyagi has argued that the prosecution under Section 210, I.P.C. is a gross abuse of process of the court because the so called earlier payment was not verified in the court and was wholly based on a concocted false story. In support of his argument he submitted that when the demand for attachment of the crop was made, this plea was not taken in the year 1976 that the payment has already been made.

3. Learned Counsel for the non-petitioner submitted that Section 482, Cr. P.C. cannot be invoked and in support of his submission he relied upon the judgment of the Supreme Court in Sooraj Devi's case 1981 Cr. LR 174. Head Note B reads as under:

The inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code. The inherent power of the court is not contemplated by the saving provision contained in Section 362 and, therefore, the attempt to invoke that power can be of no avail.

4. He also relied upon the judgment of Calcutta High Court in B.K. Bhomik v. Princess Confectionary and Ors. 1979 Cr.LJ 1473.

5. There cannot be any dispute about the principles laid down in the above two judgments, but they have got no application in the facts and circumstances of the present case.

6. The earlier payment on the basis of which prosecution has been launched was never got verified in the executing court as required by Order 21, Rule 2, CPC and, therefore, launching of the prosecution under Section 210, I.P.C. in the specific and special circumstances of this case appears to be wholly unjustified. This is more so because earlier attachment was made in 1976 and no plea of earlier payment was taken in the objection file.

7. Consequently, the direction for prosecution under Section 210, I.P.C. only is quashed. It would not mean that the finding of the lower court regarding earlier payment is nullified.

8. The application under Section 482, Cr.P.C. is accepted to this limited extent only.

Same Court & Year Rajasthan · 1987 Same Parties Bhawani Singh vs Ram Swaroop Same Subject Criminal Same Judge Guman Mal Lodha, J.

Criminal