Anita Garg Vs. Alok Garg - Court Judgment

Excerpt:
criminal - quashing of - complaint - sections 406 and 420 of indian penal code,1860 (ipc) - complaint made by respondent before trial court under sections 406 and 420 of ipc - during trial, appellant filed present petition for quashing of complaint - held, on observation of complaint it found that no material available to show that ingredients for offence punishable under sections 402 and 406 of ipc made out - further, even if it presumed that averments made in complaint are believable then also offences punishable under sections 420 and 406 of ipc not made out - thus, complaint could not sustained in eye of law -therefore, petition allowed and criminal complaint filed by respondent hereby quashed - madhya pradesh municipal corporation act (23 of 1956)section 91 & m.p. municipal corporation act (1956), section 307(5): [a.k. patnaik, c.j., a.m. sapre & s.k.seth, jj] public nuisance - suit for injunction - held, section 91(i) of the c.p.c. is not exhaustive of the remedies that are available to a party even in case of a public nuisance or other wrongful act affecting or likely to affect the public. the remedy of the corporation and any other person under sub-section (5) of section 307 of the act of 1956 is independent of the provisions of section 91 of the c.p.c. and not only the corporation but any other person can apply to the district court for injunction or removal or alteration of a building on the ground that the provisions of the act of 1956 or the bye-laws made thereunder have been contravened. sections 41(j) & 4 & m.p. municipal corporation act (1956), section 307(5): [a.k. patnaik, c.j., a.m. sapre & s.k. seth, jj] relief of injunction held, the reliefs under the specific relief act, 1963 are granted for the purpose of enforcing individual civil rights as will be clear from section 4 of the specific relief act. 1963. accordingly, injunction under part iii of the specific relief act, 1963 is granted to the plaintiff either to prevent a breach of an obligation in favour of the plaintiff, or to compel the performance of an obligation in his favour. unless, therefore, there is an obligation in favour of the plaintiff which needs to be enforced, the court cannot grant injunction. hence, it is provided in section 41(j) of the specific relief act. 1963 that an injunction cannot be granted when the plaintiff has no personal interest in the matter. the provisions of the specific relief act, 1963 do not apply to the right conferred on the corporation and any other person under sub-section (5) of section 307 of m.p. municipal corporation act, 1956. under the provisions of the act of 1956, every building must comply with the provisions of the act of 1956 and the byelaws made thereunder and hence if there is any breach of the provisions of the act of 1956 or the bye-laws made thereunder, sub-section (5) of section 307 of the act of 1956 confers a right not only on the corporation but also any other person to apply to the district court for an injunction for removal or alteration of a building on the ground that there has been the contravention of the provisions of the act of 1956 or the bye-laws made thereunder. this remedy under sub-section (5) of section 307 of the act of 1956 is independent of and different from the remedies under the specific relief act. 1963. section 307(5): [a.k. patnaik, c.j., a.m. sapre & s.k. seth,jj] injunction for removal or alternation of any building-locus standi to claim - held, the word any which has diverse meanings, therefore, has to be interpreted depending on the context and the subject matter of statute in which it is used. there are various other provisions in the act of 1956 and the byelaws made thereunder relating to buildings within the area of the corporation which have to be complied with. legislature has., therefore, to provide for some remedy if the provisions of the act of 1956 or the byelaws thereunder in respect of a building are violated. it is only for this reason that under sub-section (5) of section 307 of the act of 1956, a right has been conferred not only on the corporation but on any other person to apply to the district court for injunction for removal of a building or alteration of any building on the ground that it contravenes any provisions of the act or the byelaws made thereunder. hence, not only the corporation but every other person has been given the right to apply to the district court for injunction for the removal or alteration of any building on the ground that it contravenes any provisions of the act or the byelaws made thereunder. the context and the subject-matter of the statute in which the word any has been used is thus, wide enough to include all persons other than the corporation or every other person other than the corporation or any other person other than the corporation. - it has also been stated in the complaint that the house was mortgaged with hdfc bank by the petitioner as well as respondent for the purpose of obtaining loan of rs. it has also been alleged in the complaint that present petitioner without informing complainant/respondent and the bank sold the house, while it was still under mortgage with the bank and thereby committed an offence of cheating and forgery with the bank as well as with the present respondent. 3. learned counsel for the petitioner drawn attention of this court towards the entire complaint as well as the statement recorded by the trial court under sections 200 and 202 of cr. he submitted that statements of these two witnesses and the averments made in the complaint clearly shows that the house was standing in the name of present petitioner and it was mortgaged with the bank. the amount of consideration of the plot was also paid by the respondent, which can very well be seen from the income tax returns of the respondent. if the averments made in the complaint are believed in toto, including the statement given by the complainant as well as his witness before trial court at the time of registration of the offence even then the offences punishable under sections 420 and 406 of ipc are not made out.orders.c. vyas, j.heard finally with the consent of both the parties.1. this is a petition filed under section 482 of cr.p.c., for quashment of the proceedings of criminal case no. 16153/2006, which is pending in the court of judicial magistrate, first class, indore against present petitioner for the trial of the offences punishable under sections 420 and 406 of ipc.2. as per the averments made in the complaint filed by the respondent before judicial magistrate, first class, it appears that present petitioner and the respondent are wife and husband. house no. 11/2 of sought tukoganj was purchased by the husband/respondent in the name of his wife/present petitioner. it is alleged that initially the plot was allotted by co-operative society in the name of the present petitioner and, thereafter, house was constructed over that plot. it has also been stated in the complaint that the house was mortgaged with hdfc bank by the petitioner as well as respondent for the purpose of obtaining loan of rs. 9 lacs and the title deed of the house was handed over to the concerning bank for the same purpose. it has also been alleged in the complaint that present petitioner without informing complainant/respondent and the bank sold the house, while it was still under mortgage with the bank and thereby committed an offence of cheating and forgery with the bank as well as with the present respondent.3. learned counsel for the petitioner drawn attention of this court towards the entire complaint as well as the statement recorded by the trial court under sections 200 and 202 of cr.p.c. of the complaint alok garg and his witness amit gupta. he submitted that statements of these two witnesses and the averments made in the complaint clearly shows that the house was standing in the name of present petitioner and it was mortgaged with the bank. he further submitted that it has been admitted by amit gupta (pw-2), assistant manager of the bank in paragraph no. 2 of his statement that on 19.10.2005 the entire amount of loan was paid by the present petitioner to the bank and thereafter the title deed of the house mortgaged with the bank was handed over to her by the bank.4. learned counsel further submitted that in view of this statement it is clear that after making full payment of the amount of loan, title deeds were obtained by the present petitioner from the bank and, thereafter, the house was sold. he further submitted that agreement of sale of the house was already executed and amount of consideration was obtained from the purchaser by the present petitioner and the same amount was deposited by the petitioner with the bank and, thereafter, title deeds were released by the bank and then sale deed was executed. he also submitted that in view of all these facts neither any ingredients of the offences punishable under section 420 of ipc nor of section 406 of ipc are made out.5. learned counsel for the respondent submitted that though the house stood in the name of present petitioner, but in fact it was purchased by the respondent/complainant and the entire amount of construction of house was spent by the respondent. the amount of consideration of the plot was also paid by the respondent, which can very well be seen from the income tax returns of the respondent. he further submitted that the property was that of the respondent and the name of present petitioner had only been shown as owner, because she happens to be wife of respondent. he further submitted that in this way respondent/complainant was the rightful owner of the property and the present petitioner played fraud with him and without his knowledge sold the same, when it was still under mortgage with the bank, therefore, she committed the offence of cheating and criminal breach of trust.6. the arguments advanced by learned counsel for the respondent are totally misconceived. after passing the enactment of benami transaction (prohibition) act, 1988, this argument is not available to the respondent as section 4(1) of the act bars such actions, as that of present complaint. when the house was standing in the name of present petitioner then only she can be treated as rightful owner so far as the facts of present case are concerned. when she paid full amount of loan to the bank and then sold the house to third person, then it cannot be said that she committed any offence. she committed no forgery or cheating with anyone. the property was never entrusted to her by any one because she was the rightful owner, therefore, prima facie there is no material to show that the ingredients for the offence punishable under sections 402 and 406 of ipc are available in the facts of the present case. if the averments made in the complaint are believed in toto, including the statement given by the complainant as well as his witness before trial court at the time of registration of the offence even then the offences punishable under sections 420 and 406 of ipc are not made out.7. thus it appears to be a fit case, where the jurisdiction available under section 482 of cr.p.c. to this court is required to be exercised and the further proceedings of the criminal case are required to be quashed in the interest of justice, being only abuse of process of law.8. therefore, the petition succeeds and is allowed. the proceedings of criminal case no. 16153/2066 pending in the court of judicial magistrate, first class, indore against present petitioner, on the basis of criminal complaint filed by the respondent are hereby quashed.c.c. as per rules.

Judgment:
ORDER

S.C. Vyas, J.

Heard finally with the consent of both the parties.

1. This is a petition filed under Section 482 of Cr.P.C., for quashment of the proceedings of Criminal Case No. 16153/2006, which is pending in the Court of Judicial Magistrate, First Class, Indore against present petitioner for the trial of the offences punishable under Sections 420 and 406 of IPC.

2. As per the averments made in the complaint filed by the respondent before Judicial Magistrate, First Class, it appears that present petitioner and the respondent are wife and husband. House No. 11/2 of Sought Tukoganj was purchased by the husband/respondent in the name of his wife/present petitioner. It is alleged that initially the plot was allotted by Co-operative Society in the name of the present petitioner and, thereafter, house was constructed over that plot. It has also been stated in the complaint that the house was mortgaged with HDFC Bank by the petitioner as well as respondent for the purpose of obtaining loan of Rs. 9 lacs and the title deed of the house was handed over to the concerning Bank for the same purpose. It has also been alleged in the complaint that present petitioner without informing complainant/respondent and the Bank sold the house, while it was still under mortgage with the Bank and thereby committed an offence of cheating and forgery with the Bank as well as with the present respondent.

3. Learned Counsel for the petitioner drawn attention of this Court towards the entire complaint as well as the statement recorded by the Trial Court under Sections 200 and 202 of Cr.P.C. of the complaint Alok Garg and his witness Amit Gupta. He submitted that statements of these two witnesses and the averments made in the complaint clearly shows that the house was standing in the name of present petitioner and it was mortgaged with the Bank. He further submitted that it has been admitted by Amit Gupta (PW-2), Assistant Manager of the Bank in Paragraph No. 2 of his statement that on 19.10.2005 the entire amount of loan was paid by the present petitioner to the Bank and thereafter the title deed of the house mortgaged with the Bank was handed over to her by the Bank.

4. Learned Counsel further submitted that in view of this statement it is clear that after making full payment of the amount of loan, title deeds were obtained by the present petitioner from the Bank and, thereafter, the house was sold. He further submitted that agreement of sale of the house was already executed and amount of consideration was obtained from the purchaser by the present petitioner and the same amount was deposited by the petitioner with the Bank and, thereafter, title deeds were released by the Bank and then sale deed was executed. He also submitted that in view of all these facts neither any ingredients of the offences punishable under Section 420 of IPC nor of Section 406 of IPC are made out.

5. Learned Counsel for the respondent submitted that though the house stood in the name of present petitioner, but in fact it was purchased by the respondent/complainant and the entire amount of construction of house was spent by the respondent. The amount of consideration of the plot was also paid by the respondent, which can very well be seen from the Income Tax returns of the respondent. He further submitted that the property was that of the respondent and the name of present petitioner had only been shown as owner, because she happens to be wife of respondent. He further submitted that in this way respondent/complainant was the rightful owner of the property and the present petitioner played fraud with him and without his knowledge sold the same, when it was still under mortgage with the Bank, therefore, she committed the offence of cheating and criminal breach of trust.

6. The arguments advanced by learned Counsel for the respondent are totally misconceived. After passing the enactment of Benami Transaction (Prohibition) Act, 1988, this argument is not available to the respondent as Section 4(1) of the Act bars such actions, as that of present complaint. When the house was standing in the name of present petitioner then only she can be treated as rightful owner so far as the facts of present case are concerned. When she paid full amount of loan to the Bank and then sold the house to third person, then it cannot be said that she committed any offence. She committed no forgery or cheating with anyone. The property was never entrusted to her by any one because she was the rightful owner, therefore, prima facie there is no material to show that the ingredients for the offence punishable under Sections 402 and 406 of IPC are available in the facts of the present case. If the averments made in the complaint are believed in toto, including the statement given by the complainant as well as his witness before Trial Court at the time of registration of the offence even then the offences punishable under Sections 420 and 406 of IPC are not made out.

7. Thus it appears to be a fit case, where the jurisdiction available under Section 482 of Cr.P.C. to this Court is required to be exercised and the further proceedings of the criminal case are required to be quashed in the interest of justice, being only abuse of process of law.

8. Therefore, the petition succeeds and is allowed. The proceedings of Criminal Case No. 16153/2066 pending in the Court of Judicial Magistrate, First Class, Indore against present petitioner, on the basis of criminal complaint filed by the respondent are hereby quashed.

C.C. as per rules.