Madhya Pradesh High CourtSuresh Datt Sharma vs Omprakash Shivhare on 16 October, 2023Author:Sanjeev S KalgaonkarBench:Sanjeev S. Kalgaonkar1\n\n\n\n       IN THE HIGH COURT OF MADHYA PRADESH\n                                AT G WA L I O R\n                                       BEFORE\n       HON'BLE SHRI JUSTICE SANJEEV S. KALGAONKAR\n\n      MISCELLANEOUS CRIMINAL CASE NO. 15997 OF 2018\n\n BETWEEN:-\n 1. SURESH DATT SHARMA SON OF SHRI NARESH DATT\n SHARMA, AGED 57 YEARS, OCCUPOATION- SERVICE\n CHIEF MANGAGER, PNB ZONAL OFFICE, SECTOR 17-B,\n CHANDIGARH, OFFICE ADDRESS- -PNB ZONAL OFFICE\n SECTOR 17-B CHANDIGARH\n                                                                        .....PETITIONER\n (SHRI VIVEK KUMAR MISHRA- ADVOCATE FOR PETITIONER)\n\n AND\n OMPRAKASH SHIVHARE, SON OF LATE SHRI DAYARAM\n SHIVHARE, AGED 50 YEARS, OCCUPATION- BUSINESS,\n RESIDENT OF UNNAV ROAD, NEAR HANUMAN TEMPLE\n OF GANJI DATIA DISTRICT DATIA (MADHYA PRADESH)\n                                                                      .....RESPONDENT\n (SHRI ANOOP KUMAR GUPTA WITH SHRI UPENDRA YADAV- ADVOCATEES\n FOR RESPONDENT)\n---------------------------------------------------------------------------------------\n                 Reserved on                  :       05-09- 2023\n               Pronounced on                  :       16-10-2023\n---------------------------------------------------------------------------------------\n       This petition having been heard and reserved for order, coming on\nfor pronouncement this day, Justice Sanjeev S. Kalgaonkar pronounced\nthe following:\n                                        ORDERThis petition under Section 482 r/w 483 ofCrPChas been filed\nassailing the order dated 27-03-2018 passed by Shri Nisar Ahmad, Chief2Judicial Magistrate, Datia in Unregistered Criminal Complaint whereby,\nthe learned Chief Judicial Magistrate has directed to take cognizance\nagainst petitioner and other co-accused for offence punishable underSections 166,294,451,182, 506-B,211r/wSections 34and149of IPC.(2)   The petition, in brief, states as under:-(I) Abhishek Shivhare, son of respondent- Omprakash\n      Shivhare had taken loan from Punjab National Bank, Branch Gandhi\n      Road, Datia as Proprietor of M/s. Anamaya Pet India by mortgaging\n      his property ad-measuring 800 sq. ft with the bank.(II) Abhishek Shivhare, in order to secure the loan submitted\n      forged and frivolous documents and failed to repay the loan amount.(III) Senior Manager of Punjab National Bank, Arvind Kumar\n      Gupta after scrutiny into loan transaction found that Abhishek\n      Shivhare in collusion with the Bank Officers embezzled the loan\n      amount, therefore, he lodged an FIR against Abhishek Shivhare,his\n      father Omprakash Shivhare (complainant) and Bank Officers for\n      offence punishable underSections 420,467,468,471,120-Bof IPC.The Police Station Kotwali, District Datia registered FIR at Crime\n      No.38 of 2015 on 09-02-2015 against Abhishek Shivhare, his father\n      Omprakash Shivhare and four others.(IV) After investigation, Final Report was submitted before the\n      Court. The case was committed to the Sessions Court for its trial. On\n      completion of trial, Abhishek Shivhare was convicted and\n      complainant Omprakash Shivhare was acquitted vide judgment\n      dated 25-05-2017. The Punjab National Bank filed a leave to appeal\n      against the judgment of acquittal in favour of Omprakash Shivhare,3before the High Court (MCRC No.527 of 2018) and for enhancing\nthe punishment of complainant Abhishek Shivhare in Criminal\nRevision No.76 of 2018. Abhishek Shivhare filed Criminal Appeal\nNo.709 of 2017 challenging the conviction.(V)    As Abhishek Shivhare failed to pay the loan amount,\nproceeding    under    the     provisions   ofSecuritization   and\nReconstruction of Financial Assets and Enforcement of Security\nInterest Act[hereinafter referred to as ''SARFAESI Act, 2002''] was\ninitiated against him. The then Chief Manager of Punjab National\nBank, Branch Gandhi Road, Datia, namely, Arvind Kumar Gupta\ntook possession of the mortgaged property area 800 sq.ft. in\ncompliance with due process.(VI) Thereafter, auction proceeding was conducted and the\nPunjab National Bank issued sale certificate in favour of Rakesh\nKumar Sundarani and hand-over possession of mortgaged property\nad-measuring 800 sq.ft. to the auction purchaser Rakesh Kumar\nSundarani on 06-07-2015.(VII) Accused- Abhishek Shivhare and Omprakash Shivhare in\nCrime No.38 of 2015 submitted an application before the learned\nCJM, Datia (the Committal Court) for stay of auction proceeding.\nAn ex parte stay was granted vide order dated 02-07-2015.\nOmprakash Shivhare gave information of stay order to Bank on 09-\n07-2015. Prior to receipt of information, sale certificate was already\nissued in favour of Rakesh Kumar Sundarani on 06-07-2015 and\npossession of the mortgaged property was handed over. Accordingly,\nthe Bank gave intimation to the Committal Court. The Committal4Court directed to lock the premises vide order 16-07-2015.(VIII) The Punjab National Bank preferred a revision against\nthe order dated 02-07-2015 before the Sessions Court, which was\ndismissed. Thereafter, the Bank preferred a petition underSection\n482of CrPC before the High Court, which was allowed vide order\ndated 18-03-2016 passed in MCRC No. 1231 of 2016.(IX) Respondent- complainant Omprakash Shivhare filed a\ncomplaint dated 18-02-2017 before CJM, Datia against the petitioner\nand other Officers of the Bank. Omprakash Shivhare filed an\napplication underSection 310of CrPC seeking local inspection of\nland which had been mortgaged by Abhishek Shivhare with the\nBank. Learned trial Court allowed the application and learned CJM\nmade the inspection himself. The Punjab National Bank challenged\nthe inspection report before the learned Sessions Judge in revision\nbut the same was dismissed on 26-12-2017. The Bank filed a petition\nunderSection 482of CrPC challenging the said orders in MCRC\nNo.1664 of 2018. The High Court dismissed the petition but clarified\nthat the inspection report will not be treated as evidence against the\nBank.(X)   Complainant- Omprakash Shivhare also filed Contempt\nPetition No. 926 of 2017 before the High Court. The said contempt\nproceeding was dismissed as withdrawn.(XI) Learned trial Court, on the basis of statement of\ncomplainant and witness recorded underSections 200and202of\nCrPC took cognizance for offence punishable under Sections 166,\n294, 451, 182, 506-B and 211 read withSections 34and149of IPC5against petitioner and co-accused.(3)    Feeling aggrieved by the impugned order dated 27-03-2018, this\npetition underSection 482of CrPC is filed assailing the order on the\nfollowing grounds:-(I) The impugned order is manifestly illegal and arbitrary. It is\n      an abuse of process of law. The complaint case is the counterblast to\n      the legal proceedings under theSARFAESI Act.Section 32of\n      SARFAESI Act provides for protection to the Bank Officers.Learned trial Court has taken cognizance ignoring this legal aspect.(II) The petitioner was working on the post of LDM, Datia.\n      He did not participate in the proceedings under theSARFAESI Act.\n      The petitioner is involved in the complaint for the reason that the\n      Bank has proceeded against son of respondent- complainant\n      Omprakash Shivhare under the provisions ofSARFAESI Actand\n      registered criminal proceeding against the complainant and his son.(III) No offence under Section 182 orSection 211of IPC is\n      made out against the petitioner. Proceeding underSection 182of\n      IPC cannot be initiated by the private complainant. The Magistrate\n      cannot take cognizance of offence underSection 211of IPC in view\n      of bar underSection 195(1)(b)of CrPC. Learned Trial Court\n      without applying judicial mind, has taken cognizance of the\n      aforesaid offence.(IV) As per the complaint, the incident took place on 18-06-\n      2014 but the cognizance was taken on 27-03-2018 after lapse of\n      period of limitation prescribed underSection 468of CrPC. Further,\n      the ingredients of offence punishable underSections 294,451,5066of IPC are not made out.(4)        On aforementioned grounds, it is requested that the impugned\norder dated 27-03-2018 passed by learned Chief Judicial Magistrate, Datia\nin Unregistered Criminal Case and consequential proceedings in Case No.\n193 of 2018 (RCT) pending before the learned Chief Judicial Magistrate,\nDatia be set aside.(5) Per contra, learned counsel for the State opposes the application and\nsubmits that learned Judicial Magistrate after due application of mind\nproceeded to issue process against the revision petitioner. Learned Judicial\nMagistrate has not committed any error in the impugned order.\n(6)   Learned counsel for the respondent submits that the impugned order\ndoes not suffer from any illegality, irregularity or impropriety. Learned\nJudicial Magistrate on the basis of statement of complainant recorded underSection 200of Cr.P.C. and statement of witness recorded underSection 202of Cr.P.C. has taken cognizance of the alleged offence. The cognizance is\ntaken after due compliance of the process and application of Judicial mind\non the material available on record, therefore, no interference is called for\nin exercise of inherent powers.(7)   Learned counsel further contends that the efficacious relief of\nrevision is available to the petitioner, therefore, this petition underSection\n482of Cr.P.C. is not maintainable.(8)   Learned counsel for the petitioner relying on the judgments ofPrabhu Chawla vs. State of RajasthanAIR 2016 SC 4245, Pepsi Foods\nLtd. Vs Special Judicial Magistrate1998 5 SCC 749, IRIS Computers\nLtd. Vs Askari Infotech Pvt. Ltd. 2015 14SCC 399 and Devendra\nKishan Lal Dagalia Vs. Dwarkesh Diamonds Pvt. Ltd.2014 2 SCC 2467submits that if the Magistrate has erroneously issued process to the\naccused, remedy available to recall the process lies underSection 482of\nCr.P.C. only. Availability of alternate remedy of revision underSection 397of CrPC cannot by itself be a ground to dismiss petition underSection 482of Cr.P.C. The contention of revision-petitioner has substance this petition\nunderSection 482of Cr.P.C. is maintainable against the impugned order of\nlearned CJM issuing the process against the revision-petitioner.(9)   Heard both the parties and perused the record.(10) In case of State of Haryana v. BhajanLal, 1992 Supp (1) SCC 335,\nthe Supreme Court laid down the principles for the exercise of the\njurisdiction by the High Court in exercise of its powers underSection 482CrPC to quash an FIR and observed :"102. In the backdrop of the interpretation of the various relevant\n       provisions of the Code under Chapter XIV and of the principles of\n       law enunciated by this Court in a series of decisions relating to the\n       exercise of the extraordinary power underArticle 226or the\n       inherent powers underSection 482CrPC which we have extracted\n       and reproduced above, we give the following categories of cases by\n       way of illustration wherein such power could be exercised either to\n       prevent abuse of the process of any court or otherwise to secure the\n       ends of justice, though it may not be possible to lay down any\n       precise, clearly defined and sufficiently channelised and inflexible\n       guidelines or rigid formulae and to give an exhaustive list of myriad\n       kinds of cases wherein such power should be exercised.(1) Where the allegations made in the first information report or\n         the complaint, even if they are taken at their face value and\n         accepted in their entirety do not prima facie constitute any\n         offence or make out a case against the accused.\n         (2) Where the allegations in the first information report and other\n         materials, if any, accompanying the FIR do not disclose a\n         cognizable offence, justifying an investigation by police officers\n         underSection 156(1)CrPC except under an order of a Magistrate\n         within the purview ofSection 155(2)CrPC.8(3) Where the uncontroverted allegations made in the FIR or\n          complaint and the evidence collected in support of the same do\n          not disclose the commission of any offence and make out a case\n          against the accused.(4) Where, the allegations in the FIR do not constitute a\n          cognizable offence but constitute only a non-cognizable offence,\n          no investigation is permitted by a police officer without an order\n          of a Magistrate as contemplated underSection 155(2)CrPC.\n          (5) Where the allegations made in the FIR or complaint are so\n          absurd and inherently improbable on the basis of which no\n          prudent person can ever reach a just conclusion that there is\n          sufficient ground for proceeding against the accused.\n          (6)      Where there is an express legal bar engrafted in any of\n          the provisions of the Code or the Act concerned (under which a\n          criminal proceeding is instituted) to the institution and\n          continuance of the proceedings and/or where there is a specific\n          provision in the Code or the concerned Act, providing efficacious\n          redress for the grievance of the aggrieved party.\n          (7) Where a criminal proceeding is manifestly attended with mala\n          fide and/or where the proceeding is maliciously instituted with an\n          ulterior motive for wreaking vengeance on the accused and with\n          a view to spite him due to private and personal grudge."(11) Perused the complaint, the statement of complainant recorded underSection 200of Cr.P.C. statement of witnesses recorded underSection 202of CrPC, the impugned order and the material available on record.(12)   The Supreme Court in the case ofRajiv Thapar v. Madan Lal Kapoor,\n(2013) 3 SCC 330, laid down the steps to be followed for exercise of\njurisdiction underSection 482of Cr.P.C, regarding quashment of\nproceedings as under:-''29. The issue being examined in the instant case is the\n       jurisdiction of the High Court underSection 482CrPC, if it\n       chooses to quash the initiation of the prosecution against an\n       accused at the stage of issuing process, or at the stage of\n       committal, or even at the stage of framing of charges. These are9all stages before the commencement of the actual trial. The same\nparameters would naturally be available for later stages as well.\nThe power vested in the High Court underSection 482CrPC, at\nthe stages referred to hereinabove, would have far-reaching\nconsequences        inasmuch     as    it    would    negate     the\nprosecution's/complainant's      case     without  allowing      the\nprosecution/complainant to lead evidence. Such a determination\nmust always be rendered with caution, care and circumspection.\nTo invoke its inherent jurisdiction underSection 482CrPC the\nHigh Court has to be fully satisfied that the material produced by\nthe accused is such that would lead to the conclusion that his/their\ndefence is based on sound, reasonable, and indubitable facts; the\nmaterial produced is such as would rule out and displace the\nassertions contained in the charges levelled against the accused;\nand the material produced is such as would clearly reject and\noverrule the veracity of the allegations contained in the\naccusations levelled by the prosecution/complainant. It should be\nsufficient to rule out, reject and discard the accusations levelled\nby the prosecution/complainant, without the necessity of\nrecording any evidence. For this the material relied upon by the\ndefence should not have been refuted, or alternatively, cannot be\njustifiably refuted, being material of sterling and impeccable\nquality. The material relied upon by the accused should be such as\nwould persuade a reasonable person to dismiss and condemn the\nactual basis of the accusations as false. In such a situation, the\njudicial conscience of the High Court would persuade it to\nexercise its power underSection 482CrPC to quash such criminal\nproceedings, for that would prevent abuse of process of the court,\nand secure the ends of justice.30. Based on the factors canvassed in the foregoing paragraphs,\nwe would delineate the following steps to determine the veracity\nof a prayer for quashment raised by an accused by invoking the\npower vested in the High Court underSection 482CrPC:30.1. Step one: whether the material relied upon by the\n    accused is sound, reasonable, and indubitable i.e. the material\n    is of sterling and impeccable quality?30.2. Step two: whether the material relied upon by the\n    accused would rule out the assertions contained in the charges\n    levelled against the accused i.e. the material is sufficient to\n    reject and overrule the factual assertions contained in the10complaint i.e. the material is such as would persuade a\n          reasonable person to dismiss and condemn the factual basis of\n          the accusations as false?30.3. Step three: whether the material relied upon by the\n          accused has not been refuted by the prosecution/complainant;and/or the material is such that it cannot be justifiably refuted\n          by the prosecution/complainant?30.4. Step four: whether proceeding with the trial would\n          result in an abuse of process of the court, and would not serve\n          the ends of justice?30.5.     If the answer to all the steps is in the affirmative, the\n          judicial conscience of the High Court should persuade it to\n          quash such criminal proceedings in exercise of power vested\n          in it underSection 482CrPC. Such exercise of power, besides\n          doing justice to the accused, would save precious court time,\n          which would otherwise be wasted in holding such a trial (as\n          well as proceedings arising therefrom) specially when it is\n          clear that the same would not conclude in the conviction of\n          the accused.''\n\n(13) Learned Magistrate has directed issuance of process against the\npetitioner for the offence punishable under Sections 166, 294, 451, 182,\n506-B and 211 r/wSections 34and149of IPC. Learned CJM relied upon\nthe statements of complainant Omprakash Shivhare and witnesses\nSukhnandan and Kundan Kamariya as well as the spot inspection report\nunder Section 310 of Cr.P.C.(14) In case ofPepsi Foods Ltd. Vs Special Judicial Magistrate1998 5\nSCC 749 of Para 28 reads as under:-''Summoning of an accused in a criminal case is a serious matter.\n     Criminal law cannot be set into motion as a matter of course. it is\n     not that the complainant has to bring only two witnesses to\n     support his allegations in the complaint to have the criminal law\n     set into motion. The order of the magistrate summoning the\n     accused must reflect that he has applied his mind to the facts of\n     the case and the law applicable thereto. He has to examine the11nature of allegations made in the complaint and the evidence\n      both oral and documentary in support thereof and would that be\n      sufficient for the complainant to succeed in bringing charge\n      home to the accused. It is not that the Magistrate is a silent\n      spectator at the time of recording of preliminary evidence before\n      summoning of the accused. Magistrate has to carefully scrutinise\n      the evidence brought on record and may even himself put\n      questions to the complainant and his witnesses to elicit answers\n      to find out the truthfulness of the allegations or otherwise and\n      then examine if any offence is prima facie committed by all or any of the\n      accused.''\n(15) The factual scenario of case in hand is examined in the light of\naforementioned proposition of law.(16) Learned counsel for the petitioner contends that the alleged offence\npunishable under Sections 166, 294, 182, 506 (Part-I) and 211 ofIPCare\nthe offences punishable with imprisonment up to two years. Learned\ncounsel referring toSection 468of Cr.P.C. contends that learned Chief\nJudicial Magistrate committed an error in taking cognizance of the offence\nafter expiry of three years from the date of incident.(17) As per the complaint, the offence punishable underSections 294and506of IPC was committed on 18.06.2014, whereas, the offence punishable\nunderSections 182and211of IPC was committed on 10.01.2015 when\nArvind Kumar Gupta submitted written complaint with Police Station-Kotwali, Datia. The complaint was filed on 18-02-2017 by Omprakash\nShivhare against the petitioner. The complaint is within the limitation underSection 468 (2) (c)of CrPC.In this regard, reliance is placed on the\nobservation of five Judge Bench of the Supreme Court in case ofSarah\nMathew v. Institute of Cardio Vascular Diseases, (2014) 2 SCC 62, that\nfor the purpose of computing the period of limitation underSection 468CrPC the relevant date is the date of filing of the complaint or the date of12institution of prosecution and not the date on which the Magistrate takes\ncognizance.(18) Issuance of process for the offence punishable underSection 166of IPCSection 166of IPC provides for Public Servant disobeying the law\nwith intent to cause injury to any person. There is nothing on record to\nsuggest that the petitioner was working as Public Servant and he has\ndisobeyed any law. No opinon much less reasoned opinion is expressed in\nthe impugned order in this regard.(19) Issuance of process for the offence punishable under Section 182\nandSection 211of IPC\n\n      Omprakash, in his statement underSection 200of Cr.P.C. alleged\nthat Arvind Gupta with intention to cause wrongful loss to him registered\nfalse FIR against him at Police Station Kotwali, Datia which was registered\nat Crime No.38/2015. He had to remain in custody for four five months\nwhich resulted in loss of business. On the basis of this statement, learned\nJudicial Magistrate proceeded to issue process for offence punishable underSections 182and211of IPC.Section 182of IPC provides for punishment for giving false\ninformation with intent to cause Public Servant to use his lawful power to\nthe injury of another person.Section 195(1)(a)(i)of IPC provides that no Court shall take\ncognizance of any offence punishable underSections 172to188of IPC\nexcept on the complaint in writing of the Public Servant concerned or of\nsome other Public Servant to whom he is administratively subordinate.13Therefore, cognizance of offence punishable underSection 182of IPC\ncannot be taken on complaint of private person i.e. complainant\nOmprakash.Section 211of IPC provides for punishment for institution of any\ncriminal proceeding or charging falsely of having committed an offence\nwith intention to injure any person knowing that there is no just or lawful\nground for such proceeding or charge against that person.(20) Learned counsel for the respondent submits that the respondent was\nacquitted of the charge punishable underSections 420,467,468,471and120-(B)of IPC vide judgment dated 25.05.2017 passed by learned\nAdditional Sessions Judge, Datia in ST No.09/2016.(21) In reply, learned counsel for the petitioner submits that the State and\nthe Punjab National Bank had filed appeal against the judgment of acquittal\nwhich is pending consideration. It is further contended that the respondent\nOmprakash Shivhare was acquitted for failure of prosecution to prove\ninvolvement of Omprakash Shivhare in the alleged offence of the cheating\nand forgery. Learned trial Court has not concluded that Omprakash\nShivhare was deliberately implicated on false charges.(22)Section 195 (1)(b)(i)of CrPC provides that no Court shall take\ncognizance of offence punishable underSection 211of IPC, when such\noffence is alleged to have been committed in, or in relation to, any\nproceeding in any Court, except on the complaint in writing of that Court.\nNo such complaint was directed by the learned Additional Sessions Judge,\nDatia in ST No.09/2016, while acquitting Omprakash Shivhare. Learned\ntrial Court ignored this legal aspect before issuing the process against\npetitioner for offence punishable underSections 182and211of IPC. Thus,14the impugned order suffers from patent illegality. (Abdul Rehman Vs.\nK.M. Anees-Ul-Haq(2011) 10 SCC 696 relied)\n\n(23) Issuance of process for offence punishable underSection 451of\nIPC\n\n      Learned CJM observed that the accused who were working as\nOfficials of Bank had sealed the area which was in possession of the\ncomplainant. This act of unauthorized possession comes within purview of\ntrespass. In spot inspection, it was found that the area sealed by the Punjab\nNational Bank is more than 20x40 i.e. 800 sq. ft. The Bank Official had no\nauthority to take the possession of unlimited area, therefore, prima facie, it\nis made out that the bank and its officials have encroached upon the area\nbelonging to complainant.Section 451of IPC provides for house trespass in order to commit\noffence punishable with imprisonment. The essential ingredient to make\nout the offence of house trespass is commission of criminal trespass by\nentering into any building.Section 441of IPC defines criminal trespass as\nunder:-"Whoever enters into or upon property in the possession of\n      another with intent to commit an offence or to intimidate, insult\n      or annoy any person in possession of such property, or having\n      lawfully entered into or upon such property, unlawfully remains\n      there with intent thereby to intimidate, insult or annoy any such\n      person, or with intent to commit an offence, is said to commit\n      "criminal trespass".Thus, the prosecution must establish the essential ingredient that the\nproperty must be in possession of another to commit criminal trespass upon\nit.(24) Learned counsel for the petitioner submits that the complainant15failed to produce even prima-facie evidence to show that he was in\npossession of the property much less in legal possession of the property\nalleged to be encroached upon by the petitioner.(25) Learned counsel for petitioner referred to the Judgment dated\n15.10.2023 passed in RCS-A- No.71/2017 by the Court of 4 th Additional\nJudge to the Court of First District Judge, Datia, the sale deed dated\n19.09.2016 and registration certificate dated 27.09.2016 issued by the\nCommercial Tax Department in favour of Omprakash Shivhare with regard\nto registration M/s. Anamaya Ganga Package Drinking Water Unit-2 and\ncontended that property adjacent to the mortgage property was purchased\nby Omprakash Shivhare in the year 2016 and the business in the name of\nM/s.Anamaya Ganga Package Drinking Water was registered with\nCommercial Tax Department in the year 2016, therefore, alleged adjacent\nproperty was not in legal possession of Omprakash before its purchase in\nyear 2016 by Omprakash Shivhare.(26) The veracity of the judgment dated 15.03.2023 the sale deed dated\n19.09.2016 and the registration certificate dated 27.09.2016 is not\ncontroverted by the respondent.(27) Omprakash Shivhare filed a civil suit against the Punjab National\nBank for damages of Rs.9 crores 70 lakhs for malicious prosecution and\nclosure on his unit M/s Anamaya Ganga Package Drinking Water by the\nOfficials of Punjab National Bank. Learned trial Court considered the\nevidence on record and concluded that M/s Anamaya Ganga Package\nDrinking Water was not in existence before 2016 and the land adjacent to\nM/s. Anamaya Pet India Ltd belonging to Abhishek Shivhare was not in\nlegal possession of Omprakash Shivhare. The judgment of Civil Court was16based on the evidence on record and the sale deed dated 19.09.2016 which\nspecifically mentions transfer of possession of the land on the date of\nexecution of sale deed.(28) Learned counsel for the respondent submits that respondent had filed\nappeal against the judgment of Civil Court which is pending but learned\ncounsel was at loss to explain the averments with regard to transfer of\npossession in the sale deed dated 19.09.2016 and registration of Firm M/s.\nAnamaya Ganga Package Drinking Water in favour of Omprakash Shivhare\non 27.09.2016.(29) Complainant Omprakash Shivhare has purchased property adjacent\nto the mortaged property on 24-09-2016. Further, his Firm was registered\nwith Commerical Tax Department on 27-09-2016. Therefore, the adjacent\nproperty alleged to be encroached upon by the Bank, did not belong to\ncomplainant on 18-06-2014, when the Bank took possession of the\nmortaged property in the proceedings underSARFAESI Act, 2002.(30) It goes to show that learned trial Court merely on the basis of\nstatement of complainant and without verifying the factual scenario\nproceeded to issue process for the offence punishable underSection 451of\nCr.P.C. merely, on assumption that the bank officials have taken possession\nof area more than 800 sq. ft., therefore, the additional area belongs to the\ncomplainant. Thus, learned trial Court had committed grave error in this\nregard.(31) Issuance of process for the offence punishable underSections 294and506-Bof IPC\n\n      Learned CJM observed in the impugned order that when the Bank\nOfficials were taking the possession of the mortgaged property, it is but17natural that complainant would have objected to it and the bank officials\nwould have used force and indulged in obscene behaviour with him. For\nthe sake of clarity, the observation of learned CJM is extracted below:-"tc fd ifjoknh ds LFkku ij cSad ds deZpkfj;ksa }kjk vkf/kiR; fd;k tk\n       jgk Fkk rc ;g vR;Ur LokHkkfod gS fd ifjoknh }kjk izfrjks/k fd;k x;k\n       gks vkSj ,slh fLFkfr esa cSad ds vkf/kdkfj;ksa }kjk mlds lkFk cy dk iz;ksx\n       djuk mlds lkFk v'yhyrkiwoZd O;ogkj djuk vR;Ur LokHkkfod izrhr\n       gksrk gSA"In furtherance of these observations, learned CJM proceeded to issue\nprocess for the offence punishable underSections 294and506-Bof IPC.Omprakash Shivhare in his statement underSection 200of Cr.P.C.\nhas stated that, he asked them what are you doing? They got angry and said\nÞeknjpksn ;s ,sls ugha ekusxkÞ ।   There is nothing on record to suggest that the\nBank Officials intentionally uttered obscene word to cause annoyance to\nthe complainant.Omprakash Shivhare in his statement underSection 200of CrPC\nsubmits that Arvind Gupta and Surendra Sharma said that they will get him\nincarcerated in police station. There is nothing in his statement to the effect\nthat the accused have threatened him to cause death or grievous hurt.\nTherefore, the ingredients to constitute offence punishable under Section\n506-B (sic- second part of Section 506) ofIPCwere not made out from the\nstatement of the complainant.(32) Thus, it is apparent that learned CJM without application of judicial\nmind proceeded to issue process against the petitioner for offence\npunishable underSections 294and506-Bof IPC, merely on conjectures\nand surmises.(33) Learned counsel for the petitioner forcefully submits that the Rajiv18Kulshrestha, Amitabh Nigam and Bibhuranjan Kar were not even posted at\nPunjab National Bank, Branch- Gandhi Road, Datia at the time of alleged\nincident. As per the statement of complainant Omprakash recorded underSection 200of CrPC only Arvind Kumar Gupta and Suresh Datt Sharma\nwere present on spot on 18.06.2014. Other accused Rajiv Kulshrestha,\nAmitabh Nigam and Bibhuranjan Kar were not present on spot at the time\nof alleged incident still cognizance of offence punishable underSections\n166,294,451,182,506-Band211of IPC is taken against them with aid ofSections 34and149of IPC. The contentions has substance.(34) Learned Chief Judicial Magistrate has not given reasons with regard\nto prima facie constitution of ingredients of the offence punishable underSections 451,294,506-B,166,182and211of IPC, but cursorily,\nmentiononed that sufficient grounds for taking cognizance of these offence\nare made out. The impugned order does not reveal application of judicial\nmind on the material available on record.(35) Considering aforementioned aspects of the matter, this Court is of the\nopinion that learned Chief Judicial Magistrate has committed patent\nillegality in taking cognizance and issuing the process against the petitioner\nwithout application of judicial mind on the facts and circumstances of the\ncase, therefore, trial of the petitioner on the charges of the alleged offence\non the basis of faulty cognizance would be an abuse of process of the\nCourt.(36) In totality of circumstances, the impugned complaint appears to be\ncounterblast to the proceeding underSARFAESI Actundertaken by Bank\nOfficials against son of complainant as also the criminal prosecution lodged\nby the Manager of Punjab National Bank against the respondent and his19son wherein son of respondent was convicted and sentenced to\n            imprisonment. This complaint and consequential proceeding appears to be\n            instituted with ulterior motive of wrecking vengeance on Bank officials due\n            to aforementioned personal grudge.(37) Consequently, impugned order dated 27.03.2018 of Chief Judicial\n            Magistrate, Datia and consequential criminal proceedings, so far as it\n            relates to the petitioner, are quashed in exercise of inherent powers underSection 482of Cr.P.C. The petitioner stands discharged.(38)   The petition and MCRC are accordingly allowed.(SANJEEV S. KALGAONKAR)\n                                                                   JUDGE\nMKB/Vijay\n\n\n       VIJAYDigitally signed by VIJAY TRIPATHIDN: c=IN, o=HIGH COURT OFMADHYA PRADESH BENCHGWALIOR, ou=HIGH COURT OFMADHYA PRADESH BENCHGWALIOR,TRIPA\n                    2.5.4.20=663cb09dd950bfc3ea7ed\n                    4f02d97ddae5364f1d4b042dbc599\n                    21b76e812d2d6b,\n                    postalCode=474001, st=Madhya\n                    Pradesh,\n\n\n\n       THI\n                    serialNumber=58392D8C4E7C9693\n                    BFEEB5B46B3CA006F1127E890089\n                    52BBEC528CE4D82551BD,\n                    cn=VIJAY TRIPATHI\n                    Date: 2023.10.16 18:28:18 +05'30'