In Harimohan Pawaiya v. State of M.P. & Anr., the matter before the Hon'ble MADHYA PRADESH HIGH COURT GWALIOR BENCH, was that an FIR was lodged by the complainant/respondent No.2 on 28.02.2010 alleging therein that the applicant is engaged in the business of sale of second hand vehicles. The complainant had agreed to purchase two old Maruti 800 cars and, therefore, he had given Rs.1,50,000/- to the applicant. The applicant had given the original papers of the said cars but the delivery of the vehicles was not given on the ground that some repairing works are still required to be done. However, even after passing of about 2 years neither the applicant has refunded the amount nor has given the delivery of two old Maruti 800 cars.
On the application of the applicant, the matter was also inquired into by the CSP Jhansi Road, District Gwalior. The CSP by its report dated 15.06.2010 held that although the complainant has stated that he had paid an amount of Rs.1,50,000/- to the applicant but he has not produced any documents in support of that contention. On the contrary, a receipt of Rs.50,000/- has been issued by the applicant. It was further opined that on the basis of the documents available on record, it is not proved that the applicant has been given an amount of Rs.1,50,000/-. In the light of the inquiry report submitted by the CSP, Jhansi Road, Gwalior, it appears that the police filed the closure report. The respondent after coming to know about filing of the closure report filed an application under Section 156 (3) of CrPC and objected to the closure report filed by the police. The Magistrate by considering the complaint as well as the documents furnished with the closure report rejected the closure report filed by the police and took cognizance of offences punishable under Sections 420 & 406 of IPC.
Being aggrieved by the order dated 08.05.2012, the applicant filed a criminal revision which too has suffered dismissal by order dated 24.01.2013. Hence, this petition has been filed by the applicant under Section 482 of CrPC.
The Hon'ble High Court referring to the judgment of the Hon'ble Supreme Court in Amit Kapoor v. Ramesh Chander reported in (2012), held that if the facts merely discloses the breach of contract or civil dispute then the complainant cannot be permitted to give a colour of criminal offence but where the allegations involve the civil as well as the criminal dispute then the criminal proceedings cannot be quashed merely on the ground that the case is of civil in nature. If the allegations as made in the FIR are considered on their face value then it would be clear that an amount of Rs.1,50,000/- was given to the applicant and the original papers of two old Maruti 800 cars were also handed over to the respondent No.2 by the applicant. It is specifically mentioned in the FIR that the delivery of the vehicles could not be given because of some technical snag. It is further mentioned that the applicant is neither giving the delivery of the vehicle nor is returning the money.
10. Whether, it is a mere breach of contract or whether there was a mere failure on the part of the applicant to keep his promise is a question, which is to be decided at the Trial. If for one reason or another the applicant was not in a position to give the delivery of two old Maruti 800 cars to the respondent No.2 then he could have refunded the amount so collected by him from the respondent No.2.
11. So far as the report of the CSP as well as the closure report filed by the police are concerned, suffice it to say that the same are not binding upon the Magistrate.
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