RAJENDRA KUMAR JAIN Vs. SHRIKANT NIGAM

JUDGEMENT

(1.) Invoking the extra-ordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India the petitioner has prayed for issue of a writ in the natue of certiorari for quashment of the order dated 30-4-1998 passed by the First Additional Civil Judge, Class-I, Murwara, Dist. Katni in complaint case No. 1/98.

(2.) The facts, as have been unfolded, are that the petitioner's mother Shyamabai filed a civil suit for eviction of the respondents and certain other persons. Along with the plaint map of the suit house Nos. 76 and 112, Subhash Ward, Katni was filed and this was shown by red colour in the said map. This civil suit No. 20-A/77 was decreed by the Second Civil Judge, Class-II, Murwara, Distt. Katni on 20-7-1978. Assailing the same the aggrieved respondents filed a second appeal No. 557/79 before this Court which was allowed on 2-5-1981. Against the above decision the respondents feeling dissatisfied preferred S.L.P. No. 2233(N)/81 before the Apex Court wherein leave was granted and the mater was converted into an appeal. The Apex Court by order dated 22-2-1989 directed the appeal to be dismissed as withdrawn and granted some time to vacate the suit premises. It was directed by the Apex Court that decree for eviction shall not be executed till 31-11-1989 provided that the appellant shall file an unconditional undertaking within four weeks.The judgment-debtors did not deliver the possession in spite of undertaking given before the Apex Court. Being constrained the decree-holder filed a contempt petition before the Hon'ble Supreme Court. The contemner tried to assert that the decree was filed in respect of house No. 76. The Apex Court clarified that the suit property bearing house Nos. 76 and 112 was situated at Subhash Ward, Katni. It was further directed that the possession be taken forthwith and delivered to the decree-holder and the matter was directed to be listed after four weeks. In compliance of the order of the Apex Court the possession was delivered. Eventually the matter was disposed of and cost was awarded. After the matter came to end as far as the possession is concerned the judgment-debtor, Shrikant Nigam filed an application under Sections 195 and 340 of the Code of Criminal Procedure alleging that the decree-holders' agent had changed the map in the execution proceedings so that the possession of the entire house could be given. In the said proceedings the present petitioner was not noticed and evidence was recorded behind his back and eventually vide order Annexure P/8 directing to file a complaint against the petitioner in respect of the offences punishable under Sections 466, 467, 468 and 471 of the Indian Penal Code was passed.

(3.) The petitioner preferred an appeal before the learned Additional District Judge, Murwara, Distt. Katni, against the said order. This appeal was preferred as there was judgment of this Court rendered in the case of Harishankar Kamarlal Vashiya v. Khayalichandra Roopchand Goyal, 1992 MPLJ 15 : (1991 Cri LJ 2153) wherein this Court held that an appeal lies against such an order. When the appeal was pending the petitioner came across the decision rendered in the case of Surendra Gupta v. Bhagwan Devi, AIR 1996 SC 509 wherein the Apex Court has directed that an application under Section 340 of the Cr. P.C. cannot be construed as complaint. The relevant portion of the said decision reads as under :