Naresh Jain v. State of Raj. — 1999 DIGILAW 935 (RAJ)

Honble GUPTA, J.– Through this misc. petition u/S. 482 Cr.P.C. the petitioners call in question the order dt. 3.3.97 of the learned Judicial Magistrate No.4, Jodhpur whereby he took cognizance against the petitioners u/S. 406 and 420 IPC and issued warrants of arrest. (2). The brief facts of the case are that on 21.8.96 Manoj Israni filed a complaint before the Magistrate with the allegations that the petitioners, who were engaged in the building construction work, approached him and told that they would construct `Happy Home wherein shops/counters would be constructed in the ground floor and the first floor and if he wanted he could also get shops/counters on payment of Rs.50,000/-,100,000 or 1,50,000/- depending on the size, and the com- plainant, believing their statements to be true, paid a sum of Rs. 4,00,000/- to them by cheque no. 876303 for four counters, one for Rs. 50,000/-, second for Rs. 1,50,000/- and two counters for Rs. 1,00,000/- each. The further allegation is that the petitioners accused got the cheque encashed on 19-9-95, and that when the construction work was over the complainant approached them to give possession of the counters to him but they refused to give possession of any of the counters and told him that they would neither return Rs. 4,00,000/- nor would give possession of any counter. It is stated in the complaint that the accused were having dishonest intention from the very beginning and they have cheated the complainant. This complaint was forwarded to the police u/S.156(3) Cr.P.C. where a case u/S. 420 and 406 IPC was registered. The police after investigation gave final report. On receiving notice, the complainant filed a protest petition. The learned Magistrate after going through the material on record passed the impugned order. (3). Mr. Bhoot, learned counsel for the petitioners contended that the allegations in the complaint do not constitute an offence, and the dispute between the parties is of civil nature. His contention was that the police had rightly given final report in the matter and the learned Magistrate has erred in issuing process against the petitioners. Mr. Bhoot urged that the complainant had deposited Rs. 4 lacs with the petitioners for allotment of the shares and the petitioners had deposited that amount in their account books and even allotted the shares to the complainant. Mr. Bhoot urged that the complainant had deposited Rs. 4 lacs with the petitioners for allotment of the shares and the petitioners had deposited that amount in their account books and even allotted the shares to the complainant. Relying on the cases of Hari Prasad Chamaria vs. Bishun Kumar (1) Narain vs. State of Rajasthan (2) and A.K. Pareek vs. State of Rajasthan (3) decided on 9.8.96, he submitted that the impugned order be quashed. (4). Mr. Mrudul, learned counsel for the respondent no.2 and the P.P., on the other hand, supported the impugned order. They contended that the allegations made in the complaint constitute the commission of cognizable offence by the petitioners and therefore this Court should not interfere in the order taking cognizance. Their contention was that the police had given final report on flimsy grounds and the learned Magistrate has rightly issued process after going through the record of the case. They pointed out that false stand has been taken by the petitioners that the complainant had deposited the amount for allotment of shares which plea has not been taken by them in the written statement filed in the civil court. They cited the cases of Kulwant Rai vs. State of Raj. (4), Ram Deo vs. State of Raj. (5), Laxmi Lal vs. State of Raj. (6) and Rahees and Shamsher vs. State (7). (5). I have considered the rival contentions made by the learned counsel for the parties. The first question to be determined is whether the complaint contains the allegations constituting commission of cognizable offence by the accused petitioners. At para no. 3 of the complaint it has been clearly stated that the petitioners had led the complainant believe that they would be constructing shops and counters and if he wanted he would be allotted counters and believing the statement to be true he paid Rs. 4 lacs to the accused petitioners by cheque. At para no. 5 it has been stated that after the counters were constructed the petitioners refused to hand over possession to the complainant. At para no. 6 the allegations are that the petitioners were having dishonest intention from the very beginning. (6). In my opinion, the aforesaid allegations in the complaint clearly constitute the commission of the cognizable offence by the accused petitioners. At para no. 6 the allegations are that the petitioners were having dishonest intention from the very beginning. (6). In my opinion, the aforesaid allegations in the complaint clearly constitute the commission of the cognizable offence by the accused petitioners. In the statements of the witnesses also, it has come that the accused had caused the complainant to believe that if he paid certain sum of money he would be given possession of the counters and believing that statement the complainant deposited Rs. 4 lacs with the accused petitioners. In this connections there are the statements of Manoj Israni himself, Gopal Das and Harish. (7). It is significant to point out that it is not disputed by the petitioners that Manoj had paid Rs. 4 lacs to them by cheque. The defence of the accused is that the complainant had deposited this sum for the allotment of shares. This defence cannot be conisdered at this stage, moreson , when it is not shown that the complainant had ever applied in writing for the allotment of the shares. That apart, admittedly the petitioners have not taken this plea in their written statement filed in the civil court. They simply denied the allegations of the plaint, and did not come out with a case of adjusting the amount against the allotment of shares. Of course, in the reply to the application under O. 39 Rule 1 & 2 C.P.C. the petitioners had stated that the amount was deposited by the complainant for the allotment of shares, but the fact that this plea was not taken in the written statement filed by the petitioners, entitles the complainant to contend that the petitioners are not coming with clean hands and they have acted dishonestly. (8). It may be that the petitioners who had taken the amount from the complainant in the name of allotment of the counters later on entered the same in the books for allotment of shares but on that ground the impugned order cannot be quashed. It is a question of fact which can be decided by the trial court after the evidence is recorded. For the present only the complainants version can be seen that the petitioners had obtained the amount from him telling that they would allot him for counters. (9). It is a question of fact which can be decided by the trial court after the evidence is recorded. For the present only the complainants version can be seen that the petitioners had obtained the amount from him telling that they would allot him for counters. (9). Apart from that, the learned counsel for the petitioners could not show that the alleged allotted shares (certificates) were sent to the complainant. (10). It is well settled that at the stage of issuing of process the Magistrate is mainly concerned with the allegations levelled in the complaint and the evidence led in its support. He is only prima facie to be satisfied whether there are sufficient grounds for proceeding against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merits or demerits of the case. Vide Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi (8). In that case, their lordships have categorised cases in which the order of Magistrate issuing process against the accused can be quashed or set aside which are reproduced hereunder: ``(1) Where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the com- plaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3). where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible, and (4). where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like. (11). The instant case does not come in any of the above categories. It cannot be said that the allegations in the complaint or the statements of the witnesses do not make out a case against the accused or do not disclose the essential ingredients of the offence of cheating or that the allegations made in the complaint are patently absurd and inherently improbable. It cannot be said that the allegations in the complaint or the statements of the witnesses do not make out a case against the accused or do not disclose the essential ingredients of the offence of cheating or that the allegations made in the complaint are patently absurd and inherently improbable. This also cannot be said that the order of the learned Magistrate in issuing process is capricious and arbitrary and based on no evidence. (12). As to the case of Hari Prasad (supra) relied on by Mr. Bhoot, it may be stated that in that case the complainant did not, at all, state in the complaint that the accused had dishonest or fraudulent intention at the time the appellant parted with the money. It was also not stated in the complaint that the accused had indu- ced the complainant to pay the amount by deceiving him. As already stated, in the instant case all these facts are clearly stated in the complaint. The case is thus clearly distinguishable. (13). So also the case of Narain (supra) does not help the petitioners. That was a case, in which the complaint was filed after 5 years of the event and there was agreement between the parties that if complainant did not want to purchase the land, then the accused would return the advance amount along with interest. The case of the accused was that they were prepared to perform their part of the contract. it was on these facts that this Court held that the basic ingredients of the offence punishable u/Sec. 420 IPC were totally missing. The additional ground on which the proceedings were quashed was that the complaint was filed after delay of 5 years. (14). The facts of the case of A.K. Pareek (supra) were very different. In that case, the accused had received the goods from the complaint but the Hundi could not be encashed because the accused did not make payment to the Bank concer- ned. Relying on the case of Hari Prasad (supra) this Court had quashed the order of framing of the charge. That case does not help the petitioners. (15). This Court in the case of Ram Deo (supra) has clearly held that when prima facie case is made out against the accused on the basis of the evidence and document on record the cognizance order should not be quashed. That case does not help the petitioners. (15). This Court in the case of Ram Deo (supra) has clearly held that when prima facie case is made out against the accused on the basis of the evidence and document on record the cognizance order should not be quashed. In that case, it was also observed that the question of having valid defence may be considered only by the trial court. (16). In the instant case, as already stated the allegations in the F.I.R. as also the facts which have appeared in the statement of the witnesses clearly constitute offence u/Sec. 420 IPC. The police had given final report obviously on flimsy or the non existent grounds. The first ground taken by the police was that from the record, it was not established that for what purpose the amount was paid by the complainant, whereas there is material on record that the complainant had paid the amount to the petitioners for the counters. The second ground taken was that the report was lodged after one year of the payment of the cheque. The complainant could make a demand from the petitioners only after the counters were constructed and they were not allotted to him. As such, the delay could not be fatal in this case. The third ground was that a suit has also been filed in the Civil Court. There cannot be any justification for quashing the proceedings on the ground that the complainant had also filed a civil suit. There is no legal impediment for parallel proceedings in the civil and criminal court in respect of the same dispute. The next ground recorded in the F.R. was that according to the accused persons the amount was paid for allotment of the shares. It is obviously the defence of the accused which can be considered when the trial is conducted. The learned Magistrate, thus, has rightly not accepted the F.R. (17). On a consideration of entire material on record, I am of the opinion that the learned Magistrate was perfectly justified in issuing process against the petitioners. The petitioners may agitate at the stage of charge regarding the offence under Sec. 406 IPC. (18). There being no merit in this petition, it is hereby dismissed.