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2005 DIGILAW 232 (RAJ)

Harbans Singh v. State of Rajasthan

2005-01-27

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-This criminal revision petition under Section 397/401 of the Code of Criminal Procedure, 1973 (for short, "the Code") is directed against the order dated 09.07.2003 passed by the Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Sri Ganganagar (for short, "the Revisional Court" hereinafter) whereby the Revisional Court allowed the revision petition, being Criminal Revision Petition No. 36/2003, filed by non-petitioner No. 2 and set-aside the Order dated 012.1999 passed by the Judicial Magistrate, Sadulshahar (for short, "the trial Court") in Criminal Case No. 281-A/1999, by which the trial Court took cognizance of the offence under Section 406, IPC against non-petitioner No. 2. Aggrieved of the impugned order dated 09.07.2003 passed by the Revisional Court, the petitioner-complainant has field the instant revision petition. 2. I have heard learned Counsel for the parties. Perused the impugned order dated 09.07.2003 as well as the Order dated 012.1999 passed by the trial Court whereby the trial Court took cognizance of the offence under Section 406, IPC against non-petitioner No. 2. I have also carefully gone through the record of the trial Court. 3. The facts and circumstances giving rise to the instant revision petition are that petitioner-complainant lodged an FIR No. 133 dated 07.05.1997 before Police Station, Sadulshahar, district Sri Ganganagar, against non-petitioner No. 2 for the offences under Sections 406, 420, 467, 468, 471, 504 IPC. The usual investigation ensued and the police filed negative final report, against which the petitioner-complainant field a protest petition and got himself examined as AW. 1 and produced Ajyab Singh AW. 2 and Rajendra Singh AW. 3. The trial Court, by the order dated 012.1999, took cognizance of the offence under Section 406, IPC against non-petitioner No. 2; against which the non-petitioner No. 2 filed a criminal revision before the Revisional Court. The Revisional Court, vide impugned order, allowed the revision petition on the ground that the matter is of a civil nature and, therefore, set-aside the order of the trial Court taking cognizance. 4. From the statement of AW. 1 Harbans Singh, AW. 2 Ajayab Singh and AW. 3 Rajendra Singh, prima facie it is clear that the petitioner-complainant entrusted ("Aadjat") a sum of Rs. 4,25,956/-to non-petitioner No. 2 on the condition that as and when he demands, the non-petitioner No. 2 would pay the said amount. 4. From the statement of AW. 1 Harbans Singh, AW. 2 Ajayab Singh and AW. 3 Rajendra Singh, prima facie it is clear that the petitioner-complainant entrusted ("Aadjat") a sum of Rs. 4,25,956/-to non-petitioner No. 2 on the condition that as and when he demands, the non-petitioner No. 2 would pay the said amount. AW.1 stated on oath before the trial Court that the non-petitioner No. 2 is having a firm in the name and style of "M/s. Arjun Singh Darshan Singh" situated in the Chak in which the complainant is reading and, therefore, non-petitioner No. 2 is known to the complainant. About 7/7 ½ years before, the non-petitioner came to the Dhani of the petitioner-complainant and asked him to sell his agricultural produce through his "Aadhat" shop and got signed a blank pro-note. It is further stated that he used to sell his agricultural produce through non-petitioner No. 2 and for that purpose, from 10.05.1991 to 012.1996, a total sum of Rs. 4,25,956/-was entrusted to the non-petitioner as entrusted-amount ("Aamanat"). However, on demand, non-petitioner No. 2 refused to return the said amount and misappropriated the same for his personal gain, for which a Panchayat was held in the presence of AW. 2 Ajayab Singh and AW. 3 Rajendra Singh. Despite being pursued by the Panchayat, non-petitioner No. 2 failed to return the amount deposited with him. AW. 2 and AW. 3 also made the similar statement and stated that in their presence, the petitioner-complainant entrusted a sum of Rs. 4.25 lac to the non-petitioner No. 2 and when the petitioner-complainant demanded the same, the non-petitioner No. 2 stated that he had used the amount for his own gain and refused the return the entrusted amount. 5. Thus, from the statement of these three witnesses, prima facie it is clear that the complainant-petitioner entrusted a sum of Rs. 4,25,956/-to the non-petitioner No. 2 and the non-petitioner No. 2 misappropriated the said amount by using for his own gain and thereby caused loss to the petitioner-complainant. From the statement of these three witnesses, there is a prima facie evidence of entrustment of the aforesaid amount to the non-petitioner No. 2 by the petitioner-complainant. There is also evidence that on amount being demanded by the petitioner, the non-petitioner No. 2 stated that he had used the same for his own gain and refused to return the same. From the statement of these three witnesses, there is a prima facie evidence of entrustment of the aforesaid amount to the non-petitioner No. 2 by the petitioner-complainant. There is also evidence that on amount being demanded by the petitioner, the non-petitioner No. 2 stated that he had used the same for his own gain and refused to return the same. On the basis of this evidence, the trial Court took cognizance of the offence under Section 406, IPC against the non-petitioner No. 2. Even the Revisional Court has came to the conclusion that a sum of Rs. 4,25,956/-had been deposited by the petitioner with non-petitioner No. 2 but observed that it is a matter of civil nature and, therefore, on these premises, set-aside the order of the trial Court taking cognizance against the non-petitioner No. 2. 6. In Lalmuni Devi (Smt.) vs. State of Bihar & Ors., 2001 (2) SCC 17 , the Honble Supreme Court held as under:-"There could be no dispute to the proposition that if the complaint does not make out an offence it can be quashed. However, it is also settled law that facts may give rise to a civil claim and also amount to an offence. Merely because a civil claim is maintainable does not mean that the criminal complaint cannot be maintained. In this case, on the facts, it cannot be stated, at this stage, that this is a frivolous complaint. The High Court does not state that on facts no offence is made out. If that be so, then merely on the ground that it was a civil wrong the criminal prosecution could not have been quashed." 7. The Honble Supreme Court reiterated the above view in Alpic Finance Ltd. vs. P. Sadasivan & Anr., 2001 (3) SCC 513 and held that when somebody suffers injury to his person, property or reputation, he may have remedies both under civil and criminal law. The injury alleged may form the basis of civil claim and may also constitute the ingredients of some crime punishable under criminal Law. The injury alleged may form the basis of civil claim and may also constitute the ingredients of some crime punishable under criminal Law. When there is a dispute between the parties arising out of a transaction involving passing of valuable properties between them, the aggrieved person may have a right to sue for damages or compensation and at the same time law permits the victim to proceed against the wrongdoer for having committed an offence of criminal breach of trust or cheating. 8. In view of the above settled legal proposition, the order impugned, passed by the Revisional Court, cannot be sustained and is liable to be set-aside. 9. Consequently, the revision-petition is allowed. The impugned Order dated 09.07.2003 passed by the Revisional Court is hereby set aside and the order dated 012.1999 passed by the trial Court in Criminal Case No. 381- A/99 is restored. The record of the trial Court be returned forthwith.