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2006 DIGILAW 2483 (RAJ)

Intzar Ali @ Anjar Ali v. State of Rajasthan

2006-08-18

SATYA PRAKASH PATHAK

body2006
Judgment S.P. Pathak, J.-This Criminal Revision Petition has been filed under Section 397/402 of the CrPC against order dated 22.03.2006 passed by the learned Judicial Magistrate, First Class, Churu, on submitting a Protest Petition in F.R. No.168/03, whereby cognizance of the offence under Section 420, 467, 468 and 471 of Indian Penal Code (hereinafter referred to as IPC) has been taken against the accused petitioners and they have been summoned through warrant of arrest. 2. Briefly stated, the facts which are necessary for the disposal of the present revision petition are that Aslam Khan, who is complainant of the case, has filed the complaint against present accused petitioners,namely, Intzar Ali @ Anjar Ali and Jafar Ali on 17.06.2003 stating, inter-alia, therein that accused Intzar Ali told him that he is Power of Attorney holder of the land bearing Khasra No.154 situated at Ratangarh Road, District Churu, measuring about 11 bighas and 4 biswas, which was of the ownership of his father and as there was financial need to the family, therefore, he persuaded the complainant to purchase the same and an agreement was reduced in writing in relation to the above disputed land on 211.2002 and as an advance payment a sum of Rs.25,000/-was paid on the very same day and a sum of Rs.50,000/-was paid to accused on 012.2002. The remaining amount was paid through cheques. Thus, a sum of Rs.40,000/-was also collected by him through cheques which were given on 26.04.2003. In all, a sum of Rs.1,20,000/-was paid to the accused petitioners and total consideration of the land was Rs.1,80,000/-. 3. It is further stated in the complaint that the complainant came to know that Mutation was attested in regard to the disputed land in the year 2001 in the name of Municipality, Churu, and when this fact came to his notice, he stopped the payment of other cheuqes issued in favour of the accused. It is further stated in the averments that accused petitioners knowing it fully well on the day when agreement was reduced in writing that land stood transferred in the name of Municipality, Churu, this fact was not disclosed and agreement was reduced in writing and major portion of consideration in relation to the disputed land was obtained by them. It is further stated in the averments that accused petitioners knowing it fully well on the day when agreement was reduced in writing that land stood transferred in the name of Municipality, Churu, this fact was not disclosed and agreement was reduced in writing and major portion of consideration in relation to the disputed land was obtained by them. It is further stated in the complaint that when complainant tried to contact the accused for refund of payment he failed to trace their whereabouts and when they met they declined to make any payment. 4. In the above circumstances, the complaint was filed to take legal action against the petitioners. 5. The police after investigation, came to the conclusion that though it is correct that the land stood transferred in the name of Municipality, Churu, and the amount was received by the accused petitioners as consideration of the disputed land but still the matter was of civil nature, therefore, submitted final report before the trial Court. The trial Court permitted the complainant to adduce evidence but the complainant did not adduce evidence. 6. The learned trial Court heard the arguments on the protest petition and after hearing both sides observed that it is not believable that the petitioners were not aware of the fact that the land stood transferred in the name of Municipality Churu when the agreement in relation to the disputed land for sale of the same was reduced in writing. It has also been stated by the trial Court that it also not believable that when the land stood transferred in the name of Municipality, Churu, neither it was intimated to the petitioners nor any communication was made in this regard to them. The trial Court further observed that evidence collected available in the police statement recorded during the course of investigation clearly proves that the land in question stood transferred prior to agreement made in relation to the land, therefore, the accused petitioners were liable to be prosecuted under Sections 420, 467, 468 and 471 of IPC. The Court took cognizance against the petitioners for the aforesaid offences punishable under the Penal Code vide order dated 22.03.2006 and accused petitioners have been summoned through warrant of arrest. 7. Having felt aggrieved with the impugned order passed by the learned trial Court on a protest petition, the present revision petition has been filed. 8. The Court took cognizance against the petitioners for the aforesaid offences punishable under the Penal Code vide order dated 22.03.2006 and accused petitioners have been summoned through warrant of arrest. 7. Having felt aggrieved with the impugned order passed by the learned trial Court on a protest petition, the present revision petition has been filed. 8. I have heard the learned Counsel for the petitioners as well as learned Public Prosecutor and also the Counsel for the complainant. 9. It has been contended by learned Counsel for the petitioners that in the instant case ingredients of Sections 420, 467, 468 and 471 of IPC are missing, therefore, summoning of accused petitioners through warrant of arrest and taking cognizance against the accused petitioners is required to be set aside. It has also been contended that the land was in their ownership and they did not know about the land having been transferred in the name of Municipality, Churu. Learned Counsel for the petitioners has submitted documents of 1996 in relation to the mutation etc and other revenue record regarding disputed land to show that the land in question was in their ownership and they had right to dispose of the same and they have committed no offence. It has also been submitted that the material placed before this Court at the time of arguments, referred to above, is sufficient to draw a conclusion that order of taking cognizance suffers from illegality and infirmity, therefore, it is liable to be set aside. It has also been submitted by the learned Counsel for the petitioners that the learned trial Court has failed to appreciate this important aspect of the matter that there was final report and no additional material was available on record therefore, in absence of additional material, without assigning any reason to differ from the final report, the order of taking cognizance passed by trial Court deserves to be quashed and set aside. 10. On the other hand, learned Public Prosecutor and the learned Counsel appearing on behalf of the complainant have argued that in the instant case the learned trial Judge has assigned reasons for differing with the final report submitted before it. 10. On the other hand, learned Public Prosecutor and the learned Counsel appearing on behalf of the complainant have argued that in the instant case the learned trial Judge has assigned reasons for differing with the final report submitted before it. It has also been submitted that the accused petitioners were knowing it fully well that the land stood transferred in the name of Municipality, Churu, before the execution of the agreement hence it is a case of cheating. It has also been submitted that after having come to know about the facts that the land was not in the ownership of the petitioners, they executed the agreement to sale and received major consideration, the complainant made several efforts to get the amount back but the same was not returned, which goes to show that the accused petitioners with the intention to cheat the complainant obtained consideration of the land, therefore, the order of taking cognizance passed by the learned trial Court is legal, just and proper and does not require any interference by this Court under its revisional jurisdiction. 11. I have considered the submissions made before me and carefully perused the material available on record. 12. It is to be seen that the contention of the learned Counsel for the petitioners that the land in question is of the ownership of the petitioners on the basis certain documents placed before me, is not liable to be accepted for the reason that during the course of investigation it has been established that the land in question stood transferred prior to execution of the agreement between the parties. The investigating agency has also reached to the conclusion that amount in relation to the consideration of the disputed land sold to the complainant was received and that has not been repaid. The investigating agency has recorded statements in this regard. A perusal of those statements and perusal of F.R. which was read over during the course of arguments, clearly indicates that the factum that the land in dispute stood transferred in the name of Municipality, Churu prior to execution of the agreement, stands prima facie established. Therefore, in my humble opinion, there was no occasion for the petitioners to persuade the complainant to purchase the land in question. Therefore, in my humble opinion, there was no occasion for the petitioners to persuade the complainant to purchase the land in question. It is settled position of law that at the time of taking cognizance, the material collected by the police is required to be gone into. It is not the requirement of law that if a final report is submitted before a Court, then it is always essential to examine other witnesses of the complainant. If on the perusal of the final report even if the witnesses are not produced further before the Court then the Court is not debarred from considering the matter for the purpose of either accepting the F.R. or taking cognizance on the material placed before it. 13. It further appears that the trial Court has assigned reasons for taking cognizance against the accused petitioners and the reason is that in view of the undisputed position available on record that the land in question stood transferred in the name of Municipality when agreement in relation to land was executed between the parties, therefore, giving F.R., and considering the matter to be of civil nature was not legally justified. Thus, in my humble opinion, reasons also appear for not accepting the F.R. and taking cognizance in the matter. 14. Now the question is that learned trial Court has taken cognizance in relation to Sections 467, 468, 471 of IPC and also under Section 420 of IPC. In the instant case, on perusal of the entire material available on record, and after carefully considering the provisions of Section 420 of IPC, I am of the opinion that the trial Court was justified in taking cognizance under Section 420 of IPC but there appears no material in relation to other offences under Sections 467, 468 and 471 of IPC. The trial Court appears to have taken cognizance under Sections 467,468 and 471 of IPC without there being any material, therefore, the order passed by the learned Trial Court requires to be partly set aside in relation to taking cognizance for offences under Sections 467, 468 and 471 of IPC but the order of taking cognizance under Section 420 of IPC against the accused petitioners requires to be maintained and instead of summoning through warrant of arrest, they may be summoned through bailable warrant. 15. In view of foregoing discussions, revision petition is partly allowed. 15. In view of foregoing discussions, revision petition is partly allowed. The order of taking cognizance under Section 420 of IPC against accused petitioners is maintained and the order in relation to taking cognizance against the petitioners for the offence under Sections 467,468 and 471 of IPC is set aside. However, accused petitioners are liable to be summoned through bailable warrant in relation to trial under Section 420 of IPC only and the impugned order is modified to that extent. 16. The revision petition stands disposed of , accordingly.