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2011 DIGILAW 2749 (RAJ)

Ramesh Iyer v. State of Rajasthan

2011-12-14

NISHA GUPTA

body2011
JUDGMENT 1. - This misc. petition has been filed against the order dated 28.4.2008 whereby cognizance has been taken against the present petitioner for the offences under Sections 420, 120-B and 423 I.P.C. 2. The brief facts of the case are that a complaint was filed by the respondent No. 2 in the Court of Judicial Magistrate No. 6, Ajmer, which was sent for investigation under Section 156(3) Cr.P.C. And F.I.R. No. 218/2006 was registered for the offences under Sections 467, 468, 471, 420 and 406 I.P.C. and after investigation, the police submitted final report. The complainant submitted protest petition and examined himself under Section 200 Cr.P.C. and the learned Magistrate has taken cognizance against the present petitioner. Hence, this petition. 3. Heard learned counsel for the petitioner, learned Public Prosecutor and the learned counsel for the respondent No. 2 and perused the impugned order. 4. The contention of the present petitioner is that the impugned order is contrary to the facts and law. Originally the complaint was filed against the Chief Finance Officer and Managing Director of the company but no name was disclosed in the original complaint. Thereafter, an application was submitted before the learned Magistrate on 22.4.2008, wherein name of the present petitioner was disclosed. The complaint preferred by the respondent No. 2 does not disclose the commission of any offence by the present petitioner and there is no evidence available on the record on the basis of which a reasonable or prudent man could believe that the petitioner has committed the alleged offence and hence, the order of cognizance is misuse and abuse of process of law and hence the proceedings should be quashed. He has further submitted that he had no direct or indirect role in disbursement of recovery of loan. and the matter was in regard to Ajmer Branch, whereas the present petitioner is posted in the Head Office at Mumbai and nothing has been alleged against the present petitioner in the complaint and in the statement of complaint recorded under Section 200 Cr.P.C. There is no reference in regard to the present petitioner. 5. The first objection of the respondent No. 2 is that when the impugned order is revisable one, the petition under Section 482 Cr.P.C. is not maintainable. 6. Learned counsel for the petitioner has relied upon a judgment delivered in the case of Ram Biraji Devi & Anr. 5. The first objection of the respondent No. 2 is that when the impugned order is revisable one, the petition under Section 482 Cr.P.C. is not maintainable. 6. Learned counsel for the petitioner has relied upon a judgment delivered in the case of Ram Biraji Devi & Anr. v. Umesh Kumar Singh & Anr., (2006) 6 SCC 669 wherein it has been held that when the cognizance is taken by the Magistrate was clearly an abuse of process of Court warranting interference in the interest of justice, the Court ought to have exercised its inherent jurisdiction and when the case is of extreme exception, the Courts have inherent jurisdiction and power to set aside the unwarranted and unjustified order of the Magistrate. Learned Counsel for the petitioner submits that the petitioner cannot be said to have committed any,offence of cheating, nor he be attributed to any guilty intention and hence this case is of extreme exception. 7. A bare perusal of complaint and statement recorded under Section 200 Cr.P.C. goes to shows that there is no allegation against the present petitioner that he, in any way, has represented falsely or has induced the present complainant to deliver any property and hence, on the face of the record, if the allegations contained in the complaint are accepted to be true, it cannot be said that the petitioner had committed any offence of cheating and hence the order is per se illegal. 8. Learned counsel for the petitioner has also relied upon the judgment delivered in the case of G. Sager Suri & Anr. v. State of U.P. & Ors., (2000) 2 SCC 636 wherein it has been as under : "In the present case, the whole attempt of the complainant is evidently to rope in all the members of the family particularly the appellants who are the parents of the Managing Director of the Automobile Company without regard to their role or participation in the alleged offences with the sole purpose of getting the loan due to the Finance Company by browbeating and tyrannising the appellants with criminal prosecution." 9. He has also relied upon the judgments delivered in the case of Uma Shankar Gopalika v. State of Bihar & Anr., (2005) 10 SCC 336 , wherein it has been held as Under: "It is well settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In the present case it has nowhere been stated that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 I.P.C." 10. Reliance has also been placed on a judgment delivered in the case of Anil Ritolia @ A.K. Ritolia v. State of Bihar & Anr., (2007) 10 SCC 110 , wherein it has been held as under : "It is equally well settled that the allegations contained in the complaint petition must, prima facie, show inducement of the victim by the accused by making a representation. In a case of this nature, we are of the opinion that no case has been made out to form an opinion that the appellant had the requisite intention." 11. Looking at the above position and on bare perusal of the impugned order that Magistrate has not cared to apply his mind with the facts of the case and the law applicable thereto, it is revealed that if the facts are taken on their face value, they do not constitute any offence under Sections 420, 423 and 120-B I.P.C. qua petitioner. 12. It has been stated by the petitioner that a notice was received by the present petitioner and in reply to that it has been specifically informed to the complaint that he should approach to the Regional Office situated at Jaipur with all original documents and hence no criminal, liability can be fastened upon the present petitioner. 13. It was further stated by the present petitioner that the complainant also filed a claim before the District Consumer Forum in which civil liability has been imposed on the present petitioner and the same has been paid in compliance of the order of the Consumer Forum. 14. 13. It was further stated by the present petitioner that the complainant also filed a claim before the District Consumer Forum in which civil liability has been imposed on the present petitioner and the same has been paid in compliance of the order of the Consumer Forum. 14. In view of the above, continuation of these proceedings qua petitioner is miscarriage of justice and the same are liable to be quashed. Accordingly, this petition is allowed and the impugned order is quashed qua petitioner and set aside and the whole proceedings of Criminal Case No. 7/2008 pending in the Court of Judicial Magistrate, No. 6, Ajmer are also quashed qua petitioner.Petition allowed. *******