Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 1154 (RAJ)

Udai Singh v. State of Rajasthan

2012-05-08

SANDEEP MEHTA

body2012
JUDGMENT 1. - The instant miscellaneous petition has been filed by the petitioners challenging the orders dated 2.7.2009 passed by the learned Additional Sessions Judge No. 1, Sri Ganganagar in Criminal Revision No. 73/2007, whereby he has modified the order dated 28.6.2007 passed by the learned Judicial Magistrate, (First Class) No. 1 Sri Ganganagar in Criminal Case No. 712/2006 and while affirming the charge under Section 420 Indian Penal Code the learned Revisional Court has set aside the charge for the offence under Section 406 Indian Penal Code 2. Succinctly stated the facts of the case are that an F.I.R. No. 192/2005 was registered against the petitioners at the Police Station, Sri Ganganagar at the instance of the respondent No. 2 Sadhu Singh on 10.8.2005. The allegation made in the F.I.R. was that the complainant and the accused were close acquaintances and the accused, intending to cheat the complainant, induced him to join a company known as Amku Engineers (India) Pvt. Ltd., Mohali, Chandigarh. It is alleged that for giving the 50% shares of the said company, the complainant was made to part with a sum of Rs. 29,00,000/-. The complainant further alleged in the F.I.R. was that despite giving such a huge sum of money to the accused, the accused did not transfer the company's shares as promised to the complainant, nor any Certificated were issued in his favour. 3. The F.I.R. was registered for the offences under Sections 406 and 420 Indian Penal Code and on the conclusion of investigation, a charge-sheet was filed for the said offences against the petitioners 4. Learned Judicial Magistrate No. 1, Sri Ganganagar proceeded to frame charges against the petitioners for the offences under Sections 406 and 420 Indian Penal Code by his order dated 28.6.2007. The petitioners preferred a revision petition, which came to be heard and decided by the learned Additional Sessions Judge No. 1 Sri Ganganagar, who partly accepted the revision petition and quashed the charge under Section 406 Indian Penal Code whilst upholding the charge framed against the petitioners for the offence under Section 420 Indian Penal Code 5. Mr. Mahesh Bora, learned Senior Advocate assisted By Dr. Mr. Mahesh Bora, learned Senior Advocate assisted By Dr. R.K. Sinha, submits that in this case the undisputed facts, as available on the record, reveal that after the complainant and his son were introduced in the company, the complainant's son ran the company's manufacturing unit at Mohali for a substantial period and also acted as a Director of the company. Thus, he contends that once the oral agreement, which was in existence between the parties, has been given effect to and in pursuance thereto the complainant's son worked as the Director in the Company and shared the profits and losses of the company with the accused, then there is no question of any offence of cheating being made out against the accused. He submits that the learned Revisional Court itself has come to the conclusion that the accused did not misappropriate the money invested by the complainant in the company Amku Engineers (India) Pvt. Ltd. Thus, he submits that once the fact regarding the misappropriation of money is found incorrect, then the orders whereby the charge under Section 420 Indian Penal Code has been framed and upheld, cannot stand to scrutiny. He, thus, submits that the charge framed against the petitioners for the offence under Section 420 Indian Penal Code is absolutely illegal. The submits that there is no material whatsoever on the record of the case to show that when the petitioners asked the complainant to join the company, at that time the intention of the accused was fraudulent. Learned counsel for the petitioners submits that it is an admitted fact that the complainant and his son visited the factory premises before joining the company and making investments. Not only this, he has referred to the statement of various witnesses, particularly the witness Manish Garg, as per whom the complainant's son Namitveer Singh used to run the factory for a substantial period of time. Learned counsel submits that not only Namitveer Singh operated the factory but he has also acted as the Director thereof, which fact is apparent from the appointment letter issued by Namitveer Singh as a Director of the company appointing Manish Garg to be the Manager of the company. He, therefore, argues that essentially the agreement between the parties was simply based on oral terms and conditions. He, therefore, argues that essentially the agreement between the parties was simply based on oral terms and conditions. As per terms of the oral agreement, the factory was operated by the complainants son for a substantial period of time and thereafter when the factory started running into losses then the complainant himself resided from the oral agreement and started demanding back the money from the accused. Learned counsel submits that the money was voluntarily invested in the company. The complainant and his son had complete access to the manufacturing unit of the company and, therefore, he submits that a dispute, essentially of civil nature, has been given the twist of a criminal case. Thus, he prats that the miscellaneous petition deserves to be accepted and the impugned order framing charges against the petitioners deserves to be quashed. 6. Learned Public Prosecutor and the learned counsel for the complainant have vehemently opposed the augments advanced on behalf of the petitioners and submit that the petitioners fraudulently induced the complainant into making a huge investment in an almost defunct company. It is submitted that at the time when the complainant made the investment, a promise was made by the accused that 50% shares of the factory would be transferred in the complainant's name, but the accused did not transfer the shares as promised and thereby cheated the complainant. Thus, it is prayed that this Court should refrain from interfering in the well-reasoned order of the trial Court directing framing of the charge under Section 420 Indian Penal Code against the petitioners in this case. 7. Having considered the arguments advanced at the bar and after going through the material available on record, particularly the charge-sheet and the statements of witnesses, it is manifest that the whole of the case of the complainant has been set-up on the basis of an alleged oral complaint. There is no document, by which the Court can reasonably reach to a conclusion that there was any agreement between the parties for transferring the company's shares to the complainant. The complainant, before joining in the company, inspected the factory premises and thereafter, it is evident from the material available on record that the complainants son operated the factory for a substantial period of time. The complainant, before joining in the company, inspected the factory premises and thereafter, it is evident from the material available on record that the complainants son operated the factory for a substantial period of time. He not only operated the factory but also appointed persons to work in the factory showing his capacity to be the Director of the company. 8. In view of the aforesaid facts and circumstances, it cannot be gainsaid that there is no material on record, by which it can be inferred that when the accused allegedly asked the complainant to join the company, at that time the intention of the accused was to defraud the complainant. 9. The learned Revisional Court has, whilst partly allowing the revision filed by the petitioners, quashed charge framed against them for the offence under Section 406 Indian Penal Code In view of the finding of the learned Revisional Court that the petitioners did not commit the offence of breach of trust, this Court is of the opinion that in view of the material available on record and looking to the facts and circumstances of the instant case, it is not possible to sustain the charge under Section 420 Indian Penal Code against the petitioners as well. 10. The upshot of the above discussion is that the miscellaneous petition succeeds; the impugned order dated 2.7.2009 passed by the learned Additional Sessions Judge No. 1, Sri Ganganager in Criminal Revision No. 73/2007, upholding the order of the learned Judicial Magistrate No. 1, Sri Ganganagar framing charge against the petitioners for the offence under Section 420 Indian Penal Code, is hereby set aside.Petition allowed. *******