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2012 DIGILAW 1158 (RAJ)

Vijay Kumar Arora v. State of Rajasthan

2012-05-08

SANDEEP MEHTA

body2012
JUDGMENT 1. - The instant miscellaneous petition has been filed by the petitioners challenging the order dated 9.5.2008 passed by the learned Additional Sessions Judge, Sir Ganganagar in Criminal Revision No. 8/2007, affirming the orders dated 20.11.2006 and 4.1.2007 passed by the learned Additional Chief Judicial Magistrate, Sri Karanpur in Criminal Case No. 121/2005 whereby charges. have been framed and read over to the petitioners for the offences under Sections 420, 406 and 120-B, I.P.C. 2. Succinctly stated the facts of the case are that the complainant- respondent No. 2 filed a complaint against the petitioners in the Court of the learned Judicial Magistrate, First Class No. 1, Sri Ganganagar on 5.6.2004 for the offences under Sections 420 and 406 I.PC. The compliant was registered in the Court and inquiry under Sections 200 and 202 Criminal Procedure Code was initiated. The complainant, however, chose not to participate in the proceedings of the complaint and resultantly the complaint was rejected on 4.3.2005. 3. In the meantime, while the aforementioned complaint was still pending, the complainant-respondent No. 2 filed yet another complaint in respect of the same incident and for the same offences in the Court of the learned Additional Chief Judicial Magistrate, Sri karanpur on 1.11.2004. It is relevant to mention here that in the subsequent complaint, the factum of filing of the earlier complaint in the other Court was concealed by the complainant. Be that as it may, the complaint filed in the Court of the learned Additional Chief Judicial Magistrate, Sri Karanpur was forwarded to the police for investigation and F.I.R. No. 199/2004 was registered at the Police Station, Sri Karanpur on 8.11.2004. 4. The allegation made in the complaint was that the complainant and the accused persons were old acquaintances as being the neighbours. It was further alleged that the petitioners herein induced the complainant and told him that they were having the dealership of a company, namely Modi Petroleum Limited for the district Sri Ganganagar and lured the complainant into accepting the sub-dealership at the tehsil headquarter. The accused allegedly asked the complainant that he would have to make payment of Rupees One lac for being granted the dealership. The complainant further alleged that he fell into the trap Lald by the accused persons and on 19.8.1996 he made payment of Rs. The accused allegedly asked the complainant that he would have to make payment of Rupees One lac for being granted the dealership. The complainant further alleged that he fell into the trap Lald by the accused persons and on 19.8.1996 he made payment of Rs. 80,000/- to the accused by a cheque and in addition thereto, he made the payment of cash money of Rs. 12,000/- and Rs. 3900/- respectively for different heads to the accused persons. 5. The accused persons thereafter intimated the complainant that he had been granted the dealership under the name of " Vatan Gas Agency" and that he should arrange for a location for establishing and running the gas agency. On this the complainant alleged that he rented a shop near the Durga Temple at Sri Karanpur and affixed furniture and inaugurated his shop on 1.9.1996. It is alleged that the accused persons promised the complainant that regular supply of gas cylinders would be made and the complainant was also supplied with certain gas cylinders, gas stoves etc. however it is stated that the accused never made a regular supply of filled gas cylinders as promised. A little later when the complainant pressed for supply of filled gas cylinders, the accused allegedly told him that certain problems had developed at the filling plant of the company and, therefore, the accused were finding it difficult to maintain the supply. 6. In the meantime certain news articles came to be published regarding the fraud committed by the petitioners Vijay Kumar Arora and Pawan Kumar Arora in relation to the distribution of the gas agencies to various other persons. The complainant, on reading the news articles, met the accused and requested for being returned back the money deposited by him, but the accused, despite assuring the complainant for returning his money, did not stick to their promise. 7. The said complaint was forwarded to the police for investigation. An F.I.R. being F.I.R No. 199/2004, was registered at the Police Station, Sri Ganganagar. 8. During the course of investigation, the statement of the complainant was recorded under Section 161 Criminal Procedure Code, wherein the complainant stated that the accused persons had supplied 24 gas cylinders to the complainant each costing Rs. An F.I.R. being F.I.R No. 199/2004, was registered at the Police Station, Sri Ganganagar. 8. During the course of investigation, the statement of the complainant was recorded under Section 161 Criminal Procedure Code, wherein the complainant stated that the accused persons had supplied 24 gas cylinders to the complainant each costing Rs. 3120/- and 20 gas stoves were also.supplied to him, but thereafter the re-filled cylinders were not provided to the complainant and thereby, the complainant alleged that the accused have committed the offence of cheating and breach of trust. The police investigated the matter and filed a charge-sheet against the petitioners in the Court of the learned Additional Chief Judicial Magistrate, Sri Karanpur. During the course of investigation, it came to light that Modi Gas Agency, of which the complainant had been made a sub-dealer, as a matter of fact, was shut down because of the action taken by the Hindustan Petroleum Corporation Limited, Delhi. 9. On the filing of the charge-sheet, the learned Magistrate proceeded to frame charges against the petitioners, as aforesaid. The petitioners challenged the order framing charges by filing a revision petition, which has been rejected, as stated above. Now, the instant miscellaneous petition has been filed by the petitioners challenging the order framing charges and all the subsequent proceedings sought to be taken against them. 10. Learned counsel for the petitioner submits that in this case the essential ingredients of the offences, for which charges have been framed, are totally lacking and, therefore, the order framing charges against the petitioners is absolutely an abuse of the Court. He submits that admittedly the complainant was supplied with the empty cylinders and gas stoves, the value whereof was almost covering the amount paid by the complainant to the accused persons. In view of the aforesaid fact, he submits that the allegation of the complainant that the accused persons cheated him is absolutely baseless. He has also raised the legal objection regarding the maintainability of proceedings against the accused as being initiated on the basis of a second complaint on the same facts. In view of the aforesaid fact, he submits that the allegation of the complainant that the accused persons cheated him is absolutely baseless. He has also raised the legal objection regarding the maintainability of proceedings against the accused as being initiated on the basis of a second complaint on the same facts. He submits that the first complaint filed by the c complainant was proceeded with to the extent of recording the statement of the complainant under Sections 200 and 202 Criminal Procedure Code and thereafter the complainant chose not to pursue the said complaint and filed yet another complaint in the Court of the learned Additional Chief Judicial Magistrate, Sri Karanpur whilst concealing the factum of the earlier complaint filed by him. He further submits that the proceedings in this case are also liable to be quashed because of the undue delay in the filing of the complaint. He contended that the incident of alleged cheating admittedly took place in the year 1996 and the complaint has been filed after nearly eight years of the occurrence and for this inordinate delay; there is no justification provided by the complainant. He, therefore, submits that, the charges framed and the proceedings initiated against the petitioners in pursuance of the complaint are liable to be quashed on account of undue delay. 11. Learned counsel for the complainant-respondent No. 2 and the Public Prosecutor have opposed the submissions made by the learned counsel for the petitioners and submitted that the petitioners induced the complainant and thereafter made him to enter into a sub-dealership of gas agency fraudulently. They submit that not only the complainant was fraudulently induced for entering into the contract but thereafter the huge amount of nearly Rs. 96,000/- was misappropriated by the accused and the same was not returned back to the complainant despite a demand being made for the same. It is, therefore, argued that the miscellaneous petition deserves to be rejected. 12. Upon a consideration of the arguments advanced at the bar and on going through the record, it is apparent that the complaint in this case has been filed after an undue delay of nearly eight years. The complainant has not given any justification in his complaint as to why he did not lodge the complaint against the accused soon after the incident of cheating which allegedly took place with him. 13. The complainant has not given any justification in his complaint as to why he did not lodge the complaint against the accused soon after the incident of cheating which allegedly took place with him. 13. That apart, the complainant has also tried to misuse the process of the Court in this case. He earlier launched a prosecution against the accused with the very same allegations in the Court of the learned Chief Judicial Magistrate, Sri Ganganagar and then chose not to pursue the dame. The argument, which has been advanced on behalf of the petitioners, is that since the learned Magistrate did not accede to the request of the complainant for sending the complaint to the police under Section 156 (3) Criminal Procedure Code, the complainant deliberately did not pursue the complaint and thereafter concealing the factum of filing of the earlier complaint, he proceeded to misuse the process of criminal law by adverting to filing the second complaint with the same allegations in different Court, i.e. the Court of the learned Additional Chief Judicial Magistrate, Sri Karanpur. This argument cannot be said to be without substance. 14. The most important and relevant fact in the case in that the complainant in the present proceedings deliberately concealed the factum of this earlier complaint filed in the Court of the learned Chief Judicial Magistrate, Sri Ganganagar. Thus, the complainant has acted unfairly and has tried to misuse the jurisdiction of the Court at Sri Karanpur in this case. No doubt, when the earlier complaint is dismissed for default, the second complaint filed on the same facts in maintainable. But the question for this Court's consideration is that whether a litigant, who misuses the jurisdiction of a criminal Court by concealing .material facts, can be permitted liberty of having a second innings; the answer thereto cannot be in the affirmative. 15. Apart from this, the admitted case of the complainant is that against the amount of about Rs. 96,000/- invested by him, he was provided with a number of gas cylinders and gas stoves, the value whereof is almost equal to the money invested by him. There is evidence available on the record to the effect that parent Company, i.e. Modi Petroleum, Chandigarh, ran into trouble and the refilling plant had to be shut down. 96,000/- invested by him, he was provided with a number of gas cylinders and gas stoves, the value whereof is almost equal to the money invested by him. There is evidence available on the record to the effect that parent Company, i.e. Modi Petroleum, Chandigarh, ran into trouble and the refilling plant had to be shut down. Thus, it is only owing to the said circumstance that the supply of refilled gas cylinders could not be made to the complainant. The petitioners cannot be said to be responsible for the said consequence, which was beyond their control. From the highest case of the prosecution, there are no circumstances to hold that the intention of the petitioner was to cheat the complainant at the time when the parties entered into the contract. The logical conclusion is that the ingredients of the offences of cheating and breach of trust are totally lacking in the case. 16. In view of the aforesaid facts and circumstances and looking to the over-all factual scenario, this Court is of the opinion that the prosecution of the petitioners in this case for the offences under Sections 420, 406 and 120-B, Indian Penal Code cannot be said to be justified. 17. The upshot of the above discussion is that the miscellaneous petition succeeds and the impugned orders dated 20.11.2006 and 4.2.2007 passed by the learned Judicial Magistrate, First Class, No. 1, Sri Ganganagar framing charges against the petitioners for the offence under Sections 406 and 420 Indian Penal Code, as affirmed in revision by the learned Additional Sessions Judge, Sri Ganganager vide order dated 9.5.2008 are hereby quashed. The stay petition stands disosed of.Petition allowed. *******