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2012 DIGILAW 685 (RAJ)

Abbas Ali v. State of Rajasthan

2012-03-20

SANDEEP MEHTA

body2012
JUDGMENT 1. - The instant misc. petition has been filed on behalf of the petitioner challenging the order dated 17.2.2007 passed by the learned Judicial Magistrate, First Class, Churu rejecting the complaint filed by the petitioner against the respondents Nos. 2 and 3 and against the order dated 13.2.2008 passed by the learned Sessions Judge, Churu affirming the order of the learned Magistrate in revision. 2. Briefly stated the facts necessary for the disposal of the misc. petition are that the petitioner filed a complaint against the respondents Nos. 2 and 3 with the allegations that the complainant and the accused-respondents were close relatives and on good terms with each other. It is alleged that the accused-respondents with the objective of cheating the petitioner showed him a land situated at their village projecting the same to be under the ownership of the accused and took a cheque of rupees one lac as advance from the complainant's son Mohd. Sharif on 24.10.2003. A receipt was also executed and the same was given to the son of the complainant. It was also averred that the accused did not have any land at the relevant time and by inducing the complainant's son, he was made to sign some blank stamps and papers which the accused were trying to misuse. It was also stated that when the complainant came to know about the cheating committed by the accused, he instructed his bank to stop payment of cheque. Upon which, the respondents herein filed a complaint under Section 138 of the N.I. Act against the petitioner's son without there being any responsibility or the liability of the complainant s son in relation to the cheque in question. It was also stated in the complaint that the respondents filed a false F.I.R. against the complainants son and the complainants son had to loose his job because of the false case filed by the respondents against him. The complaint with the aforesaid averments was filed in the Court of the learned Judicial Magistrate, First Class, Churu on 30.8.2005. The complaint was proceeded under Sections 200 and 202 Cr.P.C. and an enquiry was also got conducted through the police. On the conclusion of the enquiry, the learned Magistrate proceeded to reject the complaint filed by the petitioner holding that the complainant's case regarding the accused having fraudulently induced his son to give the cheque was absolutely concocted. The complaint was proceeded under Sections 200 and 202 Cr.P.C. and an enquiry was also got conducted through the police. On the conclusion of the enquiry, the learned Magistrate proceeded to reject the complaint filed by the petitioner holding that the complainant's case regarding the accused having fraudulently induced his son to give the cheque was absolutely concocted. It was also opined by the learned Magistrate that it is unbelievable that the complainant would have given the cheque without ascertaining the status of the Sand so as to enter into an agreement to purchase the land without ascertaining the right of the seller to sell the same, even though, the land was located just in front of the complainant's house. It was held that the complainant and his son should have ascertained about the title of the seller on the principle of buyer beware before entering into the agreement. Learned Magistrate also found that the proceedings against the complainant's son under Section 138 of the N.I. Act in relation to the disputed cheque was pending in the competent Court and that in another F.I.R. filed against the complainants son for cheating various persons on the promise to send them abroad, the police had charge-sheeted him and that case was already going on. After arriving at the aforesaid conclusions, the learned Magistrate by his order dated 17.2.2007 proceeded to reject the complaint filed by the petitioner, whereupon, the petitioner challenged the order of rejection of the complaint by way of filing the revision and the learned Revisional Court too has rejected the complaint by concurring with the finding of the learned Magistrate. Hence this misc. petition has been filed on behalf of the petitioner seeking direction that the respondents Nos. 2 and 3 should be prosecuted for offences under Sections 420 and 120-B I.P.C. 3. Learned counsel Mr. Vishwajeet Joshi appearing on behalf of the petitioner submits that at the stage of taking cognizance, only the existence of a prima facie case was to be seen by the learned Magistrate and no roving enquiry was permissible. It is submitted that ex facie the allegations of the complainant were established and therefore the learned Magistrate committed grave error in rejecting the complaint and that the learned Revisional Court has also erred in upholding the order of the learned Magistrate. 4. Per contra, learned counsel Mr. It is submitted that ex facie the allegations of the complainant were established and therefore the learned Magistrate committed grave error in rejecting the complaint and that the learned Revisional Court has also erred in upholding the order of the learned Magistrate. 4. Per contra, learned counsel Mr. Ashok Upadhayaya appearing on behalf of the respondents Nos. 2 and 3 submits that the story of the complainant regarding the transaction of the land is absolutely false. He submits that there is no written agreement available on the record of the case to show that the respondents had made an agreement to sell any land to the complainant. He submits that the receipt on which reliance has been placed does not show any particular land in relation whereto the receipt was executed. It is further submitted that in the case pertaining to the bouncing of the disputed cheque, payment of rupees one lac fifty thousand has been made and thereafter the case was culminated on the strength of a compromise by order dated 1.3.2007, which has been placed on record. Thus, it is submitted that when the liability to make the payment of the cheque has been accepted by the complainant's son before the competent Court and he has also made payment thereof, then the allegation against the respondents for having fraudulently procured the very same cheque cannot be accepted on its face value. Thus, it is submitted that no interference is called for in the concurrent finding of the Courts below in rejecting the complaint. 5. I have heard learned counsel for the parties, perused the orders impugned passed by the learned Courts below and have given my thoughtful consideration to the arguments advanced at the bar. 6. In the opinion of this Court, it becomes apparent that the petitioner's son was found involved in the crime of defrauding large number of persons with the promise of sending them abroad. A criminal case for the filing of which the respondents were instrumental was also registered against the petitioner and his son, whereupon, charge-sheet has also been filed against them. The allegation of the complainant is that the respondents Nos. 2 and 3 herein made an agreement to sell their land to the complainant, whereas, no such land ever existed does not appear to be substantiated from any substantive evidence. The allegation of the complainant is that the respondents Nos. 2 and 3 herein made an agreement to sell their land to the complainant, whereas, no such land ever existed does not appear to be substantiated from any substantive evidence. No agreement has been placed on record by the complainant rather it is admitted that no agreement in writing was ever executed. The cheque in question is said to have been given to the accused in lieu of the agreement executed towards sale of the land, and for bouncing of the same cheque, the complainant's son has compromised the matter with the accused and has made payment of rupees one lac fifty thousand, after which, the complaint was decided by compromise. Therefore, ex facie the allegation regarding the complainant's son having been dishonestly induced and thereafter fraudulently having been deprived of the cheque cannot be accepted. That apart, the allegation of the complainant has been disbelieved by the learned Magistrate who has rejected the complaint filed by him and the order of rejection has already been affirmed in revision as well and in the opinion of this Court rightly so. 7. Thus, the present misc. petition under Section 482 Cr.P.C. is nothing but a second revision in the garb of the misc. petition. A second revision by the same party is barred by virtue of Section 397(3) Cr.P.C. 8. Consequently, this misc. petition being bereft of any force is hereby dismissed.Petition dismissed. *******