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2013 DIGILAW 1543 (RAJ)

Bhanwarlal v. State of Rajasthan

2013-09-05

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant miscellaneous petition has been preferred by the petitioner against the order dated 19.2.2010 passed by the learned Addl. Sessions Judge (F.T.) Parbatsar in revision whereby the Revisional Court rejected the revision filed by the petitioner against the order dated 17.2.2007 passed by the learned Judicial Magistrate, 1st Class, Nawa City in Cr. Case No. 286/2006 discharging the respondent from the offence under Section 406 I.RC. 2. Learned counsel for petitioner contends that the learned Magistrate discharged the respondent no. 2 from the offence under Section 406 Indian Penal Code without any justification. He contends that the petitioners revision was dismissed by the learned Addl. Sessions Judge holding it to be not maintainable without any justification. He contends that the Revisional Court held that the State had already challenged the order in another Revision No. 55/2007 which was rejected by the learned Addl. Sessions Judge and as such the petitioners revision amounted to a second revision. Learned counsel urges that the order passed by the learned Revisional Court be reversed and the matter be remanded back for fresh disposal of the petitioners revision on merits as the revision filed by the petitioner in the Court of Addl. Sessions Judge (F.T.) Prabatsar was not considered and decided on merits. 3. Learned counsel for the petitioner was given an opportunity to argue the matter on merits. He addressed the Court on merits and urged that the field in question was given by the petitioner to the respondent no. 2 for cultivating the same with the understanding that the petitioner would be entitled to half of the agriculture produce whereas the remaining half would be of the accused. Learned counsel submits that contrary to the understanding, the accused misappropriated the total agriculture produce and thereby committed a criminal breach of trust. Learned counsel thus submits that the matter deserves to be sent back to the trial court by reversing the order of discharge and that the accused should be put to trial for the offence under section 406 IPC. 4. Per contra Mr. M.K. Garg, learned counsel for the respondent no. 2 submits that the case as set up by the complainant is totally false. He submits that there is no material on record to show that the respondent misappropriated any property which was entrusted to him. 4. Per contra Mr. M.K. Garg, learned counsel for the respondent no. 2 submits that the case as set up by the complainant is totally false. He submits that there is no material on record to show that the respondent misappropriated any property which was entrusted to him. He further contends that there is no allegation of the complainant either in the F.I.R. or in his statement under Section 151 Criminal Procedure Code that the respondent was entrusted any valuable security which he converted to his own, use and did not return the same back to the complainant despite demand for the same. Thus, he urges that the order impugned does not call for any interference. 5. Having given thoughtful consideration to the arguments advanced at the bar and the material available on record, this Court is of the opinion that for the accused to be charged for the offence under Section 406 I.PC. there has to be specific allegation of entrustment, refusal to return on demand and dishonest conversion of the property to his own use by the accused. From a bare perusal of the F.I.R. it would be evident that there is no allegation of the complainant that the accused dishonestly misappropriated the property belonging to the complainant. The complainant has simply alleged that both the parties were entitled to equal share of the crops and the accused took it away. In order to complete the offence under Section 406 I.RC., there has to be an allegation that the complainant demands his share of the crop and the accused refused to return the same. Such allegation is totally missing in the F.I.R. That apart the allegations levelled in the F.I.R. regarding the accused dishonestly removing the agriculture produce is absolutely vague. No date, time and even month has been mentioned in the F.I.R. about the alleged act of dishonest removal of crops. Even the witnesses who were examined during the investigation did not state any date, time or period when the crops were removed. 6. In this view of the matter, this Court is of the opinion that the learned trial court committed no error in discharging the respondent no. 2 from the 5 offence under Section 406 I.RC. The order passed by the learned Magistrate has also been affirmed by the learned Revisional Court and rightly so. 6. In this view of the matter, this Court is of the opinion that the learned trial court committed no error in discharging the respondent no. 2 from the 5 offence under Section 406 I.RC. The order passed by the learned Magistrate has also been affirmed by the learned Revisional Court and rightly so. As a matter of fact, this miscellaneous petition is nothing but a second revision by a same party which is barred by Section 397(3) Criminal Procedure Code Accordingly, the miscellaneous petition is dismissed. Record be sent back. Petition Dismissed. *******