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2013 DIGILAW 162 (RAJ)

Hukka v. State of Rajasthan

2013-01-21

SANDEEP MEHTA

body2013
JUDGMENT 1. - These two misc. petitions have been filed by the petitioners against the order dated 12.11.2009 passed by the learned Judicial Magistrate 1st Class, Dungarpur in Original Case No. 46/2007 framing charge against the petitioners for the offences under Sections 418 and 120B IPC. 2. Succinctly stated the facts of the case are that the respondent No. 2 complainant filed a complaint in the concerned Court against the petitioners for the offences under Sections 420, 120B and 379 IPC. The allegation of the complainant was that the accused Hukka gave a proposal to the complainant and her husband that he was having 3 Biswas of land on the Aaspur-Dungarpur road on the Mauja Punali. He was desirous of constructing shops on the said road but due to financial constraints, he was not in a position to raise the construction. On the promise of the accused Huka, partnership agreement was executed between the complainant and Hukka on 7.2.2001 and as per terms of the agreement, the property was agreed to be shared amongst both of them and the profits were also agreed to be shared. The complainant has come out with the case that pursuant to the agreement being entered into between the parties, the complainant advanced certains sums of money from time to time to the accused Hukka for raising the construction and construction material was also unloaded on the site. Thereafter, Yashpal Singh Choudhary and his family members filed a suit against Hukka in relation to the very same land. Hukka was given certain sum of money for contesting the suit but instead of contesting the suit, Hukka entered into a compromise with Shanker Singh Choudhary and his family members and procured a collusive decree. Thereafter the land was fraudulently got registered in the name of Yashpal Singh the son of Shanker Singh Choudhary. The complaint was forwarded to the Police for investigation and FIR No. 67/06 was registered at the Police Station Ganeshpur for the offences under Sections 420, 120B and 379 IPC. 3. The Police after investigation filed a charge-sheet against the accused for the offences under Sections 420, 120B and Section 379 of the IPC. 4. The learned Magistrate however at the stage of charges, discharged the petitioners from the offences under Section 120B and 420 IPC and instead directed framing of charge under Section 418 read with Section 120B IPC against them. 5. 4. The learned Magistrate however at the stage of charges, discharged the petitioners from the offences under Section 120B and 420 IPC and instead directed framing of charge under Section 418 read with Section 120B IPC against them. 5. The petitioners herein challenged the order framing charge passed by the learned Magistrate and the revisional Court too has affirmed the said order. 6. Now the petitioners have approached this Court by way of the instant misc. petitions assailing the proceedings of the courts below. 7. Shri Shambhoo Singh learned counsel for the petitioners Shanker Singh and Yashpal Singh submits that none of the essential ingredients of the offence under Section 418 IPC are made out against the petitioners Shanker Singh and Yashpal Singh. He submits that as per the definition of offence of cheating under Section 415 IPC, the deceiving of the person cheated and a fraudulent inducement for delivery of property or valuable security is a sine-qua-non before the accused can be prosecuted under Section 418 of the IPC. He submits that neither of the petitioners herein were under any obligation to the complainant and therefore, they cannot be prosecuted for the offence under Section 418 IPC. 8. Shri P.S. Rathore, learned counsel for the petitioner Hukka submits that the petitioner Hukka has not cheated the complainant because the agreement, which was entered into by the petitioner Hukka was with the co-accused Shanker Singh and Yashpal Singh and the complainant has not been induced to deliver any property by the alleged fraudulent transaction entered into between Hukka and Shanker Singh and Yashpal Singh. They, therefore, pray that the order framing charge deserves to be quashed. 9. Per contra, Shri Rakesh Arora, learned counsel for the respondent No. 1 complainant submits that the complainant was first induced into entering into an agreement with Hukka in relation to Hukka's property and thereafter, Hukka and Shanker Singh conspired together to deprive the complainant of the same property and thus, the learned trial Court has rightly framed the charge against the petitioners as stated above. He, therefore, prays that the order impugned does not call for any interference. 10. Heard and considered the arguments advanced at the bar and perused the record. 11. Undisputedly, the agreement, which was entered into at the initial stage and long before the sale of the property was between complainant and Hukka. He, therefore, prays that the order impugned does not call for any interference. 10. Heard and considered the arguments advanced at the bar and perused the record. 11. Undisputedly, the agreement, which was entered into at the initial stage and long before the sale of the property was between complainant and Hukka. Shanker Singh and Yashpal Singh were not a party to the said agreement. The property in question was adjoining the property of Yashpal Singh and therefore, Yashpal Singh and his family members filed a suit against Hukka and others for injunction and declaration. During the course of the suit, Hukka compromised the matter with Yashpal Singh and thereafter, sold the property to him through a registered sale deed. The said transaction has taken place in the year 2006 i.e. after nearly 5 years of the agreement entered into between the complainant and the co-accused Hukka. Thus, by no stretch of imagination, it can be inferred that any of the act of petitioners Yashpal Singh and Shanker Singh can fall within the definition of offence of cheating as set out in Section 415 of the IPC. However, as regards Hukka, there is a distinct allegation that he was under an obligation to protect the interest of the complainant because he had entered into a specific agreement in regard to the transacted land with the complainant and despite the currency of the agreement, he sold the property to Yashpal Sigh. 12. As a result of the aforesaid discursion, the misc. petition (1013/2011) filed by Hukka does not deserve acceptance and is hereby rejected. Stay petition is also rejected. 13. However, the misc. petition (986/2011) filed by Shanker Singh and Yashpal Singh is fit to be accepted and is hereby allowed. The order dated 12.11.2009 passed by the learned Judicial Magistrate 1st Class, Dungarpur in Criminal Regular No. 46/2007 directing framing of charge against the petitioners Shanker Singh and Yashpal Singh for the offences under Sections 418 and 120B IPC is quashed. Stay petition is also disposed of. 14. Record be sent back forthwith.Petition No. 985/2011 allowed/Petition No. 1013/2011 dismissed. *******