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2013 DIGILAW 534 (RAJ)

Narendra Prakash v. State of Rajasthan

2013-03-04

SANDEEP MEHTA

body2013
Hon'ble MEHTA, J.—The instant miscellaneous petition has been filed by the petitioner against the order dated 3.10.2012 passed by the learned Sessions Judge, Pali in revision whereby he has upheld the order dated 6.4.2012 passed by the C.J.M. Pali in original complaint case No. 14/2012 whereby the learned C.J.M. refused to summon the accused on the basis of the complaint filed by the petitioner. 2. Succinctly stated the facts of the case are that the petitioner herein filed a complaint in the Court of C.J.M.. Pali for the offences under Sections 420, 467, 468, 471, 116 and 120-B I.P.C., under Sections 81 & 82 of the Indian Registration Act, 1908 as also under Sections 71, 72-A, 73 and 74 of the Information Technology Act. The complainant alleged that he was a contractor was a contractor and was involved in the construction of new houses and also did the jobs of the alteration of old houses. He alleged that late Chhabaldas owned a house at Sindhi Colony, Pali. After the death of Chhabaldas and his wife Smt. Savitri, the respondents No. 1 to 4 arrayed as accused in the complaint approached the complainant and requested him that the accused No. 3 and 4 were to be married and therefore, the complainant should carry out construction work on the said house and give it the shape of a good new building. The complainant further alleged that he agreed to the said proposal of the accused. He allegedly put in immense efforts and expenses and completed the construction work for renewing the building in the stipulated time. It was also alleged that the total amount to be paid to the complainant as per the contract was fixed at Rs. 13,73,300/-. He further alleged that despite the construction being completed by the complainant, the accused only made a payment of Rs. 6,05,500/- and avoided to make the payment of balance amount to him. The complainant alleged that an allurement was given by the accused to him that the balance amount would be paid to the complainant after taking loan from the bank or else the shops constructed in the building would be sold and the final payment will be made to the complainant. 3. The complainant further alleged that the accused Laxmandas expressed to him that he had procured a relinquishment deed in favour of Mool Chand and had procured a loan of Rs. 3. The complainant further alleged that the accused Laxmandas expressed to him that he had procured a relinquishment deed in favour of Mool Chand and had procured a loan of Rs. 6 lacs from the City Finance. He was also told that Mool Chand had expired, and therefore, his legal heirs Lajwanti and other would have the registration of the house executed in favour of Laxmandas. Thereafter another relinquishment deed was allegedly procured on 4.8.2008 which was signed by the accused No. 1 to 7. He further alleged that both the relinquishment deeds were registered by the Sub Registrar Ashok Kumar Tyagi. The complainant alleged that the relinquishment deeds were forged and fraudulent. After the execution of the subsequent relinquishment deed, the accused No. 1 to 8 conspired with Jagdish Chandra Chhabra, Bank Manager, Bank of Baroda and took a loan of Rs. 10,00,000/- towards the construction of the house. The Bank Manager sanctioned the loan without enquiring about the title. Thereafter the accused conspired with Ganesh Soni and sold five of shops for a sum of Rs. 16 lacs. Accused Hemant, Lalit, Naresh and Prakash attested the sale deed. The complainant allegedly gave an information to the S.P. Pali, the Bank Manager Jagdish Chandra Chhabra and Sub Registrar Ashok Kumar Tyagi but the accused had entered into a deep rooted conspiracy, and therefore, were defending each other and so no action was taken against them. 4. The complainant filed the complaint with the aforesaid allegations and requested the trial Court to forward the case to the police for investigation. The learned Magistrate, however, rejected the said prayer of the complainant and by the order dated 6.4.2012 rejected the complaint filed by the petitioner holding that ex-facie the complaint filed by the petitioner was frivolous and disclosed no cause of action for proceeding thereupon. The trial court held that the sole purpose of the complainant was to extract money and that complaint was aimed at misusing the process of criminal law by giving a colour of offence to a dispute purely civil in nature. 5. The complainant challenged the order passed by the Magistrate by filing a revision and the Revisional Court too concurred with the findings of the Magistrate and rejected his revision. 5. The complainant challenged the order passed by the Magistrate by filing a revision and the Revisional Court too concurred with the findings of the Magistrate and rejected his revision. Now, the petitioner has approached this Court by way of instant miscellaneous petition seeking quashing of the orders passed by the courts below and praying for a direction that the complaint filed by the petitioner should be directed to be sent to police for investigation. 6. Mr.D.N. Yadav, learned counsel for the petitioner has placed reliance on the decisions rendered by the Hon'ble Supreme Court in Shivjee Singh vs. Nagendra Tiwary reported in 2010 Cri.L.J. 3827 = 2010(4) RLW 3147 (SC), A.R. Antulay vs. Ramdas Sriniwas Nayak reported in 1984 (1)Crimes (SC) 547, Kishan Singh vs. Gopal Singh reported in AIR 2010 SC 3624 and a Division Bench decision of Bombay High Court in Mrs. Charu Kishor Mehta vs. State of Maharashtra 2011 Cri. L.J. 1486 in support of his contentions and vehemently urged that the learned Magistrate was not having any discretion in this matter not to forward the complaint to police for investigation. He submits that once the petitioner made a request for sending the complaint to the police for investigation, it was obligatory for the learned Magistrate to have forwarded the complaint to the police for investigation. He further contends that the police also has no discretion not to register the case. He vehemently contends that as the complaint filed by the petitioner disclosed cognizable offences it was mandatory for the learned Magistrate to have sent the same to the police for investigation. 7. Heard and considered the arguments advanced at the bar. Perused the orders impugned. 8. From the perusal of the orders impugned it is apparent that the only allegation of cheating and fraud alleged to have been committed with the petitioner was in relation to his grievance about the non payment of the part of the amount towards the cost of construction which the petitioner allegedly incurred in the renewal of the house on the basis of a contract executed between himself and the accused Laxmandas. The complainant had no business whatsoever about the subsequent transactions involving the execu-tion of the relinquishment deed, the alleged fraudulent procurement of loan etc. From a bare perusal of the complaint, it is apparent that the complainant was acting in a highly motivated fashion in this case. The complainant had no business whatsoever about the subsequent transactions involving the execu-tion of the relinquishment deed, the alleged fraudulent procurement of loan etc. From a bare perusal of the complaint, it is apparent that the complainant was acting in a highly motivated fashion in this case. The contract which was allegedly executed between the complainant and the accused Laxmandas was executed more than 4 years back and allegedly a part of the construction cost under the contract was not paid to the complainant. If at all the complainant was aggrieved of the non payment of the contractual amount, then appropriate remedy was for him to have filed a civil suit for recovery. Instead he has tried to entangle not only the owner of the premises but a large number of other persons who were totally unconnected with the contract executed between the complainant and Laxmandas. 9. As per Section 200 of the Cr.P.C. the option to take cognizance is the discretion of the Magistrate. Statement of complainant is required to recorded only in the cases where the Magistrate takes cognizance of the complaint. In cases where the complaint exfacie does not disclose any cognizable offence, it would not be necessary for the learned Magistrate to even record the statement of the complainant. Section 2(d) of the Cr.P.C. defines a complaint. The Section 2(d) reads as below:- "2(d) "Complaint" means any allegation made orally or in writing to Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report." 10. The definition postulates that there should be allegation in relation to some person known or unknown having committed an offence and then only the allegation would be covered in the ambit of the word complainant. If exfacie the allegation submitted before the Court does not disclose any offence whatsoever, then the same would not be covered within the definition of a complaint as defined in Section 2(d) of the Cr.P.C. The discretion whether to send complaint to the police for investigation under Section 156(3) Cr.P.C. also rests with the Magistrate. Sub-section (3) of Section 156 reads as below:- "(3) Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned." 11. Sub-section (3) of Section 156 reads as below:- "(3) Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned." 11. The word `may' has been consciously used by the legislature which shows that whether or not to send the complaint for investigation is purely in the discretion of the Magistrate. In the instant case, the learned Magistrate rightly refused to exercise the said discretion. The Magistrate has held that even if the allegations of the complainant in his complaint are accepted to be true on the face of the record, then too the same do not disclose any cognizable offences so as to proceed thereupon. Section 203 Cr.P.C. empowers the Magistrate to dismiss the complaint even without recording the statements of the complainant and without resorting to the inquiry under Section 202 Cr.P.C. if he is of the opinion that there is no sufficient ground for proceedings. The Magistrate is only required to record brief reasons for doing so. The learned C.J.M. , Pali while rejecting the petitioner's complaint and exercised the discretion available to him under this Section and rightly so. From a bare reading of the complaint it is apparent that the complainant instead of restricting his allegations to the transactions between himself and Laxmandas the person with whom the contract had been entered into, has tried to entangle as many as 10 unconnected persons in the case without any justification whatsoever. Therefore, this Court is of the opinion that the complaint filed by the petitioner was rightly rejected by the learned C.J.M. Pali. The order passed by the CJM Pali has also been affirmed in revision. The judgments cited by the learned counsel for the petitioners are based on entirely different sets of facts, and therefore, do not apply to the present case. The complaint as a matter of fact was nothing but an instrument intended to settle the civil disputes by misusing the process of criminal court. 12. Accordingly, the miscellaneous petition has no force and the same is hereby dismissed.