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2013 DIGILAW 925 (RAJ)

Harsukh Lal v. Ramswaroop Man @ R. S. Maan

2013-05-08

SANDEEP MEHTA

body2013
JUDGMENT 1. - Heard learned counsel for the parties. 2. The instant misc. petition has been filed on behalf of the petitioner/complainant challenging the order dated 5.8.2011 passed by the learned Additional Sessions Judge (FT) No. 2, Jodhpur in Criminal Revision No. 18/2010 affirming the order dated 17.9.2009 passed by the learned Judicial Magistrate No. 3, Jodhpur whereby the learned Magistrate dismissed the protest petition filed by the petitioner in relation to F.R. No. 121/2008 arising out of F.I.R. No. 110/2008 of P.S. Sadar Kotwali, Jodhpur. 3. Succinctly stated the facts of the case are that the petitioner filed a complaint in the Court of learned Judicial Magistrate No. 3, Jodhpur which was forwarded to the police for investigation. On the basis of complaint, FIR No. 110/2008 was registered for the offences under Sections 420 and 409 IPC. 4. The complainant alleged in his complaint that he was in dire need of money in the year 2004. He met one Gulab Raj Singhvi and requested him for a loan of Rs. 50,000/-. Gulab Raj Singhvi expressed his inability in providing the money and told the complainant that one Ram Swaroop, who had retired from army, was indulged in the business of advancing loan on interest. Gulab Raj offered the complainant that he could arrange his meeting with Ram Swaroop. Thereafter, Gulab Raj called the complainant to meet Ram Swaroop on 15.8.2004. After a deliberation between both of them, it was decided that Ram Swaroop would provide a sum of Rs. 50,000/- as loan to the complainant and the complainant in turn would give a blank undated signed cheque to Ram Swaroop as a security and that some gold ornaments would also be kept as mortgage against the loan. It was also decided that the complainant would pay interest to Ram Swaroop at a rate of Rs. 2/- per Rs. 100/-. The complainant alleged that the loan amount was decided to be parted with on the very same day and accordingly, in terms of the agreement, the complainant accompanied with Nand Kishore took some ornaments of his wife and cheque no. 489959 of Bank of Rajasthan Branch Sardarpura and reached the house of Gulab Raj Singhvi. There, Gulab Raj Singhvi, Vijay Singh Mehta and Ram Swaroop were present from before. The complainant as per the agreed terms gave a blank undated signed cheque after filling in the amount of Rs. 489959 of Bank of Rajasthan Branch Sardarpura and reached the house of Gulab Raj Singhvi. There, Gulab Raj Singhvi, Vijay Singh Mehta and Ram Swaroop were present from before. The complainant as per the agreed terms gave a blank undated signed cheque after filling in the amount of Rs. 50,000/- as well as his wife's ornaments to the accused Ram Swaroop in the presence of the aforesaid two persons. Ram Swaroop passed on a sum of Rs. 40,000/- in cash to the complainant and assured him that the remaining amount would be given to the complainant 2-3 days later. The complainant contacted Ram Swaroop 2-3 days later and requested him to pay the balance amount of Rs. 10,000/- but he avoided to make payment on the ground that the amount was not arranged for. Later on, the accused told the complainant that the remaining amount could not be arranged for and, therefore, he would charge interest for Rs. 40,000/- only and the loan amount would be restricted to the said sum. The complainant was assured that the cheque would not be misused. Gulab Raj also assured that the accused Ram Swaroop was a good person and, therefore, the complainant did not make any alteration in the amount which had been filled in the cheque. He kept on making payment of the interest amount at the settled rate. About six months before Deepawali, the complainant could make arrangement for the whole of the amount and, therefore, he contacted the accused and requested him that as the amount of Rs. 40,000/- had been arranged for, thus, the security cheque and the mortgaged ornaments be returned back after receiving the repayment of the loaned amount. The accused allegedly told that he was going to Haryana for looking after his field and as soon as he came back, he would settle the accounts. When the accused was again contacted, he allegedly told the complainant that the ornaments had been stolen and thus, he was unable to return the same back. The complainant contacted Gulab Raj Singhvi and requested him to intervene. Gulab Raj Singhvi called the accused at his house and asked him to return back the complainant's ornaments but the accused expressed his inability to return the same on the pretext that the ornaments had been stolen and provided them with a copy of an FIR. The complainant contacted Gulab Raj Singhvi and requested him to intervene. Gulab Raj Singhvi called the accused at his house and asked him to return back the complainant's ornaments but the accused expressed his inability to return the same on the pretext that the ornaments had been stolen and provided them with a copy of an FIR. The accused allegedly told the complainant that he would make payment towards the ornaments but the complainant was not agreeable to the said suggestion. Thereafter, the accused agreed that he will have new ornaments prepared and return the same back to the complainant. When the ornaments were not returned till the month of April, 2008, the complainant again contacted him but evasive replies were given. Ultimately, a letter was given to the accused which was replied and on a perusal of the reply, it became clear that the intention of the accused was fraudulent. The complainant also became apprehensive that the accused might misuse his cheque on which another letter was written to the accused. Thereafter the complainant was threatened by the accused for implicating him in false cases. On 29.5.2008, the accused forcibly entered into the house of the complainant's house and gave a threat that he will not return back the ornaments and will also forcibly recover the amount of Rs. 50,000/- by presenting the cheque. Thereafter, Gulab Raj Singhvi again went to the house of the accused but he bluntly refused to return back the ornaments and the security cheque. 5. On the basis of this complaint, FIR as aforesaid was registered and investigation commenced. During the course of investigation, the police recorded the statements of various witnesses, a photocopy of cheque no. 489959 was submitted by the accused which was also taken on record. The investigating officer ultimately came to the conclusion that there was no written agreement between the parties. The allegations of the complainant were bald oral allegations and were not supported by any record or document. The police also found that the theory of the complainant in the FIR that the accused was handed over a security cheque as well as numerous gold articles towards a paltry loan of Rs. 40,000/- was unbelievable. The complainant could not provide any evidence to the effect that he had made payment of interest to the complainant. The police also found that the theory of the complainant in the FIR that the accused was handed over a security cheque as well as numerous gold articles towards a paltry loan of Rs. 40,000/- was unbelievable. The complainant could not provide any evidence to the effect that he had made payment of interest to the complainant. Ultimately, the police found the case to be of civil nature and submitted a final report. 6. The complainant appeared in the Court and filed a protest petition and examined himself and three witnesses in support of his case. The learned Magistrate by a detailed order dated 17.9.2009 proceeded to accept the FR and rejected the protest petition filed by the complainant. The said order was assailed by the complainant in revision and the revisional court also affirmed the order passed by the learned Magistrate. 7. Now the petitioner/complainant has approached this Court by way of the instant miscellaneous petition seeking quashing of the aforesaid orders impugned and praying for the prosecution of the respondent Ramswaroop for the offences under Sections 420 and 406 IPC. 8. Learned counsel for the petitioner contended that exfacie from a perusal of the orders impugned and the record of the case, it is apparent that the accused gave fraudulent inducement to the complainant and thereby induced him for parting with the valuable ornaments and a blank cheque and thereafter despite the loan amount having been repaid, the accused did not return back the security cheque and ornaments which have been mortgaged by the complainant with the accused. He thus submitted that the orders passed by the courts below are grossly illegal and deserve to be quashed and a direction be issued that the accused be put up for trial for the offences under Sections 420 and 409 IPC. 9. Notice was issued to the respondent but nobody has appeared for him to contest the case. 10. Heard and considered the arguments advanced at the bar and perused the orders impugned as well as the record. 11. From a perusal of the record, it is apparent that the transaction in relation whereto the complaint has been filed, was allegedly carried out way back in the year 2004. The FIR was filed in the year 2008. 10. Heard and considered the arguments advanced at the bar and perused the orders impugned as well as the record. 11. From a perusal of the record, it is apparent that the transaction in relation whereto the complaint has been filed, was allegedly carried out way back in the year 2004. The FIR was filed in the year 2008. There is no allegation of the complainant that at the time of entering into the transaction, the accused had ill motive of cheating the complainant. The trial judge after detailed consideration of the record has arrived at a finding that the story of the complainant regarding him having advanced an undated signed cheque towards the small loan amount and along side the said cheque, having kept the large quantity of gold ornaments as mortgage, does not appear to be palpable. The view taken by the learned trial court is just and proper. It does not appeal to conscience that for a small loan amount of Rs. 40,000/- or Rs. 50,000/-, as the case may be, the complainant would go to the length of keeping as mortgage, a large number of gold ornaments, the value whereof was much more than the loan itself. When the complainant had already given a cheque for securing the loan amount, then there was no reason for him to have kept any ornaments as a further mortgage. The allegations of the complainant are not supported by any documentary evidence. The complainant has also not been able to place on record any document for showing that he had repaid the amount in question. It appears that the story of taking the loan in the year 2004 has been created for taking a defence of limitation in the apprehended action by Ramswaroop in relation to the cheque issued to him. In the opinion of this Court, the orders passed by the courts below do not suffer from any illegality, perversity or irregularity so as to call for interference of this Court in exercise of its inherent powers.Resultantly, the instant miscellaneous petition, having no merits, is hereby dismissed.Record be sent back forthwith.Petition dismissed. *******