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2014 DIGILAW 1813 (RAJ)

Ajayab Singh v. State of Rajasthan

2014-11-13

SANDEEP MEHTA

body2014
JUDGMENT 1. - The instant misc. petition has been preferred by the petitioner assailing the order dated 29.10.2013 passed by the learned Additional Sessions Judge, Raisinghnagar in revision whereby the revisional court affirmed the order dated 3.7.2013 passed by the learned Judicial Magistrate 1st Class,, Raisinghnagar in Cr.Case No.119/2011 whereby whilst rejecting the application preferred by the petitioner under Section 91 Cr.P.C., the trial Judge directed framing of charges against him for the offences under Sections 420 and 406 IPC. 2. Facts in brief are that the complainant respondent No.2 Ram Lal filed a complaint in the court of the learned Judicial Magistrate, Raisinghnagar against the petitioner with the allegations that the petitioner procured a sum of Rs. 45,000/- from the complainant by giving a fraudulent inducement and thereafter, gave a cheque of the said amount to the complainant towards repayment. When the cheque was presented to the bank, initially it was returned back with the remark that the funds were insufficient. Thereafter, the complainant upon receiving an assurance from the accused, again presented the cheque to the bank but by that time, the accused closed his bank account. The complaint was forwarded to the Police Station Muklawa under Section 156(3) Cr.P.C. where an FIR No.58/2009 was registered and investigation commenced. The Investigating Officer after completing investigation filed a charge-sheet against the petitioner for the offences under Sections 420 and 406 IPC. The trial Court vide order dated 3.7.2013 directed framing of charges against the petitioner for the offences under Sections 420 and 406 IPC. The petitioner assailed the order framing charge by filing revision which too was dismissed by learned Additional Sessions Judge, Raisinghnagar as stated above. 3. The petitioner has now approached this Court by way of the instant misc. petition seeking quashing of the order framing charges. 4. Shri S.L.Jain learned counsel for the petitioner vehemently contended that none of the ingredients of the offence under Section 406 IPC were made out in the instant case. He submitted that the complainant simply advanced a cash loan to the petitioner. Merely because the loan was not repaid, the set of facts would not be covered under the offence of criminal breach of trust. He submitted that the complainant simply advanced a cash loan to the petitioner. Merely because the loan was not repaid, the set of facts would not be covered under the offence of criminal breach of trust. He further submitted that ex-facie, the ingredients of the offence under Section 420 IPC were also not disclosed in the case because as per him the mere closure of the bank account by the accused would not make his intention fraudulent right from the inception of the contract so as to bring the provision of Section 420 IPC applicable. Thus, he prayed that the impugned order be quashed and the accused be discharged. 5. Per contra, Learned Public Prosecutor and the learned counsel for the complainant have vehemently opposed the submissions advanced by the petitioner's counsel. Learned counsel for the complainant respondent No.2 has placed on record a copy of the order dated 15.3.2011 passed by this Court in Cr.Misc. Petition No.922/20109 filed by the petitioner wherein the petitioner assailed the FIR NO.58/2009 registered against him in this matter. This Court whilst deciding the said misc. petition held that the petitioner acted fraudulently in this matter. He had given a cheque to the complainant for clearing the dues. During the validity period of the cheque in question, the petitioner closed his bank account. Consequently, when the complainant presented the cheque for encashment, the bank dishonoured the same with the remark that the account was closed. In this background, this Court recorded a specific finding that the petitioner's intention was to defraud the complainant. The complainant's counsel thus submitted that as this Court has already concluded in this matter that the petitioner defrauded the complainant, there cannot be any justification to interfere in the order framing charge. Learned Public Prosecutor also supported the arguments advanced by the learned counsel for the complainant. 6. I have heard the arguments advanced by the learned counsel appearing for the parties and have gone through the material available on record. 7. So far as the charges of fraud against the accused under Section 420 IPC is concerned, there cannot be any justification for interfering in the same because this Court whilst examining the issue in an earlier misc. 7. So far as the charges of fraud against the accused under Section 420 IPC is concerned, there cannot be any justification for interfering in the same because this Court whilst examining the issue in an earlier misc. petition filed by the petitioner assailing the FIR filed against him held that there was a specific allegation of the complainant that the cheque was issued with the intention not to make payment and thereby the accused cheated the complainant. It was further observed that before expiry of the validity period of cheque, the petitioner closed his bank account. The said action substantiated the allegation that the cheque was issued with dishonest intention. Thus, the order framing charge does not warrant any interference so far as the offence under Section 420 IPC is concerned. However, coming to the charge for the offence under Section 406 IPC, this Court has to examine the question as to whether the mere non-repayment of loan could amount to an offence under Section 406 IPC. It is not in dispute that the amount which was given by the complainant to the petitioner was by way of a cash loan. The complainant and all his witnesses upon being examined during investigation categorically stated that the complainant advanced a sum of Rs. 45,000/- as cash loan to the accused. The complainant also filed a civil suit against the accused for recovery of the amount. In the said civil suit also, specific plea of the complainant was that he had advanced a sum of Rs. 45,000/- to the accused as loan. The suit was filed for recovery of the loan amount as well as the interest accrued thereupon. The Civil Court decreed the suit for the principal sum of Rs. 45,000/- and the interest accrued thereupon vide order dated 22.11.2011. Thus, the basic ingredients of the offence under Section 406 IPC that the amount in question was entrusted to the accused is totally lacking in the case. In this background, this Court is of the opinion that there is no justification to sustain the order of charge to the extent of offence under Section 406 IPC. 8. Consequently, the misc. petition is allowed in part. The order dated 3.7.2013 passed by the learned Judicial Magistrate 1st Class,, Raisinghnagar in Cr.Case No.119/2011 is quashed to the extent of the offence under Section 406 IPC. 8. Consequently, the misc. petition is allowed in part. The order dated 3.7.2013 passed by the learned Judicial Magistrate 1st Class,, Raisinghnagar in Cr.Case No.119/2011 is quashed to the extent of the offence under Section 406 IPC. The trial of the petitioner shall now be continued for the offence under Section 420 IPC.Petition partly allowed. *******