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2015 DIGILAW 1258 (RAJ)

Tek Chand v. State of Rajasthan

2015-07-07

VIJAY BISHNOI

body2015
JUDGMENT : Vijay Bishnoi, J. This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioner being aggrieved with the order dated 06.12.2014 passed by the Additional Sessions Judge, Sri Karanpur, District Sri Ganganagar (hereinafter referred to as 'the revisional court') in Criminal Revision Petition No.48/2012, whereby the criminal revision petition filed by the petitioner has been dismissed and the order dated 25.11.2005 passed by the Additional Chief Judicial Magistrate, Sri Karanpur, District Sri Ganganagar (hereinafter referred to as 'the trial court') in Criminal Original Case No.483/2005 of taking cognizance against the petitioner for the offence punishable under Section 406 IPC has been affirmed. 2. Brief facts of the case are that respondent No.2 filed an FIR on 04.06.2002 while alleging that the petitioner and other three persons are the partners of a firm titled as 'Keshvanand Tek Chand' situated in Mandi Kesarisinghpur and working as Grain Merchant and Commission Agent. It is alleged that the complainant had deposited Rs. 1,25,345/- in the said firm on 01.04.2001, however, when he demanded the said money, petitioner and the other accused persons have refused to return the same and, therefore, they have committed the offence punishable under Section 406 IPC. 3. The police after investigation has filed negative final report while concluding that the complainant, petitioner and other accused persons have entered into a compromise and as per the said compromise all the money deposited by the complainant has been paid to him and, therefore, the dispute between the complainant and the accused persons is purely of civil nature and no criminal offence is made out. 4. The trial court after considering the negative final report filed by the police has issued notice to the complainant, who appeared before it and filed a protest petition while claiming that the police has wrongly reported the factum of compromise between the accused persons and him. He also claimed that the accused persons have misappropriated the amount deposited by him. In support of the protest petition, the complainant has got recorded his statement under Section 200 Cr.P.C. as well as the statements of other three witnesses viz. Sarjeet Singh, Inder Singh and Subhash Mathur. The complainant and the above named witnesses have stated that the amount of Rs. In support of the protest petition, the complainant has got recorded his statement under Section 200 Cr.P.C. as well as the statements of other three witnesses viz. Sarjeet Singh, Inder Singh and Subhash Mathur. The complainant and the above named witnesses have stated that the amount of Rs. 1,25,345/- was deposited by the complainant in the firm of the accused persons and when the complainant has demanded to return the said money they have refused to do so. The trial court after taking into consideration the protest petition and the statements recorded in support of the same, has ordered for taking cognizance against the petitioner and other co-accused persons for the offences punishable under Section 406 IPC vide order dated 25.11.2005. 5. Pursuant to the order of taking cognizance, the co-accused persons had appeared before the trial court, however, the petitioner did not appear before the trial court and ultimately vide order dated 07.05.2012, he was declared as absconder and standing warrant was issued against him. Thereafter, on 22.09.2012, the petitioner had filed the aforesaid revision petition before the revisional court while challenging the order of the trial court of taking cognizance. The revisional court after taking into consideration the above facts and circumstances of the case and after taking into consideration the material available on record has observed that as per the statements of the complainant and other witnesses, in support of the protest petition, it is clear that the - persons are the partners of the firm - 'Keshvanand Tek Chand' and received the amount of Rs. 1,25,345/- from the complainant on 01.04.2001, however, despite demand from the complainant, the same has not been returned to the complainant and, therefore, prima facie case for the offence punishable under Section 406 IPC is made out against the petitioner and other co-accused persons and as such the trial court has not committed any illegality in passing the impugned order. The revisional court has also observed that the petitioner has filed revision with delay only after he was declared as absconder by the trial court. After observing this the revisional court has rejected the revision petition filed by the petitioner. 6. The revisional court has also observed that the petitioner has filed revision with delay only after he was declared as absconder by the trial court. After observing this the revisional court has rejected the revision petition filed by the petitioner. 6. Learned counsel for the petitioner has argued that the trial court has grossly erred in taking cognizance against the petitioner for the offence punishable under Section 406 IPC as the dispute between the complainant and the petitioner and the co-accused persons was purely of civil nature. It is also argued that when the complainant himself has admitted before the Investigating Officer that the dispute regarding the payment of money has already been resolved there was no occasion for the trial court to take cognizance against the petitioner for the offence punishable under Section 406 IPC. 7. On the strength of the above arguments, learned counsel for the petitioner has prayed that the order dated 25.11.2005 and 06.12.2014 passed by the trial court as well as the revisional court respectively are illegal and, therefore, the same may kindly be set aside. 8. Per contra, learned Public Prosecutor has supported the orders passed by the courts below and argued that the petitioner is declared as absconder by the trial court and on account of the same, the trial is delayed, therefore, he is not entitled to get any relief from this Court under the inherent powers. 9. Heard learned counsel for the petitioner and the learned Public Prosecutor and perused the impugned orders passed by both the courts below as well as the material placed on record. The police has filed final report while concluding that as the accused persons have already returned the money of the complainant he does not want to press the charges levelled against them. The police has also recorded the statements of some witnesses under Section 161 Cr.P.C. who have also claimed that the dispute between the petitioner, co-accused persons and the complainant has been resolved as the accused persons have returned the money of the complainant. However, assailing the final report submitted by the police, the complainant has specifically alleged that the money deposited by him in the firm has never been returned and the same has been misappropriated. However, assailing the final report submitted by the police, the complainant has specifically alleged that the money deposited by him in the firm has never been returned and the same has been misappropriated. In support of the protest petition, three other witnesses have also deposed before the Court that the money deposited by the complainant has not been returned by the petitioner and other accused persons and they have misappropriated the said money. 10. In view of the statements of the complainant and the other witnesses in support of the protest petition and in view of the documentary evidence produced by the witnesses before the trial court, this Court is of the opinion that the trial court has not committed any illegality in taking cognizance against the petitioner and other accused persons for the offence punishable under Section 406 IPC and the revisional court has also not committed any illegality in affirming the order of taking cognizance. 11. Apart from that, it is not in dispute that the other co-accused persons had appeared before the trial court, however, the petitioner, despite service of summons, did not appear before the trial court and was declared as absconder on 07.05.2012. Thereafter, the petitioner filed the criminal revision petition before the revisional court on 22.09.2012. Learned counsel for the petitioner has fairly conceded that till date the petitioner has not appeared before the trial court and he is still absconding. On account of absence of the petitioner, the trial of the case has not been proceeded further. The petitioner instead of appearing before the trial court has filed this criminal misc. petition only with the intention to delay the trial and, therefore, such conduct of the petitioner cannot be appreciated and the petitioner is not entitled to get any relief from this Court under its inherent powers. The attempt of the petitioner to avoid the trial is nothing but an abuse of process of the Court. 12. Hence, this criminal misc. petition is dismissed with cost of Rs. 20,000/-. The cost of Rs. 20,000/- be deposited in the State Legal Aid Service Authority. The Superintendent of Police, Sri Ganganagar is directed to take all steps to arrest the petitioner immediately. Stay petition also stands dismissed.