KAILASH SHARMA Vs. STATE

JUDGEMENT

(1.) A challan was filed against the petitioner in the Court of the Magis- trate 1st Class, Delhi, for an offence under section 420 Indian Penal Code . The Prosecution case against the petitioner was that he, being a citizen of India, printed certain pamphlets and sent them to various foreign countries including Malaya. In these pamphlets, the petitioner represented that valuable gifts like cinema projectors, jewels etc. would be given to winners of lucky tickets and persons were invited to purchase the lucky tickets by sending postal orders. Some of these pamphlets were received by the two residents of Malaya by name Oathman and Abdul Bin Haji Rafi. Acting upon these representations, these two persons purchased postal orders of 140 Malayan dollars each and sent them to the petitioner. These postal orders were actually received by the petitioner and were encashed by him. No presents were, however, sent to these two persons and it was discovered that the whole scheme was a hoax and the petitioner had never intended to send any present to these persons. A charge was framed against the petitioner on 4.2.1964 under section 420 Indian Penal Code . During the course of the trial, the petitioner filed an application in the Court on 3.11.1966 challenging the jurisdiction of the Magistrate to try him on the ground that the offence was committed outside India and that section 188 Cr. P.C. was a bar to the trial of the petitioner by the Court without a certificate from the Indian Political Agent as required by the first proviso to section 188 Cr. P.C. This application was dismissed by the learned Magistrate by his order dated 22.11.66. Thereafter, the petitioner filed a revision petition in the Court of Sesson and the learned Additional Sessions Judge, who heard this revision petition, has submitted a report to this Court with a recommendation that the order of the learned Magistrate dated 22.11.1966 be set aside and the proceedings pending in his Court against the petitioner be quashed.

(2.) A preliminary objtion has been raised by the learned counsel for the State against the maintainability of the present revision petition in this Court. It has been contended that the petitioner ought to have filed a revision petition in the Court of Session against the charge framed against him by the Magistrate on 4.3.1968, that the revision filed by him in the Court of Session was in effect a revision petition challenging the charge framed against him and that as the revision petition was not filed within 90 days of the date of the framing of the charge, it was barred by time. I am unable to accept this contention. The application filed by the petitioners before the learned Magistrate on 3.11.1966 was an application under section 188 Cr. P.C. and such an application could be filed at any time notwithstanding the fact that a charge bad been framed against the petitioner against which he had not filed any revision petition. The revision petition filed by the petitioner in the Court of Session against the order of the learned Magistrate dismissing his application filed under section 188 Cr. P.C. has been filed within time. The preliminary objection raised by the learned counsel for the State is, therefore, overruled.

(3.) The offence of cheating for which the petitioner is being tried is defined in Section 415. The two ingredients of the offence of cheating are :-