ASHOKBHAI DEVSIBHAI KACHA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of present petition, the petitioners have challenged the legality and validity of the order passed by the learned Sessions Judge, Amreli passed in Criminal Revision Application No. 71 of 2011 and contended that the learned Sessions Judge has committed an error of jurisdiction. Hence, on that premise, the petition was brought before this Court. During the course of pendency of the petition, some amendment has also taken place at the instance of the petitioner by addition of prayer seeking quashment of the complaint and the process issued by the learned Sessions Judge. Be that as it may, the present petition essentially being a petition under Article 227 of the Constitution of India but later on tried to enlarge original scope of petition by bringing amendment and invoking Section 482 of the Code of Criminal Procedure, 1973 also was brought to the petition.

(2.) The brief facts under which this complaint is lodged are that complainant namely respondent no.2 is the permanent resident of Savarkumdla and he is serving in Nagarpalika. The present petitioners original accused are also resident of Savarkundla and having joint property over survey no. 41, 41/1, 42/2 bearing plot no. 237 and 238 admeasuring 2169 square meters areas. It is the case of the complainant that present petitioners have projected while entering into the transaction that the title with respect to this portion of land is clear without any encumbrance. By this representation made by the petitioners, the complainant was persuaded, entered into transaction in the form of Banakhat. It is further the case of the complainant that it was projected by these petitioners that outstanding amount of Gujarat Electricity Bill is to the tune of Rs.1,00,000/and thereby as such the said amount set apart for adjustment at the time of final payment. It is the case of the complainant that this projection and representation given by the petitioners the complainant entered into a transaction but later upon an inquiry, it has been found that over this portion of land, there was one Rolling Mill operated in the name of Sardar Steel and Iron and it has already been found that a huge amount of electricity bill to the extent of Rs. 36,00,000/was outstanding and these material facts have been concealed from the complainant. The petitioners have entered into transaction with the complainant. It is submitted by the complainant that if these facts could been conveyed to the complainant, he would not have entered into such transactions and therefore, according to the complainant, this is nothing but a clear example of the cheating with the complainant and, therefore, in sum and substance by giving representation of this kind to the complainant he was persuaded by the petitioners to enter into transaction and thereby parted with the money and therefore in the background of these facts, the complaint came to be filed.

(3.) As stated above this complaint was sent for inquiry under Section 202 of CR.P.C and there was specific verification taken by the learned Magistrate to entertain the complaint. Despite the aforesaid fact since, the learned Judicial Magistrate First Class, Savarkundla on 21.11.2011 resorting to the provisions contained under Section 203 of Code of Criminal Procedure, dismissed the complaint the respondent was led to prefer a Criminal Revision Application and upon appreciation of all the material relating to the issue, the learned Sessions Judge has issued the process/summons for offence punishable under Section 420 read with section 114 of the Indian Penal Code vide order dated 27.02.2012. It is against this background the petitioner has brought the petition.