SOMNATH DUBEY Vs. STATE OF U.P.

JUDGEMENT

(1.) THE petitioner, as a complainant filed a complaint against the opposite party No. 2 R. P. Singh before the Special C.J.M.(Customs), Lucknow which was under Sections //// IPC. The learned Magistrate examined the petitioner -complainant under Section Cr.P.C. He also examined a witness under Section Cr.P.C. and after hearing the complainant and examining the oral as well as the documentary evidence filed by the complainant before him, the learned Magistrate vide his order dated 19.8.2008 dismissed the complaint under Section Cr.P.C. Feeling aggrieved by the dismissal and discharge order the petitioner preferred a Criminal Revision No. 354 of 2008. The revision was heard by the Court of learned Additional Sessions Judge, Court No. 8, Lucknow and was dismissed. Feeling aggrieved by both the orders the present petition under Section Cr.P.C. has been filed.

(2.) THIS matter pertains to an incident that took place in the year 2007. Opposite party No. 2 is a property dealer. The petitioner approached him to purchase plot No. 536 having its area as 1 Bigha, 18 Biswas & 3 Biswanis . The property belonged to one Rama Nand Tripathi. An agreement was arrived into between the parties and it was agreed that the said plot would be sold to the petitioner for a sum of Rs. 8.00 lacs. The petitioner drew an account payee cheque for a sum of Rs. 8.00 lac and offered it to opposite party No. 2 who declined to accept the cheque and asked the petitioner for a bearer cheque for a sum of Rs. 2.00 lac only. Therefore the petitioner drew a bearer cheque for Rs. 2.00 lac and handed it over to the opposite party No. 2 who got it cashed. Thereafter the petitioner met opposite party No. 2 a number of times and requested him for the execution of sale deed. Opposite party No. 2 kept on lingering the execution on one pretext or the other and ultimately, on one day, he flatly refused to get the sale deed executed in petitioner's favour. He also refused to return the money which he had accepted from the petitioner through the bearer cheque. When the petitioner insisted for return of money in presence of the witness, opposite party No. 2 assaulted the petitioner, abused him and threatened him to kill. The petitioner approached the police but in vain. Thereafter he filed a complaint before the learned Magistrate. The fate of the complaint and a consequent revision has already been mentioned above.

(3.) IT has been submitted from the side of the petitioner that the petitioner had led sufficient oral as well as documentary evidence before the learned Magistrate and the learned Magistrate on the basis of the same ,should have issued summons to opposite party No. 2 as a clear cut case under Sections , IPC and also under Sections , , IPC was made out against him. By not doing so the learned Magistrate has committed illegality. It has further been submitted that the learned Magistrate has erred while holding the view that the papers filed by the petitioner in support of his complaint should have been proved in accordance with the norms, prescribed under the Evidence Act. It has also been submitted that the learned Magistrate has adopted a perverse view while dismissing the complaint.