SUDHIR PATIL Vs. S RAFIQ

JUDGEMENT

(1.) BY means of this revision, preferred under section 482 and 397 of Cr. P. C. the petitioner (original complainant) has impugned the order dated 2-5-1991 passed by the JMFC, Jawhar, District Thane, in Enquiry Case No. 3/1991, dismissing the complaint filed by him wherein he has averred that respondent No. 1 has cheated him and an offence under section 420 IPC, is made out against him.

(2.) IN short, the allegations in the complaint read thus:-Complainant had sown 5000 seeds of water melon both on his land and also on that standing in the name of mother of one Raghunath Nangre. The complainant stated that as the water melons in the land of Raghunath Nangre, were ready for being cut, he was in search of a customer. On 15-2-1991, the respondent No. 1 came to him and agreed to purchase the water melons for Rs. 50,000/ -. When he asked for earnest money, he assured that next week, he would bring the trucks, take all the water melons-fruits and pay the entire amount in a lumpsum. The respondent No. 1 even handed over his visiting card to the complainant. Believing the words of respondent No. 1, the complainant agreed for the said transaction. At that time, one Gajanan Sambre was also present with him. On 21-2-1991, complainant cut the water melons. The same day at about 2 p. m. respondent No. 1 along with five trucks reached the field. The respondent No. 1 started filling the trucks with water melons through labourers. When the complainant demanded Rs. 50. 000/-, he stated that his men will come with the entire amount, and the said men would reach while the vehicles were being loaded. Accepting the words of the respondent No. 1, he allowed him to continue loading the trucks with water melons. By evening, all the trucks were loaded but the man of respondent No. 1 who were to come with money, were to be seen nowhere. Accordingly, the complainant restrained respondent No. 1 from taking the water melons. On that, the respondent No. 1 told him that on account of some difficulty, his men could not come and therefore, he should come to his house at Bombay, where he would pay the entire amount. Believing the words, of the respondent No. 1, the complainant and Gajanan Sambre, went to the house of the respondent No. 1 at Andheri. They reached there at about 10 p. m. As soon as they got down from the car, the respondent No. 1 started saying that You Zadpoli people are too smart, I will not give you your money. I will teach you a good lesson. You get out from here. The respondent No. 1 threatened them by saying that if they went to the Court or police, nothing would happen to him. At that time, it is said that the complainant and his associate told the respondent No. 1 that if he felt that the fruits were a bit costly he could give Rs. 5. 000/- less. But, even that had no effect on the respondent No. 1 it is alleged that the complainant and Gajanan Sambre, spent the night at Thane. Next day, they returned home and there complainant narrated the incident to his brother. The same day (22-2-1991) he gave information to Vikramgadh police station in writing, but the police did not take any action in the matter. On learning on 1-4-1991, that the police had not taken any action in the matter, he filed a complaint wherein the facts stated above have been mentioned.

(3.) IMMEDIATELY on the complainant filing the complaint, his statement was recorded and the JMFC, Jawhar, District Thane, passed the following order :-"read the allegations and perused the verification. The allegations are of serious nature. complainant to lead evidence before process. Call police report what action they have taken. " S/d 1-4-91. JMFC, Jawhar. Pursuant to the order of the JMFC, Jawhar, the Complainant led evidence under section 202 Cr. P. C. Two witnesses namely Raghunath Nangre and Gajanan Sambre, were examined. The averments contained in their statements are more or less identical to those found in the complaint. After the complainant had led his evidence, the JMFC, Jawhar, after examining the entire material, passed the impugned order. In para 5 of the impugned order, he had set out two reasons for dismissing the complaint. The first is that although the grievance was in respect of a huge amount namely Rs. 50,000/-, no documentary evidence is on record. Second was that in his judgment, the issue was of a civil nature. I have carefully examined the impugned order as well as the material on record, and I dare say that the order of the JMFC, Jawhar, in dismissing the complaint is patently a perverse one. Absence of written agreement would not ipso facto falsify the averments in the complaint, in the statement of the complainant recorded under section 200 Cr. P. C. and in the statement of Raghunath Nangare and Gajanan Sambre under section 202 Cr. P. C. Why the agreement was not executed in writing may be a relevant question to be put to the petitioner (complainant) in his cross-examination but, certainly it would not result in the complaint being thrown out, as has been the case here.